Karnataka High Court
Smt Mubashira Begum vs Shri M K Mir Obedulla on 12 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.No.376/2009(SP)
BETWEEN
1. SMT MUBASHIRA BEGUM
AGED ABOUT 60 YEARS
W/O (LATE) MOHAMMED SHAFI AHMED
RESIDING AT NO.984, MUBASHI, 23RD MAIN,
IV T BLOCK, JAYANAGAR
BANGALORE -560 041
2. MR MOHAMMED SHAFI AHAMED
SINCE DECEASED
REPRESENTED BY
HIS LEGAL REPRESENTATIVES
(a) SMT MUBASHIRA BEGUM
W/O LATE MOHAMMED SHAFI AHMED
AGED 60 YEARS,
(b) SHRI SHOAJIB AHAMED
AGED ABOUT 43 YEARS
S/O (LATE) MOHAMMED SAFI AHAMED
(c) SHRI SUHAB AHMED
AGED ABOUT 40 YEARS
S/O (LATE) MOHAMMED SAFI AHAMED
ALL ARE RESIDING AT
NO.984, MUBASHI,
23RD MAIN, 4TH T BLOCK
2
JAYANAGAR,
BANGALORE -560 041.
(d) SHRI KHUBAIB AHAMED
AGED ABOUT 37 YEARS
S/O (LATE) MOHAMMED SAFI AHAMED
ALL ARE RESIDING AT
NO.984, MUBASHI, 23RD MAIN,
4TH T BLOCK, JAYANAGAR,
BANGALORE -560 041.
...APPELLANTS
(BY SRI Y HARIPRASAD, ADVOCATE)
AND
1 . SHRI M K MIR OBEDULLA
SINCE DECEASED REPRESENTED BY
HIS LEGAL REPRESENTATIVES
a) SMT ZAREEN TAJ
AGED 63 YEARS,
W/O (LATE) M.K.MIR OBEDULLA
b) MIR MOHD. ROZA
AGED ABOUT 41 YEARS
c) MIR MOHD. IQBAL HUSSAIN
AGED ABOUT 39 YEARS
d) MIR MOHD. JAMAL SIDDIQUE
AGED ABOUT 37 YEARS
e) AHMEDI TAYABA BEGUM
AGED ABOUT 43 YEARS
W/O SHAKEEL AHMED
ALL ARE RESIDING AT
3
NO.76/6, RBI COLONY,
2ND MAIN, 3RD BLOCK
JAYANAGAR,
BANGALORE -560 041.
f. AHMADI FATIMA BEGUM
AGED ABOUT 38 YEARS
DEFENDANT NO.1 (a) IS THE WIFE
OF DECEASED
M.K.MIR OBEDULLA
DEFENDANTS 2 TO 4 AND 6 ARE
RESIDING AT FARM HOUSE, SY.NO.12,
KODICHIKKANAHALLI
BEGUR HOBLI,
BANGALORE - 560 083.
...RESPONDENTS
(R1(a), R1(b), R1(c), R1(d), R1(e)-NOTICE SERVED;
VIDE ORDER DATED 16.03.2023, APPEAL AGAINST R1(E) IS
DISMISSED (AS STEPS NOT TAKEN)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 07.01.2009 PASSED IN
O.S.NO.10794/1996 ON THE FILE OF THE XIII ADDL. CITY
CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, DISMISSING
THE SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
4
JUDGMENT
The present appeal is directed against the judgment
and decree passed in O.S.No.10794/1996 dated 07.01.2009,
on the file of XIII Additional City Civil Judge, Mayohall Unit,
Bengaluru.
2. For the sake of convenience, parties are referred to as
plaintiffs and defendant as per their original ranking before
the Trial Court.
3. Brief facts which are utmost necessary for disposal of
the present appeal are as under:
Suit was filed by the plaintiffs at the first instance for
permanent injunction restraining the defendant from
alienating and disposing of the said properties.
4. In respect of immovable properties as mentioned in
schedule I, schedule II, schedule II second site No.2 to the
plaint which are culled out hereunder for ready reference, a
suit came to be filed by plaintiffs.
