IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO. 487/2012 BETWEEN:
T. MOHAMMED HUSSAIN SON OF LATE T KHAJA HUSSAIN, AGED ABOUT 34 YEARS, RESIDING AT NO.186, 1ST CROSS, HOSUR ROAD, WILSON GARDEN, BENGALURU – 560 027. ... APPELLANT (BY SRI. CHETAN CHANDRASHEKHAR, ADVOCATE FOR SRI KASHYAP N NAIK ADVOCATE) AND:
SYED JAMEEL AHMED S/O ALHAJ SYED MOHAMOOD SAHED, MAJOR R/o OLD No. 6/3, NEW NO.3/3 4TH CROSS, LALBAGH FOR ROAD DODDAMAVAHALLI BENGALURU-560 004 ... RESPONDENT (BY SRI DANAPPA P PANIBHATE, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULES 1 AND 2 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.11.2011 PASSED IN O.S.NO.132/2006 ON THE FILE OF THE XLIII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE (CCH 44) DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant/plaintiff challenging the judgment and decree of dismissal passed in O.S.No.132/2006 dated 18.11.2011 on the file of XLIII Additional City Civil and Sessions Judge, [CCH. No.44], Bengaluru City.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
Brief facts of the case:
3. It is the case of the plaintiff that he is the absolute owner and in physical possession of the suit schedule property bearing corporation No.3/2, old No.7/6 and thereafter No.6/3, being the portion of property in old No.7/6 and 6/3 measuring east to west 15 feet 6 inches, North to South 17 feet 6 inches and in all measuring 274.56 Sq.feet situated at 4th Cross Road, Lalbagh Fort Road, Bengaluru-4 and together with common stair case, common bathroom and lavatory to be shared along with the defendant on the southern side of the said property.
4. It is further contended that originally suit schedule properties were the composite property of Corporation bearing No.7/6, later on 6/3, measuring 50 feet X 27 feet, belonging to Smt. Amtul Muiz and she acquired title of the said property under the registered sale deed dated 17.11.1955. The said Amtul Muiz was the mother of the present defendant and the vendor of the plaintiff namely Syed Abdul Hakeem. After the death of Amtul Muiz one of her daughter filed O.S. No.6147/1997 claiming her share in the suit schedule property. The said suit ended in compromise decree in that decree schedule ‘D’ property mentioned in the compromise petition was fallen to the share of the vendor of present plaintiff and schedule ‘F’ property was given to the share of the present defendant. The vendor of the plaintiff were in common, allotted the right to use and enjoy the common staircase measuring 6 feet X 15 feet 6 inches existing to the south and north of the shares allotted to the vendor of the plaintiff and defendant. They were permitted to use and enjoy the common bathroom and lavatory. Pursuant to the compromise petition filed in O.S.No.6147/1997, the vendor of the plaintiff and defendant have obtained the right to use stair case, bathroom and lavatory in common. Thereafter the vendor of the plaintiff sold ‘D’ Schedule property which was mentioned in the compromise petition to the present plaintiff for valuable consideration under the registered sale deed dated 24.06.2005 with a common right to use the staircase, bathroom and lavatory. Since then the plaintiff is in possession and enjoyment of the schedule property as an absolute owner.
5. It is further contended that defendant having no right, title or interest over the suit schedule property started to interfere with the right to use and enjoy the common staircase, common bathroom and common lavatory of the plaintiff available to his property. The common stair case existing to the south of the property of the plaintiff which is described in the ‘B’ schedule property. On 25.12.2002, the defendant tried to lock the common staircase so as to prevent the plaintiff from using the common staircase to reach first floor of the premises belonging to him. The common staircase is the only entry for the plaintiff to go to first floor of the premises. If the plaintiff is prevented from using the common staircase, the plaintiff will have no access to reach the first floor of the premises which he has purchased under the registered sale deed. The defendant has no exclusive right to use the stair case as it was given for the common use of plaintiff vendor and defendant in the compromise decree. In that regard the Police complaint was also filed and also plaintiff was forced to file the suit seeking relief for permanent injunction in respect of ‘B’ schedule property.
