Sri Mohd Bande Ali

IN THE COURT OF THE I SENIOR CIVIL JUDGE

CITY CIVIL COURT, AT HYDERABAD.

Dated:Monday the 22 nd day of April, 2013

PRESENT: SRI MOHD. BANDE ALI, B.Sc., LL.B. ,

I Senior Civil Judge

O.S.No. 55 of 2009

Between:

Mohd. Gaziuddin Iqbal …Plaintiff . A N D

1. Mohd. Afzal Ali Khan

2. Ali Mohammed

3. Mohd. Iftekhar Ahmed Siddiqui … Defendants .

This suit came up for hearing on 14-03-2013 for disposal in the presence of Sri C. Balchand, Advocate for the plaintiff and of Sri.

Mohd. Hamid Ali, Advocate for the defendant No.1 and of

Sri. T.V.Rajeevan, Advocate for the defendant No.2 and 3 and the matter having been heard and stood over for consideration till this day, the Court delivered the following :

J U D G E M E N T

This suit is filed seeking declaration that the plaintiff is the absolute owner of shop bearing municipal No.17-2-1231/18/A measuring 14.4 sq.yards, situated at Rein bazar, Yakutpura,

Hyderabad which is morefully described in the schedule appended to the plaint and the same will be hereinafter referred as “the suit shop”; for recovery of Rs.3,500/- towards arrears of rent from May 2008 to November 2008 @ Rs.500/- per month with a direction to continue to pay monthly rent of Rs.500/- from the month of December 2008 onwards and for cost.

2.The brief averments of plaint are that the plaintiff is the absolute owner and possessor of the property bearing municipal

No.17-2-1231/18, 17-2-1231/19 and 17-2-1231/20 measuring 150 sq.yards situated at Rein Bazar, Hyderabad, (for short “the said property”) having purchased the same from defendant No.2 under a registered sale deed bearing document No.2293 of 2008 dated 11-4- 2008. It is further submitted that originally defendant No.3 was the absolute owner and possessor of the above mentioned property situated at Rein Bazar, Hyderabad having acquired the same under a registered gift deed bearing document No.1791 of 1985. The defendant No.3 sold the said property to defendant No.2 under a registered sale deed bearing document No.3082 of 1985 dated 8-11- 1985.

3.The said property consists of shop on the front side with open area on the rear side. It is further submitted that the defendant

No.1 is in occupation of suit shop, which was part and parcel of shop bearing municipal No.17-2-1231/18. Later a separate portion was carved out of the said shop which was allotted municipal No.17-2- 1231/18/A.

4.It is further submitted that defendant No.1 acknowledged the sale of property in favour of defendant No.2 by defendant No.3.

By the date of purchase of the said property by defendant No.2, different portions of the property were under occupation of different tenants and as such the defendant No.2 was put in of the constructive possession of the said property. Shop bearing municipal No. 17-2- 1231/18 was in occupation of the plaintiff. Shop bearing municipal

No.17-2-1231/18/A was in occupation of defendant No.1, shop bearing municipal No.17-2-1231/19 was in occupation of one Mohd Waheed and shop bearing municipal No.17-2-1231/20 was in occupation of one

Syed Massod Ahmed as tenants.

5.While the matter stood thus defendant No.1 filed suit for specific performance against the defendant No.3 in O.S.No.407 of 2004 on the file of X Senior Civil Judge, City Civil Court, Hyderabad in respect of the suit shop. Defendant No.3 in his written statement filed in the said suit, while denying the suit agreement of sale dated 9-2- 1999 made it clear that he sold the suit shop to defendant No.2 on 8- 11-1985 .

6.The plaintiff stated to have addressed letter dated 21-4- 2008 to defendant No.1 intimating him to have purchased the above referred property. He was also informed that defendant No.2 has attorned the tenancy of defendant No.1 in favour of the plaintiff. The plaintiff therefore stated to have requested the defendant No.1 to remit the rent of the suit shop to him from the month of May 2008 onwards. Defendant No.2 has also addressed letter to defendant No.1 informing him about the sale of the said property and requesting him to pay rent to the plaintiff from the month of May 2008 onwards. It is thus submitted that the defendant No.1 has knowledge about the fact of plaintiff becoming owner of the suit shop.

7.It is further submitted that defendant No.1 by his letter

dated 9-5-2008 informed the plaintiff that he was not the tenant of

defendant No.2 but he was the tenant of defendant No.3, who agreed to sell the suit shop and he has received the total sale consideration.

The defendant No.1 stated to have further informed the plaintiff that he was in possession of the suit shop as agreement holder but not as tenant. Defendant No.1 also addressed similar letter to defendant

No.2. It is alleged that defendant No.1 and 3 colluded together to knock away the suit shop.

8.It is further submitted that the defendants have no right or title and interest in the suit shop. Defendant No.1 is a tenant of the suit shop and he is liable to pay the rent to the plaintiff. Defendant

No.1 is in arrears of rent of Rs.3,500/- from the month of May 2008 to

November 2008 @ Rs.500/- per month. Hence the suit.

9.Defendants 1 to 3 filed their separate written statements.

10.Defendant No.1 in his written statement denied the ownership and possession of the plaintiff in respect of the suit property. It is further submitted that defendant No.3 is the absolute owner of the entire property. The defendant No.1 was the tenant of defendant No.3, who offered to sell the suit property for a consideration of Rs.1,50,000/-. This defendant having accepted the said offer alleged to have entered into an agreement of sale dated 9-2- 1999 with the defendant No.3 and paid an amount of Rs.1,00,000/- towards earnest sale consideration. The third defendant stated to have agreed to continue possession of this defendant in the suit shop free of rent till registration of the sale deed. On 1-5-2002 this defendant stated to have paid an amount of Rs.50,000/- towards balance sale consideration under a receipt.

11.It is further submitted that neither defendant No.3 nor his brother Mohd Imtiyaz Ahmed Siddiqui disclose anything about the alleged sale in favour of defendant No.2. Therefore this defendant contended that the documents allegedly executed by the defendant

No.3 in favour of defendant no.2 are sham documents and do not create title in favour of defendant No.2. This defendant stated to have filed O.S.No.407 of 2004 on the file of X Senior Civil Judge, City Civil

Court, Hyderabad for specific performance of contract.

12.It is further submitted that the plaintiff had knowledge about the agreement of sale in favour of this defendant and also about the pendency of O.S.No.407 of 2004. This defendant denied his liability to pay an amount of Rs.3,500/- towards arrears of rent from

May 2008 to November 2008. Hence prayed the court to dismiss the suit.

13.Second defendant while admitting the ownership of possession of the defendant No.3 in respect of the entire property contended to have purchased the same from the third defendant. This defendant further admitted to have sold the entire property including the suit shop to the plaintiff through his GPA. This defendant also admitted filing of suit in O.S.No.407 of 2004 by defendant No.1. The defendant No.3 herein stated to have filed his written statement in

O.S.No.407 of 2004 informing the sale of the property on 8-11-1985 in

favour of this defendant. This defendant stated to have informed defendant No.1 about the attornment of tenancy infavour of plaintiff.

This defendant admitted the other averments of plaint except the allegation of collusion between the defendant No.1 and 3. It is further submitted that reliefs sought by the plaintiff cannot be granted against this defendant. Hence prayed the court to dismiss the suit .

14.Third defendant adopted the written statement of defendant No.2.

15.Basing on the above pleading this court framed the following issues on 15-4-2011.

1) Whether the plaintiff is entitled to be declared as absolute owner of the suit schedule property as prayed for ?

2) Whether the plaintiff is entitled to recover Rs.3,500/- towards arrears of rent from May 2008 to November 2008 from the defendant No.1 as prayed for ?

3) To what relief ?

16.The plaintiff to prove his case examined himself as PW1 and got marked Exs.A1 to A6. The first defendant examined himself as DW1 and got examined one Syed Masood Ahmed ( attestor of agreement and receipts) as DW2. Exs.B1 to B4 are marked on behalf of the first defendant. Defendants 2 and 3 did not choose to adduce any evidence on their behalf.

17. Heard both sides.

18. ISSUE NO.1:

Whether the plaintiff is entitled to be declared as absolute owner of the suit schedule property as prayed for ?

It is the case of the plaintiff that he is the absolute owner and possessor of the property bearing municipal No.17-2-1231/18, 17-2- 1231/19 and 17-2-1231/20 admeasuring 156 sq.yards situated at Rain

Bazar, Hyderabad having purchased the same from defendant No.2 under the original of Ex.A1 registered sale deed bearing document

No.2293 of 2008 dated 11-4-2008. It is also the case of the plaintiff that originally defendant No.3 was the absolute owner and possessor of the above mentioned property having acquired the same under a registered gift deed bearing document No.1791 of 1985. The defendant No.3 sold the said property to defendant No.2 under a registered sale deed bearing document No.3082 of 1985 dated 8-11- 1985. The second defendant in his turn sold the same to the plaintiff.

The suit shop is part and parcel of the above said property. Per contra the case of the defendant No.1 is that he purchased the suit shop from defendant No.3 under the original of Ex.B1 agreement of sale dated 9- 2-1999 for sale consideration of Rs.1,50,000/-. Defendant No.1 stated to have paid an amount of Rs.1,00,000/- under the original of Ex.B2 and the balance sale consideration of Rs.50,000/- under the original of

Ex.B3 receipt. It is very much clear from the written statement of defendant No.1 that he admitted the original ownership of defendant

No.3 in respect of the suit shop.

