IN THE COURT OF XVIII ADDITIONAL SENIOR CIVIL
JUDGE CITY CIVIL COURT, HYDERABAD
MONDAY, THIS THE EIGHTH DAY OF AUGUST, 2016
Present: P.Chandra Sekhara Prasad, XVIII Additional Senior Civil Judge, City Civil Court, Hyderabad.
S N o .32 of 2003 O
Between:
Syed Ahmed Hussain, S/o S.Mahmood Hussain, Aged about 49 years, Business, R/o. H.No.122823/A/111/1,
Ahmed Residency, Mehdipatnam, Hyderabad, ...Plaintiff
And
Syed Saber Hussain, S/o S.Mahmood Hussain, Aged about 67 years, Business, R/o.H.No.112808, Rasool Manzil,
Habeebnagar (Nampally), Hyderabad, ...Defendant
This case is coming before me on 03082016, for final hearing in the presence of Sri.G.Arun, Advocate for the plaintiff; and of Sri.M.A.K.Mukheed,advocate for defendant; and upon perusing the material papers on record and on hearing and having stood over for consideration till this day, this Court delivered the following:
::J U D G M E N T::
1.This is a suit filed by the plaintiff for cancellation of cancellation deed document No.3752 of 2002 dated 02.12.2002 and for perpetual injunction restraining the defendant and their relations agents, power of attorney holders or any person or persons claiming through him from interfering with peaceful possession and enjoyment over the suit schedule property.
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The averments of the plaint in brief are as follows:
Father of the defendant by name Syed Mahmood Hussain died on 23.08.1977. He was having six wives namely, Vazir who died by leaving behind two daughters, Mahmoodunnisa Begum who died leaving behind one son (defendant) and one daughter
Qursheedunnisa Begum, Rasool Bee who died issues less,
Mahmood Begum died leaving two daughters, Ahmadi Begum (Mother of the plaintiff) and she blessed plaintiff and four daughters and Yaseen Begum who died issues less. During lifetime, Syed Mahmood Hussain purchased a property bearing house No.53933 situated at Mozamzahi Market, Hyderabad popularly known as Paradise Lodge under sale deed document
No.2429, dated 20.09.1358 Fasli admeasuring 1448 square yards. To purchase the said property Syed Mahmood Hussain sold away his rice mill and some other properties situated at
Rudroor. The sale deed was obtained in the name of defendant as the elders and Murshad told him that it would be lucky for him if the sale deed is taken in the name of the defendant.
Defendant is only Benamdar and he was minor at the time of purchasing the property. From the date of purchase Syed
Mahmood Hussain was in possession and enjoyment. The defendant has executed a registered sale deed document
No.2516/1960 dated 14.11.1960 in favour of the plaintiff in 3
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respect of rear portion of the said property. The defendant mismanaged the business run under the name and style of HM
Hussain Cloth Stores at Mozamzahi Market, Hyderabad. The defendant also mismanaged the amount realized in Paradise lodge. As the defendant was trying to alienate the property, his father Syed Mahmood Hussain gave a paper publication and later Mahmood Hussain filed a suit in OS No.34/1969 on the file of Additional Chief JudgecumAdditional Sessions Judge,
City Civil Court, Hyderabad against the defendant for declaration that the sale deed dated 20.09.1358 Fasli was a
Benami transaction and that the defendant was a Benamidar of
Syed Mahmood Hussain. The defendant entered appearance in the said suit and contested the matter. In the said suit, the defendant claimed that he has purchased the property out of his own funds and his mother Mahmoodunnisa Begum who was running Ink factory and earning from the said property was accumulated and utilized to purchase the property. The defendant also claimed that the rice mill at Rudroor belongs to him and that same proceeds were utilized in acquisition of the said property. The Meher due to his mother was payable to him after death of his mother and that the money was utilized for purchase of the property. The defendant claimed that he became owner of the property on the drafting of Doctrine of
Adverse Possession. The suit in OS No.34/1969 was decreed in 4
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favour of Syed Mahmood Hussain declaring that defendant is only a Benamidar and that the defendant was also directed to deliver possession of the property to Syed Mahmood Hussain.