6. In pursuance of the said summons defendant appeared through the counsel and filed the written statement denying that the plaintiff is an absolute owner of the suit schedule property. Defendant also denied that the plaintiff is in possession of the said property along with the common staircase, common bathroom and common lavatory. The property is consisting of ground floor and 1st floor. The plaintiff has not properly described the suit schedule property mentioning the ground floor and 1st floor. He admits that compromise decree passed in O.S.No.6147/1997. He admits that his brother Syed Abdul Hakeem sold the ancestral property of defendant and his brothers to the plaintiff but contended that this defendant has got the right of pre-emption. The vendor of the plaintiff has sold the property to the plaintiff without consent of defendant as per law of pre-emption. The vendor has to first offer his share to the other members in the family, if the other brothers refused to purchase the same then only he can sell it to the 3rd parties because there are certain common conveniences enjoyed by these brothers and their respective families like the staircase, bathroom and lavatory, which cannot be shared with any other strangers. Hence prayed to dismiss the suit.
7. Based on the pleadings of both the parties, the Court below has framed following issues:
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3. K£ÀÄ rQæ CxÀªÁ DzÉñÀ?”
8. The plaintiff in order to substantiate his case examined himself as P.W.1 and got marked Exs.P.1 to P.6. Defendant also examined himself as D.W.1. Court below after hearing both respective counsel and also considering the oral and documentary evidence answered issue No.1 in the negative and dismissed the suit. Hence, the present appeal is filed before this Court.
9. In the appeal, the plaintiff has contended that court below has committed an error in answering issue No.1 as negative. It is also contended that defendant in the written statement, in his evidence categorically admitted the fact that the plaintiff is the owner of the portion of the property situated in ground floor and first floor. It is also submitted that staircase is the only way for the plaintiff to reach his house on the first floor. The defendant has also admitted that the first floor property is vacant that he is not using the portion of the first floor sold to the plaintiff. It is also contended that there is an admission that defendant is interfering with the peaceful possession and enjoyment of the plaintiff to use the staircase and first floor. In view of these admissions the court below ought to have allowed the suit and should have decreed the suit of the plaintiff. The Court below erred in answering issue No.1 as negative. Hence, it requires interference of this Court by setting aside the judgment and decree of the trial court by allowing the appeal by decreeing the suit as prayed for.
10. The counsel appearing for the plaintiff in support of his arguments relied upon the notice i.e. only the said action to access the portion of the first floor which belongs to the plaintiff, when such being the case, trial court ought not to have dismissed the suit of the plaintiff.
11. Learned counsel for the defendant in his argument vehementally contended that there cannot be any injunction since both are not having common staircase and defendant cannot restrained by passing order of permanent injunction.
12. The Court below while dismissing the suit of the plaintiff assigned the reasons that the evidence of P.W.1 discloses that from the date of purchase, till date he has not used the staircase, bathroom, and toilet in common along with defendant and his family members. The suit is filed only for permanent injunction. When it is the case of the plaintiff that, defendant has put lock to the said stair case, bathroom, toilet restraining the plaintiff from using them as per rights given to him in the sale deed the suit merely for permanent injunction is not maintainable.
13. To claim permanent injunction he has to prove that he either is in joint possession of the suit schedule property or in joint enjoyment of the said property. When defendant put lock immediately after sale of that property in favour of the plaintiff, the relief for plaintiff is elsewhere not by way of permanent injunction. The Court below also observed that he cannot claim any mandatory injunction against the defendant claiming right on the ‘B’ schedule property and answered issue No.1 as negative. Since the plaintiff is not in possession of the suit schedule property as on the date of filing the suit, question of granting the permanent injunction in favour of the plaintiff does not arise. The court below has given definite findings that the plaintiff has not been in possession. Hence, he is not entitled for relief for permanent injunction. There are no grounds in the appeal to reverse the findings of the trial Court and prayed to dismiss the suit.
14. The learned counsel appearing for the plaintiff in his arguments vehemently contended that there is an admission from D.W.1 that he has put the lock in the month of December 2005 and property was purchased on 24.06.2005 and he was in possession from the date of purchase till putting the lock by defendant and court below ought not to have dismissed the suit.
