IN THE COURT OF III ADDITIONAL DISTRICT & SESSIONS JUDGE,
RANGA REDDY DISTRICT
Present: Sri D.Hemanth Kumar, III Additional District Judge, Ranga Reddy District.
Monday, this the 31st day of December, 2018
O.S.No.816 of 2007
Between:
1. Akbar Begum, Since died per LRs, plaintiffs 9 to 13.
2. Raziya Sultana, w/o. Niyaz Ahmed, d/o. late Afzal Begum, age: 44 yrs, Occ: house wife, r/o. 911373, Ginsi Bazar, Golkinda, Hyderabad.
3. Md. Saleem, s/o. late Afzal Begum and Md.Afzal, Age: 36 yrs, Occ: Private service
4. Md. Kareem, s/o. late Afzal begum and Md. Afzal, Age: 36 yrs, Occ: Driver
5. Razia Sultana, w/o. Sardar Khan, d/o. late Afzal begum, Age: 32 yrs, Occ: House wife
Plaintiffs 3, 4 & 5 ae r/o. H.No.46/1, Narsinghi Village, Rajendernagar Mandal, R.R.District.
6. Rasheeda Sultana, w/o. Shafiq, d/o. late Afzal Begum, Age: 30 yrs, Occ: House wife, r/o. Talabkatta, Amman Nager, Charminar, Hyderabad.
7. Rafia Sultana, w/o. Ibrahim @ Shahed, d/o. late Afzal Begum, Age: 26 yrs, Occ: House wife, r/o. First Lancer, Mehidipatnam, Hyderabad.
8. Md. Kaleem, s/o. late Afzal begum and Md. Afzal, Age: 22 yrs, Occ: Business, r/o. H.No.46/1, Narsinghi Village, Rajenderngar Mandal, R.R. Dist.
9. Shaik Mahaboob, s/o. late Shaik Mehetab, Age: 70 yrs, Occ: Nil
10. Shaik Osman, s/o. Shaik Mahaboob, Age: 40 yrs, Occ: Labour,
11. Shaik Riyaz, s/o. Shaik Mahaboob, Age: 30 yrs, Occ: Labour,
12. Bilkees Begum, w/o. Sattar Khan, Age: 35 yrs, Occ: House wife, r/o. H.No.43/1,
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Narsinghi Village, Rajendernagar Mandal, RR Dist.
13. Anees Begum, w/o. Shamsheer Khan, Age: 27 yrs, Occ: Labour Nos.9 to 11 & 13 are R/o.H.No.47/1, Narsinghi Village, Rajendernagar, R.R.Dist.
(As per the orders passed by the Hon’ble Court in IA No.556 of 2011 dated 832011 the legal representatives of the deceased plaintiff No.1 have been brought on record as plaintiffs Nos.9 to 13)
14.D.Venkateshwar Reddy s/o D.Gurvi Reddy, age 47 years, occ: nil, r/o H.No.404483, Vittal nagar, Kurnool town and district. (Plaintiff No.14 is added as a party vide order in IA No.601 of 2015 dated 26.10.2015).
...Plaintiffs
AND
1. Md. Ghousuddin @ Ghouse Jani, s/o. Md. Bhuranuddin, Age: 46 yrs, Occ: Business,
2. Md. Zubaruddin, s/o. late Md. Nayeemuddin, Age: 11 yrs, Occ: Student
3. Md. Ameeuddin, s/o. late Md. Nayeemuddin, Age: 9 yrs, Occ: Student,
4. Bushra Begum, d/o. late Md. Nayeemuddin, Age: 14 yrs, Occ: student
5. Smeena Begum, d/o. late Md. Nayeemuddin, Age: 12 yrs, Occ: Student
6. Noor Jahan Begum, w/o. late Md. Nayeemuddin, Age: 34 yrs, Occ: House wife Defendants 2 to 5 are rep.by their mother and Natural guardian, Smt. Noor Jahan Begum, def.No.6 Defendants 1 to 6 are r/o. Narsinghi Village, Rajendernagar Mandal, R.R. Dist.
