Karnataka High Court
Syed Nizamuddin vs The Commissioner Corporation Of City Of ... on 24 April, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL No.536/2005
BETWEEN:
SYED NIZAMUDDIN
S/O.LATE SYED YOUSUFF
AGED ABOUT 54 YEARS
ADVOCATE, NO.25 (I FLOOR)
CENTRAL STREET,
BANGALORE - 560 001 ... APPELLANT
(BY SRI.SREEVATSA S, SR. COUNSEL FOR]
SRI.S.S.BHARATH AND SRI.SYED KHAMRUDDIN, ADVS.)
AND:
THE COMMISSIONER
CORPORATION OF CITY OF BANGALORE
(MAHANAGARA PALIKE)
OFFICE OF THE BANGALORE CITY
CORPORATION, KASTURBA ROAD
BANGALORE - 02 ... RESPONDENT
(BY SRI.B V MURALIDHAR, ADV.)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.22.1.05 PASSED IN O.S.NO.10019/93 ON THE
FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT,
BANGALORE, (CCH-29) DISMISSING THE SUIT FOR DECLARATION
AND PERMANENT INJUNCTION.
2
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Suit O S No.10019/1993 was filed by the appellant on the file of the XXVIII Additional City Civil Judge, at Mayohall Unit, Bangalore for the relief of declaration that the appellant - plaintiff is the sole and absolute owner of southern portion of the suit schedule property and for permanent injunction. The court below by the judgment and decree dated 22.1.2005 was pleased to dismiss the suit. Aggrieved by the same, the present regular first appeal is filed by the appellant - plaintiff.
2. For the sake of convenience, the parties would be referred as per their ranking in the court below.
3. The facts of the case to be stated in brief are that property bearing Corporation New No.19(Old No.78) situated at Mariamman Temple Street (8th Cross) Corporation Division No.74, Vasanthnagar, Bangalore measuring East to West 40 feet and North to South 50 feet was originally owned and possessed by one M B 3 Ganeshmul Sait, he having purchased the same under a Deed of sale dated 6.3.1937. He sold the property in favour of one Smt.Fathima Bee w/o late Mohammed Sulaiman under a sale deed dated 16.7.1945. Smt.Fathimaj Bee gifted the said property to her only son S Abdul Khuddus under a gift deed dated 4.5.1946. Abdul Khuddus had let out the property to various tenants and he died on 22.11.1976. His wife and children succeeded to the property. The wife and daughters of late Abdul Khuddus under a release deed dated 2.5.1980 released their share, right, title and interest in favour of his sons.
4. The appellant stated, by way of inadvertence the measurements in the release deed were given as 30 x40 feet instead of 50 x 40 feet, but the boundaries are correctly mentioned. Appellant purchased the said property from the sons of late Abdul Khuddus under a sale deed dated 24.10.1987. The khata was transferred in the name of the appellant and after eviction of the tenants, the plaintiff came to know the actual measurements of the property which is on the East 38 ft., West 43'10", North 40 feet and South 40 feet. Due to shortage of funds to put up residential 4 house, he sold northern portion of the said property East to West 40 ft., and North to South 22 ft., to one Krishnappa and that he is the sole and absolute owner of southern portion of the suit schedule property. He is the absolute owner of a piece of land measuring (8'6" + 14' )/2 x 40' to the South of schedule property and that he has built a compound wall and room over the same.
5. The defendant has no manner of right, title or interest over the property made attempts to demolish the southern boundary wall and the existing room and on plaintiff's timely intervention, the defendant's officials have left the place. Hence the plaintiff filed the suit seeking for the above reliefs.
6. The defendant filed written statement contending that on the spot inspection by their officials, they found the entire site measuring 44' towards western side, 39' towards eastern side, 40' towards northern side and 40' towards southern side with a building constructed towards northern side measuring 22 x 40 feet and ACC sheet roofed building measuring 15 x 10 feet towards the corner of south-east direction. Existing measurement vacant site does not belong to the plaintiff since the plaintiff has not produced any 5 previous records and it is in respect of the immovable property for verification and correct measurement of the total site area. Hence the defendant claims that the suit property belongs to the Corporation since the plaintiff has not produced any material to show right, title or interest etc.,
7. On the basis of the pleadings, the court below framed the following issues:
1) Whether the plaintiff proves that he is the absolute owner of the piece of land measuring 8'6" + 14" x 40' to the south of suit property?
