Smt K Vani

IN THE COURT OF THE XIX JUNIOR CIVIL JUDGE: CITY CIVIL

COURT HYDERABAD

Dated this the day of 4 th April, 2014

PRESENT: Smt. K.Vani, B.A., LL.B.,

XIX JUNIOR CIVIL JUDGE.

O.S. No.1612 of 2012

Between: Anegoni Bikshapathy S/o.A.Narsimha, aged about 29 years, Occ: Private Employee, R/o.Plot NO.26, H.No.2-1-783/26, Sanjay Gandhi Nagar Colony,

Vidyanagar, Hyderabad........Plaintiff

And

D.Venkat Ramulu S/o.Late Nagappa, aged about 45 years, Occ: Business, R/o.H.No.2-1-783/7, Sanjay Gandhi Nagar Colony,

Vidyanagar,Hyderabad. ....Defendant

This suit coming on today before me for final disposal in the presence of Sri Naveen Kumar, Advocate for the plaintiff and Sri Venu Gopal Redddy, Advocate for defendant and the matter having been heard and stood over for consideration till date, this court passed the following:-

JUDGEMENT

1.This is a suit filed by the plaintiff for perpetual injunction restraining the defendant and their antisocial elements not to interfere in the peaceful possession and enjoyment in and over the suit schedule property with costs.

2.In nutshell the case of the plaintiff is that:- The plaintiff is the absolute owner and possessor of house property bearing No.2-1-783/26, (Plot No.26) in Sy.No.53/2, situated at Sanjay Gandhi Nagar, Vidyanagar,

Amberpet village and mandal, Hyderabad as the same has been purchased jointly with his brother under registered sale deed vide

Doc.No.4246/2006 dt.08.06.2006 from its lawful owner Smt.K.Vijaya

Laxmi and later his brother A.Raju has realised his share and right of property through registered document No.3661/2010 dt.21.11.2010 and accordingly, the plaintiff has become absolute owner and possession of 2 O.S.No.1612 of 2012 the same.

3.Plaintiff submit that originally, the land in Sanjay Gandhi

Nagar Colony was divided into 32 plots each 50 sq.yards and allotted to the individuals and the plaintiff's vendor is one among them. Further during the allotment of the above said plots, due to passing of Railway

Electrical wires from the lands, the plot No's 1 to 16 were affected some portion of land, as such the Committee of the said locality conducted a meeting and decided that all the allottees of the said layout has to be adjusted including the Roads against the layout proposal and accordingly all the 32 members were constructed the houses by adjusting the land after effected area. And on several request made by the allottees of the society, the Railway Authorities have been removed the said Electrical wires from the said lands. As such the society has again conducted meeting and decided that the available open land has to be divided into 32 equal shares accordingly each individual has got 15 sq.yards of land and accordingly all the 32 memebrs got benefited and most of the members were constructed the structures. The plaintiff has got 15 sq.yards land near to the plot No.7 property in Sy.No.53/2, situated at Sanjay Gandhi Nagar, Vidyanagar, Amberpet village and

Mandal Hyderabad District and since then the plaintiff is enjoying the said open area of property, which is referred to suit schedule property.

4.Plaintiff submit that the defendant is owner of Plot No.7, and taking advantage of that, the suit schedule property is vacant one, the defendant and his henchmen are trying to interfere and intend to creat nuisance in and over it, though the plaintiff resisted them number of times but under one pretext or the other they are avoiding and reluctant 3 O.S.No.1612 of 2012 to proceed with, as such the plaintiff approached the society of the said locality in the last week of June, 2012, even the said society members called the defendant and advices not to invite the litigation and though they are hearing their advice and doing the same type of inconvenient to the plaintiff. Due to which the plaintiff is receiving lot of mental agony. Upon which the plaintiff demanded the defendant and his men on 06.07.2012 to stop aforesaid activities they simply kept quite and on the other hand provoking by way of threatening.

5.The plaintiff submit that the defendant's neighbour by name

D.Narsimha, who is owner of Plot NO.8 was also cause same nuisance in the land of Ananthaiah, who is owner of plot NO.25 in respect of 15 sq.yards land. And both were filed the suits for perpetual injunction against each other vide O.S.No.4646 of 2008 and O.S.No.4393 of 2008 on the file of XXII Junior Civil Judge, City Civil Court, Hyderabad and after due detailed enquiry the Hon'ble Court was pleased to decree the suit

O.S.No.4646 of 2008 by judgement and decree on 22.03.2012 and

accordingly 15 sq.yards of land of Ananthaiah was safe guarded by its

Judgement and Decree. In the present case, the dispute raising by the

defendant is similar type to the facts and observations of Judgement and

Decree in O.S.No.4646 of 2008 passed by the Hon'ble XXII Junior Civil

Judge, City Civil Court, Hyderabad. As such in this case also the same

principle is applicable to the present facts of the case as this defendant has no right and interest in the schedule property. As such the plaintiff has no other option except to approach this Hon'ble court to grant perpetual injunction. Hence the suit.

6.Defendant filed written statement opposing the contents of the 4 O.S.No.1612 of 2012 plaint and brief contents are that:- The suit filed by the plaintiff is not maintainable in the eye of law. The defendant is the absolute owner and possessor of the house property bearing No.2-1-783/7, Plot No.7, situated at Sanjay Gandhi Nagar Colony, Vidyanagar, Hyderabad as the same has been purchased from Smt.G.Balamma W/o.Late Muthyalu under registered sale deed by the mother of the defendant i.e.,

Smt.D.Laxmamma W/o.Late D.Chinna Nagappa vide Doc.No.1353/95, dt.21.03.1995 and the said G.Balamma vendor of mother the defendant was a Patta holder of the said property admeasuring 50 sq.yards or 41.80 sq.mtrs and the mother of the defendant has acquired the same being same community and while purchased the said plot it is mentioned in the registration plan of the defendant's house the measurements of the property shown as 24'-0'' in length X 17'-0'' in width totaling the area is 45 sq.yards, and the measurements shown on records were less than the actual patta measurements and when the defendant questioned the shortage of 5 sq.yards of land with

Smt.G.Balamma who is vendor of the mother of the defendant informed that remaining 5 sq.yards are the extension to the back of defendant's house which was also in her possession bounded by East:Open land and suggested to dwell there. Accordingly, the defendant took possession from her and started living there. Hence the defendant and his family has been in absolute possession of the extended open place and the schedule of property is bounded by:- North: Plot No.8, South: Plot No.6,

East: Open land and West: 13'-0'' wide road. The mother of the defendant Smt.D.Laxmamma has gifted the property plot No.7 covered by built up area plus open land in favour of son of the defendant by name D.Rushikant under registered gift settlement deed doc.NO.78/2004 dt.08.01.2004 and as the son of the defendant is being 5 O.S.No.1612 of 2012 minor the defendant became absolute guardian of the said property.

7.Defendant submit that the plaintiff has acquired his whole alleged property from Smt.K.Vijaya Laxmi and later his brother has released his half of the property in his favour vide documents

No.4246/2006 dt.08.11.2006 and 3611/2010 dt.24.11.2010 respectively.

Presently the plaintiff's property can be seen as bounded by North: MCH

No.2-1-783/25, South: MCH NO.2-1-783/27, East: Road and West: Lane.

The total extent of plaintiff's property is shown as 50'-08'' sq.yards (17'.6'' length X 26' breadth). Here it can be observed that, more 8'' sq.inches of land has been encroached beyond 50 sq.yards Government allotted extent. This fact is concealed in the registration plan of plaintiff.

Further a lane is shown existing on the west side of the property. And with regard to last three documents from bottom in the plaint on which the plaintiff relying upon, are as under:-

1. Telugu typed letter addressed by residents of Plot No.17 to 32 to

President and Vice President, Sanjay Gandhi Nagar Schedule and

Backwar Class Association with no date;

2. Telugu typed letter addressed on letter-pad of Scheduled Caste and Back ward classes Association, Regn.No.729 addressed to

Residents of Plot NO.17 to 32 dt.21.10.2008; and

3. Telugu hand written representation addressed by certain people to C.I. Of Police, Nallakunta Police Station with no date.

8.The defendant submit that in respect of the above 1st letter, it can be seen that, no date was mentioned. There is mentioned of Railway surplus land, which in real does not exist. It is not known, who gave the right to Association for distributing Railway land/Revenue land. It is an 6 O.S.No.1612 of 2012 offence to distribute, occupy or to encroach Railway land/Revenue land.

There is no plan for Railway land, as Railway authorities notified certain area adjacent to Railway track and planted demarcation stones. The said representation has no legal sanctity, as Railway land/Revenue land cannot be distributed. However, Government have allotted 32 D-pattas admeasuring 50 sq.yards each in the interest of landless poor. Not satisfying with sanctioned land, owners of Plot No.17 to 32 are conniving to grab Railway land/Revenue land by banned ways. Though the representation was written by plot Owners of Nos.17 to 32, only 8 members signed. Signature of remaining 8 owners are not present. The application was drafter with an objective to cheat Government, Railway and remaining dwellers of the Sanjay Gandhi Nagar Colony.

From 2nd letter above, it can be seen that, the folded photo- stat copy is provided. Further from the matter visible, a confused and uncertain reply is give. It was mentioned that the railway land was allotted, but it was not mentioned to whom the Railway land was allotted. Under the pretext to pacify the issue, the Railway land seems to be distributed. However, this document no where relates to the present case.

From 3rd letter, it can be seen that, this document nowhere relates to present case. The letter depicts the illegal activities of unauthorized association. Self presumed President and other committee members have dramatized the issue. It was mentioned that, members of Sanjay Gandhi Nagar Colony and adjacent colony have assembled and drafted this letter. It is not known whey the dwellers of adjacent colony were called to interfere into the defendant and plaintiff's colony matters. Further, approximately 40 members are shown in the letter but only 35 of them have signed.

7 O.S.No.1612 of 2012

9.Defendant submit that the plaintiff does not belong to Plot

No.1 to 16 side and it is also not true to say that Plot No.1 to 16 were affected due to passing of Railway electrical wires. The Government has allotted clear land of 50 sq.yards each and issued patta certificates also and further defendant submit that no committee of the locality conducted any meeting and decided that all the allottees has to be adjusted including the roads against the layout proposal. Infact, now no committee is exists and no one has taken consent of the defendant nor the defendant has signed on any document for the purpose of adjustment of plots.

10.In respect of defendant's plot No.7 as mentioned in Form D- patta condition No.3 “that the land shall be used for dwelling house and for no other purpose and that on it shall be build and completed a house or other erection of a substantial and permanent nature of the description and dimensions approved by the Corporation of Hyderabad or shall be put up a substantial and permanent wall or fence within the period of twelve months from the day of 18.12.1982 i.e., date of allotment of patta.” Accordingly Smt.Balamma who is vendor of mother of the defendant constructed the house in 45 sq.yards and left 5 sq.yards open on East side towards Railway line and erected fencing to the left open land 5 sq.yards. Connectively Smt.G.Balamma also paid house tax to Municipal Corporation of Hyderabad and obtained receipts.

It was later informed by Smt.G.Balamma that for the fear of Rail, the 5 sq.yards kept open and used for parking. On purchase of total property of 50 sq.yards, the house and open land were taken into possession.

Further the plaintiff stated in his plaint that he got 15 sq.yards near to 8 O.S.No.1612 of 2012 the plot No.7, the same is absolutely false, because Plot No.7 property belongs to the defendant and the defendant is in physical possession of total open land within 50 sq.yards of allotted through Government patta, i.e., 45 sq.yards of constructed house and remaining 5 sq.yards open land upto railway line. The fact of possession can be observed from the registered sale deed documents and registered blue print of the defendant. And after purchase of the plot No.7 by the mother of the defendant in the year 1995 from Smt.G.Balamma the defendant has extended a room within 50 sq.yards of Government limit. There is no plan for the said suit schedule property as no extra place exists, after allotment of 50 sq.yards. There is absolutely no ambiguity in the matter and defendant possession is registered. The suit schedule property mentioned herein is just utopia.