19.Defendant No.3 adopted the written statement filed by defendant No.2, wherein he (defendant No.2) claimed to have purchased the property bearing No.17-2-1231/18 , 17-2-1231/19 and 17-2-1231/20 admeasuring 156 sq.yards which includes the suit shop from defendant No.3 under the original of Ex.A1 sale deed. In such view of the matter, it becomes abundantly clear that defendant No.3 admitted to have sold the said property including the suit shop in favour of defendant No.2. Though defendant No.3 did not choose to deny the execution of the original of Ex.B1 agreement of sale and receipt of sale consideration under the original of Ex.B2 and B3 receipts by filing his independent written statement, but he denied the same through the written statement of defendant No.2.

20.PW1/plaintiff filed his affidavit of chief examination reiterating the averments of plaint. Learned counsel for the defendant No.1 cross examined Pw1 but failed to elicit any material to disbelieve and discredit his testimony . It was merely suggested to

PW1 that the original of Ex.A1 is sham document and that the plaintiff has no right over the suit shop. On the other hand DW1/defendant

No.1 in his cross examination categorically admitted that he did not make any independent enquiry with others regarding the title of defendant No.3. DW1 volunteered that he believed the words of the defendant No.3 and the copy of gift deed provided to him by defendant No.3. He also admitted that he did not check and verify the encumbrance of the suit property from the office of registration at the time of entering into the alleged Ex.B1 agreement of sale. A perusal of Ex.A1 certified copy of sale deed bearing document No.2293 of 2008 clearly indicates that defendant No.3 who acquired the said property under a registered gift deed bearing document No.1791 of 1985, sold the same to defendant no.2 under a registered sale deed bearing document No.3082 of 1985. It is also an admitted fact that the said property includes the suit shop. Defendant No.1 did not choose to adduce any evidence to substantiate that the defendant

No.3 was the owner of the suit shop by the date of alleged Ex.B1 agreement of sale. In view of categorical admission of defendant No.3 through the written statement of defendant No.2 to have sold the property bearing municipal No.17-2-1231/18, 17-2-1231/19 and 12-7- 1231/20 to defendant No.2 under the original of Ex.A1 sale deed and in view of the categorical admission of defendant No.1 that he did not check and verify the encumbrance over the suit shop allegedly purchased by him under the original of Ex.B1 agreement of sale dated 9-2-1999, it become clinchingly clear that defendant No.3 has sold his property including the suit shop to the defendant No.2 and hence had no right to sell the suit shop to the defendant No.1. It can therefore be held that the original of Ex.B1 agreement of sale is of no avail to defendant No.1 to claim his right and title over the suit shop. The evidence of plaintiff/PW1 coupled with the admission of defendant

No.3 to have sold the said property which includes the suit shop to defendant No.2, who in his turn sold the same to plaintiff under the original of Ex.A1 sale deed clinchingly establish the right and title of the plaintiff over he suit shop. I am therefore inclined to hold that the plaintiff is the absolute owner of the suit schedule property.

21.Learned counsel for the defendant No.1 would submit that the original of Ex.A1 sale deed was brought into existence after filing of O.S.No.407 of 2004 by the defendant No.1 against defendant No.3 and hence the plaintiff cannot be held to be owner of the suit shop.

True, the original of Ex.A1 was executed during the pendency of

O.S.No.407 of 2004, but it remains a fact that the third defendant has

already sold the said property including the suit shop to defendant

No.2 under a registered sale deed bearing document No.3082 of 1985 much prior to the execution of the original of Ex.B1 agreement of sale

dated 9-2-1999 and as such he had no right and title over the said

property including the said shop. In such view of the matter the execution of the original of Ex.A1 sale deed in favour of the plaintiff by defendant No.2 during the pendency of O.S.No.407 of 2004 does not vitiate the said sale and the same does not confer any right on the defendant No.1 in respect of the suit shop. I am therefore inclined to hold that the said contention of the learned counsel of the defendant

No.1 is untenable. In view of all my foregoing discussion and findings it is manifestly and evidently clear that the plaintiff is the absolute owner of the suit schedule property and hence he can be declared as absolute owner of the suit schedule property. The issue is held accordingly in favour of the plaintiff .

22. ISSUE NO.2:

2) Whether the plaintiff is entitled to recover Rs.3,500/- towards arrears of rent from May 2008 to November 2008 from the defendant No.1 as prayed for?

It is the contention of the plaintiff that defendant No.1 is liable to pay arrears of rent of Rs.3,500/- from May 2008 to November 2008 @ Rs.500/- per month. It is an admitted fact that the defendant No.1 originally obtained the suit shop on lease from defendant No.3.

Defendant No.1 categorically pleaded in paragraph 4 of his written statement that defendant No.3 allowed him to continue his possession over the suit shop from the date of Ex.B1 agreement of sale till registration of sale deed by defendant No.3 in his favour. It can therefore safely be held that defendant No.1 had not been paying the rent of suit shop. Defendant No.1 in his cross examination admitted to have received Ex.A2 letter addressed by the plaintiff calling upon him to pay rent of the suit shop to him. Ex.A3 is the letter address by defendant No.2 to defendant No.1 attorning tenancy of suit shop in favour of the plaintiff and requesting the defendant No.1 to pay rent to the plaintiff . Defendant No.1 stated to have replied Ex.A2 under

Ex.A4 letter dated 9-5-2008. A perusal of Ex.A2 to A4 letter do not indicate the quantum of rent.

23.The plaintiff in paragraph 10 of the plaintiff categorically pleaded that the defendant No.1 is in arrears of rent to the tune of

Rs.3,500/- @ Rs.500/- per month. Defendant No.1 at the end of paragraph 11 of his written statement merely denied the alleged arrears of rent. Defendant No.1 neither in his written statement nor in his affidavit of chief examination disputed the quantum of rent @

Rs.500/- per month. PW1 in his cross examination stated to have learnt from defendant No.2 that defendant No.1 used to pay rent of

Rs.500/- to defendant No.2. In view of my foregoing discussion and findings, it becomes very much clear that defendant No.1 has not been paying rent of the suit shop. It also became very much clear that defendant No.1 did not dispute the quantum of rent. I am therefore inclined to hold that the defendant No.1 is liable to pay an amount of

Rs.3,500/- to the plaintiff towards arrears of rent from May 2008 to

November 2008. The issue is accordingly held in favour of the plaintiff .

24. ISSUE NO.3: To what relief ?

In the result, the suit of the plaintiff is decreed,

1) Declaring the plaintiff as absolute owner of the suit schedule property which is morefully described in the schedule appended to the plaint .

2) Directing the defendant No.1 to pay Rs.3,500/- to the plaintiff towards arrears of rent from May 2008 to November 2008.

3) In the circumstances of the case the parties are directed to bear their own cost.

Dictated to the Personal Assistant, transcribed and typed by her,

corrected and pronounced by me in the open Court on this 22 nd day of April, 2013.

I Senior Civil Judge City Civil Court, Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

PW1:Mohd. Gaziuddin Iqbal DW1: Mohd. Afzal Ali Khan DW2: Syed Masood Ahmed

DOCUMENTS MARKED FOR PLAINTIFF

Ex.A1: Original sale deed dt. 11-4-2008 bearing document No.2293 of 2008 executed by defendant No.2 in favour of plaintiff.

Ex.A2: Office copy of the letter dated 21-4-2008 issued by plaintiff to defendant No.1.

Ex.A3: Photostat copy of the letter dated 21-4-2008 issued by defendant No.2 to defendant No.1.

Ex.A4: Reply letter dated 9-5-2008 issued by defendant No.1 to plaintiff.

Ex.A5: Photostat copy of the letter dated 20-5-2008 issued by defendant No.1 to defendant No.2.

Ex.A6: Market value certificate dated 12-12-2008 issued by registration and stamps department .

DOCUMENTS MARKED FOR DEFENDANTS

Ex.B1: Certified copy of agreement sale dt. 9-2-1999.

Ex.B2: Certified copy of receipt dated 9-2-1999 .

Ex.B3: Certified copy of receipt dated 1-5-2002.

Ex.B4: Certified copy of declaration dated 1-5-2002.

I Senior Civil Judge City Civil Court,Hyderabad

IN THE COURT OF THE I SENIOR CIVIL JUDGE

CITY CIVIL COURT, AT HYDERABAD.

Dated:Monday the 22 nd day of April, 2013

PRESENT: SRI MOHD. BANDE ALI, B.Sc., LL.B. ,

I Senior Civil Judge

O.S.No. 56 of 2009

Between:

Mohd. Gaziuddin Iqbal …Plaintiff . A N D

1. Syed Masood Ahmed

2. Ali Mohammed

3. Mohd. Iftekhar Ahmed Siddiqui … Defendants .

This suit came up for hearing on 14-03-2013 for disposal in the presence of Sri C. Balchand, Advocate for the plaintiff and of

Sri. Mohd. Hamid Ali, Advocate for the defendant No.1 and of

Sri. T.V.Rajeevan, Advocate for the defendant No.2 and 3 and the matter having been heard and stood over for consideration till this day, the Court delivered the following :

J U D G E M E N T

This suit is filed seeking declaration that the plaintiff is the absolute owner of shop bearing municipal No.17-2-1231/20 measuring 15.1 sq.yards, situated at Rein bazar, Yakutpura, Hyderabad which is morefully described in the schedule appended to the plaint and the same will be hereinafter referred as “the suit shop”; for recovery of

Rs.3,500/- towards arrears of rent from May 2008 to November 2008 @ Rs.500/- per month with a direction to continue to pay monthly rent of Rs.500/- from the month of December 2008 onwards and for cost.

2.The brief averments of plaint are that the plaintiff is the absolute owner and possessor of the property bearing municipal

No.17-2-1231/18, 17-2-1231/19 and 17-2-1231/20 measuring 156 sq.yards situated at Rein Bazar, Hyderabad, (for short “the said property”) having purchased the same from defendant No.2 under a registered sale deed bearing document No.2293 of 2008 dated 11-4-2008. It is further submitted that originally defendant No.3 was the absolute owner and possessor of the above mentioned property situated at Rein Bazar, Hyderabad having acquired the same under a registered gift deed bearing document No.1791 of 1985. The defendant No.3 sold the said property to defendant No.2 under a registered sale deed bearing document No.3082 of 1985 dated 8-11-1985.

