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IN THE COURT OF THE IX ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT :: HYDERABAD
DATED, the 15th day of June, 2016.
PRESENT : SRI.C.VENKATESH IX Additional Chief Judge.
ORIGINAL SUIT NO.19 OF 2003
Between:
Mohd.Murtaza Ali S/o.Late Dr.Mohammed Quasim ali, aged about 44 years, Occ: Unemployed R/o.H.No.16-3-994/1, Opp: Government Printing Press, Malakpet, Hyderabad, A.P.
… Plaintiff
And :
1.Tayyaba Husnara Begum W/o.Late Mohd.Razaullah aged about 55 years, Occ: Household,
R/o.No.19, Maharashtra – Housing Board Colony,
Shah Bazar, Aurangabad, Maharashtra State.
2.Dr.Mohd.Mumtaz Shahed Ali S/o.Late Dr.Mohd.Quasim Ali, aged about 54 years, Occ: Government Employee,
R/o.H.No.16-3-994/1, Opp: Government Printing Press,
Malakpet, Hyderabad, A.P.
3.Tayyaba Talath Ara Begum W/o.Mohd.Salahuddin, aged about 53 years, Occ: Household,
R/o.No.17-2-459, Kurmaguda, Saidabad, Hyderabad.
4.Dr.Mohd.Iqbal Ali, S/o.Late Dr.Mohd.Quasim Ali, aged about 52 years, Occ: Doctor,
R/o.H.No.16-3-994/1, Opp: Government Printing Press,
Malakpet, Hyderabad, A.P.
presently residing at 5 clare road, 2
Green Ford Middle Sex U.B.6 ODE, U.K.
5.Mohd.Sadath Ali S/o.Late Dr.Mohd.Quasim Ali, aged about 51 years, Occ: Lab-Tech
R/o.H.NO.16-3-994/1A, Malakpet, Hyderabad, presently residing at P.O.Box No.1028,
Nejran Kingdom of Saudi Arabia.
6.Mohd.Mujhtaba Ali, S/o.Late Dr.Mohd. Quasim Ali, aged about 50 years, Occ: Undertaken Government Employee,
R/o.H.No.16-3-994/1, Opp: Government Printing Press,
Malakpet, Hyderabad, A.P.
7.Tasneem Tayyaba W/o.Mumtaz Hussain Junaidi, aged about 49 years, Occ: Household,
R/o.H.No.17-9-616, Chowni Nade Ali Baig,
Hyderabad, A.P.
8.Mohd.Shabeer Ali, S/o.Late Dr.Mohd.Quasim Ali, aged about 48 years, Occ: Lab-Tech
R/o.H.No.16-3-994/1, Opp: Government Printing Press,
Malakpet, Hyderabad, A.P., presently residing at Al-Aziziah primary Health Care and Central Laboratory, P.O.Box 7538,
Jeddah 21472, Kingdom of Saudi Arabia.
9.Masroor Tayyaba W/o.Zaheer Ahmed, aged about 47 years, Occ: Household,
R/o.20-3-408, Moosa Bowli, Hussaini Alam,
Hyderabad – A.P.
… Defendants
This Original Suit is coming on this day before me for final hearing in the presence of Sri.Murtaza Ali (Party in person), for the Plaintiff, and of Sri.Osman Shaheed, advocate for Defendant No.1 to 5, and D7 and D9 and of Sri.Rama Subba Rao, advocate for D6 and D8, and the 3 matter having been stood over for consideration, till this day, this court delivered the following:
JUDGMENT
1.This is a suit filed for partition and separate possession of 1/8th share to the plaintiff of properties A and B schedules.
2.The brief averments of the plaint are that, the plaintiff Mohd.Murtaza
Ali, party in person, submits that his father later Mohd.Quasim Ali, Retired
Civil Surgeon R/o.H.No.163994/1, Opp: Government Printing Press,
Malakpet, Hyderabad, A.P., expired on 28.3.1989. His father was the owner and possessor of the properties bearing M.C.H.No.163994/1, of 'A' Schedule, situated at Malakpet, and the properties bearing No.32739 to 32744, situated at Chappal Bazar, Hyderabad, described in 'B' schedule, leaving behind the plaintiff, defendants. The plaintiff mother passed away on 25.2.1994.
3.During the lifetime of his father, the D2 was permitted to collect rents from tenants in respect of 'B' schedule properties H.No.32739 to 32744, situated at Chappal Bazar, Hyderabad, A.P., and handed over the said rents to his father Mohd.Qasim Ali. After demise of the Mohd.Quasim Ali, the D2 is collecting rents from the tenants in respect of 'B schedule property. That the D2 along with other defendants are liable to account for the rents collected by him and to pay the plaintiff's share. His father has deposited enormous amount in various banks in his name, also there was Jewellery golden and silver ornaments of the plaintiff's mother, in which he got share which are withdrawn by them when the plaintiff was at Mecca, Kingdom of Saudi Arabia in the year 1989. That the plaintiff reserves his right to include the movable and immovable properties of plaintiff father and mother discovered in future. That 4 the immovable properties are the Matruka property of late Mohd.Qasim Ali, and the same are in joint possession of all the coowners or sharers are yet to be partitioned among the legal heirs of late Mohd.Quasim Ali, to date.
4.D1 to D9 are the sons and daughters of late Dr.Mohd.Quasim Ali, are the legal heirs and successors to the properties left by his father
Dr.Mohd.Quasim Ali. He requested number of times demanded continuously to effect the partition of the above said properties and give the legal share in the said properties, but all of them postponed the matter on one excuse or another and drag the matter for a long decade. He has filed a suit in O.S.No.747 of 1994 which was allotted to IV Senior Judge, City Civil Court, Hyderabad in
I.A.No.1801/1995, the order was passed dt:21.3.1996 appointing an advocate/receiver for the purpose of collect the rents from the tenants in the house No.32739 to 32744, Chappal Bazar, Hyderabad. That the suit was transferred to I Senior Judge, City Civil Court, Hyderabad and again to II
Senior Judge, City Civil Court, Hyderabad. He undergone with a Chest pain on 19.6.2000 and 31.7.2000 and admitted in Osmania General Hospital,
Hyderabad. He received a notice from VII Senior Judge, City Civil Court,
Hyderabad dt: 23.10.2000 to persue the matter on 8.11.2000. On receiving notice at his residence, he was on the bed herein, he could not recover himself and persue and matter by appearing in the court. Defendants 1 to 9 are fully aware of the health condition undergoing treatment which unable for him to feel healthy in this condition. He appeared in the said court on 8.11.2000 and 14.11.2000. And on 27.11.2000 he could not stand or bear to stand in that health condition. He filed a memo of withdrawal in the suit O.S.No.747 of 1994 leaving the matter of partition open. He appeared in the court on 14.11.2000 and 27.11.2000.
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5.He submitted that on 21.8.2002, he undergone with a chest pain due to defendant Nos.1 to 9 fails to partition the property inspite of caused towards him harassment and he demanded several numbers of times for partition of properties as he has no other source for which, he has to file the suit for partition of his legal heirs holding the defendants are all responsible for the costs and consequences arising therefore for which given a notice in newspaper on 31.10.2002 stating, instituting by filing the suit for partition of said properties.
6.He submitted that his mother Smt.Tayyaba Begum has filed a complaint to the Inspector of Police, Dabeerpura, Hyderabad dt:6.1.1990, and a complaint to the Commissioner of Police, Hyderabd dt:9.6.1993, the same is directed with a copy of Area A.C.P.Mir Chowk, Hyderabad and to the Inspector of Police, Dabeerpura, Hyderabad. The said fact is came to the knowledge after a decade period of 11 years. He submitted that all informations, allegations submitted in the complaint all are incorrect, false and not at all true, but the same is propagated by various methods to mislead the court and other courts.
This has caused a severe hurt to him and his image and tried to destroy his reputation and damage to his legal share both in City Civil Court, Hyderabad and at various placed outside the court, for which, damage cause to the plaintiff to desert the life of the plaintiff. D1 to D9 are liable to answer for allotting plaintiff legal share in the said properties and the partition is not yet affected to till date. Hence, the suit.
7.Written statement filed by D1, D5, D6, D8 and D9.
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8.D1 filed written statement on following lines admitting the relationship of parties and properties enjoyed by their father and left as Matruka property.
She further submitted that she being the eldest and got marriage and residing at Aurangabad, Maharastra State. She already executed GPA in favour of D6 and the same was cancelled having knowledge of the proceedings of the cases and due course of time regarding the plaintiff admitted in hospital and health condition. The plaintiff rightly knocked the doors of the court for affecting partition preserving the rights of others. She further submitted that it is the duty of other defendants to come forward after having knowledge to act upon and do the needful. It was bound and duty of late mother to have equal vision among the family members to maintain cordial relations and to resolve the menace amicably in the four walls of the house. The mischievous activities have taken place and caused damaged and reputations not only to the plaintiff but other family members and precious time has passed without any fruitful results.
9.She submitted that it is just and necessary to share the properties among plaintiff and other defendants who are legally entitled as per Muslim Personal
Law in both 'A' and 'B' schedule properties or else it will be very difficult for all shareholders to peacefully enjoy the shares.
10.She submitted that the male members are entitled 1/8th share and other female shareholders are entitled for ½ of male shareholders in both 'A' and 'B' schedule properties and it is for the court to fix the stamp duty as per
Registration Act after affecting the partition and all the shareholders are bound to bear the expenses of stamp duty. Hence, prayed to decree the suit.
