Dismissed

Sri Mohammed Hayath v. Mrs Mallika Begum

Karnataka HC3 Feb 2023RFA/843/2006

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal against a trial court decree. The court upheld the findings that the respondent proved encroachment of a small portion of her property by the appellant's deceased member via a bathroom construction, confirming her entitlement to possession.

What did the court decide?

The appeal was dismissed. It was noted that the appellants could offer to purchase the encroached portion if the decree is executed by the respondent.

Sri Mohammed Hayath Vs Mrs Mallika Begum — Partition | Karnataka HC (2023)

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RFA No. 843 of 2006

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA REGULAR FIRST APPEAL NO.843 OF 2006 (DEC)

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BETWEEN:

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SRI MOHAMMED HAYATH, AGED ABOUT 71 YEARS, (SINCE DEAD BY HIS LRS),

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SMT. SALEEMA BI, AGED ABOUT 69 YEARS,

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SRI. IRSHAD AHMED, AGED ABOUT 48 YEARS,

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SMT. SHAMSHAD BEGUM, AGED ABOUT 49 YEARS,

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Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

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SRI. SHAHEEN, AGED ABOUT 44 YEARS,

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SMT. HASEENA BEGUM, AGED ABOUT 42 YEARS,

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SRI. INAYAT PASHA, AGED ABOUT 40 YEARS,

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SRI. ARIF PASHA, AGED ABOUT 39 YEARS,

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RFA No. 843 of 2006

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SRI. AHMED PASHA, AGED ABOUT 36 YEARS, APPELLANT NO.2 IS WIDOW AND APPELLANT NOS.3 TO 9 ARE SONS AND DAUGHTERS OF LATE SRI. MOHAMMED HAYATH, R/AT NO.32, MARIAMMAN KOIL STREET, NEELSANDRA, BANGALORE – 560 047.

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…APPELLANTS

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(BY SRI. VIVEKANANDA S., ADVOCATE)

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AND:

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MRS. MALLIKA BEGUM, AGED ABOUT 72 YEARS, W/O ABDUL SHUCOOR, R/AT (OLD NO.18), NEW NO.31, MARIYAMMAN KOIL STREET, NEELSANDRA, BANGALORE – 560 047.

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…RESPONDENT

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(BY SRI. DEEPASHREE, ADVOCATE)

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THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 4.1.2006 PASSED IN O.S.NO.10548/1992 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE (CCCH-29), DECREEING THE SUIT FOR DECLARATION.

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

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3 - RFA No. 843 of 2006

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JUDGMENT

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Smt.Mallika Begum instituted a suit seeking for a declaration that she was the owner of the property measuring 3 ft., x 10 ft., (East to West – 3 ft., and North to South – 10 ft.,), in old No.8, New No.3, Mariyamma Koil Street, Neelasandra, Bengaluru, which according to her was encroached during the pendency of the suit. She also sought for vacant possession of the said property and also for a mandatory injunction to demolish the bathroom constructed by Sri.Mohammed Hayath. A consequential decree for permanent injunction was also sought for.

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Smt.Mallika Begum stated that the property bearing

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No.165, which was re-numbered as 18, 19, 20 and 21 and was thereafter further re-numbered as 31, 30, 29 and 28 measuring 27 ft., (East to West) and 43 ft., (North to South) was owned by Late Adbul Latheef Sab who had purchased it under the sale deed dated 29.04.1908. She stated that a registered gift deed had been executed by Late Abdul Latheef Sab on 23.06.1961, in favour of his

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RFA No. 843 of 2006

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wife namely Smt.Rahmath Bee towards her Mehr and as her share in the assets of Sri.Abdul Latheef Sab. She stated that the entire property measuring 27 ft., x 43 ft., was bounded on the East by a road leading to Neelasandra, West by the house of Sri.Appanna, North by cross lane and to the South by a lane which lead to the house of Sri.Budan Saheb.

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She stated that pursuant to gift deed, the property was changed in the name of Smt.Rahmath Bee and she was also paying taxes in respect of the said property. She stated that in this entire property measuring 27 ft., x 43 ft., a structure had been built up and there was no vacant land abutting the property.

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She stated that she was the daughter of Smt.Rahmath Bee, who executed a registered deed of settlement on 22.04.1987 and in that settlement deed, a portion of the property was settled in her favour. This portion was demarcated as A, B, C and D in the plaint sketch. She also stated that pursuant to the settlement

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RFA No. 843 of 2006

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deed, the Khata was registered in her name and she was

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also paying taxes on the said land of hers’s.