Aggrieved by the same the defendant filed CCCA No.30/1973
before the Hon’ble High Court and the said appeal was
dismissed in terms of compromise recorded on 13.02.1974. In pursuance of the compromise decree Syed Mahmood Hussain remained in possession and enjoyment of two mulgies bearing
No.53931/1 situated at Mozamzahi Market at Hyderabad.
Neither the defendant nor any person has right, title or interest in the said two mulgies. In pursuance of the terms of compromise decree in CCCA No.30/1973 the plaintiff became owner of the suit schedule property bearing No.53932, 53 873 and 874 situated as Mozamzahi Market, Hyderabad admeasuring 700 square yards. The defendant and his children are parties to the compromise decree. In pursuance of the decree in CCCA No.30/1973 the sale deed document No.2516 by 1960 dated 14.11.1960 has become inoperative, redundant and not subsisting. The defendant never claimed any share, right, title or interest in the suit schedule property either during life time or after demise of father of the parties. The defendant got issued notice in Siasat and Munsif Daily on 16.12.2002 and in Deccan Chronicle on 17.12.2002 stating that he has executed a registered deed of cancellation document No.3752 of 5
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2002 dated 02.12.2002. After publication, the plaintiff has obtained certified copy of deed of cancellation, which is unilateral without any right, authority and without any notice or concerned or concurrence of the plaintiff. The act of the defendant in execution of said document is illegal void ab intio and not binding on the plaintiff. Hence, the suit.
2.On receipt of summons, the defendant has appeared and filed written statement by denying the plaint averments. The defendant stated that the plaintiff and the defendant are the step brothers born to Syed Mahmood Hussain through different wives. Syed Mahmood Hussain had purchased properties including the property bearing No.53933, situated at
Mozamzahi Market, Hyderabad known as New Paradise Lodge, in the name of the defendant who was then a minor under the sale deed dated 20.09.1358 Fasli along with No.53932, 53 873 and 53874 in all admeasuring 1448 square yards in a public auction from Abdul Muqtedar Shah. One Ahmed Sharref and Techand was in occupation of the property as tenant and the entire proceedings up to Supreme Court for eviction of the tenant were conducted in the name of the defendant. The plaintiff himself had obtained the sale deed dated 24.01.1960 in respect of the properties bearing No.53932, 873 and 874 admeasuring 700 square yards on the rear side but possession 6
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was not given to him. There was a family settlement under the registered settlement deed No.233/1967 where under possession of the property was delivered to Syed Mahmood
Hussain. The settlement deed is valid and subsisting and the plaintiff is bound by the family settlement. The number of wives and children Syed Mahmood Hussain had the source of money to purchase the properties and the reason to take sale deed in the name of the defendant are not relevant and germane and have no bearing on the questions involved in this suit. The plaintiff is the son of Syed Mahmood Hussain born to Ahmadi
Begum in 1954. He denied that there were disputes between the defendant and his father and that the defendant tried to alienate the properties. Syed Mahmood Hussain after taking possession under the Family Settlement filed OS No.34/69 on the file of Additional Chief JudgecumAdditional Sessions
Judge, City Civil Court, Hyderabad to declare him as the owner
of the properties purchased Benami in the name of the defendant and the suit was decreed. The defendant filed an appeal in CCCA No.30/73 in the High court of A.P against the judgment and decree in OS No.34/69. During the pendency of the appeal the defendant's father married a widowed lady at the age of 77 years who was the step sister of his first wife. A settlement was arrived at the instance of the plaintiff and his mother, under which it was agreed that the plaintiff be given 7
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the properties bearing No.53932, 53873 and 874 and the three minor sons of the defendant, Syed Yousuf Hussain, Syed
Omer Hussain and Syed Asif Hussain who were then minors be given the property bearing No.53933. Accordingly, a deed of compromise was filed and recorded by High Court on 1312 1974 in CMP No.12049/74 in CCCA No.30/1973 after impleading the sons of the defendant as respondents 9 to 11 in the appeal following by a decree in terms of compromise.