11.Defendant submit that the mother of the defendant

Smt.D.Laxmamma purchased the plot No.7 in the year 1995 where as the plaintiff purchased plot No.26 in the year 2006 i.e., approximately after eleven years of purchase of the plot No.7 by the mother of the defendant. Hence it cannot be said that the defendant is in possession of open land of 15 sq.yards. The defendant was called by the locality

Association is purely false one and more over Smt.G.Balamma, the vendor of mother of the defendant informed that a person by name

B.Banaiah advertised himself as President of Association and forcibly affixed stamp and signature on the D-Patta which is illegal and no orders were confirmed to B.Banaiah for affixing and signing on Government issued D-Pattas. Here only Revenue Divisional Officer is authorized to issue D-patta and not Association. Here in the D-pattas along with RDO signature, B.Banaiah also affixed and signed which is contrary and 9 O.S.No.1612 of 2012 violation of law. This was done so to show that the Association issued pattas. As far as now, no association is in existence and no activities are in force. Further on 06.07.2012, nothing happened as alleged by the plaintiff. But the real fact is on 06.07.2012 children of the defendant are studying in front room of the defendant house and the plaintiff while passing by road giggled and passed satires at them and said for what they are studying? And the plaintiff was always jealousy about the children of the defendant and their studies and quarreled with them many times. While hot conversation was taking place between the children of the defendant and the plaintiff, the mother of the defendant

Smt.D.Laxmamma came and restrict the plaintiff and suddenly, the plaintiff and his family members pushed away the mother of the defendant and she fell down on the road and received injuries and after some time the defendant came to know about the incident and took his mother to hospital. Defendant prays to dismiss the suit.

12.Basing on the rival contentions, the following issues are framed for trial:

1. Whether the plaintiff is entitled for perpetual injunction as prayed for ?

2. If so to what relief?

13.During the trial plaintiff examined himself as Pw1 and got marked the documents Ex.A1 to A7 and also examined P.Banaiah as PW2 and

C.Gyaneshwar as PW3 . On the other side, defendant himself examined as DW1 and exhibited Ex.B1 to B12 and also examined one Om Prakash as DW2.

14.Heard both sides perused the entire material on record.

10 O.S.No.1612 of 2012

15. Issue No.1:- The counsel for plaintiff submitted as plaintiff filed suit for perpetual injunction as he is owner of H.No.2-1-783/26, situated at SanjayGandhi Nagar. He purchased the same through registered document on 08.06.2006 from its lawful owner K.Vijaya Laxmi. The land in Sanjay Gandhi Nagar Colony was devided into 32 plots, 50 sq.yards allotted to 32 persons each. Vendor of plaintiff is one of them. Due to passing of railway electrical lines from the land plot Nos.1to 16 were effected some portion of the land as such, committee of the said locality decided to allot to adjust some land to the affected people. Accordingly, 32 members were constructed their houses by adjusting the land after affected area. On the request of society, railway authorities removed electrical wires then the society again conducted meeting and decided to distribute the open land among 32 persons equally as such, each allottee has got 15 sq.yards equally. Accordingly plaintiff has got 15 sq.yards near to the plot No.7. Defendant is the owner of plot No.7.

Taking advantage of that, he is trying to interfere with the possession of the plaintiff though plaintiff resisted the illegal acts but defendant denied the same then plaintiff approached the society and the society people also advised the defendant not to interfere but defendant not heard the words of society. Defendant also caused nuisance to the owner of the plot No.8 and 25, they were filed O.S.No.4646/2008 and

O.S.No.4393/2008 and same were decreed. Defendant is in possession

of 65 sq.yards even then he is trying to grab the plaintiff's 15 sq.yards hence he filed the present suit and prays to grant permanent injunction in his favour.

16.On the other side, the counsel for defendant argued that defendant is not the owner of plot No.7. His mother purchased the 11 O.S.No.1612 of 2012 same in the year 1995. Originally the land is shown as 50 sq.yards but on ground it is only 45 sq.yards and there is 5 sq.yards less. Vendor of his mother stated that 5 sq.yards are the extension to the back of the house of mother of DW1 and given possession. Accordingly his mother took possession from her and living there. Hence family of defendant is in absolute possession of the open land i.e., suit property. Mother of defendant executed will deed infavour of Rishikanth i.e., son of DW1. As defendant is his father Natural guardian, he is maintaining the property.

Plaintiff is in possession of 50-08 sq.yards but actually he purchased only 50 sq.yards. Defendant is not a party to the O.S.No.4646/2008 and

O.S.No.4343/2008. There is no association is in existence. Only to grab

defendant's property, plaintiff filed the present false suit and prays to dismiss the same.

17.As it is a suit for injunction, the burden is on the plaintiff to prove that he is in possession of the suit schedule property. To prove the possession, he examined himself as PW1. The evidence of PW1 is replica to the plaint and marked Ex.A1 to A7. On perusal of Ex.A1 it is a certified copy of sale deed executed by K.Vijayalaxmi infavour of PW1 and one A.Raju Goud for H.No.2-1-783/26 in Sy.No.53/2 admeasuring 50 sq.yards. On perusal of Ex.A2 it is a registered release deed executed by A.Raju Goud who is brother of PW1 on 21.11.2010. Ex.A3 is the voter ID card issued in the name of plaintiff towards the H.No.2-7- 783/26. Ex.A4 is the Aadhar card of PW1. Ex.A5 is the electricity bill dt.02.02.2013. Ex.A6 is the terms of compromise filed in

O.S.1614/2012. Ex.A7 is the petition filed under order 23 Rule 3 of CPC

in O.S.NO.1613/2012. The property mentioned in Ex.A1 to A5 is not related to the suit property. Ex.A1 to A5 are related to the H.No.2-1- 12 O.S.No.1612 of 2012 783/26 for an extent of 50 sq.yards. On perusal of the suit schedule property it is filed for an extent of 15 sq.yards in Sy.No.53/2. So it is clear that Ex.A1 to A5 are not related to the suit schedule property. On perusal of Ex.A6 and Ex.A7 they are also not related to the present suit.

18.In this case, main contention of the plaintiff is that originally there are 32 allottees in Sanjay Gandhi Nagar Colony. During the allotment of the above plots, due to passage of electrical wires some allottees were affected. All allottees of the Sanjay Gandhi Nagar has to be adjusted including the roads against the lay out proposal and railway people removed the electrical wires from the lands as such, the remaining land was allotted to each allottee an extent of 15 sq.yards, accordingly an extent of 15 sq.yards near plot NO.7 was allotted to the vendor of plaintiff as such he is in possession of the same. To prove the above case, PW1 examined PW2 who is the president of Sanjay Gandhi

Nagar Colony Association. PW2 also categorically stated that he is one of the allottee and owner of plot No.31. The evidence of PW2 is also on the same lines of that of PW1. PW1 also examined PW3 who is the legal heir of the vendor of the defendant. As per his evidence, Government undertook Patta lands to land less poor persons and his mother is one of them. One Banaiah is present of their society. Ex.B1 patta belongs to his mother and it contains the signature of president i.e., PW2. PW3 also deposed on the same lines that of PW1 and PW2, deposed that there was proposal for laying telephone wires thats why they moved back and constructed the houses. All allottees were also occupied internal roads adjacent to their plots and constructed pacca houses. All 32 allottees are entitled for 15 sq.yards in addition to their original land.

13 O.S.No.1612 of 2012

19.During cross examination of DW1, the counsel for plaintiff elicited “I am in possession of 50 sq.yards and also in possession of 15 sq.yards which is a Government land.” So from the above admission it is clear that DW1 is also in occupation of 15 sq.yards. So from the evidence of PW1, PW2, PW3 and DW1, it is clear that each allottee of

Sanjay Gandhi Nagar Colony Association i.e., 32 members were got 15 sq.yards extra. It is no doubt PW1 purchased 50 sq.yards from his vendor i.e., one of the original allottee under Ex.A1. Now the question

before the court is whether PW1 is in possession of the extra 15

sq.yards, which is a Government land. In proof of the above fact, except the oral evidence of PW1, plaintiff not filed any documentary proof.

Mere mentioning the same in plaint is not sufficient and it should be proved by the documentary evidence. It is no doubt if PW1 purchased 50 dq.yards from one allottee, definitely he will get 15 sq.yards in addition as per the adjustment of the society. Vendor of PW1 might have delivered 15 sq.yards to PW1, but there is no proof for that.

20.Now the question is whether PW1 is in possession of the said 15 sq.yards on the date of filing of the suit. Moreover, the said 15 sq.yards land is a Government land. All members i.e., all allottees are not obtained permission from the Government. Even they have not taken steps for regularization. However, it is not a subject matter of the present suit. PW1 not filed any documentary proof to show that the suit schedule property was allotted to his vendor and his vendor had given possession to PW1 and he is in actual possession of the same. On perusal of recitals of Ex.A1, the above fact is also not mentioned that

additional 15 sq.yards also handed over to PW1. Even PW1 did not

choose to examine his vendor whether really they have handed over the 14 O.S.No.1612 of 2012 possession of the suit schedule property to PW1. Plaintiff utterly failed to prove that he is in possession of the suit property as on the date of filing of the suit. As discussed supra, this court has no hesitation to come to conclusion that plaintiff is not in possession of the suit schedule property and not entitled for permanent injunction. Hence this issue is answered against the plaintiff.

21.In the result, the suit is dismissed. However without costs.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in the open court on this the day of 4th April, 2014.

Sd/-

(Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs: For Defendants: PW1: Anegoni BikshapathyDW1:D.Venkata Ramulu PW2: B.BanaiahDW2: R.Om Prakash PW3: C.Gyaneshwar

Documents marked for Plaintiff:

Ex.A1 is certified copy of sale deed dt.08.11.2006.

Ex.A2 is certified copy of release deed dt.21.11.2010.

Ex.A3 is original voter ID card.

Ex.A4 is original Aadhar Card.

Ex.A5 is original electricity bill dt.02.02.2013.

Ex.A6 is certified copy of terms of compromise in OS.No.1614 of 2012.

Ex.A7 is certified copy of petition U/O.23 R 3 of CPC, filed in

O.S.No.1613/2012.

Documents marked for Defendants:

Ex.B1 is the original patta certificate issued to G.Balamma by RDO,

Hyderabad division vide No.F/6824/82, dt.18.12.1982.

15 O.S.No.1612 of 2012

Ex.B2 is the original notice issued by the MCH vide Bk.No.635, dt.23.12.1994 to Smt.G.Balamma.

Ex.B3 is the original tax payment receipt vide B.No.1602 dt.29.12.1994.

Received from smt.G.Balamma.

Ex.B4 is the original sale deed vide Doc.No.1353/95, dt.21.03.1995 executed by Smt.G.Balamma in favour of Smt.D.Laxmamma.

Ex.B5 is the certified copy of gift settlement deed vide doc.No.78/04 dt.08.01.2004 executed by Smt.D.Laxmamma in favour of Master

D.Rushikanth.

Ex.B6 is the original certificate of Encumbrance.

Ex.B7 is the original change of name certificate issued by the MCH in favour of D.Laxmamma vide No.743 dt.05.07.1995.

Ex.B8 is the original receipt No.732536 dt.01.02.1996 issued by the then

A.P.State Electricity Board.

Ex.B9 is the original property tax demand bill vide bill No.090042019 dt.27.06.2012 issued in favour of Smt.D.Laxmamma.

Ex.B10 is the original payment receipt issued by e-seva on 25.08.2012.

Ex.B11 is original three photographs showing the house property of

D.Rushikanth.

Ex.B12 is rough sketch.

Ex.B13 is memo issued by the Government of A.P.Revenue Department dt.03.11.2012.

Ex.B14 is application filed by the DW1 before RDO, dt.23.08.2012 along with information given by the office of RDO.

Sd/-

(Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad

IN THE COURT OF THE XIX JUNIOR CIVIL JUDGE: CITY CIVIL COURT

HYDERABAD

Dated this the 21st day of April, 2015

PRESENT: Smt. K.Vani, B.A., LL.B.,

XIX JUNIOR CIVIL JUDGE.