3.The said property consists of shop on the front side with open area on the rear side. It is further submitted that the defendant

No.1 is in occupation of suit shop as a tenant.

4.It is further submitted that defendant No.1 acknowledged the sale of property in favour of defendant No.2 by defendant No.3.

By the date of purchase of the said property by defendant No.2, different portions of the property were under occupation of different tenants and as such the defendant No.2 was put in constructive possession of the said property. Shop bearing municipal No. 17-2- 1231/18 was in occupation of the plaintiff. Shop bearing municipal

No.17-2-1231/18/A was in occupation of one Mohd Afzal Ali Khan, shop bearing municipal No.17-2-1231/19 was in occupation of one

Mohd Waheed and shop bearing municipal No.17-2-1231/20 was in occupation of defendant No.1, as tenants.

5.While the matter stood thus defendant No.1 filed suit for specific performance against the defendant No.3 in O.S.No.408 of 2004 on the file of IX Senior Civil Judge, City Civil Court, Hyderabad in respect of the suit shop. Defendant No.3 in his written statement filed in the said suit, while denying the suit agreement of sale dated 9-2-1999 made it clear that he sold the suit shop to defendant No.2 on 8-11-1985 .

6.The plaintiff stated to have addressed letter dated 21-4- 2008 to defendant No.1 intimating him to have purchased the above referred property. He was also informed that defendant No.2 has attorned the tenancy of defendant No.1 in favour of the plaintiff. The plaintiff therefore stated to have requested the defendant No.1 to remit the rent of the suit shop to him from the month of May 2008 onwards. Defendant No.2 has also addressed letter to defendant No.1 informing him about the sale of the said property and requesting him to pay rent to the plaintiff from the month of May 2008 onwards. It is thus submitted that the defendant No.1 has knowledge about the fact of plaintiff becoming owner of the suit shop.

7.It is further submitted that defendant No.1 by his letter

dated 9-5-2008 informed the plaintiff that he was not the tenant of

defendant No.2 but he was the tenant of defendant No.3, who agreed to sell the suit shop and he has received the total sale consideration.

The defendant No.1 stated to have further informed the plaintiff that he was in possession of the suit shop as agreement holder but not as tenant. Defendant No.1 also addressed similar letter to defendant

No.2. It is alleged that defendant No.1 and 3 colluded together to knock away the suit shop.

8.It is further submitted that the defendants have no right or title and interest in the suit shop. Defendant No.1 is a tenant of the suit shop and he is liable to pay the rent to the plaintiff. Defendant

No.1 is in arrears of rent of Rs.3,500/- from the month of May 2008 to

November 2008 @ Rs.500/- per month. Hence the suit.

9.Defendants 1 to 3 filed their separate written statements.

10.Defendant No.1 in his written statement denied the ownership and possession of the plaintiff in respect of the suit property. It is further submitted that defendant No.3 is the absolute owner of the entire property. The defendant No.1 was the tenant of defendant No.3, who offered to sell the suit property for a consideration of Rs.1,50,000/-. This defendant having accepted the said offer alleged to have entered into an agreement of sale dated 9-2- 1999 with the defendant No.3 and paid an amount of Rs.1,00,000/- towards earnest sale consideration. The third defendant stated to have agreed to continue possession of this defendant in the suit shop free of rent till registration of the sale deed. On 23-4-2002 this defendant stated to have paid an amount of Rs.50,000/- towards balance sale consideration under a receipt.

11.It is further submitted that neither defendant No.3 nor his brother Mohd Imtiyaz Ahmed Siddiqui disclose anything about the alleged sale in favour of defendant No.2. Therefore this defendant contended that the documents allegedly executed by the defendant

No.3 in favour of defendant no.2 are sham documents and do not create title in favour of defendant No.2. This defendant stated to have filed O.S.No.408 of 2004 on the file of IX Senior Civil Judge, City Civil

Court, Hyderabad for specific performance of contract.

12.It is further submitted that the plaintiff had knowledge about the agreement of sale in favour of this defendant and also about the pendency of O.S.No.408 of 2004. This defendant denied his liability to pay an amount of Rs.3,500/- towards arrears of rent from

May 2008 to November 2008. Hence prayed the court to dismiss the suit.

13.Second defendant while admitting the ownership of possession of the defendant No.3 in respect of the entire property contended to have purchased the same from the third defendant. This defendant further admitted to have sold the entire property including the suit shop to the plaintiff through his GPA. This defendant also admitted filing of suit in O.S.No.408 of 2004 by defendant No.1. The defendant No.3 herein stated to have filed his written statement in

O.S.No.408 of 2004 informing the sale of the property on 8-11-1985 in

favour of this defendant. This defendant stated to have informed defendant No.1 about the attornment of tenancy infavour of plaintiff.

This defendant admitted the other averments of plaint except the allegation of collusion between the defendant No.1 and 3. It is further submitted that reliefs sought by the plaintiff cannot be granted against this defendant. Hence prayed the court to dismiss the suit .

14.Third defendant adopted the written statement of defendant No.2.

15.Basing on the above pleading this court framed the following issues on 15-4-2011.

1) Whether the plaintiff is entitled to be declared as absolute owner of the suit schedule property as prayed for ?

2) Whether the plaintiff is entitled to recover Rs.3,500/- towards arrears of rent from May 2008 to November 2008 from the defendant No.1 as prayed for ?

3) To what relief ?

16.The plaintiff to prove his case examined himself as PW1 and got marked Exs.A1 to A6. The first defendant examined himself as DW1 and got examined one Mohd Afzal Ali Khan ( attestor of agreement and receipts) as DW2. Exs.B1 to B4 are marked on behalf of the first defendant. Defendants 2 and 3 did not choose to adduce any evidence on their behalf.

17. Heard both sides.

18. ISSUE NO.1:

Whether the plaintiff is entitled to be declared as absolute owner of the suit schedule property as prayed for ?

It is the case of the plaintiff that he is the absolute owner and possessor of the property bearing municipal No.17-2-1231/18, 17-2- 1231/19 and 17-2-1231/20 admeasuring 156 sq.yards situated at Rain

Bazar, Hyderabad having purchased the same from defendant No.2 under the original of Ex.A1 registered sale deed bearing document

No.2293 of 2008 dated 11-4-2008. It is also the case of the plaintiff that originally defendant No.3 was the absolute owner and possessor of the above mentioned property having acquired the same under a registered gift deed bearing document No.1791 of 1985. The defendant No.3 sold the said property to defendant No.2 under a registered sale deed bearing document No.3082 of 1985 dated 8-11- 1985. The second defendant in his turn sold the same to the plaintiff.

The suit shop is part and parcel of the above said property. Per contra the case of the defendant No.1 is that he purchased the suit shop from defendant No.3 under the original of Ex.B1 agreement of sale dated 9- 2-1999 for sale consideration of Rs.1,50,000/-. Defendant No.1 stated to have paid an amount of Rs.1,00,000/- under the original of Ex.B2 and the balance sale consideration of Rs.50,000/- under the original of

Ex.B3 receipt. It is very much clear from the written statement of defendant No.1 that he admitted the original ownership of defendant

No.3 in respect of the suit shop.

19.Defendant No.3 adopted the written statement filed by defendant No.2, wherein he (defendant No.2) claimed to have purchased the property bearing No.17-2-1231/18 , 17-2-1231/19 and 17-2-1231/20 admeasuring 156 sq.yards which includes the suit shop from defendant No.3 under the original of Ex.A1 sale deed. In such view of the matter, it becomes abundantly clear that defendant No.3 admitted to have sold the said property including the suit shop in favour of defendant No.2. Though defendant No.3 did not choose to deny the execution of the original of Ex.B1 agreement of sale and receipt of sale consideration under the original of Ex.B2 and B3 receipts by filing his independent written statement, but he denied the same through the written statement of defendant No.2.

20.PW1/plaintiff filed his affidavit of chief examination reiterating the averments of plaint. Learned counsel for the defendant No.1 cross examined Pw1 but failed to elicit any material to disbelieve and discredit his testimony . It was merely suggested to

PW1 that the original of Ex.A1 is sham document and that the plaintiff has no right over the suit shop. On the other hand DW1/defendant

No.1 in his cross examination categorically admitted that he did not make any independent enquiry with others regarding the title of defendant No.3. DW1 volunteered that he believed the words of the defendant No.3 and the copy of gift deed provided to him by defendant No.3. He also admitted that he did not check and verify the encumbrance of the suit property from the office of registration at the time of entering into the alleged Ex.B1 agreement of sale. A perusal of Ex.A1 certified copy of sale deed bearing document No.2293 of 2008 clearly indicates that defendant No.3 who acquired the said property under a registered gift deed bearing document No.1791 of 1985, sold the same to defendant no.2 under a registered sale deed bearing document No.3082 of 1985. It is also an admitted fact that the said property includes the suit shop. Defendant No.1 did not choose to adduce any evidence to substantiate that the defendant

No.3 was the owner of the suit shop by the date of alleged Ex.B1 agreement of sale. In view of categorical admission of defendant No.3 through the written statement of defendant No.2 to have sold the property bearing municipal No.17-2-1231/18, 17-2-1231/19 and 12-7- 1231/20 to defendant No.2 under the original of Ex.A1 sale deed and in view of the categorical admission of defendant No.1 that he did not check and verify the encumbrance over the suit shop allegedly purchased by him under the original of Ex.B1 agreement of sale dated 9-2-1999, it become clinchingly clear that defendant No.3 has sold his property including the suit shop to the defendant No.2 and hence had no right to sell the suit shop to the defendant No.1. It can therefore be held that the original of Ex.B1 agreement of sale is of no avail to defendant No.1 to claim his right and title over the suit shop. The evidence of plaintiff/PW1 coupled with the admission of defendant

No.3 to have sold the said property which includes the suit shop to defendant No.2, who in his turn sold the same to plaintiff under the original of Ex.A1 sale deed clinchingly establish the right and title of the plaintiff over he suit shop. I am therefore inclined to hold that the plaintiff is the absolute owner of the suit schedule property.