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11.Written statement of D5 submitted that late Dr.Mohd.Quasim Ali, father of all the parties was absolute and lawful owner of three properties i.e., (1)
Ahouse bearing M.C.NO.163994/1, admeasuring 800 Sq.yards, situated at
Malakpet, Hyderabad, (2) House, bearing M.C.No.32739 to 744, admeasuring approximately 700 sq.yards situated at Kachiguda, Hyderabad and (3) open plot of land bearing No.163994/1, admeasuring 173 sq.yards, situated at
Malakpet, Hyderabad.
12.The defendants parents died intestate leaving behind them no will, nor the defendants father conveyed, transferred the said properties by way of oral/written gift, in favour of plaintiff's/defendants or except property bearing
No.163994/1, admeasuring 173 sq.yards, situated at Malakpet, Hyderabad, which was gifted to this defendant through a registered gift deed. So the properties situated at Malakpet and Kachiguda, except the property which was gifted to him, remained as Matruka property of the defendants father and the same are still undivided and liable to be partitioned between the parties to the suit. They denied the allegation that 'A' schedule property was transferred in favour of D6 and D8 by way of settlement deed or through any instrument. He further submit that he has share in respect of suit property as one of the legal heirs since the gifted property was not a Matruka property of his parents as his father was still living at the time of the gift. After death of defendants parents he can claim a share in the Matruka properties. He denied the allegation that document dated 21.9.1978 bears the signatures of him and he signed on the said document in token of acceptance. He submitted that the said document is not in admissible in evidence nor it has got any legal value nor it would prove transfer of immovable property in favour of anyone much less than the D6 and
D8. It is false that the validity, legality and execution of the said document was 8 admitted by D1, D4 to D6, D8 and D9 in a family settlement deed, dated 4.12.1994, allegedly drafted and signed in the chambers of Sri.M.A.Qureshi,
Advocate. No such family settlement took place at any point of time. The said plea is taken by D6 and D8 with a a malafide intention and with an oblique motive to usurp the properties of the parents of D5 and to deprive their legal heirs of their legitimate shariath share. He further submit that the GPA was executed on 8.3.1994 by Sri.Masroor Tayyaba in favour of D6 admitting the execution of document dated 21.9.1978, but even if there is any such admission it would have no legal value at all as an illegal document cannot be subsequently admitted to be legal by any party to the document in order to defeat the law.
13.He further submitted that under the provisions of Transfer of Property
Act, every transfer of immovable property, or worth of more than rupees 100/ should be transferred through a registered instrument only, and in the absence of a registered instrument no transfer can be affected in the eye of law and if any such transfer if affected, it is absolutely illegal and the same cannot be legalized by any party by admission.
14.The defendants came to know regarding the alleged GPA and they got issued a legal notice denying his validity, legality, genuineness and truthfulness through their counsel. Hence, the face value of the alleged GPA would lose its ground and cannot be acted upon nor it can be taken into consideration. The house situated at Kachiguda is vacant except one room in which defendant
No.2 is running his clinic even today.
15.The defendant No.6 and 8 have colluded with each other and set up a 9 false story of settlement deed in their favour alleging that such a deed was executed by the defendant's parents while leaving Indian to perform Haj pilgrimage.
16.It is false to say that the properties at Kachiguda were allotted to the share of the plaintiff, D2 and D5. The properties of defendant's father were not at all divided till today, so the question of allotment would not arise. He is not aware of any cheque petition filed by the plaintiff in O.S.No.747 of 1994. Even if a cheque petition was filed and rent amount was withdrawn by the plaintiff it would not prove this title and possession in respect of the houses situated at
Kachiguda, Hyderabad.
17.The plaintiff cannot claim himself to be the owner of the houses situated at Kachiguda, Hyderabad. Mere receiving of rent is not the proof of title nor it is a proof of allotment of shares.
18.He further submitted that he is not aware of withdrawal of money by this mother from the bank account of his deceased mother. He admitted that the plaintiff has withdrawn O.S.No.747 of 1994, but its withdrawal will not act as Res Judicata against this defendant nor this defendant will lose his right by virtue of such withdrawal. Hence, prayed to decree the suit.
19.D6 filed written statement. The plaintiff was residing at House No.32 744 Kachiguda, Rahmat Bagh, Hyderabad and by obtaining exparte injunction, he came to reside at Malakpet in the out house.
20.He submitted that Dr.Mohd.Qasim Ali, the father of the defendant and 10 his mother before leaving for Mecca for pilgrimage, settled all immovable properties to this children and executed a document dated 21.9.1978 to that effect. According to that document, the properties are settled as under :
1. Property at Chappal Bazar house, 32739 to 744 aMumtaz Shahid Ali, Deft.2 bMohd.Sadat Ali, Deft.5 cMohd.Murtuza Ali, Plaintiff.
2. Property at Malakpet, M.No.163994/1 a Mohd.Iqbal Ali b Mohd.Mujtaba Ali c Mohd.Shabbir Ali
3. The plaintiff along with defendant No.2, Mumtaz Shahid Ali and
Defendant No.5, Mohd.Sadat Ali, was given H.Nos.32739 to
744. As such the plaintiff has no share, right or title in property bearing M.NO.163994/1, situated at Malakpet. The deceased father and mother took the signature (on document dated 21.9.1978) of the following in token of acceptance by.
(I). Def.3, Tayyaba Talat Ara Begum
(ii). Def.4, Mohd.Iqbal Ali,
(iii). Def.5, Mohd.Sadat Ali,
(iv). Deft.6, Mohd.Mujtaba Ali,
(v). Deft.8, Mohd.Shabbir Ali,
(vi). Deft.9, Masroor Tayyaba
21.The execution of the aforesaid document dated 21.9.1978 is admitted by :
I.Deft.1, Tayyaba Husna Ara Begum 11
II. Deft.Iqbal Ali,
III. Deft.5, Mohd.Sadat Ali,
IV. Deft.6, Mohd.Mujtaba Ali
V. Deft.8, Mohd.Shabbir Ali
VI. Deft.9, Masroor Tayyaba in family settlement deed dated 4.12.1994 drafted and signed in the chambers of M.A.Qureshi, Advocate.
22.The execution of the said document dated 21.9.1978 has also been admitted by defendant No.9, Masroor Tayyaba in the GPA document dated 8.3.1994 executed by her in favour of him. In view of the said settlement by father and admission by the parties as stated above, the plaintiff has no right in
Malakpet property.
23.The plaintiff earlier filed O.S.No.747/1994 for the same properties of the subject matter for decision. The case was at the stage of final argument.
The evidence of this defendant and also the plaintiff's side was completely adduced. At that stage, having found that the case will be decided against the plaintiff. He filed a memo withdrawing the suit as not pressed. After two hearings, the suit was dismissed as not pressed. No permission was asked nor given to withdraw the suit with the permission to file fresh suit on the same cause of action and for the same relief. In that case plaintiff was personally conducting the case from the beginning to the end. That decision operates as res judicata and it is a bar for the tenability of this suit. This suit is also being contested by the plaintiff personally.
24.The properties at Kachiguda were allotted to D2, D5 and plaintiff and 12 they were collecting the rents.
25.He submitted that on closure of the earlier suit O.S.No.747/1994, the plaintiff filed a cheque petition in that case and withdrawn all the amounts of rent about Rs.1,00,000/ from court pertaining to the Kachiguda houses collected from the tenants by the Receiver and deposited in the court. This itself is an admission and acts as Estoppel on the plaintiff that he accepts the allotment of Kachiguda houses in his name. The plaintiff considered himself as owner of Kachiguda houses, in taking the amount as the plaintiff is taking contrary plea in this case that there is no partition by separate allotment of properties. The plaintiff is directed to deposit back the amount in the court. It operates as estoppel by deed and the plaintiff cannot permitted under law to blow hot and cold at the same time. The amount was deposited by late father in the Bank was withdrawn by the deceased mother. Now there is no property left whether movable or immovable for partition.
26.The defendant further submitted that O.S.No.747/1994 was filed and it was withdrawn as not pressed by the plaintiff but without taking permission to file fresh suit on the same cause of action and for partition of the same properties. He denied allegation that plaintiff was having chest pain on 19.6.2000 and 31.7.2000 and that he was admitted in Osmania Hospital and denied the allegation that court issued notice dated 23.10.2000 was issued to the plaintiff to appear in the court. The documents filed by plaintiff from hospital are managed and concocted.
27.The plaintiff was hale and healthy and he was regularly appearing in the case till the last day of hearing. A memo of withdrawal does not contain the 13 words “leaving the matter of partition open”. The plaintiff on his own accord has no right to leave the matter of partition open. The otherside counsels were regularly appearing in the case and the averment contra made by the plaintiff is false.
28.The plaintiff to file the present suit is barred under the law. The defendants further submitted that during the lifetime of deceased father and mother gift settlement was made and no property is left for partition by the heirs. Earlier suit filed for partition was dismissed and this suit is not tenable.
Hence, prayed to dismiss the suit with costs.
29.D8 adopted the written statement filed by D6.
30.D9 filed written statement submitted admitted the parties to the suit of late Dr.Mohd.Qasim Ali, father was owner and possessor of 'A' and 'B' schedule properties and died on 28.3.1989 leaving behind his wife Smt.Tayyaba Begum and plaintiff, D2, D4 to D6 and D8 are his sons and D1, D3, D7 and D9 are daughters and the mother of the parties also died on 25.2.1994 as such the parties to the above suit are only the legal representatives and successors of the plaint 'A' and 'B' schedule properties and the said properties as Matruka properties left by the father of the parties to the above suit. The partition of the properties was not effected and the same is liable to be partition among the parties to the suit as per the Muslim Personal Law of inheritance. She admitted that D2 was permitted to collect the rents from the tenants who were under occupation in respect of 'B' schedule property thereby the D2 was collecting the rents and hand over the said rents to the father during his life time. She admitted that D2 was collected rents from the tenants after demise of his father 14
D2 has been looking after all the affairs in respect of the 'B' schedule properties and in fact the major portion of the said properties had already collapsed and the remaining portion of the said properties is in dilapidated condition thereby some of the tenants were already vacated and there are three tenants in other portion of the 'B' schedule properties which is also under dilapidated conditions. This defendants has no knowledge about deposit of any amount by the father in various banks and that jewellary, Gold and Silver ornaments of the mother as alleged by the plaintiff.