O.S. No.1195 of 2013

Between:

1. Rahamatullah Telegraphy S/o.Late Mohd.Hussain Telegraphy aged 49 years, Occ: Business, Rep.by his mother and GPA holder Mila Medina Salviejo W/o. Dr. Rahamatullah Telegraphy, aged about 40 years,

2. Kazim Telegraphy S/o.Late Mohd.Hussain Telegraphy, aged 43 years, Occ: Business, Both carrying business at 12-2-826/3/3, Ground Floor, Mehdipatnam Cross Roads, Hyderabad and

R/o. Madina Building, Pattergatti, Hyderabad. ... Plaintiffs

And

Sohail Bin Saleh S/o.Saleh Bin Ali, aged about 37 years, Occ: Business,

R/o.6-2-335, A.C.Guards, Hyderabad. .. ....Defendant

This suit coming on today before me for final disposal in the presence of Sri Sunil Kamthankar, Advocate for the plaintiffs and Sri E.Narsimha Swamy, Advocate for defendant and the matter having been heard and stood over for consideration till date, this court passed the following:-

J U D G E M E N T

1.The present suit is filed by the plaintiffs for specific performance of agreement against the defendant and the persons claiming under him or for him to execute and register lease deed as agreed for 10 years commencing from 1-1-2013, in respect of suit schedule property i.e., mulgi under M.No.12-2-826/A/3/3, in Ground Floor situated at

Mehdipatnam Cross Roads, Hyderabad, as per law at the costs of the plaintiffs along with costs of the suit.

2.In nutshell the case of the plaintiff is that:- First plaintiff has obtained one mulgie with 2 shutters under M.No.12-2-826/A/3/3, on 2 O.S.No.1195 of 2013 ground floor, admeasuring 21 X 17 feet situated at Mehdipatnam Cross

Roads, Hyderabad for carrying on Hotel Business under a registered lease deed dt.22.01.2003 and registered as Doc.No.189 of 2003 registered in the office of Joint Sub-Registrar, Hyderabad. The said lease deed was for a period of 10 years commencing from 01.01.2003 and expiring by 31.12.2012 and the said property herein after referred to as schedule property. The present monthly rent is Rs.4,232/- exclusive of electricity charge etc. The plaintiffs are carrying on Bakery business under the name and style of “Bartania Bakery”. The plaintiffs has obtained necessary permission and license for running their business.

The plaintiffs have maintained the schedule property in clean and hygienic condition. The plaintiffs are prompt and regular in payment of rent since the date of inception of tenancy and they never gave any room for complaint of non-payment of rent or for any other reasons.

3.Plaintiffs submit that as the lease period agreed in the earlier lease deed was going to be expired by the end of December, 2012, the plaintiffs and the defendant held a meeting in the first week of October, 2012 for renewal of the lease for a further period of 10 years and accordingly requested the plaintiff to renew the period of lease for further period of 10 years which meeting took place in the presence of witnesses and panchas. The defendant represented that he is authorized to talk on behalf of his brothers. The defendant agreed and accepted the said offer and demanded to enhance the rent for

Rs.5,500/- per month and also asked to make security refundable deposit of Rs.1,00,000/- and also instructed the plaintiff to get prepared a Draft Lease Deed for his approval. Therefore, as per the defendant's instructions the plaintiffs prepared a Draft Lease Deed as per the defendant's requirement and as per the terms and conditions as agreed 3 O.S.No.1195 of 2013 between them and tried to serve the copy to the defendant personally.

The defendant avoided and evaded to meet the plaintiff with malafide intention and also refused to receive the rents sent by the plaintiff through money order. As in spite of assurance and promise as the defendant's intentions were leading to turning his back and avoiding entering into fresh lease deed therefore, the plaintiffs got issued a legal notice dated 09.11.2012 to the defendant calling upon him to approve the lease deed and to fix a date for execution and registration of Lease

Deed and also enclosed therewith a draft lease deed for his approval.

Having received the notice with draft lease deed for his approval the defendant by suppressing the true facts caused to issue a false notice through his advocate. To the said notice the plaintiff got issued a suitable reply. The notice issued by the defendant is after thought and issued only to suppress the agreement entered into by the plaintiffs and defendant for renewal of the lease deed and to give a go bye to the promise and assurance of renewal of lease deed.

4.Plaintiffs further submit that as per agreement the rental deed was executed between the plaintiffs and defendants in the presence of witnesses. Even though Draft Lease deed is also sent for his approval well within time before the expiry of the earlier lease deed period enabling the parties to complete the transaction, the defendant has failed to come forward for execution and registration of Lease deed. The plaintiffs in good faith went on sending rent to defendants through M.O.

But with malafide intention the defendant also failed to receive the M.O.

The defendant has agreed and assured that he will register the lease deed in favour of the plaintiffs and as per the understanding that rent is proposed to be enhanced to Rs.5,500/-. The rent is Rs.4,232/- per 4 O.S.No.1195 of 2013 month in respect of the schedule mulgi and the same is to be enhanced only on registration of lease deed. The plaintiffs kept their word and agreed to enhance the rent but the defendants did not keep up their promise and failed to keep the work and kept on evading regiseting the lease deed. The plaintiffs are always ready and willing to get the lease deed duly registered and requested the defendant many times to come and register the rental deed but on one or other pretext the defendant is avoiding and availing time on lame excuses. And he also got issued a false notice of termination the tenancy of the plaintiffs. The defendant has no enforceable right to terminate the tenancy as already it was agreed to renew a fresh lease deed for a further period of 10 years which was intimated to the defendant long prior, but only to give a go bye to his assurance and promise the defendant got issued a false and bogus and illegal notice terminating the tenancy of the plaintiff. The notice is invalid and does not terminate in view of the specific understanding between the parties.

5.Plaintiffs having waited for long time finally got issued legal notice on 09.11.2012 calling upon the defendant to register lease deed as agreed at the costs of the plaintiffs. The notice was sent to the defendant through registered post acknowledgement due. The defendant received the notice sent by registered post. The defendant also got the notice replied through advocate dt.01.12.2012 with all false and baseless allegations. The said reply notice was also replied by way of rejoinder dt.23.12.2012. The defendants intentionally are avoiding registering the lease deed for the period mentioned in the said document and also agreed between them. As inspite of receiving of notice and having replied the same through advocate the intention of 5 O.S.No.1195 of 2013 the defendant is clear that he is not ready and willing to register the lease deed in favour of the plaintiffs as per the agreement it is nothing but dishonest on their part. As such there is no other option for the plaintiffs but to approach this Hon'ble Court to enforce the agreement as per law. Hence this claim for Specific Performance of agreement for registering of lease deed as agreed. The defendant having failed to keep up his word and failed to execute registered rental deed is harassing the plaintiffs in their day to day business. The defendant and some other persons claiming under the defendant demanding the plaintiff to vacate the premises or else they will forcibly evict the plaintiff. The defendant came to the suit premises on 30.12.2012 and demanded to vacate the suit premises, but due to the timely interference by neighbours they left and again on 02.01.2013 the defendant threaten to vacate the premises else he will forcibly evict but somehow the plaintiff could maintained the possession. The threat by defendant is continuous and recurring one. Hence the suit.

6. Defendant filed written statement by opposing the contents of the plaint and brief contents of written statement are that:- the defendant along with two brothers are owners of the property premises bearing NO.12-2-826/A/3/3 admeasuring 21 X 17 feet, situated at

Ground floor, Mehdipatnam X Road, Hyderabad. The plaintiffs approached defendant and got this property under lease deed on 01.01.2003 for establishment of Bakery for ten years. The lease deed expired on 31.12.2012. The defendant through his counsel issued eviction notice calling upon the plaintiff to vacate the property as this property is required personally as one of brother of defendant wanted to establish business, in his own mulgi/shutter. The said notice received by 6 O.S.No.1195 of 2013 the plaintiffs and issued one false and baseless created, bogus reply suppressing actual facts. After completion of lease period, after issuance of eviction notice, the defendant herein filed O.S.No.222 of 2013 along with I.A. For deposit of rents before Hon'ble IX Junior Civil

Judge, City Civil Court, Hyderabad. The plaintiffs filed vakalath, counter

and written statement in said case through same counsel and said case

O.S.No.222 of 2013 is pending for consideration before Hon'ble IX Junior

Civil Judge. The plaintiff herein filed present case suppressing said

pendency of case, which amount to clear mis-representation before this

Hon'ble Court. Further suppressed all real fact which amount to clear

misuse of process of law. Therefore, the plaintiffs herein came before this Hon'ble Court with unclean hands, suppression of facts and they are liable for perjury. The defendant submit that the property premises bearing No.12-2-826/A/3/3 obtained on lease by the plaintiffs not for hotel business. Infact, it is for establishment of Bakery only. It is fact the registered lease deed 22.01.2003 for a period of 10 years. Lease deed expired on 31.12.2012. As per lease deed monthly rent was

Rs.2800/-and 15% enhancement every three years on existing rent.

Therefore, the monthly rent in the year 2012 is paying 4232 exclusive of electricity charges, the monthly rent shall be paid on or before 5th of every month in advance, but plaintiff never paid regularly and no point of time maintained the schedule properly as hygienic condition and clean. Lease deed expired by end December, 2012. In fact one side brother of defendant completed his education, being unemployee no job and no business, he wanted to establish business in suit schedule property and defendant asked for eviction from the schedule property, but when the plaintiffs failed to vacate the property, as per law defendant issued eviction notice on 01.12.2012 and filed eviction suit 7 O.S.No.1195 of 2013

O.S.No.222 of 2013 before Hon'ble IX Junior Civil Judge, City Civil Court,

Hyderabad. The plaintiffs wantonly suppressed said facts and they are filed present suit on created, fabricated, unconcerned documents. It is clear neither signatures of defendant/joint owners of property are there nor the said document prepared with consent of defendant. Therefore, there is no offer acceptance as well as performances of contract are there, hence their allegations false, baseless and denied. As stated above the defendant filed suit for eviction O.S.No.222 of 2013 along with

I.A.68 of 2013 for the deposit of rents on 04.02.2013. Further as on today not deposited single month rent also since February, 2013. While so allegation before this Hon'ble Court paying rents by plaintiffs herein as well as refused to receive rents by the defendant are far from real facts.

7.Defendant submit that the defendant received one false, baseless, created notice therefore immediately proper reply given explain real facts 01.12.2013 by stating that no point of time the defendant herein given any assurance or promise for extension of lease deed as well as on that day the defendant herein already issued eviction notice, therefore allegations are created for the purpose of case, hence denied. When the defendant neither given assurance nor promised for extension of lease deed execution of lease deed does not arise.

Therefore, the draft lease deed along with plaint filed by the plaintiffs created for the purpose of case. Further after issuance of eviction/legal notice by the defendant herein the plaintiff received and issued reply with baseless allegations, further there is no agreement between plaintiffs and defendant. Therefore, suppression of agreement by the defendant does not arise. The alleged created lease deed prepared themselves and filed before this Court hence allegations false, baseless 8 O.S.No.1195 of 2013 and denied. Further when the plaintiffs issued notice through their council with false and baseless allegations the defendant issued proper reply. Document No.2 created themselves and filed with baseless allegations. Further neither consent of defendant is there nor signature of defendant is there. In fact, plaintiffs not paying monthly rent a since

November, 2012 onwards. In fact the defendant filed eviction suit along with petition for deposit of rents, but failed to pay rents since November, 2012. In fact, no point of time defendant given any assurance. When the defendants not given any assurance for extension of lease deed availing for execution of lease deed does not arise. In fact, no point of time defendant agreed this document / alleged draft deed created by the plaintiffs with malafide intention for the purpose of case.

8.Defendant submit that when the plaintiffs issued one false, baseless, bogus, created notice already the defendant issued proper reply explaining actual facts said that there is no such agreement / assurance as alleged by the plaintiffs. Without any agreement, offer, acceptance, part performance of contract seeking specific performance does not arise. Defendant filed eviction suit O.S.222 of 2013 before IX

JCJ, CCC, Hyderabad after eviction notice, these plaintiffs are playing games by suppressing said case proceedings to get some delay in eviction proceedings. Therefore, execution of registration lease deed for ten years does not arise. Infact, these plaintiffs harassing the defendant even after completion of lease period and after issuance of eviction notice also by creating false lease deed themselves and filing case

before this Hon'ble Court. Agreement dated 22.01.2003 has been

terminated by way of eviction notice dt.01.12.2012. The dates 09.11.2012, 23.12.2012, 30.12.2012 , 02.01.2013 are created for the 9 O.S.No.1195 of 2013 purpose of case only, in fact no cause of action arose at all. Plaintiffs came before this Hon'ble Court with unclean hands and prays to dismiss the suit.

9.Basing on the rival contentions, this Court framed the following issues for trial :

1. Whether plaintiff is entitled for Specific Performance as prayed for?

2. If so to what relief?

10.During the trial, plaintiff No.1 himself examined as PW1 and got marked Ex.A1 to A7 and also examined PW2 by name Hashim Raza

Zabeth. Defendant himself examined as DW1 and got marked Ex.B1 to

B4 on his behalf.

