IN THE COURT OF THE XXII JUNIOR CIVIL JUDGE, CITY CIVIL
COURT, HYDERABAD
FRIDAY THE 29 th DAY OF JULY, 2016.
PRESENT: SRI.N.SRIKANTH BABU,
XXII JUNIOR CIVIL JUDGE
OS.No.423 OF 2013
BETWEEN:
Syed Khasim, S/o Late Syed Mahboob, Aged about 72 years, Occ: Business, R/o. H.No. 82752/6, Bhola Nagar, Banjara Hills, Hyderabad.
...Plaintiff
AND
1.Mohammed Saleem Khan,
S/o.Late Mohammed Shareef Khan,
Aged about 47 years, Occ: Local Film Star, R/o H.No: 82751/2/B, Bhola Nagar, Banjara Hills, Hyderabad.
2. Mohammed Nayeem Khan,
S/o. Late Mohammed Shareef Khan,
Aged about 44 years, Occ: Business,
R/o. H.No: 82751/2/B, Bhola Nagar, Banjara Hills, Hyderabad.
(Suit is abated against Defendant No.2)
...Defendants
This suit coming before this court for final hearing in the presence of Sri. S. Bal Chand, Advocate for the Plaintiff and
Sri. Ch. Srinivas, Advocate for Defendant and the matter having stood over for consideration till this day, this Court delivered following: 2 O.S.No.423 of 2013
JUDGMENT
The suit is filed for perpetual injunction Under Order VII R 1 & 2 R/w Section 26 of C.P.C. to grant perpetual injunction restraining the Defendants, their henchmen, agents, workers, servants, representatives, etc, from interfering into the peaceful possession and enjoyment of Plaintiff over Suit Schedule
Property.
The brief averments of Plaint are:
1.The Plaintiff is the absolute owner and peaceful possessor of house bearing No.8275/5, (old number) 82752/6, (new number) situated at Bhola Nagar, Banjara Hills, Road No.2,
Hyderabad (herein after referred to as the suit schedule property) having purchased the same from Mohammed Yakoob through a
Registered Sale Deed. The Vendor of Plaintiff purchased the Suit
Schedule Property from Rahmathunnissa Begum, through
Registered Sale Deed and said Rahmathunnissa Begum purchased the property from Mizra Azam Ali Baig through
Registered Sale Deed Document. The Plaintiff from date of purchase of the suit schedule property is in peaceful possession and enjoyment of the same without any hindrance or interruption from any person. The Defendants who are no way concerned or connected with the suit schedule property visited the suit schedule property in the second week of December 2012, and tried to illegally dispossess the Plaintiff from the suit 3 O.S.No.423 of 2013 schedule property, but due to timely intervention of the Plaintiff and his family members could restrain the Defendants. The
Defendants again on 13012013, along with their henchmen illegally trespassed into the suit schedule property and tried to dispossess the Plaintiff from the suit schedule property, but due to the intervention of the neighbours of the Plaintiff, the
Defendants could not succeed in their illegal attempt and the
Plaintiff reported the matter to the concerned Banjara Hills P.S.
and they did not register any case by stating that this matter is of civil in nature and suggested the Plaintiff to approach before the Hon'ble Court of Law. The Defendants have been continuously threatening the Plaintiff to dispossess him from the
Suit Schedule Property by illegal methods. There is every threat that Defendants will take law into their hands and to dispossess the Plaintiff illegally from the Suit Schedule Property. In order to restrain the illegal acts of Defendants the Plaintiff filed present suit.
On the other hand, the Defendants filed their written
statement. The brief averments of the written statement
are :
2.The Defendants denied the allegations made by the
Plaintiff. There is no locality by name Bolanagar in Road no.2
Banjara Hills Hyderabad. The Bolanagar area is situated in Road
No:12 Banjara Hills Hyderabad. The Plaintiff is resident of 4 O.S.No.423 of 2013
H.No.82752/6 but the said house is situated at Road No.12 and not at Road No.2. The said house is situated in 80 Sq yards except the said extent the Plaintiff has no other land surrounding his house particularly on the west side boundary. The schedule mentioned in the sale deed document 472 of 1980 and the
Sketch attached thereto has no relevance and compare to the ground reality. There is no schedule mentioned in sale deed baring document no: 2425 of 1978 which is an alleged link document to Sale Deed bearing Document No. 472 of 1980.
Therefore, the schedule of property is non existing and it is not related to the house bearing no. 82752/6. To the knowledge of
Defendants there is no such person by name Rahamthunssa
Begum W/o Mohd Abdul Wahab and a person by name Mohd
Abdul Wahab in the said locality. The vendor in alleged
Document no: 2136 of 1968 Mirza Azam Ali Baig S/o Mirza
Khairat Ali Baig (late) was also not there and the documents are created in the factious names. The boundaries mentioned in the said Documents are also false. The northern side of boundary to the schedule mentioned property was shown as Road infact there is no road at all and the open land shown on the western side of the house as per the sketch is not correct. Infact there is no open land adjoining the house bearing No:82752/6 on the western side. The open land is a elevated area where in the
Defendant house is situated and the said land belong to
Defendants. But the name of the Defendants are not shown on 5 O.S.No.423 of 2013 the western side boundary. Further the house shown in the plaint had no axis to the land shown on the western side belongs to Defendants. The said open space was shown as if it is part of the house. The property claiming by the Plaintiff and the property shown in the schedule as per the sale deed bearing document no. 472/1980 is different and distinct. There is no house bearing no. 8275/5 in Bolanagar locality in presently or past and no such house number was allotted by MCH in
Bolanagar. In so far the house No. 82752/6 is concerned it is situated in an extent of 80 Sq. Yards which is situated below the property of Defendants. There is no dispute that the Plaintiff is residing in his house No: 82752/6 which admeasuring 80 Sq.
yards only.