31.She admitted that the parties to the suit are sons and daughters of
Mohd.Quasim Ali, who left the plaint schedule properties and this defendant has been making constant request and demand to her brothers to effect the partition of the plaint schedule properties and to allot share of this defendant after demise of the father and mother. Though D2 was ready to effect the partition of the plaint schedule properties among all the legal heirs of late
Mohd.Quasim Ali in the year 1994, but the plaintiff has filed a suit for partition separate possession etc., bearing O.S.No.747/1994, on the file of IV
Addl.Judge, City Civil Court, Hyderabad and that to defend the said suit on behalf of this defendant had executed a GPA in favour of D6, in good faith being a brother to safeguard the rights and interest of this defendant in respect of the plaint schedule properties, but the D6 had acted against the interest of this defendant thereby he filed a collusive written statement against the interest of this defendant in the said suit O.S.No.747/1994, and the said factum of fraud played by the D6 in the said suit had came to the knowledge of this defendant after long ago and thereafter she had cancelled the power of
GPA and this defendant had also deposed in the said suit thereafter the said suit was transferred to VII Senior Civil Judge and the counsel of this defendant 15 never informed about the development of the said suit later this defendant was informed the said suit O.S.No.747/1994 was withdrawn by the plaintiff by leaving the partition open, but the fact remains that the plaint schedule properties are Matruka properties left by father of the parties and same liable to be partitioned among the all the legal heirs and this defendant is entitled 1/16th share in the plaint schedule properties. Hence, prayed to decree the suit.
32.Basing on the above pleadings, the following issues are framed for trial:
1. Whether the parents of the plaintiffs and defendants settled all the immovable properties of their children under a document
dated 21.9.1978 and it was acted upon?
2. Whether the suit is barred under Order 2 Rule 2 CPC in view of the withdrawn of O.S.No.747/1994 filed by the plaintiff without leave to file a fresh suit?
3. Whether the plaintiff is entitled for 1/8th share in the plaint 'A' and 'B' schedule properties?
4. To what relief?
33.On behalf of plaintiff, PW1 is examined and Exs.A1 to A39 are marked.
On behalf of defendants, DWS.1 to DWS.3 are examined and got marked
Exs.B1 to B21.
34.PW1 Mohd.Murtuza Ali, filed his chief examination depose that he filed the suit for partition of suit schedule property in 8 shares of allotment to that of 1/8th share to him. His father died intestate without executing any document on 28.3.1989. After death of his father, he filed suit against D6 herein and his mother on the file of VI Junior Civil Judge, City Civil Court, Hyderabad not to 16 dispossess from suit schedule property of 'A' schedule in this suit. He also filed
Interlocutory Application for temporary injunction and temporary injunction was granted exparte and it was made absolute subsequently.
35.He further depose that he filed O.S.No. 747/1994 on the file of IV
Additional Senior Civil Judge, City Civil Court, Hyderabad for partition of their
joint family property against all his brothers and sisters. Subsequently, he was withdrawn the above said suit O.S.No.747/1994 on the file of IV Additional
Senior Civil Judge, City Civil Court, Hyderabad, which was transferred to VII
Senior Civil Judge and later to VII Senior Civil Judge due to ill health.
36.The property in O.S.No.747/1994 and property covered in this suit are one and the same. During pendency of this suit on the file of II Additional Chief
Judge, City Civil Court, Hyderabad, he filed the documents. During the
pendency of the suit before II Additional Chief Judge, City Civil Court,
Hyderabad, D1 to D5, D7 and D9 filed compromise petition and the same was recorded by the court in I.A.No.3241/2006 dt: 18.9.2006.
37.The original ration card is with D6. Ex.A1 is the xerox copy of ration card (marked to subject to objection). Ex.A2 is the death certificate of his father. Ex.A3 is the death certificate of his mother. Ex.A4 is the xerox copy of the passport (marked to subject to objection). The witness produced original of
Ex.A4 for perusual and taken back. Ex.A5 is the another xerox copy of passport
dt:9.7.1989 (marked to subject to objection). The witness produced original of
Ex.A5 for perusual and taken back. Ex.A6 is the another xerox copy of passport
dt:6.2.1989 (marked to subject to objection). The witness produced original of
Ex.A6 for perusual and taken back. Ex.A7 is the xerox copy of another passport 17
dt:31.10.1979. (marked to subject to objection). The witness produced original
of Ex.A7 for perusual and taken back. Ex.A8 is the CC of house plan of
H.No.163994/1 (Schedule 'A' property). Ex.A9 is the photostat copy of property tax, H.No.32739 to 32744 ('B' schedule property) (marked to subject to objection). The witness stated the original is in custody of D6.
Ex.A10 is the market value certificate of 'A' schedule property dated 12.2.2007.
Ex.A11 is the new original valuation certificate of 'A' schedule property. Ex.A12 is the original valuation certificate of 'B' schedule property. Ex.A13 is the new original valuation certificate of 'B' schedule property. Ex.A14 is the original
Fatwa issued by Jamia Nizamia dt:30.5.1998 along with English Translation.
Ex.A15 is the original out patient issued by Malakpet, Hospital dt:21.8.2002 for treatment given to him. Ex.A16 is the original paper notice dated 31.10.2002 published in Siasat along with notification dt:15.10.1996. Ex.A17 is the letter
dt:1.7.1990 by Smt.Tayabba Begum to the tenants requesting them to pay rent.
Ex.A18 is the xerox copy of petition in I.A.No.417/1990 in O.S.No.1760/1990 of VI Asst.Judge, CCC, Hyderabad (marked subject to objection. Ex.A19 is the
CC Of order in I.A.No.417/1990 in O.S.No.1760/1990 of VI Asst.Judge, CCC,
Hyderabad dt:21.8.1999. Ex.A20 is the CC of warrant in I.No.873/1990
I.A.No.417/1990 in O.S.No.1760/1990 dt: 16.4.1991 to the police. Ex.A21 is the certificate issued by the Advocate Syed Mohammed Ali dt:14.2.1993.
Ex.A22 is the CC of order in I.A.No.1801/1995 in O.S.No.747/1994 of IV
Sar.Civil Judge, CCC, Hyderabad dt:21.3.1996. Ex.A23 is the CC of deposition of D6 in O.S.No.747/1994 (marked to subject to objection). Ex.A24 is the CC of order in I.A.No.422/2004 in O.S.No.19/2003 dt:5.4.2004. Ex.A25 is the CC of order in I.A.No.3327/2004 in I.A.No.787/2003 in O.S.No.19/2003
dt:14.12.2005 along with warrant. Ex.A26 is the I.A.No.787/2003 in
O.S.No.19/2003 dt:14.12.2005 along with warrant. Ex.A27 and A28 are the
18 xerox copies of bank challans (marked to subject to objection). The plaintiff stated original are filed in the court. Ex.A29 is the CC of petition of compromise in I.A.NO.3241/2006 in O.S.No.19/2003. Ex.A30 is the CC of order passed in I.A.NO.3241/2006 in O.S.No.19/2003 dt: 18.9.2006. Ex.A31 is the CC of decree in I.A.NO.3241/2006 in O.S.No.19/2003 dt:18.9.2006.
Ex.A32 is the CC order in I.A.nO.851/2003 in O.S.No.19/2003 dt: 23.8.2006.
Ex.A33 is the CC of order passed in I.A.No.1138/2004 in O.S.No.19/2003
dt:18.9.2006. Ex.A34 is the CC of decree passed in I.A.No.1138/2004 in
O.S.No.19/2003 dt:18.9.2006. Ex.A35 is the Encumbrance certificate
dt:23.1.1998 in respect of 'A' schedule property. Ex.A36 is the new
Encumbrance certificate dt:13.2.2007 in respect of 'A' schedule property.
Ex.A37 is the xerox copy of acknowledgement (marked to subject to proof, relevancy and admissibility). Ex.A38 is the xerox copy of discharge summary (marked to subject to objection). The plaintiff produced the original discharge summary but taken back on ground, it is required for regular medical checkup.
Ex.A39 is the xerox copy of OP certificate (marked to subject to objection original taken back by the plaintiff.
38.Ex.B1 is the certified copy of plaint in O.S.No.747/1994 marked through
PW1 on 31.12.2007. Once again Ex.B1 memo of withdrawal on the file of VII
Sr.Civil Judge, City Civil Court, filed by PW1 dt: 27.11.2000 is marked on 11.4.2011.
39.DW1 Md.Sadat Ali, Defendant No.5 (D5) filed chief affidavit stating that
Md.Qasim Ali father of all the parties proceedings was the absolute owner of 'A' and 'B' schedule property consisting of 1. Schedule property of house bearing
No.163994/1 admeasuring 800 Sq.yards situated at Malakpet, Hyderabad.
19 2.House bearing M.C.No.32739 to 744, admeasuring approximately 700
Sq.yards situated at Kachiguda, Hyderabad and (3) open plot of land bearing
No.163994/1, admeasuring 173 Sq.yards situated at Malakpet, Hyderabad.
40.He submitted that his father died intestate leaving behind them no will, nor is father conveyed, transferred the said properties by way of oral/written gift, in favour of any person during their life time, or they executed any document thereby in favour of the plaintiff/defendants or anyone except property bearing No.163994/1, admeasuring 173 sq.yards, situated at
Malakpet, Hyderabad, which was gifted to him through a registered gift deed.
