R. Ashwath vs Iqbal Unnissa and Others

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for the respondents.

The appellant was the defendant No. 2 before the Trial Court. The plaintiffs'' case was that the plaintiffs namely, Smt. Iqbalunnisa, the widow Shri Abdul Subhan and the children of Smt. Zahira Bi as also the widow of Shri Abdul Wahab, Smt. Ashrafunnisa, had jointly executed a power of attorney dated 6.1.1995, in favour of Smt. Nasreen Taj, daughter of late Abdul Wahab, which was duly registered and the suit was instituted by her on behalf of the plaintiffs. It was claimed that wet land bearing survey number 12 situated at Ulsoor, Bengaluru measuring 37 gutnas belonged to one Shri Usman Baig @ Ameer Saheb. Smt. Zahira Bi, the mother of plaintiff Nos. 2, 3 and 4 and the mother-in-law of plaintiff Nos. 1 and 5, was the eldest daughter of Shri Usman Baig, by his first wife Smt. Mahaboob Bi. Late Usman Baig is said to have died in the year 1946 leaving behind his second wife Smt. Saidanibi and her children Smt. Bibijan, Smt. Mahaboob Bi, Smt. Fatima, Smt. Saffaora Bi and Shri Abdulla Baig and Smt. Zahira Bi, his daughter by his first wife, as his legal heirs to succeed to his estate as per the Muslim Law of Succession.

Smt. Zahira Bi is said to have had five sons namely, Abdul Subhan - husband of plaintiff No. 1, Abdul Razack - plaintiff No. 2, Abdul Mazid - plaintiff No. 3, Abdul Sattar - plaintiff No. 4 and Abdul Wahab - husband of plaintiff No. 5 and also the father of the power of attorney holder. During her life time, Smt. Zahira Bi is said to have instituted a suit in the erstwhile Munsiff Court, Civil Station, Bengaluru in an original suit bearing O.S. No. 351/1966 seeking the relief of declaration and for partition and separate possession by metes and bounds of her 1/13th share in the estate of her father, against Smt. Venkatalakshmamma, who had purchased the land bearing survey number 12 from the second wife and her children of Shri Usman Baig @ Ameer Saheb without concurrence of Smt. Zahira Bi. During the pendency of the suit, Zahira Bi is said to have died, leaving behind her sons mentioned above and they impleaded themselves as her legal representatives and defended the suit.

The Trial Court passed the decree on 25.6.1970, declaring that Zahira Bi was entitled to 7/104 share in the plaint schedule property and she was put in possession there. Later, final decree proceedings were taken in F.D. No. 10005/1981 and that resulted in a compromise which was ordered on 1.8.1981. In terms of the compromise petition, the plaintiffs in O.S. No. 351/1966 were held entitled to a vacant plot measuring East to West: 33 feet and North to South: 73 feet in land bearing survey number 12 of Ulsoor Village, Civil Station, Bengaluru with the following boundaries: East by: private property, on the West, North and South by: remaining portion of survey number 12 and a sketch showing the plot allotted to the plaintiffs was also attached to the compromise petition and the copy of the plaint in O.S. No. 351/1966 was also filed along with the compromise petition. Subsequently, when the plot fell within the jurisdiction of the then Bangalore City Corporation, it was assigned a new number namely, 35 on a 25 feet road in Saraswathipuram, Corporation Division No. 65. Khata was also made out in the name of Shri Abdul Sattar, the plaintiff No. 4. The taxes were said to have been paid in respect of the property to the Corporation and copies of the said documents issued by the Corporation of the City of Bengaluru were produced. The plaintiffs therefore claimed the property described in the schedule being a vacant plot measuring East to West: 33 feet and North to South: 73 feet in land bearing survey number 12 of Ulsoor Village, Civil Station, Bengaluru and was bounded on the East by: private property, on the West, North and South by: remaining portion of survey number 12.