3.The Defendants are only concerned with their land only and not interfering with possession of the Plaintiff herein infact the Plaintiff is in possession of 80 Sq. Yards only where in the house situated. There was a person by name Mohd Ismail, but there was no person by name shaik Ismail, the said shaik ahmed was the original pattadar of the land situated at Bolanagar 1st
Lancer, Banjara Hills Road No. 12 Hyderabad after his death his son shaik Ismail sold the said lands in the said locality. The father of Defendant purchased 684 Sq. Yards from Shaik Ismail for a valuable consideration of Rs 3,000/ in the year 1960 and the possession was delivered to the Defendants father on the day 6 O.S.No.423 of 2013 of execution of sale deed. Since then the family members of the
Defendants are in possession and enjoyment of the same. Out of the said land the Defendants have given pieces of land to various persons and now land in possession of Defendant is about 350
Sq.Yards. The Defendants never try to interfere with the possession and enjoyment of the Plaintiff in respect of house bearing no 82752/6 admeasuring 80 Sq.Yards, Bolanagar, 1st lancer Banjara Hills Hyderabad which is in possession and enjoyment of the Plaintiff. There is no cause of action arose for the suit as alleged the plaint. The Defendants humbly submits that the schedule of property mentioned in the plaint and the property claiming by the Plaintiff is different and distinct hence no perpetual injunction can be granted infavour of the Plaintiff for the said property. Hence, Defendants prays to dismiss the suit.
4.Basing on the pleadings of both parties, this court has framed the following issues.
i)Whether the Plaintiff is entitled to relief of perpetual injunction?
ii)To what relief.
5.At the time of trial Plaintiff himself got examined as PW1 and got marked Exhibits A1 to A8. Defendant No.1 himself got examined as DW1 and got marked Exhibits B1 to B6. Defendant
No.1 on his behalf got examined DW2 to DW4.
7 O.S.No.423 of 2013
6.The Plaintiff himself got examined as PW1 and lieu of chief evidence, the Pw1 filed his chief affidavit, the chief affidavit of
PW1 is replica of plaint. In support of his case PW1 got marked
Ex.A1 to A8. Ex.A1 is Registered Sale Deed vide document
No.472/1980 dated 25111978. The perusal of the document shows that house bearing Municipal No.8275/5 admeasuring 203 Sq.yards was purchased by the Plaintiff herein for a valuable sale consideration. Ex.A2 is the original Registered Sale Deed vide document No.2426/1978 dt.451978 along with translation copy. The perusal of Ex.A2 shows that one Rehmathunnisa
Begum sold the property situated at Bolanagar, for a valuable sale consideration to one Mohd Yakub Saheb. Ex.A3 is the original Registered Sale Deed vide document No.2136/1968 dt.8 71968. The perusal of the document shows that one Mirza
Azam Ali Baig has sold the property admeasuring 236 Sq.yards situated at Bolanagar to one Rehmathunnisa Begum for a valuable sale consideration. Ex.A4 and Ex.A5 are water tax demand notice and payment receipt which shows the house number as 82752/6. Ex.A6 is the H.P Gas receipt dt.0610 2012 which shows the house no.82752/6. Ex.A7 are the photographs (4 in number). Ex.A8 is the property tax bill.
7.PW1 during his cross examination stated that he purchased the property in the year 1978 and there are four 8 O.S.No.423 of 2013 rooms in the suit house. The suit house was built up in the area of 100 Sq.yards . Pw1 admitted that the suit house is in down level and rare side is on upper level. PW1 denied that the rare side portion is in the custody of Defendant and there is a house of Defendant. PW1 further stated that there is no such boundary wall behind the rare side portion. PW1 admitted that there is no access from the house expect the lane under Ex. A1. PW1 further stated that he do not know who is Md. Shareef and there is no house of Md. Saleem and open place does not belongs to him
Pw1 further stated that he do not know the father of Defendant by name Md. Shareef purchased a said house and open place shown in the photographs. PW1 denied the suggestionthat it is not true that shareef purchased the property in the year 1968 since then they have been, in possession of said property.
8.Defendant No.1, himself got examined as DW1 and got marked Exs.B1 to B6. DW1 filed his Chief Affidavit in lieu of his chiefexamination, chief affidavit of DW1 is replica of written statement filed by him. In support of is case Defendant got marked Exs.B1 to B6. Ex.B1 is the Sale Deed dt.15021960, (Subject to objection). Ex.B2 are Electricity Bills (two in number). Ex.B3 is the Office Copy of reply issued by Electoral
Registration Officer dt.17072013. Ex.B4 is the Office Copy of
Letter issued by Deputy Commissioner, GHMC, dt.24062013.
Ex.B5 is the Complaint given to Hon'ble Secretary, Legal 9 O.S.No.423 of 2013
Services authority, Nampally Criminal Courts, Hyderabad, dt.27 072012 along with Order dt.31072012. Ex.B6 are the
Photographs (21 in number) along with CD.
9.DW1 during his crossexamination stated that his father's name is Md.Shareef and his father's name was never changed for any purpose. The Father of DW1 expired at about 20 years ago and his Mother expired at about 16 years ago. DW1 further admitted that they are claiming suit schedule property by way of
Ex.B1. DW1 admitted that no where in Ex.B1 it is mentioned that it is continued in page No.2 and also admitted that boundaries and the location of the property are not mentioned in
Ex.B1. DW1 further stated that no document was executed by his Father transferring the property under Ex.B1 during his life time, DW1 added that the property under Ex.B1 was orally transferred to his brothers. DW1 further admitted that the
Stamp Paper on which Ex.B1 was executed is not in the name of his Father. Further stated that he has not filed the letter given to
GHMC dt.22052013 as stated in reference column in Ex.B4.
