IN THE COURT OF THE I ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, SECUNDERABAD.
Present : SRI A. VEERAIAH,
I Additional Chief Judge
WEDNESDAY, THE 09th DAY OF APRIL, 2025
O.S. NO. 147 OF 2008
Between :
Vijay Kumar Agarwal, S/o Sri G.R.Agarwal, Aged about 70 years, Occ : Business, R/o No. 66 and 67, A.P. Text Book Colony, Gunrock, Secunderabad. --Plaintiff
And
1. Smt. Sugandha Bai, (died as per L.R.s) W/o C. Narahari Rao, Aged 68 years, Occ: Household, R/o 4-5-628/1, Back of I.M.A., Isamia Bazaar, Hyderabad.
2. Sri B. Vijay Reddy, S/o Sri B. Ranga Reddy Deshmukh, Aged about 93 years, Occ: Landlord, R/o 1-11-254/1, Begumpet, Hyderabad - 16, Represented by the Defendant No. 3
3. Sri P. Pratap, S/o Sri P. Pentaiah, Aged 65 years, Occ: Business, R/o 6-4-399, Bholakpur, Secunderabad.
4. M/s Venkateshwara Iron Merchants, Represented by its Proprietor, Smt. Sujata, W/o Sri S. Venkateshwrulu, Aged 48 years, Occ: Business, 6-6-497, Gandhi Nagar, Beside Ramalaya Temple, Secunderabad.
5. Chavva Ashok Kumar, S/o Late C. Narahari Rao, Aged about 72 years, Occupation: Doctor, R/o H. No. 17-11-49/5, Ramanjaneya Nagar, Malkajgiri, R.R. District.
6. Smt. Kalamula Lalitha, W/o Sri K. Chandra Hari Rao & D/o Late C. Narahari Rao, Aged about 70 years, Occ: Housewife, R/o H. N. 16-9-611/2, Water Tank Road, Old Malakpet, Amberpet, Hyderabad.
7. Smt. Chandra Sena, W/o M. N. Jagath Prakash & D/o Late C. Narahari Rao, Aged about 68 years, Occ: Housewife, R/o Flat No. 401, Royal Chaitanya Apartments, H.No. 10-2-355, Gupta Enclave, West Marredpally, Secunderabad.
8. Chavva Renuka Murthy, W/o Late Sri. C. Narayana Murthy & D/o Late C. Narahari Rao, Aged about 58 years, Occ: Housewife, R/o H. No. 1-4-27/72105, Padmashali Colony, Gandhi Nagar, Hyderabad.
9. Chavva Narsing Rao, S/o Late C. Narahari Rao, Aged about 63 years, R/o Plot No. 65, Flat No. 103, Vasudhha Enclave, Neredmet, Opp. Diet College, Malkajgiri, R.R. District.
10. Chavva Sham Sunder, S/o Late C. Narahari Rao, Aged about 62 years, Occ: Doctor, R/o H. No. 14-183, Prem Vijaya Nagar, Beside St. Dukes School Lane, Malkajgiri, R.R. District.
11. Chavva Govind Raj, (died) S/o Late C. Narahari Rao, Aged about 59 years, Occ: Doctor, R/o H.No. 4-5-628/1, Pochamma Galli, Imarlsamia Bazar, Hyderabad.
12. Chavva Sangeetha @ Sangeetha Polishetty, D/o. Late Chavva Narayana Murthy and W/o. Polishetty Shankar Narayana Aged about 37 years, Occ: Pvt Employee, R/o. Flat No. 501, Lakshmi Legend Apartments, Street No.4, Gagan Manhal Colony, Domalguda, Hyderabad. --Defendants
This suit is coming before me for final hearing on 17.3.2025 in the presence of Sri Ashish Samath, Advocate for the Plaintiff and Sri R.Subramanian, Advocate for Defendant No.4 and of
Sri D.Sridhar, Advocate for Defendants No.5 to 10 and 12 and
Defendants No.1 and 11 died and Defendants No.2 and 3 set ex parte and after perusing the material and the matter having been heard and stood over for consideration till this day, this
Court delivered the following:-
J U D G M E N T
1.This suit is filed by the plaintiff for :-
a) declaring that the plaintiff is the sole, exclusive and absolute owner and possessor of the suit schedule property;
b) directing the Defendant No.5 to 12 and 4 to deliver the physical and vacant possession of the suit schedule property;
c) perpetual injunction restraining the defendants No. 5 to 12 and 4 from transferring, alienating, parting with possession in favour of the third parties or creating any third party interest or charge or changing the nature of the suit schedule property;
d) directing the defendants No. 5 to 12 and 4 to pay damages and mesne profits @ Rs.50,000/- per month to the plaintiff or as determined by the Court for unauthorized use and occupation of the suit schedule property and
e) costs of the suit .
2. In brief, the averments of the plaint are as follows :- i.The Plaintiff is the absolute owner and possessor of the suit schedule property i.e. all that the house property bearing No.6-6- 503/1/A, on Plot No.28 in Survey Nos.77 & 78, situated at Gandhi
Nagar, Secunderabad, having purchased the same from the
Defendant No.2 represented by his Power of Attorney, Defendant
No.3, for valid sale consideration under the sale deed dated 05.06.2006 bearing Document No.1203/2006. Initially, on 20.03.1995, the Plaintiff had entered into an Agreement for purchase of the suit property with the Defendant No.2 rep. by
Defendant No.3 and another by name K.Narsing Rao. The said
Narsing Rao was holding an Agreement of Sale dated 18.02.1989 prior to the Plaintiff. The Defendant No.2 was the owner of the larger extent of the land admeasuring acres 2-12 guntas in Survey
No. 71 and acres 1-31 guntas in Survey No.78, total admeasuring acres 4-03 guntas, situated at Bholakpur Village, Secunderabad
Taluq, Hyderabad District. The Defendant No.2 had executed a
Deed of General Power of Attorney in favour of the Defendant
No.3 on 04.06.1984 in respect of entire land which includes the suit property.
ii.In fact, the father of the Defendant No. 2, Ranga Reddy S/o.
Ananta Reddy was the owner of the said total extent of acres 4-03 guntas forming part of Survey Nos.77 & 78 and his name reflected in all the revenue records including the Pahanies in the column of
Pattadar. Thus, the flow of title in favor of the Plaintiff has been very clear. The Plaintiff having obtained the sale deed from the
Defendant No.2 became the absolute owner of the suit property to the exclusion of all others. After entering into the Agreement, the plaintiff had paid major portion of the sale consideration jointly to the Power of Attorney as well as the Agreement of Sale Holder.
Out of the sale consideration of Rs.9,00,000/-, the Plaintiff had paid Rs.8,50,000/- and requested them to execute and get registered the sale deed. But, when they were postponing the same and made attempts to sell the property to others, the
Plaintiff got issued a notice on 15.05.2005 and filed a suit in
O.S.No.1572/2005 on the file of I Junior Civil Judge, City Civil Court,
Secunderabad for injunction restraining them alienating the property to others.
iii.Subsequent to the filing of the said suit, the Defendant No.3 came forward and accordingly, executed the sale deed in favour of the Plaintiff as stated above. However, in the meanwhile, during the pendency of the said suit, the Defendants No. 1 and 4 herein got themselves impleaded as the Defendants No. 3 and 4 therein in the month of January, 2007 and the said suit was dismissed on 20.06.2008 holding that in view of the admitted execution and registration of the sale deed in favour of the Plaintiff under Ex.A6 therein, the suit had become infructuous. The Defendants No. 1 and 4 herein have taken the plea in the said suit that the
Defendant No.1 is the owner of the property and that the
Defendant No.4 is the tenant of the Defendant No.1 therein. The
Defendant No.1 is said to have purchased the suit property under the sale deed dated 20.04.1979 bearing Document No. 981/1979 from one G.Gnaneshwar. Though it has been admitted by the
Defendant No.1 herein that originally the property belonged to the
Defendant No.2 herein, but she has taken the plea that Sri
Saibaba Nagar Development Committee was in possession of the property and she being a member, got the sale deed in her favour.
iv.The Defendant No.2 filed a suit in O.S.No.697/1984 on the file of the III Additional Judge, City Civil Court, Secunderabad, for declaration of title and injunction against the said Saibaba Nagar
Development Committee and others. The Defendant No.1 further stated that the Defendant No.2 executed a Deed of
Relinquishment in her favour on 15.10.1985 through his Power of
Attorney/Defendant No.3 herein agreeing to receive compensation @ Rs.10/- per sq.yard that he executed a deed in that regard and that she has been in possession of the property. However, there is no motion nor any reference nor any detail as to who is
Gyaneshwar, through whom the Defendant No.1 is said to have purchased the property. Further, the Defendant No.4 herein has taken the plea in the said suit that she is the tenant of the
Defendant No.1 herein in the suit property and is in possession of it, but neither the Defendant No.1 nor the Defendant No.4 herein filed any documents in proof of their allegations and on enquiry by the Plaintiff, he has learnt that all those statements are false and concocted.
v.In fact, in view of the Defendant No.4 occupying the adjacent property of the suit property on Plot No. 29, in collusion with each other Defendants No. 1 & 4 have created documents as if the
Defendant No.1 is the owner and the Defendant No. 4 is the tenant in the suit property. In fact, neither the Defendant No. 1 nor the Defendant No. 4 are concerned, related or connected to the suit property and they have created the documents only to grab the property of the Plaintiff. The suit property has almost been vacant. Taking advantage of the business of the Defendants No. 4 in adjacent property, the Defendant No. 1 and 4 have been troubling the Plaintiff in enjoying the property with an intention to grab it. The said Sale Deed in favour of the Defendant No. 1 is also a created document in order to grab the suit property of the
Plaintiff. Admittedly, the executants of the said sale deed by
Gyaneshwar is in no way connected or concerned with the suit property. Further, the alleged Deed of Relinquishment dated 15.10.1985 is also a created, forged and fabricated one and does not convey any right, title or interest to the Defendant No. 1 in respect of the suit property nor there is any other document in support of the alleged rights. The Power of Attorney in favour of the Defendants No.3 executed by Defendant No.2 is not in dispute and in fact, the Defendant has admitted the same. Thus, the sale deed executed in favour of the Plaintiff by the Defendant No.3 representing the Defendant No.2 is valid and conveys proper, legal and valid title to the Plaintiff over the suit property. The suit property has been vacant and the Plaintiff was delivered the physical and vacant possession of the same simultaneously to the sale deed. The Defendants No. 1 and 4 have been interfering with the possession of the Plaintiff over the suit property and the
Defendant No.4 not allowing the Plaintiff to enjoy the property and has been illegally occupying the suit property of the Plaintiff, for which she has no right. Further, the Plaintiff has learnt that in the suit filed by the Defendant No.2 in O.S. No. 697/1984 on the file of the III Additional Judge, City Civil Court, Secunderabad, his right, title, interest and possession were admitted and thus ,the claim of the Defendant No. 1 is false and baseless.
vi.As the Defendant No.4 occupied the suit property illegally and without the consent and permission of the Plaintiff, the possession of the Defendant No.4 therein is illegal and unauthorized. The Defendant No.4 is liable to compensate to the
Plaintiff for occupying his property and making money thereof. In fact, the suit property is situated in a highly commercial area and it fetches not less than Rs.50,000/- per month, if the property is put to commercial use. Therefore, the Defendant No. 4 is liable to pay to the Plaintiff said amount. The suit property exclusively belongs to the Plaintiff and he is entitled to a Decree of
Declaration of his title in respect of the suit property. Further in view of the Plaintiff being the absolute owner of the suit property he is entitled to enjoy the same. Therefore, the defendants are liable to deliver the possession thereof to the Plaintiff and also to compensate to the Plaintiff for depriving the Plaintiff of his right to enjoy the property by paying damages. Hence, the suit.
