IN THE COURT OF THE XI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, AT SECUNDERABAD
PRESENT : SRI.RAVINDER SATTU,
XI JUNIOR CIVIL JUDGE
DATED this the 26 th day of JULY, 2022
O.S.NO.204 OF 2016
Between :- N.Suryanarayana, S/o.Late N.Suranna, aged about 63 years, Occ : Retd.Govt.Service, R/o.H.No.27-64/7/25, Plot No.102, Adarsh Nagar, Old Neredmet, R.K.Puram Post, Secunderabad T.S. … Plaintiff
A N D
1. Vijay, S/o.Not known to Plaintiff, aged Major, Occ : Business,
2. Jayasree, W/o.Vijay, aged Major, Occ : Household,
Both are R/o.Besides Mahakali Temple, Karkhana, Secunderabad.
...Defendants
This suit is coming on this day before me for final hearing in the presence of Sri.B.D.L.Nirmal Kumar, Advocate for the Plaintiff and Sri.D.Madhava Rao, Advocate for Defendants and the matter having been heard and stood over for consideration till today, this Court made the following :-
J U D G M E N T
1.This is a suit for perpetual Injunction restraining the defendants, their henchmen, labours, or any other person or persons claiming through the
Defendants from interfering with the peaceful possession of the schedule property.
The brief facts of Plaint :
2(i).The Plaintiff submitted that the Hon’ble XI Junior Civil Judge, City
Pg.No.2 of 29 OS.No.204 of 2016
Civil Court, at Secunderabad, in pursuant of decree (Award) passed in
ARC.No.221/2002 and on the file of Execution Petition bearing EP.No.186/201, disposed the Execution Petition on 10-04-2015 and under due process of law under Sec.34 of CPC the Hon’ble Court has been pleased to registered the Plot
No.84, in Sy.No.844/19 (Old No.844/13) admeasuring 222 sq.yards, in Ward
No.10, Block No.5, situated at SC Co-operative Housing Society (for short
Society), Tukaramgate, Lalaguda, Secunderabad, Telangana State (hereinafter referred suit schedule property) in favour of Plaintiff through registered Sale
Deed No.71/2016 dt.28-01-2016.
(ii)Plaintiff submitted that in pursuant to the registration of the Sale
Deed, he went to the suit schedule property on 26-03-2016. But to his utter surprise, the Defendants along with their henchmen came to the suit schedule property and interfered into peaceful possession of the Plaintiff and restrained the Plaintiff from suit schedule property forcibly and threatened him with dire consequences and created galata without any valid grounds, the Defendants has not shown any proof of evidence to show that they are having any rights over the suit schedule property. Due to timely intervention of plaintiff’s family members, the Defendants did not succeed in their illegal attempts and went from the suit schedule property by threatening that they will come again with more
Pg.No.3 of 29 OS.No.204 of 2016 force and will dispose the Plaintiff from the suit schedule property.
(iii)Plaintiff submitted that he made a complaint to the P.S.Tukaramgate on 26-03-2016 explaining the facts, but the police did not take any prospective action and advised the Plaintiff to approach the Hon’ble Civil Court for legal remedy.
(iv)Plaintiff submitted that the Defendants along with their henchmen regularly visiting the suit schedule property and interfering into the suit schedule property and tried to dispossess the Plaintiff and when the Plaintiff questioned about their illegal acts, then the Defendants threatened the Plaintiff with dire consequences. Hence the suit.
3(i)The Defendants No.1 & 2 filed written statement. The
Defendants denied the plaint except specifically admitted. Defendants submitted that Defendant No.1 is M.J.Vijay Shanker, the Plaintiff has mentioned his name wrongly.
(ii)Defendants submitted that originally Scheduled Caste Co-operative
Housing Society Limited, a registered Society has sold the Plaint schedule property under a registered Sale Deed in favour of C.Durgaiah, S/o.C.Pillai through registered document No.732/1964, dt.18-04-1964. C.Durgaiah is grand
Pg.No.4 of 29 OS.No.204 of 2016 father of Defendant No.2.
(iii)The Defendants submitted recitals of Document No.732/1964. In said document it is noticed that the Society purchased Ac.9.20 gts in
Sy.No.844/2013, Tukaramgate, Lalaguda, under registered Sale Deed ; The
Society have divided the property into plots ; and made roads and sold the property after obtaining layout from Municipal Corporation dt.11-09-1959 ;
From the said document, the Plot No.84 admeasuring 60 x 35 sq.yards was allotted to Grand father of Defendant No.2 for valuable consideration and possession was delivered as late as 18-04-1964.
(iv)The Defendants submitted that the registered document embodies the conditions with regard to sale of the properties by the said society, therefore, late Durgaiah died leaving behind his three sons namely D.Sridharan,
D.Muralidharan and D.Raghupathi. The second defendant is the daughter of
Raghupathi. All the sons of Durgaiah are alive. In this context the suit is not maintainable for non joinder and mis joinder of parties.
(v)It has to be noticed that without cancelling a legally tenable valid document No.732/1964 in respect of plaint schedule property a subsequent Sale
Deed even assuming for a moment without admitting if executed by the XI
Pg.No.5 of 29 OS.No.204 of 2016
Junior Civil Judge, is not valid since the property has already been registered in favour of Durgaiah, who died leaving his three sons. The ARC No.221/2002 and EP is not valid.