Admittedly, the sale deed dated 24111960 executed by the defendant in favour of the plaintiff in respect of H.No.53932, 873 and 874 became redundant and inoperative. The plaintiff was aware of the redundancy of the sale deed dated 2411 1960 as the sale deed dated 20091358 Fasli obtained in the name of the defendant was held to be nominal and Benami for the benefit of his father (the plaintiff in OS No.34/1969) and in view of the compromise decree passed in CCCA No.30/1973 giving H.No.53932, 873 and 874 to the plaintiff and plaintiff was creating hurdles in the beneficial enjoyment of H.No.53 933 by the sons of the defendant and was likely to set up the sale deed dated 24.11.1960, to create litigation, the defendant was advised to cancel the said sale deed to avoid mischief that the plaintiff would create on the basis of the said sale deed, if allowed to stand. Therefore, the defendant executed a registered cancellation deed dated 02.12.2002 by cancelling the sale deed 8
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dated 24111960 executed by him in favour of the plaintiff and
got the factum of cancellation published in the 'Siasat', 'Munsif' and 'Deccan Chronicle' for information of the general public and to warn the public not to deal with the plaintiff on the basis of the said sale deed dated 24111960. It is neither illegal nor void as contended by the plaintiff. The cancellation deed dated 02122002 is not against law or in contravention of the terms of the compromise decree passed in CCCA No.30/1973. He has right to cancel the sale deed dated 24111960. Cancellation of sale deed after 42 years is not barred under the law. There was no need for the defendant to seek or take the consent of the plaintiff to cancel the sale deed. The suit in OS No.443/1998 filed by the defendant's sister for partition of the properties claiming that her mother was the real owner is not at all necessary to the plaintiff. The sale deed dated 24111960 did not create any right or title in the plaintiff as it was obtained without valid consideration but by undue pressure by the plaintiff and under threat of involvement of the defendant in litigation and when the sale deed dated 20091358 Fasli was itself held to be nominal and Benami, the sale deed dated 24 111960 was not valid in law and the plaintiff having agreed to this legal position agreed to the terms of the family settlement and the compromise recorded in CCCA No.30/1973. The defendant is not interfering with the possession and enjoyment 9
OS No.32 of 2003
of the plaintiff over the plaint schedule properties and his reputation and the same is invented by the plaintiff for purpose of the suit, without any basis. The suit was filed in misconceived and is not maintainable. The plaintiff has no cause of action to file the suit and the cause of action mentioned in the plaint is false. The suit is not properly valued
The plaintiff is not entitled to the relief of cancellation of the deed of cancellation dated 02122002 and for the perpetual injunction and as such the suit is liable to be dismissed. Hence, prayed to dismiss the suit with costs.
3.Basing on the pleadings the following issues have been framed for trial.
1. Whether the plaintiff has become the
owner of schedule property by virtue of
Judgment and Decree of the Hon'ble High
Court of Andhra Pradesh, dated
13.12.1974 in CCCA No.30 of 1973?
2. Whether the plaintiff is entitled for
declaration that the registered
cancellation of sale deed, dated
02.12.2002 is null and void and same is
liable for cancellation?
3. Whether the plaintiff is entitled for the
relief of permanent injunction as prayed
for?
4. To what relief?
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4.During course of trial, on behalf of the plaintiff, P.W1 was examined and A1 to A23 were exhibited. On behalf of the defendants, D.W1 was examined and no documents were exhibited. I have heard the arguments on both sides.
5.ISSUES 1 TO 3:It is not in dispute that defendant is step brother of plaintiff and that their father Syed Mahmood
Hussain who died on 23081977 had 6 wives namely Vazir,
Mahmoodunnisa Begum, Rasool Bee, Mahmood Begum,
Ahmadi Begum, Yaseen Begum and that their father purchased property bearing No.53933, situated at Mozamzahi Market,
Hyderabad known as New Paradise Lodge, in the name of the defendant under sale deed dated 20091358 Fasli in a public auction from Abdul Muqtedar Shah.
6. It is in the evidence of P.W1, that the defendant mismanaged the business run under the name and style of “H.M. Hussain Cloth Store” at Mojamjahi Market, Hyderabad and also mismanaged the monies realized from management of
Paradise Lodge.
7.According to plaintiff, since the defendant tried to sell the property during life their father, their father gave paper publication and filed the suit in OS No.34/1969 on the file of
Additional Chief JudgecumAdditional Sessions Judge, City
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Civil Court, Hyderabad against the defendant for declaration that the sale deed dated 20091358 Fasli was a Benami transaction and that the defendant was a Benamidar.