11.Heard both sides. Perused entire material on record.

12. Issue No.1:- The counsel for the plaintiff submitted as plaintiffs are the tenants and defendant is landlord of the suit schedule property.

Plaintiffs obtained the suit mulgi under a registered lease dated 22.01.2003. the said lease was 10 years commencing from 01.01.2003 to 31.12.2012. Now plaintiffs are paying rent for an amount of Rs.4232/- excluding the electricity charges per month. Plaintiffs are carrying business under the name and style of Bartania Bakery by obtaining necessary permissions. As lease going to be expired by the end of 2012, plaintiffs met the owner and held a meeting in the first week of

October, 2012 for renewal of the lease for further 10 years. Above said meeting was held in the presence of witnesses and the Panchas.

10 O.S.No.1195 of 2013

Defendant agreed and accepted the said offer and demanding to enhance from Rs.4232/- to Rs.5500/- and also asked to deposit advance amount of Rs.1,00,000/- and also requested to get prepared draft lease deed. When plaintiffs prepared draft lease deed, the defendant with malafide intention not received the same then, plaintiff got issued notice on 09.11.2012 along with the copy of the lease deed. Then, defendant got issued reply with false allegations by mentioning false reply U/s. 108 of T.P.Act and also issued termination notice. Defendant also not receiving rent amount then, plaintiffs are sending through money order.

As defendant failed to comeforward to execute lease deed, plaintiffs filed the present suit and prays to grant decree in his favour.

13.On the other side, the counsel for defendant submitted as there was no meeting held in the first week of the October, 2012 as alleged by the plaintiffs. There was no meeting regarding the execution of any time much less than the 10 years as alleged by the plaintiffs. After completion of the lease period, plaintiff should vacate the suit schedule property. As they failed to vacate the same, they got issued the legal notice and filed O.S.No.222 of 2013 for eviction. The Hon'ble IX Junior

Civil Judge, City Civil Court, Hyderabad decreed the suit on 20.08.2014

directing the plaintiffs herein to vacate the suit schedule property within 3 months from the date of judgement and decree. As defendant received false notice, he got issued reply for the same. Defendant never demanded for enhancing of rent and also advancing the amount of

Rs.1,00,000/-. The counsel for defendant further submitted as there was no offer and acceptance and there is no part performance of the contract. Only to harass defendant, plaintiffs filed the present case and prays to dismiss the suit.

11 O.S.No.1195 of 2013

14.To prove the case of the plaintiffs, plaintiffs examined PW1. The evidence of PW1 is replica to the plaint. PW1 also examined PW2. PW2 also deposed on the same lines of PW1. PW 1 and 2 categorically stated that in first week of October, 2012, there was a meeting between plaintiffs and owners of the suit schedule property and the tenancy should be renewed for more 10 years and rent should be enhanced from

Rs.4232/- to Rs.5500/- and on payment of advance amount of

Rs.1,00,000/-.

15.Present suit is filed for specific performance on oral agreement. It is no doubt an oral agreement can be maintainable as per the Law.

There can be oral agreement, the burden is on the plaintiff to prove the same as he filed the suit for specific performance. Plaintiff as to establish the existence of consensus ad idem between the parties of the agreement and plaintiff has to prove that there is an offer and acceptance of oral agreement. As it is a suit for specific performance the burden of proof naturally heavily lies on the plaintiff. To prove that the alleged oral agreement held in between plaintiff and defendant, plaintiff has to produce reliable, cogent and convincing evidence. Now the burden is on the plaintiff to prove that there was consensus ad idem in between the plaintiff and defendant for a concluded oral agreement of lease of the suit schedule property. It is no doubt whether there is any such concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each case. It is no doubt, the burden of proof lies on the plaintiff and plaintiff has to succeed on his own strength rather then the weaknesses of the defendant.

16.In this case, as per the contention of the plaintiff, in the first week of October, 2012, there was a meeting in between plaintiff and landlord.

In this case, plaintiff not given the name of landlord from whom that 12 O.S.No.1195 of 2013 alleged meeting was held. He simply mentioned that there was a meeting in between plaintiff and landlord and not given the name of landlord. Moreover, in this case, plaintiff not given a particular date when such meeting was held in between plaintiffs and landlord. As it is an oral agreement, the plaintiff must prompt and accurate to place real facts before the Court. But in this case, plaintiff failed to give exact date when such meeting was held and also through whom the same was held. Even PW2 also deposed meeting was held with the landlord and he also not deposed the name of the landlord from whom such meeting was held and so also with regard to the date when such meeting was held.

17.The counsel for defendant during the cross examination of PW1 elicited “I do not remember the exact date and month but it is in the month of October we met the defendant for renewal of lease deed.” So, from the above evidence it is clear that he do not remember when such alleged meeting was held. As per the pleadings of plaintiffs, he is ready and willing to perform his part of contract but defendant not shown any such interest to say that he is ready and willing to perform his side part of contract by showing ready and willingness. Mere pleadings is not sufficient there should be an act showing his ready and willingness to perform his part of contract. In this instant case there is no such ready and willingness on the part of plaintiff with regard to oral agreement.

Even now he is also paying rent of Rs.4232/- per month and he failed to deposit Rs.1,00,000/- deposit amount as alleged by the plaintiff as agreed by the plaintiff in the alleged meeting. The same was elicited during the cross examination of PW1 by the counsel for the defendant “I have not paid Rs.5500/- to the defendant from January, 2013. it is true 13 O.S.No.1195 of 2013 that I am not taken any cheque or DD in the name of defendant for an amount of Rs.1,00,000/-.” So, from the above evidence it is clear that plaintiff is not ready and willing to perform his part of contract.

18. As per the evidence of PW1, at the time of alleged oral agreement, there were witnesses and panchas. But in this case, except PW2, no other witnesses and panchas were examined to prove the alleged oral agreement. As per the evidence of PW1, apart from the defendant there are other owners of the suit schedule property and defendant is authorized to talk on behalf of his brothers. But in this case, the other brother were not made as parties. The suit is also not maintainable as non-joinder of parties.

The counsel for plaintiff submitted a decision reported in 1998(6)

ALD 682 in between Abdul Rasheed and others Vs. Abdul Hakeem wherein their Lordship Justice C.V.N.Sastri held that :- “ Specific Relief

Act, 1963 – Sections 9 and 10 – There can be an oral agreement of sale – Heavy burden lies on the party seeking specific performance of an oral agreement of sale – he has to establish the existence of consensus ad idem between the parties to the agreement – He can succeed only on the strength of his own case but not on the weakness of the case of the defendants – In the instant case, held the plaintiff failed to prove his case of oral agreement of sale.”

The above judgement also not useful to the case of the plaintiff.

Moreover, it is against the case of plaintiff. In this case also plaintiff failed to prove the alleged oral agreement.

It is no doubt Law permits oral agreement but the burden is heavily lies on the plaintiff that there is an oral agreement. But in the instant case, plaintiffs failed to establish convincingly either the agreement or consensus ad idem between the plaintiffs and defendant.

14 O.S.No.1195 of 2013

So, plaintiff utterly failed to prove the alleged oral agreement. Hence, plaintiff is not entitled for the relief. Accordingly, this issue is answered against the plaintiffs.

19.Issue No.2:- In the result, the suit is dismissed. However, without costs.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in the open court on this the 21st day of April, 2015.

XIX Junior Civil Judge, City Civil Court:Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:For Defendants: PW1: Kazim TelegraphyDW1:Sohail Bin Saleh PW2: Hashim Raza Zabeth

Documents marked for Plaintiff: Ex.A1 is office copy of legal notice dt.09.11.2012 along with draft lease deed sent by the plaintiff. Ex.A2 is postal receipt dt.10.11.2012. Ex.A3 is acknowledgement card dt.14.11.2012. Ex.A4 is reply notice dt.01.12.2012. Ex.A5 is reply notice dt.01.12.2012. Ex.A6 is rejoinder dt.24.12.2012. Ex.A7 is xerox copy of registered lease deed dt.22.01.2003.

Documents marked for Defendants:

Ex.B1 is certified copy of plaint in O.S.222 of 2013 on the file of IX Junior

Civil Judge, City Civil Court, Hyderabad.

Ex.B2 is certified copy of written statement in O.S.222 of 2013. Ex.B3 is certified copy of affidavit in I.A.No.68 of 2013 in O.S.222 of 2013. Ex.B4 is certified copy of judgement and decree in O.S.222 of 2013.

XIX Junior Civil Judge, City Civil Court:Hyderabad

IN THE COURT OF THE XIX JUNIOR CIVIL JUDGE: CITY CIVIL

COURT HYDERABAD

Dated this the day of 27 th March, 2014

PRESENT: Smt. K.Vani, B.A., LL.B.,

XIX JUNIOR CIVIL JUDGE.

O.S. No.1572 of 2000

Between: Shri Ram Chits Pvt.Ltd., Having its branch at Ameerpet, Hyderabad. Formerly known as Shriram Chits Ltd., Rep.by its GPA Holder and

Authorized Signatory Ch.V.Gopala Rao. .........Plaintiff

And

1. J.N.Srinivasa Rao, S/o.J.Pentaiah, A/a.38 years, Occ: Lab Asst., O/o.N.S.C.Ltd., Lalaguda, Secunderabad. R/o.10-5-342/24, Tukaramgate, Near Ambedkar Statue, North Lalaguda, Secunderabad.

2. J.L.S.Laxman, S/o.J.L.Balaiah, A/a.54 years, Occ: HTTE., O/o.South Central Railway, Secunderabad. R/o.12-1-991, North Lalaguda, Secunderabad.

3. G.Devamma W/o.G.Mohan, A/a.48 years, Occ:HST WRNG, O/o.HAL Balanagar, Hyderabad. R/o.5-79, S.R.Naik Nagar, Jeedimetla, Hyderabad.

4. Sreenivasa Balaji, S/o.C.Shankaraiah, A/a.35 years, Occ: PMA (POINTS MAN/A) O/O. South Central Railway, Secunderabad. R/o.17-15/1, Jyothinagar, North Lalaguda, Secunderabad.

5. K.Bharathi, W/o.K.Mallesh, a/a.47 years, Occ: HST WIRE, O/o.HAL, Balanagar, Hyderabad, R/o.LIG – 355, APHB colony, Moulali, Hyd.

.........Defendants

This suit coming on today before me for final disposal in the presence of Sri N.V.Ram Prasad, Advocate for the plaintiff and M/s. T.Sangeetha, Advocate for defendant No.4 and D1, D2, D3 and D5 remained Exparte and the matter having been heard and stood over for consideration till date, this court passed the following:-

JUDGEMENT

1.This is a suit filed by the plaintiff for recovery of sum of

Rs.46,570/- together with future interest @ 12% P.A and with costs.

2.In nutshell the case of the plaintiff is that:- The plaintiff is a company incorporated under the Indian Companies Act, carrying on business in Chit Funds. 1st defendant joined as a member of the Chit 2 O.S.No.1572 of 2000

Fund Scheme of the plaintiff company at its Ameerpet Branch as per its rules and regulations, and subscribed for the Chit No.ALK1/30. The total value of the chit being Rs.1,00,000/- to be subscribed @ Rs.2000/- P.M for 50 months and signed an agreement of chit on 30.09.1996 with the plaintiff company. In the auction conducted as per the rules of the company in respect of the above chit on 15.06.1997, J.N.Srinivasa Rao, the defendant No.1 participated and was became successful bidder having agreed to forego Rs.50,000/- out of Rs.1,00,000/- which was duly confirmed by the plaintiff, from out of the foregone amount after deducting Company's commission the plaintiff distributed the balance among all the members in the above chit series as dividend. In order to draw the prize money the successful bidder had to furnish independent guarantors to the satisfaction of the plaintiff company.

3.1st defendant paid Rs.18,000/- till the date of auction of the above said chit and the payment of prize amount, his future liability in the said chit being Rs.82,000/-. 1st defendant in fact furnished guarantors who executed agreement of guarantee dt.24.07.1997, in favour of plaintiff company agreeing to guarantee the due payment of the amount due to the company by the 1st defendant. Thus the defendants 2 to 5 also become by virtue of the said guarantee agreement, liable jointly and severally for Rs.82,000/- being the entire amount of future installments with interest @ 12% P.A in case of default made by the 1st defendant in payment of monthly installments and all the defendants also executed a promissory note dt.24.07.1997 for

Rs.82,000/- as a collateral security. 1st defendant was paid Rs.48,510/- by Cheque No.911382, dt.24.07.1997 and Rs.1,490/- by adjustment

R.No.33363 dt.24.07.1997. The total amount paid being Rs.50,000/- the 3 O.S.No.1572 of 2000 1st defendant executed a cash voucher in support of the said payment.