Further, admitted that House Number mentioned in Ex.B2 is not that of suit schedule property, further added that house mentioned in Ex.B2 is old house number which is of 35 years ago. DW1 further stated that for every property there will one plan and he has filed three plans under Ex.B1, DW1 added that they have the copies of one plan which are distributed among the 10 O.S.No.423 of 2013 brothers, DW1 admitted that he has not filed the documents with regard to plans mentioned above. DW1 further admitted that either in his written statement and also in his chief affidavit is no where mentioned that to whom and how much his Father has distributed the land. DW1 admitted that he has not filed any document to show that Plaintiff is holding 80 Sq.yards and further admitted that Plaintiff is residing in H.No.82752/6.
10.The Defendant in support of his case got examined one
Khaja Nizamuddin, as DW2. The evidence of DW2 shows that he knows Plaintiff and Defendants and his house is situated side of Plaintiff's house to an extent of 250 Sq.yards and beside propertyi.e., open plot was purchased by his Father, way back in the year 1975. DW2's father subsequently purchased a piece of land from Defendants' mother under unregistered sale deed. The father of DW2 constructed the house in the entire site including the site purchased from Defendants Mother. The Plaintiff has no open site on any side of his house and the site behind the
Plaintiff's house belongs to the Defendants family. The
Defendants family has a small house in the said open site. The
Defendants family members are in possession said house and open site since many decades. The Plaintiff and his son tried to tresspass into the said land of Defendants to grab the same, for which they filed a complaint against the Plaintiff and his son in
Banjara hills Police Station.
11 O.S.No.423 of 2013
11.DW2 during his crossexamination stated that his parents are no more and the house where he is staying belongs to his father. DW2 further stated that he knows the Plaintiff, since his childhood who is his neighbour. Further, stated he has seen the title deeds of the property belonging to his father. The house number where the DW2 is residing is 82752/7. Further, stated that the title deeds which belongs to his father shows that house number as 82740, which is old one. Further, stated that he knows Defendant from the age when he was 12 years.
Further, stated that he has gone through the title deeds of the
Defendant. Further, stated the unregistered sale deed which was executed by the Mother of the Defendant in favour of his father, where there is no tracing of title of Mother of Defendant.
Further, stated that hillock behind the property of his father and
Plaintiff. The portion of hillock is covering the property of his father as well as Plaintiff. DW2 denied that a lane is existing in between the property of Plaintiff and that of his father. The lane in between the house of the Plaintiff and his house comes within the boundary of the house purchased by his father. Further, stated that the property claimed by the Defendant No.1 belongs to his father. Further, stated that as far as his remembrance the land referred to in the title deeds which belongs to the father of
Defendant No.1 is 683 Sq. yards. Further, stated that he has seen the installation of electricity meter and he does not know on 12 O.S.No.423 of 2013 whose name the meter stands. Further, stated that there is no record filed before this Court to show and established that they exist a room in the open site. Further, stated that there is a open site behind the house of the Plaintiff and he is not aware whether the open site and the constructed area belongs to Plaintiff. DW2 denied the suggestion that there was no occasion for the Plaintiff and his son to tresspass into the property and, as such, he did not file any office copy of police complaint. DW2 admitted that since the Defendants were trying to take illegal possession of
Plaintiff's property the present suit is filed.
12.The Defendant in support of his case got examined one
Saber Sharif, as DW3. The Evidence of DW3 shows that he knows the Plaintiff and Defendant, since more than three decades. DW3 purchased house bearing No.82752/7/A, admeasuring 186 Sq. yards from Ameena Bee and others in the name of his Wife in the year 1979, under a Registered Document.
DW3 and his family were the tenants of the said house and they are residing at the said house for more than 35 years. In between the house of Defendant No.3 and the house of the
Plaintiff, the House of Khaja Moinuddin is situated. The Plaintiff has no open space on any side of his house except the passage on the eastern side. The Defendants father had a large extent of open site and a small house wherein even before the DW3 constructed their house. The father of Defendants during his 13 O.S.No.423 of 2013 lifetime sold and gave small extents of land to various persons.
The Defendants house and the open area are situated at the rare side of Plaintiff's house. The Defendants house and a land is an elevated area and the house of Plaintiff is down below the same.
The Defendants are in continuous possession and enjoyment of the same from several decades and the Plaintiff is never in possession of the disputed site. There are several allegation on the Plaintiff and his son and it is learned that several cases are pending against them in police station regarding illegal tress pass and grabbing.
13.DW3 during his cross examination stated that the property in which he is residing was received by way of gift and admitted that the said property was received by his wife by way of gift from her father. Further, stated that his wife acquired 184 Sq.yards under the gift deed. DW3 was not a tenant in the said house.
Further, admitted that he has not filed any documents to show that he is residing in H.No.82752/7/A. Further, admitted that on one side of his house the house of his co brother is situated and on the other side the house of Khaja Mohiuddin house is situated. Further, admitted that there is a lane adjacent to the property of Khaja Mohiuddin and after the said lane the house of
Plaintiff is situated. Further, stated that he do not know who is
Ameena Bee has referred in his chief affidavit. Further, stated that his statement in chief affidavit that Plaintiff has no open site 14 O.S.No.423 of 2013 on any side of his house is not correct. DW3 denied that the suggestion that the statement with regard to that there is no open site on any side of Plaintiff property is without any basis.