SCHEDULE -I
All that piece and parcel of the vacant site
marked as Site No.1, in Sy. No.12, situated at
defendants farm land situated at
kodichikanahalli, Bangalore South Taluk and
bounded on the :
East by : Land comprised in Sy.No.11
West by : Remaining land of the
Defendants
North by : Site No.2
South by : Manyagadde
Measuring East to West:60
feet and North to South 40
feet.
Schedule -II
One un-numbered site at Sy.No.12,
Kodichikkanahalli, Bangalore South Taluk,
measuring 60 feet X 40 feeet.
Schedule -II
Second Site No.2
All that piece and parcel of the vacant site
marked as Site No.2, in Sy.No.12, situated at
defendants farm land situated at
Kodichikkanahalli, Bangalore South Taluk and
bounded on the :
East by : Land comprised in Sy.No.11
West by : Remaining land of the
Defendants
North by : Manyagadde (Sand deurs)
South by : Site No.1
5. During pendency of the suit, plaint got amended by the
plaintiff whereby, plaintiff sought for decree of specific
performance of contract directing the defendant to execute
the sale deed in favour of the plaintiff No.1, after receiving
balance consideration of Rs.10,000/-.
6. As per the plaint averments, plaintiffs are the husband
and wife and they entered into an agreement on 06.07.1989,
where under suit property was agreed to be sold by the
defendant for a total consideration of Rs.35,000/-.
Rs.11,000/- was paid by way of two cheques in a sum of
Rs.5,000/- each and Rs.1,000/- in cash towards the sale
consideration and balance consideration is Rs.24,000/-.
7. Defendant also agreed to sell another site in a sum of
Rs.35,000/- within his land in Sy.No.12, situated at
Kodichikkanahalli, Bengaluru South Taluk. Plaintiffs in all
paid sum of Rs.60,000/- towards purchase of two sites. It is
the contention of the plaintiff that sum of Rs.60,000/- paid
by the plaintiff represented the entire sale consideration in
respect of one site and balance sum of Rs.10,000/- was
payable towards the site No.2 as per the agreement.
8. It is further contended by the plaintiffs that the
property owned by the defendant was to be converted for
non agricultural purpose and unless such conversion takes
place, the sale of the sites could not be registered. Therefore,
plaintiffs made repeated demands for taking steps for
conversion of land and sell the sites in favour of the plaintiffs.
However, the defendant went on postponing the conversion
of sites on one pretext or the other. Ultimately, on
17.06.1996, first plaintiff got issued a notice to the defendant
calling upon him to executed and register the sale deed by
fulfilling his obligation under the agreement of sale.
9. Plaintiffs further contended that defendant though
received the notice, failed to comply the callings of notice,
nor replied the legal notice, which constrained the plaintiffs
to file the suit at the first instance for permanent injunction
thereafter, seeking specific performance.
10. Upon service of suit summons, defendant appeared
before the Court through an Advocate and filed written
statement denying the plaint averments in toto.
11. Soon after the plaint got amended, written statement
also got amended.
12. In the amended written statement, defendant denied
the very suit agreement and also receipt of the sale
consideration. Defendant contended that there was no
intention on the part of the defendant to alienate the suit
schedule sites or any other property in favour of the
plaintiffs. Specific contention of the defendant is that the
plaintiffs have concocted the suit agreement and there is no
cause of action to the suit and sought for dismissal of the
suit.
13. The trial Court earlier framed the issues and recasted
the same. Recasted issues read as under:
1. "Whether the plaintiffs prove that they are
entitled for directions to the defendants for
registration of the suit schedule sites in the
name of plaintiff No.1 by paying the balance
consideration of Rs.10,000/- ?
2. Whether the plaintiffs prove that they are
entitled for registration and execution of the
Sale Deed in respect of the schedule
properties by this court?
3. Whether the Plaintiffs are entitled for
Permanent Injunction as sought?
4. What decree or Order?"
14. In order to prove the case of the plaintiffs, first plaintiff
got examined herself as P.W.1 and four witnesses namely;
Mohammad Shafi Ahmed, Basher Ahmed Khan, Mohammed
Dawood Sait and Roofhfza Begum as P.Ws.2 to 5.