3. Defendant No. 1 filed written statement, which is as follows :- i. It is incorrect to say that the plaintiff is the absolute owner and possessor of suit schedule property. It is stated by D1 that suit schedule property was purchased by her under registered Sale
Deed No.981/1979 dated 20.04.1979 from Gnaneshwar
S/o.Yadagiri and since the date of purchase till this date the defendant has been in continuous possession of the same.
Therefore, question of plaintiff having possession of the suit property is absolutely false and it is a palpable lie. The plaintiff was never in possession of the suit schedule property at any point of time. The plaintiff might have purchased the suit schedule property from the defendant No.2 through the defendant No.3 as his Power of Attorney by paying legal and valid sale consideration under the sale deed dated 05-06-2006 registered as document
No. 1283/2006 of the office of the Sub-Registrar, Secunderabad.
The house numbers and structure which is subject matter of the suit being claimed by the plaintiff and the defendant are different.
As on the date of purchase by the Plaintiff the defendant has already is in possession of H.No.6-6-496/28 and the same is evident from the earlier suits and other materials. She further stated a careful perusal of the GPA dated 04.06.1984 is an unregistered General Power of Attorney and not given sale power as such the sarme does not have any evidentiary value. Hence, the act done by defendant No.3 on behalf of defendant No.2 has no value at all.
ii. Defendant No.1 further stated that it is incorrect to say that the father of the defendant No.2, Ranga Reddy was the owner of the total extent of Ac.4-03 guntas forming part of Sy.Nos. 77 & 78 and his name reflected in all the revenue records including the
Pahanies in the column of pattadar. It is also incorrect to say that thus, the flow of title in favour of the plaintiff has been very clear and the plaintiff having obtained the sale deed from the defendant
No.2, became the absolute owner of the suit property to the exclusion of all others. It is contended that that G.Gyaneswar S/o.
Yadagiri was the absolute owner of the land in Sy.No.78 situated at
Bholkpur Village, Secunderabad. Subsequently, the entire extent was made into house plots in the name and style of Sree Saibaba
Nagar Development Committee and sold the plots to the third parties, including the defendant. However, the defendant No.2 herein filed suit O.S.No.697/1984 on the file of III Additional Judge,
Secunderabad against Sree Saibaba Nagar Development
Committee for declaration. To avoid the future litigation and all the plot owners instead of venturing into the title of the land in
Sy.No.78 compromised with the defendant No.2 herein and obtained Relinquishment Deeds through defendant No.3 on behalf of defendant No.2 by paying necessary consideration.
Subsequently, the suit was withdrawn by defendant No.2 herein by filing memo. Therefore, the defendant is the absolute owner and possessor of Plot No.28 an extent of 220 sq yards in Sy No.78 situated at Bholakpur Village, Secunderabad.
iii. Defendant No.1 further contended that it is incorrect to say after entering into the agreement, the plaintif had paid major portion of sale consideration to the Power of Attorney and also to the Agreement of Sale Holder. The plaintiff in collusion with the defendants 2 & 3 obtained the alleged sale deed in respect of suit property. However, the fact remains that the plaintiff is aware that there is no possession in respect of Plot No.28 with the defendants 2 & 3 herein and the possession is with this defendant. To avoid future litigation, the defendant has paid consideration and the defendant No.3 has executed Relinquishment Deed on 15.10.1985 on behalf of defendant No.2 in respect of Plot No.28 and the possession remained with the defendant since 20.04.1979. If so, how the plaintiff can enter into Agreement of Sale. Therefore, it is clear defendants 2 & 3 in collusion with the plaintiff a sham document have created only to deprive the rights of this deendant. It is further stated that when the plaintiff got cause of action for filing the suit in respect of suit schedule property, the plaintiff ought to have filed comprehensive suit instead of filing a suit for injunction suit as such the present suit is hit by Order II
Rule 2 of CPC.
iv. It is further stated that it is true that having come to know the collusion suit, during the pendency of the suit, the defendants
Nos. 1 & 4 herein got themselves impleaded as defendants 3 & 4 therein in the month of January, 2007. It is a fact that the Court dismissed the said suit by Judgment dated 20.06.2008. The defendant stated that it is true that the defendant Nos. 1 and herein have taken the plea in the said suit that the Defendant
No.1 is the owner of the property and that the Defendant No.4 is the tenant of the defendant No.1 therein. The defendant No.1 is said to have purchased the suit property under the sale deed
dated 20.04.1979 registered as document No. 981/1979 from one
G.Gnaneshwar. It is incorrect to say that the defendant admitted that originally the property belonged to the defendant No.2 herein. It is further stated that this delendant has been in continuous uninterrupted and peaceful possession of Plot No.28 in
Sy. No.78 from the date of purchase i.e under registered Sale
Deed No.981/1979. D1 further stated that it is true that there is no mention nor any reference nor any detail as to who Gyaneshwar is through whom the defendant No.1 is said to have purchased the property. It is stated by the defendant No.1 that even the plaintiff also failed to state either in his sale deed or in the plaint as to how the defendant No.2 has become the owner to the suit schedule property. It is true to say that the defendant No.4 herein was her tenant. It is further stated that it is incorrect to say that the defendant No.4 occupying the adjacent property of the suit property on Plot No.29, in collusion with each other defendant
No.1 and 4 have created documents as if the defendant No.1 is the owner and defendant No.4 is the tenant in the suit property. It is already stated as to how she has become the owner of the Plot
No.28, H.No.6-6-496/28 is an extent of 220 Sq.yards, Defendant
No.4 is the owner of the Plot No.29, therefore, question of creating documents or occupying the adjacent plot does not arise at all. It is incorrect to say that the defendant No.1 is not concerned, related or connected to the suit property and they have created the documents only to grab the property of the plaintiff. It is true that she has nothing to do with the house number mentioned by the plaintiff as she defendant is the owner of the H.No.6-6-496/28.
It is incorrect to say that the suit property has almost been vacant.
It is further stated that the defendant No.4 was her tenant defendant till recent and used to dump heavy iron materials, thereafter, she is in exclusive possession of the property. It is incorrect to say taking advantage of the business of the defendant
No.4 in adjacent property, the defendants 1 & 4 have been troubling the plaintiff in enjoying the property with an intention to grab it. It is stated that the plaintiff was not in possession of the property at any point of time. Really had he been in possession, the plaintiff would not have sought relief of recovery of possession.
v. It is further incorrect to say that the said sale deed in favour of the Defendant is also a created document in order to grab the suit property of the plaintiff. It is also incorrect to say that the executants of the said sale deed by Gyaneswar is in no way connected or concerned with the suit property. It is also incorrect to say that the alleged deed of Relinquishment dated 15-10-1985 is also a created, forged and fabricated one and does not convey any right, title or interest to the defendant in respect of the suit property nor there is any other document in support of the alleged rights. She has nothing to do with the plaintiffs Municipal bearing
No. 6-6-1-03/1/A. It is in correct to say that the power of attorney in favour of Defendant No.3 executed by Defendant No.2 is not in dispute and in fact, the defendant No.1 has admit about the same.
It is also incorrect to say that the sale deed executed in favour of the plaintiff by the defendant No.3 representing the defendant
No.2 is valid and conveys proper, legal and valid title to the plaintiff over the suit property. It is stated that her enquiry reveals that the Defendant No.2 has not appointed the Defendant No.3 as his Agent and that too with alienation power. Once the power of alienation is proved by the principle to an agent, as per law the said power of attorney shall be registered. In the instant case the same is not having registration and that too the execution of GPA it if is in doubtful by defendant No.2, therefore, safely it can be concluded that the plaintiff has no right, title and interest in the suit schedule property. It is also incorrect to say that the suit property has been vacant and the plaintiff was delivered the physical and vacant possession of the same simultaneously to the sale deed. It is further stated that the plaintiff also failed to state when he has lost the possession of the Plot No.28 that itself shows that the plaintiff never had possession of Plot No.28. Really had he lost possession of Plot No.28, the remedy is not suit for declaration. He shall file suit under Section 6 of Specific relief Act.
Therefore, it is clear that there is no cause of action for filing of the instant suit.
vi. It is further stated that it is incorrect to say that the defendants 1 and 4 have been interfering with the possession of the plaintiff over the suit property and the defendant No.4 not allowing the plaintiff to enjoy the property and has been illegally occupying the suit property of the plaintiff, for which he has no right. It is also incorrect to say that the plaintiff has learnt that in the suit filed by the Defendant No.2 in O.S.No.697/1984 on the file of the III Additional Judge, City Civil Court, Secunderabad, his right, title, interest and possession were admitted and thus, the claim of the defendant No.1 is false and baseless. It is stated by the deendant she never admitted in O.S.No.697/1934. Even if she admits the same, the relinquishment deed executed by defendant
No.3 on behalf of defendant No.2. The defendant has already perfected her title by way of adverse possession, therefore, it is not open for the plaintiff to claim declaration and recovery of possession by way of instant suit.
vii. It is further incorrect to say that in view of the defendant
No.4 occupying the suit property illegal and without the consent and permission of the plaintiff, the possession of the defendant
No.4 therein is illegal and unauthorized. In this regard, it is stated that she inducted the defendant No.4 as her tenant by virtue of oral tenancy. As the terms were not cordial between the defendant and defendant No.4, the defendant No.4 has handed over the said plot bearing No. 6-6-496/28 to him in the month of October 2016.