7. G. Narender Reddy, s/o. Narayan Reddy, Age: 51 yrs, Occ: Business, r/o.21990/1, East Kalyanpuri, Uppal, Hyd.
8. Challa Jayasimha Reddy, s/o. late Challa Linga Reddy, Age: 45 yrs, Occ: Business, r/o. 1128, Jillelguda, Saroornagar Mandal, R.R.Dist.
9. M/s.Sri Sai Mourya Estates and Projects Pvt. Ltd., Rep.by V. Suresh Reddy, s/o. V. Rosi Reddy,
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Age: 43 yrs, r/o. Plot No.346, MLA Colony, Road No.12, Banjarahills, Hyderabad. (Defendants 7 to 9 are impleaded, as per the order In IA No.1080 of 2012, dated 21.08.2013)
10. M/s. K.L.R. Industries Ltd., Rep.by its Director, Smt. K. Vijayalakshmi Reddy, w/o. K. Laxma Reddy, Age: 53 years, Occ: Business, r/o. Cherlapally Road, ECIL, Hyderabad. (10th defendant is impleaded, as per the order in IA No.1381 of 2014, dated 18.12.2014).
... Defendants
This suit is coming on before me for final hearing in the presence of Sri K. Praveen Reddy, Counsel for the Plaintiffs, Sri I. Nagender Rao, Counsel for defendants 1 to 6, Sri V. Ranga Reddy, counsel for defendants 7 & 8, Sri Janardhan Reddy, counsel for 10th defendant and upon perusal of the material papers on record and the case 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 is a suit for partition and separate possession of the suit schedule lands in Survey Nos.56, 57, 59, 60, 84 admeasuring Ac.1.17 guntas of
Narsinghi Village, Rajenernagar Mandal, Ranga Reddy District, locally known as ‘Doodekula Bhavi’ and in Survey Nos.150 and 157 admeasuring Ac.5.01 guntas of Narsinghi Village, Rajendernagar Mandal, Ranga Reddy District by metes and bounds into six equal shares and allot two shares to the plaintiffs i.e., one such share to the plaintiff No.1 and another share to the plaintiff
Nos.2 to 8 and allot two equal shares to the defendant No.2 and two equal shares to the defendants 2 to 6, according to the Muslim Personal Law.
2.The plaint averments, in nutshell, are as follows:
a)That one late Shabuddin was the common ancestor of the plaintiffs and the defendants, who died long back leaving behind him his five sons viz., i)
Md. Kareemuddin, ii) Md. Burhanuddin, iii) Md. Muneeruddin; iv) Md.
Nizamuddin and v) Md. Ameeruddin. During the life time of said common
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ancestor, he acquired agricultural lands in different survey numbers total admeasuring Ac.32.14 guntas situated at Narsinghi Village, Rajendranagar
Mandal, Ranga Reddy District. After his death, his above said sons succeeded all the above properties admeasuring Ac.6.18 guntas and they have partitioned orally and are cultivating the same as per their share. Accordingly, Md.
Burhanuddin got an extent of Ac.1.17 guntas of land, locally known as ‘Doodeula Baavi’, which is ‘A’ schedule property and an extent of Ac.5.01 guntas, which is ‘B’ schedule property and his name was mutated in revenue records in respect of ‘A’ and ‘B’ properties. Thereafter, the said Md.
Burhanuddin and his five brothers died.
b)The plaintiffs further contended that Md. Burhanuddin died long back leaving behind his two daughters viz., i) Akbari Begum and ii) Afzal Begum and two sons viz., i) Md. Ghousuddin @ Ghouse Jani and ii) Md. Nayeemuddin.
Smt Akbar Begum, who is daughter of late Md. Burhanuddin, is the first plaintiff in the suit. Plaintiffs 2 to 8 are the sons and daughters of late Smt.
Afzal Begum, who is another daughter of late Md. Burhanuddin. Md.
Ghousuddin, who is the son of Md.Burhanuddin is the first defendant in the suit. Defendants 2 to 5 are the sons and daughters of late Md. Nayeemuddin, who is another son of Mr. Burhanuddin. The 6th defendant is the wife of late
Md. Nayeeuddin. She is the natural guardian of her childrendefendants 2 to 5 and as such she represented them. After the death of Md. Burhanuddin, the plaintiffs and defendants are in possession and enjoyment of the suit schedule properties. The plaintiffs are entitled to have a share along with the defendants in the properties left over by late Md. Bhurhanuddin. The said properties being matruka, each plaintiff is entitled to have a share along with the defendants, as per Muslim Personal Law.
