Fair O.S.No.1584-2014
IN THE COURT OF THE IV SENIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD
DATED THIS THE 25TH DAY OF APRIL, 2017
PRESENT : SRI. L. SREENIVASA NAIK
IV SENIOR CIVIL JUDGE,
O.S.No. 1584 of 2014
BETWEEN:
Pagidimarri Venkat Krishna, S/o Sri.P.Ramakrishna Rao, Aged : 40 years, Occ: Business, R/o: Flat No:501, Shilpa Apartments, Road No:5, Banjarahills, Hyderabad -34. …Plaintiff.
AND
Sri.Sreedhar Reddy A.S, S/o Late Pattabhi Reddy, Aged about 58 years, Occ: Business, R/o:F.No.502, Shilpa Apartments, Road No.5, Banjarahills,Hyderabad–34. … Defendants.
The suit is coming up for disposal before me in the presence of
Sri.S.Jayaprasad, Advocate for the Plaintiff and Sri.G.V.R.V.Reddy,
Advocate for Defendant and having stood over for consideration to this day, this court made the following:
J U D G M E N T
1. This suit is filed by the plaintiff against the defendant, directing the defendant to vacate the suit schedule flat bearing No:502, GHMC 5th
Floor, H.No:8-2-468/A/2, Shilpa Apartments, Road No.5, Banjara Hills,
Hyderabad – 34, a three bed room flat with hall W/c, Kitchen and balcony admeasuring 1900 sq. feet of plinth area with an undivided share of land admeasuring 58.00 sq.yards out of 1044 sq.yards of land situated at road
No.5, Banjarahills, Hyderabad-34, bounded by North: Open to sky, South :
Open to Sky, East : Flat No:501, and West : Open space with one car parking are in the stilt of the suit schedule property and hand over the 1
Fair O.S.No.1584-2014 vacant and physical possession of the same to the plaintiff and to direct the defendant to pay an amount of Rs.54,000/- towards arrears of rent for three month and to grant means profit and costs and other reliefs.
2. The brief averments of plaint are as follows:
(a) It is submitted that, the plaintiff is the owner of house flat bearing No.502, GHMC No:8-2-468/A/2, 5th floor, Shilpa Apartments, Road
No.5, Banjara Hills, Hyderabad -34, a three bed room flat with hall, W/C,
Kitchen and balcony admeasuring 1900 sft of plinth area with an undivided share of land admeasuring 58.00 Sq.yards out of 1044 sq.yards of land situated at road No.5, Banjarahills, Hyderabad -34. The defendant is the tenant of the house flat. The tenancy is oral month to month and the rent per month is Rs.18,000/- payable on or before 5th of each and every existing English calendar month. The defendant has paid an amount of
Rs.12,000/- as security deposit to the father of the plaintiff at the time of inception of the tenancy in the year 2008, which is refundable without interest at the time of vacating the tenancy premises after deducting the arrears if any. The defendant has to keep the flat neat and colored once in every three years as per the oral agreement.
(b) It is further submitted that, original the grandfather of the plaintiff by name Sri.Late P.Srinivasa Rao was the owner of house property bearing GHMC No:8-2-468/A/2, admeasuring 1044 Sq.yards with old building, situated at road No.5, Banjara hills, Hyderabad-34. During his life time, he has given the said house property for development to M/s.Silpa
Homes in the year 1994 through an unregistered Developmental agreement. Subsequently the grandfather of the plaintiff died in the year 1997 leaving the plaintiff, his father by name P.Ramakrishna Rao and one brother by name P.Bharani Krishna as his legal heirs and successors in his estate, as such, the plaintiff, his father and younger brother have succeeded the said house property before construction of the apartment of the descendants of late Srinivasa Rao, the builder complete the construction work and delivered the share of late Sri.P.Srinivasa Rao to the plaintiff, his father and younger brother.
(c) It is further submitted that, as per the approved plan, the builder has constructed altogether four floors(Stilt + 4 Floors). After 2
Fair O.S.No.1584-2014 completion of builders work, the plaintiff and his family members out of their personal and joint family funds constructed two flats in the 5th floor i.e., flat No:501 and 502 which were completed by 2004 respectively, the plaintiff and his parents are living in flat NO.501 let out the flat No:502 to the defendant even prior to the defe4ndnat it was let out to the another tenant, and in the month of august 2014 the plaintiff and his family members separated and divided the joint family properties in between them. Amongst the other properties, the plaintiff got flat No:502 as his share to the schedule property. Even prior to the separation of the plaintiff has brought to the said flat to the notice of the defendant orally and requested him to pay the rent to him from the month of September 2014 and the plaintiff requested the defendant to vacate the flat by the end of
September 2014.
(d) It is further submitted that, the defendant all of sudden changed his mind towards the plaintiff and stopped to pay the monthly rents on knowing that the plaintiffs interested to shift to the suit flat with a malafide intention. The defendant is in default for payment of rent from
September 2014. The plaintiff issued a statutory legal notice under section 106 of TP Act to the defendant to pay the monthly rents to him as well as to vacate the tenancy premises. The defendant received the legal notice issued by the plaintiffs and also issued a reply notice by stating that one
P.Srinivas Rao entered development agreement with M/s.Shilpa Homes, its
Managing Partner Sri.PVSN. Murthy sold the semi finished pent house to his wife by name Dr.B.Sujatha and put them in possession of the suit flat. The defendant has denied the jural relationship of landlord and tenant between the plaintiff and defendant, as such, the defendant has breached the oral agreement entered between the plaintiff family and the defendant and thereby the relationship of landlord and the tenant has been ceased and defendant is liable to vacate the schedule property.
(e) It is further submitted that, the defendant is the second tenant in the suit flat, prior to him the suit flat was given on rent to another family and therefore, there is no truth in the version of the defendant that the builder has given the portion of the suit flat to them by taking the sale consideration as alleged by the defendant the builder has 3
Fair O.S.No.1584-2014 nothing to do with the suit flat and it was not even covered by the development agreement entered between the grandfather of plaintiff and
M/s.Shilpa Homes. The plaintiff and his family members with their own funds constructed the flat No;501 and 502 over the 5th floor of the building and enjoying the same as absolute owners. The builders has not entered any development agreement with the plaintiff and his family members after the death of his grant father, and GPA has been given by Late P. Srinivas
Rao is invalid and the said builder cannot entered into any agreement with any third parties without the consent of the plaintiff and his family members. The wife of the defendant has purchased the one flat bearing
No:204 in the second floor of the apartment with an undivided share of the land admeasuring 52 sq.yards out of 1044 sq.yards and not the suit flat.
Up to 4th floor the construction of the flat were completed by the year 2000 and the flat NO;501 and 502 were constructed after 2002 and the constructed was completed in the year 2004. The alleged agreement purchased by the wife of the defendant was entered in the year 1997, therefore, there is no iota of truth in the reply notice of the defendant. The defendant cannot claim any right or title and ownership against the suit flat in whatsoever manner and the defendant has to pay rent and vacate the tenancy flat by 31-10-2014 and the plaintiff has terminated the tenancy by 31.10.2014 and the plaintiffs is in need of the same for his personal requirement. As per the oral agreement, the defendant has to pay every month rent in advance continuously without any default and the defendant is in default of rent for the suit flat from the month of September 2014 and he is liable to pay an amount of Rs.24,000/- and the plaintiff is entitled to claim and amount of Rs.5000/- extra per month from the month of
September 2014 and also plaintiff is entitled to claim mense profit @
Rs20,000/- from the September to till the defendant vacated the tenancy.
Hence, the suit.
