Bangalore District Court
Abdul Sattar vs Manjunath M on 13 November, 2024
KABC010271962014
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCH.11)
DATED THIS THE 13TH DAY OF NOVEMBER 2024
PRESENT: Sri. S. NATARAJ, B.A.L., LL.B.,
(Name of the Presiding Judge)
OS NOS. 9950/2014 C/W 3806/2015
PLAINTIFF Sri M. Manjunath,
(IN OS No. S/o P. Mallaiah
9950/2014) Aged about 41 years
No.244/20, 4th Main Road,
Ganganagar Layout,
Bangalore - 560 032.
[By Sri A. Sampath., Advocate]
(IN OS No. Sri Abdul Sattar
3806/2015) Aged about 73 years
(Senior Citizen)
S/o Late Abdul Rahaman,
Residing at No.39,
New No.25, Old13th Cross,
New 9th Cross,
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OS Nos.9950/2014 C/w 3806/2015
RBI Colony, Ganganagar,
Bangalore - 560032.
Since deceased by his L.Rs:
1) Smt. Mumtaz Begum
W/o Late Abdul Sattar
Aged about 65 years
Residing at No.25, 13th Cross,
Vasanthappa Block,
Ganganagar,
Bangalore -560032.
2) Sri Fiaz Pasha
S/o Late Abdul Sattar,
Aged about 50 years,
No.45, 1st 'A' Cross,
5th Main, Rahamath Nagar,
R.T. Nagar Post,
Bangalore - 560032.
3) Sri Riyaz Pasha S
S/o Late Abdul Sattar,
Aged about 48 years,
No.45, 1st 'A' Cross,
5th Main, Rahamath Nagar,
R.T. Nagar Post,
Bangalore - 560032.
4) Smt. Jabeen Begum,
D/o Late Abdul Sattar,
Aged ab out 44 years,
No.30, 6th Main, Pillappa Block,
Ganganagar, Bangalore-560032.
5) Sri Ajaz Pasha,
S/o Late Abdul Sattar,
Aged about 42 years,
No.45, 1st 'A' Cross,
5th Main, Rahamath Nagar,
R.T. Nagar Post,
Bangalore - 560032.
6) Mrs. Gulnaz Begum,
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OS Nos.9950/2014 C/w 3806/2015
W/o Sadiq Pasha
Aged about 39 years
R/a No.1, Ground Floor,
10th Cross, 5th Main,
Krishnappa Block,
Ganganagar, Bangalore-560032.
7) Sri Aslam Pasha
S/o Late Abdul Sattar
Aged about 33 years
Residing at No.25, 13th Cross,
Vasanthappa Block,
Ganganagar,
Bangalore -560032.
[By Sri V.B. Shivakumar, Advocate]
/Vs/
DEFENDANTS 1) Mr. Abdul Hafiz,
(IN OS No. S/o Late Abdul Gaffar,
9950/2014) Aged about 63 years
R/o No.238, III Cross,
Rahamath Nagar,
Bangalore -560032.
2) Janab Bakshu Ahmed,
S/o Late Haji Abdul Khaleel,
Aged about 54 years
R/o No.36, Hemanna Layout,
Nadakaali Temple Street,
Thanisandra Post,
Dr. S.K. Nagar,
Bangalore -560077.
3) Mrs. Dilshad Begum
W/o Haji Basheer Ahmed,
Aged about 43 years
R/o No.36, Hemanna Layout,
Nadakaali Temple Street,
Thanisandra Post,
Dr. S.K. Nagar,
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OS Nos.9950/2014 C/w 3806/2015
Bangalore -560077.
4) Mrs. Mehatab Parveen
W/o Janab Bakshu Ahmed,
Aged about 42 years
R/o No.36, Hemanna Layout,
Nadakaali Temple Street,
Thanisandra Post,
Dr. S.K. Nagar,
Bangalore -560077.
5) Sri M. Venugopal,
S/o P. Mallaiah,
Aged about 54 years,
No.244/20, 4th Main Road,
Ganganagar Layout,
Bangalore -560032.
6) Mr. Abdul Sattar
S/o Late Abdul Rahaman,
(Died on 23/05/2019)
Legal Representative of
Abdul Sattar - defendant No.6:
6(a) Smt. Mumtaz Begum
W/o Late Abdul Sattar
Aged about 65 years
Residing at No.25, 13th Cross,
Vasanthappa Block,
Ganganagar,
Bangalore -560032.
6(b) Sri Fiaz Pasha
S/o Late Abdul Sattar,
Aged about 50 years,
No.45, 1st 'A' Cross,
5th Main, Rahamath Nagar,
R.T. Nagar Post,
Bangalore - 560032.
6(c) Sri Riyaz Pasha S
S/o Late Abdul Sattar,
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OS Nos.9950/2014 C/w 3806/2015
Aged about 48 years,
No.45, 1st 'A' Cross,
5th Main, Rahamath Nagar,
R.T. Nagar Post,
Bangalore - 560032.
6(d) Smt. Jabeen Begum,
D/o Late Abdul Sattar,
Aged ab out 44 years,
No.30, 6th Main, Pillappa Block,
Ganganagar, Bangalore-560032.
6(e) Sri Ajaz Pasha,
S/o Late Abdul Sattar,
Aged about 42 years,
No.45, 1st 'A' Cross,
5th Main, Rahamath Nagar,
R.T. Nagar Post,
Bangalore - 560032.
6(f) Mrs. Gulnaz Begum,
W/o Sadiq Pasha
Aged about 39 years
R/a No.1, Ground Floor,
10th Cross, 5th Main,
Krishnappa Block,
Ganganagar, Bangalore-560032.
6(g) Sri Aslam Pasha
S/o Late Abdul Sattar
Aged about 33 years
Residing at No.25, 13th Cross,
Vasanthappa Block,
Ganganagar,
Bangalore -560032.
[For D-1,6(a) to (g) by Sri V.B.
Shivakumar, Advocate]
[For D-5 by Sri Ganapathi
Prasanna, Advocate]
[D-2 to D-4 : Exparte]
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OS Nos.9950/2014 C/w 3806/2015
(IN OS No. 1) Sri M. Manjunath,
33806/2015) Aged about 41 years,
S/o P. Mallaiah.
2) Sri M. Venugopal
Aged about 54 years
S/o P. Mallaiah
No.1 & 2 are residing at
No.244/20, 4th Main Road,
Ganganagar Layout,
Ganganagar,
Bangalore -560032.
3) Mrs. Dilshad Begum
Aged about 39 years,
W/o Late Haji Basheer Ahmed
4) Mrs. Mehatab Parveen
Aged about 38 years,
W/o Janab Bakshu Ahmed,
5) Janab Bakshu Ahmed,
Aged about 50 years
S/o Late Haji Abdul Khaleel,
No.3 to 5 are Residing at No.36,
Hemanna Layout,
Nada Kaliamma Temple Street,
Thanisandra Post,
Dr. S.K. Nagar, Thannisandra,
Bangalore -560077.
6) The Assistant Revenue Officer,
Hebbal Sub-Division,
Queens Road,
Bruhat Bangalore Mahanagara
Palike, Bengaluru - 560001.
7) The Commissioner of BBMP
Hudson Circle, Bangalore.
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OS Nos.9950/2014 C/w 3806/2015
[ For D-1 by Sri A. Sampath, Advocate]
[D-2 to D-5 : Exparte]
[ For D-6 & D-7 by Sri Prakasha, Advocate]
Date of Institution of the suit
(1) OS No.9950/2014 : 17-12-2014
(2) OS No.3806/2015 : 24-04-2015
Nature of the Suits :
(1) OS No.9950/2014 : Declaration & Possession
(2) OS No.3806/2015 : Declaration & Possession
Date of commencement of
recording of evidence : 21-09-2016
Date on which the Judgment was
pronounced : 13-11-2024
Year/s Month/s Day/s
Total Duration :
(1) OS No.9950/2014 : 09 10 26
(2) OS No.3806/2015 : 09 06 19
(S. NATARAJ)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
8
OS Nos.9950/2014 C/w 3806/2015
COMMON JUDGMENT
The plaintiff in OS No.9950/2014 filed suit for
declaration to declare that he is the absolute owner
of suit schedule property and for possession and to
declare the registered sale deed dated 11-01-2018
registered in the office of Sub-Registrar,
Gandhinagar, Bangalore executed by defendant No.1
in favour of defendant No.6 as null and void and
direction to Sub-Registrar, Gandhinagar to cancel
the same.
