Karnataka High Court
S M Mohammad vs Mohammad Haris on 15 April, 2024
1 RSA NO.2502 OF 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
R.S.A.NO.2502 OF 2008
BETWEEN:
S M MOHAMMAD
AGED ABOUT 54 YEARS
SINCE DEAD BY LRS
1a) SMT. P.M.SULAILA
W/O S.M.MOHAMMAD
1b) SRI. RIYAZ
S/O S.M.MOHAMMAD
1c) KUM. RIYANA
D/O S.M.MOHAMMAD
APPELLANT 1a), b) AND c) ARE RESIDING AT
MUBARAK NAGAR, SAMPAGE VILLAGE AND POST,
SULLIA TALUK, D.K - 574 238
......APPELLANTS
(BY SRI. GIRIDHAR H, ADVOCATE FOR A1[a TO c])
AND:
1 . MOHAMMAD HARIS
S/O LATE G HAMEED
AGED ABOUT 40 YEARS
R/O KADABA VILLAGE
PUTTUR TALUK
DAKSHINA KANNADA DIST - 574 234
2 . ANSARI KADAKKAN KADAVATH
S/O S V ABDULLA HAJI
AGED ABOUT 35 YEARS
R/O MADAI PAYANGADI
KANNUR TALUK AND DISTRICT
KERALA STATE - 574 234
RESPONDENTS
2 RSA NO.2502 OF 2008
(BY SRI. SHAKEER ABBASM, ADVOCATE FOR R2;
SRI. HARISH BHANDARY T, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC
PRAYING TO a) SET ASIDE THE JUDGMENT AND DECREE
DATED 21.04.2007 PASSED IN MISC. CASE NO.6/2005 BY
THE PRINCIPAL C.J.(JR.DN.) AT PUTTUR AND JUDGMENT AND
DECREE DATED 05.12.2008 PASSED IN R.A.NO.54/2007 BY
PRINCIPAL CIVIL JUDGE (SR. DN.) AT PUTTUR, D.K.
DISTRICT; b) FOR SUCH OTHER AND FURTHER RELIEFS. THE
APPELLANT NOT CHALLENGED AGAINST THE COST IMPOSED
BY THE TRIAL COURT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular Second Appeal is by the objector/
petitioner challenging the impugned judgment and order
passed by the trial Court and the First Appellate Court
dismissing the petition filed by him under Order 21 Rule 97
C.P.C in Misc.Case.No.6/2005 in O.S.No.139/2003 which
came to be confirmed in R.A.No.54/2007.
2. One B. Mohammed Harris (hereinafter referred to
as 'plaintiff') filed a suit in O.S.No.139/2003 against one
Bavuvalappil Chalil Ashraf (hereinafter referred to as
defendant No.1) and Ansari Kadakkan Kadavath (hereinafter
referred to as defendant No.2) for a declaration that he is
the absolute owner of the suit schedule property measuring
1 acre 90 cents including a residential premises therein and
for relief of permanent injunction, restraining the defendants
from interfering with his possession and enjoyment thereof.
3. Plaintiff claim that he is the owner of suit schedule
property. The other half belongs to his brother B Mohammed
Ali, who is in Bengaluru and he is not in possession of suit
schedule property. Plaintiff is in possession and enjoyment of
suit schedule property and residing in the premises situated
in the suit schedule property. Defendant No.1 was business
partner of plaintiff in the year 2000 and they were doing
international trading of import and export of fresh fruits and
vegetables. Their trading office is situated at Bengaluru.
However, the business suffered loss and defendant No.1 put
the entire blame on the plaintiff and demanded Rs.22 lakhs.
During 2002, defendant No.1 took three blank cheques from
plaintiff with a view to recover money. He also obtained a
General Power of Attorney dated 11.06.2002 from the
plaintiff with reference to suit schedule property by
exercising police force. Hence it is not valid.