3. The brief averments of the written statement filed by defendant in a nutshell is as follows:-
(a) It is submitted that, the all the material averments made in the 4
Fair O.S.No.1584-2014 plaint which are not specifically admitted by him are deemed to be denied and the plaintiffs are put to strict proof of the same. There is no jural relationship of land lord and tenant between the plaintiff and defendant, thus the suit as framed and filed by the plaintiff is misconceived and neither maintainable in law nor on facts. Further the suit is liable to be dismissed for non joinder of necessary and property party, who is the purchaser and possessor of the suit property. Originally the grant father of plaintiff by name late P.Srinvias Rao was the owner of the house property bearing GHMC No:8-2-468/A/2 admeasuring 1044 sq.yards with whole building, and during his life time he has given the said property for development to M/s.Shilpa homes in the year 1994 through a development agreement, and subsequently the grandfather of plaintiff died in the year 1997 leaving his son P.Ramakrishna Rao as his only legal heirs.
(b) It is further submitted that, the plaintiff has no way concerned with the suit schedule property as he has no right, title or interest over the same and therefore, the question of shifting his family with the schedule property as alleged default in payment of rents in September 2014 does not arise at all. Originally the grant father of plaintiff by name late
P.Srinvias Rao was the owner of the house property bearing GHMC No:8-2- 468/A/2 admeasuring 1044 sq.yards and he had entered into the development agreement with M/s.Shil;a Homes, a partnership firm represented by his Managing Partner PVSN Murthy on 21.05.1994 in respect of the above said premise for construction of residential falt. As per the terms and condition of the said development the owner is entitled to 40% of buildup area and the builder is entitled to 60% of built up area and along with the said development agreement P.Srinivas Rao also executed registered GPA dated 23.05.1994 in favour of M/s.Shilpa Homes. In pursuance of the said development agreement, the builder obtained the sanction plan for the construction of stilt + 4 upper floors consisting of 4 flats in each floor and accordingly the builder constructed the 16 residential flats in the above said premises as per the sanction plan. The builder also constructed two pent house over and above, permitted floors I.e, flat no:501 and 502.
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Fair O.S.No.1584-2014
(c) It is further submitted that, the defendant's wife namely
Dr.B.Sujatha purchased the pent house bearing flat No:502 in 5th floor, admeasuring 3730 sft with an undivided share of land 52.2 sq.yards by entering into an agreement of construction dated 16.04.1997 by paying entire sale consideration of Rs.15,00,000/-, and also purchased the flat bearing No:204 in the second floor from builders, as a said pent house and flat No:204 were fallen to the share of M/s./Shilpa homes by virtue of development agreement date 21.05.1994. In pursuance of agreement of sale the flat No:204 was registered under sale deed dated 03.04.2004 in favour of defendant's wife and the physical portion of the pent house was delivered to his wife and that regard a letter issued by M/s.Shilpa Homes.
Since then the family of the defendant is residing in the pent home without being any interruption or objection or claim from anybody.
(d) It is further submitted that, after execution of the construction, the defendant wife had handover the original agreement to
PVSN Murthy for the purpose of availing building regulation scheme for the said pent house 502 since the said pent house was constructed over and above, the permitted floor builder submit an application for regulation of the pent house bearing 502 to then MCH for availing the provisions of Go
MS 419 MA dated 30.07.1998 duly paying the required charges to MCH. IN view of the pending of the BRS application for regulation of the pent house 502 with MCH, M/s.Shilpa homes to wait for the execution of the registered sale deed in favour of the defendant wife in respect of the said pent house. Therefore, the wife of the defendant was waiting for execution of the sale deed in her favour and in the meantime she went to abroad.
(e) It is further submitted that, during the life time of P.Srinivas
Ro he sold flat No;201 which was fallen to the share and subsequently he died on 16.11.1997 leaving behind his son to succeed his share under the development agreement. After the death of P.Srinivas Rao, the builder hand over the 6 flats to P.Ramakrishna Rao including pent house which were fallen to the share of late P.Srinivas Rao and the said P.Ramakrishnna
Rao had acknowledged the allotment of the respective shares of the flats between himself and the builder in writing on 23.01.2002 thus the pent house was fallen towards the share of builder. The plaintiff who is the son 6
Fair O.S.No.1584-2014 of the P.Ramakrishna Rao having well aware of all the facts, but deliberately and with oblique motive got issued a notice under section 106 of TP Act by suppressing all the fact, therefore the plaintiff has nothing to do with the suit schedule property as he is stranger to the same.
(f) It is further submitted that, M/s. Shilpa Homes represented by
PVSN Murthy behind their back had deposited the original documents pertaining to Pent house No:502 and the flat No:204 which belongs to the wife of the defendant along with all document with AP Mahesh cooperative
Urban Bank Limited and obtained the loan of Rs.50 Lack by playing fraud and also by creating false partner duly misrepresent that Dr.B.Sujatha was one of the partner. As M.Shilpa Homes committed default in repayment of said loan amount to the bank, AP Mahesh cooperative Urban Bank Limited initiated recovery proceedings against the M/s.Shilpa Homes and others and the defendant wife vide ARC No:50383/2001 – L1, the defendant came to know about the fraud played by the PVSN Murthy when he received the notice form joint register of cooperative society in the year 2002. In the said proceedings property has shown at schedule II of the said case. Soon after the notice the defendant has made a representation to the bank bring to their notice that his wife is no way concern with the said loan transaction and fraud played by M/s Silpa homes in creating and fabricated the false a partnership deed by depositing the same obtained the said loan. Upon the representation submitted by the defendant and also perusal of the document, the bank authorities not insisted his wife with regard to the recovery of the said loan amount, therefore, the question of the recovery of the possession of suit schedule property does not arise at all and the plaintiff approached the court with unclean hand usurp and valuable property.
(g) It is further submitted that, the defendant received notice
dated 04.10.2011 got issued by the plaintiff, and after receipt to the said
notice, the defendant got issued a cogent reply notice 24.10.2014 denying the ownership of the plaintiff in spite of the cogent reply, the plaintiff filed a present suit on false and frivolous grounds. This court has no jurisdiction to entertain the suit the question of seeking alleged relief under the suit does not arise. The plaintiff in connivance with the builder has created the false 7
Fair O.S.No.1584-2014 and fabricated documents and basing on which the plaintiff got issued a notice the present suit is bad in law for non joinder of proper and necessary and therefore the suit is neither maintainable in law and the same is dismissed. Hence, he sought to the court to dismiss the suit.
4. On the basis of above pleadings, my learned predecessor had framed the following issues for trial:
1) Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property?
2) Whether the plaintiff is entitled for recovery of arrears of rents of Rs.54,000/-as prayed for?
3) Whether the plaintiff is having no right, title and interest over the suit schedule property?
4) Whether the notice under section 106 of Transfer of property Act got issued by the plaintiff is not valid in the eye of law?
5) Whether there is no jural relationship of landlord and tenant between the plaintiff and the defendant?
6) Whether the suit is bad for non joinder for necessary parties?
7) To what relief ?
5 . To prove the case of the plaintiff, the plaintiff himself examined as
PW1 and got marked Exs.A1 to Ex.A6 and lengthily cross examined by the counsel for the defendant. To substantiate the contention of the defendant, the defendant himself got examined as DW1 and got marked
Ex.B1 to Ex.B15 and also examined Assistant City Planner of GHMC,
Hyderabad and Law Officer in Andhra Pradesh Mahesh Co-operative Bank as CW1 and CW2 and through them got marked Ex.X1 to Ex.X6. In this case Ex.B1 and Ex.B2 are marked during course of cross examination of
PW1 by the defendant.
6. Heard arguments on both side and both parties filed the written arguments.
7. ISSUE NO.1 to 5:
It is just and necessary for this court for adjudication of the matter, issues 1 to 5 are clubbed and answered together to avoid repetition and replica and also to avoid the controversy between the parties.