15. Plaintiffs relied on twelve documents which were
exhibited and marked as Exs.P.1 to P.12 comprising of
Agreement dated 06.07.1989 as Ex.P.1, Letter addressed to
Canara Bank as Ex.P.2, Statement of Accounts issued by
Canara Bank as Ex.P.3, Sketches and plans as Ex.P.4,
Positive Photographs as Ex.P.5 to P.9, Negatives as Exs.P.5
(a) to P9 (a), Agreement dated 06.07.1989 as Ex.P.10,
Encumbrance Certificates as Ex.P.11 and P.12.
16. During pendency of the suit, defendant died and
therefore, his legal representatives were impleaded in the
suit. One of the legal representative namely; Mrs. Zareena
Taj is examined as D.W.1 and Mir Mohammed Raza is
examined as D.W.2.
17. On behalf of the defendants four documents were
exhibited and marked as Exs.D.1 to 4 comprising of Marks
card as Ex.D.1, Certification of Registration as Ex.D.2,
Decree certificate of Ahamadi Tyaba Begum as Ex.D.3,
Diploma certificate of Mohammed Jamal Siddiqui as Ex.D.4.
18. On conclusion of the recording of the evidence, learned
trial Judge heard the parties in detail. Thereafter, on
cumulative analysis of oral and documentary evidence placed
on record by the parties, learned trial Judge dismissed the
suit of plaintiffs.
19. Being aggrieved by the same, plaintiffs have preferred
the present appeal on the following:
"The Court below committed a grave error in
dismissing the suit.
The Court below has wrong in recording a finding
on Issue Nos.1 and 2 on the negative and holding
that the plaintiff was failed to prove the suit
agreement as well as payment of the advance
amount.
The Court below has wrongly held that the
Appellants were not proved the Sale Agreement,
even though the Respondents admitted in the
written statement that he has executed the Sale
Agreement in favour of the Appellant.
The Judgment and Decree of the Trial Court is
merely based upon the assumption and
presumption.
The Trial Court wrongly held that payment of
consideration amount is not proved and further
erred in giving the finding that amount alleged to
be paid are not tallies with the Bank Account
Extract produced by the Appellant. The Trial Court
wrongly held that the consideration mentioned in
the plaint was not paid, even though the
respondent admitted the receipt of the amount and
contended that the said amounts received as a
loan for educational expenses.
The Trial Court wrongly interpreted the admission
of the Respondent Wife in the cross examination
that at the time of executing the Sale Agreement
financial necessity was there, merely based on the
presumption the Trial court held that financial
necessity is different from financial necessities.
The Trial Court wrongly interpreted the evidence of
P.W.5, who stated that the 1st defendant also
executed the Sale Agreement in her favour also.
The Trial court ought to have taken note that the
respondent is the learned Doctor and the Trial
Court finding that the appellants were relative of
the Respondent and financially well and they
prevailed upon the respondent and by pressure got
executed the Sale Agreement is completely wrong
and against the oral and documentary evidence on
record.
The Trial Court not at all considered the admission
made by the legal representative of the
Respondent in their evidence. The Trial Court not
taken into account the statement of legal
representative of the Respondent that they have
denied the signature in the X.P12 and also the wife
of the Respondent denied the signatures of her
husband in the vakalath filed by her husband
before the Trial court. This aspect also not
considered by the Trial court.
The appellant produced the up-to-date
Encumbrance Certificate for the entire period and
marked as Exhibits. The Encumbrance Certificate
shows NIL Encumbrance. The Trial Court without
considering this aspect wrongly relied on the oral
evidence of the legal representatives of the
respondent that all the sites were sold.
The Trial court miserably failed to take the
admission of the L.Rs. of the respondent that the
property converted and sites are made and also
admitted the photographs, which shows that the
vacant sites formed by the respondent. This aspect
is completely ignored by the Trial Court.