The said properties left by his father as Matruka are still undivided and liable to be partitioned. The following documents are marked through him.
Ex.B17 is the registered gift settlement deed. Ex.B18 is the permission proceedings from MCH. Ex.A19 is the Encumbrance Certificate. Ex.B20 is the
Special notice under Sec.220 of MCH Act. Ex.B21 is the MCH Tax receipt.
41.DW2 Mohd.Mujtaba Ali, Defendant No.6 filed chief affidavit and got marked the following documents.
Ex.B2 is the certified copy of Judgment dated 27.11.2000 in O.S.No.747 of 1994.
Ex.B3 is the GPA executed by D1 dt:8.3.1994.
Ex.B4 is the GPA executed by D9 dt:14.6.1994.
Ex.B5 is the No objection given D5 dt:26.7.1990.
Ex.B6 is original Hiba will dt:21.9.1978 along with translation.
Ex.B7 Application of Tayyaba Begum dt:1.7.1990.
Ex.B8 is the Application of Tayyaba Begum dt:8.6.1990.
Ex.B9 is the complaint given police dated 16.4.1990.
20
Ex.B10 is the Estimate of construction of the Clinic by Engineer dt:1.5.1978.
Ex.B11 is application to Vijaya Bank by Tayyaba Begum dt: 8.4.1989
Ex.B12 is letter addressed to Manager, SBI, dt:7.4.1989.
Ex.B13 is the letter of D4 dt:30.5.1990
Ex.B14 is the letter dt:26.8.2002 of D2.
Ex.B15 is I.D. Card of D6 dated on 8.2.2000.
Ex.B16 is the Ration Card issued to D6 on 8.2.2000.
42.DW3 Syed Habeebuddin, filed chief affidavit in support of D6 regarding execution of Ex.B6.
43.The compromise is effected between plaintiff and D1 to D4, D7 and D9 in Ex.A29 compromise petition order 23 Rule 3 R/w.Section.151 of CPC entered between the petitioners/plaintiffs and D1 to D4 and D7 and D9 is recorded by this court on 18.9.2006. The compromise petition was allowed recording for partition of 'A' and 'B' schedule properties subject to final result of the suit between the plaintiff, D6 and D8 under Ex.A30 and Ex.A31 in the decree in I.A.No.3241/2006 of O.S.No.19/2003 dt:18.9.2006. Hence, contesting to the parties to the suit are plaintiff, D6 and D8.
44.Coming to the case of the plaintiff and defendants, PW1 filed the case against D1 to D9, the brothers and sisters of him. D2, D4, D5 and D6, D8 and plaintiffs are the sons of Dr.Md.Qasim Ali. D1, D3, D7 and D9 are the daughters of Dr.Qasim Ali, which is not in dispute.
45.The plaintiff in written arguments submitted that the document dated 21.9.1978 in the case of D6, D8. Contesting on a false and created one 21 document i.e., will or HIBA and the same already admitted in his evidence in this present suit. The counsel for D6 referred the same false and created one document dated 21.9.1978 in the first suit I.A.No.417/1990 in
O.S.No.1763/1990 filed by the plaintiff against the D6 (as D1) and the D6 as
D1 made my mother Smt.Tayyaba Begum forcibly as D2 died on 25.2.1994 to use her as tool in this case in order to acquire the property on the said false, created one document marked as a “WILL” on 17.8.1990 as Ex.B7 and B8 on the file of the Hon'ble VI Asst.Judge Court, City Civil Court, Hyderabad. After perusal of counter and written statement filed by the respondent/defendants and heard the arguments from both counsels of the parties the said court passed judgment order on 21.8.1990. Inspite of the said orders the D6 (D1) was harassing to the plaintiff. There is no other option to the plaintiff except to file an I.A.No.833 of 1991 in I.A.No.417 of 1990 in O.S.No.1763 of 1990 the said Hon'ble Court heard the said I.A.No.833 of 1991 and passed an order to
Inspector Dabeerpura. DABEERPURA POLICE STATION HYDERABAD on 16.4.1994 with specific direction to implement the court orders which is pending till dated which is marked as Ex.A19 and Ex.A20, on 22.8.2007 by the plaintiff fin suit O.S.No.19/2003 in chief examination and Ex.A14 to A39 marked on 22.8.2007 in his chief examination on the file of XII Additional
Chief Judge, (FTC), CCC, Hyderabad. The plaintiff in the suit in its chief examination got marked Exs.A1 to A39 including old suit documents and judgment and orders are passed in his favour. The defence marked the document dated 21.9.1978 as a Will in suit O.S.No.1763 of 1990 and as a “HIBA” in suit O.S.No.747/1994 marked as Ex.B10 and B12 on 25.2.1999 in his chief examination on the file of IV Senior Judge Court, City Civil Court,
Hyderabad and in the present suit O.S.No.19/2003 the same document marked as a HIBA Ex.B6 in his chief examination on 14.3.2012. He submitted that the 22 document is will or HIBA was created not signed by his parents and as per
Mohammedan Law of Wills and HIBA proved a created one and it is not at all proved by showing the existing properties with door numbers, not mentioned in the suit schedule property in HIBA or will dated 21.9.1978 as stated written just 2 days prior leaving for a tour it is totally false and is created one, or to any tours in India, or tours out of India or any religious tour, or any religious programme etc. The parents will not tricked or misled to other children's into partitioning with his properties. This concept dwell on this false and created document dated 21.9.1978.
46.The counsel for D1 to D5, D7 and D9 submitted that the document
Ex.B6 cannot be consider the compromise effected between the parties in
I.A.No.3241/2006 in O.S.No.19/2003 dt;18.9.2006 is binding on all the parties the suit has to be decreed. HE submitted that as per the transfer of Property
Act, the transfer of property should be effected declaration of essential given as held in 2008 (6) ALT 33 Mohd. Mahaboobali and others Vs.Rahamatunnisa and others “Under Section.129 of the Transfer of Property Act, nothing in
Chapter VII relates to fits of movable property made in contemplation of death or shall be deemed to affect any rule of Mohammadan Law. According to the
Mohammadan Law, there can be a valid gift, if three essentials of the gift are satisfied (1) a declaration of the gift by the donor, (2) the acceptance of the gift express or implied by or on behalf of the donee and (3) delivery of possession of the subject of gift by the donor to the donee. If these conditions are complied with the gift is complete. Hence, he submitted that Ex.B6 cannot be consider in the eye of law as per the above citations.
47.D6 and D8 counsel submitted written arguments that the father of D6 23 and D8 before leaving from Mecca for pilgrimage settled all his immovable property to his children and executed a document dated 21.9.1978 under
Ex.B6. As per the said document the properties are settled as under.
PROPERTY AT MALAKPET I.E.H.NO.163994/1
a). Mohd.Iqbal AliD4
b). Mohd.Mujtaba AliD6
c). Mohd.Shabbir AliD8
PROPERTY AT CHAPPAL BAZAR HOUSE i.e., 32739 TO 744
a).Mumtaz Shahid AliD2
b).Mohd.Sadath AliD5
c).Mohd.Murtuza AliPlaintiff
48.The document dated 21.9.1978 has also been signed by D3, D4,D5, D6,
D8 and D9 in token of acceptance of the HIBA of their father. D1 though not signed on the said document initially, but signed on 26.8.1993. The execution of said HIBA dated 21.9.1978 has also been admitted by D1, D3, D4, D5, D6,
D8, D9 in family settlement deed dated 4.12.1994 which has been drafted by
Sri.M.A.Qureshi, Advocate and signed by all of them in his chambers. The fact of execution of HIBA has also been reiterated by D9 in hter GPA dt:8.3.1994 executed by her in favour of D6. The parties are residing in their portions as desired by their father. Therefore, the HIBA ated 21.9.1978 has been given effect to and acted upon by the parties. His father desired the properties to be allotted to all his sons excluding the daughters, who were given movable properties, and hence executed the HIBA on 21.9.1978. It is not material if one or two parties did not signed the material papers. D6 and D8 relied on citations 24
Hafees Bibi and Ors.Vs.Shaikh Farid (dead) by Lrs. and Ors.
ISSUE NO.1
49.The plea is taken by D6 Md.Mujtaba Ali, regarding Ex.B6 herein as the immovable properties are settled by their parents. Ex.B6 is in written in Urdu
English translation is also filed herewith, which clearly discloses that “Before we go on voyage it is expedient that I should write the name of my heirs so that after me these person should act on this decision accepted by all.
NAMES OF THE HEIRS:
Dr.Mohd.Mumtaz Shahid Ali
Dr.Mohd.Iqbal Ali
Mohd.Sadath Ali
Mohd.Mujtaba Ali
Mohd.Shabbir Ali
Mohd.Murtuza Ali
He have houses at two places, one at Chappal Bazar, and the other in the locality of printing press. Hence, the following arrangement is made.
For houses at Chappal Bazar
Dr.Mohd.Mumtaz Sahid Ali Saheb
Mohd.Sadath Ali Saheb
Mohd.Murtuza Ali Saheb
Division of these houses should be among these tree.
For houses at Printing Press :
Dr.Mohd.Iqbal Ali 25
Mohd.Mujtaba Ali
Mohd.Shabbir Ali
50.These houses are divided among these three children. Hereinafter this is to be considered an act decided, if we happen to come back safely, we will utilize the rent of these properties till the end of our life. All should sign on this decision in token of acceptance.
Signatures of members
Dr.Iqbal Ali (Signed in English) dt:21.9.1978.
Dr.Iqbal Ali (Signed in Urdu) dt:21.9.1978.
Sadath Ali (Signed in English) dt:21.9.1978.
Mujtaba Ali (Signed in English) dt:21.9.1978.