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c)The plaintiffs further averred that while so the defendants have approached third parties to sell the suit schedule lands and obtained sale consideration illegally without knowledge and consent of the plaintiffs. The plaintiffs have approached the defendants several times for partition of the suit schedule properties by metes and bounds and to allot one such share to each of the plaintiffs, but the defendants ignored their demand for partition. The defendants have no exclusive rights over the suit schedule properties. For all these reasons, they are constrained to file the present suit. Hence, this suit.
3(a).Defendant No.1 filed written statement denying all the plaint averments and put the plaintiffs to strict proof of those allegations which are not specifically admitted by him. The first defendant mainly contended that the plaintiffs intentionally and deliberately suppressed all material facts and existing physical features and as such the suit is liable for dismissal and also on the ground of nonjoinder of necessary parties.
b)The first defendant admitted that Mohd. Shabuddin died long back leaving behind his five sons and they succeeded Ac.32.14 guntas and he further admitted that the defendants have partitioned orally and cultivated the same as per their share of the lands. The plaintiffs are well aware about the said oral partition and they have not put forth their claim before the family elders, because they have received amount from them towards their share in the suit property. As such, the plaintiffs have no right whatsoever nature over the suit schedule properties.
c)The first defendant further contended that in the year 2005, Hyderabad
Urban Development Authority (HUDA) issued a notice to them stating that the suit property is part and parcel of land acquisition for outer ring road, then
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they sold the property informing about acquisition by HUDA to M/s. K.L.R.
Industries Limited, vide registered sale deed document No.17000 of 2006,
dated 08.12.2006 and transferred all rights and interest over the suit property
and the plaintiffs are well aware about the said transaction and they intentionally suppressed the above said facts.
d)The first defendant further specifically averred that there is no cause of action to file the suit and the court fee paid u/s. 34 (2) of A.P. Court Fee &
Suit Value Act is not proper, hence, the suit is liable to be dismissed. The first defendant further denied the plaint averments parawise and finally sought the court to dismiss the suit with exemplary costs, in the interest of justice.
4.The defendants 2 to 6 have filed a memo adopting the written statement of the first defendant.
5 (a). The defendants 7 & 8 filed written statement denying all the plaint averments and put the plaintiffs to strict proof of those allegations which are not specifically admitted by them. The defendants 7 and 8 mainly contended that the plaintiffs intentionally and deliberately suppressed all material facts and existing physical features and as such the suit is liable for dismissal and they further contended that they purchased ‘A’ schedule property from the first defendant and others during the year 2005 for an extent of Ac.2.26 guntas and other lands in Survey Nos.56, 57, 69, 61 and 84 under registered sale deed document Nos.7462 and 12928 of 2005. There was no objection from the plaintiffs at the time of said transactions. The plaintiffs have no subsisting right in respect of the property. Only to blackmail and harass the bona fide purchasers, the present suit is filed.
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b).The defendants 7 & 8 further contended that the plaintiffs have sold most of the suit schedule properties, through registered sale deeds. The property purchased by them is clearly demarcated with metes and bounds.
The present litigation is speculative and vexatious intended to blackmail them.
As a matter of fact, there is no land available for partition, but the plaintiffs basing on an imaginary cause of action filed the present suit. The defendants 7 & 8 are enjoying their lands and as such the court fee paid under Section 34 (2) is not correct. There is no cause of action to file the present suit seeking for partition. There are no merits in the suit filed by the plaintiffs and sought the court to dismiss the suit with costs.
6.The 10th defendant filed written statement mainly denying all the plaint averments and put the plaintiffs to strict proof of those allegations which are not specifically admitted by him. The 10th defendant contended that the plaintiffs intentionally and deliberately suppressed all material facts, they purchased Ac.1.02 guntas in Survey Nos.56, 57, 69, 61 and 84 under registered sale deed document No.17000 of 2006, dated 08.12.2006. There was no objection from the plaintiffs at the time of said transactions. The plaintiffs have no subsisting right in respect of the property. Only to blackmail and harass the bonafide purchasers, the present suit is filed. There is no cause of action to file the present suit and the court fee paid is not correct and the suit is barred by limitation. For all these reasons, he sought the court to dismiss the suit with costs.