The Trial court wrongly held that the Appellants are
claiming both the Sites 1 and 2 based upon Exhibit
P1 (Sale Agreement). This assumption of the Trial
Court is completely wrong. It is submitted that the
appellant averred in plaint that the respondent
executed Sale Agreement in respect of Site No.1
and in respect of Site No.2, the appellant clearly
said that the respondent and under Oral
Agreement agreed to sell the property. The Trial
Court without considering this aspect by wrong
assumption held that the Appellant claiming both
the sites based upon Exhibit P1 and there is no
reference regarding the Site No.2 in the Exhibit P1
and hence wrongly held that the appellant not
approached the court with clean hands and hence
they are not entitled for specific performance.
The Trial court miserably failed to take note of the
fact that the respondent admitted the execution of
the Sale Deed.
The Trial court ought to have held that the
appellant have entitled for the specific performance
of the agreement.
The Trial Court wrongly held that the decision cited
by the respondent is squarely applicable to this
case and wrongly relied on the citation given by
the respondent counsel.
The Trial court wrongly passed the Judgment and
Decree and same is contrary to the material
evidence available on record.
The Trial Court wrongly appreciated the evidence of
the P.W.1 to P.W.5 and further not considered the
cross examination of the L.Rs. of the respondent in
which they have admitted complete fact.
The Court below is wrong in recording the findings
against the plaintiff on Issue Nos.2, 3 and 4 that
the plaintiff have failed to prove that he is ready
and willing to perform their part of the contract.
The Court below was also wrong in holding that the
plaintiff is not entitled to a Decree for specific
performance."
The Judgment of the Court below is contrary to
procedure known to law and against the
documentary and oral evidence."
20. Reiterating the grounds in the appeal memorandum,
Sri Y. Hariprasad, learned counsel for the appellants
contended that the trial Court has not properly appreciated
the material evidence on record and wrongly dismissed the
suit of the plaintiffs resulting in miscarriage of justice and
sought for allowing the appeal.
21. Further, the oral evidence of P.W.1 vis-à-vis the oral
testimony of D.Ws.1 and 2 would go to show that the original
defendant Sri M.K. Mir Obedalla, being the owner of the land
in Sy.No.12 of Kodichikkanahalli village, Bengaluru South
Taluk, who had agreed to sell two sites which are more fully
described in the schedule-II.
22. The payment of sum of Rs.11,000/- made by the first
plaintiff by way of two cheques and cash in sum of Rs.1000/-
is not disputed by the defendant and the said aspect of the
matter has not been taken proper note of by the learned trial
Judge while passing the impugned judgement, resulting in
miscarriage of justice and sought for allowing the appeal.
23. He further contended that the defence taken by the
defendants is one of total denial and therefore, plaintiff was
constrained to examine Mohammed Shaffi Ahmed as P.W.2,
who is one of the witnesses to Ex.P.1 suit agreement and
cross-examination of P.W.2 did not yield any positive
material so as to disbelieve the case of the plaintiff which has
been ignored by learned trial Judge and dismissed the suit of
the plaintiffs by improper appreciation of material evidence
on record, resulting in miscarriage of justice and sought for
allowing the appeal.
24. Respondents in the above appeal have been served and
remained unrepresented.
25. As such, this Court perused the material on record
meticulously in the light of appeal grounds and the
arguments put forth on behalf of the appellants. On such
perusal of material evidence on record meticulously,
following points would arise for consideration:
1) Whether the appellants have made out a case that
the defendants have entered into an agreement of
sale whereby defendant has agreed to sell suit
schedule II sites?
2) Whether the impugned judgment is suffering from
legal infirmity or perversity and thus calls for
interference?
3) What order?
26. Regarding Point Nos.1 and 2 : In the case on hand,
suit agreement is denied by the defendant. Therefore, the
burden is on the plaintiff to establish the suit agreement
marked at Ex.P.1.
27. According to the plaintiffs, defendant is the maternal
uncle of second plaintiff and he used to avail financial
assistance from the plaintiffs for maintenance of his family
and also to meet the education expenses of his children.
