Smt. Khamar Vs Sri. Nazeer Ahmed

SMT. KHAMAR W/O. SRI WAZIR AGED ABOUT 73 YEARS R/AT PORTION OF NO.5 'E' NO.5^TH STREET BROADWAY ROAD CROSS (HKP ROAD CROSS), PENSION MOHALLA SHIVAJINAGAR BENGALURU-560 051

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…APPELLANT

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(BY SRI K. VIJAYA KUMAR, ADVOCATE)

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AND:

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SRI. NAZEER AHMED S/O. SRI ABDUL BASHEER Digitally AGED ABOUT 55 YEARS signed by HEMALATHA R/AT NO.5, 'B' NO.9^TH STREET J CHANDINI CHOWK ROAD CROSS Location: SHIVAJINAGAR HIGH COURT BENGALURU-560 051 OF KARNATAKA 2. SRI GAYASUDDIN SHARIFF SINCE DECEASED, REPRESENTED BY HIS LR

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2(a) FAYAZULLA SHARIFF S/O. LATE GAYASUDDIN SHARIFF AGED ABOUT 58 YEARS R/AT NO.10, 1^ST FLOOR, 3^RD CROSS WAHAB GARDEN BENGALURU-560 046

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…RESPONDENTS

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(BY SRI. RAGHUNATH M. D., ADVOCATE FOR R-1;

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NC: 2026:KHC:13732 RFA No. 205 of 2024

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HC-KAR

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VIDE ORDER DATED 05.06.2025 NOTICE TO R2(A) IS H/S)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 OF THE OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2023 PASSED IN O.S. NO.16408/2005 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU, DECREEING THE SUIT FOR DECLARATION, RECOVER OF POSSESSION AND DAMAGES.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL JUDGMENT

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The defendant No.1 in O.S.No.16408/2005 on the file of XIII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (henceforth referred to as 'Trial Court' for short) has filed this appeal challenging the judgment and decree dated 31.10.2023 by which, the suit for declaration of title and for recovery of possession was decreed.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court.

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The suit in O.S. No.16408/2005 was filed seeking a declaration that the plaintiff is the absolute owner of the suit property, and to direct the defendant No.1 to quit and deliver vacant possession of the suit premises and for payment of

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NC: 2026:KHC:13732 RFA No. 205 of 2024

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damages of a sum of Rs.18,000/- for unauthorised use and occupation up to the date of the suit and to pay Rs.500/- per month from the date of the suit till surrender of the suit premises.

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4 (i). The plaintiff claimed that the property bearing No.5, Old No.5B, 'E' No.5th Street, Broadway Road cross, Pension Mohalla, Shivajinagar, Bengaluru - 51, originally belonged to Smt. Maimoona Bee (Mymoona Bee). After her death, the plaintiff purchased the said property from the legal heirs of Smt. Maimoona Bee (Mymoona Bee) in terms of a sale dated 04.02.2002. In the suit property, there existed two rooms measuring 7 feet x 9 feet and 13½ feet x 8½ feet both forming part of property bearing No.5, Old No.5-B, 'E' No.5^th street, Broadway road cross, Pension Mohalla, Shivajinagar, Bengaluru - 51.

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(ii) He claimed that the defendant No.1 was a tenant in the suit property and that she had defaulted in payment of rent from 04.02.2002 to 03.01.2005 amounting to Rs.17,000/-. Therefore, the plaintiff terminated the tenancy of defendant No.1 and called upon her to quit and deliver vacant possession

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of the suit property by issuing a notice dated 28.01.2005, as he required the premises for additional accommodation for a Madarasa being run in the remaining portion of the suit property. The defendant No.1, issued a reply denying the ownership of the plaintiff and also claimed that she was not a tenant under the plaintiff. In view of the said reply, the plaintiff instituted the suit for a declaration of his title to the suit property for a direction to the defendant No.1 to quit and deliver vacant possession of the suit property, recovery of arrears of rent of Rs.18,000/- and a direction to the defendant to pay monthly rent of Rs.500/-.