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Fair O.S.No.1584-2014
(a)The evidence of the PW1 is to the same effect as of the pleading of the evidence on oath. In the cross examination PW1 stated that there is no documentary proof to show that the defendant is the tenant the suit schedule property of land to an extent of 1044 sq yards is originally belong to his grandfather. It is stated that his grandfather enter into the development agreement in respect to suit schedule property with
M/s.Shilpa Homes represent by PVSN Murthy in the year 1994 and he confronted the Photostat copy of the development agreement 21.05.1994 and the same is marked as Ex.B1, and he has gone through the contents of
Ex.B1 and he is one of the witness of the said document. It is specifically stated that he was aware of the clause VII (A) and (B) of Ex.B1 and the landlord was entitled 40% share in supers built up area and the builder was entitled for 60% share in built up area. It is specifically stated that he was not disputing the clause XXII of Ex.B1 so also in clause NO.I of theEx.b2 and accordingly to him the builder completed the construction the apartment in the month of September 1999. As per the plan out of 16 flats they got 6 flats their share and there was no specific mentioned in Ex.B1 about allotment of particular flat numbers to the landlord and to the builder and in the year 1997 his grandfather passed away and during his life time he sold flat bearing no;201 in the second floor to the third party, after the death of his grandfather the remaining 5 flats was allotted to his father. It is stated that the entire 5th floor covered with flat No:501 and 502 and there is no open space available on 5th floor except 501 and 502 and he is residing in flat No:501 since 2004. It is stated that he has no idea whether the daughter of the defendant by name Kennera marriage was performed in the flat No. 502 in the month of August 2005, so also his son marriage in the year 2007. He has no idea whether the then MCH received nominal charges for regularization and issued a vide receipt No:4411 dated 27.08.1998 and he has not aware the agreement of completion dated 16.04.1997 was entered by the builder with the wife of the defendant prior to the death of his grandfather. It is stated that he has not stated in the plaint in which year he constructed d the flats Nos. 501 and 502 on the fifth floor and according to him he spent 50 lakh for construction of flat and said fact was not stated in the plaint. It is specifically stated in the 9
Fair O.S.No.1584-2014 month of September 2008 the defendant inducted as a tenant by his father under oral agreement and he has not stated said fact in the plaint, and accordingly to him the flat no:502 is also regularized by GHMC, but he had no idea on which year the flat was regularized and he do not remember on which date he made application for GHMC for regulation of unauthorized construction with respect of the suit schedule property and if the documents is available he file the same to prove that his father paid a property tax from 1999 to till 2014 with respect of flat No:502. It is true that in the year 2002 the defendant was the president of welfare association and his father was general secretary and they have not obtained any permission for the construction of the alleged flat no:501 and 502 for the flat owners welfare association and he has no idea whether the builder made an application to MCH for regulation of the flat 1998 by paying necessary charges.
(b)The evidence of DW1 is to the same effect as that of the pleadings of the Written Statement. In the cross examination of DW1 stated the builder and his wife are distant relatives, and he received notice from the Joint Register, Cooperative society and in that notice his wife name shown as one of the respondent, and as per the Ex.B1 the permission granted for GHMC for construction of ground plus 4 floor only and there is no permission for the construction of the 5th floor and he was not written to Ex.B3 and he has not attesting witness of agreement between his wife and M/s Shilpa Homes dated 16.04.1997. Accordingly to him, in the year 2002 he came to know that the builder mortgage the suit schedule property document in flat no;17 and the builder register the flat
No:204 on two times in the name of his wife ie.., in the year 1997 and 2002 and he do not know the mode of payment given by his wife for
Rs.15,00,000/- It is denied that he is default in payment of rents from
September 2014 for RS.54,000/-and also from the date of suit to till today.
(c)In this case, on the application filed by the defendant, one
P.JaganMohan, Assistance planner examined as CW1 and A.
Satyanarayana Law officer got examined as CW2. CW1 stated in his chief examination that he brought the document to show that statement 10
Fair O.S.No.1584-2014 showing the list of application received under BRS for regularization of unauthorized construction with respect of suit schedule property. It is stated that one PVSN Murthy had submitted Building Regularization
Scheme application for regularization of the Suit schedule property I.e, house No:8-2-468/A/2 and GHMC recommended for BRS scheme vide file
No:4511 and Ex.X1. It is stated that the Photostat copy of the receipt in two numbers shown by the defendant and the said receipt stated that filed
Number dated and PVSN Murthy mentioned in Ex.X1 appear in the said receipt pertaining to the schedule property. In the cross examination
CW1 stated that EX.X1 is computer generated copy and he has not brought the entire record book containing to Ex.A1 has it was not traceable. It is state that after obtaining the generated copy of the computer trying to every the same by comparison with the original and the said file could not be traced out and he cannot say the file no;4511 or rejected or approved and he stated that at the time of computerized, the head office GHMC entered all the information pertaining to BRS and other records, basing on that the employees of GHMC entered the file name , date and person to applied the BRS scheme. Ex.X2 and Ex.X3 does not containing the flat numbers and extent of the flat.
(d)CW2 in his chief examination stated that as per the orders of the court, he brought an agreement dated 16.04.1997 and he did not brought the acknowledgment dated 23.01.2002 and the BRS receipt dated 27.08.1994 issued by the then MCH in respect of the suit schedule property. The schedule property mentioned in Ex.X4 is not mortgaged by the Shilpa home represented by PVNS murthy and the schedule property mention in Ex.X4 in flat NO.17 in 5th floor and AP Mahesh cooperative
Urban Bank Limited has field arbitration case RC.No:50388/2001-L1, and in Ex.X5 in colum A item NO.2 property mentioned as pent house on flat
NO.4 municipal nO;8-2-468/A/2 with undivided share of land admeasuring 52.2 sq.area snd plinth are 3726 sq feet beside plinth are of terrace of garden of 1767 sq.feet belongs to the T.Sujatha, and the schedule property in item no. to 5 whose in Ex. Were mortgaged Shiulpa home represented by PSN.Murthy and other in favoaru of AP Mahesh 11
Fair O.S.No.1584-2014 cooperative Urban Bank Limited and obtained the loan and therefore they field the arbitration case against the builder and it represent PVSN murthy and others and their bank filed a criminal case against the shilpa homes has he played fraud and created a documents by impersonation and obtained the loan for the flat which were already sold. In the cross examination CW2 stated the property covered under Ex.X6 was mortgage by Dr.B.Sujatha in respect o the loan transaction held by the M/s.Shilpa
Homes represented by PVSN. Murthy as guarantor and there is no reference in Ex.X6 in respect of the property flat No.:204 and also with regard to the subject matter of the suit property. The schedule property shown in Ex.X6 referred to in Ex.X5 in addition pent house is added, the proceeding under Ex.X5 is initiated in the year 2001 and he never visited the properties covered under Ex.X5 and he has no personal knowledge about the item No.II of the schedule property. There is no mention of flat numbers, door numbers in Ex.X6.
(e)In this case this court appointed an advocate commissioner on the application filed by the plaintiff one J.K.Murthy appointed and advocate commissioner and file his report by stating that the suit flat is facing southwest and he measured the suit flat with the assistant of the both parties in the presence of plaintiff and defendant and as per his measurement the built up area comes to 1619.5 sq.feet and terrace area comes to 2479.74 sq.feet and he has measured open terrace in toto as the extension of the plinth room did not be measured separately. He did not measure the common area and corridor and steps and car parking area as there is no mention in the warrant.
8. On careful perusal of the written statement filed by the defendant and evidence of D.W.1, No doubt the contents of the written statement appears that the defendant has seriously disputing the title and jural relationship of the petitioners and also several allegations alleged in the written statement. Therefore, this court framed the following point arose for my consideration on proper adjudication of the matter and to remove the controversies between the parties for better disposal of the case.
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Fair O.S.No.1584-2014
1. Whether the grandfather of the plaintiff by name P.Srinivas Rao was the absolute owner of the property admeasuring 1044 Sq.yards.?
2. Whether the said P.Srinivas Rao enter into Development Agreement with M/s.Shilpa Homes in the year 1994 to construct the residential flats in the above said property?