Subsequently, she inducted G.Kumar as her tenant. It is further incorrect say that the defendant No.4 is liable to compensate to the plaintiff for occupying his property and making money thereof and the suit property is situated in a highly commercial area and it fetches not les than Rs.50,000/- per month if the property is put to commercial use, therefore, the defendant No.4 is liable to pay to the plaintiff said amount. It is stated by defendant that she the absolute owner, inducted the defendant No.4 as her tenant.
Enjoyed the tenancy rights and also filed his written statement indicating the true facts. Now the defendant No.4 is no longer her tenant. Therefore, in view of the facts and circumstance, the possession over suit schedule property by her is legal and valid.
viii. It is further stated by defendant No.1 that it is incorrect to say that the suit property exclusively belongs to the plaintiff and he is entitled to a decree of declaration of his title in respect of the suit property and that the plaintiff being the absolute owner of the suit property he is entitled to enjoy the same and the defendants therefore are liable to deliver the possession thereof to the plaintiff and also to compensate to the plaintiff for depriving the plaintiff of his right to enjoy the property by paying damages.
Defendant No.1 stated that she is the absolute owner and possessor of Plot No.28 in Sy.No.78 is an extent of 220 Sq.yards with Municipal bearing No.6-6-496/28, hence question of paying damages does not arise at all. In fact, prior to obtaining the sale deed by the plaintiff that the plaintiff is aware that the Plot No.28 was purchased by the defendant and she is in enjoyment of the same. In spite of knowing the same, subsequently obtaining the registered sale Deed by third party will not give any cause of action for filing the suit. Hence, defendant No.1 prayed to dismiss the suit with exemplary costs.
4. Defendants No.2 and 3 were set ex parte.
5. Defendant No. 4 filed written statement contending that the suit is not maintainable. The Defendant No.4 is a proprietary concern represented by Smt. S.Sujatha and the godown of iron and steel of the defendant No.4 is situated at
Premises 6-6-497, there is an open land adm. 226 sq. yards bearing Plot NO.28, in Sy.No.78 belonging to the D1, who is landlord of the same. The D1 firm proprietrix father-in-law
S.Yadaiah way back in the year 1987 obtained the Plot No28 on rent of Rs.450/- for unloading the iron and steel materials. It is denied that D2 is Agreement Holder or owner of the suit property and executed power of attorney in favour of D3. The D2 did not accrue any right or title over the suit property and he cannot convey the same in favour of D3. It is further stated that D1 Smt.
Sugandha Bai is the defendant’s landlord collecting rents @ Rs.
450/- per month in the year 1995 either from her or from her husband S.Venkateshwarulu or from Mr. S.Yadaiah. The D1 husband collecting the rents and issued receipts in favour of defendants firm. D1 has stopped the collecting the rents from 1995 and D4 taking care of the property from land grabbers and
D1 directed the D4 to construct a compound wall accordingly, the
D4 is in possession of the suit property nearly for two decades and subsequently, D1 demanded huge rents and also goodwill for establishing the business and D4 negotiating with D1, but no fruitful results yielded. It is further stated that the plaintiff has filed a false suit in O.S..No.1572 of 2005 against D2 and D3 and D2 and D3 were set ex parte and D4 and D1 got impleaded themselves in the said suit and got the said suit dismissed. It is further stated that as the plaintiff and D1 interfered with the possession of the property, D4 filed O.S.No.1573/2005 and obtained interim orders before the 17th Junior civil Judge, CCC,
Secunderabad. The plaintiff has no right or title over the suit property and D4 is in possession and enjoyment of the property, therefore, question of claiming compensation from D4 does not arise. It is therefore, prayed to dismiss the suit.
6. Defendant No. 4 filed Rejoinder/written statement denying the contentions, averments and statements of Defendant
No.1. Defendant No. 4 stated that she is sitting tenant in the suit schedule property. It is further stated that D4 filed a suit for injunction against this Defendant vide O.S.No. 1573 of 2005 on the file I Junior Civil Judge, City Civil Court, Secunderabad. It is further stated that she has keenly contested the said suit and the suit was decreed. It is further stated that she had filed appeal vide
No.29 of 2016 on the file of Hon'ble High Court of Judicature and the Hon'ble High Court had directed the Defendant to hand over the possession of the suit schedule property to the Plaintiff and the same is pending. It is further stated she is carrying on business in the name of style of Venkateswara Iron Merchants from past 50 years in the premises bearing No.6-6-498, Near
Kavadiguda, Secunderabad. The Defendant No.1 is Landlady. The
Plaintiff is claiming himself as owner of the property filed a suit against her this Defendant and Defendant No.4 vide O.S.No. 147 of 2008. The Defendant No.1 remained exparte and suit was decreed, assailing the correctness of the Judgment and Decree, she had filed an Appeal against the Plaintiff before the Hon'ble
High Court and the same is pending vide C.C.C.A.No.29 of 2016. It is further stated by D4 that one Sheik Asif Pasha had also filed a suit against this Defendant claiming the said property and the suit is pending vide O.S.No 950 of 2016 on the file of XXII Junior Civil
Judge, at Hyderabad and this defendant had also filed a suit
against Sheik Asif Pasha and the same is also pending. It is further stated that another 2 suits pending before the Court at
Secunderabad. D4 further stated that one Kumar Yadav and Ravi
Kumar Yadav are stating that they are Power of Attorney of
Defendant No.1 are trying to interfere with possession and trying to remove the steel lying in the premises and on 30.03.2018, 31.03.2018 and 01.04.2018, the said persons accompanied about 20 to 25 local thugs came to Defendant premises and started abusing her and removed certain steel items from the premises and immediately, her husband called up the police station and who were kind enough to call them to the police station and enquired. Subsequently the Sub Inspector had informed the
Defendant that the S.H.O. is not available and as such he would be taking action only on 02.04.2018. It is further stated that the
Defendant No.1 is not in possession of the suit schedule, the police complaint lodged against the so called persons, who are posing themselves as Power of Attorney of Defendant No.1.
Hence, the suit is unreasonable, unsustainable and is devoid of merits and the claim of the Defendant No.1 in respect of the possession is false and she is in the possession of the suit schedule property.
7. Defendant No.1 died and her LRs, Defendants No. 5 to 12 are brought on record and they filed Adoption Memos adopting the written statement of Defendant No.1.
8.Based on the above pleadings, on 24.06.2011, the following issues were settled for trial by my learned predecessor :-
1. Whether the plaintiff is the absolute owner of the suit schedule property?
2. Whether the plaintiff is entitled to take vacant possession of the suit schedule property from the defendants No.1 and 4?
3. Whether the plaintiff is entitled to get the relief of perpetual injunction against the defendants No.1 and 4 as prayed for?
4. Whether the plaintiff is entitled to claim damages at
Rs.50,000/- per month from the defendants No.1 and 4 as prayed for?
5. To what relief?
Again on 16.07.2018, the following additional issue is farmed:-
Whether the possession of the suit schedule property is lying with the 1st defendant or the 4th defendant?
Again on 04.05.2019, the following additional issues are framed:-
1. In view of the changed circumstances, whether the plaintiff is entitled for vacant possession from D1 alone?
2. Whether the D1 has perfected her title by way of adverse possession as pleaded by her ?
9.During the course of trial, on behalf of the plaintiff, the plaintiff got himself examined as PW1, through him Ex.A1 to
Ex.A19 marked. During the cross-examination of PW1 by the learned counsel for Defendant No.1, Ex.B1 to Ex.B9 marked.
During the cross-examination of PW1 by the learned counsel for
Defendant No.4, Ex.B10 to Ex.B33 are marked. On behalf of defendant No.1, DW1 evidence filed but, DW1 evidence was eshewed. Defendant No.5/Chavva Ashok Kumar examined as DW2 and through him Ex.B34 to Ex.B38 marked. On behalf of
Defendant No.4, S.Venkateshwarulu, who is the GPA Holder and husband of Proprietrix of D4 examined as DW3 (Earlier DW3 was examined as DW1) and during cross-examination of DW3 by the learned counsel for D5 to D12, Ex.B39 and Ex.B40 marked.
10.Heard the arguments from both sides. Written arguments filed by Plaintiff and D5 to 12.
a)The learned counsel for plaintiff has argued that the plaintiff field suit for declaration of title, recovery of possession, permanent injunction and for mesne profits. He further argued that the plaintiff purchased the suit schedule property bearing
No.6-6-503/1/A on Plot No.28 in Sy.No.77 and 78 from D2 owner represented by D3-GPA Holder under Doc.No.1203/2006 dated 5.6.2006. He further argued that originally, the father of D2 by Sri
Ranga Reddy was owner of the land in Sy.No.71, 77 and 78 to an extent of Ac.4-3 guntas. He further argued that D2 succeeded to the property and thereafter D3 executed sale deed in favour of plaintiff as GPA Holder. He further argued that the plaintiff had entered into Agreement of Sale with D2 through D3 and another by name K.Narsing Rao on 20.3.1995. He further argued that
Narsing Rao was holding an agreement of Sale dated 18.2.1989 prior to plaintiff. He further argued that the plaintiff paid
Rs.8,50,000/- out of Rs.9,00,000/- and when they were postponing the same and attempting to sell the property, plaintiff filed suit vide O.S.No.1572/2005 on the file of I Junior Civil Judge, City Civil
Court, Secunderabad. He further argued that D3 executed Sale
Deed in favour of plaintiff and the suit was dismissed on 20.6.2008. He further argued that D4 is in possession of the property in the year 2008 and D2 is in possession as on the date of sale deed. He further argued that D2 filed suit against Sree Sai
Baba Nagar Development Committee vide O.S.No.697/1974 and the suit was withdrawn. He further argued that D1 claimed possession of the property bearing 6-6-496/28 whereas, the plaintiff House is 6-6-503/1/A. He further argued that D1 not denied the Agreement of Sale and registered GPA. He further argued that D1 failed to prove how Gyaneshwar became owner of the property. He further argued that an adverse possession cannot be taken against the owner. He further argued that D4 pleading that D4 paying rents to D1. He further argued that the suit was decreed ex parte, thereafter, the plaintiff also filed EP, thereafter, CCCA filed and the decree was set aside and thereafter, the WS of D1, D5 to D12 filed. He further argued that
DW1 in his cross-examination admitted that the property is one and the same. He further argued that O.S.No.1353/2007 was dismissed and it cannot be looked into. He further argued that the flow of title of Gynaneshwar not established and Gynaneshwar was not examined and no document filed D1 about flow of title.
