Smt Haseena Babu vs Smt Jamilabi
2022 Latest Caselaw 5149 Kant

                                1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.2257 OF 2018 (INJ)

BETWEEN:

SMT. HASEENA BANU
W/O MUHIB SAB
AGED ABOUT 40 YEARS
OCC:HOUSEHOLD WORK
R/O #1731, JALINAGAR
3RD CROSS, NEAR PARK
DAVANAGERE - 577 002.
                                    ...APPELLANT

(BY SRI. HAREESH BHANDARY T, ADVOCATE)

AND:

1 . SMT. JAMILABI
    W/O NAZEER AHAMED
    AGED ABOUT 50 YEARS
    R/O J.J. HATTI, 2ND CROSS
    NEAR AEROPANE BUILDING
    CHITRADURGA - 577 501

2 . SRI HAYATH BEIG
    S/O NAZEER AHAMED
    AGED ABOUT 30 YEARS
    R/O J.J HATTI, 2ND CROSS
    NEAR AEROPANE BUILDING
    CHITRADURGA - 577 501.

3 . SRI. IBRAHIM BEIG
    S/O NAZEER AHAMED
                                 2


   AGED ABOUT 28 YEARS
   R/O J.J. HATTI, 2ND CROSS
   NEAR AEROPANE BUILDING
   CHITRADURGA - 577 501

4 . SRI RAZAK BEIG
    S/O NAZEER AHAMED
    AGED ABOUT 21 YEARS
    R/O J.J. HATTI, 2ND CROSS
    NEAR AEROPANE BUILDING
    CHITRADURGA - 577 501

5 . SRI NAZEER AHMED BEIG
    S/O RAZAK BEIG
    AGED ABOUT 58 YEARS
    R/O J.J HATTI, 2ND CROSS
    NEAR AEROPANE BUILDING
    CHITRADURGA - 577 501
                                    ....RESPONDENTS

(BY   SRI.   SPOORTHY     HEGDE,       ADVOCATE     FOR
CAVEATOR/RESPONDENT NO.5)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 03.10.2018
PASSED IN R.A. NO.15/2018 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., DAVANAGERE,
PARTLY ALLOWING THE APPEAL AND MODIFYING THE
JUDGMENT AND DECREE DATED 04.01.2018 PASSED IN
O.S.NO.480/2010 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, DAVANAGERE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the defendant in O.S.

No.480/2010 challenging the divergent opinion recorded

by the Court of II Additional Senior Civil Judge and JMFC.,

Davanagere, (henceforth referred to as the 'First Appellate

Court') in R.A. No.15/2018, by which it reversed the

Judgment and Decree passed by the Court of the Principal

Civil Judge, Davanagere (henceforth referred to as the

'Trial Court') and partly decreed the suit in O.S.

No.480/2010 for mandatory injunction for removal of the

defendant from the suit schedule property and to hand

over possession of the same to the plaintiffs.

2. The parties will henceforth be referred to as

they were arrayed before Trial Court. The appellant herein

was the defendant while the respondent Nos.1 to 5 were

plaintiffs before the Trial Court.

3. The suit property is a red tiled roof house

bearing D.No.1731 constructed on site No.89/B-2 situated

at Jali Nagar, 3rd cross, near park, Davanagere, measuring

40 feet x 15 feet which was owned and possessed by Mrs.

Mahaboob Bi/Mehaboob Bi. It is stated that the plaintiff

Nos.1 to 4 purchased the said house from Mrs. Mahaboobi

in terms of a sale deed dated 27.07.1994. The plaintiff

Nos.1 to 4 claimed that the defendant was their aunt and

therefore, they had permitted her to be in possession of

the suit schedule property. They alleged that though they

asked her to vacate the suit property, she refused to do so

and also failed to pay the rent at the rate of Rs.300/- per

month. The plaintiffs, therefore, issued a notice dated

28.06.2010 and called upon the defendant to hand over

possession of the suit property. Since the defendant did

not vacate the suit property, the plaintiffs filed the suit for

her ejectment.

4. The defendant contested the suit and claimed

that the suit property was granted to Mrs.Mahaboob Bi.

She claimed that Mr.Khaleel Sab, the husband of Mrs.

Mahaboob Bi, had executed a deed of sale of the suit

property in her favour on 06.02.2010. Later, the said sale

deed was rectified and a rectification deed was executed

by Mrs. Mahaboob Bi on 12.04.2010. The defendant

claimed that she was in possession of the suit property as

a owner and not as a tenant as alleged by the plaintiffs.