Further, stated that he do not know whether the open space behind the property of Plaintiff is part and parcel of the property of Plaintiff and the same is shown in Ex.A1. Further, denied the suggestion that the Defendants are not owning any property on the rare side of the Plaintiff property. Further, denied the suggestion that the Defendants are not in possession and enjoyment of any property adjacent to the property of Plaintiff.
14.Defendant in support of his case also got examine one
Mohd Yousuf as DW4. The evidence of DW4 shows that he knows Plaintiff and Defendant since more than three decades.
The house which DW4 is residing was assigned with Municipal
No.82752/23/2 and he is residing in the said house since his childhood. By the time the father of DW4 purchased the property, the house of Defendants father was already existing in large extent and they are in possession of said house for more than forty years. The Defendants small house is presently situated approximately in the extent of 400 Sq.yards. The house of Plaintiff is situated down below the open site of Defendants. In between the house of DW4 and the house of Plaintiff the house of Defendants is situated. The Plaintiff has no open site on the rare side of his house. Mohd Sharif during his life time sold or 15 O.S.No.423 of 2013 given freely small extent of land to various persons. The house of
Defendants and open area which is an elevated area situated on the rare side of Plaintiffs house. The Defendants are in continuous possession and enjoyment of the same from several decades and the Plaintiff is never in possession of the disputed site.
15.DW4 during his cross examination stated that the house of Plaintiff is situated after three or four houses from his house.
Further, stated that he has never seen the title documents of property which belongs to the father of Defendant No.1. DW4 admitted that on the entrance of his property there is a name board on which the name of his father is mentioned and below that house No.82740/B/2 is mentioned and at present the
Municipal number for his father's property is 82752/23/2 and in the area where he is residing the house number will change from time to time. Further, stated that he has not seen any document which shows that the property of Defendant is approximately 400 Sq.yards and he has not seen any title documents showing the source of title claimed by the
Defendants. DW4 denied the suggestion that the Defendant is not in occupation of any house with an extent of land admeasuring 400 Sq.yards approximately. Further, denied the suggestion that the open area of the land on the rare side of his property is owned and possessed by the Plaintiff. Further, stated 16 O.S.No.423 of 2013 that the house in which the Defendant is presently residing is 300 meters away from his property and the open area is adjacent to his property. Further, stated that he has not seen the property of Plaintiff as such he cannot say the physical appearance of the property. The Bolanagar area is on Hillock.
Further, stated that he has not filed any document to show that the house of Defendant is situated in between his house and that of the house of Plaintiff. Further, stated that he has not seen any document showing the title of father of Defendant. Further, stated that his statement in chief affidavit that the Plaintiff has no open site on any side of his house of Plaintiff is not correct.
Further, denied the suggestion that Mohd Shareef is not owning any land and as such the distribution of said land or selling of the same does not arise. Further, stated that he do not know whether the open space behind the property of Plaintiff is the part and parcel of the property of Plaintiff and the same is shown in Ex.A1. Further, denied the suggestion that Defendants are not in possession and enjoyment of any property adjacent to the property of Plaintiff and also denied the suggestion that Plaintiff is in possession of the property.
Issue No.1: Whether the Plaintiff is entitled to relief of perpetual injunction?
16.The present suit is filed for perpetual injunction to restrain the Defendants from interfering with the peaceful possession and 17 O.S.No.423 of 2013 enjoyment of Plaintiff over the suit schedule property. The present suit is filed with regard to property admeasuring 203
Sq.yards. The Defendant is stating that the Plaintiff is residing in the land which is admeasuring 80 Sq.yards only but not, as shown in the suit schedule property.
17.It is the case of the Plaintiff that he is absolute owner and possessor of house bearing municipal no.8275/5 (old number), 82752/6 (new number) situated at Bolanagar, Banjara Hills,
Road No.2 Hyderabad, which is the suit schedule property, having purchased the same property from Mohd. Yakub under
Registered Sale Deed. The vendor of Plaintiff purchased the property from Rahmathunnisa Begum under registered sale deed in the year 1978 and the said Rahmathunnisa Begum purchased the Suit Schedule Property from Mirza Azam Ali Baig under registered sale deed in the year 1968. Since from the date of purchase, the Plaintiff is in possession of the property and the
Defendants who are no way concerned with the suit schedule property visited the property in the second week of December, 2012 and also on 13012013, tried to dispossess the Plaintiff from the property.
18.It is the case of the Defendant that there is no locality by name Bolanagar in Road No.2, Banjara hills, Hyderabad. The
Bolanagar area is situated in Road No.12, Banjara hills, 18 O.S.No.423 of 2013
Hyderabad. The property of Plaintiff is 80 Sq.yards except the said extent the Plaintiff has no other land surrounding to the said house particularly on the western side boundary. To the knowledge of Defendant there is no person by name
Rehmathunnisa Begum and also Mirza Azam Ali Baig in the said locality and all the family members of Defendants were born and brought up in the said locality. The boundaries mentioned in the documents are also not correct especially with regard to northern and western side boundaries. There is no house bearing no.82 75/5 in Bolanagar locality at present or in past and no such house number was allotted by MCH in Bolanagar and so far as the house no.82752/6 is situated in an extent of 80 Sq.yards, which is below the property of Defendant and the Plaintiff is in possession of the 80. Sq. yards. One Shaik Ahmed was original pattadar of the land situated at Bolanagar, Road No.12, Banjara hills, Hyderabad and after his death his son by name Shaik
Ismail sold the said land in the said locality and the father of
Defendant purchased land to an extent of 684 Sq.yards. from
Shaik Ismail for a valuable sale consideration in the year 1960 and since then the family members of Defendants are in possession and enjoyment of the same. Out of the said land the
Defendants were given pieces of land to various persons and now the remaining land is in the possession of Defendants.