3.1 Vide letter dated 29.10.2003, plaintiff cancelled
the said General Power of Attorney. However, on
26.06.2002, based on the GPA, defendant No.1 executed
registered sale deed, conveying all the rights of plaintiff in
suit schedule property in favour of defendant No.2. Hence,
the said sale deed is not binding on the plaintiff. The sale
deed is void ab initio. Defendant No.2 applied for change of
Khatha and it was resisted by plaintiff. However, his
objections were overruled on the ground that defendant No.2
is holding a registered document. Hence, to clear the clog on
his title, plaintiff is filing the suit. Plaintiff continued to be in
possession of the said property.
3.2 On 19.08.2003, plaintiff was forcefully taken to
the police station and his signatures were taken to several
papers. Any documents created with them would not be
binding on the plaintiff. Based on the sale deed, defendant
Nos.1 and 2 started demanding possession of suit schedule
property with the help of local police and hence the suit.
4. However, the suit ended in compromise between
the plaintiff and defendant Nos.1 and 2. Briefly stated the
terms of the compromise are as under:
"i) Defendant number two permitted the plaintiff to
continue to reside in the premises in suit schedule
property till 31.12.2004( End of the year)
ii) During this period, plaintiff shall not allow any
outsider to stay in the premises or create any
tenancy, right or title etc.
iii) Plaintiff agreed to surrender possession of the
building in good condition to defendant No.2 or
before 31.12.2004 without creating any
obstruction.
iv) Plaintiff admit ownership of defendant No.2 on
the suit schedule property as per the sale deed
No.516/02-03.
v) Plaintiff withdrew all the claims and allegations
made in the plaint. Defendant No.2 agreed not to
disturb the peaceful occupation of the premises by
plaintiff up to 31.12.2004.
vi) The parties agreed to pass a decree for
recovery of possession in favour of defendant No.2,
directing the plaintiff to surrender vacant
possession of the premises in suit schedule
property and not to create any obstruction or
resistance to the peaceful delivery of property and
the premises therein on 31.12.2004, either by
himself or through any other person under him.
vii) It is agreed that the plaintiff shall discharge
entire liability due to the defendant No.1 as agreed
through cheque bearing number 941465 for Rs.10
lakhs, payable on 31.12.2004.
viii) Suit against defendant No.1 may be dismissed
and a decree be passed in favour of defendant
No.2 for recovery of possession as claimed in the
counterclaim enforceable on or after 31.12.2004
without cost."
5. Though the suit ended in compromise, in fact, it is
a decree passed in favour of defendant No.2. The only relief
which the plaintiff got is to remain in possession of the
residential premises situated in the suit schedule property till
31.12.2004 and thereafter handover possession to defendant
No.2. On the failure of plaintiff to handover possession of suit
schedule property to defendant No.2, he sued out execution
in Ex.P.No.3/2005 (in O.S.139/2003) against the plaintiff
and the trial Court issued delivery warrant. However, when
the Ameen went to the spot to deliver possession, it was
resisted.
6. One S.M.Mohammed (hereinafter referred to as
'objector') filed a petition under Order 21 Rule 97 r/w
Section 151 C.P.C that on 11.04.2005, claiming that plaintiff
has executed a sale agreement dated 15.10.1999 to sell suit
schedule property, including the residential premises for a
sum of Rs.45,000/- and he has paid advance of Rs.40,000/-.
He is put in possession of suit schedule property by the
plaintiff. As per the terms of the agreement, plaintiff is liable
to execute registered sale deed on or before 15.10.2005 by
receiving the balance consideration. The Objector has alleged
that colluding with defendant No.2, plaintiff has obtained a
decree for possession in favour of defendant No.2 and based
on it, Ex.P.No.3/2005 is filed and attempt is being made to
dispossess him and sought for dismissal of the execution
petition.
7. Before the Execution Court, enquiry was held
wherein the Objector has examined himself as PW-1 and two
witnesses as PW-2 and 3. He got marked Ex.P1 and 2.
8. The PA holder of defendant No.2 is examined as
RW-1 and Ex.R1 to 15 are marked.
9. Including the Court Ameen, 4 witnesses are
examined as Court witnesses i.e. CWs-1 to 4.
10. Vide judgment and order dated 21.04.2007, the
trial Court dismissed the petition filed by the Objector.
