Bangalore District Court
Sri Shaikh Irshad vs Sri M. Javeed Iqbal on 20 December, 2018
Govt. of Karnataka
C.R.P.67]
TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
Form No.9 MAY OHALL UNIT, BANGALORE
(Civil)
Title sheet for
Judgment in Present: Sri. B.NARAYANAPPA, M.A, LL.B.,
suits (R.P.91)
(Name of the Presiding Judge)
OS NO. 25862/2010
(CCH-22)
Plaintiff/s:- Sri Shaikh Irshad,
aged about 49 years,
S/o. Isha, No.55/4, Shanthinagar,
Wanowarie, Pune 40, Maharashtra.
(By Sri Jose Sebastian, Advocate)
V/s.
Defendant/s:- Sri M. Javeed Iqbal,
aged about 54 years,
S/o. Late M. Abdul Rasheed,
residing at No.64, Mosque Road,
Frazer Town, Bangalore 560 005.
(By Sri M.D. Raghunath, Advocate)
Date of Institution of the suit 15.6.2010
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent Injunction
Date of the commencement of recording of the
4.1.2016
Evidence.
Date on which the Judgment was pronounced. 20.12.2018
Year/s Month/s Day/s
Total duration 8 6 5
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
2 O.S.No. 25862/2010
JUDGMENT
The plaintiff has filed this suit against the defendant seeking relief of permanent injunction restraining the defendant, his agents, henchmen, relations, workmen, associates, etc., from entering upon, interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiff and from meddling with the same.
2) Brief facts of plaintiff's case are that:
The plaintiff is the absolute owner in possession and enjoyment of suit schedule 'A' property having acquired the same under registered sale deed dated 20.9.2006. subsequently the plaintiff purchased adjacent portion of the property viz., suit schedule 'B' property under registered sale deed dated 12.12.2006. Originally the property was in possession and enjoyment of Abdul Khader who purchased the same under registered sale deed dated 30.12.1891 and after his death the property inherited by his son K. Abdul Razack. The said Abdul Razack gifted the properties in 3 O.S.No. 25862/2010 favour of his daughter Smt. Zulekha Bi on 2.12.1931 under oral gift /Hiba and the Donee took over possession of the properties. Thereafter Smt. Zulekha Bi gifted the schedule properties in favour of her son Sri Wahab Sardar, by virtue of oral gift / Hiba, who is the vendor of plaintiff. The Khatha effected in the name of the vendor of plaintiff Sri Wahab Sardar.
The plaintiff after purchase of suit schedule 'A and 'B' properties from his vendor Sri Wahab Sardar got transferred Khatha in his name. The defendant filed O.S. No. 26318/2008 which was dismissed on 25.5.2010 in view of memo filed for withdrawal of the suit. The defendant made attempts to enter upon the suit schedule properties without any manner of right, title and interest over the suit schedule properties. On 11.6.2010 the defendant started doing excavation work in the suit schedule property which was objected by the plaintiff and the plaintiff approached the jurisdictional police, but they advised him to approach 4 O.S.No. 25862/2010 the court since the dispute is civil in nature. The cause of action for the suit arose on 11.6.2010. Hence the suit.
3) After registration of this suit, suit summons were issued to the defendant. In-response to the summons, the defendant appeared before this court through his counsel and filed written-statement denying all the material averments made in the plaint and further contended that:-
The suit is not maintainable under law or on facts and the same is liable to be dismissed in limine. The plaintiff is not in possession and enjoyment of the suit schedule 'A and 'B' properties. The suit for bare injunction without declaration and possession is not maintainable. The defendant is the co owner of the premises bearing Nos. 4 and 4A, New Nos. 22 and 21, L.No.5th street, Old Poor House road Cross, Shivajinagar, Bangalore i.e., written statement schedule property having acquired the same under two release deeds dated 18.8.2007 from his mother, sisters and paternal uncle. Originally his father late Mr. M. Abbdul Rasheed and uncle Mr. M. Abdul Salam had jointly 5 O.S.No. 25862/2010 acquired the written statement schedule property under deed of sale dated 9.2.1962. The father of defendant died on 29.4.1981 and the plaintiff becomes co-owner of the schedule property on the death of his father and after obtaining release from his uncle mother and sister under aforementioned documents the plaintiff has not joined other co owners as such the suit is liable to be dismissed for non joinder of necessary parties.