The counsel for Defendant relied on the Judgment of
Hon'ble High Court of Andhra Pradesh, between Medikonda
19 O.S.No.423 of 2013
Samba Siva Rao @ Sambaiah and others Vs. Panchayat
Secretary, Grampanchayat, Bhattiprolue village and Mandal,
Rapelle, Guntur District, which was reported in 2014 (4) ALD 713, in which the Hon'ble Court held that “the witnesses examined by the appellants, comprised of themselves i.e., Pws.1 and 2, and two neighbours, Pws.3 and 4. Once the respondent doubted and challenged the very validity and genuinity of Ex.A2, the appellants were under obligation to discharge their burden in this behalf. Obviously because, no efforts were made by the appellants to prove Ex.A2, the trial court recorded a finding that the plea, as to assigning of plot in favour of the mother of the appellants, through Ex.A2, is not proved. Even before this court, the learned Counsel for the appellants, is not able to substantiate that contention.
The counsel for Defendant also relied on the Judgment of
Hon'ble High Court of Andhra Pradesh, between Sudhakara
Reddy Vs. Lakshmamma, which was reported in 2014 (5) ALD 385, in which the Hon'ble court held that “ in a suit for perpetual injunction the court has to consider who was in possession of the suit schedule property as on the date of the filing of the suit.
However, the court can incidentally look into the title of the parties in an injunction suit if the circumstances so warrants.
Further held that in order to appreciate the rival contention of both parties, this Court is placing reliance upon the decision in 20 O.S.No.423 of 2013
Ananthula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, wherein it is held that :
“The position in regard to suits for prohibitory injunction relating to immovable property, is summarised as under :
(a)Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b)As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c)But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there 21 O.S.No.423 of 2013 is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d)Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved in simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
The counsel for Defendant also relied on the Judgment of
Hon'ble High Court of Andhra Pradesh, between Kumar Brothers
& Co., Hyderabad Vs. A.P. Housing Board, Hyderabad and 22 O.S.No.423 of 2013 another, which was reported in 2014 (4) ALD 276, in which the
Hon'ble Court held that “ in a suit for injunction simplicitor, the
plaintiff must not only establish that he is in lawful possession and enjoyment of the property as on the date of filing of the suit but also prove that his legal right is infringed or invaded by the defendant which gives rise to cause of action for filing the suit for injunction. Mere unlawful possession or unauthorized occupation is not sufficient to claim permanent injunction.
The counsel for Defendant also relied on the Judgment of
Hon'ble High Court of Andhra Pradesh, between Yachamaneni
Rajaiah Naidu Vs. Yachamaneni Munikrishnaiah and others, which was reported in 2013 (3) ALD 533, in which the Hon'ble
Court held that “in a suit for injunction, what becomes material is the state of affairs, pertaining to possession as on the date of filing of the suit. The title is certainly important, but assumes significance only after possession. The appellant, no doubt, purchased eight items of property through four contemporaneous sale deeds in the year 2005. The respondents, however, pleaded that about three decades earlier to that, the father of the vendor of the petitioner conveyed the lands through three sale letters, marked as Exs.B1 to B3. Though the title to the respective properties is yet to be established, if the appellant was able to prove his possession over the property, the relief of injunction could have certainly been granted.
23 O.S.No.423 of 2013
The counsel for Defendant relied on the Judgment of
Hon'ble High Court of Andhra Pradesh, between Kammagani
Nadham and others Vs. Vangala Raja Malla Reddy, which was reported in 2014 (4) ALD 476, the facts and circumstances of the case does not apply to the instant case.
19.The Plaintiff is stating that he is in possession of suit schedule property since from the date of purchase of the property in the year 1978. The Defendants were stating that the
Bolanagar area which the Plaintiff is showing he Suit Schedule
Property is situated in road No.12 and not in road No.2. The house number i.e., 82752/6 is that of 80 Sq.yards except the said property the Plaintiff has no other land surrounding his property particularly on western side. The perusal of Ex.A1 only shows the house number 8275/5 three room tenements admeasuring 203 Sq.yards. The schedule of the property shown under Ex.A1, shows eastern side road, western side hills and on north and southern side, 6 ft. vide lane and house of Mohd
Afazal respectively. The perusal of the document only disclose about three room tenements and it is no where mentioned about the open place which is shown in the plan attached to Ex.A1.
The perusal of Ex.A2 shows the Municipal No.8275/5 and road number as 8 which is admeasuring 203 Sq.yards. It is no where mentioned with regard to the construction portion or that of the 24 O.S.No.423 of 2013 extent of open land as shown in the plan annexed to the document. The schedule of the property shown under Ex.A2 is on eastern side as road, western side as mountains, southern side as house of Mohd Afzal and on the northern side seri 3' 6”.
The perusal of Ex.A3 shows that the vendor has owned and possessed and open plot of land with newly constructed walls of land admeasuring 236 Sq.yards situated at Bolanagar and no road number is mentioned in the document. The suit schedule property shown under the document is on the northern side plot of Mohd Ibrahim, Southern side plot of Mohd Afzal and eastern and western side, road and mountains respectively. The perusal of the plans under Ex.A1 to Ex.A3 some part of property is shown as open land and after that there are hills i.e., the western side boundary. No where in Ex.A1 to A3 the description of the property shown as that the part of property is constructed and part of property is open land. PW1 during his cross examination stated that there are four rooms in the suit house and built up area is 100 Sq.yards. PW1 during his cross examination admitted that suit house is in ground level and rare side is on upper level. PW1 admitted that there is no access showing the house to the rare side except from the lane under Ex.A1. The
Defendant stating that his father has purchased the property in the year 1968 under Ex.B1. The perusal of Ex.B1 does not show any boundaries and the extent is shown as 684 Sq.yards which shows it was executed in the year 1960. There are three plans 25 O.S.No.423 of 2013 attached to Ex.B1 in which north, east and western side is shown as open area and on the southern side shown as road and the other two plans shows the distribution of the said plot of 684
Sq.yards among the sons of Sharif Khan who is the vendee under
Ex.B1. The Defendant is stating that the Plaintiff is in possession of 80 Sq.yards and the property which is behind the property of Plaintiff on the upper side is that of the Defendants and they are in the possession of property since 1968 and the property also consists of one room.