7.Based on the pleadings, on 08.07.2008, the following issues were settled for trial:
i)Whether the plaintiffs are entitled for partition of suit schedule property into six (6) equal shares and for allotment of one
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share to the 1st plaintiff and one share in favour of plaintiffs 2 to 8 as prayed for?
ii)Whether the plaintiffs are entitled for separate possession of their respective shares?
iii)To what relief?
8.The following additional issues were framed on 04.12.2013:
i)Whether the plaintiffs are having joint and constructive possession of the suit schedule property as on the date of filing of the suit?
ii)Whether the suit is not valued property?
9.On behalf of the plaintiffs, PWs.1 to PW.4 were examined and Ex.A1 to
A9 were marked. On behalf of the defendants, DWs.1 to 3 were examined and
Exs.B.1 to B.10 were marked.
10.This Court has heard the arguments of both the counsel.
11. Issue No.1 and No.2 and additional issue No.1:
i)Whether the plaintiffs are entitled for partition of suit schedule property into fourteen (14) equal shares and for allotment of one such share in favour of each plaintiff as prayed for?
ii)Whether the plaintiffs are entitled for separate possession of their respective shares?
Additional issue No.1 dated 04.12.2013
(i)Whether the Plaintiffs are having joint and constructive possession of the suit schedule property as on the date of filing of the suit?
As all the above issues are intrinsically related to each other, so that this court felt it is just and necessary to answer these issues together to avoid duplicity of evidence.
12.To strengthen the contentions of the plaintiffs, the plaintiff No.8 is examined as Pw1. Through him, Ex.A1 to Ex.A7 documents, such as certified
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copies of kasra pahani for the year 195455, Ex.A2 to Ex.A7 certified copies of pahanies for the year 197576, 199900, 200001, 200102 and 200405 are marked. One third party to the suit proceedings is examined as PW2. He sailed with the version of Pw1 by almost all supporting the contentions of the plaintiffs. The brotherinlaw of defendant No.1 and 2 is examined as PW3.
13.The Plaintiff No.14 is examined as PW4. Through this witness, Ex.A8 certified copy of sale deed vide document No.3993 of 2013, dated 08.04.2013 is marked.
14.To refute the contentions of the plaintiffs, the defendant No.1 is examined as DW1. Through him, Ex.B1 to Ex.B5 documents are marked.
Ex.B1 is the certified copy of registered sale deed vide document No.7462 of 2005 dated 14.07.2005, Ex.B2 is the certified copy of registered sale deed vide document No.12928 of 2005 dated 17.12.2005, Ex.B3 to Ex.B5 are the original encumbrances certificates are marked.. The defendant No.8 is examined as DW2. Through him, Ex.B3 and Ex.B4 sale deeds are marked.
These documents are none other than replica of Ex.B1 and Ex.B2 documents. (Through DW1 Ex.B3 and Ex.B4. The documents marked through DW2 may be read as Ex.B3/1 and Ex.B4/2). One more witness is examined as DW3. Through him, Ex.B5 to Ex.B10 documents are marked.
Ex.B5 is the certified copy of registered sale deed vide document
No.17000/2006 obtained in favour of the defendant No.10 dated 08.12.2006. Ex.B6 is the certified copy of mutation proceedings in favour of the defendant No.10 dated 22.03.2007, Ex.B7 is the certified copy of registered development agreementcumGPA document No.720 of 2008 executed by the defendant No.10 in favour of the developer. Ex.B8 is the
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certified copy of the succession proceedings in favour of the legal heir of
Late Shahabuddin dated 03.10.2006, Ex.B9 is the certified copy of pahani
dated 05.3.2008, Ex.B10 is the original authorization letter dated
03.2.2016. (As Ex.B5 document is already marked through DW1, the
Ex.B5 document marked through DW3 may be read as Ex.B5/1).
15.PW1 in his evidence affidavit almost all reintroduced pleadings by contending that he is entitled for a share in the suit schedule property.