3. Whether as per development agreement, M/s.Shilpa Homes represented by PVSN Murthy builder agreed to construct and delivered the 40% of super built up area to the said P.Srinivas Rao and the builder retain 60% of super built up area of the residential portion?
4. Whether at the time of entering into the development agreement between P.Srinivas Rao and M/s.Shilpa Homes represented by PVSN, agreed that extra floors if any constructed over and above agreed area shall be shared at the ratio of 40:60?
5. Whether the builder constructed the pent houses unauthorized on the 5th floor?
6. Whether the builder M/s.Shilpa Homes sold the flat No:204 to the wife of the defendant?
7. Whether the wife of the defendant purchased the schedule flat in dispute under Ex.X4 as stated by the counsel for the defendant is correct or not?
8. Whether the builder applied for regularization of the schedule property in dispute before GHMC?
9. Whether the builder P.V.S.N.Murthy had obtained the loan of Rs.50,00,000/- by mortgaging the property in question?
10.Whether the defendant obtained the suit schedule flat under orally lease as stated by the plaintiff is correct?
11. Whether the defendant regularly paying the rents to the father of the plaintiff as a tenant before partition under Ex.A4?
12. Whether the defendant residing in the suit schedule property since 1998 or 2008 as a tenant?
13. Whether there is a jural relationship between the plaintiff and defendant as on the date of filing of the suit?
14. Whether the defendant has placed a prima facie evidence to prove that denial of title of the plaintiff by him is bonafide, then it is incumbent on the part of this court to direct the plaintiff to approach the civil court to establish his title and seeking eviction of the defendant ?
15. Whether the quit notice issued by the plaintiff is valid and binding upon the defendant?
16. Whether the plaintiff entitled for eviction of the defendant as prayed for?
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9. POINTS NO: 1 TO 3:
1.Whether the grandfather of the plaintiff by name P.Srinivas Rao was the absolute owner of the property admeasuring 1044 Sq.yards.? 2.Whether the said P.Srinivas Rao enter into Development Agreement with M/s.Shilpa Homes in the year 1994 to construct the residential flats in the above said property?
3. Whether as per development agreement M/s.Shilpa Homes represented by PVSN Murthy builder agreed to construct and delivered the 40% of super built up area to the said P.Srinivas Rao and the builder retain 60% of super built up area of the residential portion?
(a) On carefully perusal of the entire material evidence available on record and also marshalling the evidence of PW1 and DW1, and the oral argument advanced by the both parties respective counsels along with written arguments and documents placed by the both parties, one thing is very much crystal clear that late P.Srinivas Rao was the absolute owner of the property house bearing NO:8-2-468/A/2 Road No:5 to an extent of 1044 sq.yards. Further, there is a cogent and amply evidence available on record that the said Late P.Srinivasa Rao entered into the development agreement with M/s.Shilpa Homes represented by PVSN Murthy for development of the above said property for construction of residential flats and the builder agreed to construct with own funds and delivered the 40% of super built up area to the said P.Srinivas Rao and the builder retain 60% of super built up area of the residential portion, and late P.Srinivas Rao executed a GPA in favour of builder on 23.05.1994 under Ex.B2. Further, there is a ample evidence available on record that the builder obtained the permission from MCH for construction of building ground + four floors and he complete the construction up to 4 floors and each floor having 4 flats which comes to total 16 flats and late P.Srinivas Rao was entitled for 6 flats and the builder was entitled for 10 flats. As could seen from the evidence of PW1, in his cross examination PW1 stated that his grandfather enter into the development agreement in respect to suit schedule land with
M/s.Shilpa Homes represent by PVSN Murthy in the year 1994, and he has gone through the contents of Ex.B1 and he is one of the witness of the said document and he was aware of the clause VII (A) and (B) of Ex.B1 and the landlord was entitled 40% share in supers built up area and the 14
Fair O.S.No.1584-2014 builder was entitled for 60% share in built up area and he was not disputing the clause 22 of Ex.B1 so also in clause No.I of theEx.B2 and accordingly to him the builder completed the construction the apartment in the month of September 1999 and as per the plan out of 16 flats they got 6 flats towards their share. As could seen from the evidence of DW1, in his cross examination DW1 stated that as per the Ex.B1 the permission granted for GHMC for construction of ground plus 4 floor only and there is no permission for the construction of 5th floor.
(b) On carefully perusal of the entire material evidence available on record and also marshalling the evidence PW.1 and DW1, this court do not have any doubt and suspicious that Late P.Srinivasa Rao entered into the development agreement on 21.05.1994 with M/s.Shilpa Homes represented by PVSN Murthy for development of the property for construction of residential flats and the builder agreed to construct with own funds and delivered the 40% of super built up area to the said
P.Srinivas Rao and the builder retain 60% of super built up area of the residential portion, and late P.Srinivas Rao executed a GPA in favour of builder on 23.05.1994 under Ex.B2. Further, this court arrived a firm conclusion that the builder obtained the permission from Municipal corporation Hyderabad for construction of building ground + four floors and he complete the construction up to 4 floors and each floor having 4 flats which comes to total 16 flats and late P.Srinivas Rao was entitled for 6 flats and the builder was entitled for 10 flats. Hence, the points are accordingly answered.
10. Points No.4 to 9:
4.Whether at the time of entering into the development agreement between P.Srinivas Rao and M/s.Shilpa Homes represented by PVSN agreed that extra floors if any constructed over and above agreed area shall be shared at the ratio of 40:60? 5.Whether the builder constructed the pent houses unauthorized on the 5th floor? 6.Whether the builder M/s.Shilpa Homes sold the flat No:204 to the wife of the defendant? 7.Whether the wife of the defendant purchased the schedule flat under Ex.X4 as stated by the counsel for the defendant is correct? 8.Whether the builder applied for regularization of the schedule property in dispute
before GHMC?
9.Whether the builder P.V.S.N.Murthy had obtained the loan of Rs.50,00,000/- by mortgaging the property in question? All these points were interlinked one, hence, I have taken up all the points together for my consideration in order to avoid repetition 15
Fair O.S.No.1584-2014 of reasons and replica.
(a) After careful scrutiny of entire material on record, the plaintiff filed a suit against the defendant for eviction in respect of the suit schedule property and also to recovery the arrears of rent of Rs.54,000/-, by alleging that the defendant is the tenant of the suit schedule property as shown in the plaint and the tenancy is month to month and he paid an amount of Rs.12,000/- towards security to the father of the plaintiff at the time of inception in the year 2008 which is refundable without the interest after vacating the premise after deducting the arrears if any, and in the month of August, 2014 the petition and his family members separated and divided the joint family properties, in that partition, the plaintiff got schedule property towards his share under partition deed and same was informed to the defendant, and from September 2014 the defendant is default in payments of rents and he issued a notice under section 106 of
T.P. Act to the defendant by demanding for vacating the suit schedule property and also pay arrears of rent. To substantiate the contention of the plaintiff, himself examined as PW1 and got marked Ex.A1 to Ex.A6.