5. Based on these rival contentions, the Trial

Court framed the following issues:

"1. Whether the plaintiffs prove that the defendant is in permissive possession of the suit schedule property?

2. Whether the plaintiffs further prove that they have legally terminated the permission of the defendant?

3. Whether the suit of the plaintiffs is maintainable without the relief of declaration and cancellation of sale deed dated 06.02.2010 and correction deed dated 12.04.2010 in favour of the defendant?

4. Whether the plaintiffs are entitled for the relief of possession of the suit schedule property?

5. Whether the plaintiffs are entitled for the relief of mesne profits as prayed for?

6. What Order or Decree?"

6. The plaintiff No.5 was examined as PW.1 and

he marked documents as Exs.P1 to P10 and examined

witnesses as PWs.2 to 4. The defendant was examined as

DW.1 and she marked documents as Exs.D1 to D23. She

examined a witness as DW.2.

7. Based on the oral and documentary evidence,

the Trial Court held that the plaintiffs did not seek the

relief of declaration that the sale deed dated 06.02.2010

executed by Mr. Khaleel Sab in favour of the defendant

and the rectification deed dated 12.04.2010 executed by

Mrs. Mahaboob Bi in favour of the defendant did not bind

them. It also held that since the plaintiffs did not seek the

relief of declaration, they were not entitled to recover

possession of the suit schedule property from the

defendant and hence, dismissed the suit.

8. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiffs filed Regular Appeal No.15/2018.

9. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the parties

and framed points for consideration. It held that the

parties did not deny the fact that the suit property was

earlier owned and possessed by Mrs. Mahaboob Bi. It also

held that Mrs. Mahaboobi had conveyed the suit property

to the plaintiff Nos.1 to 4 in terms of a sale deed dated

27.07.1994 (Ex.P1). The First Appellate Court, therefore,

held that the contention of the defendant that she had

purchased the suit property from Mr.Khaleel Sab under the

sale deed dated 06.02.2010 which was later rectified by

Mrs. Mahaboob Bi on 12.04.2010 was inconsequential as

Mrs. Mahaboob Bi did not retain any portion of the suit

property, after conveyance of the suit property on

27.07.1994 in favour of plaintiff Nos.1 to 4. The First

Appellate Court reversed the Judgment and Decree of the

Trial Court and partly decreed the suit and directed the

defendant to hand over possession of the suit property to

the plaintiffs.

10. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

11. The learned counsel for the defendant /

appellant submitted that the sale deed dated 27.07.1994

allegedly executed by Mrs. Mahaboob Bi in favour of

plaintiff Nos.1 to 4 was doctored inasmuch as Mrs.

Mahaboob Bi was an illiterate person and she had put her

thumb impressions in the sale deed and therefore, there

was no proof regarding the lawful execution of the sale

deed dated 27.07.1994.

12. It is seen from the Judgment/s and Decree/s of

the Trial Court as well as the First Appellate Court that the

suit property was earlier owned by Mrs. Mahaboob Bi.

Plaintiff Nos.1 to 4 purchased the suit property from Mrs.

Mahaboobi Bi in terms of the sale deed dated 27.07.1994.

Ex.P1 and Ex.P11 stand testimony to the above fact. The

other revenue documents also establish that the suit

property was sold to the plaintiff Nos.1 to 4.

13. Per contra, the learned counsel for the

defendant / appellant relied upon the rectification deed at

Ex.D1 which discloses that Mrs. Mahaboob Bi even after

disposing off the suit property to plaintiff Nos.1 to 4

executed a rectification deed dated 12.04.2010 rectifying

the sale deed dated 06.02.2010 executed by Mr. Khaleel

Sab in favour of the defendant.

14. It is a matter of common sense that the sale

deed executed by Mrs. Mahaboob Bi in favour of the

plaintiff Nos.1 to 4 being earlier, the defendant cannot

contend that the sale deed executed by Mr. Khaleel Sab on

06.02.2010 and the rectification deed dated 12.04.2010

executed by Mrs. Mahaboob Bi in her favour subsequently

were binding upon the plaintiffs. The First Appellate Court

has considered the oral and documentary evidence in the

right manner and has held that the plaintiffs had made out

a case for grant of reliefs.

15. In that view of the matter, there is no merit in

this Appeal and the same is dismissed.

The pending interlocutory application stands

disposed off.

Sd/-

JUDGE

sma