8.It is not in dispute that in the said suit the defendant contested stating that his mother Mahmoodunnisa Begum @
Gore Begum was running Ink factory and that he purchased the property out of his own funds and earnings of his mother.
Defendant also claimed that the rice mill also belonged to him and the sale proceeds were utilized in acquiring the property and that the mehar due to his mother payable to him after her death also utilized to purchase the property.
9.Finally, said suit in OS No.34/1969 was decreed in favour of their father, by declaring that the defendant was only a
Benamidar and the defendant was directed to delivery possession of the property which is evident by certified copy of judgment (Ex.A3).
10.It is an admitted fact that aggrieved by said judgment and decree in OS No.34/1969, the defendant preferred an appeal in
CCCA No.30/1973 and the Hon’ble High Court was pleased to dismiss the appeal, in terms of compromise recorded on 1302 1974 which is evident by certified copy of compromise decree (Ex.A4).
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11.It is in the evidence of P.W1 that as per terms of compromise, their father remained in possession of 2 mulgies bearing No.53931/1 and 53931/2 situated at Mojamjahi
Market, Hyderabad as owner and possessor after his demise he became owner of the property. His evidence further reveals that he became the owner of properties bearing No.53932, 53873 and 874 situated at Mojamjahi Market, Hyderabad admeasuring 700 square yards in pursuance of their compromise for which he was already having the sale deed document No.2516/1960 dated 14111960 executed by defendant.
12.According to plaintiff, the children of defendant were also parties to compromise decree passed in CCCA No.30/1973.
D.W1 stated that his children also parties to Ex.A4 and that each party received their respective shares as per Ex.A4 and that the plaintiff never interfered with the property bearing
No.53933 standing in the name of his children. He has admitted that the sale deed dated 24111960 is of no use to the plaintiff in view of Ex.A3 and A4. It is clear that the parties have implemented the compromise decree and acted upon it and as such all the parties are bound by the decree.
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13.In crossexamination, D.W1 admitted that the plaintiff became owner of the suit schedule property by virtue of Ex.A4.
Further the defendant also admitted the correctness of Ex.A4 in his written Statement. On the other hand, the defendant is not disputing the said compromise decree (Ex.A4).
14.It is not in dispute that the defendant unilaterally executed the registered deed of cancellation document No.3752 of 2002
dated 02.12.2002 by cancelling the sale deed document
No.2516/1960 (Ex.A2) dated 14111960. It is not in dispute that on 16122002 the defendant got published notice in
Siasat and Munsif Daily (Ex.A19 and A20) and on 17122002 in Deccan Chronicle (Ex.A18) informing that he has executed and registered a deed of cancellation (Ex.A1) dated 02122002 bearing document No.3752/2002 by cancelling the sale deed document No.2516/1960 (Ex.A2) dated 14111960.
15.The main contention of the plaintiff is that the cancellation deed document No.3752/2002 (Ex.A1) dated 02122002 is illegal, void ab intio, bad in law and not binding on him.
Admittedly, the defendant has no share in the suit schedule property as per compromise decree passed in CCCA
No.30/1973. According to plaintiff, the defendant never claimed any right or title or interest in the suit schedule property. Be 14
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the case, the sale deed document No.2516/1960 dated 1411 1960 will not affect the defendant in any manner.
16.D.W1 stated that he did not read the contents of plaint and that without going through contents of plaint he gave instructions for drafting written statement. He admitted that he can read English. I do not understand as to how he gave instructions for drafting written statement without knowing contents of plaint.
17.The defendant is admitting the compromise in CCCA
No.30/1973 before the Hon’ble High Court. Undoubtedly, it is still final and binding on the parties. In pursuance of compromise in CCCA No.30/1973 before the Hon’ble High court, the defendant has no right, title or interest over the suit schedule property. Further the defendant cannot unilaterally execute or register the cancellation deed document
No.3752/2002 (Ex.A1) dated 02122002, by cancelling the registered sale deed document No.2516/1960 (Ex.A2) dated 14111960.
18.As matter of fact, in pursuance of the decree in CCCA
No.30/1973 (Ex.A4) the sale deed document No.2516/1960 (Ex.A2) dated 14.11.1960 has become inoperative, redundant 15
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and not subsisting as rightly contended by the learned counsel appearing for the plaintiff.