He further argued that the relinquishment deed is not original and it is a forged one and it cannot be looked into. He further argued that plaintiff by examining himself and by marking the documents proved the flow of title and established his case, therefore, the plaintiff is entitled for the reliefs prayed in the suit.
b)The learned counsel for Defendant No.4 has argued that D4 is a tenant of the suit schedule property since 1979. He further argued that D4 carrying on business in the open plot and paying monthly rent to D1. He further argued that Yadaiah was tenant of the property. He further argued that D1 sons/daughters highly qualified and D1 not bothered to collect the rents. He further argued that D4 filed receipts to show tenancy. He further argued that D1, D2 and D3 was set ex parte and the suit was decreed and thereafter, EP filed thereafter, appeal filed and then D1 came to the court and filed petition to set aside the decree and thereafter,
D1 died and LRs came on record. He further argued that D4 filed suit not to dispossess him and the suit was decreed. He further argued that whether the suit schedule property belongs to plaintiff or D1, has to be determined. He further argued that D1 has right to evict the D4, but not plaintiff. He further argued that the suit is not maintainable. He further argued to dismiss the suit.
c)The learned counsel for D5 to D12 has argued that D5 to
D12 are legal heirs of D1. He further argued that D4 is tenant of
D1. D1 purchased plot NO.28 in the year 1979 under Ex.A1
Doc.No.981/1979 dated 20.4.1979, which is 220 sq. yards, open plot. He further argued that the claim of the plaintiff is that House
No.6-6-503/1/A. It is the claim of the D1 that House No.6-6-496/28 and D4 is neighbour of D1 and D4’s property is 6-6-497. He further argued that D4 filed O.S.No.1573/2005 against plaintiff.
He further argued that D1 Sugandha Bai filed implead petition in
O.S.No.1572/2005. He further argued that D2 already alienated
the land to third parties and Sai Baba Committee got the property.
He further argued that plaintiff created false document with the help of D2 and D3 and filed false suit with false house number.
The learned counsel for D5 to D12 further argued that the plaintiff failed to prove the flow of title. He further argued that plaintiff failed to prove that D2 is only son of Ranga Reddy. He further argued that if the D3 is GPA Holder,how D3 executed another documents as owner of the property is not clarified. He further argued that plaintiff created bogus documents. He further argued that the plaintiff alleged that he purchased the suit property in the year 2006. He further argued that plaintiff and D3 colluded and created a document and plaintiff has no cause of action. He further argued that plaintiff is aware that D1 is owner and D4 as tenant in the year 2005 itself and D4 running iron and steel business and D4 is neighbour of D1 and the plaintiff document is illegal. He further argued that plaintiff in his cross-examination admitted that plaintiff purchased 15 plots from B.Vijay Reddy through P.Pratap. He further argued that plaintiff filed only three documents, but not all the documents. Ex.A8 executed by Pratap in favour of V.K.Agarwal. Ex.A2 is created by the plaintiff V. Vijaya
Reddy and He further argued that in Ex.A2 title flow not mentioned. He further argued that as per the case of the plaintiff, there is compound wall and two rooms in the sale deed of a plaintiff whereas, the plaint schedule property is an open plot and there are no rooms. He further argued that court bailiff reported as open land and plaintiff document shows property consisting two rooms and compound wall which is false and the sale deed of plaintiff is created one. He further argued that during the pendency of O.S.No.1572/2015, Ex.A2 sale deed got by the plaintiff, which is a created one. He further argued that
Agreement of Sale is created and no GPA in favour of D3 and GPA is not registered one. He further argued that D4 is tenant who is possession of the property and PW1 does not know House number which is purchased by D1. He further argued that plaintiff not filed tax receipts pertaining to the suit schedule property and whatever the tax receipts filed after 2009 and they are not connected to the suit schedule property. He further argued that if
Sai Baba committee not developedthe property, who develped the property is not stated bythe plantiff. No permission taken by the
D2. He further argued that in the year 1971 itself, GHMC gave permission for sale of plots. He further argued that plaintiff has to prove his case, but not depend on the weakness of the defendant’s case. He further argued that D1 purchased plot No.28 in the year 1979 under registered Sale deed and now plaintiff cannot say that D1 created document in the year 1979. He further argued that plaintiff failed to prove his case. He further argued that to dismiss the suit.
11. ISSUES NO.1 TO 4:-
1. Whether the plaintiff is the absolute owner of the suit schedule property?
2. Whether the plaintiff is entitled to take vacant possession of the suit schedule property from the defendants No.1 and 4?
3. Whether the plaintiff is entitled to get the relief of perpetual injunction against the defendants No.1 and 4 as prayed for?
4. Whether the plaintiff is entitled to claim damages at
Rs.50,000/- per month from the defendants No.1 and 4 as prayed for?
All these issues are intervowen as such they are adjudicated together for brievity and convenience.
12.It is the case of the plaintiff that he got Agreement of Sale with D3 and D2 is the owner of the property and he purchased the suit schedule property from D2 through GPA Holder, D3 on 5.6.2006 under Ex.A2 and thereafter, he was dispossessed on 29.1.2007 by the defendants. On other hand, it is the case of the defendant No.1 that, defendant No.1 purchased Plot No.28 in the year 1979 under registered Sale Deed from one Gnaneshwar.
13.In a suit for declaration of title and recovery of possession, the burden heavily lies on the plaintiff to prove that the plaintiff got title to the property and that his title was denied. It is also settled legal proposition that the plaintiff cannot depend on the weakness of the case of defendant.
14.The plaintiff to substantiate his case got examined himself as PW1 and filed chief examination reiterating the averments of the plaint. Through PW1, Ex.A1 to Ex.A19 marked, which are discussed in subsequent paras.
15. PW1 in his cross examination deposed that he got possession of the suit schedule property on 5.6.2006 and he was dispossessed from the suit schedule property on 29.1.2007 by
Defendant No.4. He admitted that as on date of filing of the instant suit, he is not in possession of the suit schedule property.
He further deposed that the documents filed by him to show his possession is Ex.A2 certified copy of Sale deed and Ex.A15 which is original sale deed dated 5.6.2006. He admitted that he does not have any document to show that he was dis-possessed from the suit property on 28/29-1-2007. Except Ex.A15, he does not have any document to show that he was in possession of the suit schedule property. He further deposed that he has seen the sale deed of D1, which is registered filed in the present suit. He admitted that in Ex.A1 Sale deed dated 20.4.1979, it is mentioned at Page 2 that the Defendant No.1 is in possession of Plot No.28.
According to him as on the date of filing the suit, D4 was in possession of Plot No.28. He further deposed that as on today Plot
No.28 is bounded or surrounded with corragated sheets. He does not know whether any room is in existence in Plot No.28 since he has not visited recently. As on this date Plot No.28 is in possession of D4. He further admitted that he has not stated in his Plaint or
Chief affidavit as to how he lost his possession. He deposed that
Smt.Sujatha W/o. Venkateshwara resides in Plot No.29. Her house
No. 6-6-Plot No.29. The H.No. of suit schedule property is 6-6- 503/1/Α. He does not know the date when municipality allotted the house number, but it is very old allotment. He cannot say even the approximate year of allotment of house number. It may be 2008. He further deposed that it is may be another case pending in respect of Plot No.6-6-503/1/A. The reason not to file agreement of sale before this court is that the matter was settled with K.Narsing Rao. A document dated 20.3.1995 i.e. CC agreement of sale was confronted to the witness and the same was admitted and the same is marked as Ex.B1. A document
dated 20.3.1995 (receipt) is confronted to the confronted to PW1
and admitted and the same is marked as Ex.B2. Ex.B3 dated 27.1.1998 receipt. Another CC of receipt dated 10/11/2003 was confronted and and the same is marked as Ex B4. Another CC of receipt dated 15/12/2000 was confronted and the same is marked as Ex.B5. A CC of legal notice dated 15.5.2005 issued by S.Pandu
Advocate was confronted to PW1 and the same was admitted and the sald document is marked as ExB6. A CC of Agreement of Sale
dated 18.2.1989 was confronted to PW1 and the same was
admitted and the sald document is marked as Ex.B7. He admitted that in Ex.B1 to Ex.B7, there is over writing/correction in respect of
Plot Number. He deposed that he has not verified all the suit papers and documents in O.S.No.697/1984 but, he has verified some papers and documents. He further deposed that one B.Vijay
Kumar is the only son of Sri. Ranga Reddy. He does not have any document to prove that B.Vijay Kumar alone is the legal heir of late Ranga Reddy. He has CC of GPA dated 4.6.1984 and he can file the same before the court.
16.In his further cross-examination, PW1 deposed that the
Ex.A5-Pahani reflects the name of B.Ranga Reddy in the pattedar column. The said B.Ranga Reddy is father of D2 B.Vijay Reddy. He admitted that in Ex.A16 an Ex.A17, the name of B. Ranga Reddv is reflected in Pattedar column and there is no mention about the land being divided into plots in said pahani. He further deposed that he has seen D2 prior to six years. By that time, his sale deed was registered even before the registration of the sale deed in any his name he met D2. He knows that the father of D2 is no more at the time of registration of his sale deed but he has not verified the death certificate. He has seen the papers relating to the injunction orders issued against Sai Baba Nagar Society in the suit filed by
D2 Vijay Reddy for not to interfere. He knows the defendant No.3 prior to 1984. He further deposed that he has purchased 15 plots from B.Vijaya Reddy through P.Pratap, who is the GPA of Vijay
Reddy in the name of his family members. Approximately he has filed 4 or 5 documents. He has seen the GPA copy and so also confirmed the Vijay Reddy about the GPA given to the D3. The total power is given to D2 to deal with the plots. The survey numbers 77 and 78 are pertaining to suit schedule property. He admitted that the name of D2 is not mentioned in vendor column in Ex.A8, Ex.A13 and Ex.A14. He admitted that it is no where mentioned in Ex.A8, Ex.A13 and Ex.A14 that D3 has execuled the sale deed in the capacity of GPA to D2 and his family members.
He admitted that since GPA is not registered it is not mentioned in
Ex.A2 and Ex.A15. He further admtited that he did not pay any amount to D3 in presence of D2 and that there is a correction in page No.2 but plot number is 28. He further admitted that D4 filed a suit for perpetual injunction against him vide
O.S.No.1573/2005 it is filed on the same day when he has filed
suit against D2 and D3 vide O.S.1572/2005 and that in
O.S.No.1573/15 plaint copy the Suit Schedule Property is
mentioned as open plot. He has not filed any photographs showing that there are rooms and compound wall. He admitted that he could not take the possession of the property in the EP filed by him since both the advocates spoke to each other in the presence of the bailiff. He did not see the report of the bailiff. He admits that Ex.B8 is the CC of the bailiff report in E.P. No. 71/2016.
