IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition No. 22110 of 2017 AND WRIT PETITION NO. 22669 OF 2017 (LB-BMP) BETWEEN:
SRI SYED SHAMSHEER, AGED ABOUT 67 YEARS SON O LATE SYED IBRAHIM RESIDING AT No.100 BSA ROAD, FRAZER TOWN BENGALURU – 560 005 (BY SRI. SHANKAR REDDY C., ADV.) AND:
1. ADDITIONAL COMMISSIONER (EAST) BRUHAT BENGALURU MAHANAGARA PALIKE, MAYOHALL, M.G.ROAD, BENGALURU – 560 002.
2. SMT.SHABANA TAJ, D/O LATE S.A.BASHEER W/O MR.FAYAZ UR RAHMAN G. AGED ABOUT 42 YEARS RESIDING AT No.7 12TH CROSS, 5TH MAIN …PETITIONER DAVIS ROAD, SAGAYAPURAM BENGALURU – 560 084.
3. ASSISTANT REVENUE OFFICER, WARD No.61, S.K. GARDEN PULIKESHINAGAR SUB-DIVISION QUEENS ROAD, BRUHAT BENGALURU MAHANAGARA PALIKE BENGALURU – 560 001.
... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 03.11.2016 VIDE ANNEXURE-Z PASSED ON THE FILE OF THE ADDITIONAL COMMISSIONER, MAYOHALL, BENGALURU THE R-1 AND ALLOW THE PETITIONER’S PRAYER FOR SEEKING FOR CANCELLATION AND RESTORE THE NAME OF THE PETITIONER IN THE KATHA AND RESTORE THE NAME OF THE PETITIONER IN THE KATHA EXTRACTS PERTAINING TO THE PROPERTY BEARING No.99, PID No.90-1-99 AND No. 100, PID No.90-1-100 SITUATED AT BSA ROAD, BBMP WARD No.90, NEW NO61, FRAZER TOWN, BENGALURU.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner Mr. Syed Shamsheer has challenged the legality of the order dated 03.11.2016 passed by the Additional Commissioner (East), whereby the Learned Additional Commissioner has rejected the application filed by the petitioner under Section 114A of the KMC Act.
2. Briefly, the facts of the case are that according to the petitioner, he is the son of Mr. Syed Ibrahim. One Mr. Syed Abdul Khayum had executed a registered sale deed dated 21.12.1964 in favour of the petitioner’s father, Mr. Syed Ibrahim, and had conveyed the property bearing old No. 33/B, Tannery Road Cross (newly assigned No. 96) to Mr.Syed Ibrahim. Similarly, on 17.04.1965, Mr. Syed Abdul Khayum had executed another registered sale deed in favour of the petitioner’s father, Mr. Syed Ibrahim and conveyed another property bearing old No. 32/A, Tannery Road Cross (newly assigned No. 100) to him. Likewise, on 23.04.1970, one Smt. Sharfunnissa and others had conveyed property bearing No. 99, through a registered sale deed, to the petitioner’s father, Mr. Syed Ibrahim.
Furthermore, according to the petitioner, the petitioner’s father died intestate on 10.04.1972, leaving his property to his five sons, namely Mr. S. A. Basheer, Mr. Syed Zakriya, Mr. Syed Rahamathulla, Mr. Syed Habeeb Ur Rahaman and the petitioner, and to his two daughters, namely Smt. Zarina and Smt. Hasina. The petitioner further claims that there was no partition of the properties within the family. In fact, initially the khatha of the said properties was transferred in the petitioner’s name. The properties are now numbered as Nos. 99 and 100; according to the khatha records of the year 2008, the said properties were in the petitioner’s name. Moreover, the petitioner claims that he has paid the property tax to the BBMP.
Subsequently, Mr. S. A. Basheer, Mr. Syed Habeeb Ur Rahaman and Mr. Syed Zakriya who are the petitioner’s brothers expired.
Moreover, according to the petitioner, Smt. Shabana Taj, the daughter of Mr. S. A. Basheer, submitted an application for transfer of the khatha of the property in her name. According to the petitioner, she claimed that there was an oral partition within the family and the property bearing Nos. 99 and 100 fell within the share of her father Mr. S. A. Basheer, as her father had paid off the value of the property to the other siblings. She further claimed that since her father was not in a position to pay Rs. 4,00,000/- (Rupees Four Lakhs only) to the other siblings, it is her husband who had, in fact, made the payment to her father. Consequently, her father executed a “Hiba” gift deed and gifted the said properties to her. Therefore she had filed the application for transfer of the khatha of the said properties in her name.
The petitioner further claims that once he came to know about the move made by Smt. Shabana Taj on 12.06.2013, he filed his objections before BBMP and requested them not to transfer the khatha of the properties in her name. However, despite his objections, the khatha was transferred in her name. Therefore, he filed an application before the respondent No. 1 for deleting the name of Smt. Shabana Taj. However, by the impugned order dated 03.11.2016, the said application has been dismissed. Therefore the petitioner has filed these petitions before the Court.
3. Mr. Shankar Reddy, learned counsel for the petitioner, has raised the following contentions before the Court:
Firstly, Smt. Shabana Taj is not justified in claiming that her father had left a “Hiba” gift deed in her favour with regard to the said properties, namely properties bearing Nos. 99 and 100.