1st defendant in all paid 29 installments and thereafter committed default in paying the installments from March, 1999. In spite of repeated demands made by the plaintiff company, the defendants failed to pay the dues. The plaintiff company finally demanded the defendants to pay the sum of Rs.43,868/- by getting the registered legal notice dt.18.07.1999 issued by its counsel. The defendant has paid a sum of

Rs.Nil after issuing the legal notice which was credited to the account.

As the defendants did not pay off the entire amount of dues, the plaintiff company is obliged to file this suit for the balance amount. Hence the suit.

5. All defendants remained exparte in the main suit. D4 filed

I.A.No.27/2013 to set aside the exparte decree and the same was allowed. Defendant No.4 filed written statement opposing the contents of the plaint and brief contents are that:- The plaintiff has instituted the present suit with a malafide intention to have wrongful gain and to cause wrongful loss to this defendant. The suit as framed and filed is neither tenable in law nor on facts and is liable to be dismissed. There is no cause of action to file the present suit. The plaintiffs have suppressed material facts and resorted to falsehood and have approached this Hon'ble Court with unclean hands. The present suit is laid on absolutely false and concocted ground. This defendant never stood as a guarantor and he never executed any agreement of guarantee which is allegedly dt.24.07.1997. The plaintiff is pursuing the suit against this defendant with a view to compel and coerce this defendant to agree to the plaintiff unreasonable demands of satisfying the exparte decree dt.22.01.2004. The present suit is an extortionate 4 O.S.No.1572 of 2000 exercise.

6.Defendant No.4 filed additional written statement and reiterated the contents of written statement and further averred that after the illegal attachment of this defendant's salary in the Execution

Petition filed by the plaintiff company based on the previous exparte decree dt.22.01.2004, this defendant brought to this notice of the

Hon'ble Court the infirmities in the proceedings and the plaintiff sought

an amendment. The amendment is impermissible in as much as the same is without notice to the other defendants in the suit and also seeks to give life to an otherwise time barred suit and alters the jurisdiction of the court, all of which are material aspects of the suit. The said exparte decree dt.22.01.2004 having been set aside on the application of this defendant, the suit was proceeded with and the trial having been concluded, arguments were also advanced on behalf of the plaintiff and this defendant. That after the final hearing of the suit on the previous occasion, the amendments were sought to get over the lacunae pointed at the time of arguments of the suit.

7.Defendant No.4 has been illegally arrayed in the above suit.

This defendant has not executed any guarantee or any other documents infavour of the plaintiff company. Even the father's name of this defendant is incorrectly shown in the plaint. The person who has represented the plaint is not competent to file the present suit on behalf of the plaintiff's company. The plaintiff has not filed any material to show that it has registered the suit chit series with the concerned area

Registrar of Chits or any material to show that it conducted the chit as per the provisions of A.P.Chit Fund Act. This defendant is not aware of 5 O.S.No.1572 of 2000 the defendant No.1 joining the plaintiff company as a subscriber or the document executed by him infavour of the plaintiff company. This defendant is also not aware of the auction held and the other averments with regard to the amount agreed to the foregone by the defendant

No.1. This defendant is not aware of any amounts paid by the plaintiff company to the defendant No.1. Defendant No.4 prays to dismiss the suit.

8.Basing on the rival contentions, the following issues are framed for trial:

1. Whether the plaintiff is entitled for suit amount against all defendants as prayed for?

2. If so to what relief?

9.To substantiate the case of the plaintiff, the representative of plaintiff examined as PW1 and exhibited Ex.A1 to A16. On the other side, 4th defendant examined as DW1 and no documentary evidence was adduced.

10.Heard both sides perused the entire material on record.

11. Issue No.1:- The counsel for plaintiff submitted as plaintiff company is a registered chits company. D1 joined as a subscriber in the chit series No.ALK – 1/30 for value of Rs.1,00,000/- payable in 50 monthly installments @ Rs.2,000/-. On 15.06.1997, D1 participated in the auction and became successful bidder. D2 to D5 stood as guarantors for the chit amount and D1 executed chit agreement, D2 to

D5 promissory notes and guarantee agreement in favour of plaintiff's company jointly. The counsel for plaintiff further submitted as D1 received total prize amount but D1 was very irregular in paying the installment amounts. He paid only 29 installments thereafter he 6 O.S.No.1572 of 2000 became defaulter hence plaintiff's company got issued legal notice on 08.07.1999 demanding all defendants to pay the chit amount. Notices of D2 to D4 served, notices of D1 and D5 were returned. Even after taking notice, defendants failed to pay the chit amount. Plaintiff's company filed the present suit and prays to decree the suit.

12.The counsel for defendant submitted as present suit is not maintainable and instituted with malafide intention for wrongful gain.

Defendant No.4 never stood as guarantor and executed guarantee of agreement on 24.07.1997. After attaching the salary of D4 in the execution petition, defendant No.4 came to know about the present suit.

This defendant brought to the notice of the Hon'ble Court the infirmities in the petition then plaintiff sought an amendments. The amendments are impermissible as notices were not sent to all defendants. The suit is barred by limitation. The counsel for defendant further argued that this court has no jurisdiction to entertain the present suit. PW1 has no capacity to give evidence on behalf of the plaintiff company. As per

Section 90 of Chit Fund Act, the present suit is not maintainable as the said Act come into existence on 15.09.2008 and prays to dismiss the suit.

13.The evidence of PW1 is replica to the plaint. PW1 is a representative of plaintiff's company. Now this court has to see whether really D4 not stood as a guarantor to D1 for the suit amount. As there is a specific denial of execution of guarantee, plaintiff filed all relevant records. On perusal of Ex.A1 agreement of chit dt.13.09.1996 executed by D1 infavour of the plaintiff's company for an amount of Rs.1,00,000/- payable @ Rs.2000/- P.M in 50 installments. On perusal of Ex.A2 is an 7 O.S.No.1572 of 2000 agreement of guarantee executed by D2 to D5. The present 4th defendant is third guarantor. They have executed agreement of guarantee for an amount of Rs.82,000/- infavour of plaintiff's company on behalf of D1 towards chit No.ALK-1/30. Ex.A3 is the promissory note executed by all defendants infavour of plaintiff's company for an amount of Rs.82,000/- dt.24.07.1997 towards the present chit transaction.

Ex.A4 is the cash voucher issued by the plaintiff's company infavour of

D1. Ex.A5 is the office copy of legal notice got issued to all defendants asking them to pay the balance chit amount along with interest. Ex.A6 is the returned postal cover of D1 and the same was returned 'no such person in the given address'. Ex.A7 to A9 are the served acknowledgements of D2 to D4. Ex.A10 is the unserved returned envelope of D5 and the same is returned as 'no such person is residing'.

Ex.A11 is the extract of copy of accounts of D1 with regard to the present chit transaction. As per Ex.A11 it is clear that 1st defendant paid only 29 installments and thereafter he became defaulter. Ex.A12 is the certified xerox copy of GPA executed by Shriram Chits Ltd infavour of

Ch.Venu Gopal Rao. Ex.A13 is the authorization letter given by the plaintiff's company to PW1 to prosecute plaintiff's company cases before courts. Ex.A14 is the pay slip of D4 issued for the month of May, 1997.

Ex.A15 is the signature of D4 on Ex.A14 pay slip. Ex.A16 is the certified copy of incorporation of the plaintiff's company.

14.On perusal of Ex.A1 it is clear that D1 executed agreement of chit infavour of the plaintiff's company. On perusal of Ex.A2 agreement of guarantee D2 to D5 executed the same infavour of plaintiff's company towards the present chit transaction. It is no doubt as per Ex.A4 it is clear that D1 received the chit amount. In this case as 8 O.S.No.1572 of 2000 per the contention of plaintiff's company, D1 became defaulter in payment of chit amount. He paid only 29 installments thereafter he became defaulter. As per Ex.A5 it is clear that plaintiff's company got issued legal notice to all defendants to pay the balance chit amount along with interest. As per Ex.A7 to A9, the said legal notice was served on D2 to D4. Even after receiving Ex.A5 legal notice D2 to D4 failed to issue reply notice. As a general rule, no prudent man kept silent if he received any legal notice asking them to pay the amount if really they have not stood as guarantors to any chit or any debt amount. But in this case though D2 to D4 received notices, kept silent and there is no explanation from D4 why he has not sent any reply to the Ex.A5 notice.

15.During the cross examination of defendant No.4 i.e., DW1, the counsel for plaintiff elicited “I know the defendant No.1. We both are residing in the same locality.” So from the above admission it is clear that the defendant No.4 knows the defendant No.1. The counsel for plaintiff shown Ex.A14 i.e., pay slip of the defendant No.4 and he admits the same as the same belongs to him for the month of May, 1997 and the same is marked as Ex.A14. DW1 also admits the signature on

Ex.A14 and the same is marked as Ex.A15. So from the above exhibits

Ex.A14 and Ex.A15 it is clear that plaintiff's company is having the pay slip of the defendant No.4 signed by the defendant No.4. In this case, there is no explanation from the defendant No.4 why he has given his pay slip to the plaintiff's company. No prudent man will give his pay slip along with his signature to any chit fund company without having any transaction. The defendant No.4 in habit of to deny his signatures in all relevant documents. Even defendant No.4 denied his signature one in his vakalath. In this regard, the counsel for plaintiff during cross 9 O.S.No.1572 of 2000 examination of DW1 elicited “ the signature shown on vakalath does not belongs to me. I do not know whether signatures on Ex.A14 and on

Ex.A2 and Ex.A3 are belongs to me. “ If really the defendant No.4 not executed Ex.A2 and Ex.A3 he might have deposed that the said signatures does not belong to me but he simply deposed that he do not know whether the same the said signatures belongs to him. So from the above evidence it creates doubt whether really DW1 is deposing truth or not. Counsel for plaintiff successfully impeached the credit of DW1.

During cross examination of DW1, the counsel for plaintiff further elicited that “the defendant NO.1 is alive and working at National Seeds

Corporation, Lalaguda, Jyothi Nagar. I also informed about the present case to the defendant No.1.” So from the above admissions, it is clear that the defendant No.4 is in touch with the defendant No.1 and also informed about the present suit transaction to the defendant No.1. On perusal of the signatures of the defendant No.4 on chief affidavit, Ex.A2,

Ex.A3 and Ex.A15 are one and the same. This court compares the signatures of the defendant No.4 all are belongs to the defendant No.4 hence the contention of the defendant No.4 that he has not stood as guarantor to Ex.A1 and he has not executed Ex.A2 and Ex.A3 are not tenable. In this case, as per contention of D4, he has not executed

Ex.A2 and Ex.A3, if really he has not executed the same, he might have taken steps to send Ex.A2 and Ex.A3 to the expert opinion to compare the same with admitted signatures. But in this case DW1 did not choose to send the Ex.A2 and Ex.A3 to Expert opinion. No steps were taken to prove that he has not executed Ex.A2 and Ex.A3. Mere denial is not sufficient and it should be proved.

10 O.S.No.1572 of 2000

16.In this case the main contention of the D4 is that this court has no jurisdiction. In Ex.A1 it is mentioned as only Secunderabad court is got jurisdiction. In this case as per the contention of the plaintiff, the present chit transaction took at Ameerpet within the jurisdiction of this court and this court has got jurisdiction. On perusal of Ex.A1 it is mentioned as Shriram Chits Ltd., Ameerpet Hyderabad having its registered office, S.D.Road, Secunderabad and branch at Amberpet. In 4th page of Ex.A1, in 24th column it is averred as any disputes arose in this case agreement shall be subjected to the courts at Secunderabad.

As per decided case laws no parties to the agreement can oust the jurisdiction of any court by mentioning any condition in the agreement.

In Ex.A1 it is clearly mentioned that their branch at Ameerpet and present transaction took place at Ameerpet. Hence this court has got jurisdiction to entertain the present suit.