He further admitted that Ex.B9 is the CC of the Plaint in
O.S.No.1573/2005. He admitted that the age of the building is
mentioned as 25 years in Ex.A2. He admitted that the photo building is not annexed to the sale deed and the original also does not contain the photo of the building. He has shown the payments made to Pratap (D3) in his income tax retums. He has not filed his income tax returns into the court. He does not know the house number, which D1 is claiming. He did not file any electricity bills for the period in between his registration of the property and before loosing his possession. He admitted that in
Ex.B1/ the agreement of sale, the boundaries are not mentioned by plot number but it is simply mentioned as neighbors house. He further admitted that D1 and D4 filed implead petition in
O.S.No.1572/2005 which is filed by him before registering of Ex.A2
and A-15. He deposed that he filed the present case against D1 to
D4. He is claiming relief against D2 and D3 to declare him as a owner. He does not remember whether D2 and D3 were set exparte in O.S.No.1572/2005. He further admitted that they are exparte in this case. He does not know about that case. He further deposed that O.S.No.697/1984 is decreed in favour of B.Vijay
Reddy and he can file the xerox of the said decree if he is permitted by the court. He does not know whether the amounts was collected from the plot owners to withdraw the suit. He has not filed any document before the Court showing that D2 Vijay
Kumar Reddy is the son and the successor of Late B.Ranga Reddy.
He has not seen any document showing the permission taken by the D2 for plotting in Survey Nos.77 and 78.
17.PW1 in his cross-examination by Counsel for Defendant No.4 deposed that before registering the property in his favour he filed one suit for injunction. The said suit is numbered as
O.S.No.1572/05 on the file of I Junior Civil Judge, CCC
Secunderabad. He further deposed that he knows about the suit
O.S.No.697/1984 on the file of III Senior Civil Judge C.C.C
Secunderabad. He admitted that defendant No.4 filed a suit O.S 1573/2005 on the file of I Junior Civil Judge for injunction and that the said suit was dismissed. He further admitted tha he filed suit against D2 and D3 vide O.S.No.1572/2005 on the file of I Junior
civil judge, C.C.C, Secunderabad. He further deposed that in the
said suit D4 and D1 got impleaded. The said suit was dismissed.
Thereafter he preferred appeal. After above suit he filed a comprehensive suit for declaration, injunction and recovery of possession in the year 2008, which is numbered as
O.S.No.147/2008. He never seen Defendant No 1, he came to
know she is suffering from various diseases. He deposed that D4 has to give possession of suit schedule property to him. Through him, Ex.B10 to Ex.B33 are marked. PW1 was confronted the said documents which he admitted the same were marked by D4 earlier.
18.Counsel for D4 wanted to adopt the earlier cross- examination of PW1 recorded in the year 2011 and the counsel for plaintiff reported no objection.
19.To prove their case, Defendants No.5 to 10 and 12 got examined Defendant No.5-Chavva Ashok Kumar as DW2, who filed his chief-examination reiterating the contents of written statement and through him, Ex.B34 to Ex.B38 marked, which are discussed hereunder.
20.DW2 in his cross-examination by the counsel for the plaintiff deposed that he is claiming as owner of the Suit Schedule
Property as per the document No.981/1979. His father purchased the Suit Schedule Property in the name of his mother. He admitted that in Ex.B34 neither the house number nor the plot number is found mentioned. Ex.B38 police complaint was given by his brother youngest brother by name C.Govindaraj (D11). He does not remember whether FIR was registered upon the complaint under Ex.B38. They have not filed any document that they are the legal heirs the D1 Sugandha Bai. He admitted that the daughters of Sugandha Bai are also parties to the suit. Since the year 1979 they have been in possession of the Suit Schedule
Property. He admitted that in Ex.A1 it is not there how the vendor
Gyaneshwar got the property in his favour. He admitted that it is not mentioned in Ex.A1 the mode of payment of sale consideration. He admitted that on page no.3 in para no.6 of his chief affidavit it is mentioned that "to avoid future litigation this defendant had paid consideration and the defendant no.3 executed relinquishment deed on 15.10.1985 on behalf of defendant no. 2". He admitted that the GPA was given by defendant No.2 for execution of the relinquishment deed by defendant No.3. He does not remember who was the first witness by name Y.Rajan. The second witness by name Shiva Lingam is their caste-man. He does not admit the title of plaintiff over the
Suit Schedule Property. He deposed that the House number of the dispute property herein is 6-6-496/28. The above said house numbers is found not mentioned in Ex.A1/Registered sale deed
No.981/1979 dated 20.04.1979. His present tenant with their permission got constructed the boundary wall with blue colour tin sheets. One Mr. Kumar Yadav is their present tenant. It is for the total 220 sq yards the boundary wall with tin sheets was erected.
He admitted that the defendant No.4 M/s. Venkateshwara Iron
Marchant was their tenant. Witness added that it was their tenant till the year 2016. After their purchase in 1979 in six months to one years defendant No.4 was inducted as their tenant in the Suit
Schedule Property. He does not remember as to whether any document is there to show that after the year 2016 the defendant no.4 is their tenant. So also, he does not remember whether there is any document as to handing over the possession to his mother by defendant No.4. He admitted that in Ex.B11 to Ex.B22 house number is found not mentioned. Defendant No.4 used to stock
Iron and steel material in the suit schedule land and he is having his own house adjacent to the Suit Schedule Property. Excluding the payments made under Ex.B11 to Ex.B22 receipts passed by his father. He admitted that certain receipts that are marked in
Ex.B11 to Ex.B22 pertain to plot no.29 and the remaining pertain to plot No.28. He does not know that originally the land in survey numbers 77 and 70 belonged to one Ranga Reddy. He admitted that one Vijay Reddy (D2) is the son of Ranga Reddy. He further admitted that against the Suit Schedule Property even before filing of this suit there were some other cases and that
Venkateshwara Iron Marchant/D4 herein and Sugandha Bai/D1 his mother that impleaded themselves as parties in O.S.No.1572/2005 on the file of I Junior Civil Judge, CCC, Secunderabad. He admitted that no case was filed for cancellation of the sale deed in favour of
V.K.Agarwal/plaintiff herein and his mother admitted the title of D2 and D3 herein. Witness added that since the identity of the property of D2 and D3 is different from that of his mother she did not file for cancellation of the Sale deed. He further admitted that the property for which this suit is filed and the property which they are claiming is physically one and the same. It was during the year 1980-81 the defendant No.4 M/s. Venkateshwar Iron Merchant that became their tenant over the Suit Schedule Property. His parents were also aware of pendency of the suit. His mother was in physical possession of the Suit Schedule Property since the year 1979. He further admitted that in the written statement filed by his mother as D1 on page No.3 in para No.5, there is reference of a suit in O.S.No.697/1984 on the file of III Addl. Judge,
Secunderabad. His mother was a party to the said suit in
O.S.No.697/1984. He further admitted that the title of the property
involved in O.S.No.697/1984 was not decided by any Civil Court and the property involved in O.S.No.697/1984 is the very same the property involved in the present suit O.S.No.147/2008. To the question that why the suit in O.S.No.697/1984 was withdrawn ? He answered that D3 Pratap threatened all the members of the society including his mother to pay Rs.10 per sq yard and thereby he had executed a relinquishment deed as GPA of D2. Therefore, the suit was withdrawn.
21.In his further cross-examination, DW2 deposed that at present, he is receiving a rent of Rs.6,000/- per month for the Suit
Schedule Property and at present he himself is receiving the amount of rent on behalf of all his family members. He admitted that in the written statement filed by his mother/ D1 in the suit, it is mentioned that she along with the defendant No.4-
Venkateshwara Iron Merchants impleaded themselves as parties to the suit in O.S.No. 1572/2005. The rent for the Suit Schedule
Property was received @ Rs.5000/- per month from the year 2016 till August, 2020 and thereafter @ Rs.6000/- per month. He did not receive rents from the year 1979 till 2016.
22.DW2 in his cross examination by D4 deposed that he is deposing both on his behalf and on behalf of the other legal heirs of his mother D1 i.e., on behalf of D6 to D12. He knows that a suit in O.S.No.1572/2005 on the file of JCJ, CCC, Secunderabad was filed against D2 and D3 by the plaintiff herein. He admitted that the defendants No.1 and 4 herein impleaded themselves as parties to O.S.No.1572/2005. He is aware of the suit filed by the
D4 against D1 in O.S.No.1573/2005 on the file of I JCJ CCC,
Secunderabad. He knows that his father gave evidence in the above said two suits i.e., OS 1572/2005 and 05.1573/2005. He admitted that S. Yadaiah was inducted as tenant for the Suit
Schedule Property and in the Suit Schedule Property iron and steal business was carried out. There is no record to show that the D4 vacated and handed over the premises in the year 2016. He is aware that one Shaik Arff Pasha that filed a suit in
O.S.No.950/2016 against D4. He further admitted that the plaintiff
Vijayakumar Agarwal and one Shaik Pasha are claiming ownership over the Suit Schedule Property by virtue of the documents obtained by them and the D4 is a tenant in the suit Schedule
Property.
23. On 30.11.2012 S.Venkateshwarulu filed his chief
affidavit on behalf Defendant No.4 stating that he is the
GPA Holder and husband of wife of Smt.Sujatha, who is
proprietrix of Defendant No.4 and he was arrayed as DW3 (earlier his evidence his evidence was recorded as DW1.)
24. DW3 (DW1)-S.Venkateshwarulu in his cross-examination on 02.07.2014 deposed that his wife is hale and healthy suffering with knee pain. The extent of suit schedule property is 220 sq.yards. In his affidavit, he referred such area as 226 sq. yards.
Ex.B1 is CC of sale deed standing in favour of first defendant. He is aware that first defendant stood exparte in the suit. There is no written lease agreement in favour of Yadaiah. He further admitted that original of Ex.B2 Bunch are filed in O.S.No.1353/2007 on the file of 17th Jr. Civil Judge, PRC, Sec'bad. Ex.B2 bunch is filed in proof of the fact that D4 is the tenant and D1 is the landlord in respect of the suit schedule property. He further admitted that Ex.B2 bunch was considered and the above said plea was dismissed in
O.S.No.1353/2007 vide Ex.A7 judgment. To the question whether
personally first defendant was collecting the rents in respect of suit schedule property? He answered that D1 and her husband used to personally visit the suit schedule property and collect the rents. For plot No.29, he is the owner. It was purchased in the year 1987. He was not a tenant in plot No.29. Previously he is running his business at D.No.6-6-188, Jira compound, Sec'bad. His status in respect of suit schedule property is tenant.