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She stated that to the West of her property there was a property of one Sri.Appanna and Sri.Mohammed Hayath, the defendant was claiming that it was his land. It was stated that this property was contiguous to the suit property on its Western side and was in a straight line and that Sri.Mohammed Hayath was trying to encroach on the Werstern side of the suit property, though he had no right over the same. She stated that the structure on the suit property was old and had virtually come down due to the recent rains and Sri.Mohammed Hayath taking advantage of this, was attempting to encroach upon the Western side of the schedule property.

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She stated that despite her efforts to prevent the encroachment, during the pendency of the suit, taking advantage of the fact that the matter had been adjourned, Sri.Mohammed Hayath had encroached and trespassed into the Western side of the suit property and had

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RFA No. 843 of 2006

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occupied a portion measuring 3 ft., x 10 ft., and had also constructed a bathroom overnight. She therefore contended that Sri.Mohammed Hayath had no right to encroach upon the suit property and the suit property was a part of her property which had been settled in her favour by her mother, she was entitled for a decree of declaration and also for possession.

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Sri.Mohammed Hayath entered appearance and contested the suit by filing a written statement. He stated that since Smt.Mallika Begum herself stated that the composite property of her’s was built on the entire land and there was no vacant land adjoining the said property, the question of him encroaching upon her property would not arise.

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He also stated that he was the owner in possession and enjoyment of the property bearing No.32 and he had acquired the same under the registered sale deed dated 18.09.1950. He stated that this property bearing old No.17, new No.32 was bounded on the East by late Abdul

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RFA No. 843 of 2006

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Latheef Sab’s property. He stated that he was putting up the construction in the place over which he had title and he was not encroaching upon any portion of Smt.Mallika Begum’s property.

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He also stated that prior to getting sanction of the plan, Smt.Mallika Begum had given him no objection to put up the construction and this itself would show that there was no encroachment. Sri.Mohammed Hayath accordingly sought for dismissal of the suit.

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Subsequently, on the death of Sri.Mohammmed Hayath, his legal representatives came on record and they also filed the written statement which was in the same terms as that of Sri.Mohammed Hayath.

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The Trial Court on consdieraiton of the pleadings, framed eight issues.

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On behalf of Smt.Mallika Begum, her son Sri.Imtihad Pasha was examined as PW1 and 10 documents were admtited in evidence and marked as exhibits.

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8 - RFA No. 843 of 2006

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On behalf of the legal representatives of the deceased Sri.Mohammed Hayath, his son Sri.Irshad Ahmed was examined as DW1, apart from another witness. Through him, 10 documents were admitted in evidence and marked as exhibits.

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A Court Commissioner was also appointed and his report and sketch were also admitted in evidence as Exs.C1 and C2.

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The Trial Court on consideration of the evidence adduced before it, came to the concluison that Smt.Mallika Begum had established that she was the owner of the suit property and there was indeed an encroachment to the extent stated in the suit schedule and Sri.Mohammed Hayath had put up a bathroom on the encroached portion.

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The Trial Court also held that it had been established that this possession of Sri.Mohammed Hayath was unlawful and Sri.Mallika Begum was entitled for possession. The Trial Court accordingly decreed the suit

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and declared that Smt.Mallika Begum was the owner of the Western portion of the schedule property measuring 3 ft., x 10 ft., which had been encroached upon by Sri.Mohammed Hayath after filing of the suit. The Trial Court directed them to demolish the bathroom and deliver the actual vacant possession of this portion 3 ft., x 10 ft., The Trial Court also granted an injunction restraining them from interereing with the possession of Smt.Mallika Begum.

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Being aggreived by this decree, the legal representatives of Sri.Mohammed Hayath are in appeal.

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Learned counsel for the appellants contended that the encroachment had not at all been established. He submtited that the evidence on record indicated that Sri.Mohammed Hayath was in possession of this property from the very beginning and therefore, there was no question of an encroachment. He submited that the Trial Court on a misreading of the evidence, had decreed the suit which was therefore, liable to be set-aside.

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RFA No. 843 of 2006

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Smt.Deepashree, learned counsel appearing for the repsondent on the other hand supported the decree and contended that having regard to the measurements in the sale deeds of Smt.Mallika Begum and Sri.Mohammed Hayath, it was clear that both of them owned the properties with specific measurements and the properties had at linear boundaries without any extrusions or intrusions to indicate that the suit property was appended to the property purchased by them. She contended that the Trial Court taking into consideration all the factors, has rightly decreed the suit and there was no warrant for interfereing with the well reasoned judgment of the Trial Court.