20.The Defendant in his written statement has stated that there is no location by name Bolanagar in Road No.2, Banjara
Hills. The said Bolanagar area is situated in Road No.12,
Banjara Hills. The property shown by the Plaintiff in suit schedule property with said House Number is only an extent of 80 Sq.yards and except that extent, the Plaintiff has no other land surrounding his house particularly on the western side.
The Defendant in support of his contention has filed Ex.B3 which is the office copy of reply issued by Electoral Registration officer.
This reply was issued in reply to the application filed by Nayeem
Khan (Defendant No.2). In the said letter it is mentioned that the
Electoral roll records pertaining to house No.8275/5 Banjara
Hills, Hyderabad from the year 1968 to 1970 are not available and the Electoral rolls 1975 is available, but the name and house number is not available in the records of A.P. State Archives and 26 O.S.No.423 of 2013
Research Institute. The Defendant also filed Ex.B4 which is the office copy of letter issued by GHMC on 2462013. This letter was issued by GHMC to Nayeem Khan (Defendant No.2), which shows that the said house no. 8275/5 is not traced in over assessment records. The Defendant has filed Ex.B3 and Ex.B4 to show that house No.8275/5 is not traced. The Plaintiff has not filed any documentary proof to prove his contention that 82 75/5 is old number and 82752/6 is a new number given to the suit schedule property. The Plaintiff has also not examined any witness to prove the contention that the property is situated and in existence as stated by him in the schedule of the property.
The Plaintiff has not filed any documents to prove the identity of the property as per his case, when the Defendant had specifically disputed with regard to identity of property. The DW2 during his cross examination stated that his residence number is 82752/7 and the title deeds which belongs to this father shows 82740 and the house number shown in title deeds was old one and the house number is renumbered. DW3 in his chief affidavit stated that he is residing in House No.82752/7/A, Bolanagar, Road
No.12, Banjara Hills and during his crossexamination he stated that he cannot file any municipal records to show that H.No.82 752/7/A is existing and denied the suggestion that there is no house in the said number. DW4 also in his chief affidavit stated that is residing in house no.82752/23/2 and the said house was assigned with the number and he is residing in the said 27 O.S.No.423 of 2013 house since his childhood and the said house was constructed way back in the year 1975. During his crossexamination he stated that at the entrance of their property there is a name board on which the name of his father is mentioned and the house number on the door is mentioned as 82740/B/2 and at present the municipal to their property is 82752/23/2 and further stated that the house number will change from time to time in that area. The house numbers of the witnesses i.e., DW2 to DW4 are in one series and all are residents of the same locality that of Plaintiff and Defendant, but the said series which was shown by the Plaintiff as 8275/5 as old one could not be observed. The Plaintiff has not filed any documents and lead any evidence to prove his contention that the property which shown to the schedule of the plaint had old house number 8275/5 subsequently it was given a new number 82752/6.
21.The Plaintiff has filed suit for perpetual injunction with regard to the property admeasuring 203 Sq.yards but the
Defendant in his written statement stated and admitted that the
Plaintiff is in possession of only 80 Sq.yards and there is no other open land which belongs to the Plaintiff around his property.
The Defendant is stating that there is no open land behind the property of Plaintiff and there is only an elevated open area behind the property of Plaintiff, which belongs to the Defendants which was purchased by his father way back in the year 1960.
28 O.S.No.423 of 2013
The Plaintiff is claiming right over the entire property of 203
Sq.yards. The perusal of Ex.A1 which is the title document as stated by the Plaintiff describes only with regard to three rooms tenement in the property and no whisper with regard to the elevated area or open area which is behind the suit schedule property. PW1 during his cross examination has stated that he purchase the property in the year 1978 and there are four rooms in the suit house which was constructed in 100 Sq.yards. PW1 during his crossexamination stated that the suit house is in down level and the rare side is in upper level but the same fact was not mentioned by the Plaintiff in his plaint averments or in chief examination. The Plaintiff has filed water bill and also payment receipt i.e., Ex.A4 and Ex.A5 in which house number is mentioned as 82756 and also same is mentioned in Ex.A6. The documents filed by Plaintiff does not disclose or show that the
Plaintiff is also in the possession of open elevated area which is on the rare side of suit house. The Defendant is not disputing about the suit house and he is admitting that the Plaintiff is in possession of 80 Sq.yards but he disputing about the open land and stating that the same belongs to them. The Defendant filed
Ex.B1 which is agreement of sale which shows that his father has purchase the property of land admeasuring 684 Sq.yards but the perusal of the document does not disclose any house number and also no boundaries are mentioned in the document which does not helps the case of the Defendants. The plans which are 29 O.S.No.423 of 2013 annexed to the document shows the extent but there is no related document to the plans filed before this court. The
Defendant No.1 is also claiming ownership over the open land which is on the rare side of the property and he is stating that he is in the possession of said property. The Defendant has filed
Ex.B2 which are electricity bills two in number which shows the address as 82752/43, which is in the name of Khaleem Khan.