It is then claimed that one Smt. Chandramma, wife of Venkataramaiah is said to have purchased the property at Court auction in civil suit bearing O.S. No. 59/1955 on the file of the Munsiff, Civil Station, Bengaluru in execution case No. 270/1958. The said suit was said to have been filed against one Shri Gafar Baig and since he had failed to satisfy the decree, the property in question was brought to sale and sale was confirmed in favour of the said plaintiff - Chandramma on 13.11.1959 and the said certificate was issued to the said Chandramma. As per the schedule, Chandramma became the purchaser of 7/52 share in land bearing survey number 12 and she was put in possession of 5 1/2 guntas of land in south-eastern corner of land bearing survey number 12, abutting the suit property on the Ulsoor-Doopanahalli road. The extent purchased by Chandramma namely, 5 1/2 guntas of land was equivalent to East to West: 40 feet and North to South: 148 feet as carved out of land bearing survey number 12. That extent was assigned a new number 32/1, 1st Cross, Someshwarapuram Layout. Subsequently, Chandramma is said to have executed a registered settlement deed dated 12.12.1988 and bequeathed an extent of 40 feet: East to West and 20 feet: North to South, in all 800 square feet in favour of her daughter Smt. Ambujamma. As per the schedule in the deed, a sheet house measuring about 200 square feet was existing on the said extent. This, according to the plaintiffs, was to the South of their property. The defendant, who is said to be an utter stranger, however, had sought to illegally trespass and encroach upon the plaintiffs'' side and had proceeded to fix granite slabs encroaching an area of 40 feet x 33 feet and also put up a structure in the portion of the encroached area. This, the said defendant who had succeeded in doing, since the plaintiffs were outside Bengaluru in connection with their employment and plaintiff Nos. 1 and 5 were women and were helpless. The plaintiffs, on noticing the illegal encroachment, had then taken steps to institute the present proceedings. It was alleged that the total area encroached by the defendants is about 43 feet x 33 feet and accordingly, had calculated the value of the land and paid the Court fee and sought the reliefs of declaration that the occupation of the property by the plaintiffs was illegal and for mandatory injunction seeking removal of such illegal construction of erection of stone slabs and to remove the defendants from the property.

The suit was contested by defendant No. 1 initially. Subsequently, the plaint was amended to implead defendant No. 2 who is said to be a subsequent purchaser of the suit property during the pendency of the suit. Since the illegal occupation and encroachment was transferred to defendant No. 2 and therefore, defendant No. 2 was made party to the suit and plaint was amended. The defendant No. 1 had filed his written statement denying the plaint allegations and asserting that Chandramma had indeed purchased the property to the extent of 5� guntas of land and defendant No. 1 was only claiming the land so acquired by Chandramma under a settlement deed of the portion of extent acquired by Chandramma and it is infact the plaintiffs who were seeking encroachment on the property acquired by Chandramma.

In that, the plaintiffs, though originally did possess the land measuring 73 feet x 33 feet, the Corporation had formed a road on the northern side measuring 40 feet and the road was formed over the plaintiffs'' property, thereby bisecting the property. In that, part of the land was on the northern side of the road and the remaining land of the plaintiffs was on the southern side of the road. By this measure, the plaintiffs were left with land measuring 33 feet x 20 feet, on which the plaintiffs had constructed shop premises and there was no land left, on which they would lay claim towards the southern side namely, the extent of land granted to Shri Nagaraj by Smt. Chandramma, which is now been sold and this was the area of controversy. Similarly, defendant No. 2 who was said to be a subsequent purchaser of the disputed area of land, had nearly reiterated the defense set up by the defendant No. 1 and enlarged upon the same.

On the basis of these pleadings, the Court below had framed the following issues:

Whether the plaintiffs prove that the defendant has encroached an extent of 40 x 33 ft. out of suit schedule property?

Whether the court fee paid on the plaint is sufficient?

Whether the plaintiffs prove the cause of action as alleged in the plaint?

Whether the plaintiffs are entitled for possession of the said encroached portion?

What order or decree?