19.It is in the evidence of D.W1 that the plaintiff was creating hurdles in the beneficial enjoyment of H.No.53933 by the sons of the defendant and was likely to set up the sale deed
dated 24.11.1960, to create litigation and that he was advised
that the plaintiff may create mischief on the basis of the said sale deed, if allowed to stand. Except bald assertion there is nothing to substantiate the said plea.
20.The defendant did show any valid reasons for execution of cancellation deed (Ex.A1). There is no reason as to why the defendant did not take steps soon after compromise decree (Ex.A4). Leisurely, after lapse of 40 years, the defendant has executed cancellation deed (Ex.A1) by cancelling sale deed (Ex.A2), unilaterally without notice to the plaintiff. However, the sale deed document No.2516/1960 (Ex.A2) dated 14.11.1960 has become inoperative, redundant and not subsisting, there is no proper explanation from the defendant as to what was the necessity to execute (Ex.A1) after lapse of 40 years, unilaterally.
21.Added to it, execution of cancellation deed (Ex.A1) without having any manner of right or interest in the suit 16
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schedule property that too after compromise decree (Ex.A4), certainly affect the rights of the plaintiff as rightly contended by the learned counsel appearing for the plaintiff.
22.In support of their contention, the learned counsel appearing for the plaintiff relied upon a citation in Thota
Ganga Laxmi V. Government of A.P., reported in Laws (SC) 2010713=SCC201015207/KERLT20113345/ALT (SC) 2012350 and batch, wherein Hon’ble Supreme Court held that “if any sale deed is required to be cancelled, the only remedy is by way of civil suit for cancellation, but no cancellation deed can be unilaterally executed or registered. Hon’ble Supreme
Court after referring to Rule 26(i)(k) of Registration Rules, held that it is only when earlier sale deed is cancelled by a competent court can a cancellation deed be registered that too after notice to the parties concerned and unilateral cancellation of the sale deed, as well as registration thereof were wholly void, non est and meaningless transactions”.
23.The learned counsel appearing for the plaintiff also relied upon another citation Haji Mohammed Ahmed V. State of
Andhra Pradesh and others reported in 2012 (2) ALD 230 by following the above referred citation. It was held that the observations of the Supreme Court, aforementioned, made in the 17
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context of sale deed would equally apply to unilaterally cancellation of gift deeds also. Unilateral cancellation of registered gift deed without notice to donee is illegal.
24.The learned counsel appearing for the plaintiff also relied upon another citation Badugu Venkata Durga Rao and another V. Surneni Lakshmi reported in 2001 (1) ALD 86 in which it was held that “a person who has executed a sale deed and to it registered cannot subsequently execute the document unilaterally cancelling the earlier sale deed without joining the vendee under the earlier sale deed in cancellation deed”.
25.The learned counsel appearing for the plaintiff also relied upon another citation K.Gopal Reddy V. Secretary and others reported in 2004 (2) ALD 317 in which it was held that “Registered deed transferring the property is not subsequently liable to be unilaterally cancelled. Such cancellation can only be done by an order of court. Even to recover possession of the property from the transferee under the deed one has to approach civil court”.
26.From the ratio laid down in the citations referred supra, it is clear that wherever a transaction of sale, mortgage or other transfer takes place in accordance with law, it can be annulled 18
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only with the participation of parties to such transaction. If any one of the party does not cooperate for such annulment or cancellation, the only course open to the party intending such cancellation is to have recourse to an action under Section 39 of the Specific Relief Act.
27.In the instant case also, the defendant executed a registered cancellation deed document No.3752/2002 (Ex.A1)
dated 02122002 by cancelling the registered sale deed
document No.2516/1960 (Ex.A2) dated 14111960 in respect of suit schedule property, unilaterally without notice to the plaintiff.
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28.In view of the citations referred supra and facts and circumstances of the case on hand, I hold that the cancellation deed document No.3752/2002 (Ex.A1) dated 02122002 executed by the defendant by cancelling the registered sale deed document No.2516 of 1960 (Ex.A2) dated 14111960 in respect of suit schedule property without notice to the plaintiff is illegal, null and void and same is liable for cancellation.