The Plaintiff is claiming the right over the open land which is behind the property and the Defendant is also stating that he is in possession of the open elevated area behind the property of
Plaintiff. The Plaintiff has not specifically filed any documents to show that he is in possession of the open land. The Plaintiff has only filed Ex.A1 to A6 to show that he is in possession of the property. The Defendants also filed Ex.B2 which are electricity bills to show his possession over the property. Defendant in support of his case got examined DW2 to DW4. The evidence of
DW2 shows that it was specifically stated by DW2 in his chief affidavit that the Plaintiff has no open site on any side of his house and the site behind the property of Plaintiff belongs to
Defendants family and there is a small house of Defendants in the said open plot. DW2 during his crossexamination stated that there was hillock behind the property of his father and
Plaintiff and portion of hillock is covering the property of his father as well as Plaintiff and further stated that the property claimed by the Defendant No.1 belongs to the father of Defendant 30 O.S.No.423 of 2013
No.1. Further, stated that he is not aware whether the open site and constructed area belongs to Plaintiff. DW3 in his chief affidavit stated that the Plaintiff has no open site on any side of his house except the passage lane on eastern side and the father of Defendants had a large extent of open site and a small house.
The Defendants house and open area is situated on the rare side of the Plaintiffs house which is an elevated area. DW3 during his crossexamination stated that his statement in his chief affidavit that Plaintiff has no open site on any side of this house of
Plaintiff is not correct. DW3 further stated that he do not know whether the open space behind the property of Plaintiff is a part and parcel of property of Plaintiff and the same is shown in
Ex.A1. DW4 in his chief affidavit stated that the Plaintiff has no open site on any side of his house except the passage lane on eastern side and the father of Defendants had a large extent of open site and a small house. The Defendants house and open area is situated on the rare side of the Plaintiff's house which is an elevated area. DW4 during his crossexamination stated that his statement in his chief affidavit that Plaintiff has no open site on any side of this house of Plaintiff is not correct. DW4 further stated that he do not know whether the open space behind the property of Plaintiff is a part and parcel of property of Plaintiff and the same is shown in Ex.A1. The Plaintiff has shown in the schedule of the property as 203 Sq.yards without specifically stating with regard to the constructed area and also open place 31 O.S.No.423 of 2013 claiming that he is the owner of entire property. The Defendants are stating that they are the owners and possessors of the open land which is the elevated area who acquired the property from their parents. Defendants also filed Ex.B2 to show that there is electricity connection subsisting in the single room which is present in the open space. Both parties are claiming owner ship over the open space behind the property. It is the bound and duty of the Plaintiff and burden of proof also lies on the Plaintiff to prove his case even though the Defendants has not produced any evidence. The Plaintiff has not filed any specific document to show that the open site which is behind his property belongs to him and he is the absolute owner of the property. The perusal of
Ex.A1 to A3 also does not disclose anything about the elevated area or the open site which is behind the house of the Plaintiff.
That the fact of ownership which regard to open site is disputed by the Defendants and the Plaintiff has to prove and file sufficient evidence before this court to substantiate his case proving the possession over the land. The Plaintiff has not filed any such documents or not examined any witnesses to prove the said fact.
22.This Court has appointed an Advocate Commissioner to note down the physical features and also the measurement of the suit schedule property. The Advocate Commissioner,
P.Krishnaiah, after issuing notice to both parties conducted the 32 O.S.No.423 of 2013
Commissioner work on 1372013 and filed the report before this
Court. The perusal of Commissioner report shows that the
Commissioner conducted the Commissioner work on 1372013.
The Advocate Commissioner has taken the measurements of the suit schedule property with the help of private surveyor and himself drafted the rough sketch of the property and also filed neat copy of sketch. While the execution of warrant the
Petitioner/Defendants has handed over the work memo requesting the Commissioner to note down the Municipal number of suit schedule property, to measure the extent of suit house, to note down the boundaries and surroundings of suit house. The perusal of Commissioner report shows that he has commenced the Commissioner work as per the orders of this
Court but in the report he stated that the total area of suit schedule property is, but he has not mentioned the extant which is kept blank. Further, stated that he has found a small passage towards the north side of the property. The Advocate
Commissioner further enquired two local residents (1) Mirza
Jafarul beig (2) Hussain Bee, who are the neighbours of suit schedule property and they stated that suit schedule property comes under Road No.12 Bolanagar, Banjara Hills. The Advocate
Commissioner has also given the boundaries of suit schedule property as EAST : Tin shed Houses of Respondent/Plaintiff.
WEST: Hill and one small room not under use. NORTH: House of Khaja Moinuddin H.No.82752/7 (Electricity bill collected 33 O.S.No.423 of 2013 from the resident.). SOUTH: House of Mohd. Afzal Khan H.No.8 2752/C. The perusal of Commissioner report shows that the
Commissioner has specifically stated that when he enquired to local residents where the suit schedule property is situated they replied that it comes under Road No.12, Bolanagar, Banjara
Hills. This Court has ordered the Commissioner to note down the physical features of suit schedule property but the perusal of the sketch filed by the commissioner shows that he has only taken the measurements of open area which is behind the property of the Plaintiff. The boundaries mentioned by the commissioner shows that on the Eastern side it is mentioned as tin sheds houses of Plaintiff, and on western side it is mentioned that hill and one small room not under use and Northern side it is shown as house of Moinuddin H.No.82752/7, and on the southern side House of Mohd. Afzal Khan is shown. The perusal of suit schedule property and with that of Commissioner report southern side is tallied but the north side is not tallying with the report of commissioner. The plans filed under Exs.A1 to A3 also shows lane on the northern side of the property but the commissioner report shows that on the northern side house of
Khaja Moudiin is situated. The schedule of the property is not totally tallied with commissioner report and moreover the commissioner in his report stated when he enquired with the neighboring persons of same locality where the suit schedule property is situated, they stated to the commissioner that the 34 O.S.No.423 of 2013 suit schedule property comes under Road No.12, Bolanagar,
Banjara Hills, Hyderabad. The Plaintiff in the plaint schedule property has mention that the property is situated in Road No.2,
Banajra Hills, and commissioner report says that it is situated in
Road No.12. The Defendants have also taken the plea that the property which the Plaintiff is showing that Plaintiff is residing at
Road No.12, but not at Road No.2. The Plaintiff has failed to prove and produce evidence with regard to the identity of the property.