Shabbir Ali (Signed in English)
Mohd.Shabbir Ali (Signed in Urdu).
51.The evidence of DW2(D6) was recorded in question and answer form as nature of plaintiff party in person and DW2 witness (D6) as follows for important facts are discussed herein.
52.Q. A complaint was created by D6 writing all false allegations and took signature of mother on it and also mentioned HIBA and told the police to decide the HIBA?
A. It is absolutely wrong. Partyinperson is under treatment of
Dr.Majeed Khan, Psychiatrist and he used to threaten mother before obtaining injunction order.
Q. Witness is confronted regarding Ex.B6?
A. Refer to my chief examination deposition. It is clearly written before 26 executing this document Ex.B6 my late father prior to 2 days earlier he has made all 4 daughters and 6 sons and told them since I am leaving to Haj. I am distributing the property in form of HIBA so that each one will be witnessed to each other. Dr.Iqbal Ali has requested father to put it in writing if any misunderstandings in future even a road going person will settle the issue. All the sons are enjoying their property and partyinperson was collecting the rent then to give the share of partyinperson got appointed commission to show as
Matruka property.
Q. The defendants who have signed Ex.B6 here played fraud with the parents and other defendants by calling this document as one time WILL and then later in police station filed a complaint dt:6.6.1993 calling this document as HIBA and to settle the property matter with the police before filing
O.S.No.747/1994?
A. It is absolutely wrong, after taking injunction order from the court he was asking mother and other defendants to leave the house and partyin person obtained police protection and harassing me. Myself met the senior police officer and requested to approach the court for settlement.
Q. Under whose planning Ex.B6 executed?
A. Ex.B6 was executed by the owner of the property Late Dr.Qasim Ali
Sab with the concern of all the legal heirs of 6 sons and 4 daughters and to give shape of HIBA was suggested by D3 Tayyaba Talat Ara Begum which was
honoured in her house.
Q. The Ex.B6 is not suggested by D1 to D5 and D7 to D9 is the only element.
A. If the statement of partyinperson is true, the partyinperson not producing the other defendants as witness. Orally he stated to contest on their behalf including Mohd.Sadat Ali.
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Q. From 1978 to 1989 where Ex.B6 was held up?
A. On the day of death our father after 3 days prayer this document was again displayed to everybody and everybody has agreed and D1 signed the year 1993.
Q. Why the document has not displayed by father from 1978 to 1989?
A. When this document was written in front of all the legal heirs if party inperson would have asked he would have also shown and it was in the custody of mother.
Q. Our father has mentioned in Ex.B6 there are 4 sons and 2 daughters?
A. Prior to writing Ex.B6 father has made all the 6 sons and 4 daughters parties to the HIBA and each other was witness to other.
Q. No one witness of 4 sons and 2 daughters of Ex.B6?
A. Dr.Iqbal Ali has requested to put it in writing at that time and father has contacted each legal heir and he said my father have done oral HIBA why my father was insisting for HIBA by Dr.Iqbal Ali. All the persons were presence and signed on it.
Q. The parties appeared in I.A.NO.3241/2006 in O.S.No.19/2003 and made compromise memo?
A. As partyinperson assured that he will get Rs.50 Lakhs to each heir thats why the all parties gone for compromise except myself and D8.
Q. How the partyinperson give assurance to give Rs.50 Lakhs to each party when the matter is in court?
A. Because they have given notarized to me in O.S.No.747/1990 subsequently they have withdrawn my GPA on the advise of partyinperson they have appointed separate lawyers by each party and some parties became exparte.
Q. In which suit the defendants have exparte?
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A. In O.S.No.747/1990 Mumtaz Shahed Ali and Mohd.Sadat Ali have became exparte and Mohd.Iqbal Ali was contested by me. On the advise of partyinperson Mohd.Iqbal Ali also withdrawn his GPA.
Q. Mumtaz Shahed Ali gave evidence in O.S.No.747/1990 as DW1?
A. Yes.Mumtaz Shahed Ali was examined as witness I cannot say he was set exparte or not. 2 other persons were exparte one among them is Sadat Ali.
Q. Witness is confronted on memo of withdrawal by Murtaza Ali?
A. It is true witness admit the partyinperson withdrawn the suit.
Q. The D2 has not been set exparte in the suit O.S.No.747/1994 and gave evidence and appeared through advocate?
A. It is true.
Q. All the defendants played fraud on the court submitting Ex.B6 and imposing on the court to admit Ex.B6 as HIBA?
A. Because of partyinperson aggression nobody wants to face partyin person.
Q. Ex.B6 is displayed after the death of that by mother or by the police?
A. Ex.B6 displayed by my mother.
Q. Whether mother has withdrawn the holdings in the bank of gold and amounts in various banks without taking the signatures of all the legal heirs?
A. Partyinperson is the main instrument in making the drafts to all the banks and took the signatures of all the legal heirs of sons and daughters for withdrawing the amounts. Partyinperson obtained succession certificate by obtaining signatures of our father.
Q. Whether Ex.B6 was carried by our mother to Haj?
A. I don't think that she might have carried Ex.B6 to Haj.
Q. Ex.B6 was in the custody of mother?
A. Obviously it was in the custody of mother.
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Q. You said your are a witness to Ex.B6 how can you say the Ex.B6 might be with mother or brother?
A. I already heard oral Hiba of my father infront of all the brothers and sisters. I was a witness while putting in writing. I cannot say as a obedient whether Ex.B6 was with my mother or elder brother Dr.Iqbal Ali.
The above answers clearly reflect regarding the genuineness of Ex.B6 not acted upon.
53.The crossexamination of PW1 of Ex.B6 is also put in question and answer form.
Q. Whether you have seen the letter dated 21.9.1978 written by your father ? What do you say?
A. I have seen the letter several times after D6 has filed the same in the injunction suit filed once.
54.The allegation of DW2 that plaintiff promised to get Rs.50 Lakhs to the share to other parties cannot be consider in the eye of law that compromise is recorded on 18.9.2006 and became final cannot be consider for not granting partition to the parties. The allegation of the D6 earlier executed GPA in his favour cannot be consider as per the compromise recorded between the parties in I.A.No.3241/2006. The contention of the D6 and D8 Shabeer Ali are enjoying the property by constructing 1st floor with the expenditure of Rs.5 lakhs can be consider in the preliminary decree. Moreover no evidence is adduced to that affect.
Q. After injunction suit, you had the opportunity to see the said original 30 letter. What do you say?
A. They called me to police station and shown the said letter at Police station.
It is true, D6 filed the above said letter in O.S.No.747/1994 on the file of the IV Sr.Civil Judge's Court. I have not seen the said letter, but the Hon'ble
Court saw the letter and pass the order. The said letter is in Urdu Language.
The said letter was not in the handwriting of my father. The above said letter does not contain the signatures of my mother and father.
Q. The above said letter contain the signature and name of
Dr.Mohd.Iqbal Ali(D4). What do you say?
A. I deny to give answer to the above said question.
Q. What are the other names and signatures contained in the above said letter?
A. I refuse to give the answer.
Q. What you are refusing to give answer to above questions?
A. The above said letter was not executed by my father, therefore, I am refusing to give answer relating to the said document.
Q. Does the said letter contains signatures of your brothers, sisters and mother?
A. I refuse to give answer.
My memory is alright. I have seen the above said letter in the Police
Station also. I did not see the letter dated 21.9.1978 shown to me at police station. The police people called me to the police station and pressurized me to sign some documents, but I refused to sign. I have the documents in the Court.
The photocopy was shown to me in the Police Station and I was forced to sign on the document, but I refused to sign.
31
From the question and answers of PW1, nothing elicited to establish that
Ex.B6 is acted upon.
Q. For how many defendants you are appearing in this suit?
A. I am appearing for defendant by name Mohd. Shabbir Ali.
Q. Why your are not appearing to the other defendants in this suit
O.S.NO.19/2003?
A. Because you have tempted them with each share holder is getting
Rs.50 Lakhs they have withdrawn my GPA and made a compromise deed in the court.
Q. You earlier appeared for D1, D4, D8 and D9 in suit O.S.No.747/1994 and during the pendency of the suit D1 and D9 cancelled the GPA?
A. The question is not relevant to the present case.
Q. The GPA of D8 is not marked in the suit O.S.No.19/2003 in your deposition it has been said and it is on record?
A. It is on record I submitted at initial stage only.
Q. Your have not filed any document in the suit O.S.No.19/2003 on the file of II Additional Chief Judge, City Civil Court, Hyderabad, in the month of
January 2003 vide I.A.No.422/2004 all the defendants have set exparte to the suit?
A. I have to see the record and answer.
Q. Witness is confronted with the order in I.A.No.422/2004 in
O.S.No.19/2003 dt:5.4.2004 on the file of II Additional Chief Judge, City Civil
Court, Hyderabad?
A.Peruse the order I.A.No.422/2004 in O.S.No.19/2003 dt:5.4.2004 I cannot say regarding the technical order of the court.
Q. In the suit O.S.No.1763/1990 conducted by VI Asst. Judge Judgment is not a technical, judgment is pronounced order is passed against the 32
Defendants D6 and our deceased mother as defendant No.2?
A. It is not relevant to the present suit of O.S.No.19/2003?
Q. The statement given by the witness leads to the contempt of court denying the order of the said court in I.A.NO.1075/13 in O.S.No.19/03
dt:26.11.2013?
A. Mohd.Sadat Ali has written a letter to mother saying that the HIBA name of our late father has to be implemented the court may ask the HIBA nama is showing Sadat Ali's name at Kachiguda and I have come at the request to Malakpet there is likely to invalid the HIBA nama that letter I have produced
in the court for which Osman Shaheed Advocate said he has no objection on
the pursuation of partyinperson and Sadat Ali Osman Shaheed has to in the open court my lord I did not say I have no objection, I said I will reply to
I.A.No.1075/2013 in O.S.No. 19/2003. We appeal to the High Court, High
Court dismissed the appeal plaintiff says he went in appellate court.