2. The plaintiff in OS No.3806/2015 filed suit for
declaration to declare that he is the absolute owner
of suit schedule property and for permanent
injunction.
3. Both suits are in respect of northern portion of
residential immovable property bearing No.25,
situated at 13th Cross, Ganganagar North, Bangalore,
Ward No.98, PID No.98-43-25 Old
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OS Nos.9950/2014 C/w 3806/2015
No.39/NE/MTR/1636/73-74, measuring East-West
40 feet and North-South 36+32.2/2) feet with
building consisting of 3 sq.ft., old and dilapidated
structure of RCC roofing.
4. Both suits were clubbed as per the order dated
11-10-2018 in OS No.9950/2014 and common
evidence is recorded in O.S No.9950/2014.
5. The brief facts of the case of the plaintiff in
OS No.9950/2014 as follows :
5(a). The defendant No.1 - Abdul Hafiz was the
owner of site No.12 carved in Sy.No.38, measuring
East-West 40 feet and North-South 65+72/2 feet
with constructed house situated at Vasanthappa
Block, 46th Division, BBMP No.
39/NE/MTR/1636/73-74 purchased under the sale
deed dated 10-03-1980. The defendant No.1
subsequent to acquiring the above said property had
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OS Nos.9950/2014 C/w 3806/2015
gifted the said property in favour of Abdul Khaleel by
way of Hiba (oral gift) on 25-10-1991 and confirmed
by declaration dated 29-11-1991. Based on the said
gift, Abdul Khaleel obtained katha transferred in his
name. He was in possession and enjoyment of the
said property and paying tax to the Corporation.
5(b). The said Abdul Khaleel gifted the property to
his two sons : Basheer Ahmed - husband of
defendant No.3 herein and defendant No.2 through
oral Hiba on 10-01-1992 and confirmed by
declaratory affidavit sworn before Notary Public dated
18-03-1994. The said gift were acted upon, as per
the gift, the husband of defendant No.3 and 2 nd
defendant transferred katha in their joint names and
paying tax to the Corporation. Thereafter, husband
of defendant No.3 and defendant No.2 have executed
two separated Gift deeds on 02-11-2007 gifted their
respective half shares in the above said properties in
favour of their respective wives. Based on registered
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OS Nos.9950/2014 C/w 3806/2015
separate Gift Deeds Mrs. Dilshad Begum W/o
Basheer Ahmed ( defendant No.3) and Mrs. Mehatab
Parveen W/o Bakash Ahmed (defendant No.4)
transferred the katha in their joint names.
5(c). The defendants No.3 and 4 subsequently have
jointly sold their respective half portions i.e.,
southern portion in favour of M. Venugopal -
defendant No.5 (brother of plaintiff) as per the
registered sale deed dated 04-02-2008 and northern
portion i.e., the suit schedule property in favour of
plaintiff through sale deed dated 04-02-2008.
Pursuant to the purchase of above said property by
the plaintiff and his brother, they made applications
to the authorities for bifurcation and accordingly
bifurcated the katha of the entire property in the
name of the plaintiff and his brother separately. The
defendant No.6 on 21-11-2011 filed objections for
bifurcation of kathas and he had also filed criminal
case against the predecessors in interest of the
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OS Nos.9950/2014 C/w 3806/2015
vendor of the plaintiff and acquitted the vendors of
the plaintiff in the criminal case.
5(d). The plaintiff is the owner of the suit schedule
property. The southern portion is belongs to the
brother of plaintiff i.e., defendant No.5. The plaintiff
came to know the sale deed dated 11-01-2008. The
defendant No.6 is claiming to be a owner. The
defendant No.6 does not have katha and revenue
documents in his name. The said sale deed obtained
by the defendant No.6 by fraud and in collusion with
defendant No.1. The defendant No.1 did not have
any right, title or interest over the property to execute
the sale deed. The defendant No.6 and his family
members are all aware of the suit property not
belongs to defendant No.1. The defendant No.6 on
the basis of the sale deed does not have any right
over it and he is squatting on the suit schedule
property. As such, the plaintiff filed the suit for
declaration and possession.
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OS Nos.9950/2014 C/w 3806/2015
6. After issuance of summons, the defendants No.1,
5 and 6 appeared through counsels. The defendants
No.2 to 4 placed exparte. The defendant No.1 filed
written statement denying the plaint averments. He
contended that the defendants No.2 to 4 have
fraudulently obtained Gift Deed by way of Hiba from
Abdul Khaleel. He denied the Gift Deed allegedly
executed by him in favour of Abdul Khaleel and also
subsequent Gift Deed in favour of two sons of Abdul
Khaleel and also disputed the Gift Deed executed by
sons of Abdul Khaleel in favour of defendants No.3
and 4. The plaintiff's suit is mischievous. He has
been in possession of property from 1986 and he is
the owner in possession and executed sale deed on
11-01-2008 in favour of defendant No.6 and he
received entire sale consideration from defendant
No.6 and handed over the possession to defendant
No.6 and prayed for dismissal.
7. The defendant No.6 in his written statement has
contended that the suit is barred under Order II rule
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OS Nos.9950/2014 C/w 3806/2015
2 CPC. He contended that the 1 st defendant as a
owner sold the suit schedule property to defendant
No.6 on 01-05-1987 as there was prohibition of
registration of properties for convenience sake he had
executed GPA, agreement of sale and affidavit
confirming sale in his favour. The 6 th defendant by
virtue of said documents is in possession and
enjoyment of the same as owner, paid entire sale
consideration amount to the defendant No.1. He
could not get sale deed registered in his name. He
had constructed a portion of house in the existing
structure, residing with his family members without
any interruption and disturbance. The defendant
No.1 thereafter executed sale deed on 11-01-2008 in
his favour and as far as his knowledge is concerned,
the defendant No.1 has not executed any documents
in favour of Abdul Khaleel.
7(a). The civic amenities and installations are
standing in the name of defendant No.6. After
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OS Nos.9950/2014 C/w 3806/2015
transfer of katha in favour of plaintiff Manjunath and
Venugopal, the 6th defendant has approached the
Revenue authorities for cancellation of katha and
they did not consider and approached the Joint
Commissioner by way of Appeal No.25/2008, which
came to be rejected. Manjunath and his brother have
obtained electricity installation transferred in their
names without the consent of the defendant No.6.
The defendant No.6 and his family members are
residing in the suit schedule property from 1987.
The second son of 6th defendant Riyaz Pasha has
obtained passport in his name by showing the suit
schedule property. The voters list address is also in
respect of suit property. Gift deeds are also created.
The 6th defendant had filed a suit against the plaintiff
and defendant No.5 in OS No.3806/2015 and prayed
for dismissal of suit.
8. The defendant No.5 has not filed written
statement. During pendency of the suit the
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OS Nos.9950/2014 C/w 3806/2015
defendant No.6 was died, his legal heirs defendants
No.6(a) to (g) are brought on record. They filed
additional written statement in consonance with
original written statement filed by the deceased
defendant No.6.
9. The brief facts of the case of the plaintiff in OS
No.3806/2015 as follows :
9(a). The plaintiff is the absolute owner of the suit
schedule property. He has acquired the same from
Abdul Hafeez including the southern portion of
property. Abdul Hafeez had acquired the entire
property through sale deed dated 10-03-1980. Abdul
Hafeez subsequently alienated the suit schedule
property to the plaintiff on 01-05-1987 as there was
prohibition of registration of properties for
convenience he had executed GPA, agreement of sale
and affidavit confirming the sale. The plaintiff is in
possession and enjoyment and he had paid entire
17
OS Nos.9950/2014 C/w 3806/2015
consideration. Abdul Hafeez original vendor had
executed sale deed on 11-01-2008. The defendant
No.1 Manjunath claims to be have acquired the suit
property from defendant No.3 through sale deed. The
sale deed of plaintiff is earlier sale deed to that of
Manjunath and his brother.