(b) There is no dispute that, the defendant filed a written statement and contended that there is no jural relationship between the plaintiff and defendant as landlord and tenant and also contended that one late
P.Srinivas Rao who was grant father of the plaintiff was absolute owner of the property bearing GHMC.No: 8-2-468/A/2 admeasuring 1044 sq.yards, and during his life time he has given the said house property for development to M/s.Shilpa Homes in the year 1994 through a development agreement, and as per the terms and condition of the development agreement the land owners entitled for 40% built up towards his share and the builder is entitled to 60% built up area towards western side and the said P.Srinivasas Rao registered GPA dated 23.05.1994 in favour of
M/s.Shilpa Homes, and the builder has constructed 16 residential flats and also constructed two pent houses, and the wife of the defendant also purchased the flat No.204 in the second floor from the builder M/s.Shilpa
Homes which was fell into the share of the builders, and also purchased the pent house bearing flat No:502(Subject matter of the dispute property), which is fell in to the share of the builder under agreement of 16
Fair O.S.No.1584-2014 sale dated 16.04.1997 by paying the sale consideration of Rs.15,00,000/-, and builder submit an application for registration of the pent house bearing
No:502 to the then MCH by virtue of the GoMS.No:419 MA dated 30.07.1998 duly paying the requisite charges to the GHMC and the said application is pending and subsequently the said P.Srinivasa Rao died, the builder M/s.Shilpa Homes reptd. By P.V.S.N.Murthy behind back of wife of the defendant, had deposited the original document in respect of the flat
No:204 and also agreement of sale in respect of the pent house No:502 by playing fraud, and obtained the loan form A.P Mahesh Co-operative Urban
Bank Limited by creating false partnership duly representing that
Dr.P.Sujatha is one of the partner. To substantiate the above contention, the defendant himself examined as DW1 and got marked Ex.B1 to Ex.B15 and also examined CW1 and CW2 and through them Ex.X1 to Ex.X6 are marked.
(c ) It is apposite to say that, this is not a suit for declaration of title and recovery of possession, and the present suit is filed by the plaintiff for eviction and also recovery the arrears of rent of Rs.54,000/-, by alleging that the defendant is the tenant of the suit schedule property, therefore, it is very limited to say that there is a jural relationship between the parties as on date of filing of the suit or not.
(d) On careful perusal of entire material on record, one of the foremost ground of the defendant is that he denied the jural relationship and title of the plaintiff. As such, the burden heavy lies upon the defendant to prove set up pleas as stated in the written statement and in his evidence by adducing sufficient oral and documentary evidence and also to disprove the prima facie evidence placed by the plaintiff with regard to title and jural relationship. At the same time, the burden also heavy lies upon the plaintiff to prove his claim as stated in the plaint and in his evidence by adducing sufficient oral and documentary evidence and also to disprove the prima facie evidence placed by the defendant with regard to title and jural relationship disputed by him.
(e) The counsel for the plaintiff contended that grandfather of the plaintiff during his life time, given the property bearing GHMC.No: 8-2- 468/A/2 admeasuring 1044 sq.yards, for development to M/s.Silpa Homes 17
Fair O.S.No.1584-2014 in the year 1994 through an unregistered Developmental agreement, subsequently, the grandfather of the plaintiff died in the year 1997 leaving the plaintiff, his father by name P.Ramakrishna Rao and brother by name
P.Bharani Krishna as his legal heirs and successors in his estate, as such, the plaintiff, his father and younger brother have succeeded the said house property before construction of the apartment of the descendants of late
Srinivasa Rao, and the builder complete the construction work and delivered the share of late Sri.P.Srinivasa Rao to the plaintiff, his father and younger brother. After completion of builders work, the plaintiff and his family members out of their personal and joint family funds constructed two flats on the 5th floor i.e., flat No:501 and 502 which were completed by 2004 respectively, and in the month of August 2014, the plaintiff and his family members separated and divided the joint family properties in between them and other properties, the plaintiff got flat No:502 towards his share i.e., the schedule property.
(f) The counsel for the plaintiff further contended that there is no truth in the version of the defendant that the builder has given the portion of the suit flat to the wife of defendant by taking the sale consideration as alleged by the defendant, and the builder has nothing to do with the suit flat and it was not even covered by the development agreement entered between the grandfather of plaintiff and M/s.Shilpa Homes. The plaintiff and his family members with their own funds constructed the flat No.501 and 502 over the 5th floor of the building and enjoying the same as absolute owners. The builders has not entered any development agreement with the plaintiff and his family members after the death of his grant father for construction of pent houses, and after death of Late P.
Srinivas Rao Ex.B2 GPA is invalid and the said builder cannot entered into any agreement with any third parties without the consent of the plaintiff and his family members and the alleged completion agreement is forged and bogus, and it is created to show that wife of the defendant was entered the alleged completion agreement on 16-04- 1997, therefore, there is no iota of truth in the version of the of the defendant, and the defendant cannot claim any right or title and ownership against the suit flat in whatsoever manner. Ex.B1 and Ex.X.1 are Photostat copies and said 18
Fair O.S.No.1584-2014 documents not played evidentiary value in eye of law.
(g) The counsel for the plaintiff further contended that the
Assistant City Planner, GHMC was examined as CW1 and thereafter, the defendant filed another application to summon the official of A.P. Mahesh
Cooperative Urban Bank Limited, Head Office, Begum Bazar, Hyderabad to cause production of all original documents including Agreement dated 16.04.1997, Acknowledgment dated 23.01.2002 and receipt dated 27.08.1998 issued by the GHMC for BRS pertaining to pent house and this
Court allowed the said applications, and the Law Officer of A.P. Mahesh
Co-operative Urban Bank Limited, Head Office, Begum Bazar, Hyderabad was examined as CW2 and however the relief sought by the defendant in both the applications were not heed and the witnesses examined as CW1 and CW2 and they have not produced any documents much less the documents sought to be produced in the aforesaid application and marked the Photostat copies of BRS receipt, dated 29.12.1998, receipt 27.08.1998 and agreement dated 16.04.1997 confronted by the counsel for the defendant at the time of examination of the said witnesses and said
Photostat copies are not admissible in evidence and the said documents have no sanctity nor validity under law to substantiate the defense raised by the defendant.
(h) The counsel for the defendant contended thatthe defendant's wife namely Dr.B.Sujatha purchased the pent house bearing flat No:502 on 5th floor, admeasuring 3730 sft with an undivided share of land 52.2 sq.yards by entering into an agreement of construction dated 16.04.1997 by paying entire sale consideration of Rs.15,00,000/- under Ex.X4 and the physical possession of the pent house was delivered to his wife by M/s.
Shilpa Homes represented by PVSN Murthy . Since then the family of the defendant is residing in the pent home without being any interruption or objection or claim from anybody. After execution of the construction, the defendant wife had handover the original agreement to PVSN Murthy for the purpose of availing building regulation scheme for the said pent house 502, since the said pent house was constructed over and above, the permitted floor builder submit an application for regulation of the pent house bearing 502 to then MCH for availing the provisions of Go MS 419 19
Fair O.S.No.1584-2014
MA dated 30.07.1998 duly paying the required charges to MCH. In view of the pending of the BRS application for regulation of the pent house flat No.
502 with MCH, M/s.Shilpa homes to wait for the execution of the registered sale deed in favour of the defendant wife in respect of the said pent house. Therefore, the wife of the defendant was waiting for execution of the sale deed in her favour and in the meantime she went to abroad.
(i) The counsel for the defendant further contended that after the death of P.Srinivas Rao, the builder hand over the 6 flats to P.Ramakrishna
Rao including pent house which were fallen to the share of late P.Srinivas
Rao and the said P.Ramakrishnna Rao had acknowledged the allotment of the respective shares of the flats between himself and the builder in writing on 23.01.2002, thus the suit schedule property was fallen towards the share of builder. The plaintiff who is the son of the P.Ramakrishna Rao having well aware of all the facts, but deliberately and with oblique motive got issued a notice under section 106 of TP Act by suppressing all the fact, therefore, the plaintiff has nothing to do with the suit schedule property as he is stranger to the same, and M/s. Shilpa Homes represented by PVSN
Murthy behind their back had deposited the original documents pertaining to Pent house No:502 and the flat No:204 which belongs to the wife of the defendant along with all document with AP Mahesh cooperative Urban
Bank Limited and obtained the loan of Rs.50 Lakh by playing fraud and also by creating false partnership duly misrepresent that Dr.B.Sujatha was one of the partner. As M.Shilpa Homes committed default in repayment of said loan amount to the bank, AP Mahesh cooperative Urban Bank Limited initiated recovery proceedings against the M/s.Shilpa Homes and others and the defendant wife vide ARC No:50383/2001 – L1, the defendant came to know about the fraud played by the PVSN Murthy when he received the notice form joint register of cooperative society in the year 2002. In the said proceedings property has shown at schedule II of the said case. Soon after the notice, the defendant has made a representation to the bank bring to their notice that his wife is no way concern with the said loan transaction and fraud played by M/s Silpa homes in creating and fabricated the false partnership deed by depositing the same obtained the said loan, and upon the representation submitted by the defendant and 20
Fair O.S.No.1584-2014 also perusal of the document, the bank authorities not insisted his wife with regard to the recovery of the said loan amount, therefore, the question of the recovery of the possession of suit schedule property does not arise at all and the plaintiff approached the court with unclean hand usurp and valuable property.