15. Having heard the arguments of the appellant’s counsel and Considering the grounds urged in the appeal memorandum and also the contention raised by both the parties, the points that arise for consideration of this Court are:-
1. Whether the Court below has committed an error in answering the issue No.1 in the negative and committed an error in dismissing the suit of the plaintiff and it requires interference of this Court?
2. What order?
16. Having considered the submissions made by both the counsel and also on perusal of evidence, there is no dispute with regard to the fact that the plaintiff has purchased the ‘D’ schedule property from the brother of defendant under the registered sale deed dated 24.06.2005 also it is the contention of the plaintiff that earlier sister filed the suit bearing No.O.s.6147/1997 claiming right over the suit schedule property and there was compromise in the said suit. Subsequently the parties to the said suit entered into compromise and properties were divided between the brothers.
17. The learned counsel for the plaintiff would contend that the said compromise decree was not registered. But the defendant did not dispute the sale made by his brother the portion of property of ground floor and 1st floor. it is also the admitted fact that both plaintiff and defendant are having a portion of the properties in the first floor since there are two portion, one portion is sold by the brother of the defendant and another portion is retained by the defendant. In the cross examination of P.W.1 it is elicited that he has not used common bath room, stair case and toilet and further admits that from the date of purchase of the property the said bathroom and staircase is not in his possession, further admits from the date of purchase the defendant has not allowed him to go to upstairs through stair case. It is further elicited that the house is existed on first floor of the building is still vacant.
18. The defendant in his cross examination, he also admits that ‘B’ Schedule, stair case is the only one stair case to reach the upper portion-first floor in the building. He also has seen Ex.P.2 and further admits that in Ex.P.2 it is mentioned that the Defendant No.3 is the absolute owner of ‘B’ schedule property and he has right to deal with that property in what ever manner he likes. The said portion is marked at Ex.P.2(a). The ‘D’ schedule mentioned in Ex.P.2 is correct. Further admits that there was no written agreement that if defendant No.2 indents to sell the property he has to give offer to him. But he claims that the purchaser has no right to use the stair case. There was no written agreement that if defendant No.2 his brother Syed Abdul Hakeem wants to sell the property, he shall sell the same to the member of family only. He admits that Syed Abdul Hakeem and his family members have executed Sale Deed in respect of property referred in Ex.P.1 and further plaintiff is running a shop of Automobile in ground floor of suit schedule property. Further he admits that the stair case is the only way to reach the first floor of suit schedule property. Further admits that in the 1st week of December 2005 he put lock to the gate in order to stop the plaintiff from entering into staircase. Further admits that there was Police Case in that regard and Police had called him for enquiry. It is further suggested that Police asked to open the lock as plaintiff has right to use the staircase. The same was denied. He also admits that the plaintiff has filed the suit as he has no other way to reach the 1st floor of his building and further admits that staircase is common and except this stair case there is no other way to plaintiff to reach the 1st floor 19. Having considered the oral and documentary evidence and also pleadings of the respective parties. It is to be noted that in the plaint the plaintiff has categorically pleaded that, that is the only staircase to reach the premises which is situated at first floor. Defendant also did not dispute very execution of the sale by the brother in favor of the plaintiff. Though there is clear admission on the part of D.W.1 that ‘B’ schedule property staircase is the only stair case to reach the upper-portion-first floor and further admits the right given to the parties in terms of Ex.P.2. It is marked as Ex.P.2(A) and further there is an admission that there is no written agreement that if brother intends to sell the property he shall sell the same to the members of the family only and further executed sale deed in respect of property referred in Ex.P.1 in favor of the plaintiff. He further admits that said staircase is the only way to reach the first floor of the suit schedule property and that is the common entrance and except this stair case there is no other way to reach first floor. When there is clear admission of the defendant that there is only one way i.e. the stair case to go to first floor. When the sale deed is executed in the month of June, defendant has put lock in the month of December 2005. It is noted that the defendant also claims that he is having right on the premises and such right was given to him before selling the property. It is also admitted by the parties that defendant has filed the suit before Civil Court claiming right of preemption. When the sale deed was executed in favour of the plaintiff and he has purchased the property for valuable sale consideration, the Court below fails to take note of the fact that defendant put the lock to prevent the plaintiff to access the first floor and when there is a common right given to access the first floor through the stair case. The trial court ought not to have dismissed the suit only on the admission of P.W.1 that from the date of purchase he is not in possession and comes to the erroneous conclusion that the plaintiff has not been in possession. Under the sale deed executed by brother of the defendant, the right was conferred in favour of the plaintiff and possession also given in terms of the Ex.P.1.