9(b). The alleged Gift Deed of Abdul Khaleel and two
Gift Deeds executed by him in favour of his two sons
and who in turn allegedly gifted in favour of their
wives are all fabricated. The sale deeds executed by
the defendants No.3 and 4 are created. The
defendant No.5 and husband of defendant No.3 had
no right to gift away the property in favour of their
wives i.e., the defendants No.3 and 4. The
defendants No.1 and 2 after transfer of katha in their
names the plaintiff approached the revenue
authorities for cancellation of katha, which was
rejected and filed appeal before the Joint
Commissioner which came to be rejected. The
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OS Nos.9950/2014 C/w 3806/2015
plaintiff is the owner put up construction. The
passport, voters list are all in respect of suit schedule
property. The defendants No.1 and 2 have no right,
title, interest over the property and prayed to decree
the suit.
10. The defendants No.2 to 5 placed exparte. The
defendants No.1, 6 and 7 appeared through their
respective counsels. The defendant No.1 filed his
written statement as per the plaint pleadings in OS
No.9950/2014 contending that he is the absolute
owner of suit schedule property acquired under the
registered sale deed. The katha has been transferred
in his name. He is paying tax to the schedule
property. The plaintiff application for objecting the
transfer of katha was rejected. The plaintiff has
obtained fraudulent sale deed dated 11-01-2008.
The vendor of plaintiff has no right, title and interest
to execute the sale deed and it is illegal and he
prayed for dismissal.
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OS Nos.9950/2014 C/w 3806/2015
11. The defendants No.6 and 7 filed their joint
written statement. That Abdul Hafeez was the owner
of the suit schedule property through sale deed dated
10-03-1980 and he has made Hiba in favour of Abdul
Khaleel S/o Mohd. Peer. The revenue records were
transferred in the name of Abdul Khaleel and he had
executed Hiba on 10-01-1992 and confirmed the oral
gift on 18-03-1994. The kathas were transferred in
the joint names of Khaleel sons. Subsequently,
Basheer Ahmed and Bakshu Ahmed by separate Gift
Deeds executed in favour of their wives Mehatab
Parveen and Dilshad Begum. They became the
owners of respective half portions. Mehatab Parveen
and Dilshad Begum applied for transfer of katha and
entered their names jointly. Mehatab Parveen and
Dilshad Begum jointly sold half portion of site No.12
to Manjunath and another portion jointly in favour of
M. Venugopal - defendant No.2. The defendants
No.1 and 2 obtained katha in their names. The
20
OS Nos.9950/2014 C/w 3806/2015
property was fabricated. The objections filed by the
plaintiffs was rejected and prayed for dismissal.
12. On the basis of the above said pleadings, this
Court has framed 3 issues and 1 additional issue are
as follows :
ISSUES IN OS NO.9950/2014
1) Whether plaintiff proves that the sale deed
dated 11-01-2008 executed by the first
defendant in favour of sixth defendant is
concocted obtained by fraud and in
collusion with Registration Authorities as
claimed in para-13 of the plaint ?
2) Whether plaintiff is entitled for declaration as
prayed for ?
3) What order/decree ?
ADDITIONAL ISSUE IN OS NO.9950/2014
1) Whether the plaintiff proves that he is the
absolute owner of the suit schedule property
as claimed in para 8 of the plaint ?
ISSUES IN OS NO.3806/2015
1) Whether the plaintiff proves that he is the
absolute owner of suit schedule property
acquired under registered sale deed dated
11-01-2008 executed by Abdul Hafeez ?
2) Whether the defendant No.1 prove that he is
the absolute owner of suit schedule property
acquired under the registered sale deed
21
OS Nos.9950/2014 C/w 3806/2015
dated 04-02-2008 executed by defendants
No.3 and 4 ?
3) Whether the defendant No.1 prove that Abdul
Hafeez has executed oral Hiba on 25-11-
1991 and confirmed by declaration dated
29-11-1991 followed by delivered of
possession in favour of Abdul Khaleel ?
4) Whether the plaintiff is entitled for declaration
and injunction ?
5) What decree or order ?
13. The common evidence is recorded in OS
No.9950/2014. The plaintiff in OS No.9950/2014 in
respect of both suits examined him as PW.1. Exs.P-1
to P-37 documents are marked. The defendant No.6
in OS No.9950/2014 and plaintiff in other suit
examined as DW.2, whereas the 1st defendant in this
suit examined as DW.1. Exs.D-1 to D-71 documents
are marked.
14. Heard arguments of both counsels in both
suits. Perused the records.
15. My findings on the Issues in both suits are as
follows:
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OS Nos.9950/2014 C/w 3806/2015
In OS No.9950/2014
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Addl.Issue No.1 : In the Affirmative
Issue No.3 : As per the final order,
for the following:
In OS No.3806/2015
Issue No.1 : In the Negative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Negative
Issue No.5 : As per the final order,
for the following:
REASONS
16. ISSUES NO.1 & ADDL. ISSUE NO.1 IN OS
NO.9950/2014 AND ISSUES NO.1 TO 3 IN OS
NO.3806/2015: All the issues are inter-connected,
to avoid repetition of facts and evidence taken
together for common discussion.
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OS Nos.9950/2014 C/w 3806/2015
17. The learned counsel for the plaintiff in OS
No.9950/2014 and defendant No.1 in another case
submitted that the suit schedule property in both
suits are one and the same, which is northern side
out of larger extent belongs to defendant No.1 -
Abdul Hafeez, who had acquired the same through
registered sale deed dated 10-03-1980. On 25-11-
1991 the defendant No.1 Abdul Hafeez has gifted the
entire property purchased under 1980 sale deed in
favour of Abdul Khaleel by way of oral Hiba and the
same was followed by confirmation of declaration on
29-11-1991. The counsel submits that gift was acted
upon. Based on which Abdul Khaleel got katha
transferred in his name and was in possession and
enjoyment of the property and paying tax to the
Corporation.
17(a). The said Abdul Khaleel had gifted above said
property to his two sons Basheet Ahmed and Bakshu
Ahmed by oral Hiba dated 10-01-1992 and same has
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OS Nos.9950/2014 C/w 3806/2015
been confirmed through declaratory affidavit dated
18-03-1994, which was notarized before the Notary
Public.
17(b). The said gift was acted upon. The sons of
Abdul Khaleel have got transferred katha in their
joint name and they were paying tax to the
Corporation. Thus, the gift has been accepted by
taking possession of the donees. In pursuant to
acquiring title by two sons of Abdul Khaleel, Basheer
Ahmed and Bakshu Ahmed had executed separate
Gift Deed on 02-11-2007 gifting their respective half
shares in favour of their wives. Based on said Gift
Deed Dilshad Begum W/o Basheer Ahmed and
Mehatab Parveen W/o Bakshu Ahmed got transferred
katha in their joint names and they were in
possession and enjoyment of the said properties as
owners.
17(c). The above said two joint owners have executed
two registered sale deeds, the northern portion i.e.,
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OS Nos.9950/2014 C/w 3806/2015
suit property in favour of plaintiff - Manjunath
through sale deed dated 04-02-2008, whereas
southern portion in favour of Manjunath's brother -
Sri Venugopal - defendant No.5 in OS
No.9950/2014. Based on said registered sale deeds
the plaintiff filed an application before the Revenue
authorities of BBMP for bifurcation of katha. The 6 th
defendant in this suit and plaintiff in connected suit
has filed objections. His objection was rejected and
katha was bifurcated, separate kathas were made in
favour of Manjunath and his brother. They are
paying tax to the authorities. The appeal filed by
Abdul Sattar the plaintiff in other case was also
dismissed. The said Abdul Sattar claim to be owner
of suit schedule property, based on sale deed dated
11-01-2008 which was obtained by fraud and
collusion. The 1st defendant Abdul Hafeez has parted
with the suit schedule property by executing oral
Hiba followed by deed of confirmation. As such, as on
the date of alleged sale deed he had no right to
26
OS Nos.9950/2014 C/w 3806/2015
execute, which is invalid document not binding on
the plaintiff.
17(d). The 6th defendant Abdul Sattar based on
illegal sale deed trying to claim right over the suit
schedule property as a owner and not allowing the
plaintiff to enjoy the property as a owner. The
counsel further submitted, DW.1 - the donor in his
cross-examination has identified his signature in
Ex.P-2 - original declaration of Hiba. In view of
categorical admission the execution of Ex.P-2 -
Declaration of Hiba has been proved. In the course
of arguments the counsel for the defendant No.6 has
contended that by showing some other document
Ex.P-2 signature was marked in the cross-
examination, but there is no objection at the time of
cross-examination when the counsel was present
and it cannot be acceptable.