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(i) The defendant No.1 contested the suit by filing a written statement contending that Smt. Maimoona Bee (Mymoona Bee) was the owner of the property and that she had inducted the husband of the defendant No.1 (Mr. Wazir Khan) as a tenant on a monthly rent of Rs.20/-. She claimed that during the lifetime of Smt.Maimoona Bee (Mymoona Bee), she was collecting the rents and that subsequently, she requested defendant No.1 to attorn the tenancy in favour of Smt. Iffeth Sultana, as the property was bequeathed to her. It was further contended that after the death of Smt. Maimoona

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Bee, defendant No.1 attorned the tenancy in favour of Smt. Iffeth Sultana.

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(ii) She contended that Smt. Iffeth Sultana had let out the western portion of the aforesaid premises to defendant No.1 and was collecting a monthly rent of Rs.50/-.

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(iii) During the pendency of the suit, Sri. Gayasuddin Shariff filed an application seeking to implead himself as defendant No.2. In the said application, he claimed that Smt. Iffeth Sultana had bequeathed the suit property in his favour. After being impleaded, he filed a written statement denying the title of the plaintiff to the suit property and contended that he was the owner of the property and that defendant No.1 was a tenant under him and not under the plaintiff.

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Based on these contentions, the Trial Court framed

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the following issues:

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"1) Whether plaintiff proves his title to the Suit Schedule property which forms part of larger area purchased by him?

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2) Whether plaintiff proves that defendant No.1 is tenant in occupation of Suit Schedule property on monthly rent of Rs.500?

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3) Whether defendant No.1 proves that she is tenant in so far as eastern and western portion of premises No.5 Old No.5B, E No.5^th Street, Broadway Cross as contended by her in Para 7 and 9 of her written statement?

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4) Whether suit is bad for non-joinder of necessary parties?

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5) Whether defendant No.1 is liable to pay damages for use and occupation at Rs.500 per month from date of suit till date of possession?

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6) Whether plaintiff is entitled to the relief claimed?

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7) What order or decree?

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Additional Issue Framed On 24-03-2009

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Whether valuation of the suit and payment of Court fee is proper?

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In support of the averments made in the plaint, the

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plaintiff was examined as PW.1 and marked Exs.P1 to P20. Ex.P1 is the certified copy of the sale deed dated 04.02.2002. Exs.P2 and P3 are the Khata certificates standing in his name and Ex.P4 is the tax paid receipt. Exs.P5 and P6 are photographs of the building and Ex.P7 is the negative. Exs.P8 and P9 are the notices issued to defendant No.1 and the postal

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acknowledgment. Ex.P10 is the reply issued by the defendant No.1. Ex.P11 is the copy of the petition filed in P and S.C. No.25/1988 by the vendors of the plaintiff andEx.P12 is the certified copy of the order passed in P and SC No.25/1988. Ex.P13 is the sale deed under which Smt. Maimoona Bee (Mymoona Bee) acquired title to the property. Ex.P14 is the Khata certificate dated 31.03.2001 reflecting the name of Acquila Begum and her children who are the vendors of the plaintiff in respect of the suit property. Ex.P15 is the corresponding tax demand extract and Exs.P16 to 18 are the tax paid receipts. Ex.P19 is the death certificate of Smt. Maimoona Bee (Mymoona Bee) and Ex.P20 is the death certificate of Mr.Abdul Rahman, the son of Smt. Maimoona Bee (Mymoona Bee).

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The defendant No.2 was examined as DW.1 and he marked Ex.D1 which was the original of the sale deed dated 02.09.1963, Ex.D2 was the declaration affidavit purportedly executed by Smt. Maimoona Bee (Mymoona Bee) and Ex.D3 which was a declaration purportedly executed by Smt. Iffet Sultana. However, DW1 did not subjected himself to crossexamination and therefore his evidence was discarded.