Q. The statement deposed by the witness is absolutely false. The learned counsels have submitted the arguments before this Hon'ble court and the judgment passed in I.A.No.1075/2013 then the counsel for the witness sought interim stay of all the proceedings in this suit in CRP.MP.7248/2013 in
CRP.NO.5225/2013 dt: 20.12.2013?
A. Yes, the order is true. The order in above CRP.MP.No.7248/2014 in
CRP.No.5225/2013 dt: 20.12.2013 is correct.
Q.The learned counsel for the witness Sri.K.Rama Subha Rao and the respectable Senior Advocate Mohd.Osman Shaheed and the plaintiff partyin person submitted the arguments in 40th Single Court Bench of High Court, judgment was passed and stay vacated ?
A. Yes.
Q. On what point stay was vacated?
33
A. Not relevant to the present case.
Q. You went to the Hon'ble High Court for stay how it is not relevant?
A. Court gave the order I accepted.
Q. Have you read the order for accepted?
A. The contents of judgment are accepted?
Q. The contents prove that you played fraud upon the lower court and with the parties and with the High Court of A.P. for such reason your stay was vacated and the proceedings should be take fairly in this court for disposal of
Matruka property. There is no WILL and no HIBA?
A. Whatever the Hon'ble Court on my plea judgment given I accept with whole heartedly. The slogan of Matruka property is totally fraud on the party inperson.
Q. The statement deposed by the witness stating that both the lower courts and Hon'ble High Court passed the judgment without looking the HIBA and Will itself proved the witness is playing fraud till today?
A. It is irrelevant and it is partyinperson comments.
Q. The D8 on his behalf the witness is deposing in this suit also playing fraud with him whereas D8 on 6.12.1991 wrote a letter to D6 from Kingdom of
Saudi Arabia stating that this is not possible share of inheritance determined by
Allah, Ram God, Jesus that the heirs of particular deceased wife, sons and daughters has got share in all the properties. You cannot deny the authority of
Allah?
A. This is all the story of partyinperson is not correct. He would have put all these question to our late.Father Dr.Mohd.Qasim Ali Sab. Myself and
Mohd.Shabbir Ali are enjoying the property by constructing first floor with the expenditure of Rs.5 lakhs.
Q. The statement given by the witness proving that as father is not the 34 absolute owner of all properties where is the question of D8 to put this question to our father who died in the year 1989 and this letter is
dt:6.12.1991?
A. Partyinperson is fully aware D8 Mohd.Shabbir Ali was given the share and he has constructed the first floor, the question of again asking from my late father does not arise. The construction was made in the year 1986 and this fact was known by all the legal heirs, why they have not stopped the construction.
Q. The other brothers and sisters appeared in Court of Law in II
Additional Chief Judge, City Civil Court, Hyderabad, and submitted a
Compromise stating to settle the suit as per Mohammadan Law in
I.A.No.3241/2006 in O.S.No.19/2003?
A. Yes. In my earlier cross examination I have clearly mentioned party inperson has tempted them that each share holder will get Rs.50 Lakhs so they moved with partyinperson for compromise deed and the judgment of compromise dee4d is very much on record.
Q.The counsel for witness filed a counter in I.A.NO.3241/2006 in
O.S.No.19/2003 resisting the compromise on the grounds the D5 has not
entered into suit, how the compromise can be recorded and disobeyed the order of Order 23 Rule 3 of CPC?
A. D5 Mohd.Sadat Ali given in writing that he will agree with the written decision of our late. Father Dr.Qasim Ali Sab on partyinperson temptation he has put a case as a legal heir to claim 2nd share.
That from the answers given by defendant No.6 nothing is elicited to establish that Ex.B6 is acted upon.
55.The burden lies on the D6, who is relied on Ex.B6. That the cross of 35
DW2, he admitted two brothers and other brothers signed on Ex.B6. He denied the allegation that D5 has not signed on Ex.B6 and his signature was forged.
He stated basing on Ex.A6 'A' schedule property was delivered to D4, D6, D8 and 'B' schedule property was delivered to D2, D5 and plaintiff. He stated at present, D6 and D8 are only in the possession of 'A' schedule property. He stated that D4 married and staying in the portion of plaintiff after obtaining exparte injunction. Prior to that he was residing at Kachiguda. He admitted that plaintiff is in illegal possession of 'A' schedule property. He acquired title basing on Ex.B6. He clarified that the HIBA was accepted in the year 1993. He admitted his father executed gifted deed for 211 Sq.yards in a gift deed of
Malakpet property of admeasuring 173 sq.yards to defendant No.5. He admitted the said fact is not mentioned in any Judicial proceedings and he admitted D5 was in occupation of 173 sq.yards of open land and he is not residing with any of the house referred in the suit schedule property.
56.Admittedly D5 was examined as DW1 and got executed gift deed under
Ex.B17 which clearly establish the allegation of the D6 cannot be consider herein. On perusual of Ex.A17, it is a register gift deed executed by father of the parties clearly established a gift settlement deed has been effected to register gift deed along with plan, which clearly discloses the father of the parties has knowledge to effect gift settlement deed through register document which is binding on all the parties of the suit. When compared Ex.B6 to that of
Ex.B17 the plea of the Ex.B6 cannot be consider. Moreover, the date of effecting Ex.B6 cannot be consider herein when Ex.B6 clearly discloses that the parents after returning pilgrimage. They shall enjoyed the rent of the properties till the end of their life, which clearly goes to show execution of Ex.B17 clearly falsifies to rely on Ex.B6.
36
57.When he admitted part of 'B' schedule property was let out to tenants and his father used to collect the rents. Hence, it is clearly established that
Ex.B6 cannot be consider as to the date of effect.
58.DW2 also further admitted he has not filed any document to show that immovable properties are devolved to the sons and movable properties i.e., gold ornaments devolved to the daughters of his father. He admitted he did not furnish any particulars about the distribution of gold ornaments clearly goes to show when Ex.B6 perusal does not mentioned the extent of the house numbers of property and when immovable property, it should be gifted as in Ex.B17 mentioning the boundaries and the extent of each party. Hence, the contention of D6 cannot be consider herein without mentioning the house numbers extent of properties and boundaries, the reliance of Ex.B6 cannot be considered.
59.The plaintiff is not party to Ex.B6. There is prior litigation in
O.S.NO.1763/1990 filed by plaintiff along with Md.Mumtaz Shahid Ali for
granting of injunction in respect of 'A' schedule property in possession of plaintiff. The order in I.A.No.417/1990 in O.S.No.1760/1990, which clearly discloses the plaintiff was in possession of 'A' schedule property which clearly falsifies the contention that the plaintiff was allotted to 'B' schedule property.
60.The plaintiff was also relied on Ex.A21 wherein it clearly discloses the property was 'B' schedule was in tenants portion, which is given by Syed
Haneef Ali, Advocate mentioning that the certificate is given as to who so ever concerned mentioning the names of tenants and signatures thereof, which clearly goes to show the contention of the D6 cannot be consider regarding the 37 allocation of 'B' schedule properties to the plaintiff and other brothers. Ex.A22 or in I.A.No.1801/1995 filed under Order 40 Rule 1 CPC clearly discloses the receiver was appointed for collecting rents herein. The allegation can be consider of the I.A.No.1801/1995 in O.S.No.747/1994 under Ex.A22, the receiver was appointed for collecting rents, which clearly discloses there was no effect of partition. The partition was not effected as the party in person, got relief by appointing receiver.
61.From the above discussion it is clearly established Ex.B6 is not acted upon. Ex.A17 clearly registered gift deed executed in favour of D5 by father of the parties clearly demonstrates that Ex.B6 cannot be considered.
62.The D6 relied in his decision as DW3 in O.S.No.747/1994 as the original will executed by his father related to suit property marked subject to objection
dt: 21.3.1996, which clearly discloses claimed it has HIBA Ex.B6 cannot be
consider. When he stated in O.S.No.1760/1990 as a will, the defendant clearly admitted there are no properties numbers mentioned in HIBA. He admitted he mentioned the house numbers as he is staying at A.P.Fire Station,
Chanchalguda. He denied the suggestion that Md.Iqbal Ali was not in India.
63.During the crossexamination, he clearly clarified that Ex.B6 may be referred as HIBA which clearly discloses the ground taken by D6 cannot be considered once as will and again as HIBA.
64.The witness produced the Xerox copy of letter dated 21.9.1978 while giving evidence during crossexamination and stated that D6 supplied this copy to him during pendency of the previous suit. That the questions and answers 38 clearly discloses Ex.B6 plaintiff is not a signatory herein. Hence the partyin person denying Ex.B6 is genuine and reliable.
65.DW1 Mohd.Sadath Ali. DW1 denied the allegation that HIBA executed by his father. He denied the suggestion, HIBA dated 22.9.1970 was acted upon as such, he never demanded for partition of property. He denied the allegation, 1st he has allotted ' B' schedule property and in exchange it, he was gifted registered gift by his father under Ex.B17 which clearly goes to show the evidence of DW1 consider regarding execution of Ex.B6 and B17 falsifies the claim of stand taken by D6.
66.In support of execution of Ex.B6, the evidence of DW3 cannot be consider as much helpful as he admitted in the cross, he was not present on the execution of gift deed dt:21.9.1978 and he had not seen the gift document fully and he cannot say whether it is executed or non judicial stamp or white paper. Witness adds the said gift deed was executed on Nonjudicial stamp paper, which clearly falsifies the evidence of DW3 for relying on Ex.B6 herein.