21.Learned counsel for the defendant No.1 would submit that the original of Ex.A1 sale deed was brought into existence after filing of O.S.No.408 of 2004 by the defendant No.1 against defendant No.3 and hence the plaintiff cannot be held to be owner of the suit shop.

True, the original of Ex.A1 was executed during the pendency of

O.S.No.408 of 2004, but it remains a fact that the third defendant has

already sold the said property including the suit shop to defendant

No.2 under a registered sale deed bearing document No.3082 of 1985 much prior to the execution of the original of Ex.B1 agreement of sale

dated 9-2-1999 and as such he had no right and title over the said

property including the said shop. In such view of the matter the execution of the original of Ex.A1 sale deed in favour of the plaintiff by defendant No.2 during the pendency of O.S.No.408 of 2004 does not vitiate the said sale and the same does not confer any right on the defendant No.1 in respect of the suit shop. I am therefore inclined to hold that the said contention of the learned counsel of the defendant

No.1 is untenable. In view of all my foregoing discussion and findings it is manifestly and evidently clear that the plaintiff is the absolute owner of the suit schedule property and hence he can be declared as absolute owner of the suit schedule property. The issue is held accordingly in favour of the plaintiff .

22. ISSUE NO.2:

2) Whether the plaintiff is entitled to recover Rs.3,500/- towards arrears of rent from May 2008 to November 2008 from the defendant No.1 as prayed for?

It is the contention of the plaintiff that defendant No.1 is liable to pay arrears of rent of Rs.3,500/- from May 2008 to November 2008 @ Rs.500/- per month. It is an admitted fact that the defendant No.1 originally obtained the suit shop on lease from defendant No.3.

Defendant No.1 categorically pleaded in paragraph 4 of his written statement that defendant No.3 allowed him to continue his possession over the suit shop from the date of Ex.B1 agreement of sale till registration of sale deed by defendant No.3 in his favour. It can therefore safely be held that defendant No.1 had not been paying the rent of suit shop. Defendant No.1 in his cross examination admitted to have received Ex.A2 letter addressed by the plaintiff calling upon him to pay rent of the suit shop to him. Ex.A3 is the letter address by defendant No.2 to defendant No.1 attorning tenancy of suit shop in favour of the plaintiff and requesting the defendant No.1 to pay rent to the plaintiff . Defendant No.1 stated to have replied Ex.A2 under

Ex.A4 letter dated 9-5-2008. A perusal of Ex.A2 to A4 letter do not indicate the quantum of rent.

23.The plaintiff in paragraph 10 of the plaintiff categorically pleaded that the defendant No.1 is in arrears of rent to the tune of

Rs.3,500/- @ Rs.500/- per month. Defendant No.1 at the end of paragraph 11 of his written statement merely denied the alleged arrears of rent. Defendant No.1 neither in his written statement nor in his affidavit of chief examination disputed the quantum of rent @

Rs.500/- per month. PW1 in his cross examination stated to have learnt from defendant No.2 that defendant No.1 used to pay rent of

Rs.500/- to defendant No.2. In view of my foregoing discussion and findings, it becomes very much clear that defendant No.1 has not been paying rent of the suit shop. It also became very much clear that defendant No.1 did not dispute the quantum of rent. I am therefore inclined to hold that the defendant No.1 is liable to pay an amount of

Rs.3,500/- to the plaintiff towards arrears of rent from May 2008 to

November 2008. The issue is accordingly held in favour of the plaintiff .

24. ISSUE NO.3:

To what relief ?

In the result, the suit of the plaintiff is decreed,

1) Declaring the plaintiff as absolute owner of the suit schedule property which is morefully described in the schedule appended to the plaint .

2) Directing the defendant No.1 to pay Rs.3,500/- to the plaintiff towards arrears of rent from May 2008 to November 2008.

3) In the circumstances of the case the parties are directed to bear their own cost.

Partly dictated to the Personal Assistant, transcribed and typed by her and partly directly typed to my dictation on laptop, corrected and pronounced by me in the open Court on this the 22 nd day of April, 2013.

I Senior Civil Judge City Civil Court, Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS:

PW1: Mohd. Gaziuddin Iqbal DW1: Syed Masood Ahmed DW2: Mohd. Afzal Ali Khan

DOCUMENTS MARKED FOR PLAINTIFF

Ex.A1: Photostat copy of sale deed dt. 11-4-2008 bearing document No.2293 of 2008 executed by defendant No.2 in favour of plaintiff.

Ex.A2: Office copy of the letter dated 21-4-2008 issued by plaintiff to defendant No.1.

Ex.A3: Photostat copy of the letter dated 21-4-2008 issued by defendant No.2 to defendant No.1.

Ex.A4: Reply letter dated 9-5-2008 issued by defendant No.1 to plaintiff.

Ex.A5: Photostat copy of the letter dated 20-5-2008 issued by defendant No.1 to defendant No.2.

Ex.A6: Market value certificate dated 12-12-2008 issued by registration and stamps department .

DOCUMENTS MARKED FOR DEFENDANTS

Ex.B1: Certified copy of agreement sale dt. 9-2-1999. Ex.B2: Certified copy of receipt dated 9-2-1999 . Ex.B3: Certified copy of receipt dated 23-4-2002. Ex.B4: Certified copy of declaration dated 23-4-2002.

I Senior Civil Judge City Civil Court,Hyderabad

IN THE COURT OF THE I SENIOR CIVIL JUDGE

CITY CIVIL COURT, AT HYDERABAD.

Dated: Monday the 22 ndday of April, 2013

PRESENT: SRI MOHD. BANDE ALI, B.Sc., LL.B.,

I Senior Civil Judge

O.S.No. 407 of 2004

Between:

Mohd. Afzal Ali Khan

... Plaintiff .

A N D

1. Mohd. Iftekhar Ahmed Siddiqui

2. Mohd. Gaziuddin Iqbal (defendant No.2 was added as per order in I.A.No. 195 of 2009

dated 8-9-2009 ).

… Defendants .

This suit came up for hearing on 14-03-2013 for disposal in the presence of Sri Mohd. Hamid Ali, Advocate for the plaintiff and of

Sri. Z.H.Javid,Advocate for the defendant No.1 and the

Sri. C. Balchand, Advocate for the defendant No.2 and the matter having been heard and stood over for consideration till this day, the

Court delivered the following :

J U D G E M E N T

This suit was originally filed against defendant No.1. During the pendency of suit defendant No.2 was impleaded .

2.This suit is filed for specific performance of agreement of sale dated 9-2-1999 seeking direction to the defendant to execute and register sale deed in favour of the plaintiff in respect of the property bearing No.17-2-123/18/A admeasuring 14.44 sq.yards situated at

Yakutpura, Hyderabad ( for short 'the suit property' ) which is morefully described in the schedule appended to the plaint.

Alternatively the plaintiff sought direction for refund of the sale consideration of Rs.1,50,000/- .

3.The brief averments of plaint are that the defendant is the owner of the suit property. The plaintiff' was the tenant of the suit property. Subsequently the defendant offered to sell the suit property to the plaintiff for a total sale consideration of Rs.1,50,000/-. The defendant having accepted the said offer paid an amount of

Rs.1,00,000/- towards earnest sale consideration under a separate receipt and agreement of sale dated 9-2-1999. It is submitted that the defendant agreed to execute and register sale deed within three months from the date of agreement of sale and also agreed that he will not claim rent.

4.It is further submitted that the plaintiff was ready and willing to perform his part of agreement but the defendant went on postponing his part of performance. While so, on 1-2-2002 the defendant stated to have approached the plaintiff and requested him to extend the time. Accordingly the time for execution of sale deed was extended by mutual consent till 31-12-2002.

5.On 1-5-2002 the defendant stated to have approached the plaintiff and requested him to pay the balance sale consideration of

Rs.50,000/-. The plaintiff stated to have paid the said amount of

Rs.50,000/- to the defendant under a separate receipt. On 27-12-2003 the defendant once again requested the plaintiff to extend the time for execution and registration of the sale deed till 30-6-2003 and accordingly the plaintiff agreed to extend the time till 30-6-2003.

6. On 29-6-2003 the plaintiff stated to have got issued notice by speed post which was received by the defendant on 20-6-2003. On receipt of the said notice the defendant stated to have requested the plaintiff to extend the time till 30-8-2003. Accordingly the time for execution and registration of the sale deed was extended by mutual consent till 30-8-2003. The extension of time was endorsed on the back side of the agreement dated 9-2-1999 and the same was attested by the witness.

7.Since the defendant was not coming forward to execute and register the sale deed, the plaintiff got issued notice dated 27-8- 2003 calling upon the defendant to execute and register the sale deed. It is further submitted that the defendant on receipt of the said notice approached the plaintiff and there was mediation. In the said mediation the defendant once again requested time for performing his part of contact. The defendant alleged to have agreed to execute sale deed by 28-12-2003. The defendant stated to have executed an agreement dated 22-9-2003 for extension of time. It is submitted that the defendant failed to perform his part of agreement and as such the plaintiff got issued notice dated 22-12-2003 calling upon the defendant to perform his part of contract. The said notice was served on the defendant on 22-12-2003 itself, but the defendant failed to perform the contract. Hence the suit.