28. Plaintiffs further stated in their evidence that the
defendant being the absolute owner of the suit property,
agreed to sell two sites and in respect of both the sites. Only
Rs.10,000/- is the balance consideration as already
Rs.60,000/- is paid by the plaintiffs by way of two cheques
and cash. Despite the repeated demands, defendant failed to
execute the sale deed. Accordingly, a legal notice was
caused to the defendant. Since there was no compliance to
the notice, the plaintiffs were constrained to file the suit.
29. P.W.1 is the first plaintiff and she has reiterated the
contents of the plaint and amended plaint and got marked
the suit agreement at Ex.P.1 and letter addressed to Canara
Bank at Ex.P.2 and statement of accounts issued by the
Canara Bank at Ex.P.3, sketches and plans at Ex.P.4.
30. In her cross-examination, she admits that she is
residing 10 kilometers away from the suit property and she
was working as supervisor in the Income Tax department
and plaintiff No.1 was an employee in the Reserve Bank of
India and later on she has started practicing as an Advocate.
31. It is pertinent to note that P.W.2 died after his
examination as P.W.2 in the case. P.W.1 has stated that she
has not obtained any receipts for payments made in cash.
She has also answered that defendant was borrowing money
from the plaintiffs for the purpose of education of his three
sons and two daughters and she does not remember that
when the defendant promised to sell the second site in the
schedule - II to her.
32. P.W.2 who is one of the witnesses to Ex.P.1, deposed
before the Court about the payment of money to the
defendant by way of cheques and also in cash. This witness
admits that several persons were present when the
agreement was executed by the defendant.
33. In his cross-examination, he also admits that he used
to pay the money to the defendant whenever he was in need
and he has no voucher for all the payments made by him nor
any receipts. He admits that another agreement was
executed in favour of his sister-in-law and sister and they
have not filed any suits against the defendant. He further
admitted that defendant has not executed any sale deeds in
favour of his sister-in-law and sister.
34. He denied the suggestion that taking advantage of
cordial relationship that defendant had with plaintiffs, suit
agreement came to be concocted.
35. Basheer Ahmed Khan and Mohammed Dawood sait are
two more witnesses who have been examined on behalf of
the plaintiffs. Among them, P.W.3 states that he has signed
two agreements of sale on 6th and 9th of July, 1999.
Whereas, on perusal of Exs.P.1 and P.10 which are the sale
agreements, P.W.3 and P.W.4 have not been cited as
witnesses to the said agreement. On the contrary, witnesses
found in Exs.P.1 and P.10 are Smt. Zareena Taj and Sri
Mohammed Shafi Ahmed.
36. Therefore the evidence of P.Ws.3 and 4 did not
improve the case of the plaintiffs any further.
37. Roofhfza Begum is examined as P.W.5. She has signed
Ex.P.10 in all pages. She is the purchaser under Ex.P.10. In
her examination-in-chief she said that she also entered into
an agreement of sale with defendant, but she has not filed
any suit against the defendant.
38. In her cross-examination she has stated that she was
not present at the time of execution of the agreement of sale
in favour of the plaintiffs and she has not taken any legal
action against the defendant.
39. She also admits that she has entrusted the task of
purchase of stamp paper and getting agreement in her
favour, to the second plaintiff who is her brother.
40. P.W.2 having died, who being the brother of P.W.5, did
not speak anything about the positive action taken against
Ex.P.10 agreement. As such, Evidence of P.W.5 did not
improve the case of the plaintiff any further.
41. As against the material evidence placed on record by
the plaintiff, first legal heir of the defendant by name Zareen
Taj is examined as D.W.1 who has reiterated the contents of
the written statement in her examination in chief.
42. In the cross-examination of D.W.1, nowhere she
admits that there was financial necessity in her family in the
year 1999. She admits that the defendant was working as
Dentist. She denied that her husband agreed to sell the suit
property in favour of the plaintiffs and therefore, Ex.P.1 came
to be executed. She denied that on 15.08.1990 her husband
agreed to sell the site No.1 on oral agreement of Rs.35,000/-
43. Sri Mir Mohammed Raza, who is son of the defendant,
is examined as D.W.2, who also maintains that there was no
necessity to sell the property in favour of the plaintiffs and
plaintiffs have concocted the suit agreement.