17.In this case another contention of the defendant No.4 is that the present suit has been filed by the Shriram Chits Ltd but not Shriram

Chits Pvt.Ltd. It is no doubt the present suit has been filed in the year 2000, in the name of Shriram Chits Ltd. As per the contention of the plaintiff formerly the plaintiff company is Shriram Chits Ltd and thereafter it became Shriram Chits Pvt. Ltd. To that effect in the year 2001, a resolution also passed. To that effect, plaintiff company also filed Ex.A16. On perusal of Ex.A16 it is a certified copy of incorporation.

As per Ex.A16, Shriram Chits Ltd which was originally incorporated on 08.12.1981 under the name Shrilekha Chit Funds and Investments

Pvt.Ltd and changed to Shriram Chits Pvt.Ltd on 16.12.1988 having duly passed the necessary special resolution on 02.06.2001 the name of the company changed to Shriram Chits Pvt. Ltd. So from Ex.A16 it is clear 11 O.S.No.1572 of 2000 that previously Shriram Chits Ltd known as Shrilekha Chit Funds and

Investments Pvt.Ltd and the same was changed to Shriram Chits Pvt.

Ltd. To that effect, the resolution was passed on 04.07.2001. So the said resolution was passed in 2001 and the present suit was filed in the year 2000 hence the present suit might have filed by Shriram Chits Ltd.

As the present defendant came to this court after lapse of 13 years to set aside the exparte decree. Considering the same this court was allowed the said application. The present counsel might have not noticed the above mistake when the same is came to the knowledge of plaintiffs company amendment application was filed and amendments were sought and changed the plaintiff's name as Shriram Chit Pvt.Ltd.

Hence objection of the D4 cannot be considered.

18.The main contention of the counsel for the defendant No.4 is that PW1 is not having authorization to give evidence and one Ch.Venu

Gopal Rao also not having authorization to file the present suit. On perusal of Ex.A12 it is a GPA issued by the plaintiff's company infavour of Ch.Venu Gopal Rao. So as per Ex.A12 it is clear that Ch.Venu Gopal

Rao has got authority to file the present suit. Hence the objection raised by the counsel for the defendant No.4 is not tenable.

19.In this case, as per another contention of the counsel for the defendant No.4, PW1 is not authorized signatory to depose evidence on behalf of the plaintiff's company. On perusal of Ex.A13 authorization letter given by the plaintiff's company to PW1 to represent the cases on behalf of the plaintiff's company in all Courts. So this contention is also not tenable and cannot be considered.

20.In this case another contention of the defendant is that as 12 O.S.No.1572 of 2000 per the Law of Chit Funds, Section 90 of A.P.Chit Fund ACt 1997, was repealed. Hence the present suit is not maintainable and liable for dismissal. As per Law of Chit Funds, Section 85, the present Act shall not apply to certain cases i.e., any chit started before the commencement of this Act. So as per the above recitals any chit started

before the commencement of this Act, this Act will not apply. As per

this Act, it was come into force on 15.09.2008. But the present chit belongs to the year 1997. Hence the above contention of the defendant cannot be considered.

21. As discussed supra, the plaintiff's company proved that the defendant No.1 is the subscriber of the chit and the defendant No.2 to defendant No.5 stood as guarantors to the defendant No.1 and they became defaulter in payment of the chit amount. Hence all defendants are liable to pay the chit amount to the plaintiff's company. As discussed supra, this issue is answered infavour of the plaintiff company and against the defendants.

22.Issue No.2:- In the result, the suit is decreed with costs against the defendants No.1 to 5 jointly and severally for a sum of

Rs.46,570/- with interest @ 12% P.A from the date of suit till the date of decree and thereafter @ 6% P.A from the date of decree till its realization.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in the open court on this the day of 27th March, 2014.

Sd/-

( Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad 13 O.S.No.1572 of 2000

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs: For Defendants: PW1: P.DasuDW1: S.Balaji

Documents marked for Plaintiff:

Ex.A1 is agreement of chit dt.13.09.1996 executed by D1 infavour of the plaintiff's company for an amount of Rs.1,00,000/- payable @ Rs.2000/-

P.M in 50 installments.

Ex.A2 is an agreement of guarantee executed by D2 to D5.

Ex.A3 is the promissory note executed by all defendants infavour of plaintiff's company for an amount of Rs.82,000/- dt.24.07.1997 towards the present chit transaction.

Ex.A4 is the cash voucher issued by the plaintiff's company infavour of

D1.

Ex.A5 is the office copy of legal notice got issued to all defendants asking them to pay the balance chit amount along with interest.

Ex.A6 is the returned postal cover of D1 and the same was returned 'no such person in the given address'.

Ex.A7 to A9 are the served acknowledgements of D2 to D4.

Ex.A10 is the unserved returned envelope of D5 and the same is returned as 'no such person is residing'.

Ex.A11 is the extract of copy of accounts of D1 with regard to the present chit transaction.

Ex.A12 is the certified xerox copy of GPA executed by Shriram Chits Ltd infavour of Ch.Venu Gopal Rao.

Ex.A13 is the authorization letter given by the plaintiff's company to

PW1 to prosecute plaintiff's company cases before courts.

Ex.A14 is the pay slip of D4 issued for the month of May, 1997.

Ex.A15 is the signature of D4 on Ex.A14 pay slip.

Ex.A16 is the certified copy of incorporation of the plaintiff's company dt.01.01.1996.

Documents marked for Defendants:

Nil

Sd/-

( Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad

IN THE COURT OF THE XIX JUNIOR CIVIL JUDGE: CITY CIVIL COURT

HYDERABAD

Dated this the day of 28 th March, 2014

PRESENT: Smt. K.Vani, B.A., LL.B.,

XIX JUNIOR CIVIL JUDGE.

O.S. No.258 of 2013

Between: Mohd.Waheed-Ul-Haq S/o.Mohd.Abdul Haq, aged about 72 years, Occ: Unemployee, R/o.H.No.16-2-866/1/B, Jeevan Yar Jung Colony,

Saidabad, Hyderabad......Plaintiff

And

Mohd.Mansoor-Ul-Haq, S/o.Mohd.Waheed-Ul-Haq, aged about 37 years, Occ:Pvt.Employee, R/o.Portion of 1st Floor in H.No.16-2-866/1/B, Jeevan Yar Jung Colony,

Saidabad, Hyderabad. ........Defendant

This suit coming on today before me for final disposal in the presence of Sri Thakur Singh, Advocate for the plaintiff and Sri

S.Nyaya Murthy, Advocate for defendant and the matter having been heard and stood over for consideration till date, this court passed the following:-

JUDGEMENT

1.This is suit filed by the plaintiff against the defendant

1. Directing the defendant to vacate and hand over the vacant, physical possession of the suit schedule property to the plaintiff,

2. Direct the defendant to pay future mesne profits @ Rs.10,000/-

P.M to the plaintiff along with future interest @ 24% P.A., from the date of filing of the suit till the handing over of the vacant physical possession of the suit schedule property to the plaintiff

3. to award the cost of the suit.

2. In nutshell the case of the plaintiff is that:- the plaintiff is the absolute owner of H.No.16-2-866/1/B, admeasuring 168 sq.yards, consisting of ground + 2 floors situated at Jeevan Yar Jung Colony,

Saidabad, Hyderabad. Plaintiff purchased the same under registered sale 2 O.S.NO.258 OF 2013 deed dt.21.02.1978 from one Ghousia Sabira Sultana vide

Doc.No.1515/1978. After purchasing the above said property plaintiff constructed ground + 2 floors by obtaining necessary permission from

Municipal Corporation of Hyderabad. As there were some deviations and unauthorized construction in the said property, plaintiff applied for regularization of unauthorized construction and the same was regularized by the concerned authority. Plaintiff has been paying taxes regularly.

Plaintiff constructed the same out of the retirement benefits and the other sources. Plaintiff is in occupation of the ground floor.

3.The defendant who is his son, who was living in other locality by paying higher rate of rents requested the plaintiff to lease a portion in the second floor on a monthly rent of Rs.8,000/- excluding electricity and water charges. Considering the request of the defendant, he agreed to lease a portion in the first floor to the defendant i.e., front portion of first floor consisting of 2 bed rooms, hall, kitchen, bathroom and W.C., which is referred as suit schedule property. Defendant occupied the same in the month of July, 2012. Lease was an oral lease and month to month. After expiry of one month, plaintiff demanded the defendant to pay the rent as agreed by him. But defendant failed to pay the same and had been dodging the matter on one pretext or the other not paid the rents till date. Plaintiff has no source of income as he is retired employee and senior citizen, plaintiff depends upon only on the rents derived from the suit schedule property. It has become very difficult for the plaintiff to survive and eek out livelihood. Vexed with the attitude of the defendant in not paying and continuing to be in possession of the suit schedule portion, plaintiff got issued Section 106 of T.P.Act notice terminating the tenancy of the defendant on 22.01.2013. But the defendant refused to 3 O.S.NO.258 OF 2013 receive the same. The plaintiff had demanded the defendant to pay the monthly rents payable from July, 2012 to till date amounting to

Rs.56,000/-. The defendant is continuing to occupy the suit schedule portion illegally even after termination of his tenancy, therefore his possession is that of a trespasser. The plaintiff claims a sum of

Rs.10,000/- from the defendant as damages and mesne profits towards illegal occupation of the premises. As the defendant failed to vacate the suit schedule portion even after issuance of quit notice, the plaintiff is left with no other alternative except filing of the above suit. Hence this suit.

4.Defendant filed written statement by denying all the averments of the plaint. The brief contents of written statement are that:

The plaintiff is none other than father of the defendant and the plaintiff had purchased the plot in the year 1978. The plot was never developed even after the retirement of the plaintiff as he had no money at all after his retirement. The plaintiff had retired 15 years ago and the defendant along with his five brothers and two sisters live together with the plaintiff and the mother of the defendant.

5.Defendant submit that after retirement of the plaintiff as an employee of the RTC all the retirement benefits of the plaintiff upto

Rs.4,00,000/- were totally invested in one company called Alfala, Awadh

Group, magic sence and Faranzan which were all musroom companies which duped the plaintiff totally and the plaintiff left with no money at all to feed his family i.e., all of us. The elder brother of the defendant

Mohd.Muzeebul-ul-Haq then had to take up the responsibility and therefore borrowed some money and went abroad. The said

Mohd.Muzeeb-Ul-Haq started earning money from the year 1992 at 4 O.S.NO.258 OF 2013

Riyadh, Soudhi Arebai and came to the resque of the entire family by sending money for the entire family of the plaintiff to survive. Later on as the members of the family grew up the two daughters were married and also the six sons. Another son who is the brother of the defendant had gone to Australia and started living by himself. The elder brother of the defendant Mohd.Muzeeb Ul Haq sent money for starting construction of the house and the plaintiff in the presence of all the members of the family and some elder members of the locality declared that the property has to be developed in three floors and each floor would be given to two sons and all the six sons. It was accepted by everyone and oral settlement of the property was done before the elder members of the locality upon which the elder brother of the defendant Mohd.Muzeeb Ul

Haq got constructed the first floor comprising of two portions, one for himself and the other portion for the defendant. The defendant was living in the same locality at different place and was brought into this portion i.e., the suit schedule property in which the defendant is now living, at the instance of the plaintiff and in accordance with his wishes. The defendant was settled in the portion in which he is living now and he is eking his livelihood by feeding his own family of his wife and two children by driving an auto.

6.Defendant submit that the plaintiff had never treated the defendant as a tenant and had brought him to the first floor of the suit schedule property according to his wishes only after the entire construction of the first floor was over which was done by the elder brother of the defendant i.e., Mohd.Muzeeb Ul Haq. The matter was settled thus orally and since the elder brother Mohd.Muzeeb Ul Haq is living in Saudi Arebia it was very congenially settled that after all the 5 O.S.NO.258 OF 2013 three of the sons come back to India they can live in their portions confortably i.e., two portions in each floor. There was never an issue of any rents being paid or admitted to the plaintiff as the plaintiff is an elderly person and he is the father of the defendant. The permissions for constructions were also obtained by the elder brother of the defendant from GHMC and then only the construction was taken up two years back.