2) Whether the plaintiff proves that he has lawfully built compound wall and room on the southern side of the suit property?
3) Whether the plaintiff proves that he is in lawful possession of the said piece of land to southern side of suit property?
4) Whether the plaintiff proves that the defendant officials are illegally interfering in his lawful possession over said piece of land to the southern portion of suit property?6
5) Whether the plaintiff is entitled for the declaration as sought?
6) Whether the plaintiff is entitled for permanent injunction as sought?
7) What decree or order?
8. In order to prove case of the plaintiff, the plaintiff himself was examined as PW-1 and got marked documents Ex.P1 to P13 of which Ex.P1 is certified copy of title deed, Ex.P2 is release deed, Ex.P3 sale deed,Ex.P4 orders in HRC petitions, Ex.P5 notice, Ex.P6 reply, Ex.P7 another notice, Ex.P8 reply, Ex.P9 notice, Ex.P10 reply, Ex.P11 copy of representation, Ex.P12 postal acknowledgement and Ex.P13 postal acknowledgement. On behalf of the defendant Corporation, surveyor has been examined as DW-1 and got marked documents Ex.D1 to D3, namely application given for khata, Ex.D2 application for khata and Ex.D3 authorization letter.
9. I have heard the learned senior counsel for the appellant and the learned counsel for the corporation. 7
10. The learned senior counsel relied upon several documents including the certified copy of the sale deed dated 6.8.1937 in the name of the original owner M B Ganeshmul Sait. The sale deed by which, he has sold the property in favour of Fathima Bee by the sale deed dated 16.7.1945. Smt.Fathima Bee gifted the said property to her only son Abdul Khuddus under gift deed dated 4.5.1946 and in turn Sri Abdul Khuddus has let out the property to various tenants. The property which was owned by Ganeshmul Sait measured 40' x 50' it was sold to Fathima Bee and thereafter it was gifted to Abdul Khuddus. There was no occasion to reduce the extent of the property. However, the boundaries of the property are correctly stated all throughout and in case there is mistake in the measurement, the boundaries would prevail and therefore, it is not open for the defendant to say that the plaintiff is not the owner of the property.
11. The learned counsel for the Corporation submits to dismiss the appeal. The case of the respective parties has been properly considered by the learned trial Judge and dismissed the suit. The plaintiff has failed to produce proper materials and cogent 8 evidence. What was released in favour of the plaintiff by the son and daughter of Abdul Khuddus, it is the property measuring 30' x 40' and this is contrary to the sale deed executed in favour of Fathima Bee on 6.8.1937. It is presumed, the plaintiff has got imperfect extent of land and no authentic documents have been produced. Relying upon Ex.P2 the release deed executed by wife and daughters of Abdul Khuddus and sale deed executed in favour of the plaintiff, schedule is correctly mentioned. The court below has correctly examined Ex.P2 & P3 and assigned correct reasons and dismissed the suit. There are no grounds to interfere. The learned counsel relying upon Ex.D1 and D2 the extent of land shown is 30' x 40' and not 50' x 40'. The learned counsel also relied upon say of PW-1 in his deposition that "if for any reason, the court comes to the conclusion that the suit property belongs to Corporation, even I am prepared to pay the compensation or value of the land fixed by the Corporation". If at all the appellant was the owner, this statement could not have been made by PW-1. The plaintiff ought to have examined the original owner or any other witness including the attesting witness to bring on record the actual 9 measurement. It is submitted, the plaintiff has not proved his case properly and thus prays for dismissal of the appeal.
12. The points that arise for consideration in this appeal are:
(1) Whether the court below has committed an error in dismissing the suit?