Hence, D6 failed to prove execution of Ex.B6 through DW.3.
67.That defendant No.8 failed to enter into witness box to establish the plea taken by Defendant No.6.
68.From the above discussions, it is clearly established the execution of
Ex.B6 was not acted upon herein regarding the immovable properties left by parents of parties to the suit since there is no mention of property in house numbers extends and area to be taken by each individual party. Hence, the issue is answered in favour of plaintiff against D6 and D8.
39
ISSUE NO.2
69.Plaintiff in the written arguments submitted that withdrawal of suit, he filed a memo of O.S.No.747/1994 dt:27.11.2000 on the file of IV Senior Civil
Judge, City Civil Court, Hyderabad, the suit is not hit by Order 23 Rule 3 CPC.
70.He submitted that orders in I.A.No.1138/2004 in O.S.No.19/2003 dated 18.9.2006 and I.A.No.107/2010 in O.S.NO.19/2003 on 15.11.2010 the suit is not at all hit herein.
70.The defendant submitted that the plaintiff filed O.S.No.747/1994 on the file of IV Additional Senior Civil Judge, City Civil Court, Hyderabad subsequently transferred to VII Senior Civil Judge, Hyderabad. The allegation of the plaintiff that he has withdrawn O.S.No.747/1994 in view of his health condition. It is also claimed by the plaintiff for leaving the matter of partition open cannot be consider.
71.D6 and D8 counsel submitted that the parties to the O.S.No.747/1994 filed for partition of 'A' and 'B' schedule are one and the same and the parties have adduced evidence in that cases at the stage of hearing the suit. The plaintiff filed a memo Ex.B1 dt:27.11.2000 seeking withdrawal accordingly the same was dismissed as withdrawn by Order dt:27.11.2000, no permission/liberty was sought by the plaintiff for filing a fresh suit in respect of the subject of the said suit and was granted by the court, marked on 11.4.2011 in cross of PW1 which reads as follows. Ex.B1 40
Memo of Withdrawal
“I, Mohd.Murtuza Ali, son of late Dr.Mohd.Qasim Ali aged about 42 years, R/o.H.No.163994/1, Chanchalguda, Hyderabad. Submit that the notice
dated 23.10.2000 from the above said court received to me on 2.11.2000 in
order to persue the suits filed by me O.S.No.747 of 1994 and O.S.No.810 of 1996 which is coming for further proceedings posted on 8.11.2000.
Hence, this memo of Withdrawal is filed by me to withdraw the above both suits from this Hon'ble Court in the interest of justice without causing any damages towards the petitioner.
If any of the defendant wants to file a fresh suit he may file for which I have no objection for doing so, in any other court.
Hence, this memo.”
72.The plaintiff who is pursuing the suit stays in open court that he is not interested to persue the suit, prayed to dismiss the suit as withdrawn memo is recorded.
73.The cause of action in the earlier suit in O.S.No.747/1994 and the present suit cause of action one and the same obviously in order to overcome plea of not taking permission from the court to institute the present suit.
Therefore, the plaintiff is precluded from institute fresh suit in respect of the subject matter as hit by Order 23 Rule 3 CPC.
74.The D2 and D5 were also party to the suit, but did not contest the suit and remained exparte. The receiver was appointed in O.S.No.747/1994, the plaintiff withdrawn as owner of the part of the property of Kachiguda. The D2 was also allotted share and later D2 occupied one of the room, at Malakpet, 41 claiming that he is not staying therein. DW1 admitted the cause of action in
O.S.No.747/1994 and the present suit is one and the same though he remained
set exparte.
75.The sisters in O.S.No.747/1994 not claimed the property but, even did not chose to enter into the witness box claiming the property and the compromise under Order 23 Rule 3 of CPC is not obtained leave. Hence, the suit is liable to be dismissed.
76.D1 to D5 and D7 and D9 counsel relied on the citation under Order 23
Rule 1 2005 (6) ALD 88, Kusampudi Subba Raju Vs.Panumatsa Sayi Raju and others Civil Procedure code 1908 – Order 23 Rule 1 – Withdrawal of suit –
Liberty to file fresh suit – Suit for partition – Plaintiff had filed earlier suit for partition and withdrawn it by memo – Did not reserve liberty to institute fresh suit subsequently – Certain alienations taken place subsequent to prior suit –
Hence, present suit based on a different cause of action – Withdrawal of prior suit unconditionally does not affect maintainability of present suit.
77.PW1 during cross examination admitted he has filed suit for partition of the same schedule property mentioned in O.S.No.747/1994 and the cause of action arose in O.S.NO.747/1994 on 28.3.1989 when the plaintiff father died on 25.2.1994 when the plaintiff mother died and finally on 17.6.1994 when the defendants refused to effect partition and other dates when the plaintiff demanded to effect partition and it arose at Hyderabad. Ex.B1 is the certified copy of plaint in O.S.No.747/1994 on the file of IV Senior Civil Judge,
Hyderabad during crossexamination, through PW1 on 31.12.2007 (twice marked clarified) he clarified he mentioned the cause of action in para No.4, 42 but not mentioned anywhere that the cause of action arose on so and so date.
He also admitted it issued. I have mentioned in my present the workings that the cause of action arose on so and so dates. According to him, the cause of action for filing the present suit is not the cause of action in Ex.B1. According to him, the cause of action for filing the suit is 28.3.1989, 23.4.1990 and 25.2.1995 and after till 2000. He continued the suit and it arose on January, 2001 and has been repeatedly arising till 2003 till the date of filing suit regarding the evidence adduced in O.S.NO.747/1994. He admitted the plaintiff evidence was completed and the evidence of defendants also completed. But, he refused to answer of how many witnesses examined, but he clarified D6 was examined as DW3, he admitted he filed a memo of withdrawal in this case, but it is not marked, but the same is mentioned. He has assigned the reason that due to illhealth he has withdrawn the suit. He denied the allegation that he has not given any specific reason for withdrawal of suit O.S.No.747/1994. He did not answer regarding the permission granted or not in O.S.No.747/1994 herein. He denied the allegation he was prohibited for filing the present suit after filing O.S.No.747/1994. He denied the allegation of the certified copy shown of memo in O.S.NO.747/1994 dt:27.11.2000 and also denied the certified copy of judgment issued in C.A.No.3543/2000 issued on 3.3.2001. He denied the allegation in view of Ex.B1 memo the present suit is not maintainable. He denied the allegation in view of prior partition to harass D6 and D8 he filed the present suit. From the evidence of PW1, it is clearly established the cause of action is correctly not mentioned by mentioning the same as admitted by him. The partyinperson filed the present suit can be consider when the compromise was effected the other parties to the suit reported no objection in I.A.NO.1138/2004 dt:18.9.2006 can be consider in favour of the plaintiffs.
43
78.It is worthwhile to mention it is also brought on record. The daughters of Md.Quasim Ali did not contest earlier suit, but presently came for effecting partition of 'A' schedule and 'B' schedule properties came to the court and prayed for partition of suit schedule property. Except D5, the partition compromise petition was recorded and allowed in I.A.No.3241/2006
dt:18.9.2006 can be consider in favour of plaintiff against the defendants
herein. The compromise recorded under Order 23 Rule 3 R/w.Section.151 of
CPC, a detail order is passed regarding the compromise of partition effected subject to the result between the plaintiff against D6 and D8. It is worthwhile to mention, there is no plea that the decree in I.A.NO.3241/2006 in
O.S.No.19/2003 is set aside. The petition filed by D6 in I.A.No.1138/2004 in
O.S.No.19/2003 this case under Order 23 Rule 4 to dismiss the suit was also
dismissed. Hence, the same are binding on the parties to the proceedings to the suit. Hence the earlier suit filed by O.S.No.747/1994 the earlier order does not disclose the suit as disposed contesting on merits. Hence the present suit is maintainable to be passed on merits by contesting the order. DW1 admitted the claiming O.S.No.747/1994 on the file of II Senior Civil Judge and claiming in this suit is one and the same as one of the party in O.S.NO.747/1994 and he was set exparte. He do not know whether plaintiff obtained leave in
O.S.NO.747/1994 filed a fresh suit while withdrawing O.S.No.747/1994. He
denied the allegation that he is contesting the suit in collusion with the plaintiff. Hence, the issue is answered in favour of plaintiff against D6 and D8.
ISSUE NO.3
79.The plaintiff is claiming 1/8th share in 'A' schedule and ' B' Schedule 44 property. It is worthwhile to mention as earlier issue, one of the document
dt:21.9.1978 was not acted upon was decided herein. The plaintiff relied on
the partition to be effected according to Muslim Sharai Law relied Ex.A14 issued by Darul Ifta Jamia Nizamia dt:30.5.1998.
RELIGIOUS ENQUIRY
What is the opinion of the religious learned people in the matter that
Dr.Mohd.Qasim Ali died. In his heirs there were wife, Tayabba Begum, six sons,
Mohd.Mumtaz Shahed Ali, Mohd.Iqbali Ali, Mohd.Saadat Ali, Mohd.Mujtaba
Ali, Mohd.Shabbir Ali, Mohd.Murtuza Ali, and four daughters Tayabba Husna
Ara Begum, Tayabba Talat Ara Begum, Tasneem Tayabba, and Masroor
Tayabba. Subsequently Tayabba Begum died. Among the heirs, the above mentioned six sons and four daughters, how the Matrooka of Dr.Mohd.Qasim
Ali will be partitioned as per the rules of Muslim Personal Law. The matruka of the deceased comprises of seven houses Nos.163994/1, situated at
Chanchalguda, Hyderabad, and H.No.32739 to 744, situated at Chappal
Bazar, Kachiguda, Hyderabad and some ornaments and net cash.