The plaintiff had no jural relationship and a landlord and tenant as the portion of the first floor in which the defendant is living is assigned to the defendant by the plaintiff and the elder brother themselves and never at any point of time was it agreed that the rents will be paid by the defendant to the plaintiff. The entire averments made out are all concocted for the purpose of the suit and at the instigation of the other brothers and sisters of the defendant who bore grudge against the defendant for some family disputes and for the reasons best known to the plaintiff and his other sons and daughters. Issuance of the legal notice

U/s.106 of T.P.Act does not arise as the portion in which the defendant is residing is allotted and assigned to him by way of the settlement as per the wishes of the plaintiff himself. The plaintiff never demanded the defendant to pay any amounts and much less to vacate the premises.

7.The defendant submit that the defendant is not a trespasser but an allotted share holder in the property which was built by the elder brother of the defendant and the plaintiff stands to the owner of only the plot in which there was only an Asbestas Sheds for the family to live. The notice U/s.106 of T.P.Act allegedly issued by the plaintiff through his counsel was not served on the defendant at any point of time. The defendant goes out for his livelihood in the day time and comes late in the night and his wife with two small children lives in the portion of the 6 O.S.NO.258 OF 2013 defendant as a pardanashin lady and hence no notice was served on the defendant by any postman. Any other facts and pleadings would be urged later by way of an additional written statement and the defendant reserves his right to file the additional written statement after the elder brother of the defendant i.e., Mohd.Muzeeb Ul Haq come from Saudi

Arebia in a short time from today. The suit is mischievously filed by the plaintiff at the behest and instance of one of the sons and daughters of the plaintiff. The suit is filed without any substantiation of the jural relationship of a landlord and tenant and prays to dismiss the suit.

8.Basing on the rival contentions, the following issues are framed for trial:

1. Whether the plaintiff is entitled for recovery of possession of the suit schedule property from defendant ?

2. Whether plaintiff is entitled for mesne profits @ Rs.10,000/- P.M from the date of filing of the suit till the handing over of the vacant possession of the suit property to the plaintiff ?

3. if so to what relief ?

9.To prove the case of the plaintiff, plaintiff himself examined as

PW1 and got marked the documents Ex.A1 to A6.

10.Heard the counsel for plaintiff. Treated as heard on behalf of the defendant. Perused the entire record on hand.

11. Issue no.1:- The counsel for plaintiff submitted as PW1 is absolute owner and possessor of the suit schedule property. The same was purchased in th year 1978 under a registered sale deed. After purchasing the same PW1 constructed ground + 2 floors after obtaining necessary permission from the GHMC. PW1 is also paying taxes regularly. PW1 constructed entire house from his retirement benefits.

7 O.S.NO.258 OF 2013

On the request of the defendant, PW1 leased out the suit schedule premises to him on the monthly rent of Rs.8000/-. The lease was oral but the defendant failed to pay the rent amount and became defaulter. PW1 is a retired employee, Senior citizen and he is depending on only on the rent amounts of the suit schedule property. As defendant failed to pay the rent amount PW1 got issued legal notice U/s.106 of T.P.Act terminating the tenancy on 22.01.2013 but defendant refused to received the same. As defendant is in illegal possession, he is a trespasser he is liable to pay the damages and prays to decree the suit.

12.It is a strange case where father filed eviction suit against his son. However, the burden is on the plaintiff to prove that he is the owner of the suit schedule property and let out the same to the defendant for rent. To prove the above fact plaintiff himself examined as PW1. The evidence of PW1 is replica to the plaint. In this case, there is no dispute that plaintiff is the owner of the suit schedule property. Even defendant also admits the same that the plaintiff is the owner of the suit schedule property. In proof of case of plaintiff, plaintiff filed Ex.A1 to A6. Ex.A2 are the property tax receipts paid by the PW1 towards the suit schedule property for the years 2008-2009 and 2012-2013. Ex.A3 are the electricity bills and receipts paid by the plaintiff towards the suit schedule property. Ex.A4 is the legal notice dt.22.01.2013 got issued by the plaintiff to the defendant. Ex.A5 is the returned cover endorsing that 'addressee not claimed hence returned to sendor'. Ex.A6 is the xerox sketch of the suit schedule property.

13.As per Ex.A1 to A4 it is clear that plaintiff is the owner of the suit schedule property. In this case, main dispute is with regard to the 8 O.S.NO.258 OF 2013 ownership as defendant is denying relationship of landlord and tenant, the burden is on the plaintiff to prove the same. To prove the above fact, plaintiff filed Ex.A4 and Ex.A5. On perusal of Ex.A4, it is a legal notice got issued to the defendant stating that plaintiff let out the suit schedule property on monthly rent of Rs.8000/- since the date of inspection defendant failed to pay the rent amount. As defendant failed to pay the rent amount, plaintiff issued Ex.A4 notice terminating the tenancy by giving 15 days time and to vacate the suit schedule property and to hand over the vacant physical possession within 15 days or else the defendant will be treated as trespasser and defendant is liable for damages of

Rs.10,000/- and mesne profits for illegal occupation of the suit schedule property. Ex.A5 is the returned envelope cover and the same was returned as 'not claimed'. No prudent man will kept quit without receiving any notice issued from any advocate. In this case, defendant wantonly not received and the same was returned as not claimed. So it is clear that there are disputes between PW1 and defendant and it can be presumed there is relationship of landlord and tenant in between PW1 and defendant.

14. As there is no written lease in the instant case, the lease is month to month. A lease can be terminated on issuing 15 days time as contemplated in Sec 106 of T.P.Act and no reasons need to be assigned for such termination of the lease. As per Section 106 of T.P.Act, the lease can be terminated on the part of either lesser or lessee by issuing 15 days notice. In support of the case of the plaintiff, plaintiff filed Ex.A4 and Ex.A5. As per Ex.A4 it is clear that plaintiff got issued quit notice demanding the defendant to vacate the suit schedule property and handover the vacant possession of the suit schedule property.

9 O.S.NO.258 OF 2013

15.Now this court has to see whether Ex.A4 notice is valid or not.

By issuing Ex.A4 notice U/s.106 T.P.Act, the plaintiff demanded the defendant to vacate the suit schedule property within 15 days after receipt of the notice. As the tenancy is month to month, it should be presumed that the notice was served on the defendant. Hence there is no option to the defendant except to vacate the suit schedule property and to hand over the same to the plaintiff. In this case, as per the contention of the defendant, there is no relationship of landlord and tenant in between the parties. In proof of the above contention, defendant not filed any scrap of paper. He has not filed any proof to show that he also contributed funds for the construction of the building.

Even he did not choose to examine himself as DW1.

16.If a party specifically pleas and fails to come into witness box, a presumption can be drawn U/s.114 of Indian Evidence Act.The same principle was held by their Lordships in the judgement reported in 1999 (3) ALT Page 1 (SC).

“Evidence Act, 1872, Section 114- Presumption can be drawn against party who did not enter into witness box that what he pleads is not correct.”

In para 15 their Lordships further observed that “where a party to the suit does not appear into the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

In another judgement reported in 2004 (3) ALT 665 (D.B.), their

Lordships held “Evidence Act 1872 – Section 114 – Presumption-When a party does not enter into witness box to prove the case set up by 10 O.S.NO.258 OF 2013 him/her, a presumption has to be drawn that the version raised in pleading is not true.”

In the light of above judgements, PW1 proved his case.

Therefore, in view of the gist of the two citations, it is crystal clear that this court has to necessarily draw the presumption that the plea taken by the defendant is not true and correct and false and, therefore, he avoided himself to appear before this court and to let in the evidence i.e, even to examine himself. In the light of the above two judgements it can be presumed that what are the pleadings pleaded by the defendant are not proved, as defendant failed to examine in the present suit.

17.When there is no written lease, the lease can be terminated through any of the modes mentioned in Section 111 of the Act. One of the such mode is by giving notice to quit or intention to quit the lease. In this case, the plaintiff is complied with this mode by giving a notice

U/s.106 of T.P.Act. Plaintiff has complied with a mode by issuing a quit notice U/s.106 of T.P.Act under Ex.A4 and the same is returned as not claimed under Ex.A5 notice and hence Ex.A4 notice is valid and binding on the defendant. As discussed supra PW1 is owner of the suit property and defendant is tenant and he is liable for eviction. Hence this issue is answered infavour of the plaintiff and against the defendant.

18.Issue No.2:- Plaintiff can file separate application under

Order 20 Rule 12 of CPC for mesne profits and damages after paying court fee.

19.Issue No.3:- In the result, the suit is decreed with costs.

Directing the defendant to vacate the suit schedule property within one 11 O.S.NO.258 OF 2013 month from the date of this judgement, failing which, the plaintiff is at liberty to proceed against defendant as per the law. With regard to the mesne profits, plaintiff can file separate application under Order 20 Rule 12 of CPC by paying proper court fee.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in the open court on this the day of 28th March, 2014.

Sd/-

( Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

PW1: Mohd.Waheed-Ul-Haq None

Documents marked for Plaintiff:

Ex.A1 is copy of sale deed Doc.No.1515/1978, dt.21.02..1978.

Ex.A2 is original property tax for the years 2008-2009 and 2012-2013.

Ex.A3 is original electricity bills and payment receipts dt.12.12.2012.

Ex.A4 is office copy of legal notice dt.22.01.2013 along with postal receipt.

Ex.A5 is returned postal cover with acknowledgement card.

Ex.A6 is rough sketch plan.

Documents marked for Defendants: Nil

Sd/-

( Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad

IN THE COURT OF THE XIX JUNIOR CIVIL JUDGE: CITY CIVIL COURT

HYDERABAD

Dated this the day of 28 th March, 2014

PRESENT: Smt. K.Vani, B.A., LL.B.,

XIX JUNIOR CIVIL JUDGE.

O.S. No.257 of 2013

Between: Mohd.Waheed-Ul-Haq S/o.Mohd.Abdul Haq, aged about 72 years, Occ: Unemployee, R/o.H.No.16-2-866/1/B, Jeevan Yar Jung Colony,

Saidabad, Hyderabad......Plaintiff

And

Mohd.Hafeez-Ul-Haq, S/o.Mohd.Waheed-Ul-Haq, aged about 39 years, Occ:Pvt.Employee, R/o.Portion of 1st Floor in H.No.16-2-866/1/B, Jeevan Yar Jung Colony,

Saidabad, Hyderabad. ........Defendant

This suit coming on today before me for final disposal in the presence of Sri Thakur Singh, Advocate for the plaintiff and Sri Syed

Obaid Quadri, Advocate for defendant and the matter having been heard and stood over for consideration till date, this court passed the following:-

JUDGEMENT

1.This is suit filed by the plaintiff against the defendant

1. Directing the defendant to vacate and hand over the vacant, physical possession of the suit schedule property to the plaintiff,

2. Direct the defendant to pay future mesne profits @ Rs.10,000/-

P.M to the plaintiff along with future interest @ 24% P.A., from the date of filing of the suit till the handing over of the vacant physical possession of the suit schedule property to the plaintiff

3. to award the cost of the suit.

2. In nutshell the case of the plaintiff is that:- the plaintiff is the absolute owner of H.No.16-2-866/1/B, admeasuring 168 sq.yards, consisting of ground + 2 floors situated at Jeevan Yar Jung Colony, 2 O.S.NO.257 OF 2013

Saidabad, Hyderabad. Plaintiff purchased the same under registered sale deed dt.21.02.1978 from one Ghousia Sabira Sultana vide

Doc.No.1515/1978. After purchasing the above said property plaintiff constructed ground + 2 floors by obtaining necessary permission from

Municipal Corporation of Hyderabad. As there were some deviations and unauthorized construction in the said property, plaintiff applied for regularization of unauthorized construction and the same was regularized by the concerned authority. Plaintiff has been paying taxes regularly.

Plaintiff constructed the same out of the retirement benefits and the other sources. Plaintiff is in occupation of the ground floor.