(2) Whether the court below has rightly considered the evidence of PW-1 and the view taken by the court below is justified?
My answer would be in favour of the plaintiff for the following reasons.
13. The plaintiff has purchased the property by virtue of the registered sale deed dated 24.10.1987. Earlier the property was originally belonging to M B Ganeshmul Sait, he having purchased the same under a deed of sale dated 6.8.1937. He sold the same in favour of Smt.Fathima Bee vide sale deed dated 16.7.1945. Thereafter Smt.Fathima Bee gifted the said property to her son S Abdul Khuddus under a gift deed dated 4.5.1946. On the death of Abdul Khuddus on 22.11.1976, his wife and children succeeded to the property. The wife and daughters of Abdul Khuddus released 10 their right under the release deed dated 2.5.1980. In the said release deed, by inadvertence the measurement is mentioned as 30' x 40' instead of 50' x 40'. It is the case of the plaintiff that though the measurement is wrongly mentioned, the boundaries are correctly mentioned. The boundaries would prevail and the defendant cannot take advantage of the mistake crept in the release deed and deny ownership of the plaintiff to the full extent of the property.
14. It is not the dispute between the plaintiff and the defendant relating to ownership of the property. When an application is made for transfer of khata, it is for the corporation either to reject or accept on the basis of the documents made available. However, the Corporation finding error in the application and for want of documents, Corporation has not transferred the khata but the Corporation without any basis has laid claim of ownership in respect of the property. It is available under Section 65 of the Karnataka Land Revenue Act that if the property does not belong to any person, it is the property of the government. But it is not available for the Corporation. The Corporation thought as if 11 they are the owners. If the property is to be claimed that it belongs to it, the Corporation has to make available some documents. But the documents made available by the Corporation do not help to claim ownership. On the other hand, evidence of DW-1 who is the surveyor, deposed that right from filing written statement by the Corporation till leading evidence, nowhere they made claim for ownership. The suit schedule property is a corner property. On the Southern side there is 6th Main and towards West there is 8th Cross road. The Corporation could claim only ownership of 8th Cross and 6th Main which are public roads and the said roads do not include the property of the plaintiff. In the cross-examination of DW-1 he has deposed that extent of the suit schedule property is more than what has been given in the sale deed. He has further deposed that apart from road, there is no Corporation property. When evidence of DW-1 makes it clear that the Corporation does not own any property, the corporation has no property except the roads including the corner property which belongs to the plaintiff. It is there in the evidence of DW-1that "it is false to say that the plaintiff has not encroached any portion and that he is in possession of the property that he had purchased". This piece of evidence is of no 12 help to the corporation. The second part of his say that "he is in possession of the property that he had purchased' is helpful to the plaintiff.
15. The corporation in order to claim the property has not taken any steps based on provisions of any law. The corporation has not issued any notice to the plaintiff to show that the plaintiff has encroached any portion of the property or that plaintiff is squatting on the property without any right. The boundaries mentioned right from the sale deed of vendor of Fathima Bee till the gift deed executed in favour of Abdul Khuddus, the measurement of the property is correctly mentioned. Only in the release deed executed in favour of sons of Abdul Khuddus, error has crept in, leading to litigation between the plaintiff and the defendant. However, it is to be mentioned here that the boundaries are correctly mentioned all throughout. It is the settled law that boundaries would prevail over the measurement. When such being the case, holding that the plaintiff has failed to prove ownership does not arise. It is not the fight between the two parties about the ownership. Based on the original sale deed, sale deed in favour of 13 Fathima Bee and the gift deed executed by Fathima Bee and the oral evidence of PW-1 & DW-1 conclusively prove the case pleaded by the plaintiff. The court below has not properly assessed the materials on record and has failed to reach to correct conclusions. The court below has committed error in passing the impugned judgment. The points raised for consideration are accordingly answered.
In the result, this appeal is allowed. The impugned judgment and decree are hereby set aside. The suit of the plaintiff is decreed as prayed for.
Sd/-
JUDGE akd