(j) The counsel for the defendant further contended that the defendant emphasized with regard to the said documents in the written statement and he has possession of the Photostat copy of the all the documents, therefore, on summoning by this court, the assistant city planning officer got examined as CW1 and got marked Ex.X1 to Ex.X3 and the legal officer of A.P.Mahesh Cooperative Urban Bank Limited got examined as CW2 and got marked Ex.X4 to Ex.X6.
(k) There is a core point in this case is whether the builder
M/s.Shilpa Homes represented by PVSN Murthy constructed the pent houses on 5th floor by ratio of 40:60 % as per development agreement dt.
21.05.1994 under Ex.B1 as stated by the defendant is correct or not.
(l) Admittedly, in this case, the defendant try to impress upon this court that the contents of Ex.B1 prima facie shows that that the Late
P.Srinivas Rao and a builder agreed for construction of the pent house on the 5th floor. The clause No.12 of Ex.B1, itself crystal clearly established that extra floors if any constructed over and above agreed area shall be shared at the ratio of 40:60 between the Late P.Srinivas Rao and the builder. As could seen from the evidence of PW1, in his cross examination
PW1 stated that his grandfather enter into the development agreement in respect to suit schedule property with M/s.Shilpa Homes represent by
PVSN Murthy in the year 1994, and he has gone through the contents of
Ex.B1 and he is one of the witness of the said document and he was aware of the clause 7 (a) and (b) of Ex.B1 and the landlord was entitled 40% share in supers built up area and the builder was entitled for 60% share in built up area and he was not disputing the clause 22 of Ex.B1 so also in clause No.I of Ex.B2, and accordingly to him the builder completed the construction the apartment in the month of September 1999 and as per the plan out of 16 flats they got 6 flats towards their share. Admittedly,
PW.1 denied the suggestion put forth by defendant that as per clause 21
Fair O.S.No.1584-2014
No.12 of Ex.B1, the flat No.502 fallen to share of the builder and flat
No.501 fallen to share of his grandfather and No.502 sold by the builder to the defendant in year 1997.
(m) In this aspect, there is serious suspicious circumstance appear on record in which circumstance the wife of the defendant has not obtained the regular registered sale deed form the builder from 1997 to till today, and there is no tangible explanation offered by the defendant about this aspect. In this aspect, the defendant not placed any ample and concrete evidence to show in what purpose and circumstance his wife not obtained registered sale deed in respect of suit schedule property form the builder from 1997 to till today. Moreover, in this case, defendant stated in his evidence that after the death of P.Srinivas Rao, the builder hand over the 6 flats to P.Ramakrishna Rao including pent house 501 which were fallen to the share of late P.Srinivas Rao and the said P.Ramakrishnna Rao had acknowledged the allotment of the respective shares of the flats between himself and the builder in writing on 23.01.2002, thus the pent house No:502 was fallen towards the share of builder. No doubt, the said contention itself establish after death of Late P. Srinivas Rao Ex.B2 GPA is invalid as such, the builder cannot entered into any agreement with the wife of the defendant or any third parties without the consent of the
P.Ramakrishnna Rao. Further, the defendant failed to place any such document to show that the P.Ramakrishnna Rao had acknowledged the allotment of the respective shares of the flats between himself and the builder in writing on 23.01.2002, and the pent house No.502 was fallen towards the share of builder. In the above said aspects, the defendant has not placed any satisfactory explanation, therefore, this court of the considered view that basing on Ex.B.1 and Ex.X.4, the wife of the defendant did not acquired as absolute title and ownership over the suit schedule property, and also it cannot be said that as per the clause No.12 of Ex.B1 extra floors if any constructed over and above agreed area shall be shared at the ratio of 40:60 between the Late P.Srinivas Rao and the builder. Further, the defendant failed to place any such documents to show builder PVSN Murthy himself constructed the pent house No. 502 on the 5th floor unauthorizingly.
22
Fair O.S.No.1584-2014
(n) Further, there is another suspicious circumstance appears on record that PW1 stated that himself andhis family members started the construction of the pent houses i.e., flat No:501 and 502 in the year 2002 and completed the construction in the year 2004. Admittedly, PW.1 did not placed any material evidence before this court either himself nor his father and family members started the construction of the pent houses i.e., flat
No:501 and 502 in the year 2002 and completed the construction in the year 2004. In the absence of such any either oral or documentary evidence placed by the plaintiff , this court has no option to disbelieve the version of the plaintiff. Therefore, this court comes to the firm opinion that the father of the plaintiff is a competent person to depose the fact of the case, and the plaintiff failed to examine his father P.Krishna Rao to substantiate his contention, it is best known by him. In the above said aspect, the plaintiff has not placed any satisfactory explanation, therefore, this court of the considered view that basing on Ex.A.3, the plaintiff did not acquired as absolute title and ownership over the petition schedule property and other properties after the death of his grandfather.
(o) On careful perusal of the entire material record and also arguments advanced by the counsel for both parties in consonance with oral and documentary evidence placed by the both parties, in this case, the defendant contended that his wife namely Dr.B.Sujatha purchased the pent house bearing flat No:502 in 5th floor, admeasuring 3730 sft with an undivided share of land 52.2 sq.yards by entering into an agreement of construction dated 16.04.1997 by paying entire sale consideration of
Rs.15,00,000/-and after execution of the completion agreement, the defendant wife had handover the original agreement to PVSN Murthy for the purpose of availing building regulation scheme for the said pent house 502 and builder submit an application for regulation of the pent house bearing 502 to then MCH for availing the provisions of Go MS 419 MA
dated 30.07.1998 duly paying the required charges to MCH. Further, the
plaintiff strongly relied Ex.A4 and A6 to show that he is paying electricity charges and property tax in respect of the suit schedule property.
(q) When once the defendant took a specific pleas in the written statement, the burden heavily lies upon the him to prove the stand taken 23
Fair O.S.No.1584-2014 in the written statement and evidence of DW1 and disprove the contention of the plaintiff. On careful perusal of cross examination CW1, he stated that EX.X1 is computer generated copy and he has not brought the entire record book containing to Ex.X1 as it was not traceable. It is state that af- ter obtaining the generated copy of the computer trying to every the same by comparison with the original and the said file could not be traced out and he cannot say the file no.4511 or rejected or approved and he stated that at the time of computerized, the head office GHMC entered all the in- formation pertaining to BRS and other records, basing on that the employ- ees of GHMC entered the file name , date and person to applied the BRS scheme. Ex.X2 and Ex.X3 does not containing the flat numbers and extent of the flat.
(p) On proper appraisal and analysis entire material on record and evidence of CW.1, there is another suspicious circumstances appears on record that, if really, the defendant is residing in the suit schedule property since 16.04.1997 onwards, why he did not obtained the electricity connection in the name of his wife or in his name, and the defendant has not placed any evidence to show that he is regularly paying electricity charges in respect of the suit schedule property since 16.04.1997 onwards.
In this aspect, there is no proper explanation is offered by the defendant.