When this witness meticulously crossexamined by the learned counsel for the defendant No.10 before the AdvocateCommissioner at one point of time he clearly admitted that they have not filed any proof of oral partition among the legal heirs of Late Shabuddin, so also he cannot say on which date, month and year such oral partition took place. They have not even averred about the said aspect in the plaint about that oral partition. She further admitted that they have not filed any proof of mutation for Ac.6.18 gts each in revenue records in favour of five sons of Shabuddin. As per his contention, each son has got Ac.6.18 gts with separate possession with metes and bounds, but he has not filed any such proof in support of plaint averments. He further admitted that the present suit as well as OS No.815 of 2007 pending for partition of two different sets of parties claiming to be the legal heirs of Shabuddin’s sons in respect of the properties identical in all respects i.e., extent, survey number and boundaries. He further admitted that there cannot be two properties with same description. No sketch plan filed showing oral partition with boundaries as claimed in the plaint. They have not even filed any proof of mutation and possession in revenue records in respect of “A” and “B” properties in favour of
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Mohd.Nizamuddin or Jahangiruddin or the plaintiffs or their ancestors and no patta passbooks, title deeds in their favour have been issued by the revenue department.
16.PW1 further fairly conceded that the oral partition mentioned in the plaint not implemented in the revenue records. He comes up with a contention that apart from five sons of Late Shabuddin namely Hussain bee, Khasim bee and others they are also entitled for the share of the properties, but they were not given any share in the property and they have not mentioned all those aspects in the pleadings. He is not aware about the details of the legal heirs of Khasim bee and Hussain bee. One more interesting point elicited from this witness is that he cannot say “B” schedule property’s extent and its survey number. Originally, the main suit is filed against 6 defendants, subsequently they have impleaded the defendant No.7 to 10 as they have purchased the land covered in the survey number referred in the schedule from the legal representatives of
Late Shabuddin’s sons’ sons much prior to filing of the suit by them. PW1 further fairly conceded that DW1 purchased Ac.1.02 gts of land under registered sale deed vide document No.17000 of 2006 for valid consideration from the legal heirs of Late Rafiuddin @ Rafiquddin, late
Jahangiruddin, Late Nayeemuddin and they have delivered possession to the defendant No.10 and the same has been mutated in his favour in the revenue records vide proceedings No.D/633/2006 dated 22.3.2007 and ever since from the date of purchase, the defendant No.10 has been in possession over the said property. One more interesting point brought from his crossexamination is that the plaintiffs are concerned only with
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Ac.0.04 gts out of Ac.1.02 gts sold by the legal representatives of
Nayeemuddin to the defendant No.10. They are no way concerned with regard to the land sold by the legal representatives of Rafiuddin or
Jahangeeruddin under registered sale deed under Ex.B5/1. He further pleaded ignorance that Ac.2.17 ½ gts was acquired by the Government for
Outer Ring Road project and she is not impleaded as a party to take said compensation.
17.PW1 admitted that as per the revenue proceedings dated 03.10.2006 succession was granted to an extent of Ac.1.21 gts in favour of
Rafiuddin, an extent of Ac.1.19 gts in favour Ghousuddin, an extent of
Ac.1.15 gts in favour of Nayeemuddin and an extent of Ac.1.19 gts in favour
Jahangeeruddin out of the above said succession each one got Ac.1.01 gts in Sy.No.150 and the remaining extent in “Dudekula Bavi” land. They have not raised any objections for the above said succession. They have not filed any suit for cancellation of the sale deed in favour of third party purchasers and they were not made as a party. In further lengthy crossexamination, the learned counsel for the defendant No.10 almost all made PW1 to admit the pleas taken in the written statement. One more interesting point elicited is that as per the proceedings of the Deputy Collector & Mandal
Revenue Officer, succession was granted and he is not aware after the death of Mohd.Kareemuddin, Mohd.Burhanuddin, Mohd.Nizamuddin,
Mohd.Muneeruddin and Mohd.Ameeruddin in favour of their sons. He stated that the present suit is filed for an extent of Ac.4.00 gts and odd but they have not filed any documentary proof to show that their grandfather by name Mohd.Burhanuddin was the pattendar and possessor of Ac.6.18
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gts covered in the survey number. He further fairly conceded that as per the proceedings dated 03.10.2006 no succession was granted in favour of
Mohd.Kareemuddin and four others. When the above said evidence of
PW1 is verified with that of the pleadings, this court is of considered view that the plaint averments are not properly and satisfactorily visualized on the points as urged by her. Furthermore, this witness meekly submitted to the crossexamination of the defendant No.10 by admitting the defences more particularly by admitting that he has not filed any iota of relevant material in support of his contentions.