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The Trial Court after considering the material on record, held that the plaintiff had proved his title to the suit property, since the antecedent title of Smt. Maimoona Bee (Mymoona Bee) was not in dispute and the vendors of the plaintiff claimed to be the daughter-in-law and the grandsons of Smt. Maimoona Bee (Mymoona Bee). The Trial Court, applying the rule of principle of best evidence, held that the plaintiff had established his title to the suit property and was therefore entitled to recover possession. Consequently, the suit was decreed and the defendant was directed to quit and deliver vacant possession of the suit property. However, in so far as the claim for damages was concerned, the Trial Court held that a separate enquiry would be conducted for determination of mesne profits.

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Being aggrieved by the said judgment and decree, the defendant No.1 has filed his appeal.

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11(i). The learned counsel for defendant No.1 submits that the plaintiff has failed to establish that his vendors were the legal heirs of Smt. Maimoona Bee (Mymoona Bee). He contends that the only tangible material placed before the

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Court in this regard is the succession certificate issued in P & SC No.25/1988. He submits that a succession certificate cannot be issued in respect of immovable property and therefore the said document is a non est in the eye of law and no rights can flow from the said document.

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(ii) The other documents relied upon by the plaintiff are Ex.P19, the Death Certificate of Smt. Maimoona Bee (Mymoona Bee) and Ex.P20, the death certificate of Mr.Abdul Rahman who claimed to be the son of Smt. Maimoona Bee (Mymoona Bee). He contends that in the death certificate of Abdul Rahman at Ex.P20, there is no mention that he is the son of Smt. Maimoona Bee (Mymoona Bee) and there is also no reference to the name of his father. Likewise, in Ex.P19 which is the death certificate of Smt. Maimoona Bee (Mymoona Bee), there is no mention about the name of her spouse. Thus, he contends that since the suit is one for declaration based on title, the plaintiff was bound not only to establish the antecedent title of his vendor, but also to prove that he had lawfully purchased the property from the legal representatives of Smt. Maimoona Bee (Mymoona Bee).

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(iii) He contends that since the plaintiff had failed to produce adequate evidence to establish that he had lawfully purchased the suit property from the owners of the suit property, he was not entitled to a decree declaring his title to the suit property. He further contends that Smt. Maimoona Bee (Mymoona Bee) had fostered Smt. Iffet Sultana and that had executed a declaration as per Ex.D2, in favour of Smt. Iffet Sultana in respect of the suit property. Later, the said Smt. Iffet Sultana bequeathed the said property to defendant No.2 by way of Ex.D3. He therefore contends that the plaintiff has not been able to establish a better title than that of Smt. Iffet Sultana and consequently, he was not entitled to a declaration of title to the suit property. He further contends that even assuming that the plaintiff is the owner of the suit property, in view of the averments made in the plaint that the defendant No.1 was a tenant under him, the Trial Court could not have decreed the suit for recovery of possession.

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(iv) As regards the contention that the plaintiff is bound to take out proceedings against the defendant under the provisions of the Karnataka Rent Act, 1999, it is no doubt true that the plaintiff had pleaded that the defendant No.1 was a

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tenant under him. But the defendant No.1 has denied the title of the plaintiff and has set up title in Smt.Iffet Sultana and therefore no useful purpose would be served in directing the plaintiff to approach the Rent Control Court against the defendant No.1. Hence this contention is also rejected.

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12(i). Per contra, the learned counsel for the plaintiff contended that defendant No.2 claimed to be the owner of the suit property on the basis of a oral Hiba evidenced in terms of Ex.D3. He contends that though defendant No.2 was examined as DW.1, he did not subject himself to cross-examination and therefore, his evidence was discarded. He further submits that none of the legal heirs of defendant No.2 have chosen to contest the appeal. Therefore, he submits that defendant No.2 has failed to establish his better title to the suit property. He submits that defendant No.1 who claims to be a tenant under defendant No.2, has no locus standi to challenge the judgment and decree. He further submits that if any person who was aggrieved, it is only defendant No.2 who was entitled to challenge the decree and not the defendant No.1. He also contends that Exs.D2 and D3 which were purportedly the oral Hiba executed by Smt. Maimoona Bee (Mymoona Bee) in

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faovur of Smt. Iffet Sultana have not been proved before the Court and hence the defendant No.1 cannot hinge her case on said documents.