Moreover, the defendant has not assigned cogent explanation for which purpose and circumstance he did not take any steps and pain for regulation of the pent house bearing No: 502 from GHMC duly paying the required charges to GHMC after 1998 in the name of his wife. In this aspect there is no proper explanation is offered by the defendant. Admittedly, the plaintiff also not placed any record to show that pent houses i.e., flat No:501 and 502 are muted in the municipal record in his name and in the name of his brother before filing of the suit. Basing on Ex.X1 to Ex.X3, it cannot be said that PVSN Murthy builder submit an application for regulation of the pent house particularly bearing No:502 to then MCH for availing the provi- sions of Go MS 419 MA dated 30.07.1998 duly paying the required charges to MCH. Further, the plaintiff failed to placed any material evidence before this court either himself nor his father and members started the construc- tion of the pent houses i.e., flat No:501 and 502 in the year 2002 and 24
Fair O.S.No.1584-2014 completed the construction in the year 2004, but he relied Ex.A6. Admit- tedly, the plaintiff not placed any record to show that pent houses i.e., flat
No:501 and 502 are muted in the municipal record in his name and in the name of his brother before filing of the suit. Therefore, paying property tax in respect of the suit schedule property under Ex.A6 is doubtful and suspi- cious. In above aspect, the both parties have not placed any ample and concrete evidence to show in which circumstance name of plaintiff was not mutated in the municipal record and so also what purpose and reasons the name of wife of the defendant was not mutated in the municipal record.
Admittedly both parties not remove the said suspicious doubt by adducing apparent and satisfactory evidence.
(q) Further, this court do not have any doubt and suspicious that wife of the defendant purchased the flat No:204 from M/s.Shilpa Homes represent by PVSN Murthy under two different sale deeds under Ex.B3 and
B4, and same admitted by the defendant. In such circumstances, the bur- den heavy lies upon the defendant has to remove the said suspicious doubt by adducing clear and satisfactory evidence. In this aspect, there is no proper explanation is offered by the defendant in what situation and cir- cumstance his purchased the flat No:204 from builder under two different sale deeds i,e under Ex.B3 and B4.
(r) Admittedly, in this case, the defendant try to impress on this court that M/s. Shilpa Homes represented by PVSN Murthy behind their back had deposited the original documents pertaining to Pent house
No:502 and flat No:204 which belongs to the wife of the defendant along with all document with AP Mahesh cooperative Urban Bank Limited and ob- tained the loan of Rs.50 Lack by playing fraud and also by creating false partner duly misrepresent that Dr.B.Sujatha was one of the partner. As
M.Shilpa Homes committed default in repayment of said loan amount to the
AP Mahesh cooperative Urban Bank Limited initiated recovery proceedings against the M/s.Shilpa Homes and others and the defendant wife vide ARC
No:50383/2001 – L1, and the defendant came to know about the fraud played by the PVSN Murthy when he received the notice form joint registry of cooperative society in the year 2002, and the said proceedings property 25
Fair O.S.No.1584-2014 has shown at schedule II of the said case. Soon after the notice the defen- dant has made a representation to the bank bring to their notice that his wife is no way concern with the said loan transacting and fraud played by
M/sSilpa homes in creating and fabricated the false partnership deed by depositing the same obtained the said loan.
(s) On careful perusal of the cross examination CW2, he stated that the property covered under Ex.X6 was mortgage by
Dr.B.Sujatha in respect of the loan transaction held by the M/s.Shilpa
Homes represented by PVSN.Murthy as guarantor and there is no reference in Ex.X6 in respect of the property flat No.204 and also with regard to the subject matter of the suit property. The schedule property shown in Ex.X6 referred to in Ex.X5 is addition pent house is added, the proceeding under
Ex.X5 is initiated in the year 2001 and he never visited the properties covered under Ex.X5 and he has no personal knowledge about the item
No.2 of the schedule property and there is no mention of flat numbers, door numbers in Ex.X6. On proper appraisal and analysis of evidence of
CW.2 along with item No.2 of the schedule property of Ex.X5, it cannot be said that PVSN Murthy builder had deposited the original documents pertaining to Pent house No:502, but he deposited the property covered under Ex.B3 which belongs to the wife of the defendant along with other document with AP Mahesh cooperative Urban Bank Limited and obtained the loan of Rs.50 Lack. Further, the defendant failed to placed any material evidence before this court that PVSN Murthy builder had deposited the original documents pertaining to Pent house No:502. Further schedule property mentioned in Ex.A3 and Ex.X.6 is one and same. On careful perusal of Ex.A2, as per the version of the PW1 is flat No:501 and 502 constructed by the him and family members, but there is no such recitals mentioned in Ex.A2 to show that themselves started the construction of the pent houses i.e., flat No:501 and 502 in the year 2002 and completed the construction in the year 2004. Therefore, construction of the pent houses i.e., flat No:501 and 502 by the plaintiff is doubtful and suspicious.
(t) On careful perusal of the entire material on record along with above suspicious circumstances as noted above, one thing is very much crystal clear that there is a serious title dispute between the plaintiff and 26
Fair O.S.No.1584-2014 defendant. Moreover, the plaintiff failed to establish that there is a jural relationship with the defendant on the date of filing of the suit. Admittedly, the evidence of PW.1 and DW1 did not inspire the confidence of this court that there is a substantiate contention as stated by them in the plaint and written statement . On overall assessment of the entire material evidence available on record, this court is of the considered view that the both parties have not derived any kind title over the suit schedule property to show that they are the absolute owner of the schedule property and all the suspicious circumstances as noticed above are removed only by civil court.
In the absence of any such solid and concrete documentary evidence placed by the both parties to substantiate their contention, this court not in a position to give helping hand to them to accept their contentions. Hence, these points are answered according.
11. POINTS NO: 10 TO 16:
10.Whether the defendant obtained the suit schedule flat under orally lease as stated by the plaintiff is correct? 11.Whether the defendant regularly paying the rents to the father of the plaintiff
before partition of the they joint family properties?
12.Whether the defendant residing in the suit schedule property since 1998 or since 2008 as a tenant?
13. Whether there is a jural relationship between the plaintiff and defendant as on the date of filing of the suit?
14. Whether the defendant malafidely or bonafidely denied the title of the plaintiff? Whether the quit notice issued by the plaintiff is valid and binding upon the defendant?
15. Whether the defendant has placed a prima facie evidence to prove that denial of title of the petitioner by him is bonafide, then it is incumbent on the part of this court to direct the plaintiff to approach the civil court to establish his title and seeking eviction of the tenant/defendant ?
16. Whether the plaintiff entitled for eviction of the defendant as prayed for?
(a) On careful perusal of the written statement filed by defendant and the evidence of DW1, no doubt the contents of the written statement appears that the defendant has seriously disputing the title and jural relationship of the plaintiff and also several allegations alleged in the written statement. Therefore, this court clubbed the above points for proper adjudication of the matter and to remove the controversies between the parties for better disposal of the case. Further, all these issues were interlinked one, hence, I have taken the above issues together for my consideration in order to avoid repetition of reasons and replica.
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Fair O.S.No.1584-2014
(b)Before embarking on the facts of the case, it is very much necessary to discuss factual matrix of the case is whether the defendant bonafidely or malafidely denied the jural relationship and title of the plaintiff. On careful perusal of entire material on record, one of the foremost ground of the defendant is that he denied the jural relationship and title of the plaintiff. As such, the burden heavy lies upon the plaintiff to prove his claim as stated in the plaint and in his evidence by adducing sufficient oral and documentary evidence.
(c) Further, there is a core point in this case is whether the defendant obtained the suit schedule property from the father of the plaintiff as a tenant. Admittedly, there is no such pleading in the plaint that on which year, the defendant had obtained the suit schedule property from the father of the plaintiff. However, in the cross examination PW1 stated that in the year 2008, the defendant took a suit schedule property from his on oral lease. In the absence of such pleading in the plaint about the date of inception of tenancy, it appears that there is a serious suspicious circumstance on the version of PW1 and the suit schedule property obtained by the defendant from the father of the plaintiff on oral lease in the year 2008 is doubtful.