18.One independent witness, as PW2, tried to support the version of
PW1 on all material aspects and no documents marked through this witness. At one point of time, he clearly admitted that he cannot say the extent of the schedule property as well as survey numbers and he does not know in whose name the revenue records booked after 2007. He knew that the suit schedule properties were sold away to M/s.Sai Mourya company. This witness also admitted that the daughters were not added as parties in the suit and at one point of time he could not give details of extent of land covered under “A” and “B” schedule properties. He fairly admitted that the plaintiffs neither filed nor he verified mutation record in respect of Ac.6.18 gts covered in respect of the suit schedule properties either in favour of Late Nizamuddin or his legal heirs, including the plaintiffs. He even admitted that the plaintiffs not made any claims before the Land Acquisition Officer in respect of the land belonging to
Nizamuddin. In further crossexamination made by the defendant No.10 counsel, this witness clearly admitted that the legal heirs of Hussain bee
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and Khasim bee are not made as parties in the suit. He has not seen any document in support of oral partition for an extent of Ac.32.14 gts of land among five sons of Shabuddin. At one point of time he clearly deposed that he does not know the details of plaint averments. He heard that an extent of Ac.8.00 gt of land in sy.No.165 is part of excess land declared by the ULC authorities was allotted to the Tourism department prior to filing of the suit. He further admitted that the suit is filed after the death of
Mohd.Nizamuddin. Surprisingly, this witness gone to the extent by deposing that the suit schedule “A” and “B” properties are not available for partition as on the date of filing of the suit.
19.The brotherinlaw of the plaintiff No.1, as PW3, reiterated the version of the plaint in the pleadings but when he was put to the test of cross examination, he clearly deposed that the defendant No.1 and 2 are brothersinlaw, but he has not mentioned about the said relationship in his evidence affidavit. He also comes up with a contention that he cannot say extents in respect of survey number, schedulewise and the boundaries of the schedule property. He cannot say the year of the marriage of the daughters of Late Nizamuddin, however his marriage was performed in the year 1972. he does not know names of the daughters of Nizamuddin reflected in the revenue record. By over all consideration of his evidence, there is no convincing and relevant material put forth to support the version of plaintiffs. As such his evidence is not going to help the plaintiffs case.
20.The plaintiff No.14 is examined as PW4. His endeavour is that he purchased the property under Ex.A8 sale deed dated 8.4.2013. (but in the
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evidence of PW3 it is marked as Ex.A6). It appears to the court that the document relied by him is subsequent to filing of the suit. Evidently, the plaintiff No.14 impleaded subsequently. So, his version is to be considered by the court after considering the evidence all the witness examined on behalf of the plaintiffs. But when this court considered the evidence of
PW1 to 3, as referred supra, they have given a gobye to the pleadings.
Thereby they could not withstand to the points as averred by them in the pleadings. Even the evidence of PW1 and PW3 reflected these aspects.
Thereby this court left with no option except to arrive to the conclusion that the plaintiffs though averred as many as contentions as possible but they could not withstand on those aspects. So, by any stretch of imagination even after considering Ex.A1 to Ex.A8 documents, they could not withstand to the test of crossexamination. Furthermore, mere marking of the documents is entirely different with that of its proof and the innocence or ignorance of the above referred three witnesses examined on behalf of the plaintiffs, not enlightened the points as urged by them, more particularly to accept the concept of partition as urged by the plaintiffs with relevant clinching oral and documentary evidence, thereby they failed to substantiate their pleas to the satisfaction of the court.