Secondly, the Revenue Inspector of Ward No. 61 had drawn an imaginary mahazar of the property on 19.12.2014, with a false report, by obtaining the signature of unknown persons and in claiming that the petitioner had also signed the said mahazar.
Thirdly, the petitioner had already filed his objections on 12.06.2013 and the said objections were never withdrawn by him on 02.12.2014. Therefore, the finding given by the learned Additional Commissioner that the objections were duly withdrawn by application dated 02.12.2014, is untenable.
Fourthly, the Release deed dated 10.11.2014 is a manipulated document. Therefore, the said Release deed could not be relied upon by the learned Additional Commissioner.
Lastly, in the Family Tree submitted by the respondent No. 2, Smt. Shabana Taj, she has omitted the name of Sri. Syed Farooq. Therefore, respondent No.2 has mislead the learned Additional Commissioner.
Thus, the learned Additional Commissioner is unjustified in rejecting the application filed by the petitioner. Hence the impugned order deserves to be interfered with by this Court.
4. Heard the learned counsel and perused the impugned order.
5. A bare perusal of the impugned order clearly reveals that, according to the learned Additional Commissioner, the schedule property belonged to petitioner’s father, Mr. Syed Ibrahim, the petitioner, and to the grandfather of respondent No.2, namely Mr. Syed Ibrahim. However, after the death of Mr. Syed Ibrahim, the family members entered into an agreement under which, Mr. S. A. Basheer had paid certain amount to the other family members, after which he is in possession of the property. Moreover, Mr. Basheer has executed a “Hiba” gift deed in favour of respondent No.
2. After having received the property, respondent No. 2 has been paying the taxes.
6. The learned Additional Commissioner has also noted the fact that, once the khatha was mutated in the name of Smt. Shabana Taj, the petitioner had filed certain objections. However, according to the learned Additional Commissioner, the said objections were withdrawn by letter dated 02.12.2014. The learned Additional Commissioner has also noted the fact that the petitioner did institute a civil suit, namely O.S.No. 8923/14. However, the civil suit was subsequently withdrawn by him. Most importantly, according to the learned Additional Commissioner, when the Revenue Officer conducted the spot inspection, it is the petitioner who has affixed his signature. Therefore, considering the fact that respondent No.2, prima facie, has established the possession of the property, considering the fact that even according to the mahazar, the respondent No. 2 was in possession of the property, considering the fact that she has been paying the taxes, considering the fact that the objections raised by the petitioner was subsequently withdrawn on 02.12.2014, considering the fact that the civil suit filed by the petitioner was also withdrawn, the learned Additional Commissioner has rejected the petitioner’s application for correction in the khatha.
7. A bare perusal of the facts mentioned above, including the reasoning given by the learned Additional Commissioner, would clearly show that this case is replete with disputed questions of fact. For, on the one hand, the petitioner claims that there was no family agreement with regard to the property, yet on the other hand, the respondent No.2 claimed before the learned Additional Commissioner that there was, indeed, an agreement within the family members. On the one hand, the petitioner claims that the “Hiba” gift deed was never made by his uncle Mr. S. A. Basheer, yet on the other hand, respondent No.2 has claimed that the property was bequeathed to her through the “Hiba” gift deed. Whether there was a family agreement or not is a disputed question of fact. Whether the gift deed or the “Hiba” gift deed is a genuine one or not, is again a disputed question of fact.
Moreover, on the one hand, respondent No.2 claims that her father had paid the value of the property to other family members and was put into possession. This fact, again, is disputed by the petitioner. Thus again, a disputed question of fact has arisen.
Similarly, the petitioner claims that he had filed his objection on 13.06.2013. He further claims that he did not withdraw the objections by letter dated 02.12.2014. Yet, according to the learned Additional Commissioner, objections were withdrawn by letter dated 02.12.2014. Thus, again a disputed question of fact arises with regard to the genuineness of the letter dated 02.12.2014.
Furthermore, even with regard to the mahazar recorded by the Revenue Officer, according to the Revenue Officer, it is the petitioner himself who had signed the mahazar. Yet, according to the petitioner, he has never signed the mahazar and his signature on the mahazar is forged. Therefore, again a disputed question of fact arises with regard to the genuineness of the petitioner’s signature on the mahazar dated 19.12.2014. Obviously, these disputed questions of fact cannot be decided by this Court in its writ jurisdiction.
Interestingly, despite the fact that the petitioner has claimed that his signature has been forged on the mahazar dated 19.12.2014, despite the fact that he claims that the letter dated 02.12.2014 is a forged letter, the petitioner has not initiated any criminal proceedings, against any one, so far.
8. Since the respondent No.2 had produced sufficient evidence to show her title and possession of the property, the learned Additional Commissioner was justified in rejecting the petitioner’s application for correction in the khatha. Since the learned Additional Commissioner has given cogent and convincing reasons for rejecting the petitioner’s application, this Court does not find any legality or perversity in the impugned order.
For the reasons stated above, this Court does not find any merit in the present writ petitions; they are accordingly dismissed.
Sd/- Judge Rd/-