25. DW3-S.Venkateshwarulu in his cross-examination on 17.11.2014 deposed that he is prepared to file the original sale deed in respect of plot No.29. He admitted that the plot No.29 and suit schedule property covered by plot No.28 are side by side and forming part of Sy.No.77 and 78. He does not know who is the pattadar of Sy.No.77 and 78. The original of Ex.B1 is with Suganda
Bai, who is the defendant No.1. He does know that the original of
Ex.B1 is produced by D1 in the earlier suit in O.S.No.1572/2005.
He further deposed that Ex.B4 to B6 are with dates subsequent to the suit. Ex.B7 is filed to show the shop address at plot No.29.
26. GPA Defendant No.4/S.Venkateshwarlu filed his
additional chief affidavit deposing that his wife/Smt.S.Sujatha
is proprietrix of Defendant No.4 and he is the G.P.A. Holder of his.
He further deposed that he had already filed chief examination affidavit on 30.11.2012 and he was cross examined by the
Plaintiff. He further deposed that the above case was decreed and thereafter, the Defendant No.1 had filed an application to set aside exparte decree and intended to context of the case. He deposed he is in possession of the suit schedule property from the year 1987 and he is carrying business in the name and style of Sri
Venkateshwara Steels. He further deposed that he has not vacated the suit schedule property and he is possession of the same. It is further deposed by him that the Defendant No.1 had made an allegation that he had vacated the property, but infact, he had not vacated the suit schedule property and is in occupation the same as Tenant.
27.During the course of his cross-examination by the counsel for D5 to D12, the DW3 deposed that the present status of the suit property is open land en-circled with iron sheets. He denied the suggestion that the Iron tin sheets were erected by one Kumar
Yadav. He does not know the said Kumar Yadav. He does not know whether D1 gave the suit property on lease to Kumar Yadav under
Ex.B35. He does not have any electricity bills, property tax receipts or any other documents to show his possession as on today. He is not aware whether the Ravi Yadav is the GPA Holder of
D1. His father purchased from one person, who is working in
Telephone Department in the year 1986. He further deposed that he did not purchase the property from Vijaya Reddy (D2). He admitted that that O.S.No.950/2016 was dismissed filed by one
Asif Pasha. He further admitted that the person shown in the photograph is one Kumar Yadav and that the material shown to him in the photograph is that of him, the said photograph is marked as Ex.B39. The photographs three in number under
Ex.B40 contains Kumar Yadav.
28.DW3 was cross-examined by the learned counsel for plaintiff and during the course of his cross-examination, he deposed that the suit schedule property was taken on lease originally by his father in the year 1987 and it was an oral lease and that the said lease is still continuing. He further deposed that since the year 1987 till date there is no written lease and the property was taken on lease from Narahari Rao the husband of Defendant No.1,
Smt.C.Sugandha Bai. He further deposed that in the year 1987, the lease amount was Rs.450/- per month and the lease amount was enhanced to Rs.500/- per month after one or two years and after that there was no enhancement till date. He further deposed that the rent was paid by way of cash till 1995 and thereafter since the property was developed by the construction a compound wall, raising a room and leveling the land of the suit schedule the rent was adjusted towards the said expenditure incurred. He deposed that as there was a case filed in O.S.No.1572 and 1573 of 2005 by the plaintiff in the year 2005, the owners of the property asked him to spend for the case, the rent amounts, therefore, he did not pay the rent after the year 2005. He further deposed that the suit schedule property is in plot No.28 and his house is in plot
No.29. He further deposed that he is in possession of suit schedule property even as on today.
29.In his further cross-examination, DW3 deposed that he did not file accounts statement pertaining to the construction of the compound wall and he did not file any document to show that everything is adjusted towards construction of the compound wall.
He further deposed that Narahari gave instructions to him to adjust the rents towards construction of the compound wall. DW3 deposed that D1 demanded the goodwill in the year 1988 orally and the fabricated documents are Agreement of Sale, Registered documents etc. Since he saw the documents of D1 found that the above documents of plaintiffs are fabricated. He deposed that he paid property tax for two to three years for suit property. He did not file any proof show his recent possession towards property.
Suit property was used for godown in Plot No.28 whereas, Plot
No.29 is used for his house and godown. He filed the documents to show his running of business in the suit property. Suit property is open land. Plaintiff interfered in his possession in the year 2005, so he filed the suit.
30.Now the documents filed by the parties to be examined.
Ex.A1 is CC of Sale Deed bearing Doc. No. 981/1979 dated 20.4.1979. A perusal of Ex.A1 shows that it is the registered Sale
Deed under which, Smt. C.Sugundha Bai, the defendant No.1 herein has purchased the Plot No.28 covered by Survey No.78, adm. 220 sq. yards, situated at Gandhi Nagar, Bholakpur Village,
Secunderabad from G.Gnaneshwar. Ex.A2 is CC of Sale Deed in favour of PW1 bearing No.1283/2006 dated 5.6.2006. It is the sale deed under which, the Vijay Kumar Agarwal/plaintiff purchased the
House bearing Municipal No. 6-6-503/1/A, on Plot No.28 in Survey
Nos.77 & 78, with compound wall and two rooms, having plinth area of 200 sft. with land adm. 220 sq. yards, situated at Gandhi
Nagar, Secunderabad, for a total sale consideration of
Rs.9,00,000/-. Ex.A3 is Encumbrance Certificate of the suit property dated 29.10.2008. It shows that the only entry with respect to Sale Deed bearing No.1283/2006 dated 5.6.2006, under which, the plaintiff purchased the property. Ex.A4 is Market Value of the suit property dated 29.10.2008. It shows the details of the structure as built-up area 200 sft., construction finished having ground floor and the market value of the property is
Rs.27,00,000/-. Ex.A5 is Copy of the Pahani for the year 1981-82.
Ex.A6 and Ex.A7 are CCs of Decree and Judgment in
O.S.No.1353/2007. A perusal Ex.A6 and Ex.A7 show that
M/s.Venkateshwar Iron Merchants rep. its Proprietrix, S.Sujatha filed the suit against Smt. C.Sugandha Bai and Vijay Kumar for perpetual injunction restraining them from interfering with the possession of the plaintiff in the suit schedule property i.e. all that open land bearing Plot N.28, in Sy.No.78, adm. 220 sq. yards, sitauted at Gandhinagar Bholakpur Secunderabad. The said suit was dismissed on 20.10.2010. Ex.A8 is CC of Sale Deed bearing
Doc.No.189/1986 dated 20.1.1986. It shows that V.K. Agarwal &
Family Kartha V.K. Agarwal purchased the all that Plot No.40/C, in
Sy.No.77 and 78, adm.217 sq. yards, situated at Gandhinagar,
Bholakpur Village, Ram Swamy Compound (Slum Area),
Secunderabad from its lawful owner P.Pratap s/o P.Pentaiah. Ex.A9 is Tax Payment of receipt. It shows that Plaintiff, Vijay Kumar
Agarwal paid tax of Rs.3150/- in respect of the House bearing
No.6-6-503/1/A28, Bansilalpet for the year 2009-10 on 25.04.2009. Ex.A10 is CC of Amended Plaint. It shows that
V.K.Agarwal S/o G.R. Agarwal filed a suit vide O.S.No.1572/2005 against P.Pratap, K.Narsing Rao, Venkateshwara Iron Merchants and Smt. C.Sugandha Bai on the file of I Junior Civil Judge,CCC,
Secunderabad. Ex.A11 and Ex.A12 are Written Statements of D3 and D4 in O.S.No.1572/2005. Ex.A13 is CC of Sale Deed dated 10.1.1986 bearing Doc.No. 122/86. It shows that the all that Plot
No.39/A in Sy.No.77 and 78, adm. 220 sq. yards, situated at
Gandhinagar, Bholakpur Village, Ram Swamy Compound (Slum
Area), Secunderabad was purchased by Master Sundeep Kumar
Agarwal from its lawful owner P.Pratap s/o P.Pentaiah. Ex.A14 is
Sale Deed dated 20.01.1986, Doc.No.188/1986. It shows that the all that Plot No.39/B in Sy.No.77 and 78, adm. 220 sq. yards, situated at Gandhinagar, Bholakpur Village, Ram Swamy
Compound (Slum Area), Secunderabad was purchased by Master
Sundeep Kumar Agarwal from its lawful owner P.Pratap s/o
P.Pentaiah. Ex.A15 is Original Sale Deed dated 5.6.2009,
Doc.No.1283/2006. It is the original of Ex.A2/Sale Deed. Ex.A16 is
Attested True copy of Town Survey Register. It shows Sy.No.77 to an extent of Ac.2-12 and Sy.No.77 to an extent of Ac.1-31 guntas of Bholakpur Village are in the name of B.Ranga Reddy and his name is also shown in enjoyer column. Ex.A17 is Attested True copy of Pahani Year 1966-1967. Ex.A18 is Provisional Receipt for cheque bearing No.62. It shows that Vijay Kumar Agarwal, the plaintiff herein paid property tax of Rs.3,150/- vide cheque
No.00053 dated 21.5.2011 in respect of suit schedule property.
Ex.A19 is Provisional Receipt for cheque bearing No.63. It shows that Vijay Kumar Agarwal, the plaintiff herein paid property tax of
Rs.3,150/- vide cheque No.00053 dated 21.5.2011 in respect of suit schedule property.
31. Ex.B1 is CC of Agreement of Sale dated 20.3.1995. It shows that B.Vijay Reddy (Vendor) and V.K. Agarwal (Vendee) has entered into an Agreement of Sale on 20.3.1995 in respect of sale of property i.e. House bearing No. 6-6-503/1/A, Plot No.28, in
Sy.No.77 and 78, adm. 220 sq. yards with two rooms and compound wall, situated at Gandhi Nagar, Secunderabad for a total sale consideration of Rs.9,00,000/- and out of the said consideration, an amount of Rs.3,00,000/- was paid by the vendee to the vendor and balance shall be payable at the time of registration. Ex.B2 is CC of Receipt dated 20.03.1995. It shows that 1) P.Pratap 2) K.Narsing Rao executed receipt having received Rs.3,00,000/- in cash from V.K.Agarwal towards part payment of sale consideration property i.e. House bearing No. 6-6- 503/1/A, Plot No.28, in Sy.No.77 and 78, adm. 220 sq. yards with two rooms and compound wall, situated at Gandhi Nagar,
Secunderabad. Ex.B3 is CC of Receipt dated 27.1.1998. It shows that 1) P.Pratap 2) K.Narsing Rao executed receipt having received Rs.2,00,000/- in cash from V.K. Agarwal towards part payment of sale consideration property i.e. House bearing No. 6-6- 503/1/A, Plot No.28, in Sy.No.77 and 78, adm. 220 sq. yards with two rooms and compound wall, situated at Gandhi Nagar,
Secunderabad. Ex.B4 is CC of Receipt dated 10.11.2003. It shows that 1) P.Pratap 2) K.Narsing Rao executed receipt having received Rs.2,50,000/- in cash from V.K.Agarwal towards part payment of sale consideration property i.e. House bearing No. 6-6- 503/1/A, Plot No.28, in Sy.No.77 and 78, adm. 220 sq. yards with two rooms and compound wall, situated at Gandhi Nagar,
Secunderabad. Ex.B5 is CC of Receipt dated 15.12.2000. It shows that 1) P.Pratap 2) K.Narsing Rao executed receipt having received
Rs.1,00,000/- in cash from V.K.Agarwal towards part payment of sale consideration property i.e. House bearing No. 6-6-503/1/A,
Plot No.28, in Sy.No.77 and 78, adm. 220 sq. yards with two rooms and compound wall, situated at Gandhi Nagar, Secunderabad.