8.During the pendency of suit defendant No.2 was impleaded as per order in I.A.No. 195 of 2009 dated 8-9-2009.

9.Defendants 1 and 2 filed their separate written statement.

10.Defendant No.1 in his written statement while denying the execution of agreement of sale dated 9-2-1999, while denying the receipt of sale consideration of Rs.1,50,000/- and while denying the other averments of plaint contended to have sold the suit property to one Mr. Ali Mohammed long back. This defendant therefore contended that the jural relationship of landlord and tenant between him and the plaintiff ceased. It is submitted that the plaintiff filed the present suit basing on forged and created documents. This defendant denied to have approached the plaintiff seeking extension of time .

This defendant also denied to have received any notice from the plaintiff. It is alleged that the plaintiff played fraud by creating forged document to extract money from this defendant. It is submitted that since this defendant never executed the alleged agreement of sale, the question of extension of time does not arise. Hence prayed the court to dismiss the suit.

11. Defendant No.2 in his written statement, while denying the averments of plaint contended that the defendant No.1 was not the owner of the suit property by the date of the alleged agreement of sale dated 9-2-1999. It is further submitted that the defendant No.1 sold the suit property in favour of one Ali Mohammed under a registered sale deed dated 5-11-1985 for a sale consideration of

Rs.30,000/-. The said Ali Mohammed stated to have exercised his right as owner of the suit property from the date of purchasing the sale of the suit property. The plaintiff also alleged to have acknowledged the ownership of Ali Mohammed. This defendant stated to have purchased the suit property from Ali Mohammed under a registered sale deed bearing document No.2293 of 2008 dated 11-4- 2008. Subsequently this defendant stated to have addressed letter to the plaintiff informing him about his ownership and requesting him to remit the rent to him. The plaintiff stated to have replied stating that he was the tenant of defendant no.1 and the said Ali Mohammed is a stranger.

12.It is further submitted that the defendant No.1 had no right to enter into any agreement of sale with the plaintiff since he was not the owner of the suit property after 5-11-1985. It is further alleged that the said agreement of sale is a created document. The alleged extension of time is also created for the purpose of this suit.

It is alleged that the plaintiff and defendant No.1 colluded together to knock away the property owned by this defendant.

13.It is further submitted that the plaintiff has failed to specify as to which of the defendant failed to perform his part of agreement. It is further submitted that the plaintiff is not entitled to the relief sought by him as defendant No.1 was not the owner of the suit property on the date of execution of the agreement in respect of the suit property. Hence prayed the court to dismiss the suit.

14.Basing on the above pleadings this court framed the following issues on 8-2-2011.

1) Whether the defendant No.1 was the owner of the suit schedule property on the date of alleged agreement of sale

dated 9-2-1999 ?

2) Whether the agreement of sale dated 9-2-1999 is true, valid and binding on the defendants ?

3) Whether the receipts dated 9-2-1999 and 1-5-2002 are true, valid and binding on the defendant No.1 ?

4) Whether the plaintiff' is entitled for the specific performance of the agreement of sale dated 9-2-1999 as prayed for ?

5) To what relief ?

16.The plaintiff to prove his case examined himself as PW1 and got examined the attestor of the agreement of sale and receipts as PW2. Exs.A1 to A11 are marked. Second defendant examined himself as DW1 and Exs.B1 and B2 are marked on behalf of second defendant. The first defendant did not choose to adduce any evidence on his behalf .

18. ISSUE NO.1

Whether the defendant No.1 was the owner of the suit schedule property on the date of alleged agreement of sale

dated 9-2-1999 ?

The case of the plaintiff is that the first defendant being the owner of the suit property sold the same to the plaintiff for a sale consideration of Rs.1,50,000/- under Ex.A1 agreement of sale dated 9-2-1999. Whereas the case of defendants 1 and 2 is that the defendant No.1 sold the suit property to one Ali Mohammed under a registered sale deed dated 5-11-1985 for a sale consideration of

Rs.30,000/-. Therefore defendant No.1 was not the the owner of the suit property by the date of Ex.A1 agreement of sale dated 9-2-1999.

Plaintiff/PW1 in his cross examination admitted that he did not make any independent enquiry with others regarding the title of defendant

No.1. Pw1 volunteered that he believed the words of the defendant

No.1 and copy of gift deed provided to him by the defendant No.1. He also admitted that he did not check and verify the encumbrance of the suit property from the office of registration at the time of entering into the alleged Ex.A1 agreement of sale. A perusal of Ex.B2 certified copy of sale deed bearing document No.3082 of 1985 dated 5-11-1985 clearly indicates that the defendant No.1 sold property bearing municipal No.17-2-1231/18, 19 and 20 admeasuring 156 sq.yards situated at Rein bazar Road, Yakutpura, Hyderabad which includes the suit property, in favour of one Ali Mohammed. Defendant

No.2/DW1 reiterated the averments of his written statement in his affidavit of chief examination. Learned counsel for the plaintiff cross examined DW1 but failed to elicit any material to substantiate that the defendant No.1 was the owner of the suit property by the date of execution of Ex.A1 agreement of sale. It is merely suggested to DW1 that even by the date of cross examination of DW1, the first defendant is the owner of the suit property. It is also suggested to DW1 that the original of Ex.B1 and B2 sale deeds are sham documents. The plaintiff did not choose to adduce any evidence to substantiate his contention that the defendant No.1 is the owner of the suit property.

It is pertinent to mention here that the defendant No.1 himself who is admitting the original owner of the suit property, in his written statement categorically stated to have sold the suit property to the said Ali Mohammed long back . Ex.B2 certified copy of sale deed coupled with categorical assertion of defendant No.1 in his written statement, clinchingly establish that defendant No.1 sold property bearing municipal No.17-2-123/18, 19 and 20 admeasuring 156 sq.yards which includes the suit property to Mr. Ali Mohammed.

17.The evidence of defendant No.2/DW1 coupled with Ex.B1 certified coy of sale deed dated 11-4-2008 further establish that the said Ali Mohammed sold the said property covered by the original of

Ex.B2 in favour of defendant No.2. As discussed and found by me supra the plaintiff admittedly did not make any enquiry regarding the title of defendant No.1 while entering the alleged Ex.A1 agreement of sale dated 9-2-1999. Had he made any enquiry with the office of registration, he would have definitely come to know about the execution of the original Ex.B2 sale deed. In view of my foregoing discussion and findings it is manifestly and evidently clear that the defendant No.1 was not the owner of the suit property on the date of alleged agreement of sale dated 9-2-1999. The issue is accordingly held against the plaintiff .

18. ISSUE NOS. 2 AND 3:

(2) Whether the agreement of sale dated 9-2-1999 is true, valid and binding on the defendants ? AND (3) Whether the receipts dated 9-2-1999 and 1-5-2002 are true, valid and binding on the defendant No.1 ?

It is the case of the plaintiff that the defendant No.1 having agreed to sell the suit property entered into Ex.A1 agreement of sale and received an amount of Rs.1,00,000/- under Ex.A2 receipt dated 9- 2-1999 towards earnest sale consideration and also received the balance sale consideration of Rs.50,000/- on 1-5-2002 under Ex.A3 receipt. Defendant No.1 in his written statement though denied to have executed Ex.A1 to A3 agreement of sale and receipts, but he failed to extract any material from the cross examination of PW1.

PW1 reiterated the averments of plaint in his affidavit of chief examination. PW2 categorically deposed in his affidavit of chief examination that he was present at the time of execution of Ex.A1 to

A3 and he attested the said documents. Learned counsel for the defendant No.1 cross examined PW1 on 22-6-2009 and PW2 on 17-7-2009 but nothing material was elicited to disbelieve and discredit the evidence of Pws1 and 2 and Exs.A1 to A3. It is pertinent to mention here that defendant No.2 who is nothing to do with the Ex.A1 transaction suggested Pws 1 and 2 that the transaction covered by

Ex.A1 agreement is created by defendant No.1 in collusion with the plaintiff. He also suggested that the amount covered by Ex.A2 and A3 receipts was not paid to defendant No.1.

19.A perusal of the material on record indicates that the defendant No.1 did not choose to adduce any evidence on his behalf.

Defendant No.1 even did not enter the witness box to put forth his case of denial of execution of Exs.A1 to A3 and receipt of the sale consideration of Rs.1,50,000/- from the plaintiff. The said act of the defendant No.1, not subjecting himself to cross examination by the plaintiff, gives rise to adverse inference that had he deposed before the court on oath and had he been subjected to cross examination, the same would have been un-favourable to him. Mere denial of the defendant No.1 in his written statement that he did not execute Ex.A1 to A3 and he did not receive Rs.1,50,000/- is not sufficient. The evidence of Pws 1 and 2 is consistent and reliable. In such view of the matter the evidence of Pws1 and 2 coupled with Exs.A1 to A3 establish the case of the plaintiff that the defendant No.1 executed

Ex.A1 agreement and received Rs.1,50,000/- under Exs.A2 and A3 receipts. I am therefore inclined to hold Ex.A1 agreement dated 9-2- 1999, Ex.A2 and A3 receipts dated 9-2-1999 and 1-5-2002 are true, valid and binding on defendant No.1. These issues are accordingly held in favour of plaintiff .

20. ISSUE NO.4:

Whether the plaintiff' is entitled for the specific performance of the agreement of sale dated 9-2-1999 as prayed for ?