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In the light of the arguments advanced, the point that arises for consideration in this appeal is; whether Smt.Mallika Begum had established to the extent of 3 ft., x 10 ft., had been encroached upon Sri.Mohammed Hayath and if so, whether she was entitled for a decree of declaration and for possession?

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RFA No. 843 of 2006

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It is not in disptue that the suit property was a

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portion of a larger property measuring 27 ft., x 43 ft., which had been purchased by Smt.Mallika Begum’s father ie., late Abdul Latheef Sab under a regisered sale deed dated 29.04.1908 as per Ex.P1.

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It is also not in dispute that her father Sri.Abdul Latheef Sab had gifted the property to Smt.Mallika Begum’s mother under a registered gift deed dated 23.06.1961.

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It is also not in dispute that under a registered settlement deed dated 22.04.1987, Smt.Mallika Begum

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was granted a portion of the property measuring 27 ft., x 43 ft.,. In fact, under this registered settlement deed, she was gifted 10 ft., x 27 ft.,

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It is to be noticed here that under this settlement deed, the width of the property was 10 ft., uniformly and there was no reduction or enlargment in the property, either on the Northern side or to the Southern side. In

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RFA No. 843 of 2006

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other words, the property settled in favour of Smt.Mallika Begum was a rectangular property with linear sides and with an uinform width of 10 ft.,

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Similarly, it is not in dispute that Sri.Mohammed Hayath purchased the property bearing No.32, measuring on the Eastern and Western sides and it measured 52 ft., on the Northern side and 40 ft., on the Southern side.

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Thus, according to this sale deed, the property purchased by Sri.Mohammed Hayath was also more or less a rectangular plot with clear measurements on all sides. The boundaries also indicated that there was no extrusions or intrusions among other boundaries of the property.

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A Commissioner was appointed and he has furnished a sketch which has been marked as Ex.C2. This sketch indicates that the property of Smt.Mallika Begum was reduced to an extent of 3 ft., by the construciton of a bathroom. This becomes aparent when it is noticed that in the property of Sri.Mohammed Hayath, on the

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RFA No. 843 of 2006

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Eastern side, there is an extrusion of about 3 ft., 6” + 3 ft.,11”)/2 x 10 ft.,7”. The sum total of the measurement of Sri.Mohammed Hayath as indicated in the Commissioner’s report would establish that he is in possession of the property larger in an extent as compared to his sale deed. It is therefore, clear that there was definite encroachment of Smt.Mallika Begum’s property.

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The Trial Court has noticed this specific fact and has therefore, rightly come to the conclusion that there was an encroachment and this encroachment was on the property of Smt.Mallika Begum and she was therefore, entitled to a decree.

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I find no reason to disturb the findings of the Trial Court.

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However, learned cousnel for the legal representatives of Sri.Mohammed Hayath contends that, if this property is to be surrendered, the very entrance to his property would be substantially stand extinguished and he

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RFA No. 843 of 2006

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would virtually have no way to have access to his property. In fact, during the course of his argument, he has also indicated that the legal represntatives of Sri.Mohammed Hayath was ready to settle the matter by purchasing this small extent of 3 ft., x 10 ft., It was also highlighted that this small extent of land would not enure to the benefit of Smt.Mallika Begum, since it was situated behind her house.

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Learned counsel contended that if this property was to be surrendered, the entrance to the property of Sri.Mohammed Hayath, would be virtually extinguished.

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Learned cousnel for Smt.Mallika Begum, however submitted that despite her best efforts to contact Smt.Mallika Begum, she was unable to do so.

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Learned counsel for the legal representatives of Sri.Mohammed Hayath also submitted that every effort made to get in touch with Smt.Mallika Begum was unsuccessful.

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RFA No. 843 of 2006

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Though, there is no merit in this appeal and the appeal is being dismissed, it is made clear that it would be open for the legal representatives of Sri.Mohammed Hayath to offer to purchase this encroached portion of 3 ft., x 10 ft., in the event Smt.Mallika Begum seeks to execute a decree in her favour.

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Subject to the above observation, the appeal is

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dismsised .

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Sd/JUDGE

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GH List No.: 1 Sl No.: 34

Sri Mohammed Hayath v. Mrs Mallika Begum

Case brief

What is this about?

What did the court decide?

Sri Mohammed Hayath v. Mrs Mallika Begum

Case brief

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