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(ii) He contends that the material placed on record by the plaintiff did establish that the vendors of the plaintiff are the legal representatives of Smt. Maimoona Bee (Mymoona Bee) and were therefore lawfully entitled to convey the suit property. He submits that both defendant No.1 and defendant No.2 did not dispute that the suit property belonged to Smt. Maimoona Bee (Mymoona Bee). He submits that Exs.P19 and P20 which are the death certificates of Smt. Maimoona Bee (Mymoona Bee) and Sri. Abdul Rahman respectively would indicate that Sri. Abdul Rahman was the son of Smt. Maimoona Bee (Mymoona Bee) and that the vendors of the plaintiff are the wife and children of Sri. Abdul Rahman who conveyed the suit property to the plaintiff. He therefore submits that the Trial Court has rightly decreed the suit and no interference is warranted with the said judgment and decree.

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(iii) He contends that defendant No.1 had disputed the title of the plaintiff to the suit property and therefore the

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plaintiff was advised to seek a declaration of his title and also for recovery of arrears of rent. He submits that the property in question is now in a dilapidated condition and the structure is in a state of disrepair, and that defendant No.1 is not presently in occupation of the building and therefore, the question of initiating proceedings under the Rent Control Act does not arise.

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I have considered the submissions of the learned counsel for the plaintiff as well as the learned counsel for defendant No. 1. I have also perused the judgment and decree of the Trial Court as well as the records of the Trial Court.

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The only point that arises for consideration in this

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appeal is:

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"Whether the defendant No.1 has locus standi to challenge the judgment and decree?"

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Defendant No.1 contested the suit on the premise

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that the plaintiff was not the owner of the suit property. However, she admitted that the suit property earlier was owned and possessed by Smt. Maimoona Bee (Mymoona Bee). She

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claimed that the suit property was rented out to her husband by Smt. Maimoona Bee (Mymoona Bee) and that on the instructions of Smt. Maimoona Bee (Mymoona Bee), the tenancy was subsequently attorned in favour of Smt.Iffet Sultana. Defendant No.2 on the other hand, claimed that Smt. Iffet Sultana had bequeathed the suit property to him in terms of Ex.D3. Therefore, the tussle was between the plaintiff and defendant No.2 as to who was the lawful owner of the suit property. The defendant No.2 however, did not contest the case of the plaintiff by entering the witness box and subjecting himself to cross-examination. The evidence of DW.1 was therefore discarded by the Trial Court. Consequently, there was no evidence on record on behalf of defendant No.2 to establish that he was the owner of the suit property by virtue of Exs.D2 and D3.

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The defendant No. 1 claimed to be a tenant under Mrs. Iffet Sultana. The only person who was entitled to challenge the judgment and decree passed by the Trial Court is defendant No.2 and not the defendant No.1. If the defendant No.2 had title to the suit property, the defendant No.1 could

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not alone challenge the judgment and decree passed by the trial Court.

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In that view of the matter, this appeal lacks merit and is dismissed, as the defendant No.1 has no locus standi to challenge the judgment and decree and if any person is aggrieved, it is only the defendant No.2 who could do so. Therefore the point for consideration framed by this Court, is held against defendant No.1 and in favour of plaintiff.

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It is made clear that this Court has not expressed any opinion on the merits of the case of the plaintiff.

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In view of dismissal of main appeal, pending interlocutory applications do no survive for consideration and the same stand disposed of.

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Sd/(R. NATARAJ) JUDGE

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HJ

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List No.: 1 Sl No.: 31

Smt. Khamar v. Sri. Nazeer Ahmed

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Smt. Khamar v. Sri. Nazeer Ahmed

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