3.The defendant who is his son, who was living in other locality by paying higher rate of rents requested the plaintiff to lease a portion in the second floor on a monthly rent of Rs.8,000/- excluding electricity and water charges. Considering the request of the defendant, he agreed to lease a portion in the second floor to the defendant i.e. Rear side portion of second floor consisting of 2 bed rooms, hall, kitchen, bathroom and

W.C., which is referred as suit schedule property. Defendant occupied the same in the month of July, 2012. Lease was an oral lease and month to month. After expiry of one month, plaintiff demanded the defendant to pay the rent as agreed by him. But defendant failed to pay the same and had been dodging the matter on one pretext or the other not paid the rents till date. Plaintiff has no source of income as he is retired employee and senior citizen, plaintiff depends upon only on the rents derived from the suit schedule property. It has become very difficult for the plaintiff to survive and eek out livelihood. Vexed with the attitude of the defendant in not paying and continuing to be in possession of the suit schedule portion, plaintiff got issued Section 106 of T.P.Act notice terminating the 3 O.S.NO.257 OF 2013 tenancy of the defendant on 22.01.2013. But the defendant refused to receive the same. The plaintiff had demanded the defendant to pay the monthly rents payable from July, 2012 to till date amounting to

Rs.56,000/-. The defendant is continuing to occupy the suit schedule portion illegally even after termination of his tenancy, therefore his possession is that of a trespasser. The plaintiff claims a sum of

Rs.10,000/- from the defendant as damages and mesne profits towards illegal occupation of the premises. As the defendant failed to vacate the suit schedule portion even after issuance of quit notice, the plaintiff is left with no other alternative except filing of the above suit. Hence this suit.

4.Defendant filed written statement by denying all the averments of the plaint. The brief contents of written statement are that:

It is partly true that the plaintiff is the owner of premises bearing No.16-2- 866/1/B having purchased in the year 1978 under a registered sale deed dt.21.02.1978 vide document No.1515/1978 from Ghousia Sabira Sultana.

The contents of the petition are all imaginary story set up by the plaintiff for the purpose of filing of present suit only to harass this defendant. As a matter of fact, there is no relationship between plaintiff and defendant as a landlord and tenant, the question of requesting to lease plaint schedule property on a monthly rent of Rs.8,000/- does not arise.

Similarly this defendant is not in default of payment of rents when there is no relation as landlord and tenant the question of default in payment of monthly rent is does not arise. Plaintiff is a Government employee and he was retired in the year 1991 and the suit schedule property was constructed in the year 2011, this defendant elder brother by name

Mohd.Mujeeb Ul Haq is working in Abroad. The plaintiff is advised to construct the suit schedule property and all the family leave together in 4 O.S.NO.257 OF 2013 their respective portion, believing his words as father this defendant and other five sons of plaintiff spend their money and time. The huge amount was spent by his elder brother and construction of house was completed and all the sons have get their respective portions in the above premises and this defendant has allotted suit schedule property as his portion. This defendant is not aware about the notice under section 106 of T.P.Act all the allegation made by the plaintiff is denied and prays to dismiss the suit. The suit of the plaintiff is legally defective not maintainable and liable to be dismissed.

5. Basing on the rival contentions, the following issues are framed for trial:

1. Whether the plaintiff is entitled for recovery of possession of the suit schedule property from defendant ?

2. Whether plaintiff is entitled for mesne profits @ Rs.10,000/- P.M from the date of filing of the suit till the handing over of the vacant possession of the suit property to the plaintiff ?

3. if so to what relief ?

6.To prove the case of the plaintiff, plaintiff himself examined as

PW1 and got marked the documents Ex.A1 to A8. On the other side, defendant examined as DW1, no documentary evidence was adduced.

7.Heard both sides, perused the entire record on hand.

8. Issue no.1:- The counsel for plaintiff submitted as PW1 is absolute owner and possessor of the suit schedule property. The same was purchased in th year 1978 under a registered sale deed. After purchasing the same PW1 constructed ground + 2 floors after obtaining necessary permission from the GHMC. PW1 is also paying taxes regularly. PW1 constructed entire house from his retirement benefits.

5 O.S.NO.257 OF 2013

On the request of the defendant, PW1 leased out the suit schedule premises to him on the monthly rent of Rs.8000/-. The lease was oral but the defendant failed to pay the rent amount and became defaulter. PW1 is a retired employee, Senior citizen and he is depending on only on the rent amounts of the suit schedule property. As defendant failed to pay the rent amount PW1 got issued legal notice U/s.106 of T.P.Act terminating the tenancy on 22.01.2013 but defendant refused to received the same. As defendant is in illegal possession, he is a trespasser he is liable to pay the damages and prays to decree the suit.

9.On the other side, the counsel for defendant submitted as plaintiff is the owner of the suit schedule property but there is no relationship of landlord and tenant in between plaintiff and defendant.

Defendant never took the suit schedule property on monthly rent of

Rs.8000/-. As there is no relationship of landlord and tenant, the question of paying rents does not arise and the question of default in payment of monthly rent does not arise. Elder brother of defendant used to send amounts from abroad through that amount, plaintiff constructed the suit schedule property to live all family members together in their portion.

All children of PW1 spent their amounts for the construction of the entire suit schedule house. After completion of the building, suit property was allotted to the defendant. As there is no landlord and tenant relationship, the present suit is not maintainable and prays to dismiss the case.

10.It is a strange case where father filed eviction suit against his son. However, the burden is on the plaintiff to prove that he is the owner of the suit schedule property and let out the same to the defendant for rent. To prove the above fact plaintiff himself examined as PW1. The 6 O.S.NO.257 OF 2013 evidence of PW1 is replica to the plaint. In this case, there is no dispute that plaintiff is the owner of the suit schedule property. Even defendant also admits the same that the plaintiff is the owner of the suit schedule property. In proof of case of plaintiff, plaintiff filed Ex.A1 to A8. Ex.A1 is the property tax paid by the PW1 towards the suit schedule property.

Ex.A2 is the property tax bill issued in the name of PW1 for the year June, 2007. Ex.A3 is water bills and payment receipts paid by PW1 towards the suit schedule property. Ex.A4 are the electricity bills and receipts paid by the plaintiff towards the suit schedule property. Ex.A5 is the legal notice dt.22.01.2013 got issued by the plaintiff to the defendant. Ex.A6 is the returned cover endorsing that 'addressee not claimed hence returned to sendor'. Ex.A7 is the xerox sketch of the suit schedule property. Ex.A8 are the receipts for the purchase of the building material (32 in number).

11.As per Ex.A1 to A4 and Ex.A8 it is clear that plaintiff is the owner of the suit schedule property. In this case, main dispute is with regard to the ownership as defendant is denying relationship of landlord and tenant, the burden is on the plaintiff to prove the same. To prove the above fact, plaintiff filed Ex.A5 to A6. On perusal of Ex.A5, it is a legal notice got issued to the defendant stating that plaintiff let out the suit schedule property on monthly rent of Rs.8000/- since the date of inspection defendant failed to pay the rent amount. As defendant failed to pay the rent amount, plaintiff issued Ex.A5 notice terminating the tenancy by giving 15 days time and to vacate the suit schedule property and to hand over the vacant physical possession within 15 days or else the defendant will be treated as trespasser and defendant is liable for damages of Rs.10,000/- and mesne profits for illegal occupation of the suit schedule property. Ex.A6 is the returned envelope cover and the 7 O.S.NO.257 OF 2013 same was returned as 'not claimed'. No prudent man will kept quit without receiving any notice issued from any advocate. In this case, DW1 wantonly not received and the same was returned as not claimed. So it is clear that there are disputes between PW1 and DW1 and there is relationship of landlord and tenant in between PW1 and DW1. As there is no written lease in the instant case, the lease is month to month. A lease can be terminated on issuing 15 days time as contemplated in Sec 106 of T.P.Act and no reasons need to be assigned for such termination of the lease. As per Section 106 of T.P.Act, the lease can be terminated on the part of either lesser or lessee by issuing 15 days notice. In support of the case of the plaintiff, plaintiff filed Ex.A5 and Ex.A6. As per Ex.A5, it is clear that plaintiff got issued quit notice demanding the defendant to vacate the suit schedule property and handover the vacant possession of the suit schedule property. During the cross examination of DW1, the counsel for PW1 elicited that “ Ex.A6 bears my address. I received notice and gave the same to my advocate and given reply.” So from the admissions it is clear that he received the legal notice and he admits the address on Ex.A6. Witness again says he do not know whether he received court notice or advocate notice.” DW1 clearly admits that Ex.A6 contains his address and returned as unclaimed. So it can be presumed that the same was served on the defendant.

12.Now this court has to see whether Ex.A5 notice is valid or not.

By issuing Ex.A6 notice U/s.106 T.P.Act, the plaintiff demanded the defendant to vacate the suit schedule property within 15 days after receipt of the notice. As the tenancy is month to month, it should be presumed that the notice was served on the defendant. Hence there is no option to the defendant except to vacate the suit schedule property and to hand over the same to the plaintiff.

8 O.S.NO.257 OF 2013

13.In this case, as per the contention of the defendant, there is no relationship of landlord and tenant in between the parties. In proof of the above contention, defendant not filed any scrap of paper. He has not filed any proof to show that he also contributed funds for the construction of the building. During cross examination of DW1, the counsel for plaintiff elicited “I am earning an amount of Rs.600/- to

Rs.700/- daily and paying Rs.180/- to the owner of the auto and the remaining amount is sufficient to maintain my family. So from the above admissions it is clear that plaintiff has no capacity to contribute amounts for construction of the suit building hence the contention of the defendant that he contributed amounts for the construction of the suit building cannot be considered. During cross examination of DW1, the counsel for plaintiff further elicited “ out of my father's money he purchased the suit land. I have not filed any receipt to show that I have given amounts to my father for construction of the suit schedule property. So from the above admissions it is clear that PW1 purchased the suit land from his own earnings and there is no proof that defendant contributed amounts for construction of the suit schedule property.

14. In this case, another contention of the defendant is that his elder brother contributed huge amounts for construction of the suit schedule property. In this regard also defendant not filed any documentary proof. In this regard, the counsel for plaintiff elicited during cross examination of DW1 “ I cannot file any document or receipt to show that my other brothers sent amounts for construction of the suit house. I cannot file any bank receipt to show that my elder brother by name

Muzeeb Ul Haq sent amounts to my father for construction of the suit property. So from the above evidence it is clear that defendant not filed 9 O.S.NO.257 OF 2013 single scrap of paper in proof of his contentions. Hence the contention of the defendant cannot be considered. During cross examination of DW1 the counsel for plaintiff further elicited “it is true that property tax is coming in the name of my father. My father paid property fees for obtaining permission. From the above admissions it is clear that entire suit property standing in the name of plaintiff and he paid entire fees for obtaining necessary permission and etc. Mere pleadings is not sufficient and the same should be proved by the proper oral and documentary evidence. DW1 not examined his brothers to prove that they have contributed any amounts for construction of suit property. But in this case it is not done so. In this case except the evidence of DW1, there is no other record to prove the contention of the defendant. Hence the contention of the defendant are not tenable.

15.When there is no written lease, the lease can be terminated through any of the modes mentioned in Section 111 of the Act. One of the such mode is by giving notice to quit or intention to quit the lease. In this case, the plaintiff is complied with this mode by giving a notice

U/s.106 of T.P.Act. Plaintiff has complied with a mode by issuing a quit notice U/s.106 of T.P.Act under Ex.A5 and the same is returned as not claimed under Ex.A6 notice and hence Ex.A6 notice is valid and binding on the defendant. Hence this issue is answered infavour of the plaintiff and against the defendant.

16.Issue No.2:- Plaintiff can file separate application under

Order 20 Rule 12 of CPC for mesne profits and damages after paying court fee.

10 O.S.NO.257 OF 2013

17.Issue No.3:- In the result, the suit is decreed with costs.

Directing the defendant to vacate the suit schedule property within one month from the date of this judgement, failing which, the plaintiff is at liberty to proceed against defendant as per the law. With regard to the mesne profits, plaintiff can file separate application under Order 20 Rule 12 of CPC by paying proper court fee.

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in the open court on this the day of 28th March, 2014.

Sd/-

( Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

PW1: Mohd.Waheed-Ul-Haq DW1: Mohd.Hafeez- Ul- Haq

Documents marked for Plaintiff: Ex.A1 is the property tax paid by the PW1 towards the suit schedule property. Ex.A2 is the property tax bill issued in the name of PW1 for the year June, 2007. Ex.A3 is water bills and payment receipts paid by PW1 towards the suit schedule property. Ex.A4 are the electricity bills and receipts paid by the plaintiff towards the suit schedule property. Ex.A5 is the legal notice dt.22.01.2013 got issued by the plaintiff to the defendant. Ex.A6 is the returned cover endorsing that 'addressee not claimed hence returned to sendor'. Ex.A7 is the xerox sketch of the suit schedule property. Ex.A8 are the receipts for the purchase of the building material (32 in number).

Documents marked for Defendants: Nil

Sd/-

( Smt.K.Vani) XIX Junior Civil Judge, City Civil Court:Hyderabad