Mr Nisar Ahmed Sha vs Mr Lakshmaiah
2021 Latest Caselaw 2126 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 4TH DAY OF JUNE, 2021

                     BEFORE

       THE HON'BLE MR. JUSTICE M.I.ARUN

            RFA NO.157 OF 2019 (EJE)

BETWEEN:

MR. NISAR AHMED SHA
SINCE DECEASED BY LRS.

1.   SHAHJAHAN BEGUM
     AGED ABOUT 55 YEARS

2.   AFZAL PASHA
     AGED ABOUT 38 YEARS

3.   NOOR AYESHA
     AGED ABOUT 32 YEARS

4.   IDRESS PASHA
     AGED ABOUT 30 YEARS

5.   NOOR AFSA
     AGED ABOUT 28 YEARS

6.   AFSHAN PASHA
     AGED ABOUT 26 YEARS

     NO.1 BEING WIFE AND OTHERS
     ARE CHILDREN OF LATE
     NISAR AHMED SHA
     ALL ARE R/AT #51, 2ND CROSS
     3RD MAIN ROAD, RAM MANDIRA
     KALYANA MANTAPA STREET
                            2


       YESHWANTHAPURA
       BENGALURU - 560 022

       [CAUSE TITLE AMENDED AS
       PER ORDER COURT DATED 25.02.2021]
                                      ... APPELLANTS

(BY SRI. RAGHUNATH M. D., ADVOCATE)

AND:

1.     MR. LAKSHMAIAH
       S/O LATE VENKATAIAH
       AGED ABOUT 61 YEARS

2.     MRS. JAYALAKSHMI M.
       W/O LAKSHMAIAH
       AGED ABOUT 57 YEARS

       BOTH ARE R/AT #3
       'A' CROSS, PIPE LINE ROAD
       B B NAGAR, JALAHALLI
       BENGALURU - 560 013            ... RESPONDENTS

(BY SRI V. LAKSHMAIAH, PARTY-IN-PERSON
      AS WELL AS ADVOCATE FOR R-2)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 07.12.2018
PASSED IN OS.NO.25213/2008 ON THE FILE OF THE XXVI
ADDL.CITY CIVIL JUDGE, MAYO HALL, BENGALURU
DECREEING THE SUIT FOR EJECTMENT.

     THIS RFA HAVING BEEN HEARD AND RESERVED ON
01.06.2021 FOR JUDGMENT AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
THROUGH    VIDEO   CONFERENCE    DELIVERED  THE
FOLLOWING:
                              3




                        JUDGMENT

Though the matter is posted for orders, with the

consent of learned counsel for the parties, the matter

is taken up for final hearing.

2. Aggrieved by the judgment and decree dated

07.12.2018 passed by the Court of XXVI Additional

City Civil and Sessions Judge, Bengaluru, in

O.S.No.25213/2008, the defendant therein has filed

this appeal.

3. For the sake of convenience, the parties are

referred to herein as per their status before the trial

court.

4. The original suit was filed by the respondents

herein for the relief of ejectment and possession of

the suit schedule property and for damages @

Rs.1,000/- per month from the date of filing of the

suit till the defendant handing over vacant possession

of the suit schedule property.

5. The brief facts of the case of the plaintiffs is that

they are the sole and absolute owners of the suit

schedule property and the defendant is in permissive

possession of the same. The defendant was put in

possession of the same on 03.02.2005 for a period of

fifteen days. However, the defendant refused to quit

and deliver vacant possession of the suit schedule

property in favour of the plaintiffs. Hence, they were

constrained to file O.S.No.25213/2008 with a prayer

of ejectment and possession along with mesne profits.

6. Per contra, the defendant upon service of notice

has entered appearance before the trial court. He has

contended that the sale deed of the plaintiffs by which

they are claiming ownership of the property is fake

and that he is in possession and enjoyment of the suit

schedule property by virtue of Mane Bhogyada Kararu

Pathra dated 01.12.2000. Under the said ground, he

has sought for dismissal of the suit.

7. Based on the pleadings, the trial court has

framed the following issues for consideration:

1) Does plaintiff prove that they are absolute owners of suit schedule property?

2) Does plaintiff proves that the Defendant is in permissive possession of suit schedule property?

3) Whether plaintiff is entitled for damages at the rate of Rs.1,000/- p.m., from the date of suit till handing over of possession of the schedule premises?

4) Whether the plaintiff is entitled for the reliefs claimed in the plaint?

5) What decree or order?