17(e). The counsel submits that DWs.1 and 2 in
their oral evidence have contended that DW.1 earlier
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OS Nos.9950/2014 C/w 3806/2015
has sold the property in favour of Abdul Hafeez by
executing sale agreement, GPA and affidavit in the
year 1987, due to prohibition of registration, sale
deed was not executed and in the year 2008 Abdul
Sattar has requested to execute sale deed in favour of
defendant No.6 as he has sold to him. Accordingly,
he has executed the sale deed in the year 2008
cannot be acceptable. The counsel submits,
defendant No.6 in his written statement has not
pleaded anything about alienation of suit schedule
property by defendant No.1 in favour of Mohd.
Azeem. There is no acceptable evidence on record to
probabilise that DW.1 has alienated the property in
the year 1987 in favour of Mohd. Azeem, based on
which the sale deed was executed in favour of Abdul
Sattar.
17(f). The counsel submits that documents relied by
the defendants to show that they are in possession of
the suit schedule property, which are not belongs to
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OS Nos.9950/2014 C/w 3806/2015
suit schedule address, those documents are created
subsequent to filing of the suit. The tax paid receipts
were paid on 17-12-2014 at Exs.D-41 to D-47 on
same day. The 6th defendant and his L.Rs have no
right to stay in the suit schedule property, they are
liable to hand over the suit schedule property to the
plaintiff. The defence of the DWs.1 and 2 is not
probable and acceptable. The plaintiff proved that he
is owner of suit schedule property and produced
documents and prayed to decree the suit and dismiss
the suit of the defendant No.6.
18. The learned counsel for Abdul Sattar - defendant
No.6 in OS No.9950/2014 and plaintiff in other case
submitted that the suit of Manjunath is barred by
limitation though there is no issue regarding
limitation under Sec.3 of the Limitation Act and the
Court can be decided the point of limitation as a
question of law.
29
OS Nos.9950/2014 C/w 3806/2015
18(a). The alleged Gift Deeds relied by Manjunath
said to have been executed by Abdul Hafeez in favour
of Abdul Khaleem, who in turn in favour of his two
sons and they in turn executed Gift Deeds in favour
of their wives are all disputed by Abdul Hafeez as well
as Abdul Sattar in their written statement. The
plaintiff - Manjunath not proved the very execution of
alleged oral and followed by declaration of Hiba. The
alleged admission of DW.1 admitting his signature in
Ex.P-2 is a stray admission. On reading the entire
evidence he has not admitted the execution of Hiba
and signature in Ex.P-2. During the course of cross-
examination by showing some other documents Ex.P-
2(a) signature was got it marked and it cannot be
relied upon.
18(b). The counsel submits that said Hiba has not
been validly executed, it has not been accepted. The
vital ingredients of possession has not been delivered
to Abdul Khaleem. From 01-05-1987 Abdul Hafeez
30
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has put Abdul Sattar in to possession by way of sale
agreement, sale deed and GPA by taking entire sale
consideration amount. The sale deed was executed
on 11-01-2008, it is prior to sale deed of plaintiff
Manjunath. The 6th defendant is the owner in
possession of suit schedule property. The plaintiff
Manjunath and his vendors have created the alleged
Gift Deeds, which are not been proved. The alleged
oral Hiba are not registered, without registration no
title is passed on donee.
18(c). The counsel further submitted as on the date
of execution of Ex.P-2, DW.1 was not at all in India.
If he was not the owner he could not have executed
sale deed dated 11-01-2008 in favour of Abdul
Sattar. Ex.P-2 Notary is not mentioned. Exs.P-18
and P-19 were executed on different places. The
alleged gifts are not admissible in evidence. Abdul
Sattar and his family members continuously in
possession and enjoyment of the suit schedule
31
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property from 1987. They are paying tax,
constructed house, the katha could not be obtained
as there was illegal documents created by
Manjunath. The suit is barred by limitation. The
plaintiff failed to prove his title to the suit schedule
property and his vendors and prayed to dismiss the
suit of Manjunath in OS No.9950/2014 and decree
the connected suit OS No.3806/2015 filed by Abdul
Sattar.
19. After considering the submissions of both sides,
it is not in dispute that originally suit schedule
property with larger extent bearing No.12 formed in
Sy.No.38 of Gangenahalli village, Vasanthappa Block,
46th Division, City Corporation No.
39/NE/MTR/1636/73-74 measuring East-West 40
feet and North-South 65+72/2 feet belongs to Abdul
Hafeeq - defendant No.1 in OS No.9950/2014
acquired under sale deed dated 10-03-1980 at
Ex.P-1. However, the dispute between the plaintiff
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Manjunath and Abdul Sattar is that Manjunath
contended that defendant No.1 Abdul Hafeez has
gifted the above said property in favour of one Abdul
Khaleel by way of Hiba - oral gift on 25-09-1991 and
the same was confirmed by declaration dated 29-11-
1991 produced at Ex.P-2. Subsequently, katha has
been transferred in the name of Abdul Khaleel and he
gifted the above said property to his two sons
Basheer Ahmed and Bakshu Ahmed through oral
Hiba on 10-01-1992 and the same was confirmed by
him through declaratory affidavit dated 18-03-1994,
katha was transferred in their joint names and paid
tax.
19(a). The plaintiff - Manjunath also contended that
the above said Basheer Ahmed and Bakshu Ahmed
in turn executed a separate two Gift Deeds on 02-11-
2007 gifting their respective half shares in favour of
their wives Dilshad Begum W/o Basheer Ahmed and
Mehatab Parveen S/o Bakshu Ahmed and they
obtained joint katha.
33
OS Nos.9950/2014 C/w 3806/2015
20. The defendants No.1 and 6 disputed the above
said Gift Deeds contending that those were created
by Abdul Khaleel. There is no relationship between
Abdul Hafeez and Abdul Khaleel and not mentioned
about their relationship at Ex.P-2. It is also their
contention that defendant No.1 Abdul Hafeez has
alienated the same to defendant No.6 under the sale
deed dated 01-05-1987 due to prohibition of
registration of property, the GPA, agreement of sale,
affidavit confirming the sale in favour of defendant
No.6 was executed followed by possession and
defendant No.6 based on which claims to be owner,
whereas defendant No.1 also similar contentions are
taken in the written statement.
21. The defendants in the cross-examination of PW.1
disputed the genuineness of right of Abdul Hafeez to
execute the alleged oral Hiba in favour of Abdul
Khaleel contenting that as on that date Abdul Hafeez
has already alienated the property in favour of
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OS Nos.9950/2014 C/w 3806/2015
defendant No.6 on 01-05-1987 and executed GPA,
agreement of sale and affidavit. The counsel for
defendants No.1 and 6 contended that the alleged
oral gift not registered, based on which no possession
was delivered, the requisite conditions for valid Hiba
are not complied.
22. Before appreciating the oral and documentary
evidence on record, it is necessary to gone through
the principles/conditions required for valid Hiba
under Mohammedan law. The counsel for the
plaintiff - Manjunath in this regard relied upon the
judgments AIR 1974 Jammu and Kashmir 59
Ghulam Ahmad Sofi vs. Mohd. Sidiq Dareel and
others. The relevant portion reads as follows :
" Thus, if all the formalities as prescribed by the
Mohammadan law relating to making of gifts are
satisfied i.e., there is a declaration by the donor
of his intention to make a gift, there is
acceptance of the gift by the donee, and delivery
of possession of the property is complete, the
gift is valid notwithstanding the fact that it is
made orally without any instrument. But if
there is executed an instrument and its
execution is contemporaneous with the making
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OS Nos.9950/2014 C/w 3806/2015
of the gift then in that case the instrument must
be registered under Section 17 of the
Registration Act. If, however, the making of the
gift is an antecedent act and a deed is executed
afterwards as evidencing the said transaction
that does not require registration as it is an
instrument made after the gift is made and does
not therefore create, make or complete the gift
thereby transferring the ownership of the
property from the executant to the person in
whose favour it is executed."
22(a). (2011) 5 SCC 654 Hafeeza Bibi and others vs.