23.The Plaintiff is stating that the Defendants have interfered into his possession in the second week of December, 2012 and also on 13012013. The Plaintiff has pleaded that the
Defendants have interfered into suit schedule property but he has not specifically mentioned whether elevated open land are into the constructed house where the Plaintiff is residing. The
Plaintiff has not let in any evidence nor filed any documents to prove that the Defendants interfered into his possession on the above said mention dates. On the other hand, the Defendant is also claiming the ownership over the open land and moreover they admitted that the Plaintiff is residing in 80 Sq. yards and stated they never interfered into the possession of the Plaintiff with regard their house No.82752/6. The Defendants have filed a copy of complaint given against Syed Khasim and Syed
Imran and also 6 others who are tresspassing into their property 35 O.S.No.423 of 2013 and trying to grab it. The said complaint was given to the Hon'ble
Secretary, Legal Services Authority, Nampally Criminal Courts,
Hyderabad which was marked as Ex.B5. The perusal of Ex.B5 shows that his father is absolute owner of immovable property bearing No.82752/43, admeasuring 684 Sq. yards. The said
Syed Khasim i.e., Plaintiff herein and syed imran have tress passed into the property and installed water tanks and broken stones. Further, stated that the above said person are trying to grab their property, as such, they made complaint to the police, but no action was initiated. The above said persons are showing fake and forged documents posing themselves as owners of the said property. By way of Ex.B5 the Defendant No.2 has requested the Hon'ble Authority to protect their lives and property. On the said complaint the Hon'ble Authority has returned the complaint on the reason that no medical certificates of his brother are filed. The Plaintiff has not filed any copy of the complaint as stated by him in his plaint that he reported the matter to the concerned Banjara Hills Police Station. The
Plaintiff has not produced any evidence with regard to the alleged interference made by the Defendants. The Document i.e., Ex.B5 filed by the Defendants shows that there are disputes between the Plaintiff and Defendants with regard to the property and
Defendant No.2 made a complaint against the Plaintiff and 6 others. The Plaintiff has approached his Court for grant of perpetual injunction. It is the bounded duty of the Plaintiff to get 36 O.S.No.423 of 2013 the relief of perpetual injunction he has to prove that he is in possession of suit schedule property as on date of filing of the suit. The Plaintiff cannot rely on the weaknesses of the
Defendant, even though the Defendants has not produced any evidence the Plaintiff has to prove his case. In the instant case the Plaintiff has filed to prove the identity of the property and also failed to prove that he is in possession of the entire 203 Sq.
yards where it consists of 3 room house and also open place.
The Defendants admitted that the Plaintiff is in 86 Sq. yards and he is residing there. The Defendant also claimed that the open land belongs to the Defendants. The Plaintiff has not filed sufficient evidence to prove that the open elevated area on the rare side of his house belongs to him. This Court is of opinion that the Plaintiff has failed to show that he is in possession of entire Suit Schedule Property as on date of filing of this suit. The
Plaintiff has also failed to prove that the Suit Schedule Property had an old number i.e., 8275/5 and subsequently it was given with house No.82752/6 and the above said two house numbers was given for a single property and it is situated at Road No.12,
Banjara Hills. In view of the circumstances this Court is inclined to dismiss the suit. Hence, issue No.1, is answered against
Plaintiff.
Issue No.2 : To what relief?
In the result, this suit is hereby dismissed. No costs.
37 O.S.No.423 of 2013
Typed to my dictation, by Personal Assistant corrected and
pronounced by me in the open Court on this the 29th day of July,
2016.
Sd/
XXII JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF FOR DEFENDANT
PW1 : Syed KhasimDW1 : Saleem Khan DW2 : Khaza NizamuddinDW3 : Saber Sharif DW4 : Mohd. Yousuf
DOCUMENTS MARKED FOR PLAINTIFF
Ex.A1 is the registered sale deed vide document No.472 of 1980, dt.25111978. Ex.A2 is the original registered sale deed vide document No.2426 of 1978 dt. 04051978 along with English translation copy. Ex.A3 is the original register sale deed vide document No.2426 of 1978, dt.08071968. Ex.A4 is the water tax demand notice dt.20092011. Ex.A5 is the water tax payment receipt, 26102012. Ex.A6 is the HP Gas receipt, dt.06102012. Ex.A7 are the photographs ( 4 in number ). Ex.A8 is the property Tax bill 2006 – 2007.
DOCUMENTS MARKED FOR DEFENDNATS
Ex.B1 is the sale deed dt.15021960. Ex.B2 is the electricity bills ( 2 in number ). Ex.B3 is the office copy of reply issued by Electoral Registration Office, dt.17072013. Ex.B4 is the office copy of letter issued by Dy. Commissioner, GHMC, dt.24062013. Ex.B5 is the complaint given to Hon'ble Secretary, Legal Services Authority, Nampally, Criminal Courts, Hyderabad dt.27072012 along with order dt.31072012. Ex.B6 is the Photographs ( 21 in number ) along with CD.
38 O.S.No.423 of 2013
Sd/
XXII JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.