THE RELIGIOUS REPLY
In the above case, the matruka of Mohd.Qasim Ali, will be divided into 128 (One hundred twenty eight) shares and as per the sharai rules to the six sons each one will be given 16 (sixteen) shares, the four daughters will be given eight shares to each.
IN THE CASE : DR.MOHD.QASIM ALI : 8 X 16 = 128
Tayyaba Begum Wife : 1/16 (DIED)Md.Shabbir AliSon14 Md.Mumtaz Shahed AliSon14Md.Murtuza AliSon14 45
Md.Iqbal AliSon 14Tayabba husna Ara Begum Daughter7 Md.Sadat AliSon14Tayabba Talat Ara Begum Daughter7 Md.Mujtaba AliSon14Tasneem Tayabba Daughter7 Masroor Tayabba Daughter7
TAYABBA BEGUM : 16
Md.Mumtaz Shahed AliSon2Tayabba Husna Ara Begum Daughter1 Md.Iqbal AliSon 2Tayabba Talat Ara Begum Daughter1 Md.Sadat AliSon2Tasneem Tayabba Daughter1 Md.Mujtaba AliSon2Masroor Tayabba Daughter1 Md.Shabbir AliSon2
Md.Murtuza AliSon2
TOTAL SHARE DISTRIBUTION : 128
Md.Mumtaz Shahed AliSon16
Md.Iqbal AliSon 16
Md.Sadat AliSon16
Md.Mujtaba AliSon16
Md.Shabbir AliSon16
Md.Murtuza AliSon16
Tayabba Husna Ara BegumDaughter8
Tayabba Talat Ara BegumDaughter8
Tasneem TayabbaDaughter8
Masroor TayabbaDaughter8 which clearly established that the plaintiff along with his brothers is entitled to 1/8th share the D1, D3, D7, D9 are entitled 1/16th share in 'A' and 'B' schedule properties. DW1 was allotted by registering gift deed under Ex.B17 the property by his father which is exclusively given to D5. The same has to be excluded from the partition of schedule property it is registered document.
46
80.There is no denial of Ex.A14 regarding the shares to be given to the plaintiff and defendants herein.
81.Ex.A30 is the certified copy of order passed in I.A.No.3241/2006 in this
O.S.No.19/2003 dt:18.9.2006 alleging to decide the compromise recorded in
D6 and D8 not signed on the compromise memo. The court gave finding to that effect the compromise is effected between plaintiff and other defendants other than D6 and D8 is concerned is permissible under law and accordingly recorded subject to final result of the suit between the plaintiff, D6 and D8. The
D6 and D8 filed to reject the compromise recorded under Order 23 Rule 4 was dismissed dt: 18.9.2006. Accordingly, the plaintiff is allotted 1/8th share in 'A' schedule and 'B' schedule property. Accordingly, the issue is answered in favour of plaintiff, D1 to D5 and D7 to D9 against D6 and D8. Issues No.1 to 3 are answered in favour of plaintiff, D1 to D5 and D7 and D9 against D6 and D8.
ISSUE NO.4
82.In the result, the suit of the plaintiff is preliminary decreed for 1/8th share in respect of 'A' and 'B' schedule property and against D6 and D8. D1, D3,
D7, D9 are daughters of Mohd.Qasim Ali, are entitled to 1/16th share each.D2,
D4, D5, D6 and D8 are sons of Md.Qasim Ali, they also entitled 1/8th share each. In the circumstances no costs, as the parties are related to each other.
Dictated to the Stenographer, transcribed by her, corrected and
pronounced by me in open court on this the 15st day of June, 2016.
IX ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT:HYDEREABAD.
47
APPENDIX OF EVIDENCE
Witnesses Examined for
Plaintiff Defendant
P.W.1: Mohd.Murtuza Ali D.W.1 : Mohd.Sadath Ali D.W.2: Mohd.Mujtaba Ali D.W.3: Syed Habeebuddin
DOCUMENTS MARKED FOR
Plaintiffs:
Ex.A1 is the xerox copy of ration card.
Ex.A2 is the death certificate of his father.
Ex.A3 is the death certificate of his mother.
Ex.A4 is the xerox copy of the passport (marked to subject to objection).
Ex.A5 is the another xerox copy of passport dt:9.7.1989 (marked to subject to objection).
Ex.A6 is the another xerox copy of passport dt:6.2.1989 (marked to subject to objection).
Ex.A7 is the xerox copy of another passport dt:31.10.1979. (marked to subject to objection).
Ex.A8 is the CC of house plan of H.No.163994/1 (Schedule 'A' property).
Ex.A9 is the photostat copy of property tax, H.No.32739 to 32744 ('B' schedule property) (marked to subject to objection).
Ex.A10 is the market value certificate of 'A' schedule property dated 12.2.2007.
Ex.A11 is the new original valuation certificate of 'A' schedule property.
Ex.A12 is the original valuation certificate of 'B' schedule property.
Ex.A13 is the new original valuation certificate of 'B' schedule property.
Ex.A14 is the original Fatwa issued by Jamia Nizamia dt:30.5.1998 along with
English Translation.
Ex.A15 is the original out patient issued by Malakpet, Hospital dt:21.8.2002 for 48 treatment given to him.
Ex.A16 is the original paper notice dated 31.10.2002 published in Siasat along with notification dt:15.10.1996.
Ex.A17 is the letter dt:1.7.1990 by Smt.Tayabba Begum to the tenants requesting them to pay rent.
Ex.A18 is the xerox copy of petition in I.A.No.417/1990 in O.S.No.1760/1990 of VI Asst.Judge, CCC, Hyderabad (marked subject to objection.
Ex.A19 is the CC Of order in I.A.No.417/1990 in O.S.No.1760/1990 of VI
Asst.Judge, CCC, Hyderabad dt:21.8.1999.
Ex.A20 is the CC of warrant in I.No.873/1990 I.A.No.417/1990 in
O.S.No.1760/1990 dt: 16.4.1991 to the police.
Ex.A21 is the certificate issued by the Advocate Syed Mohammed Ali
dt:14.2.1993.
Ex.A22 is the CC of order in I.A.No.1801/1995 in O.S.No.747/1994 of IV
Sar.Civil Judge, CCC, Hyderabad dt:21.3.1996.
Ex.A23 is the CC of deposition of D6 in O.S.No.747/1994 (marked to subject to objection).
Ex.A24 is the CC of order in I.A.No.422/2004 in O.S.No.19/2003 dt:5.4.2004.
Ex.A25 is the CC of order in I.A.No.3327/2004 in I.A.No.787/2003 in
O.S.No.19/2003 dt:14.12.2005 along with warrant.
Ex.A26 is the I.A.No.787/2003 in O.S.No.19/2003 dt:14.12.2005 along with warrant.
Ex.A27 and A28 are the xerox copies of bank challans (marked to subject to objection). The plaintiff stated original are filed in the court.
Ex.A29 is the CC of petition of compromise in I.A.NO.3241/2006 in
O.S.No.19/2003.
Ex.A30 is the CC of order passed in I.A.NO.3241/2006 in O.S.No.19/2003 dt:
49 18.9.2006.
Ex.A31 is the CC of decree in I.A.NO.3241/2006 in O.S.No.19/2003
dt:18.9.2006.
Ex.A32 is the CC order in I.A.nO.851/2003 in O.S.No.19/2003 dt: 23.8.2006.
Ex.A33 is the CC of order passed in I.A.No.1138/2004 in O.S.No.19/2003
dt:18.9.2006.
Ex.A34 is the CC of decree passed in I.A.No.1138/2004 in O.S.No.19/2003
dt:18.9.2006.
Ex.A35 is the Encumbrance certificate dt:23.1.1998 in respect of 'A' schedule property.
Ex.A36 is the new Encumbrance certificate dt:13.2.2007 in respect of 'A' schedule property.
Ex.A37 is the xerox copy of acknowledgement (marked to subject to proof, relevancy and admissibility).
Ex.A38 is the xerox copy of discharge summary (marked to subject to objection).
Ex.A39 is the xerox copy of OP certificate (marked to subject to objection original taken back by the plaintiff.
Defendants:
Ex.B1 is the xerox certified copy of plaint in O.S.No.747/1994
Ex.B1 is the memo of withdrawal in O.S.No.747/1994 marked on 11.4.2011 through PW1.
Ex.B2 is the certified copy of Judgment dated 27.11.2000 in O.S.No.747 of 1994.
Ex.B3 is the GPA executed by D1 dt:8.3.1994.
Ex.B4 is the GPA executed by D9 dt:14.6.1994.
Ex.B5 is the No objection given D5 dt:26.7.1990.
50
Ex.B6 is original Hiba will dt:21.9.1978 along with translation.
Ex.B7 Application of Tayyaba Begum dt:1.7.1990.
Ex.B8 is the Application of Tayyaba Begum dt:8.6.1990.
Ex.B9 is the complaint given police dated 16.4.1990.
Ex.B10 is the Estimate of construction of the Clinic by Engineer dt:1.5.1978.
Ex.B11 is application to Vijaya Bank by Tayyaba Begum dt: 8.4.1989
Ex.B12 is letter addressed to Manager, SBI, dt:7.4.1989.
Ex.B13 is the letter of D4 dt:30.5.1990
Ex.B14 is the letter dt:26.8.2002 of D2.
Ex.B15 is I.D. Card of D6 dated on 8.2.2000.
Ex.B16 is the Ration Card issued to D6 on 8.2.2000.
Ex.B17 is the registered gift settlement deed.
Ex.B18 is the permission proceedings from MCH.
Ex.A19 is the Encumbrance Certificate.
Ex.B20 is the Special notice under Sec.220 of MCH Act.
Ex.B21 is the MCH Tax receipt.
IX ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT: HYDEREABAD.