Shaikh Farid (dead) by L.Rs., and others. Para 27
and 29 reads as follows :
" Merely because the gift is reduced to writing by
a Mohammadan instead of it having been made
orally, such writing does not become a formal
document or instrument of gift. When a gift
could be made by Mohammadan orally, its
nature and character is not changed because of
it having been made by a written document.
What is important for a valid gift under
Mohammadan Law is that three essential
requisites must be fulfilled. The form is
immaterial. If all the three essential requisites
are satisfied constituting valid gift, the
transaction of gift would not be rendered invalid
because it has been written on a plain piece of
paper.
The distinction that if a written deed of gift
recites the factum of prior gift then such deed is
not required to be registered but when the
writing is contemporaneous with the making of
the gift, it must be registered, is inappropriate
and does not seem to us to be in conformity with
36
OS Nos.9950/2014 C/w 3806/2015
the rule of gifts in Mohammadan Law. In other
words, it is not the requirement that in all cases
where the gift deed is contemporaneous to the
making of the gift then such deed must be
registered under Section 17 of the Registrat Act.
Each case would depend on its own facts."
22(b). AIR 1981 Kerala 176 P. Kunyheema Umma vs.
P. Ayissa Umma and others. In para 7 observed that:
" That the requirements of a gift of immovable
property under the Mahomedan Law are : (a)
declaration by the donor (b) acceptance by the
donee and (c) delivery of possession by the donor
to the donee."
Where the execution of the Gift Deed by the
donor was followed by delivery of possession to the
donee the gift would be valid. The categorical
statement in the Gift Deed that possession had
passed to the donee and the donor had not retained
any right whatsoever in the property coupled with the
tax paid receipts in the name of donee soon after the
date of execution of the Gift Deed and before the
death of donor would show that possession of the
property was actually given to the donee.
37
OS Nos.9950/2014 C/w 3806/2015
23. The counsel for the defendant No.1 and 6 also
relied upon judgments, AIR 1984 Andhra Pradesh
344 Ratan Lal Bora and others vs. Mohd. Nabiuddin,
wherein it is held that :
" Oral gift of immoveable property under Muslim
law, essential ingredients are, a declaration of
gift by the donor, acceptance of the gift by the
donee and delivery of possession of subject
matter of gift to the donee. Even if actual
possession is not given, possession which the
property is capable of being given would satisfy
the requirement. Unless the three valid
requirements of declaration, acceptance and
delivery of possession are satisfied oral gift
under Mohammedan Law is not valid."
23(a). AIR 1976 Supreme Court 163 Afsar Shaikh
and another vs. Soleman Bibi and other, wherein it is
held that :
" Undue influence in the case of a gift is same as
Sec.16 of the Contract Act."
23(b). AIR 2011 Supreme Court 1695 Hafeeza Bibi
and others vs. Shaikh Farid (dead) by L.Rs and
others, wherein it is held that :
" Gift can be made by Mohammadan orally, but
merely because gift is reduced to writing instead
of making it orally, such writing does not
become formal document or instrument of gift.
38
OS Nos.9950/2014 C/w 3806/2015
Form is immaterial and registration is not
necessary."
24. In view of the above said judgments relied by
the plaintiff and defendants No.1 and 6 counsel. In
order to constitute a valid oral gift under
Mohammadan law the following three requirements
are to be satisfied are - (a) donor makes a gift
declaration, (b) donee acceptance of gift and (3)
transfer of possession to the donee. Thus, the above
said conditions are 3 pillars of a valid gift under
Mohammedan law. The plaintiff Manjunath has to
satisfy the Court about the above said ingredients in
proof of Ex.P-2 - Declaration of Hiba and earlier to
that oral Hiba in respect of larger extent of property
by defendant No.1 - Abdul Hafeez in favour of Abdul
Khaleel. The defendant No.1 Abdul Hafeez in favour
of Abdul Khaleel. The defendant No.1 Abdul Hafeez
is the executant of Ex.P-2 declaration confirming the
oral gift in respect of Abdul Khaleel and he disputed
the very execution of alleged oral Hiba followed by
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OS Nos.9950/2014 C/w 3806/2015
declaration confirming the oral Hiba. Therefore, it is
incumbent on the plaintiff Manjunath, who claim
right over the suit schedule property on the basis on
said oral Hiba allegedly executed by the defendant
No.1 - Abdul Habeez.
25. The defendant No.1/DW.1 in his chief-
examination and also written statement denied the
very execution of Ex.P-2 declaration confirming the
alleged oral Hiba made on 25-11-1991. However, in
the cross-examination of DW.1 in page No.18 cross-
examination 26-06-2023. DW.1 admitted signature
in Ex.P-2 third page marked his signature as Ex.P-
2(a). Ex.P-2 is the alleged disputed declaration of
confirmation or oral Hiba dated 29-11-1991. The
DW.1 pleads ignorance where he had prepared chief-
examination evidence and where it was notarized. As
per the say of Advocate he affixed signature in the
Advocate office. He was waiting in the office of
Advocate and thereafter, Advocate has prepared and
40
OS Nos.9950/2014 C/w 3806/2015
obtained his signature, he was not present at the
time of preparing chief-examination affidavit and no
information was given to the counsel.
26. The counsel for defendants No.1 and 6 in the
course of arguments contended that the alleged
admission of signature of DW.1 at Ex.P-2(a) is a stray
admission, it was marked while showing the other
document and got it admitted his signature.
However, there is no such probability to accept the
contention of counsel that the DW.1 had admitted
the signature by showing some other document. If
there was any such mischief during course of cross-
examination of DW.1, then and there it could have
been brought to the knowledge of the Court. The
counsel for DW.1 was very much present when DW.1
was cross-examined on 26-06-2023. Without there
being any such objections showing the different
signature of DW.1 and got admitted Ex.P-2(a)
signature, their contention cannot be acceptable.
41
OS Nos.9950/2014 C/w 3806/2015
27. DW.1 has also categorically admitted that he
had not given instruction to prepare chief-
examination affidavit and he was not there at the
time of preparing the chief-examination. Added to
that, DW.1 in his cross-examination has admitted
that before execution of Ex.D-7 - sale deed he has
not executed any documents in favour of defendant
No.6 - Abdul Sattar. He did not verify whether
Mohammad Hazim had executed any document in
respect of suit schedule property in favour of Abdul
Sattar or not. DW.1 admits in the year 2008 when
he had executed Ex.D-7 - sale deed he did not hand
over possession of suit schedule property to Abdul
Sattar. According to him before execution of Ex.D-7,
Mohammad Hazim had handed over the possession
to Abdul Sattar and he was not present when the
possession was handed over allegedly by Mohammad
Hazim.
42
OS Nos.9950/2014 C/w 3806/2015
28. DW.1 in his written statement, if it is read as a
whole, it was not prepared by him and it is a written
statement of defendant No.6 - Abdul Sattar.
According to written statement contention of
defendant No.1 that in the year 1987 itself he has
sols the suit schedule property along with larger
extent in favour of Mohammad Hazim by executing
GPA, sale agreement coupled with affidavit by
receiving entire sale consideration amount is
concerned, it is not seen the light of the day, those
documents are not placed before the Court. There is
no probable evidence on behalf of DWs.1 and 2 to
believe that DW.1 has executed the agreement of
sale, GPA and affidavit by receiving entire sale
consideration amount in favour of Mohammad
Hazim. Even for the sake of arguments, those
documents are executed parting with suit schedule
property in favour of Mohammad Hazim, those
documents are not deed of transfers. The right in
immovable property has to be transferred only
43
OS Nos.9950/2014 C/w 3806/2015
through registered instrument. Therefore, at the very
outset, the defence of DW.1 that he had sold the suit
schedule property to Mohammad Hazim in the year
1987 cannot be acceptable and believable.
29. DW.2 son of 6th defendant Abdul Sattar in his
cross-examination in page No.6 dated 01-06-2023
admitted DW.1 - Abdul Hafeez has shown the Gift
Deed copy executed in favour of Abdul Khaleel in
favour of DW.2 father Abdul Sattar, the said
statement confirmed and corroborated with Ex.P-2
that Ex.P-2 declaration confirming the oral gift
executed by DW.1 in favour of Abdul Sattar. DW.2
further deposed that 10 years earlier to 2008 Gift
Deed executed by DW.1 in favour of Abdul Khaleel,
copy was shown by DW.2 father Abdul Sattar in
favour of Abdul Hafeez and he admits Ex.P-2 is the
declaration of gift which was shown to him by DW.1.