29.Fore the aforesaid discussion and considering the material on record, I hold that it is clearly established that the plaintiff has became the owner of suit schedule property by virtue of
Judgment and Decree of the Hon'ble High Court of Andhra
Pradesh, dated 13.12.1974 in CCCA No.30 of 1973.
30.There is no dispute that sister of the defendant filed a suit in OS No.443/1998 for partition of the properties which is evident by certified copies of plaint (Ex.A9) and written statement (Ex.A10). But the suit schedule property herein is not the subject matter in the said suit.
31.It is the specific case of the plaintiff that the defendant is interfering with his possession over the suit schedule property and trying encumber the property and that the defendant is causing disturbance to the occupants of the lodge. Admittedly, the defendant is not in possession of the suit schedule property.
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32.In order to show his possession and enjoyment over the suit schedule property, the plaintiff has filed certified copy of assessment register (Ex.A5), assessment orders (Ex.A6 and A 7), hotel licence (Ex.A8), water bill demand notice (Ex.A11), cess receipt (Ex.A12), electricity bills (Ex.A13 and A14), property tax receipt (Ex.A15), demand notice (Ex.A16), certificate of registration (Ex.A17). The defendant is also not disputing possession and enjoyment of the plaintiff over the suit schedule property.
33.When the plaintiff is able to establish his title and possession over the suit schedule property and that the defendant is interfering without any manner of right, the plaintiff is entitled for injunction as prayed for. Accordingly, I answer these issues in favour of the plaintiff and against the defendant.
34.ISSUE No.4: In view of my findings and conclusions on the above issued the plaintiff is entitled for the reliefs as prayed for.
35.A copy of decree will be forwarded to the SubRegistrar,
Narsapur forthwith, as required under Rule149 of A.P. Civil
Rules of Practice and Circular Orders, 1980 to make necessary entries in the relevant registers. Accordingly, I answer this issue.
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IN THE RESULT: The suit of the plaintiff is decreed with costs as under:
1. That the plaintiff has became owner of suit schedule property by virtue of Judgment and Decree of the Hon'ble High Court of Andhra Pradesh, dated 13121974 in CCCA No.30 of 1973;
2. That the plaintiff is entitled for declaration that the registered cancellation of sale deed, dated 02122002 is null and void and same is liable for cancellation;
3. That the plaintiff is entitled for the relief of permanentinjunctionrestrainingthe defendant from interfering from his peaceful possession and enjoyment over the suit schedule property.
Typed to my dictation, corrected and pronounced by me, in the open court, on this the 8 h day of August, 2016.
XVIII Additional Senior Civil Judge City Civil Court, Hyderabad
:: APPENDIX OF EVIDENCE ::
WITNESSES EXAMINED ON BEHALF OF PLAINTIFF
P.W1Syed Ahmed Hussain05.03.2008
WITNESSES EXAMINED ON BEHALF OF DEFENDANT
D.W1Syed Saber Hussain31.07.2008 22
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DOCUMENTS EXHIBITED ON BEHALF OF PLAINTIFF
Ex.A1Certified copy of deed of cancellation02.12.2002 Ex.A2Certified copy of Sale deed with English31.10.1960 Translation
Ex.A3Certified copy of Judgment in OS No.34 of– 1969
Ex.A4Certified copy of compromise decree in– CCCA No.30 of 1973
Ex.A5Certified copy of assessment register– Ex.A6Assessment order of the year 196869.– Ex.A7Assessment order of the year 199899.– Ex.A8Hotel licence for the year 198687– Ex.A9Certified copy of plaint in OS No.443 of– 1998
Ex.A10Certified copy of WS in OS No.443 of– 1998
Ex.A11Demand notice– Ex.A12Cess receipt11.11.2002 Ex.A13Electricity bill– Ex.A14Receipt issued by APSEB.– Ex.A15Receipt issued by MCH– Ex.A16Demand Notice14.12.1995 Ex.A17Certificate of Registration– Ex.A18Newspaper publication– Ex.A19Newspaper publication– Ex.A20Newspaper publication– Ex.A21Demand Notice02.01.2003 Ex.A22Cess Receipt04.01.2003 Ex.A23Notarized copy of trade licence17.05.2002
DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANT
Nil
XVIII Additional Senior Civil Judge City Civil Court, Hyderabad 23
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