The defendant is in possession and enjoyment of the written statement suit schedule property and khatha of the same stands in his name and he obtained sanctioned plan to put up construction from Bruhath Bengaluru Mahanagara Palike. New numbers assigned by Bruhath Bengaluru Mahanagara Palike to properties bearing No.4 and 4A i.e., 22 and 21 respectively. The defendant along with his brother is the absolute owner of the written statement schedule property. The plaint schedule properties bearing No.26 and not the one in possession of this defendant. The documents relied upon by the plaintiff is in no way 6 O.S.No. 25862/2010 connected to the property of this defendant. The defendant has filed O.S. No. 25318/2008 against one Mr. Wahab Sardar and withdrew the same. But the said suit is in no way concerned to the present suit. There is no property of the plaintiff in existence. The defendant is putting up construction in written statement schedule property. For all these reasons, the defendant prays to dismiss the suit of the plaintiff The defendant sought counter claim to pass a decree restraining the plaintiff by way of permanent injunction from interfering with this defendant's peaceful possession and enjoyment of the written statement schedule property.
4) On the basis of the above Pleadings, following Issues have been framed:-
(1) Whether plaintiff proves his lawful possession and enjoyment in suit property as on date of the suit?7 O.S.No. 25862/2010
(2) Whether plaintiff proves defendant is illegally causing interference to his possession in schedule property?
(3) Whether defendant proves that he is in lawful possession and enjoyment of written statement schedule property and plaintiff is illegally trying to obstruct defendants possession in written statement schedule property?
(4) Whether plaintiff is entitled for decree of permanent injunction as sought in the plaint?
(5) Whether defendant is entitled for decree of permanent injunction against plaintiff as sought in the counter claim written statement?
(6) To what decree or order?
5) Inspite of grant of sufficient time and opportunity the plaintiff did not chose to lead evidence in support of his case and hence on 1.8.2012 the evidence of plaintiff was taken as nil and posted the case for defendant's 8 O.S.No. 25862/2010 evidence on counter claim. The defendant Mr. M. Javeed Iqbal, has filed affidavit by way of examination-in-chief and the same was taken as DW1 and got marked the documents at Ex.D1 to 29 and closed side of the defendant.
6) I have heard the arguments of both the sides.
7) My findings to the above Issues are as follows:
Issue No.1) ........In the negative Issue No.2) ........In the negative Issue No.3) ........In the affirmative Issue No.4) ........In the negative Issue No.5) ........In the affirmative Issue No.6) .......... As per the final orders, for the following:
REASONS
8) Issue Nos. 1, 2 and 4:- Since these issues are inter linked with each other they are taken up together for common discussion in order to avoid repetition of facts.
9) The plaintiff has filed this suit against defendants for the relief of permanent injunction restraining the defendant, his men, agents, etc., from interfering with 9 O.S.No. 25862/2010 the peaceful possession and enjoyment of the suit schedule 'A and 'B' properties contending that he has purchased suit schedule 'A and 'B' properties under registered sale deed dated 20.9.2006 and 12.12.2006 respectively from his vendor and got changed khatha in his name on 18.3.2010.
The plaintiff further contended that the defendant having come to know that the plaintiff has purchased the suit schedule property has filed suit against him in O.S. No. 25318/2008 for the relief of injunction, which was came to be dismissed as withdrawn on 25.5.2010 by filing memo by the defendant and it is further contended that the defendant by taking advantage of the fact that the plaintiff is residing in Pune, started to interfere with the possession of the plaintiff over the suit schedule property and when the plaintiff went to Mysore to attend his personal work on 11.6.2010, the defendant started excavation work in the suit schedule property. Therefore the plaintiff has constrained to file the suit.