He admits Ex.P-2 is not challenged either by DW.1 or
Abdul Sattar. Therefore, the oral evidence of DW.1
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and 2 read as a whole, there is clear admission in
favour of PW.1 Manjunath that Ex.P-2 Gift Deed
confirming the oral Hiba executed by DW.1 in favour
of Abdul Khaleel. Therefore, it is established from
the evidence on record, there was a clear declaration
of intention to transfer the immovable suit schedule
property by DW.1 in favour of Abdul Khaleel.
30. Whether based on Ex.P-2 and oral Hiba Abdul
Khaleel had obtained possession is a matter to be
considered and whether he had accepted the gift. In
this regard the oral evidence of PW.1 Manjunath is
not much relevant as he was not present at the time
of alleged Ex.P-2 was come in to existence and he
being the purchaser he claims through his vendors
and vendors. Ex.P-3 is the katha extract in respect
of suit schedule property and other portion
transferred in the name of Abdul Khaleel. In page
No.9 there is clear mention about the existence of
building. This katha was transferred in the name of
45
OS Nos.9950/2014 C/w 3806/2015
Abdul Khaleel at undisputed point of time that on
08-01-1992. Ex.P-2 is the declaration of oral Hiba is
dated 29-11-1991 and oral Hiba is on 25-11-1991.
The katha was transferred in the name of Abdul
Khaleel on 08-01-1992 within 3 months from the
date of execution of Ex.P-2 - declaration of Hibanama
followed by transfer of katha Abdul Sattar had also
paid tax to the authorities. The tax paid receipts are
produced at Ex.P-4 to P-8. DW.1 Mohammad Hazim
or Abdul Sattar at no point of time have challenged
the revenue entries in the name of Abdul Khaleel
based on Ex.P-2 - declaration of Hiba. DW.1 though
he has filed written statement he has not sought any
relief by way of counter claim challenging the alleged
Ex.P-2 -declaration and also subsequent to
declaration of Hiba executed by Abdul Khaleel in
favour of his sons and thereafter two sons of Abdul
Khaleel have executed Gift Deed in favour of their
wives separately. The admission of DW.1 followed by
transfer of katha and paying taxes from undisputed
46
OS Nos.9950/2014 C/w 3806/2015
point of time by Abdul Khaleel deemed to have taken
possession of suit schedule property along with
southern portion by accepting Hiba at Ex.P-2
executed by DW.1.
31. The counsel for the defendants No.1 and 6 have
contended that the alleged Hiba at Ex.P-2 is not
registered document. Unless document is registered
in respect of immovable property valuing more than
Rs.100/- under Sec.49 of Registration Act it is not
valid document. Therefore, it requires to be
considered whether un-registration of Ex.P-2 is a
valid gift under Mohammedan law.
32. The learned counsel for the plaintiff in OS
No.9950/2014 relied upon the judgment of AIR 1974
Jammu and Kashmir 59 Ghulam Ahmad Sofi vs.
Mohd. Sidiq Dareel and others case and also AIR
2011 Supreme Court 1695 Hafeeza Bibi and others
vs. Shaikh Farid (dead) by L.Rs and others stated
47
OS Nos.9950/2014 C/w 3806/2015
supra, to constitute a valid gift its nature and
character is not changed because of it having made
by a written document. If all the three essential
requisites are satisfied constituting valid gift, the
transaction of gift would not be rendered invalid
because it has been written on a plain piece of paper.
The distinction that if a written deed of gift recites the
factum of prior gift then such deed is not required to
be registered but when the writing is
contemporaneous with the making of the gift, it must
be registered.
33. Therefore, in view of above said case law, Ex.P-2
declaration and oral Hiba are not contemporaneous.
The oral Hiba made by DW.1 was on 25-11-1991,
whereas Ex.P-2 declaration confirming the execution
of oral Hiba was made on 29-11-1991. Therefore,
making of Ex.P-2 is an antecedent act and deed is
executed afterwards as evidencing transaction that
does not require registration. The defendants
48
OS Nos.9950/2014 C/w 3806/2015
counsel also questioned the form of execution of
declaration before the Notary Public. What is
important to constitute valid gift are the intention to
transfer the property by way of Hiba, acceptance and
followed by delivery of possession. The form in which
declaration is executed is not material. Therefore,
there is no basis to accept the contentions of counsel
for defendants No.1 and 6 that Ex.P-2 is not in a
proper formation.
34. It is also contentions of defendants that the
property was not at all delivered in favour of Abdul
Khaleel and from 1987 Abdul Sattar has been in
possession, therefore, it is not valid gift. DW.2
admits there is no katha standing in the name of his
father Abdul Sattar in respect of suit schedule
property at any point of time. DW.2 deposed that
suit schedule property new number is 25 measuring
1370 sq.ft. He admits towards southern side of suit
schedule property the remaining southern portion of
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OS Nos.9950/2014 C/w 3806/2015
property belongs to PW.1 brother Venu Gopal
property. Property No.45 mentioned in his chief-
examination affidavit is belongs to his father Abdul
Sattar. It is situated at Rahmat Nagar, DW.2 and his
brother is residing in the property No.45 from 30
years. Property No.45 is not the suit schedule
property. DW.2 admits suit schedule property is in
BBMP limits. He admits, DW.1 is the original owner
of suit schedule property.
34(a). He pleads ignorance when DW.1 purchased, it
was property No.12. DW.2 admits, DW.1 has
purchased suit schedule property under sale deed
dated 10-03-1980, its present number is 25. He do
not know when did the suit schedule property fell
within the jurisdiction of BBMP. DW.2 admits Abdul
Khaleel was died about 10 years back and is one of
the sons Abdul Basheer was also died. He admits,
Mehatab Parveen and Dilshad Begum are the
daughter-in-laws of Abdul Khaleel. He admits that
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OS Nos.9950/2014 C/w 3806/2015
there was strained relationship between the family of
Abdul Khaleel and Abudl Sattar for 20 years. DW.2
admits his father and his legal heirs used to visit the
house of Abdul Khaleel. But, he denied Abdul
Khaleel was residing in a shed in the suit schedule
property. The DW.2 has not stated where Abdul
Khaleel was resided. In absence of such pleadings
and evidence Ex.P-2 - declaration of Hiba, transfer of
katha and tax paid receipts, in all probabilities would
show that Abdul Khaleel was residing in the suit
schedule property by accepting the gift.
35. DW.2 admits the building appearing in Ex.D-5 is
belongs to Venugopal - brother of Manjunath and he
is in possession. DW.1 not even questioned the sale
deed of Venugopal. He purchased southern side of
property, whereas Manjunath purchased the
northern side i.e., suit schedule property. DW.2
admits that Abdul Khaleel had executed Gift Deeds
in favour of his two sons Basheer Ahmed and
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Bakshu Ahmed. Those Gift Deeds are produced by
the plaintiff at Ex.P-10. The sons of Abdul Khaleel
have also taken possession by paying tax, katha was
transferred in their names at Ex.P-11 to P-17. If
there was no delivery of possession or acceptance of
gift katha would not have been transferred in the
name of two sons of Abdul Khaleel. Even that point
of time also there is no transfer of katha in favour of
Abdul Sattar.
35(a). DW.2 admits Ex.D-38 Aadhaar card was made
on 10-09-2019. Ex.D-39 - Passport was made on
05-04-2016. Ex.D-40 - Passport is dated
01-01-2015. Exs.D-1 to D-6 and D-52 to D-55 -
Photographs were taken in the year 2008. Ex.D-7 -
Bill does not mention it belongs to which property.
DW.2 does not have any other old bills. DW.2
deposed that in the year 1989 Mohammad Hazim
was died. He had executed GPA, no other document
in favour of his father. As already observed herein
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above no such GPA, sale agreement and affidavit are
produced. There is no proof that Mohammad Hazim
has executed any valid deed of transfer in favour of
Abdul Sattar. So, without there being any such
document, contention of DWs.1 and 6 cannot be
acceptable that there was a transaction with
Mohammad Hazim. DW.2 admits Abdul Hafeez prior
to Ex.D-7 sale deed has not given possession to his
father. The sale consideration of Rs.1,80,000/-
mentioned in Ex.D-7 sale deed is not given to DW.1.