44. In his cross-examination, he admits that he was not
present in the house of the plaintiffs when the alleged
transaction took place. He denied the suggestion that he
was not knowing the details personally about the transaction
that took place in the house of the plaintiffs. He has
answered specifically that the suit agreement has been
obtained by misrepresentation. But, his father did not file
any complaint. He admits that there was a legal notice
issued on 17.06.1996 by the plaintiffs to the defendant, but
denied that his father failed to execute the sale deed in
favour of the plaintiffs.
45. He admits the signature of his father on Ex.P.10. But
he denies the signature of his father on Ex.P.1. He admits
that he is acquainted with Roofhfza Begum and Ex.P.10 is
executed in favour of Roofhfza Begum.
46. The above evidence on record is sought to be re-
appreciated by the learned counsel for the appellants in this
appeal for allowing the appeal.
47. On careful re-appreciation of the above evidence, it is
seen that Ex.P.1 is not proved by the plaintiffs by placing
cogent and convincing evidence on record. Nothing
prevented the plaintiffs to examine one more witness to
Ex.P.1.
48. It is the case of the defendant that there was a
financial necessity for the defendant, therefore, he has taken
loan from the plaintiffs. Taking advantage of the cordial
relationship that the plaintiffs had with the defendant, they
concocted Ex.P.1. As such plaintiffs were required to prove
Ex.P.1 by placing sufficient evidence.
49. In respect of second site in schedule - II of the suit
property, there is not even an agreement. The plaintiffs
wanted to rely upon Ex.P.10 to show that the defendant has
not only executed the suit agreement in favour of the
plaintiffs, but also in favour of P.W.5 Roofhfza Begum.
50. Roofhfza Begum however clearly admitted in her cross-
examination that she has not taken any action against the
defendant, nor filed any suit in respect of Ex.P.10.
51. Admittedly, P.W.2 was working as an Advocate. It is
the specific contention of the defendant that P.W.2 who was
earlier working in reserve Bank of India and later started
practicing, has taken advantage of the cordial relationship
between plaintiffs and defendant and got concocted Exs.P.1
and P.10.
52. The materials on record is hardly sufficient in view of
the admissions made by the witnesses on behalf of the
plaintiffs especially P.Ws.3 and 4 who claim that they are
witnesses to Exs.P.1 and P.10, but they have not been shown
as witnesses to Exs.P.1 and P.10.
53. Further, one Zareen Taj is the witness who has
subscribed her signature on Ex.P.1 apart from P.W.2 as
witness. She has not been examined on behalf of the
plaintiffs for the reasons best known to the plaintiffs.
54. Further, first plaintiff being the employee of the Income
Tax Department, could not have entered into an agreement
without disclosing the same to her employer nor obtained
any necessary permission in writing especially for investment
to be made in respect of immovable properties.
55. In the absence of any cogent and convincing evidence
placed on record, learned Trial Judge has come to the
conclusion that the plaintiffs have failed to prove that the
defendant has agreed to sell the suit sites as is mentioned in
schedule - II by virtue of Ex.P.1 and by virtue of oral
agreement, the plaintiffs have entered into with the
defendant. Legal notice said to have been issued on
17.06.1996 is not even produced by the plaintiffs and got
marked as an exhibit in the case.
56. Under such circumstances, the learned trial Judge has
rightly dismissed the suit of the plaintiffs by proper
appreciation of the material on record.
57. This court even after re-appreciation of material
evidence on record does not find any legal infirmity or
perversity in recording such a finding by the learned trial
Judge. Material evidence on record are hardly sufficient to
establish that the defendant has intention to sell the suit
property in favour of the plaintiff and therefore, he executed
an agreement vide Ex.P.1, whereby he was bound to convey
the suit sites as is mentioned in schedule II of the plaint to
the plaintiffs.
Accordingly, in view of the foregoing discussion, point
Nos.1 and 2 are answered in the negative.
58. Regarding Point No.3 : In view of findings on point
Nos.1 and 2, this Court pass the following order:
ORDER
Appeal is meritless and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE
MR