11. Aggrieved by the same, the Objector filed Regular
Appeal No.54/2007 before the First Appellate Court.
However, vide judgment and order dated 05.12.2008, the
First Appellate Court dismissed the appeal and thereby
confirmed the order passed by the Execution Court.
12. Aggrieved by the same, the Objector is before this
Court, contending that the impugned judgments and orders
are illegal, contrary to the well-founded principles of law. The
Courts below have not appreciated the contentions raised by
the Objector and flaws in the case of plaintiff and defendant
No.2. The Courts below have failed to appreciate the fact
that defendant No.2 has failed to prove his case. They have
not properly appreciated the contention of Objector that he is
in lawful possession and enjoyment of suit schedule property
and it cannot be disturbed by a collusive decree passed in
favour of defendant No.2. The Courts below did not
appreciate the fact that the Executing Court can re-open the
case in the original suit and try the matter afresh and decide
on the case of Objector and the contesting parties after
allowing the application filed by the Objector. Viewed from
any angle, the impugned judgments and orders passed by
the Executing Court and First Appellate Court are not
sustainable and pray to set aside the same.
13. On 19.01.2010, this appeal is admitted on the
following substantial question of law:
"Whether Ex.P1 which was an agreement of sale
which acknowledged possession of appellant
could be marked as Ex.P1 and thereafter its
admissibility could be questioned, in the light of
the judgment of Supreme Court in Javer Chand
and others Vs. Pukhraj Surana reported in AIR
1961 SC 1655, notwithstanding, the later
judgment of the Supreme Court in case of
Avinash Kumar Chauhan Vs. Vijay Krishna
Mishra, reported in (2009) 2 SCC 532 ?".
14. Heard elaborate arguments of learned counsel for
all the parties and perused the record.
15. The facts emerging from the material placed on
record are that defendant No.1 executed a sale deed in
respect of suit schedule property in favour of defendant No.2
in his capacity as the Power of Attorney holder of plaintiff.
Disputing the same plaintiff filed suit in O.S.No.139/2003
seeking declaration that he is the absolute owner in
possession and enjoyment of suit schedule property. He
sought for permanent injunction, restraining the defendants
from disposing him or interfering with his possession.
However, in the compromise entered into before the Lok
Adalath plaintiff admitted the ownership of defendant No.2
over suit schedule property. So far as the residential
premises in the suit schedule property is concerned plaintiff
was permitted to remain in possession till 31.12.2004 and
thereafter, he is required to handover possession to
defendant No.2. When plaintiff failed to handover possession
of the residential premises in the suit schedule property,
defendant No.2 filed the execution petition and sought for
recovery of the possession of residential premises and
secured delivery warrant. When the Court Ameen went to
the spot to execute the delivery warrant, it was resisted.
16. The Objector has filed petition under Order 21
Rule 97 C.P.C claiming to be in possession of the suit
schedule property including the residential premises through
a sale agreement dated 15.10.1999 executed by plaintiff in
his favour and that he has been put in possession of the
same. Plaintiff has denied that he has executed the sale
agreement dated 15.10.1999, agreeing to sell the suit
schedule property including the residential premises to the
Objector. However, he claimed that he has put the Objector
in possession of only the residential premises situated in the
suit schedule property by permissive possession. Therefore,
heavy burden is on the Objector to prove that plaintiff has
executed sale agreement dated 15.10.1999 and he was put
in possession of the entire suit schedule property by virtue of
the said agreement and as on 08.04.2005, he was in
possession of the same and legally resisted the execution of
delivery warrant and handing over possession of residential
premises to defendant No.2.
17. CW-1 Babu Gowda is the Ameen, who went to
deliver possession of the residential premises in favour of
defendant No.2. He has specifically stated that from
defendant No.2 he came to know that the lady present in the
premises is the wife of plaintiff. However, in the residential
premises plaintiff was not present. When they went to the
residential premises and enquired and informed her about
the delivery warrant and requested her to handover the
possession, the said lady closed the door from inside. He has
denied that Objector S.M. Mohammed and his wife were
present in the residential premises and objected.
18. CW-2 P. Abdul Rehman is an attesting witness to
the report dated 08.04.2005 at Ex.P2 submitted by the
Ameen regarding the non-execution of delivery warrant. He
has specifically deposed that he signed this document at the
premises of plaintiff Mohammed Harris. At that time, along
with the Ameen, defendant No.2 Ansari Kadakkan Kadavath
was present. He has specifically deposed that since he was
knowing plaintiff - Mohammed Harris, he went there and
inside the premises, the wife and child of plaintiff -
Mohammed Harris were present. He has specifically deposed
that he knew the wife of plaintiff - Mohammed Harris and as
such he was able to identify the woman who was present
inside the premises as the wife of Mohammed Harris. At that
time, Mohammed Harris was not present. He has denied the
suggestion that from 15.10.1999, the Objector is residing at
Kodimbala. When suggested that at the residential premises
in question Objector and his wife were present, he has stated
that he did not see them there. The evidence of this witness
prove the fact that he was knowing plaintiff Mohammed
Harris and his wife from long time and at the time when
Court Ameen went to the spot to execute delivery warrant,
the wife and child of plaintiff Mohammed Harris were present
in the premises and the Objector and his wife were not
present in the said premises. The testimony of this witness
that he knew plaintiff Mohammed Harris and his family
members since long time and had seen them residing in the
schedule premises is not disputed by the Objector.
19. CW-4 P.P. Ummer Kutti is also a witness to Ex.P2.
He has specifically stated that he signed the said document
at Kodimbala and Razak, Abdul Rahman and Ansari have also
signed this document at the time when the Court Ameen was
brought to the said place by defendant No.2. He has
specifically deposed that the wife of plaintiff Mohammed
Harris was present in the premises and the Court Ameen
spoke to her and she refused to handover possession of
premises to the Court Ameen and she spoke to the Ameen
about 5-10 minutes. His evidence reveal that he was
knowing plaintiff Mohammed Harris before and he has denied
the suggestion that Objector S.M.Mohammed and his wife
were present in the premises and they refused to handover
vacant possession to the Court Ameen. During his cross-
examination on behalf of defendant No.2, he has specifically
deposed that when he signed Ex.P2 at the spot, Razak (CW-
3), Abdul Rahman (CW-2) and Ansari (defendant No.2) were
present. He has specifically deposed that neither the
Objector nor his wife were present at this spot when they
went there along with the Court Ameen. He has also stated
that Razak (CW-3) has signed Ex.P2 at the spot and not at
the shop.
20. CW-3 Razak is another attesting witness to the
report at Ex.P2. Though he has admitted of having signed
Ex.P2, he has claimed that he signed the said document at
the instance of Court Ameen at his shop. He has deposed
that at the relevant point of time, Objector S.M. Mohammed
was residing in premises situated in the suit schedule
property. However, his evidence reveal that Objector S.M
Mohammed used to sell Areca nuts to him and other than
this, he had no personal knowledge about his residence. In
the light of testimony of CW-1, 2 and 4 and the manner in
which he has given evidence indicate that to help the
Objector CW-3 is falsely stating that in the premises situated
in the schedule property Objector S.M. Mohammed was
residing.
21. The Objector is examined as PW-1. During the
course of his evidence he has deposed that a sale agreement
came into existence with regard to suit schedule property
between him and plaintiff as per Ex.P1 and he was in
possession of the same. During his cross- examination, the
plaintiff has disputed the fact of sale agreement having come
into existence between him and the Objector and a
suggestion is made that he was only put in possession of the
residential premises and it is a permissive possession and
misusing the said situation, he is trying to knock off the
entire suit schedule property. During his cross-examination,
it is elicited that he and plaintiff are co-brothers - their wives
being real sisters.
22. During his cross-examination made on behalf of
defendant No.2, PW-1, i.e the Objector has admitted that
from Arantodu , he contested the Taluk Panchayat election
and the certificate at Ex.R1 issued by Sampaje Gram
Panchayat is correct. He has conceded that he has casted his
vote at Sampaje village and the address of himself, his wife,
children and mother is Sampaje Village and their voters list
is at Sampaje. It is pertinent to note that though, as per
Ex.P1 the agreement of sale was allegedly executed on
15.10.1999 and substantial portion of sale consideration was
paid, it is stated that the Sale deed is required to be
executed on before 15.10.2005. No reasons are forthcoming
as to why such a long period was fixed for executing the sale
deed. In this regard, the Objector has deposed that since
plaintiff believe in astrology, on the advise of the Astrologer
the date for execution is fixed as on or before 15.10.2005. In
fact, PW-1 has deposed that two months after the sale
agreement, he requested plaintiff to execute the sale deed
and once again he gave the same reason. Admittedly, the
Objector has not chosen to file any suit, seeking enforcement
of the sale agreement.
23. PW-2 Ganapathy Bhatt is an attesting witness to
Ex.P1. He has deposed that on the date of the said
agreement, the objector was put in possession of the suit
Schedule property. During his cross-examination on behalf of
defendant No.2, he has deposed that he came to know the
Objector on the date of agreement, but he knows the
plaintiff since childhood. While PW-1 has deposed that the
sale agreement was prepared at the typing pool, PW-2 has
stated that when they went to the spot, the agreement was
not yet ready and at around 11-00 a.m, it was made ready.
He has deposed that all have signed to Ex.P1 in the same
pen, which is not the case on hand.
24. PW-3 Cerial Castra is also a witness to Ex.P1. He
has also deposed regarding the execution of sale agreement
at Ex.P1 and that Objector was handed over possession of
the suit schedule property along with the residential
premises.
25. RW-1 Abdul Majeed K.E.N is the Power of
Attorney Holder of defendant No.2. He has deposed with
regard to the previous transaction based on which
O.S.No.139/2003 was filed and it ended in compromise and
filing of execution petition. His evidence is supported by the
Court proceedings. His evidence also reveal the fact that at
the time when the Court Ameen went to the spot to issue
delivery warrant, plaintiff was not present, but his wife was
present and she was identified by defendant No.2. He has
denied the suggestion that she was not present at this spot.
He has also denied that the Objector and his wife are
residing in suit schedule property.
26. In the light of dispute by plaintiff that he has
executed such an agreement in favour of Objector and the
evidence placed on record to show that the Objector is a
resident of Mandadka premises of Sampaje villege, Sulya
Taluk, and he has contested election from the Sampaje Gram
Panchayath, both the execution court as well as the First
Appellate court have come to a correct conclusion that the
Objector was never in possession of the Suit schedule
property, including the residential premises and only at the
instance of plaintiff to prevent the execution petition, he has
filed the false petition.
27. PW-2 has deposed that the sale agreement at
Ex.P1 is signed by all in the same pen, whereas in fact they
are in different ink. This fact itself goes to show that it is not
prepared on the date reflected in the document, but it has
come into existence subsequently.
28. In the plaint, plaintiff has not pleaded that he has
put the Objector in possession of the residential premises in
the suit schedule property and it is a permissive possession.
Throughout the plaint has claimed in unequivocal terms that
he is in possession and enjoyment of the entire suit schedule
property, including the residential premises. There was no
impediment for him to plead that he has put the objector in
possession of the residential premises and it is permissive
possession. This itself falsifies the claim of plaintiff that the
Objector is in possession of the residential premises and it is
a permissive possession. The explanation of the Objector
that on account of plaintiff's belief in astrology, he did not
choose to execute the sale deed is also not convincing,
especially in the light of the testimony of Objector/PW-1 that
immediately after two months of the sale agreement, he
requested the plaintiff to execute regular sale. Moreover, the
fact that the objector has not taken any steps to enforce the
sale agreement is also a negative aspect. As observed by the
First Appellate Court, being Muslims, both parties does not
believe in astrology. The fact that the Astrologer has advised
not to execute the Sale deed for about five years is also not
forthcoming in the agreement. As rightly observed by the
First Appellate Court, the objector and plaintiff have put forth
their contentions as though they are totally strangers.
Whereas in fact, they are co-brothers- their wives being real
sisters.
29. It is pertinent to note that CW-1 to 4 who are the
Court Ameen and witnesses to the execution of delivery
warrant have been examined before the Court at the
instance of Objector. Despite their extensive cross-
examination, the objector has failed to establish that at the
time when the Court Ameen went to the spot to execute the
delivery warranty, the Objector and his wife were present
and resisted the same. On the other hand, the evidence
prove the fact that the wife of plaintiff was present in the
residential premises situated in the suit schedule property
and resisted the execution and thereafter, the Objector is
being set up to file the petition. Though the Objector has
managed to get CW-3 Razak turn hostile and claim that he
signed the report of the Court Ameen at his shop, the
evidence of other three witnesses establish the fact that CW-
3 Razak was also present at the spot and signed the report.
The evidence of CW-1 to 4 is not helpful to the case of
Objector.
30. While rejecting the petition filed under Order 21
Rule 97 C.P.C filed by the Objector, the Executing Court has
held that since Ex.P1 is an unregistered document, it will not
affect the properties covered under the same and that it will
not create any right in favour of the Objector in respect of
the schedule property and therefore, the Objector has no
right to obstruct the execution and issue of delivery warrant
and accordingly rejected it.
31. Now coming to the substantial question of law
framed by this Court at the admission of appeal. In this case,
the sale agreement relied upon by the Objector is
unregistered. It is marked without objection by the other
side. In Javer chand, the trial Court held that since penalty
is paid and the document is marked, Section 36 comes into
play and disputed documents cannot be rejected and
excluded from evidence. However, the High Court was of the
opinion that inspite of payment of duty and penalty, the
document could not be admitted in evidence. However, the
Hon'ble Supreme Court held that in the light of Section 36 of
the Stamp Act, when instrument is admitted in evidence, the
same cannot be called in question at any stage of the same
suit or proceedings except as provided under Section 61 of
C.P.C. When the Court rightly or wrongly decided to admit
the document in evidence, so far as the parties are
concerned, the matter is closed. It is not open to the trial
Court or to a Court of appeal or revision to go behind that
order and review or revise it. In the present case, the
unregistered sale agreement which is not adequately
stamped is admitted in evidence and therefore now it cannot
be treated as non-est.
32. However, in Avinash Kumar Chauhan, the
objection for admission of the document was raised at the
initial stage and the trial Court ruled and directed the plaintiff
to pay duty and penalty. It was upheld by the High Court and
the Hon'ble Supreme Court refused to interfere. It was a
stage before the marking of documents and as such the said
decision is not applicable to the present case.
33. However, despite the fact that the document in
question is admissible in evidence, the Objector has failed to
prove the same. On the other hand, the evidence led by
defendant No.2, who is the decree holder and who has sued
out execution for recovery of the residential premises from
the possession of plaintiff as per the compromise decree, has
established that Ex.P1 is a concocted document and objector
was never in possession of the schedule property, whether
the immovable property or the residential premises situated
there in and he never resisted the delivery of possession and
on the other hand, it is the plaintiff who has set up the
Objector to protract the proceedings. In the circumstances,
though the substantial question of law is answered in the
Negative, on facts having failed to prove his lawful
possession and enjoyment over the suit schedule property,
the Objector has no right to resist the delivery of possession
in favour of defendant No.2. In the result, the appeal filed by
him challenging the impugned judgment and order of the
Execution Court and the First Appellate Court fails and
accordingly, the following:
ORDER
(i) The Regular Second Appeal filed by the
Objector is dismissed.
(ii) The impugned judgment and order dated
21.04.2007 in Misc.Case.No.6/2005
(Ex.P.No.3/2005) on the file of Prl.Civil
Judge (Jr.Dn.), Puttur of the Executing
Court and that of the First Appellate Court
dated 05.12.2008 in R.A.No.54/2007on the
file of Prl.Civil Judge (Sr.Dn.), Puttur D.K,
are hereby confirmed.
(iii) The Registry is directed to send back the
trial Court as well as the First Appellate
Court records along with the copy of this
judgment forthwith.
Sd/-
JUDGE
RR