Ex.B6 is CC of Legal Notice dated 15.05.2005. It shows that V.K.
Agarwal got issued legal notice dated 15.5.2005 to (1) Pratap and (2) K.Narsing Rao, calling upon them to come forward execute and register a regular sale deed in his favour and to deliver the physical possession fo the house with the link documents within 7 days from the date of receipt of notice failing which, he shall be complied to proceed legally for breach of Agreement of Sale and for specific performance of the contract. Ex.B7 is CC of
Agreement of Sale dated 18.2.1989. It shows that an Agreement of Sale has been executed by B.Vijay Reddy-Vendor who of the owner of the schedule property i.e. Plot No.28 in Survey Nos.77 and 78, adm. 220 sq. yards, situated at Gandhi Nagar,
Secunderabad for selling the same in favour of K.Narsing Rao-
Vendee and consideration agreed was Rs.1,50,000/-, which was already paid by the vendee to the vendor and the vendor hereby acknowledged the receipt of the same and further agreed to execute a registered sale deed. Ex.B8 is CC of Warrant of the bailiff to give possession in E.P.No.71/2016 in O.S.No.147/2008
dated 9.9.2016 issued in respect of suit schedule property
alongwith bailiff report. The Bailiff stated in his report that warrant was unexecuted stating that schedule property is not correct.
Ex.B9 is CC of Plaint in O.S.No.1573/2005 on the file of I Junior
Civil Judge, City Civil Court, Secunderabad. It shows that the said
suit was filed by M/s Venkateshwara Iron Merchants against
Smt.C.Sugandha Bai and Vijay Kumar for permanent injunction in respect of Plot No.28 in Survey No.78, adm. 220 sq. yards, situated at Gandhi Nagar, Bholakpur, Secunderabad, restraining the defendants from interfering with the possession of the plaintiff in the suit schedule property. Ex.B10 is CC of Copy of the
Doc.No.981/1979. It shows that Deed of Sale was made and executed by G.Gnaneshwar in favour of C.Sugandhi Bai on 20.04.1979 in respect of Plot No.28 in Survey Nos.77 and 78, adm. 220 sq. yards, situated at Gandhi Nagar, Secunderabad.
Ex.B11 to Ex.B27 are CC of Receipts of various dates from 6.1.1994 to 4.4.1995. It shows that C.Sugandha Bai has acknowledged the receipt of rent of Rs.450/- from S.Yadaiah,
Proprietor of M/s Venkateshwara Steel Merchant for the Plot
No.28, Survey No.78, adm. 220 sq. yards (open land). Ex.B28 and Ex.B29 are CC of Judgment and Decree dated 20.6.2008 in
O.S.No.1572./2005 on the file of I Junior Civil Judge, City Civil
Court, Secunderabad. The said suit was filed by V.K. Agarwal against (1) P.Pratap, (2) K.Narsing Rao (3) Venkateshwara Iron
Merchants and (4) C.Sugandha Bai for perpetual injunction restraining D1 and D2 from alienating the suit schedule property and the said suit was dismissed. Ex.B30 is Special Notice of
Revised Tax on Non-Residential Properties dated 10.03.2000.
The GHMC has issued the same to C.Sugandha Bai (D1) in respect of House No.6-6-496/28. Ex.B31 is Provisional Receipt for cheque vide Receipt No.23 dated 28.01.2011. It shows that
C.Sugandha Bai (D1) paid tax of Rs.14256/- for the period from 01.04.2009 to 31.03.2010 in respect of House No.6-6-496/28.
Ex.B32 is Provisional Receipt for cheque vide Receipt No.24
dated 28.01.2011. It shows that C.Sugandha Bai (D1) paid tax of
Rs.14256/- for the period from 01.04.2010 to 31.03.2011 in respect of House No.6-6-496/28. Ex.B33 is Certificate of
Registration of M/s Venkateshwara Iron Merchants dated 21.04.1981. Ex.B34 is Membership Fee dated 3.6.1984 paid by
D1 in favour of Sree Sai Baba Nagar Development Committee. It shows that the receipt was issued in the name of C.Sugandha
Bai/D1 by Sree Sai Baba Nagar Development Committee on 3.6.1984 towards the receipt of batta charges. Ex.B35 is Rental
Agreement dated 19.7.2017 (marked subject to objection as to stamp duty and penalty). It shows that it is unregistered Rental
Agreement between Owner-C.Sugandha Bai/D1 and her tenant,
G.Kumar. It further shows that House bearing No.6-6-496/28, Plot
No.28, Gandhi Nagar, Secunderabad was let-out to G.Kumar for an period of 11 months starting from 20.7.2017 and the monthly rent agreed thereunder is Rs. 5,000/- per month exclusive of electricity consumption charges and property tax charges. Ex.B36 is
Electricity Bills dated 8.2.2018 and 10.3.2018 (2 in number). The said electricity Bills are issued in the name of C.Sugandha Bai in respect of non domestic electricity connection to the Property bearing P.No.28, 6-6-496/28, Gandhi Nagar. Ex.B37 is GHMC
Property Tax Receipts (2 Nos.). These bills are issued by GHMC to
C.Sugandha Bai/D1 in respect of Door No.6-6-496/28, Bansilalpet.
Ex.B38 is Office copy of Police Complaint dated 4.6.2018 against
Plaintiff and D2 and D3 alongwith acknowledgment (marked subject to objection as to proof). It is the report lodged by
C.Govinda Raj, who is son of C.Sugandha Bai/D1 against B.Vijay
Reddy (D2), P.Pratap (D3) and Vijay Kumar (Plaintiff) for cheating, breach of trust and creating false document in order to grab the property in spite of executing Relinquishment Deed dated 15.10.1985 in favour of his mother-C.Sugandha Bai. Ex.B39 is
Photograph alongwith CD. It shows some iron roods and wire bundles were stored. Ex.B40 is Photographs (3 Nos.) which shows one person showing newspaper by standing and in two photographs, he is locking the sheet.
32. Earlier, the plaintiff herein filed suit vide O.S.No.1572/2005 on the file of I Junior Civil Judge, City Civil Court, Secunderabad against defendants No.3-P.Pratap and K.Narsing Rao for perpetual injunction restraing the D1 and D2 therein from alienating the suit schedule property, in which, defendants No.4 and 1 herein got impleaded and resisted the claim of the plaintiff. Even prior to execution of sale deed in favour of the plaintiff, D1 and D4, the D1 claimed rigths under registered Sale Deed dated 20.04.1979 and
D4 claimed its possession over the property i.e. Plot No.28. It is brought on record by evidence of DW2 and DW3 that D4 is in possession of the suit schedule property after six months of 1979 sale deed, D4 was inducted as tenant in the suit schedule property, when it the case that D1 that D1 inducted D4 as tenant in the suit schedule property, the contention of the plaintiff that he got possession from defendants No.2 and 3 on 5.6.2006 and he was dispossessed from the suit schedule property on 21.7.2007 by
D4, is not believable. The documents under Ex.A1, Ex.B1 to
Ex.B5, Ex.B11 to Ex.B27 clinchingly establish that defendant No.4 is in possession of the Plot No.28 as tenant and defendant No.1 as landlord. Therefore, the contention of the plaintiff that he got suit schedule property from the date of registration of sale and dispossessed is not at believable. It is clear from the evidence brought on record that defendants No.1 and 4 denying the very right of PW1 over the suit schedule property. The plaintiff not only had to prove his title, but also to prove his possession over the suit schedule property and the plaintiff failed to prove his possession over the suit schedule property. The learned cousnel for plaintiff has argued that in Ex.A1, it is not mentioned, how
Gnaneshwar got the property. In Ex.A2, CC of Sale Deed also it is not mentioned how Vijay Reddy got the property. It is the case of the plaintiff that defendant No.2’s father was original pattedar of property. The plaintiff not filed any document in evidence before this court to say that who made plots of the property in Sy.No.77 and 78. In Ex.A2/Sale Deed also it is not mentioned the division of property by way of plots. The plaintiff also filed Ex.A8, Ex.A13 and
Ex.A14, in which, it is not mentioned about the flow of title. No doubt in Ex.A1, there is no mention of flow of title, however, it cannot be denied that Ex.A1 is created one. The plaintiff claiming the property under Ex.A2 of the year 2006 whereas, the D1 claiming the property under Ex.A1 of the year 1979, which is old document. The document of the defendant No.1 is old document of the year 1979 and the plaintiff claiming under Ex.A2 of the year 2006. Here the defendant No.1 claims that defendant No.1 is the member of the Sree Sai Baba Nagar Development Committee.
Here the defendant No.2 filed suit against Sree Sai Baba Nagar
Development Committee vide O.S.No.697/1984 on the file of III
Addl. Judge, CCC, Secunderabad and the said suit was dismissed.
33.The plaintiff claiming suit schedule property house as 6-6- 503/1/A on Plot No.28. Whereas, it is the claim of defendant No.1 that house number is 6-6-496/28. As per the sale deed of plaintiff under Ex.A2, it shows that the property House No. 6-6-503/1/A on
Plot No.28, with compound wall and two rooms having plinth area of 200 sq. ft., whereas, as per the case of the defendant No.1, it is a open plot. As per Ex.B8/Bailiff Report, the House number not tallied. Therefore, the recitals in the sale deed of plaintiff is not at all correct about the physical features of the suit schedule property. Therefore, the property description is also in dispute between the parties.