It is the case of the plaintiff that the defendant is causing obstruction to access the first floor. The admission of D.W.1 in the cross-examination is clear that he put the lock to the staircase in the month of December. It is clear that the defendant is interfering in enjoying the property which has been mentioned in Ex.P.1. The court below ought not to have dismissed the suit answered issue No.1 as negative. The defendant also has not disputed the sale made by his brother in favour of the plaintiff. If he has got right over the premises, the same has to be decided in the suit filed by the defendant before the Civil Court . The same has to be adjudicated and when the plaintiff has got the right and he has purchased the property by paying sale consideration and when the documents placed before the court discloses that the plaintiff has got right to access the first floor by using staircase, the Court below ought not to have dismissed the suit and very findings of the court below is erroneous and same is not passed on the evidence of the parties. When there is clear admission of D.W.1 that it is the only staircase to go to the first floor is not been considered by the Court below and reasons assigned by the Trial Court is not based on the material available on record.
20. Learned counsel appearing for the defendant referring to the judgment reported in AIR 1982 Allahabad 301 Allahabad High Court, Jagdish Rai and others v. Abdul Waha brought to my notice para 7 of the judgment, wherein the Hon’ble Apex Court discloses with regard to registration under Section 17 (1) of the Registration Act, 1908, held that the defendant do not have any title to the land who has executed the sale deed has not having any right since the application was not registered. Hence the same is invalid. No question of applying the doctrine of part performance could arise in this case for the appellants are not the transferors, and, as already observed some of the co-sharers only could not have lawfully granted the licence without reserving a reasonable rent and the co-sharers, who were not parties to the grant, could surely repudiate the grant treated as a licence. The aforementioned case is not applicable to the case on hand.
21. As per the oral and documentary evidence available with regard to the fact, the properties were compromised between the brothers, one of the brother sold the same to the plaintiff with common right was given in respect of staircase and also lavatory.
22. Counsel appearing for the plaintiff also makes submission that he does not claim any right in respect of lavatory unless suit filed by the defendant right of preemption has decided. However, he may be allowed to access the first floor by using common stair case and said common stair case is right to both the parties. D.W.1 has categorically admitted that, that is the only staircase which go to the first floor. In the case on hand, it is clear that common right has given to both the parties and both having portion of the property in the first floor, plaintiff having portion of the house in the first floor i.e. only the staircase to go to the 1st floor. When such being the case, instead of granting permanent injuction, this Court can direct the defendant not to interfere with the right of the plaintiff to go to first floor to access the first floor portion which the plaintiff has purchased since both are having common right. The defendant has categorically admitted that it is the only staircase which access to reach the first floor.
23. The Court below ignored the materials on record and committed an error in answering the issue No.1 in the negative. Hence, it requires interference of this Court.
24. In view of the discussions made above, I pass the following:-
ORDER (i) The appeal is allowed in part.
(ii) The impugned judgment and decree dated 18.11.2011 passed in O.S.No.132/2006 on the file of VIII Additional City Civil Judge (CCH.No.10) Bengaluru City is hereby set aside.
(iii) The plaintiff is given right to access the 1st floor through the common staircase. The defendant is directed not to interfere with the plaintiff in using the common staircase to got to the first floor. The defendant has already filed a suit for seeking relief of right of preemption since he belongs to Muslim community the same has to be decide by the Trial Court and this decree is subject to the result of the suit filed by the defendant which is pending before the civil court.
Sd/- JUDGE HR