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2013 Supreme(Kar) 1256
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
H. BILLAPPA, J.
TAJUNISSA AND ANOTHER —Appellant
Vs.
SMT. GULNAZ BEGUM AND OTHERS —Respondent
Regular First Appeal No. 988 of 2010
Decided on : 25-06-2013
Advocate Appeared:
M.L. Dayananda Kumar and M. D. Raghanath, for the Appellant
S. Shekar Shetty, Bhanu Ravinder, for the Respondent
The suit's maintainability under Section 80 of CPC and the determination of property ownership based on evidence.
Headnote:
Fraudulent Sale Deeds - Property Ownership - O.S. No. 5372/2003 - Section 80 of CPC
Fact of the Case:
The original plaintiff filed a suit to cancel fraudulent sale deeds and khata in the name of the 1st defendant. The plaintiff claimed ownership of the property through a previous judgment and decree. The trial court dismissed the suit, leading to this appeal.
Finding of the Court:
The trial court found the suit not maintainable due to the lack of notice under Section 80 of CPC. It also held that the 1st defendant was the rightful owner of the property based on the chain of sale deeds and settlements, dismissing the plaintiff's claim.
Issues: Maintainability of the suit under Section 80 of CPC, Ownership of the property
Ratio Decidendi: The suit was not maintainable without notice under Section 80 of CPC. The evidence supported the 1st defendant's ownership based on the chain of sale deeds and settlements.
Final Decision: The appeal was dismissed, affirming the trial court's decision.
H. BILLAPPA, J.-This appeal by the LR's of one of the LR's of the original plaintiff is directed against the judgment and decree, dated 9.3.2010, passed by the XXIV Addl. City Civil and Sessions Judge, Bangalore in O.S. No. 5372/2003.
2. By the impugned judgment and decree, the trial Court has dismissed the suit of the plaintiff.
3. Aggrieved by that, the appellants who are the LR's of one of the LR's of the original plaintiff have preferred this appeal.
4. Briefly stated, the facts are;
The original plaintiff Sri. Memboob Shariff filed suit in O.S. No. 5372/2003 for a direction to the defendant No. 10 to cancel three fraudulent sale deeds which stand in the name of the 1st defendant and to direct the 7th defendant to cancel khata which stands in the name of the 1st defendant. The case of the original plaintiff was that he is a absolute owner of the suit schedule property bearing No. 1A, New No30, East Street (Vajara Puttanna Garden), Neelasandra, Bangalore having acquired the same through judgment and decree passed in O.S. No. 3782/1986. The property originally belonged to one Puttachari. He sold the property in favour of Sri. Abdul Kareem through registered sale deed dated 23.07.1894. Abdul Kareem constructed a dwelling house. Thereafter, Abdul Kareem transferred the property in favour of his Smt. Khadham Bibi in lieu of Mehar through registered document dated 05.11.1912. The sale deed was conditional that the property shall continue for three generations. The khata of the suit schedule property stood in the name of Abdul Kareem till 1999.
5. After the death of Abdul Kareem, Smt. Kadham Bibi remained absolute owner of the suit schedule property. Smt. Khadham Bibi was issueless. After her death, the property came to her eldest sister Smt. Manju Bee. After the death of Manju Bee, the suit schedule property came to the original plaintiff Sri. Mehboob Shariff and his title is declared in O.S. No. 3782/1986.
6. It is stated, the original plaintiff let out the property to several tenants. He also executed lease deeds, collected advance and rents. He filed number of cases against the tenants for recovery of rents and eviction etc., The plaintiff has paid the tax.
7. On 17.07.2001, when the plaintiffs son Athaulla Shariff went to the Corporation office for payment of taxes he was surprised to know that the khata of the suit schedule property stands in the name of Smt. Gulnaz Begum, the 1st defendant. She is a total stranger. The plaintiff came to know that fraudulently the sale deeds have been executed in favour of Smt. Gulnaz Begum. She has registered sale deeds from the vendors who had no title or interest in the suit schedule property.
8. It is stated, the plaintiff is in possession of the suit schedule property. He has been filing cases and executing leased deeds in favour of several tenants. Smt. Gulnaz Begum has not issued any notice to the tenants. The tenancy is not attorned. The sale deeds are fraudulent documents. After coming to know about the transfer of khata the plaintiff made representation to the Assistant Revenue Officer on 17.07.2001. Legal notice dated 20.07.2001 has been issued to the Commissioner, Bangalore Mahanagara Palike. On 14.08.2001, the plaintiff submitted necessary documents through GPA holder. The plaintiff also filed petition for cancellation of khata standing in the name of 1st defendant.
9. It is stated that notice dated 7.2.2002 was issued to the plaintiff by the Assistant Revenue Officer, Koramangala, Bangalore asking the plaintiff to be present on 15.02.2002. Similarly, notice was issued by the Deputy Commissioner calling upon the plaintiff to be present on 12.04.2002. The 1st defendant was also summoned. The Deputy Commissioner rejected the petition of the plaintiff for cancellation of khatha. Therefore, the plaintiff prayed for a direction to the defendant No. 10 to cancel three fraudulent sale deeds which stand in the name of the 1st defendant and to direct the defendant No. 7 to cancel the kha