In view of my findings on issue No.1 it stood established that the defendant No.1 was not the owner of the suit property on the date of Ex.A1 agreement of sale dated 9-2-1999. It also stood establish that the defendant No.1 had already sold suit schedule property to one Ali Mohammed under the original of Ex.B2 sale deed bearing document No.3082 of 1985 dated 5-11-1985. Therefore the defendant

No.1 had no right and title to sell the suit property to anybody much less the plaintiff. Consequently the sale transaction covered by Ex.A1 agreement of sale dated 9-2-1999 becomes void and un-enforceable.

The plaintiff is therefore not entitled to seek the specific performance of Ex.A1 agreement of sale dated 9-2-1999 as prayed for .

21.In the circumstance of the case and in view of my findings on issues 2 and 3, holding Exs.A1 to A3 valid and binding on defendant No.1, it has to be held that the plaintiff is entitled to seek refund of the amount of Rs.1,50,000/- paid by him to the defendant

No.1 towards the sale consideration of the suit property, from the defendant No.1. I am therefore inclined to hold that defendant No.1 is liable to pay the amount of Rs.1,50,000/- to the plaintiff. The issue is held accordingly.

22. ISSUE NO.5:

To what relief ?

In the result, the suit of the plaintiff is partly decreed.

1) Granting alternative relief, directing the defendant No.1 to pay an amount of Rs.1,50,000/- to the plaintiff .

2) The suit of the plaintiff in regard to specific performance of the agreement of sale dated 9-2-1999 is dismissed.

3) In the circumstances of the case the parties shall bear their own cost.

Dictated to the Personal Assistant, transcribed and typed by her,

corrected and pronounced by me in the open Court on this 22 nd day of April, 2013.

I Senior Civil Judge City Civil Court, Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW1:Mohd. Afzal Ali Khan DW1: Mohd. Gaziddun Iqbal PW2: Syed Masood Ahmed

DOCUMENTS MARKED FOR PLAINTIFF

Ex.A1: Dt.9-2-1999, agreement of sale .

Ex.A2: Dt. 9-2-1999, receipt for payment of advance sale consideration of Rs.1,00,000/- to the defendant by the plaintiff dt. 9-2- 1999.

Ex.A3: Dt. 1-5-2002, receipt for payment of balance sale consideration of Rs.50,000/- to the defendant .

Ex.A4: Dt.1-5-2002, declaration executed by defendant .

Ex.A5: Dt.29-6-2003, office copy of notice sent by plaintiff to defendant .

Ex.A6: Dt. 29-6-2003, acknowledgement receipt for the service of notice to the defendant which was signed by defendant.

Ex.A7: Dt.27-8-2003, office copy of notice sent to defendant.

Ex.A8: Postal acknowledgment by defendant, dt.27-8-03.

Ex.A9: Agreement for extension of time dt. 22-9-2003 executed in favour of plaintiff by defendant .

Ex.A10: Postal acknowledgment of service of notice on the defendant bearing the signature of defendant dt. 22-12-2003.

Ex.A11: Agreement of sale dt. 9-2-1999.

DOCUMENTS MARKED FOR DEFENDANT

Ex.B1: Certified copy of sale deed bearing document No.2293 of 2008, dt. 11-4-2008.

Ex.B2: Certified copy of Sale deed bearing document No. 3082 of 1985, dt. 5-11-1985.

I Senior Civil Judge City Civil Court, Hyderabad

IN THE COURT OF THE I SENIOR CIVIL JUDGE

CITY CIVIL COURT, AT HYDERABAD.

Dated: Monday the 29 thday of April, 2013

PRESENT: SRI MOHD. BANDE ALI, B.Sc., LL.B.,

I Senior Civil Judge

O.S.No. 1322 of 2011

BETWEEN: Chitrangada … Plaintiff . A N D Sangeetha Upadhyay … Defendant.

This suit coming before me on 2-4-2013 for disposal in present of Sri. Ravi Prakash Misra, Advocate for the plaintiff and of

Sri. H.C. Upadhyay, Advocate for the defendant and the matter having been heard and stood over for consideration till this day, the

Court delivered the following :

J U D G E M E N T

This suit is filed for eviction and recovery of possession of the suit schedule property bearing plot No. 502 block -C, Dayas Dhanush

Residency, municipal H.No.3-6-23/B, Skyline Talkies Lane,

Basheerbagh, Hyderabad; ( for short 'suit premises' ) for recovery of

Rs.96,000/- towards arrears of rent and for cost.

2. The brief averments of plaint are that the plaintiff was the owner of premises bearing municipal No. 5-6-25/B, Skylane, Talkies.

In the year 2005 the plaintiff stated to have given the said property for development to one M/s. Raja Construction, represented by its proprietor Dhanush Kumar under a registered development agreement bearing document No. 3021 of 2005.

3.The original development of the said premises was upto 4 floors. Later 5th floor was also constructed and the same was regularized vide proceeding No.1006/BPS/C-9/CZ/2008 dated 18-7-09.

While so in the month of January 2007 the defendant took the suit schedule flat on lease on a monthly rent of Rs.7,000/- under a lease deed. The said lease was from 11 months and the same was extended further upto December 2009 . On 10-1-2010 a fresh lease deed was executed, where under the defendant agreed to pay rent of

Rs.12,000/- per month exclusive of water and electricity consumption charges and maintenance charges. It is alleged that the defendant was irregular in payment of rent and thereby fell in arrears of rent to the tune of Rs.96,000/- upto June 2011. The plaintiff stated to have got issued notice dated 27-1-2011 calling upon the defendant to vacate the suit schedule property and pay the arrears of rent within one month from the date of receipt of notice. Though the defendant received the said notice on 29-1-2011 but failed to reply the same and also failed to vacate the suit schedule property. Hence the suit .

4.The defendant filed written statement stating that the rental agreement entered into between the parties in the month of

January 2007 was for a period of two years and the same came to an end in the month of December 2009. It is alleged that since the plaintiff constructed 4th and 5th floor without permission, she was disparate to dispose off the four flats of 4th and 5th floor. The plaintiff stated to have taken advantage of Building Penalization Scheme (BPS) to mislead the potential buyers saying that the construction was regularized. The plaintiff stated to have approached the defendant with the same false statement. On enquiry the defendant came to know that the BPS did not render the suit schedule property legal and that the issue of legalization was sub-judice. When this fact was narrated to the plaintiff, she offered to sell the suit schedule property for a consideration of Rs.25,00,000/- payable within three years @

Rs. 12,000 per month. The defendant also under took to pay an amount of Rs. 12,000/- per month against the then monthly rent of

Rs. 7,000/-. It is alleged that the plaintiff requested the defendant not to insist for a written agreement of sale since the construction of flat was illegal, but entered into a fresh lease deed nominally. It is further submitted that the defendant undertook to get the illegal construction regularized within period of six months from 1-1-2010.

Failing which the defendant was given option to revert back to the original monthly rent of Rs. 7,000/- inclusive of water and other incidental charges. It is further alleged that the plaintiff never bothered to get the construction regularized and the deadline of six months for getting the construction regularized expired by 30-6-10.

Therefore this defendant denied the jural relationship from the month of January 2010.

5. It is alleged that the plaintiff agreed to pay damages of

Rs.1,00,000/-, in case she failed to get the regularization done by 30-6-2010. It is alleged that the plaintiff cleverly avoided to enter into a written agreement for sale. It is alleged that a new lease deed for

Rs.12,000/- was prepared to enable the defendant to have address proof. It is further alleged that, three unknown persons who approached the defendant on different dates in the month of July and

August 2010 told her that the plaintiff offered to sell the suit schedule property and they paid Rs.50,000/- to Rs.5,00,000/- to the plaintiff.

The said persons stated to have gone back stating that they would come back with supporting documents. The defendant therefore alleged to have insisted the plaintiff to revert her to the status of tenant and accept Rs.7,000/- per month towards rent. The plaintiff refused the same and alleged to have threatened the defendant that she will file a suit for eviction.

6.It is further submitted that there is no jural relationship of landlord and tenant between the plaintiff and defendant after 31-12-2009. It is alleged that the plaintiff unreasonably hiked the monthly amount by mutual consent to Rs.12,000/- to Rs.15,000/-.

This defendant denied the alleged arrears of rent. It is further submitted that the quit notice mentioned in the plaint has no meaning since the tenancy came to an end in the month of December 2009.

Hence prayed the court to dismiss the suit.

7.Basing on the above pleading this court framed the following issues on 5-12-2011.

1) Whether the plaintiff is entitled for eviction of the defendant and recovery of possession on defendant in respect of the suit schedule property as prayed for ?

2) Whether the plaintiff is entitled to receive Rs.96,000/- towards arrears of rent as prayed for ?

3) To what relief ?

8.The plaintiff to prove her case got examined herself as

PW1 and got marked Exs.A1 to A8.

9.Since the defendant did not comply the order in

I.A.No.967 of 2011 filed under Order 15-A of C.P.C, the defence of the defendant was struck off by an order dated 4-12-2012.

10. Heard both sides.

11. ISSUE NO.1 AND 2:

(1) Whether the plaintiff is entitled for eviction of the defendant and recovery of possession on defendant in respect of the suit schedule property as prayed for ? AND (2) Whether the plaintiff is entitled to receive Rs.96,000/- towards arrears of rent as prayed for ?

A perusal of the written statement of the defendant clearly indicates that the defendant admitted to have obtained the suit premises on lease under a lease deed executed in the month of

January 2007. According to the plaintiff the original lease was for a period of 11 months and the same was extended further upto

December 2009. The rent at the inception of tenancy was Rs.7,000/- per month. It is also the case of the plaintiff that the defendant executed another lease deed dated 10-1-2010 agreeing to pay rent of

Rs.12,000/- per month. This lease deed was for a period of 11 months without any renewal . Per contra the case of the defendant is that the original lease was for a period of two years and the same came to an end in the month of December 2009. It is also the case of the defendant that the plaintiff offered to sell the suit premises for consideration of Rs.25,00,000/-. The defendant stated to have agreed to pay the said sale consideration within three years from 1-1-2010 as per her convenience. The defendant also undertook an amount of

Rs.12,000/- per month against the then monthly rent of Rs.7,000/-.