The defendant had filed a cross-suit in original suit bearing O.S. No. 10150/1995 contending that it was the plaintiffs who had encroached, which was clubbed along with the suit filed by the plaintiffs and by a common judgment, the suit filed by the plaintiffs was decreed as prayed for and suit filed by defendant No. 1 was dismissed. It is defendant No. 2 in the plaintiffs'' suit namely O.S. No. 668/1995 who has sought to challenge the present appeal.

Since the defendant No. 1 has no further interest in the property, he having sold the property to defendant No. 2, at the hearing of this appeal, in order to resolve the dispute, the disputed area was shown to be flanked on the southern side by a road which was in existence when Chandramma acquired the land on the Ulsoor - Doopanahalli road which is on the southern side and the newly formed road on the northern side, between which, Chandramma''s property as she originally acquired and the plaintiffs'' property were situated. Therefore, if the north-south length of Chandramma''s property was 148 feet or even 150 feet, it was a matter of ascertaining as to what was the remaining extent up to the road that was formed on the northern side.

In this regard, both the counsel were directed to carry out a joint measurement of the land as it existed between the two roads and to report. It is now reported that the total extent of land between the two roads is about 204 feet. If the land that was acquired by Chandramma to the extent of 150 feet x 40 feet or the extent on the north-south side being 150 feet, if, is excluded, the remaining extent would be 54 feet x 30 feet. Originally, the plaintiffs'' land consisted of 73 feet x 33 feet. Though it is vehemently contended by the learned counsel appearing for the defendant No. 1 and the appellant that what remained after accounting for formation of the road, was only 33 feet x 23 feet, on which the plaintiffs have already constructed shops, the remaining extent was, what was acquired by Chandramma which was approximately indicated as 5 1/2 guntas. Therefore, the error in having mentioned the area was always present. The plaintiffs were illegally laying claim to the extent of land remaining after formation of road and the plaintiffs are failing to acknowledge that there was land beyond the land formed on the northern side or in other words, they are failing to acknowledge that the newly formed road had bisected their property, therefore losing some extent on the northern side of the road which is sought to be claimed from the land on the southern side into Chandramma''s property which has been granted by her, to her children and which has been purchased by the defendant No. 2. This argument is not supported by the material documents. For the insistence, on the part of the appellant and defendant No. 1 that the measurement of land of Chandramma should commence from the northern side, is their point of view. However, there is no dispute that the road on the southern side namely, the Ulsoor - Doopanahalli road was in existence even when Chandramma acquired the land. Therefore, 150 feet which is two feet more than what she could have acquired, is measured from the Ulsoor - Doopanahalli road end. The land remaining, would undoubtedly belong to the plaintiffs. Therefore, if this point of view namely, the property of Chandramma as it was originally acquired, is measured from the northern end, there is no difficulty in ascertaining the remaining land which would certainly fall to the share of the plaintiffs. This having been established at the joint measurement and taking into account that the road formed on the northern side may be even 40 feet, it would still be possible for the plaintiffs to claim that the land as explained by the learned counsel for the plaintiffs namely, 40 feet of the road, is formed by taking 20 feet from the plaintiffs'' property and 20 feet of the property from land owners on the other side of the road, which is a plausible explanation and therefore, the Trial Court had rightly held in favour of the plaintiffs.

The learned counsel for the appellant, however, would seek to raise a further contention that the suit in its present form, was not efficacious. In that, there is no appropriate reliefs sought and it is negative relief that are prayed for and question of delivering possession, etc. would not be possible with reference to the manner in which the prayer is framed and hence, would submit that the suits be dismissed.

However, it is always open for the Trial Court to mould the relief, if otherwise, the plaintiffs have been able to establish their case and when they had paid the proper Court fee in seeking the right over the property, therefore, there is no illegality in that regard. The Trial Court, having decreed the suit as prayed for, would be adequate relief for the plaintiffs to seek recovery of possession if the defendant - appellant is in occupation of the property.

Accordingly, the appeal stands dismissed.