36. By looking to the oral and documentary evidence
on record that DW.1 Abdul Hafeez has executed valid
oral Hiba in favour of Abdul Khaleel followed by
Ex.P-2 declaration, based on which Abdul Khaleel
obtained possession by way of transferring katha in
his name paying tax at undisputed point of time. It
is also significant to note that Ex.P-1 original sale
deed of DW.1 is also in custody of Abdul Khaleel.
DW.1 either in the written statement or evidence has
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not explained under what circumstance Ex.P-1
original sale deed came in to custody of Abdul
Khaleel. In absence of such explanation the
presumption is that at the time of executing oral
Hiba followed by Ex.P-2 declaration the original sale
deed at Ex.P-1 was handed over to Abdul Khaleel.
37. Abdul Sattar has relied upon the various
documents to show that he was in possession of suit
schedule property from 1987. But, evidence of DW.2
is otherwise. The 6th defendant claim to be owner of
suit schedule property based on the registered sale
deed at Ex.D-7 executed by DW.1. The counsel for
the defendants No.1 and 2 has contended that the
sale deed of Abdul Sattar is previously registered
document than the sale deed of PW.1 - Manjunath.
The learned counsel also in this regard relied upon
the judgments stating that there is no material
particulars in the plaint regarding sale deed of
defendant No.6, (2004) 3 SCC 137 Sopan Sukhdeo
54
OS Nos.9950/2014 C/w 3806/2015
Sable and Others vs. Assistant Charity Commissioner
and others, AIR 2018 SC 3080 Siddagangaiah (D)
thr.LRs., vs. N.K. Giriraja Shetty (D) thr. LRs. And
also relied upon AIR 2005 Karnataka 108 Bhagawan
B. Kedari (Deceased by L.Rs.) vs. Dwarakanath K.
Bagare and Others regarding constructive notes of
title under Sec.31 of T.P. Act. AIR 1960 Madras 396
Ramaswami Pillai v. Ramasami Naicker and Others,
wherein it is held that, sale of same property in
favour of two different persons at different times sale
executed prior to point of time will prevail. AIR 1973
Mysore 276 Azeezulla Sheriff and Others v.
Bhabhutimu, AIR 1965 Supreme Court 430 K.J.
Nathan vs. S.V. Maruthi Rao and others, AIR 1954
Supreme Court 316 Sri Sri Sri Kishore Chandra
Singh Deo vs. Babu Ganesh Prasad Bhagat and
others and AIR 2015 Supreme Court 976 Om
Prakash (Dead) Th. His LRs vs. Shanti Devi regarding
presumption of 30 years old document.
55
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38. In view of submissions of counsel for defendants
No.1 and 6, it is to be considered whether the sale
deed of plaintiff Manjunath at Ex.P-22 dated 04-02-
2008 is valid or the sale deed at Ex.D-7 dated 11-01-
2008 is valid. The plaintiff Manjunath proved that
Abdul Khaleel was the owner of the suit schedule
property on the basis of oral Hiba followed by Ex.P-2
declaration confirming the Hiba. He has also proved
that said Hiba has been accepted by Abdul Khaleel
and taken possession by transferring katha in his
name and paying tax to the authority. It is also
significant to note, during life time of donor DW.1
and also during life time of Abdul Sattar gift has been
executed. Once Ex.P-2 gift has been proved by
plaintiff Manjunath, it is needless to say that Ex.D-7
sale deed executed by DW.1 on 11-01-2008 does not
survive. DW.1 - Abdul Hafeez has parted with the
suit schedule property in favour of Abdul Khaleel by
way of Hiba on 25-11-1991 followed by declaration of
Hiba Ex.P-2, once DW.1 himself did not had any
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right over the suit schedule property as on 11-01-
2008, the defendant No.6 Abdul Sattar did not get
any right, interest over the suit schedule property.
The alleged registered sale deed dated 11-01-2008 is
void document.
39. It is true, the sale deed of PW.1 Manjunath is
subsequent to the sale deed of Abdul Sattar at Ex.D-
7. However, the plaintiff Manjunath proved the flow
of title from 25-11-1991 by oral Hiba. Thereafter,
declaration of Hiba at Ex.P-2 by DW.1.
Subsequently, Abdul Khaleel after changing katha in
his name he had executed Ex.P-10 declaration of
Hiba confirming the oral gift on 10-01-1992 in favour
of his two sons. The said declaration was executed
on 18-03-1994 both oral Hiba and declaration of
Ex.P-10 are not contemporaneous. Ex.P-10 is
recorded past factum of oral Hiba. Therefore, based
on Ex.P-10 Hiba executed by Abdul Khaleel in favour
of his two sons, they obtained joint katha and paid
57
OS Nos.9950/2014 C/w 3806/2015
tax at Ex.P-11 to P-17. Subsequently, sons of Abdul
Khaleel vide separate registered Gift Deeds executed
in favour of their respective wives i.e., Dilshad Begum
W/o Basheer Ahmed and Mehatab Parveen W/o
Bakash Ahmed. These registered Gift Deeds are also
acted upon by executing the Hiba and katha has
been transferred, they paid tax. Thus, there is
deemed taking of possession. Thereafter, Dilshad
Begum and Mehatab Parveen has executed southern
portion of property in favour of plaintiff Manjunath
brother Venugopal at Ex.P-22. Based on which
katha has been transferred in favour of Venugopal at
Ex.P-24 and P-25.
39(a). The said Dilshad Begum and Mehatab
Parveen jointly executed registered sale deed in
respect of suit schedule property dated 04-02-2008
in favour of plaintiff Manjunath at Ex.P-25. Later on
Venugopal and Manjuunath applied for bifurcation of
properties, which has been objected by Abdul Sattar.
58
OS Nos.9950/2014 C/w 3806/2015
The objections of Abdul Sattar was rejected by the
revenue authorities, against which Abdul Sattar
preferred appeal before the joint Commissioner,
which was also came to be reported confirming the
order of bifurcation in favour of Manjunath and his
brother Venugopal. The endorsement issued by the
Asst. Revenue Officer is produced at Ex.D-21, copy of
the plaint at Ex.D-22 to D-24 are also produced.
39(b). DW.2 has admitted that Ex.D-45 to D-47 tax
paid receipts were paid by Abdul Sattar on 17-10-
2014 for the year 2008-09, 2014-15 just before filing
the suit. Admittedly, Abdul Sattar did not had katha
in his name based on Ex.D-7. The plaintiff -
Manjunath had also filed a complaint against DW.1 -
Abdul Sattar at Ex.D-48, they were acquitted for the
offenses alleged.
39(c). DW.2 has admitted as per Ex.D-5 photo the
building has been constructed by Venugopal brother
59
OS Nos.9950/2014 C/w 3806/2015
of plaintiff Manjunath. Thus, Venugopal has been in
possession of southern portion of total extent,
whereas in respect of suit schedule property it is a
northern portion, Abdul Sattar allegedly denied the
right of the plaintiff and also obstructed him from
entering in to suit schedule property. Therefore, the
plaintiff filed a suit for declaration and possession.
40. The sequence of documents as well as oral
evidence of PWs.1 and 2 would establish the plaintiff
- Manjunath has acquired title, interest over the suit
schedule property, whereas the sale deed of Abdul
Sattar at Ex.D-7 is void document, the executant
DW.1 did not had any right on the date of execution
of said sale deed.
41. The learned counsel for the defendants No.1 and
2 contended that the suit is barred by limitation.
The sale deed of Abdul Sattar is of the year 2008.
The suit was filed in the year 2014, within 3 years
60
OS Nos.9950/2014 C/w 3806/2015
from the date of sale deed it has not been questioned.
The counsel also submitted that though there is no
limitation issue as per Sec.3 of the Limitation Act, it
is the bounden duty of the Court to look into the
aspect of limitation point. The counsel has relied
upon AIR 2007 Supreme Court 641 State of Punjab
and another vs. Balkaran Singh, wherein it is held
that, Art.58 - Suit for declaration that order denying
revised scale of pay is illegal, time started to run
when right to sue first accrued to plaintiff. The suit
filed after expiry of five years is barred by limitation.
