Dismissed

The Dargah Hazrath Kaspeer v. Smt. Syedani Bee

Karnataka HC10 Sept 2024WP/5228/2021

Case brief

AI extract

What is this about?

The petitioner filed a writ petition to quash an eviction order passed by the competent authority under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974. The High Court dismissed the petition, holding that the Act cannot adjudicate disputes over title, and the respondent is the absolute owner as per a final civil decree.

What did the court decide?

Writ petition dismissed; order dated 12.06.2020 setting aside eviction order upheld; respondent allowed to remain in possession.

The Dargah Hazrath Kaspeer Vs Smt. Syedani Bee — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:37079 WP No. 5228 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE K. V. ARAVIND

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WRIT PETITION No.5228 OF 2021 (GM-PP)

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BETWEEN:

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THE DARGAH HAZRATH KASPEER, DARGAH, SUNNI, ALBERT VICTOR ROAD, CHAMARAJPET, BENGALURU-560018. BY ITS SECRETARY MANAGING COMMITTEE OF DARAGH

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...PETITIONER

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(BY SRI MALIPATIL P. S., ADVOCATE)

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AND:

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Digitally signed by VALLI MARIMUTHU Location: High Court of Karnataka

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1 . SMT. SYEDANI BEE, W/O LATE HABEEBULLA KHAN, AGED ABOUT 65 YEARS, R/AT NEW No.298/3, OLD No.298/1, ALBERT VICTOR ROAD, CHAMARAJPET, BENGALURU-560018.

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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.

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…RESPONDENTS

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(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.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND

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C.A.V. ORDER

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Heard learned counsel Sri P.S. Malipatil for the

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petitioner, learned counsel Smt. Vijaya N. Aradhya for respondent No.1 and learned counsel Smt. Swathi Ashok for respondent No.2.

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The instant petition is challenging the order dated

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12.06.2020 in M.A.No.26/2017 by the Court of VI Additional City Civil and Sessions Judge, Bengaluru.

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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 EastWest 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'].

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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.

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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 EastWest 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.

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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.

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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.

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Per contra, learned counsel for respondent No.1 submits that the dispute is regarding identification of the

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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

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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.

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Considered the submissions of learned counsel for the parties and perused the writ papers.

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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.

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" Schedule 'A'

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(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':-

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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.

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Schedule 'B'

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(Property belonging to Wakf Board)

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Premises No.298, Albert Victor Road, Known as Daraga Hazarath Kaspeer, Sunni, Chamarajpet, Bangalore:-

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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."

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The petitioner claims right in the property through

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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.

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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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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.

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The competent officer, without considering above aspects, has proceeded to pass an order holding respondent No.1 as an unauthorized occupant.

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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:-

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"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."

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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.

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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

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unauthorized occupation of the property in question.

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One more aspect noticed from the Notification dated

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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'.

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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

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property.

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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.

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This Court is not inclined to interfere with the well-

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reasoned order of the Trial Court.

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Accordingly, the writ petition is dismissed .

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Sd/(K. V. ARAVIND) JUDGE

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List No.: 1 Sl No.: 70

The Dargah Hazrath Kaspeer v. Smt. Syedani Bee

Case brief

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The Dargah Hazrath Kaspeer v. Smt. Syedani Bee

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