10 O.S.No. 25862/2010
10) The plaintiff in order to prove his lawful possession and enjoyment of the suit schedule property as on the date of the suit and alleged interference of the defendant over the suit schedule property and for his entitlement for decree of permanent injunction sought for in the plaint has not at all adduced his evidence nor produced any documents inspite of sufficient opportunities were given. Therefore, in the absence of evidence of the plaintiff and in the absence of production of documents in support of his case, it cannot be said that the plaintiff has proved his lawful possession and enjoyment over the suit schedule property as on the date of the suit and alleged interference of the defendant over the suit schedule property. Therefore, I am of the opinion that the plaintiff has failed to prove his lawful possession and enjoyment over the suit schedule property as on the date of the suit and also failed to prove the alleged interference of the defendant over the suit schedule property. Therefore, the plaintiff is not entitled for decree of permanent injunction. Hence, issues 1, 2 and 4 are answered in the negative.
11 O.S.No. 25862/2010
11) Issue No.3 and 5:- The defendant by filing the written statement has denied all the material averments made in the plaint and contended that he is the co-owner of the premises bearing Nos. 4 and 4A, New Nos. 22 and 21, L.No.5th street, Old Poor House road Cross, Shivajinagar, Bangalore more fully described in written statement schedule property, under two release deeds dated 18.8.2007 from his mother, sisters and paternal uncle. Originally, his father late Mr. M. Abbdul Rasheed and uncle Mr. M. Abdul Salam had jointly acquired the written statement schedule property under deed of sale dated 9.2.1962. His father died on 29.4.1981, hence the defendant has become co-owner of the written statement schedule property. After obtaining release deed from his uncle, mother and sister he is in possession and enjoyment of the written statement schedule property and khatha of the same stands in his name and he is paying taxes and obtained sanctioned plan from B.B.M.P. and further contended that he has become absolute owner of the written statement schedule property alongwith his brother and he is putting up construction. 12 O.S.No. 25862/2010
12) The defendant has contended that the plaintiff is interfering with the possession of the defendant over the written statement schedule property. Therefore, the defendant has claimed counter claim and for decree of permanent injunction against the plaintiff restraining him from interfering with the possession of the defendant over the written statement schedule property.
13) The defendant in order to prove his contention taken in the written statement in respect of counter claim that he is in possession and enjoyment of the written statement schedule property and alleged interference of the plaintiff over the same, got examined himself as DW1 by filing his affidavit evidence and got marked documents at Ex.D1 to D29. DW1 has not been cross examined by the plaintiff inspite of sufficient opportunity given. The defendant after marking documents at Ex.D1 to D 29 got returned the same by producing Certified copy of the same before the court. Now, Certified copy of Ex.D1 to D16 are available.
13 O.S.No. 25862/2010
14) The defendant has relied upon Ex.D1 Certified copy of sale deed dated 8.2.1962, which shows that father of the defendant Mr. M. A. Rasheed and uncle Mr. M. A. Salam, had jointly purchased the property bearing No. 4A, L.No.5th street, Old Poor House road Cross, Civil Station, Shivajinagar, Bangalore i.e., written statement schedule property. The defendant has relied upon Ex.D2 and 3 Certified copy of release deeds executed by uncle of defendants by name M. Abdul Salam and mother and sister of the defendant respectively releasing their rights over the written statement schedule property in favour of the defendant. Therefore, by virtue of Ex.D2 and 3 the defendant has become owner of the written statement schedule property. Ex.D5 and 6 are Khatha certificate and Khatha extract, which shows that the written statement schedule property is standing in the name of the defendant. Ex.D8 to 13 are tax paid receipts for the year 2008-09 to 2014 which shows that the defendant has paid tax to the B.B.M.P. in respect of the written statement schedule property and he was in possession and enjoyment of the 14 O.S.No. 25862/2010 written statement schedule property. Ex.D16 is the Certified copy of the sanctioned plan obtained by the defendant to put up construction on the written statement schedule property. Ex.D17 to 22 are photographs showing the situation of the written statement schedule property. From the documentary evidence produced by the defendant, which clearly goes to show that the defendant was in possession and enjoyment of the written statement schedule property and the defendant has taken contention in the written statement that the plaintiff is interfering with his possession over the written statement schedule property. DW1- defendant in his affidavit evidence also stated about the alleged interference of the plaintiff over the written statement schedule property. Therefore, I am of the considered view that the defendant has proved that he was in lawful possession and enjoyment of the written statement schedule property and he has also proved the alleged interference of the plaintiff over the written statement schedule property. Hence, I am of the considered view that the defendant is entitled to the relief of permanent injunction 15 O.S.No. 25862/2010 against the plaintiff as sought for in the written statement by way of counter claim. Hence, I answer issue No.3 and 5 in the affirmative.