(d)Further, in this case, the plaintiff contended that before lease out the suit schedule property to the defendant, some third party obtained the suit schedule flat. Admittedly, the plaintiff failed to file any documentary proof to show that prior to the defendant one person had obtained the schedule property on lease. Moreover, the plaintiff failed to place the name of the third person in the plaint and in the evidence of PW1 who obtained the schedule premises prior to the defendant. In this aspect, the plaintiff utterly failed to prove his stand as pleaded in the plaint and in his evidence. It is an admitted fact that the plaintiff claimed to be right and title basing on the partition deed in the year 2014 under Ex.A2 . It shows that prior to the 2014 all the transaction done by the father of the plaintiff only. Admittedly, the plaintiff utterly failed to examine the so called third party who obtained the premises prior to the defendant and also plaintiff failed to examine his father to prove the case set up by the plaintiff. Non examination of the father of the plaintiff and so called third party who 28
Fair O.S.No.1584-2014 obtained the premise prior to the defendant is undoubtedly fatal to the case of the plaintiff.
(e)Further, in this case, the defendant mainly contended that he is residing in the suit schedule property along with family by virtue of sale agreement by executing the builder PVSN Murthy in favour of his wife since 1998 onwards and he performed his daughter and son marriage in the suit schedule property. To substantiate his contention, he strongly relied Ex.B5 to Ex.B13, but those documents are not confirmed the title of the defendant. When the defendant placed a prima facie strong evidence under
Ex.B5 to Ex.B14 to show that he is in possession of the suit schedule property prior to 2008. Therefore, the burden heavily lies upon the plaintiff to disprove the contention of the defendant by adducing sufficient, cogent and ample evidence. Admittedly, the plaintiff utterly failed to prove that the defendant is in occupation of the suit schedule property as a tenant since 2008. In absence of any documents placed by the plaintiff, this court is not in a position to accept that the defendant regular paying the rent to the father of the plaintiff till August 2014.
(f) On careful perusal of the entire material on record along with oral and documentary evidence placed by both parties herein, in this case, the plaintiff and his family members started the construction of the pent houses i.e., flat No:501 and 502 in the year 2002 and completed the construction in the year 2004. Admittedly, PW.1 did not placed any material evidence before this court either himself nor his father and members started the construction of the pent houses i.e., flat No:501 and 502 in the year 2002 and completed the construction in the year 2004, and also not stated in not stated in the plant. In the absence of such any either oral or documentary evidence placed by the plaintiff , this court has no option to disbelieve the version of the plaintiff. On proper analysis of the entire material on record including Ex.A2, there is a suspicious circumstance appear on record that when the flat No:501 and 502 constructed by the plaintiff and family members and there is no such averments mentioned in Ex.A2 that whom construct the flat No:501 and 502 and on which year the said flats constructed by the plaintiff and his family members and also source of income. On proper appraisal of the 29
Fair O.S.No.1584-2014
Ex.A2, it is crystal clearly established that Ex.A2 is created only for the purpose of the suit. Therefore, basing on Ex.A2, the plaintiff cannot derived any kind of title over the suit schedule property and the title of the plaintiff is in cloud and fog end. It is, therefore, this court come to firm opinion that there is no foundation in plaint pleadings. Expect the oral statement of
PW1, did not inspire the confidence of the court to believe that the stand taken by the plaintiff is thrust worthy. Moreover, the plaintiff failed to establish that there is a jural relationship with the defendant as on the date of filing of the suit. This a suit filed by the plaintiff under TP Act, as such, this court very limited to ascertain whether there is a jural relationship existing between the parties or whether the defendant bonafidely or malafidely denied the title of the plaintiff. Admittedly, the evidence of PW1 did not inspire the confidence of this court that he is the absolute owners of the suit schedule property as on date of filing of suit and the defendant he is in possession and enjoyment of the schedule property as tenant and he is paying rent. In the absence of any such solid and concrete documentary evidence placed by the plaintiff, this court not in a position to give helping hand to the plaintiff to accept his contentions.
(g) In the light of the aforesaid reasons and discussion and by considering all the facts and circumstances in consonance with the oral and documentary evidence placed by both parties, this court has no option except to arrive to the conclusion the plaintiff failed to establish his claim either by way of oral and documentary evidence. Moreover, this court already observed in points No. 4 to 9 supra that there is fog end and cloud in the title of both parties. Moreover, the plaintiff has not produced convincing evidence with regard to his stand taken in the plaint. It is, therefore, this court come to the inescapable conclusion that the defendant bonafidily denied the title and jural relationship with the plaintiff . Further, this court come to the irresistible conclusion that the defendant has placed any prima facie evidence to show the denial of the title of the plaintiff by him is bonafide, therefore, it is incumbent on the part of this court to direct the plaintiff to approach the civil court to establish his title and seeking eviction of the defendant. The points are answered according.
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12. Issue No.6 :
Whether the suit is bad for non joinder for necessary parties?
On careful perusal of the entire material on record and marshaling and appreciation of the evidence of both parties, this court come to firm opinion in point No.1 to 16 that the title of the plaintiff is in question and there is no jural relationship between the plaintiff and defendant as tenant and landlord in respect of suit schedule property.
Therefore, there is no necessity and compulsion to this court to answered the issue No.6. Hence, this issue is answered accordingly.
13. Issue No.7 : ( To what relief)
In the light of the above foregoing discussion in points no.1 to
16 in issues No.1 to 5 and by placing impeachable and scintilla evidence of both parties, this court do not have any hesitation to hold that the plaintiff has failed to prove his case to the satisfaction of the court in all angles, as such, the suit of the plaintiffs is liable to be dismissed.
In the result, the suit is dismissed without costs.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court on this the 25th day of April , 2017.
IV Senior Civil Judge City Civil Court, Hyderabad.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff For Defendant
PW1: Pagidimarri Venkat KrishnaDW1:Shreedhar Reddy
CW1: P.Jagan Mohan.
CW2: A.Suryanarayana.
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DOCUMENTS MARKED FOR PLAINTIFF
Ex.A1:06.10.2014O/C of Legal notice.
Ex.A2:20.08.2014CC f partitioned deed.
Ex.A3:24.100.2014Reply notice.
Ex.A4:08.11.2014Original Electricity Bill.
Ex.A5:23.09.2014EC of the suit flat.
Ex.A6: -Property tax for year 2014-15.
DOCUMENTS MARKED FOR DEFENDANT
Ex.B1:21.05.1994Photostate Copy of Development agreement.
Ex.B2: 23.05.1994Photostate Copy of Registered GPA.
Ex.B3:09.01.1995CC of sale deed.
Ex.B4:03.04.2000CC of sale deed.
Ex.B5:17.08.2005Wedding Invitation Card.
Ex.B6:17.08.2005Wedding Invitation Card.
Ex.B7:18.07.2005Invoice.
Ex.B8:26.07.2005Vehicle insurance cover.
Ex.B9:09.08.2005Certificate cum policy schedule.
Ex.B10:- Health Insurance Policy certificate.
Ex.B11:-Vehicle certificate of registration.
Ex.B12:26.10.2006Insurance policy with envelope.
Ex.B13:-Certificate cum Motor vehicle insurance.
Ex.B14:17.11.2014O/c of representation.
Ex.B15:29.11.2014Reply from AP.Mahesh Cooperative bank.
Ex.X1:-O/c of BRS.
Ex.X2:-Receipts.
Ex.X3:-Receipts.
Ex.X416.04.1997Agreement.
Ex.X5-Arbitration R.C.No:50383/2001-L1.
Ex.X619.01.1995Sale deed Doc.No:286/1995.
IV Senior Civil Judge City Civil Court, Hyderabad 32
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