34.It is further case of the plaintiff that prior to the sale deed, he got agreement of sale with the defendants No.2 and 3. On perusal of Ex.B1/Agreement of Sale, dated 20.3.1995, there is correction in respect of plot number and in the boundaries, it is only mentioned as neighbour’s house, 30 ft wide road, 40 ft wide road and neighbours house. In the plan annexed to Agreement of
Sale, it is shown as Plot No.29. In Ex.B2 to Ex.B7 also, there is correction in respect plot number. When the property purchased by defendant No.1 in the year 1979 and it was let out to defendant No.4 after six months of purchase of property in the year 1979, the execution of Agreement of Sale dated 18.21989 by
Vijaya Reddy through his GPA Holder, P.Pratap in favour of
K.Narsing Rao and another Agreement of Sale dated 20.3.1995 by
Vijaya Reddy in favour of V.K.Agarwal does not arise. The possession of D4 is admitted by the PW1 in his cross-examination.
Therefore, from the evidence brought on record, the plaintiff was never in possession of the suit schedule property at any point of time, therefore, the dispossession of the plaintiff does not arise. It is an admitted fact that plot No.29 purchased by D4, which is adjacent to Plot No.28 and defendant No.4 carrying the business in Plot No.29 and Plot No.28 is in occupation of defendant No.4 as tenant. Therefore, the plaintiff failed to prove his title and possession over the suit schedule property.
35.In these circumstances of the case and the evidence let in it would clinchingly show that the plaintiff failed to prove his exclusive title to the suit schedule property.
36.The learned counsel for plaitniff relied upon the following judgments :-
(i) Mangal Singh & Ors vs Shrimati Rattno & Anr (1967
AIR 1786), wherein the Hon’ble Supreme court of India held that:
“In Wharton's Law Lexicon, 14th Edn., at p. 777, the word "possession" is defined as being equivalent to 'the state of owning or having a thing in one's own hands or power."
Thus, three different meanings are given; one is the state of owning, the second is having a thing in one's own bands, and the third is having a thing in one's own power.
In case where property is in actual physical possession, obviously it would be in one's own hands. If it is in constructive possession, it would be in one's own power.
Then, there is the third case where there may not be actual, physical or constructive possession and, yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the expression "the state of owning". ”
(ii) Ajodhya Prasad Bhargava vs Bhawani Shanker
Bhargava And Anr. (AIR 1957 ALLAHABAD 1), wherein the
Allahabad High Court held:
“Section 17, Evidence Act defines an admission as "a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." It appears to me that this definition of an admission itself indicates for what purposes an admission can be used.
An admission can suggest an inference as to any fact in issue or as to any relevant fact. In both cases, the admission can be used as evidence to prove the fact in issue or the relevant fact. In addition, whenever the admission suggests an inference as to a fact in issue, it can be used for the purpose of determining the burden of proof of that fact.
The burden of proof of a fact in issue is ordinarily determined by reference to the other provisions of the Indian Evidence Act but there can be cases where an admission of a party may have the effect that, even though ordinarily the burden of proof of the fact in issue would be on one party, it may shift to the other party which made the admission on proof of the admission.”
The above judgments are not applicable to the present set of facts of the case.
37.The learned counsel for Defendants 5 to 12 has relied upon a judgment between P.Kishore Kumar Vs Vittal K.Patkar in Civil
Appeal No.7210 of 2011, Dt:20.11.2023 wherein the Hon’ble
Supreme Court of India at paras 23 and 24 held as under:
“23. This Court, in Union of India and Ors. vs. Vasavi Co- operative Housing Society Limited and Ors.6, held as under:
“15. It is trite law that, in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the
Defendants would not be a ground to grant relief to the
Plaintiff.”
24. This decision was affirmed, and further elaborated upon, in Jagdish Prasad Patel (Dead) thr. LRs. and Ors. vs. Shivnath and Ors.7, wherein this Court has succinctly summarized the law on burden of proof in suits for declaration of title as follows:
“44. In the suit for declaration for title and possession, the Plaintiffs- Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the
Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the
Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few
Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.”
38.In the case on hand, the plaintiff failed to prove his title and possession over the suit schedule property, therefore, the plaintiff is not entitled for the reliefs claimed in the suit. Accordingly, these issues are answered against the plaintiff.
39. ADDITIONAL ISSUE FRAMED ON 16.7.2018 :- Whether the possession of the suit schedule property is lying with the 1 st defendant or the 4 th defendant?
40. ADDITIONAL ISSUES FRAMED ON 4.5.2019 :- (1) In view of the changed circumstances, whether the plaintiff is entitled for vacant possession from D1 alone? and (2)Whether the D1 has perfected her title by way of adverse possession as pleaded by her?
Since the plaintiff failed to prove his case, there is no need to answer the above additional issues.
41. ISSUE NO.5 :- To what relief ?
In view of the findings No.1 to 4, the suit of the plaintiff is liable to dismissed with costs.
42.In the result, the suit of the plaintiff is hereby dismissed with costs.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in open Court on this the 09th day of April,
2025.
Sd/-
I Additional Chief Judge, City Civil Court, Secunderabad.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:-
PW1 : Vijaya Kumar Agarwal
FOR DEFENDANTS :-
DW1 : Eschewed
DW2 : Chavva Ashok Kumar
DW3 : S.Venkateshwarlu
DOCUMENTS MARKED
FOR PLAINTIFF :-
Ex.A1 -Certified copy of Sale Deed bearing Doc. No. 981/1979
dated 20.4.1979.
Ex.A2 -Certified copy of Sale Deed in favour of PW1 bearing
No.1283/2006 dated 5/6/2006.
Ex.A3 -Encumbrance certificate of the suit property dated 29.10.2008
Ex.A4 -Market Value of the suit property dated 29.10.2008
Ex.A5 -Copy of the Pahani for the year 1981-82
Ex.A6 -Certified copy of Decree in O.S.No.1353/2007
Ex.A7 -Certified copy of Judgment O.S.No.1353/2007
Ex.A8 -Certified copy of Sale Deed doc No.189/1986 dated 20.1.1986
Ex.A9 -Tax Payment of receipt
Ex.A10 - Certified copy of Amended Plaint
Ex.A11 - Written statements of D3 in 05 1572/2005
Ex.A12 - Written statements of D4
Ex.A13 - CC of Sale Deed dated 10.1.86 Doc.No.122/86
Ex.A14 - Sale Deed dated 20.01.1986, Doc.No.188/1986
Ex.A15 - Original Sale Deed dated 5.6.2009, Doc.No.1283/2006
Ex.A16 - Attested True copy of Town Survey
Ex.A17 - Attested True copy of Pahani Year 1966-1967
Ex.A18 - Provisional Receipt
Ex.A19 - Another Provisional Receipt
FOR DEFENDANTS :-
Ex.B1 -CC of Agreement of Sale dated 20.3.1995 between B.Vijay Reddy (Vendor) and V.K. Agarwal (Vendee)
Ex.B2 -CC of Receipt dated 20.03.1995.
Ex.B3 -CC of Receipt dated 27.1.1998.
Ex.B4 -CC of Receipt dated 10.11.2003.
Ex.B5 -CC of Receipt dated 15.12.2000
Ex.B6 -CC of Legal Notice dated 15.05.2005 got issued by V.K.Agarwal to (1) Pratap and (2) K.Narsing Rao
Ex.B7 -CC of Agreement of Sale dated 18.2.1989 executed by B.Vijay Reddy-Vendor in favour of K.Narsing Rao-Vendee
Ex.B8 -CC of Warrant of the bailiff to give possession in
E.P.No.71/2016 in O.S.No.147/2008 dated 9.9.2016
missued in respect of suit schedule property alongwith bailiff report
Ex.B9 -CC of Plaint in O.S.No.1573/2005 on the file of I Junior
Civil Judge, City Civil Court, Secunderabad.
(Ex.B1 to Ex.B9 marked in cross-examination of PW1)
Ex.B10 - CC of Copy of the Doc.No.981/1979, executed by G.Gnaneshwar in favour of C.Sugandhi Bai on 20.04.1979
Ex.B11 - CC of Receipt dated 6.1.1994
Ex.B12 - CC of Receipt dated 12.4.1994
Ex.B13 - CC of Receipt
Ex.B14 - CC of Receipt dated 7.3.1994
Ex.B15 - CC of Receipt dated 6.4.1994
Ex.B16 - CC of Receipt dated 7.6.1994
Ex.B17 - CC of Receipt dated 6.5.1994
Ex.B18 - CC of Receipt dated 6.7.1994
Ex.B19 - CC of Receipt dated 6.8.1994
Ex.B20 - CC of Receipt
Ex.B21 - CC of Receipt dated 6.9.1994
Ex.B22 - CC of Receipt dated 7.12.1994
Ex.B23 - CC of Receipt dated 8.11.1994
Ex.B24 - CC of Receipt dated 6.2.1995
Ex.B25 - CC of Receipt
Ex.B26 - CC of Receipt dated 9.3.1995
Ex.B27 - CC of Receipt dated 4.4.1995
Ex.B28 - CC of Judgment dated 20.6.2008 in O.S.No.1572./2005 on the file of I Junior Civil Judge, City Civil Court, Secunderabad.
Ex.B29 - CC of Decree dated 20.6.2008 in O.S.No.1572/2005 on the file of I Junior Civil Judge, City Civil Court, Secunderabad.
Ex.B30 - Special Notice of Revised Tax on Non-Residential Properties dated 10.03.2000 issued by the GHMC
Ex.B31 - Provisional Receipt for cheque vide Receipt No.23 dated 28.01.2011.
Ex.B32 - Provisional Receipt for cheque vide Receipt No.24 dated 28.01.2011.
Ex.B33 - Certificate of Registration of M/s Venkateshwara Venkateshwara Iron Merchants dated 21.04.1981
MARKED THROUGH (DW2)
Ex.B34 - Membership Fee dated 3.6.1984 paid by D1 in favour of
Sree Sai Baba Nagar Development Committee
Ex.B35 -Rental Agreement dated 19.7.2017 (marked subject to objection as to stamp duty and penalty)
Ex.B36 - Electricity Bills dated 8.2.2018 and 10.3.2018 ( 2 in number)
Ex.B37 - GHMC Property Tax Receipts (2 Nos.)
Ex.B38 - Office copy of Police Complaint dated 4.6.2018 against Plaintiff and D2 and D3 alongwith acknowledgment (marked subject to objection as to proof)
MARKED THROUGH (DW3)
Ex.B39 - Photograph alongwith CD
Ex.B40 - Photographs (3 Nos.)
Sd/-
I Additional Chief Judge, City Civil Court, Secunderabad.