15) ISSUE NO. 6:- In-view of the reasons stated on Issue Nos.1 to 5, above, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
2) The counter claim of the defendant is hereby allowed.
3) The plaintiff is hereby restrained by way of permanent injunction from interfering with the peaceful possession and enjoyment of the written statement schedule property by the defendant, as prayed for by way of counter claim.
4) No order as to costs.
5) Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me in the open court on this the 20th day of December, 2018).
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE 16 O.S.No. 25862/2010 SCHEDULE 'A' All that piece and parcel of property bearing No.26, Old No.4, L.No.5th street, OPH Road Cross, Shivajinagar, Bangalore PID No.79-54-26, measuring 1149 sq. ft. bounded on the East by Raman Mudaliar and Krishna Shetty mani Property West by Abdul Kasim and Md. Sab Property North by Meeransab Mani, Raman Malmani property, South by L.No.5th street SCHEDULE 'B' All that piece and parcel of property bearing No.26, Old No.4, L.No.5th street, OPH Road Cross, Shivajinagar, Bangalore PID No.79-54-26, measuring 1051 sq. ft. bounded on the East by Raman Mudaliar and Krishna Shetty Mani Property West by Abdul Kasim and Md. Sab Property North by Schedule 'A' prperty South by L.No.5th street (B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE 17 O.S.No. 25862/2010 WRITTEN STATEMENT SCHEDULE All that piece and parcel of premises bearing Nos. 4 and 4A, New Nos. 22 and 21, L No.5th street, Bangalore, bounded on East by L No. 5th street.
West by Lane
North by Lane and private property
South by L.No.5th street
ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 NIL LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
NIL LIST OF WITNESSES EXAMINED FOR THE DEFENDANT/S:
DW1 Mr. M. Javeed Iqbal
LIST OF DOCUMENTS MARKED FOR THE
DEFENDANT/S:
Ex.D1 Sale deed
Ex.D2 & 3 Release deeds
Ex.D4 & 5 Khatha certificates
Ex.D6 & 7 Khatha extracts
Ex.D8 to 13 Tax paid receipts
18 O.S.No. 25862/2010
Ex.D14 & 15 Encumbrance Certificates Ex.D16 Approved Plan Ex.D17 to 22 Photographs and C.D. Ex.D23 & 24 Tax invoice Ex.D25 CD Ex.D26 Certified copy of sale deed Ex.D27 Typed copy of sale deed Ex.D26 Ex.D28 Encumbrance Certificates Ex.D29 Certified copy of written statement in O.S. No. 25318/2008 (B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.19 O.S.No. 25862/2010
20.12.2018 Plf: by Sri JC Judgement pronounced in the open court Defendant: by Sri MLD (Vide separate detailed Judgement) Judgment The suit of the plaintiff is hereby dismissed.
2) The counter claim of the defendant is hereby allowed.
3) The plaintiff is hereby restrained by way of permanent injunction from interfering with 20 O.S.No. 25862/2010 the peaceful possession and enjoyment of the written statement schedule property by the defendant, as prayed for by way of counter claim.
4) No order as to costs.
5) Draw decree accordingly.
(B.NARAYANAPPA)
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALOR