Karnataka High Court
The Dargah Hazrath Kaspeer vs Smt. Syedani Bee on 10 September, 2024
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WP No. 5228 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No.5228 OF 2021 (GM-PP)
BETWEEN:
THE DARGAH HAZRATH KASPEER,
DARGAH, SUNNI,
ALBERT VICTOR ROAD,
CHAMARAJPET,
BENGALURU-560018.
BY ITS SECRETARY
MANAGING COMMITTEE OF DARAGH
...PETITIONER
(BY SRI MALIPATIL P. S., ADVOCATE)
AND:
1. SMT. SYEDANI BEE,
W/O LATE HABEEBULLA KHAN,
Digitally AGED ABOUT 65 YEARS,
signed by
VALLI R/AT NEW No.298/3,
MARIMUTHU OLD No.298/1, ALBERT VICTOR ROAD,
Location: CHAMARAJPET,
High Court of BENGALURU-560018.
Karnataka
2. THE COMPETENT OFFICER,
UNDER KPP (EVICTION OF UNAUTHORIZED
OCCUPANTS ACT) AND CEO OF
THE KARNATAKA STATE BOARD OF WAKF,
No.6 CUNNINGHAM ROAD,
BENGALURU-560052.
...RESPONDENTS
(BY SMT. VIJAYA N. ARADHYA, ADVOCATE FOR R1;
SMT. SWATHI ASHOK, ADVOCATE FOR R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 12.06.2020 PASSED IN MA
No.26/2017 ON THE FILE OF THE VI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-11) VIDE
ANNEXURE-K AND RESTORE THE ORDER OF EVICTION PASSED
BY THE R-2 DATED 28.7.2017 VIDE ANNEXURE-J. DIRECT THE
R-1 TO VACATE AND HAND OVER THE VACANT POSSESSION
OF WAKF PROPERTY TO THE PETITIONER.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. ORDER
Heard learned counsel Sri P.S. Malipatil for the
petitioner, learned counsel Smt. Vijaya N. Aradhya for
respondent No.1 and learned counsel Smt. Swathi Ashok
for respondent No.2.
2. The instant petition is challenging the order dated
12.06.2020 in M.A.No.26/2017 by the Court of VI
Additional City Civil and Sessions Judge, Bengaluru.
3. The petitioner claiming to be the owner of residential
premises No.10 and property bearing No.298/3 situated at
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I Main Road, Chamarajpet, Bengaluru, measuring East-
West 32' and North-South 32' filed a petition under
Sections 5(1) and 7(1) of the Karnataka Public Premises
(Eviction of Unauthorised Occupants) Act, 1974 [for short
'Act of 1974'].
4. The petitioner claims right in the properties in
question based on the notification dated 07.06.1965.
Basing the notification, properties are claimed as wakf
properties.
5. Respondent No.1 filed objections, disputing ownership
to the property in question. Respondent No.1 specifically
contended that she is the owner of the property bearing
Municipal new No.298/3 (old No.298/1) comprising of
land, one terraced building and a small tiled building with
construction measuring 4.84 Sq. mtrs., measuring East-
West 35' and North-South 30'. Respondent No.1
contended that the property claimed by the petitioner and
the property owned by respondent No.1 are different.
Respondent No.1 claimed ownership through a registered
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Gift Deed dated 03.05.1966 and contended that she is in
possession and enjoyment of the said property. The
competent authority passed the order dated 28.07.2017
directing respondent No.1 to vacate the premises within
45 days.
6. Respondent No.1 preferred an appeal in
M.A.No.26/2017. The Civil Court by order dated
12.06.2020 held that the property in question i.e. property
No.298/3 absolutely belongs to respondent No.1 and her
brother. There is no document to establish that property
No.298/3 is a wakf property. The order of the competent
authority was set aside.
7. Sri. P.S. Malipatil, learned counsel for the petitioner
submits that the property in question was notified as wakf
property under notification dated 07.06.1965. By referring
to earlier writ petitions, learned counsel contends that the
petitioner is declared as owner of the property bearing
No.298/3. The competent authority on the basis of the
said orders was justified in ordering eviction of respondent
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No.1. The impugned order by the Civil Court is without
taking into consideration that the decree in
O.S.No.1958/1989 is against defendant Nos.1 to 6 therein,
the appellant was defendant No.7. It is submitted that
decree in O.S. No.1958/1989 is not binding on the
appellant.
8. Per contra, learned counsel for respondent No.1
submits that the dispute is regarding identification of the
property. Respondent No.1 is the absolute owner of the
property bearing No.298/3 through registered Gift Deed
dated 03.05.1966. She is in possession and enjoyment of
the said property throughout. Respondent No.1 preferred
O.S.No.1958/1989 by specifically pleading that plaintiffs
are the absolute owners of premises bearing No.298/3,
the petitioner was defendant No.7 in the said suit.
Defendant No.7 though appeared through an advocate
has not filed any objections, thereby accepted the case of
respondent No.1/plaintiff that she is the owner of the
property bearing No.298/3. The Trial Court after
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considering the evidence on record has held that the
petitioner has lawful title over the suit schedule property
i.e. property bearing No.298/3 through registered Gift
Deed dated 03.05.1966. The said finding is not challenged
and reached finality.
9. Considered the submissions of learned counsel for
the parties and perused the writ papers.
10. The petitioner is claiming ownership of residential
premises No.10 and property No.298/3. Respondent No.1
is contending that she is the absolute owner of the
property bearing Municipal New No.298/3 (Old No.298/1).
It is the contention of respondent No.1 that the property
owned by the petitioner is premises No.298. It is
contended that both properties are different. For
convenience, both properties are referred to as Schedule-A
and Schedule-B properties.
" Schedule 'A'
(Property absolutely belonging to the respondent
and his sisters)
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The entire premises bearing Municipal New
No.298/3, old No.298/1, comprising land and one
terraced building and another small tiled building,
construction measuring 4.84 sq the entire premises
measuring East to West 35' and North to South
30':-
East by: Passage leading to Albert Victor
Road and Nurses Quarters
(Medical Quarters):
West by: Property No.298, Albert Victory
road, administered by Wakf
Board:
North by: Property formerly leased to one
Sri. Kuppuswamy and now under
the administration of Wakf Board;
South by: Kaspeer Dharga administered by
Wakf Board and beyond that
Albert Victor Road.
Schedule 'B'
(Property belonging to Wakf Board)
Premises No.298, Albert Victor Road, Known as
Daraga Hazarath Kaspeer, Sunni, Chamarajpet,
Bangalore:-
East by: Premises No.298/3 and passage
from premises No.298/3 leading
to Albert Victor Road and Nurses
Quarters, Medical quarters.
West by: Hospital Road, now known as
Sultan Road;
North by: Formerly Christian burial ground
now private property; and
South by: Albert Victor Road (I Main Road),
Chamrajpet, Bangalore."
11. The petitioner claims right in the property through
Notification dated 07.06.1965. Respondent No.1 claims
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right through registered Gift Deed dated 03.05.1966.
Respondent No.1 preferred O.S. No.1958/1989 for
declaration, mandatory injunction and permanent
injunction. Respondent No.1 pleaded that plaintiffs therein
are absolute owners of premises bearing No.298/1 (New
No.298/3) measuring East-West 35', North-South 30'.
The petitioner was defendant No. 7. The petitioner who
was defendant No. 7 preferred not to file any written
statement. The Trial Court on the basis of the evidence on
record has recorded a finding of fact that the plaintiffs,
including respondent No.1 have proved their lawful title
over the suit schedule property i.e. premises bearing
No.298/1 (New No.298/3), having acquired title through
the registered Gift Deed dated 03.05.1966. The trial Court
has decreed the suit accordingly.
12. The judgment and decree in O.S. No.1958/1989
dated 05.07.2008 was not subjected to challenge, thus
reached finality.
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13. The petitioner refers to various orders passed in
writ petition that are part of the record. It can be
immediately traced that respondent No.1 was not a party
in any of the writ proceedings referred by the petitioner.
Any finding therein would not bind respondent No.1.
14. The competent officer, without considering above
aspects, has proceeded to pass an order holding
respondent No.1 as an unauthorized occupant.
15. The Civil Court on the basis of the findings in
O.S.No.1958/1989 held that respondent No.1 is not in
unauthorized occupation of the property in question.
However, she is in occupation and possession as an
absolute owner having acquired title under the Gift Deed
dated 03.05.1966. Section 2(g) of the Act of 1974 defines
"Unauthorised occupant". The same reads as:-
"2(g) "Unauthorised occupation", in relation to any
public premises, means the occupation by any person
of the public premises, without authority for such
occupation, and includes the continuance in
occupation by any person of the public premises after
the authority (whether by way of grant or any other
mode of transfer) under which he was allowed to
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occupy the premises has expired or has been
determined for any reason whatsoever."
16. Any person can be said to be an unauthorised
occupant when continuing in occupation without authority
or after expiry of the authority under which he was
allowed to occupy the premises. In the present case, it is
the specific contention of respondent No.1 that she is in
occupation of the property in question as an absolute
owner having acquired right, title and interest in the
property under the registered Gift Deed dated 03.05.1966.
17. The Trial Court in O.S.No.1958/1989 has declared
that respondent No.1 is the absolute owner of the property
in question having acquired right, title and interest under
the registered Gift Deed dated 03.05.1966. That judgment
and decree is not subjected to challenge by the petitioner.
The issue regarding ownership of the property in question
has reached finality. Having accepted the judgment and
decree in O.S. No.1958/1989, it is not open to the
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petitioner to agitate that respondent No.1 is in
unauthorized occupation of the property in question.
18. One more aspect noticed from the Notification dated
07.06.1965 and is relevant to be recorded is that the
property is shown as "under dispute" against the column,
name, address and occupation of the mutawali. It is
evident that as on notification date through which the
petitioner is claiming right in the property, the subject
property is mentioned as 'in dispute'.
19. The controversy between the petitioner and
respondent No.1 is regarding title to the property in
question. The said issue of title is beyond the scope of the
Act of 1974. The petitioner having failed to establish that
he is the lawful owner of the property in question is not
entitled to invoke the provisions and the Act of 1974 to
evict the respondent No.1. The proceedings under Act of
1974 shall not adjudicate the issue on disputed title to the
property.
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20. The Trial Court on detailed analysis of the above
aspects has categorically recorded a finding that
respondent No.1 has acquired title and is in position as an
absolute owner of the property, the order passed by the
competent authority evicting is not maintainable. The
conclusion by the Trial Court in M.A. No.26/2017 is well
reasoned and on the basis of the assessment of evidence
on record. The order does not suffer from error
warranting interference.
21. This Court is not inclined to interfere with the well-
reasoned order of the Trial Court.
Accordingly, the writ petition is dismissed.
Sd/-
(K. V. ARAVIND)
JUDGE
MV