21.The defendant No.1, defendant No.8 and one more witness are examined as DW1 to DW3, they almost all reintroducing their stand by relying the documents as referred supra. The learned counsel for the plaintiffs tried to impress upon the court in crossexamination of DW1 by reintroducing the pleadings. This court has to consider one prime point that the plaintiffs cannot strengthen their case by crossexamining the
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defendants’ witnesses. It is well known cardinal principle that the party who approaches the court has to stand or fall on his own legs but not on the weaknesses, if any, left over by the other side. The defendant No.8, as
DW2, relied on Ex.B3 and Ex.B4 sale deeds. (As Ex.B3 to Ex.B5 are already marked through DW1, so these documents can be treated as
Ex.B3/1 and Ex.B4/1). His sole contention is that they have purchased the said property. The efforts made by the learned counsel to shatter his version. When he unequivocally deposed about the property purchased by him, then any amount of crossexamination without substantiating the version of the plaintiff cannot be considered at all. Furthermore, DW2 reaffirmed his stand by refuting the contentions in the crossexamination made by the plaintiffs’ counsel. Thereby the stand of DW2 is not shaken in any manner. So, the evidence of DW2 has to be considered more particularly with regard to purchase of the property by him as those sale deeds i.e., Ex.B3 and Ex.B4 are much prior to filing of the suit and there is a reference with regard to such transaction in the written statement even then the plaintiffs did not choose to take any steps in this regard.
22.The Manager, Finance & Accounts of the defendant No.10 is examined as DW3. He relied on Ex.B5 to Ex.B10 documents to show about mutation proceedings in favour of the defendant No.10 under Ex.B5. (As
Ex.B5 is already marked, this document is treated as Ex.B5/1). So also registered development agreement entered in between the defendant No.8 and No.10 with the developer under Ex.B7, Ex.B8 certified copy of succession proceedings issued by the revenue authorities in favour of the legal representatives of Shabuddin, dated 3.10.2006 and further relied on
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Ex.B9 pahani and Ex.B10 original authroization letter given to him to give evidence. Evidently, the defendant No.10 is a company entered into Ex.B7 with the defendant No.10. These documents are not even denied after filing of the written statement by the defendant No.10 by filing rejoinder.
23.When the plaintiffs own witnesses clearly stated that the schedule property is not available for partition even as on the date of filing of the suit and further stated that the land in Sy.No.157 is not part and parcel of the suit schedule property, they remained silent though there is reference with regard to ULC proceedings plea taken by the defendants. Even the plaintiffs predecessors in title not got land in Sy.No.157. Ex.B8 speaks said aspect. Thereby this court compelled to arrive to the conclusion that the plaintiffs suppressed crucial aspects and they fairly admitted that they have not impleaded the proper and necessary parties despite a specific plea taken in the written statement. It is not out of place to mention that the plaintiffs are granddaughters of Nizamuddin. They have not filed any proof to show about the relationship with the said Nizamuddin or with subsequent legal heirs. Furthermore, the plaintiffs not filed any document about the succession. PW1 admitted that the defendant No.7 to 10 purchased the land covered under “A” schedule property under registered sale deed. All these admissions goes to show that the plaintiffs though taken as many pleas as possible but they could not withstand in support of their contentions. So that this court is of considered view that the plaintiffs could not visualized the court that the schedule properties are liable for partition and they are entitled for fourteen equal shares and for allotment of one such share to the plaintiff as averred by them. Thereby the issue
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No.1 and No.2 and additional issue No.1 are answered against the plaintiffs and in favour of the defendants.
24. Addtional Issue No.2:
(ii)Whether the suit is not valued properly?
This issue is settled based on the specific plea taken by the defendant
No.18 in the written statement. The contention of the plaintiffs is that they are still in joint possession over the scheduled property as per the pleadings and also as per the version of Pw1. Whereas in cross examination of PW1, she further fairly conceded that DW1 purchased
Ac.1.02 gts of land under registered sale deed vide document No.17000 of 2006 for valid consideration from the legal heirs of Late Rafiuddin @
Rafiquddin, late Jahangiruddin, Late Nayeemuddin and they have delivered possession to the defendant No.10 and the same has been mutated in his favour in the revenue records. From the above said categorical admission made by PW1 with regard to alienation of the schedule property for that reason this court left with no option except to arrive to the conclusion that she could not visualize the court that she is in joint possession and enjoyment over the suit schedule property as pleaded and deposed by her in her chiefexamination. Even there is no iota of material to consider and accept that she is in joint possession and enjoyment over the suit schedule property. All these aspects clearly go to show that plaintiffs are not in joint possession and enjoyment over the suit schedule properties as averred by her, per contra she admitted the version of the defendants.