According to the defendant the plaintiff agreed to get the construction of the suit premises regularized within six months from the month of

January 2010 and in case she fails to do so the defendant was given option to revert back to the original monthly rent of Rs.7,000/- exclusive of water and other incidental charges. Basing on these pleading the defendant denied the jural relationship between the plaintiff and herself as landlord and tenant from the month of January 2010.

12.It thus become very much clear that the plaintiff is the landlady and the defendant is the tenant in respect of the suit premises. The plaintiff to prove her case examined herself as Pw1 and got marked Exs.A1 to A8. Since the defendant failed to comply the order in I.A.No.967 of 2011 filed under Order 15-A of CPC, which order stood confirmed by the Hon’ble High Court in CRP.No.1951 of 2012 her defence was struck off by an order dated 4-12-2012.

However the defendant was permitted to cross examine PW1 subject to condition that the defendant would not be entitled to lead any evidence of her own nor can she cross examine PW1 beyond limited objective of pointing out the falsity or weaknesses of the case of the plaintiff, and further cross examination should not travel beyond the legitimate scope to convert it virtually into a presentation of the case of the defendant either directly or in the form of suggestions.

13.Learned counsel for the defendant cross examined PW1 but failed to elicit any material to substantiate that the case of the plaintiff is false or weak. Infact the own admissions made by the defendant in her written statement clinchingly establish that the plaintiff is the landlady and the defendant obtained the suit premises on lease and that the present monthly rent is Rs.12,000/- per month.

14.Admittedly there is no written agreement of sale. The defendant voluntarily shut out her defence by not complying the order in I.A.No.967 of 2011. In the absence of any agreement regarding the alleged sale and regarding the alleged condition of reverting back to original rent of Rs.7,000/- etc., it can be safely held that the said plea of the defendant is false and fictitious, and it has no legs to stand to the scrutiny.

15.It is also an admitted fact there is no written contract of lease. Under Section 106 of Transfer of Property Act ( for short ‘the

Act’), in the absence of a contract, a lease of immovable property other an agricultural or manufacturing purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee by 15 days notice. It is definite case of the plaintiff that she got issued the original of Ex.A6 notice dated 27-1-2011 terminating the tenancy of the defendant and calling upon her to vacate the suit premises within one month from the date of receipt of notice and to pay arrears of rent. The said notice was served on the defendant on 29-1-2011. But the defendant failed to vacate the suit premises. PW1 reiterated the averments of plaint in her chief examination. The said fact of issuance of Ex.A6 notice and its receipt by the defendant under

Ex.A7 acknowledgment is not denied by the defendant. PW1 not even suggested to that effect. Therefore it becomes clinchingly clear that the plaintiff, complied the provision under Section 106 of T.P. Act.

Hence the plaintiff is entitled to seek the eviction of the defendant and she is entitled to recover possession of the suit premises from the defendant.

16.Learned counsel for the defendant in his written submissions contended that the ownership of the suit premises is not proved and that there are no records with the GHMC to that effect.

This being a simple suit for eviction of the tenant from the suit premises which is let out to the defendant, there is absolutely no necessity for the plaintiff to establish her ownership in respect of the suit premises. It is sufficient if the plaintiff is to establish that she let out the suit premises to defendant. The own admission of the defendant made it clear that she obtained the suit premises on lease from the plaintiff .

17.Learned counsel for the defendant would also submit that there is inconsistency in the evidence of PW1 in regard to the year of the execution of rental agreement. In the absence of any written contract between the parties the alleged inconsistency looses its importance.

18.Learned counsel for the defendant also submitted that there is no jural relationship of the landlady and tenant between the plaintiff and defendant. In view of my discussion and findings in the foregoing paragraphs it stood established that there is jural relationship between the plaintiff and defendant.

19.Learned counsel for the defendant would also submit that this court should not have dismissed I.A.No.967 of 2011 because, cannot be decided in I.A. The defendant took such plea in the Review petition No.1951 of 2012 which was filed by her aggrieved by the order of this court in I.A.No.967 of 2011. But the same was negatived. Since the order in I.A.No.967 of 2011 was confirmed by the Hon’ble High Court the petitioner cannot take such plea at the stage of arguments. Learned counsel for the defendant would also submit that the defendant filed writ petition No.5269 of 2013 which involves the question of ownership of the suit premises and hence the

judgement in the present suit has to be postponed. Admittedly there

is no stay of proceedings of this suit. Unless there is a stay of proceedings, this court cannot postpone the judgement.

20.In view of all my foregoing discussion and findings, and in view of the admissions of the defendant and in view of the order in

I.A.No.967 of 2011, it stood establish that the present monthly rent is

Rs.12,000/- and the defendant has admittedly failed to pay the same from the month of November 2010. Therefore the plaintiff is entitled to recover an amount of Rs.96,000/- towards rent from November 2010 to June 2011.

21.In view of all my foregoing discussion and findings I am inclined to hold that the plaintiff is entitled to recover possession of the suit premises from the defendant and she is also entitled to recover Rs.96,000/- from the defendant towards arrears of rent. These issues are accordingly held in favour of the plaintiff.

22. RESULT:

In the result, the suit of the plaintiff is decreed with cost.

1) Directing the defendant to vacate and hand over peaceful possession of the premises to the plaintiff within 90 days from the date of this judgement and decree.

2) Directing the defendant to pay an amount of Rs.96,000/- to the plaintiff towards arrears of rent from the month of

November 2010 to June 2011.

Dictated to the Personal Assistant, transcribed and typed by her,

corrected and pronounced by me in the open Court on this 29 th day of April, 2013.

I Senior Civil Judge

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF : FOR DEFENDANT :

PW1: Chitrangada - None-

DOCUMENTS MARKED ON BEHALF OF PLAINTIFF

Ex.A1: Dt. 18-7-1973, certified copy of gift deed vide document No.1789/73.

Ex.A2: Dt.19-12-1980, certified copy deed of exchange vide Doc.No.2532/81.

Ex.A3: Dt.15-4-2004, certified copy of sale deed vide Doc.No.1012/04 .

Ex.A4: Dt. 22-8-2005, certified copy of development agreement vide Doc.No.3021/05 .

Ex.A5: Dt.18-7-2009, noterised true copy of B.R.S proceedings .

Ex.A6: Dt.27-1-2011, office copy of legal notice along with postal receipt.

Ex.A7: Dt.29-1-2011, postal acknowledgement .

Ex.A8: Dt. 26-10-2010, original cheque bearing No.351010 along with return memo's comprising 5 sheets .

DOCUMENTS MARKED ON BEHALF OF DEFENDANTS

-Nil -

I Senior Civil Judge City Civil Court, Hyderabad

IN THE COURT OF THE I SENIOR CIVIL JUDGE

CITY CIVIL COURT, AT HYDERABAD.

Dated: Monday the 29 th day of April, 2013

PRESENT: SRI MOHD. BANDE ALI, B.Sc., LL.B. ,

I Senior Civil Judge

O.S.No.532 of 2009

Between:

State Bank of Hyderabad.

… Plaintiff .

A N D

1. K.S.R.Murthy

2. S.V.Sridhar … Defendants .

This suit came up for hearing on 18-4-2013 for disposal in the presence of Sri. V. Raghu, Advocate for the plaintiff and of

Sri. V.S.Subrahmanyam, Advocate for the defendants and the matter having been heard and stood over for consideration till this day, the Court delivered the following :

J U D G E M E N T

This suit is filed by State Bank of Hyderabad, Nallakunta Branch for recovery of Rs.1,10,963/- being the principal and interest due on a loan transaction with interest @ 24% with quarterly rests from the date of suit till realization and for cost.

2.The brief averments of plaint are that on 15-2-2006 and 17-4-2006 the first defendant approached the plaintiff bank and requested to provide personal loan. On 10-7-2006 the plaintiff bank stated to have sanctioned an amount of Rs.1,00,000/- on the terms and conditions mentioned in the loan agreement. The first defendant stated to have availed the said loan of Rs.1,00,000/- vide loan account

No.52019835003 by executing arrangement letter, personal loan agreement both dated 10-7-2006 and by furnishing guarantee of defendant No.2. The defendant No.2 stated to have executed a deed of guarantee on 10-7-2006. The first defendant agreed to repay the said loan amount in 36 installments of Rs.3,362/- per month. It is further submitted that the interest on the loan amount is charged at 13% per annum on the highest monthly reducing balance, at quarterly rests commencing from May 2006.

3.It is alleged that the defendant No.1 did not choose to repay the amount as agreed and the account became irregular. The plaintiff bank demanded defendant No.1 to regularize the account but in vain. As such on 19-1-2009 the plaintiff bank got issued legal notice to both the defendants through registered post acknowledgment due. The same notice was served on defendant no.1 and the notice of defendant No.2 was returned un-served. It is further submitted that both the defendants are jointly and severally liable to make the payment. Since the defendants failed to repay the outstanding amount of Rs.1,10,963/- which is exclusive of interest @ 15% per annum from 1-3-2008 to 28-1-2009 the plaintiff filed the present suit.

4.Defendants 1 and 2 filed their separate written statements.

5.The first defendant in his written statement admitted the averments of paragraph 1 and 2 of the plaint which are in respect of request of the defendant No.1 to provide loan and in respect of sanctioning of the loan. This defendant denied the contents of para 3 of the plaint which is in respect of availment of loan and execution of documents by defendants.