However, in the instant case, the relief sought by the
plaintiff is not only for declaration but also for
possession. Once the declaration and possession
relief is sought Art.58/59 of Limitation Act has no
application. On the other hand, Art.65 of Limitation
Act would be applicable. In this regard, it is useful to
refer Civil Appeal No.4478/2007 Sopan Rao and
another vs. Syed Mehmood and others dated 03-
07-2019, ILR 2020 KAR 3597 M.S. Ananthamurthy
61
OS Nos.9950/2014 C/w 3806/2015
vs. J. Manjula, ILR 2016 3114 K.V. Shivakumar and
Others vs. National Institute of Mental Health and
Neuro Science and others and AIR 2011 Gauhati 56
Sukhen Sarkar vs. Rakhal Chandra Sarkar. In view
of authoritative judgments of Hon'ble Apex Court the
suit for declaration and possession is governed by
Art.65. No amount/long years possession would
raise to denial of plaintiff right unless possession of
Abdul Sattar become adverse to the interest of either
plaintiff Manjunath or his vendor. Since there is no
pleadings and evidence in this aspect, the suit of the
plaintiff is not barred by limitation.
42. After over all appreciation of oral and
documentary evidence on record plaintiff
Manjunatha in OS No.9950/2014 proved that he is
the absolute owner of suit schedule property and
entitled for possession of suit schedule property from
defendant No.6 - Abdul Sattar declaring that the sale
deed dated 11-01-2008 executed by defendant No.1
62
OS Nos.9950/2014 C/w 3806/2015
Abdul Hafeez in favour of defendant No.6 Abdul
Sattar is null and void and liable to be cancelled.
43. Whereas, the plaintiff in OS No.3806/2015
Abdul Sattar failed to establish his title and interest
over the suit schedule property and he is not entitled
for any of the reliefs. Accordingly, answered issues
No.1 and 2 and additional issue No.1 in OS
No.9950/2014 in Affirmative, whereas issues in OS
No.3806/2015, issue No.1 in the Negative, issues
No.2 and 3 in the Affirmative and issue No.4 in the
Negative.
44. ISSUE NO.3 IN OS NO.9950/2014 AND ISSUE
NO.5 IN OS NO.3806/2015: In view of my findings
on the above said issues, I proceed to pass the
following :
ORDER
The suit in OS No.9950/2014 filed by plaintiff - M. Manjunath is decreed with 63 OS Nos.9950/2014 C/w 3806/2015 costs. He is declared as absolute owner of the suit schedule property.
Further, it is declared that the registered sale deed dated 11-01-2008 document No. GAN-1-03815-2007-08 CD No.GAND99 executed by the defendant No.1 - Abdul Hafeez in favour of defendant No.6 as null and void and concerned Sub-Registrar is directed to cancel the same in the concerned register.
The defendant No.6 - Abdul Sattar now dead, his L.Rs are directed to hand over vacant possession of suit schedule property in favour of plaintiff - M. Manjunath.
The suit of the plaintiff in OS No.3806/2015 filed by Abdul Sattar is dismissed with costs.
Draw decree accordingly.
Office to keep original judgment in OS No.9950/2014 and copy of the judgment in OS No.3806/2015.
Office is also directed to sent a copy of the decree to the concerned Sub-Registrar for cancellation of registered sale deed dated 11-01-2008 in the concerned registers.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 13th day of November 2024.) (S. NATARAJ) VI Addl.City Civil & Sessions Judge Bengaluru City.
64OS Nos.9950/2014 C/w 3806/2015 ANNEXURE
1. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Sri M. Manjunath - dt: 21-09-2016
(b) Defendants' side :
D.W.1 Sri M. Manjunath - dt: 21-07-2022
D.W.2 Fiaz Pasha - dt: 20-03-2023
2. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Original sale deed dt: 10-03-1980
Ex.P.2 Original declaration dated: 29-11-1991
Ex.P.3 Katha books
Ex.P.4 to Tax paid receipts
P.8
Ex.P.9 Notorial certificate
Ex.P.10 Gift Deed dated 18-3-94
Ex.P.11 Tax paid receipts
& P.12
Ex.P.13 Katha certificates
& P.14
Ex.P.15 Tax paid receipt
Ex.P.16 Khatha extracts
& P.17
Ex.P.18 Gift Deed dated 2-11-2007
& P.19
Ex.P.20 Khatha extract
& P.21
Ex.P.22 Swl dated 4.2.2008
Ex.P.23 Khatha extract
& P.24
Ex.P.25 Sale deed dated 4.2.2008
Ex.P.26 Tax paid receipt
Ex.P.27 Notice by BBMP
65
OS Nos.9950/2014 C/w 3806/2015 Ex.P.28 Khatha extracts & P.29 Ex.P.30 Tax paid receipts to P.33 Ex.P.34 Electricity bill Ex.P.35 Water bill Ex.P.36 Certified copy of order in CC No.10929/2009 Ex.P.37 Certified copy of sale deed dt: 11-1-2008
(b) Defendants' side :
Ex.D.1 to Photographs D.6 Ex.D.7 Sale deed dt: 11-01-2008 Ex.D.8 Certified copy of sale deed dt: 10-03-1980 Ex.D.9 & Electricity bill and receipt D.10 Ex.D.11 Certified copy of sale deed dt: 04-02-2008 Ex.D.12 Tax paid receipts in respect of suit property. to D.18 Ex.D.19 Certified copy of Gift Deed dt: 02-11-2007 Ex.D.20 Certified copy of Gift Deed dt: 02-11-2007 Ex.D.21 Certified copy of Gift Deed dt: 21-11-2007 Ex.D.22 Copies of letters given to BESCOM & D.23 Ex.D.24 Copy of complaint dt: 11-04-2014 given to Hebbal Police Ex.D.25 NCR endorsement Ex.D.26 ICICI Bank statement Ex.D.27 BSNL Bill Ex.D.28 BSNL notice Ex.D.29 S.B. A/c pass book of father of DW.2 Ex.D.30 S.B. A/c pass book of DW.2 Ex.D.31 D.L. of DW.2 Ex.D.32 S.B. A/c pass book of father of DW.2 Ex.D.33 Voters I.D. card of DW.2 Ex.D.34 Voters I.D. card of brother of DW.2 Ex.D.35 Aadhaar card of father of DW.2 Ex.D.36 Voters I.D. card of mother of DW.2 Ex.D.37 Voters I.D. card of brother Aslam Pasha of DW.2 Ex.D.38 Aadhar card of Ashriya Bhanu 66 OS Nos.9950/2014 C/w 3806/2015 Ex.D.39 Passport of father of DW.2 Ex.D.40 S.B. A/c pass book of father of DW.2 Ex.D.41 Tax paid receipts in respect of suit property. to 47 Ex.D.48 Certified copy of judgment in CC No.28016/2017 Ex.D.49 Tax paid receipts in respect of suit property to D.51 Ex.D.52 Photographs and C.D. in respect of suit to D.56 property.
Ex.D.57 65-B certificate in respect of Exs.D.49 to D.56 Ex.D.58 BBMP documents in respect of suit property. to D.71 VI Addl. City Civil & Sessions Judge Bengaluru City.67
OS Nos.9950/2014 C/w 3806/2015 Common Judgment pronounced in open court vide separate:
ORDER The suit in OS No.9950/2014 filed by plaintiff - M. Manjunath is decreed with costs. He is declared as absolute owner of the suit schedule property.
Further, it is declared that the registered sale deed dated 11-01-2008 document No. GAN-1-03815-2007-08 CD No.GAND99 executed by the defendant No.1 - Abdul Hafeez in favour of defendant No.6 as null and void and concerned Sub-Registrar is directed to cancel the same in the concerned register.
The defendant No.6 - Abdul Sattar now dead, his L.Rs are directed to hand over vacant possession of suit schedule property in favour of plaintiff - M. Manjunath.
The suit of the plaintiff in OS No.3806/2015 filed by Abdul Sattar is dismissed with costs.68
OS Nos.9950/2014 C/w 3806/2015 Draw decree accordingly.
Office to keep original judgment in OS No.9950/2014 and copy of the judgment in OS No.3806/2015.
Office is also directed to sent a copy of the decree to the concerned Sub-Registrar for cancellation of registered sale deed dated 11-01-2008 in the concerned registers.
(S. NATARAJ) VI Addl.City Civil & Sessions Judge Bengaluru City.