25.In 2007 (6) ALT 614 in between S. Gaffar Saheb vs S. Hussain Bee @ S.
Mustari And Ors., it is held that
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“When the plaintiff was not in joint possession at any time either with Kareemullah or after the death of Kareemullah with defendant No. 1, and some of the properties were alienated during the life time of Kareemullah itself, the suit has to be valued under Section 34(1) but not under Section 34(2) of the Act.”
Even in the present case on hand, though the PW1 categorically stated that she is in possession and enjoyment over the schedule property along with the defendants, but to substantiate that version Plaintiffs and
PW1 could not place any iota of documentary evidence. Furthermore, at one point of time the witnesses deposed that there are no properties liable for partition.
After considering the above said material it is abundantly clear that the court fee paid by the plaintiffs as if they are in joint possession and enjoyment is not correct and they failed to establish the same, as such this issue is answered against the plaintiffs.
26. Issue No.3: To what relief?
As issue No.1 and 2 and additional issues No.1 and 2 are decided against the plaintiffs and in favour of the defendants, so the plaintiffs are not entitled for partition and for preliminary decree as sought by them, so this issue is decided against the plaintiffs and in favour of the defendants. Thus suit deserves to be dismissed with costs.
27.In the result, this suit is dismissed with costs.
Typed to my dictation, corrected and pronounced by me in open Court on this the 31 st day of December, 2018.
IIIADDITIONAL DISTRICT JUDGE,
RANGA REDDY DISTRICT.
20 Of 20
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE PLAINTIFFS ON BEHALF OF THE DEFENDANTS
PW–1: Md. Kaleem DW1 Mohd. Ghousuddin PW–2: Shaik Ahmed @ Pasha Bhai DW–2: Challa Jaisimha Reddy PW–3: Mohd. Basheeruddin DW–3: D.V.R. Murthy PW–4: D. Venkateshwar Reddy
DOCUMENTS MARKED
On behalf of the Plaintiffs: Ex. A1 : is the CC of khasara Pahani for the year 195455. Ex. A2 : is the CC of Pahani for the year 195558. Ex. A3 : is the CC of Pahani for the year 197576. Ex. A4 : is the CC of Pahani for the year 19992000. Ex. A5 : is the CC of Pahani for the year 20002001. Ex. A6 : is the CC of Pahani for the year 20012002. Ex. A7 : is the CC of Pahani for the year 20022003. Ex. A8 : is CC of Sale Deed No. 3993 of 2013 dated: 08.04.2013.
On behalf of the defendants: Ex. B1 : is the CC Registered Sale Deed br. Doc. No. 7462/2005, dated: 14.07.2005. Ex. B2 : is the CC Registered Sale Deed br. Doc.No. 12928/2005, dated: 07.12.2005. Ex. B3 : is the Original E.C dated: 29.09.2007 from 01.05.1995 to 28.09.2007. Ex. B4 : is the Original Encumbrance Certificated. Ex. B5 : is the Original Encumbrance Certificated. Ex. B3/1 : is the CC Registered Sale Deed br. Doc. No. 7462/2005, dated: 14.07.2005. Ex. B4/1 : is the CC Registered Sale Deed br. Doc.No. 12928/2005, dated: 07.12.2005. Ex. B5/1 : is CC of Registered Sale Deed bearing No. 17000/2006, in favour of Defendant No. 10, dated: 08.12.2006. Ex. B6 : is CC of Mutation Proceedings in favour of Defendant No. 10, dated: 22.03.2007. Ex. B7 : is CC of Registered Development Agreement cum GPA bearing Doc. No. 720/2008, SRO, Gandipet executed by and between Defendant No. 10 and others in favour of Developer. Ex. B8 : is CC of Succession Proceedings in favour of Lrs of Late Shabuddin, dated: 03.10.2006. Ex. B9 : is CC of Pahani, dated: 05.03.2008. Ex. B10 : is the Original Authorization letter, dated: 03.02.2016.
IIIADDITIONAL DISTRICT JUDGE,
RANGA REDDY DISTRICT.