It has answered the same in the following manner:

     ISSUE NO.1         :-      In the affirmative
     ISSUE NO.2         :-      In the affirmative
     ISSUE NO.3         :-      As per final order
     ISSUE NO.4         :-      In the affirmative



      ISSUE NO.5      :-    As per final order
                            For the following

8. In support of the case of the plaintiffs, first

plaintiff has got himself examined as PW.1 and got

marked Exs.P1 to P23. The defendant has got

examined himself as DW.1 and two other independent

witnesses as DW.2 and DW.3, but no documents are

got marked on behalf of the defendant.

9. The trial court, based on the pleadings and the

evidence let in, has decreed the suit of the plaintiffs.

It has granted three months time for the defendant to

vacate and handover vacant possession of the suit

schedule property to the plaintiffs. With regard to

mesne profits, it has held that there shall be a

separate enquiry.

10. Aggrieved by the judgment and decree passed

by the trial court, the defendant therein has preferred

this appeal. During the pendency of the appeal, the

defendant has expired and his legal heirs are brought

on record.

11. The contention of the appellant/defendant is that

he has been in possession of the suit schedule

property by virtue of 'Mane Bhogyada Kararu Pathra'

dated 01.12.2000 which is a mortgage deed. The

same was executed by the vendor who is alleged to

have sold the property in favour of the plaintiffs. It is

contended that the trial court failed to take the said

mortgage deed into consideration. It is further

contended that he also had an agreement from the

earlier owner who had agreed to sell the property in

favour of the defendant and in this regard, he has

filed O.S.No.942/2011 and the plaintiffs are also party

to the said suit and the same is pending consideration.

It is stated that the said suit is one for specific

performance and the trial court ought to have waited

for the suit to be decreed. Based on the said grounds,

the defendant has sought for allowing the appeal and

setting aside the impugned judgment and decree.

12. Per contra, the respondents/plaintiffs have

justified the impugned order passed by the trial court.

13. The question that arises for consideration in this

appeal is whether the appellant/defendant is able to

establish that he was the mortgagee in possession of

the suit schedule property from the vendor who is

alleged to have sold the same in favour of the

respondents/plaintiffs and that the sale, if any, in

favour of the plaintiffs is subject to the mortgagee

rights of the defendant.

14. The plaintiffs to prove their case have produced

the certified copy of the sale deed dated 03.02.2005

by which they have become the owners of the suit

schedule property. By the said document, the

plaintiffs have established that they are the owners of

the suit schedule property. The defendant apart from

oral depositions has not produced any document to

show how the sale deed in favour of the plaintiff in

respect of the suit schedule property is a fake

document nor he has produced any document to

establish his mortgagee rights. Based upon the said

sale deed and other related documents produced by

the plaintiffs, the trial court has held that the plaintiffs

have proved that they are the absolute owners of the

suit schedule property.

15. It is the specific contention of the plaintiffs that

on the date they purchased the suit schedule property

they have put the defendant in possession of the

same for a period of fifteen days. Therefore, it is

admitted that the defendant is in possession of the

suit schedule property. It is their specific case that

the defendant has since not vacated the same nor has

he paid any consideration by way of rent for

occupying the suit schedule property. Thus, the

possession of the defendant over the suit schedule

property is admitted. It is the contention of the

defendant that he is in possession of the same by

virtue of a mortgage deed and he is a mortgagee and

the rights of the plaintiffs if any is subject to his rights

over the suit schedule property. But, as observed by

the trial court, he has not got marked the relevant

mortgage deed though he has tried to produce the

same by virtue of an interlocutory application.

However, the mortgage deed sought to be produced is

an unregistered document and is not stamped

adequately. The trial court has rightly not considered

the same as a piece of evidence to uphold the right of

the defendant. The defendant has not produced any

other document to show that he is otherwise in lawful

possession of the suit schedule property and the

plaintiffs are not entitled to have him vacated from

the suit schedule property. Nothing contrary is

elicited in the cross examination of PW.1. Further,

pending of O.S.No.942/2011 filed for specific

performance which is alleged to have been filed by the

defendant is no ground for the trial court not to pass

the impugned judgment and decree.

16. The appellant/defendant has miserably failed to

show what is erroneous in the findings of the trial

court. The plaintiffs have proved that they are the

absolute owners of the suits schedule property and

the defendant without any right is in occupation and

possession of the same and thereby they have sought

for him to be vacated from the suit schedule property.

Based on the pleadings and the evidence let in, the

trial court has decreed the suit for ejectment and

possession. There is no error in the same.

17. For the aforementioned reasons, the appeal is

hereby dismissed as devoid of merits. However, it is

clarified that dismissal of this appeal does not come in

the way of the appellants from pursuing

O.S.No.942/2011 independently. No order as to

costs.

The pending I.As do not survive and are

accordingly disposed of.

Sd/-

JUDGE

hkh.