6. It is further submitted that the defendant issued notice dated 25-7-2007 to the plaintiff which was acknowledged on 18-8-2007. The first defendant in the said notice stated to have questioned the act of the plaintiff for wrongly debiting an amount of Rs.50,000/-.

7.It is further submitted that this defendant rendered lot of professional services. This defendant stated to have claimed an amount of Rs.1,50,000/- from the plaintiff bank towards the said services. This defendant also stated to have addressed letter to the head office of the plaintiff bank at Gunfoundary, Hyderabad in that connection, but he did not receive any reply from the plaintiff. This defendant while seeking permission of the court to file supplementary statement, if necessary at a latter stage, prayed the court to dismiss the suit with exemplary cost.

8.Defendant No.2 filed his written statement merely denying the averments of paragraphs 3 of the plaint and contending that this defendant did not call on the plaintiff bank twice as alleged. This defendant did not dispute the averments of paragraphs 1 and 2 of the plaint . The defendant sought permission of the court to file supplementary statement if found necessary at a latter stage. This defendant also prayed the court to dismiss the suit with exemplary cost.

9.Basing on the above pleading this court framed the following issues.

1) Whether the plaintiff is entitled to recover the suit claim amount of Rs.1,10,963/- from the defendants with cost and interest as prayed for ?

2) Whether the defendant No.1 is entitled to seek set off, of office professional fee as prayed for ?

3) To what relief ?

10.The plaintiff to prove its case got examined its Deputy

Manager as PW1 and got marked Exs.A1 to A8. The first defendant examined himself as DW1 and got marked Exs.B1 and B2. Defendant

No.2 did not choose to adduce any evidence on his behalf.

11.Heard both sides. Both counsel filed their written submissions.

12. ISSUE NO.1:

Whether the plaintiff is entitled to recover the suit claim amount of Rs.1,10,963/- from the defendants with cost and interest as prayed for ?

The defendants 1 and 2 in their written statement did not dispute the averments of paragraphs 1 and 2 of the plaint which relate to the request of the first defendant to provide loan and sanctioning of the loan by the plaintiff bank. Both the defendants though denied the averments of paragraph 3 of the plaint which relate to the availment of the personal loan of Rs.1,00,000/- and execution of

Ex.A1 to A4 documents viz., loan application, arrangement letter, personal loan agreement and deed of guarantee respectively. but nothing has been alleged or stated in the written statement, as to how the said documents came to be signed and executed by the defendants. Infact the defendants have not stated anything in their written statement specifically denying Exs.A1 to A4. On the other hand a perusal of cross examination of DW1/defendant No.1 clearly indicates that, DW1 admitted that Ex.A1 contain the photographs of himself and defendant No.2. DW1 also admitted to have executed

Ex.A1 loan application, Ex.A2 arrangement letter and Ex.A3 personal loan agreement. He also admitted that defendant No.2 stood as guarantor to the suit loan transaction. DW1 further admitted to have availed Rs.1,00,000/- for the marriage of his daughter, agreeing to repay the same in 36 installments of Rs.3,362/- per month with interest. He further admitted to have made last payment of Rs.3,385/- on 8-6-2007. DW1 also categorically admitted that the plaintiff bank has given credit made to all the payments made by him.

13.PW1 reiterated the averments of plaint in his affidavit of chief examination. Learned counsel for the defendant No.1 and 2 cross examined PW1 but failed to elicit any material to disbelieve and discredit the testimony of PW1 and Exs.A1 to A8. Both counsel merely suggested PW1 that Ex.A4 deed of guarantee is not valid since the same are not authenticated by defendant No.2. In view of the evidence of PW1 coupled with Ex.A1 to A8 and in view of categorical admissions of defendant No.1/DW1 in his cross examination regarding execution of Exs.A1 to A3 and availment of loan of Rs.1,00,000/-, the case of the plaintiff stands established.

There is absolutely nothing on record to doubt Ex.A8 statement of account maintained by the plaintiff bank during the regular course of business as per the Banker Books of Evidence Act. Dw1/defendant

No.1 has categorically admitted that all the payments made by him have been credited by the plaintiff bank and he also admitted to have made last payment of Rs.3,362/- on 8-6-2007. Learned counsel for the defendants in his written submissions submitted that the statement of account furnished by the plaintiff bank is totally irregular and the figures are contrary to the R.B.I guidelines. The defendants did not choose to dispute the correctness of Ex.A8 statement of account in their written statement. Nothings is elicited from the cross examination of Pw1 to disbelieve and discredit Ex.A8 statement of account. Infact PW1 is not even suggested to that effect. In view of my discussion and findings supra, it became evidently clear that the

Ex.A8 statement of account is correct . In such view of the matter and in view of my foregoing discussion and findings, I am inclined to hold that the plaintiff bank is entitled to recover the suit claim amount of Rs.1,10,963/- from the defendants who are jointly and severally liable to pay the same with cost and interest. The issue is held accordingly in favour of the plaintiff .

14. ISSUE NO.2:

Whether the defendant No.1 is entitled to seek set off, of office professional fee as prayed for ?

A perusal of the written statement filed by the first defendant indicate that the first defendant has not specifically pleaded set off.

In paragraph 4 of the written statement of defendant no.1, it is contended that the plaintiff bank wrongly debited an amount of

Rs.50,000/- and as such the first defendant claimed an amount of

Rs.2,50,000/- towards damages. The first defendant further contended that he rendered professional services for Rs.1,50,000/- to the plaintiff bank, but the plaintiff bank has not paid the said amount in spite of addressing letter to the head office of plaintiff bank.

Learned counsel for the defendants in his written statements would submit that the first defendant is entitled to recover an amount of

Rs.4,00,000/- from the plaintiff bank. He would further submit that, had the first defendant given opportunity, he would have proved his case for the entitlement of the said amount. It is very much clear from the perusal of written statement that the first defendant has not pleaded set off in his written statement. He merely stated that he is entitled for damages of Rs.2,50,000/- for the wrong debits of

Rs.50,000/- from his account and he rendered professional service for

Rs.1,50,000/-. The first defendant in this regard got marked Ex.B1 copy of letter dated 1-11-2006 addressed to the General Manager ( recoveries) Stated Bank of Hyderabad, head office Gunfoundary,

Hyderabad and Ex.B2 pass book. DW1 in his cross examination admitted that the amount pertaining to the cheque deposited on 3-4-2007 for Rs.50,000/- was reversed on 16-4-2007 due to dishonour of cheque. He also admitted that he has not taken any legal steps in respect of reverse entry except giving notice. It is thus very much clear from the material on record that the defendant has not pleaded set off and hence the oral and documentary evidence adduced by the first defendant in the shape of DW1 and Ex.B1 and B2 is of no help to him. It is settled principle of law that any amount of evidence without pleading is of no consequence.

15.It is admitted that the alleged claim of Rs.2,50,000/- towards damages and Rs.1,50,000/- towards the fees for professional services allegedly rendered by the first defendant is totally different claims which are nothing to do with the suit loan transaction. It is pertinent to mention here that the first defendant filed I.A.No.1582 of 2012 seeking impleadment of the General Manager of State Bank of

Hyderabad, Head Office Gunfoundry, and the said petition was dismissed on merits. Thereafter the first defendant filed I.A.No.1644 of 2012 to summon the General Manager of State Bank of Hyderabad,

Head office at Gunfoundary, Hyderabad and the same was also dismissed on merits. The said petitions were dismissed holding that the subject matter of the suit is nothing to do with the alleged claim of the first defendant and therefore the General Manager of State

Bank of Hyderabad cannot be impleaded and cannot be summoned.

The first defendant did not choose to prefer any revision. In these circumstance the contention of the learned counsel for the defendants that the first defendant would have proved his case of entitlement for the said amount, had he been given opportunity, becomes untenable.

Admittedly the plaintiff bank did not hire the services of first defendant. If at all the first defendant is entitled to any amount from the head office of plaintiff bank, nothing prevented him from initiating legal action against the concerned bank. The first defendant having failed to do so cannot agitate the same in the present suit. In view of all my foregoing discussion and findings I am inclined to hold that the defendant No.1 is not entitled to seek set off, of his alleged professional fees. The issue is accordingly held against the first defendant.

16. ISSUE NO.3:

To what relief ?

In view of discussion and findings on issues 1 and 2 it follows that the plaintiff is entitled to recover the suit claim amount of

Rs.1,10,963/- with cost and interest.

17. RESULT:

In the result, the suit of the plaintiff is decreed with cost for an amount of Rs.1,10,963/- and with interest @ 6% per annum simple from the date of suit till realization on the principle amount against the defendants 1 and 2 holding them jointly and severally liable to pay the same.

Dictated to the Personal Assistant, transcribed and typed by her,

corrected and pronounced by me in the open Court on this 29 th day of April, 2013.

I Senior Civil Judge City Civil Court, Hyderabad

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT:

PW1: T. Krishna Mohan DW1:K.S.R Murthy

DOCUMENTS MARKED FOR PLAINTIFF

Ex.A1: Loan application, dt. 15-2-2006. Ex.A2: Arrangement lettter, dt. 10-7-2006. Ex.A3: Personal loan agreement, dt. 10-72006 . Ex.A4: Deed of continuing guarantee, dt.10-7-2006 . Ex.A5: Office copy of legal notice dt. 19-1-2009. Ex.A6: The postal acknowledgment card of defendant No.1,dt.21-1-09 Ex.A7: The returned RP cover of defendant No.2, dt. 20-1-2009. Ex.A8: Extract of statement of account, dt. 28-1-2009 .

DOCUMENTS MARKED FOR DEFENDANT

Ex.B1: presentation, dt. 1-11-2006, to state bank of Hyderabad. Ex.B2: S/B. Account No. 52019835003 of defendant No.1.

I Senior Civil Judge City Civil Court, Hyderabad 523/09