(vi)It is submitted that it is born on the face of record that a subsequent sale deed without taking recourse to the methods known to law a subsequent sale deed on the very same property is not valid. Therefore, no right, title or interest accrue the Plaintiff herein who has suppressed material facts. The
Plaintiff has not placed proper record before deputy registrar, Co-operative societies in ARC.No.221/2002 seeking Award and even thereafter, he has not filed the full facts as are required to be submitted in EP.No.186/2014.
(vii)By merely holding a registered Sale Deed which is invalid in eye of law cannot thrust himself into possession of the property as in the year 1964 the grand father of Defendant No.2 has been in possession of the property. Unless and until grandfather of Defendant No.2 or his legal heirs have been disposed by due process of law this suit is thoroughly misconceived and liable to be dismissed in limini.
(viii)That this Plaintiff cannot claim possession to the property in as much as he has to show before this Court how he has come into possession of
Pg.No.6 of 29 OS.No.204 of 2016 the property without there being proceedings to put the Plaintiff in to possession of the property after execution of the Sale Deed. This Court will notice that under the procedure contemplated under Order-21 on the execution side the
Plaintiff is required to file proper and necessary documents including obtaining a nil encumbrance certificate with regard to Plaint schedule property. Apparently
Plaintiff has not filed such document therefore, this court was mislead, passed orders. Therefore, this Court in law is presumed that court does not mistake and if a mistake is noticed, it is also settled position of law that the law courts would not be favouring any party, therefore, due to non submission of proper and necessary documents the Sale Deed must have been executed which is nullity in eye of law as the prior document which is subsisting executed which has not be cancelled or annulled by any order of the court. In such circumstances, the
Plaintiff who claims to be in possession is not placed a single scrap of paper as to how he has come into possession, merely executing Sale Deed without showing proper and necessary documents to show that previously any document has been executed by the previous owners to put into possession in respect of vacant plot possession cannot be taken into consideration. In fact, it is the settled position of law that where the land is vacant the law presumes that possession would go with title.
Pg.No.7 of 29 OS.No.204 of 2016
(ix)This is a classical case and a classical judgment of the privy counsel holding that in respect of vacant land possession will come with the title if that is the view that law courts are upheld it can be seen that this Defendants grand father was in possession after his death it is the second defendant who is in possession of the property who had come to the property for the purpose of protecting from encroachers and in fact the Plaintiff is one such encroacher who is trying to encroach the property suppressing the documents and clandestinely obtained orders and the judicial forums without disclosing the true facts as such the suit as well as interlocutory application are liable to be dismissed with exemplary costs.
(x)That the Plaintiff cannot show that he has been put into possession by any proceedings by this Court on the execution side. Execution of Sale Deed is one aspect of the case and seeking possession through due process of law is another aspect. Possession what is contemplated under Order-21 of the CPC.
The Defendant submitted that they being the legal heirs who are the original owners of the property, they have been going to the property regularly and the suit schedule property is their own property, merely holding a Sale Deed would not west right and title in respect of the property.
(xi)Defendants finally submitted that the father of Second Defendant
Pg.No.8 of 29 OS.No.204 of 2016 namely D.Raghupathy has filed OS.No.262/2016 on the file of Hon’ble I Junior
Civil Judge, City Civil Court, Secunderabad against GHMC for Injunction as
notice under Sec.452(i) and 461(i) of HMC Act, 1965 issued. Thereafter, on 25- 04-2015 Orders under Sec.452(2) of HMC Act have been passed by the Deputy
Commissioner, Circle No.18, Secunderabad GHMC which is pending. Hence prayed to dismiss the suit.
4.Basing on the above pleadings, the following issues were settled for trial :
1. Whether the Plaintiff is in possession of the suit property ?
2. Whether Defendants interfered with Plaintiff’s possession ?
3. Whether Plaintiff is entitled for perpetual Injunction ?
4. To what relief ?
5.The Hon’ble I Addl.Chief Judge Court, while disposing
CMA.No.98/2016 directed this Court to complete the trial within 6 months from
the date of Judgment dt.03-09-2019. This Court has obtained extension of time from time to time and finally vide proceedings of Hon’ble I Addl.Chief Judge,
City Civil Court, Secunderabad, vide Dis.No.558/IACJ/Sec-bad/2022, dt.22-07- 2022.
Pg.No.9 of 29 OS.No.204 of 2016
6.Heard Learned counsel for Plaintiff and Defendant. Learned counsel for Plaintiff filed written arguments. Perused the record. I have noted the arguments of learned counsels.
7.To substantiate his case, Plaintiff filed his chief examination affidavit as PW1. The PW1 filed five pages of affidavit, wherein Page No.1 to 3 are addings. PW1 is also admitted in his cross examination that Plaint is presented by another Advocate in 2016 and Chief Examination Affidavit is prepared by Sri.B.D.L.Nirmal Kumar. PW1 relied Ex.A1 to Ex.A12. PW1 got examined Sri.P.Lakshmi Narayana as PW2 in support of his case. Ex.A1 is the original Sale Deed No.71/2016. Ex.A2 is the Award in ARC.No.221/2002, dt.21-08-2010 passed by Deputy Registrar/Divisional Co-operative Officer.
Ex.A3 is the certified copy of Order in EP.No.186/2014 in ARC.No.221/2002, dt.10-04-2018 on the file of XI Junior Civil Judge, Secunderabad. Ex.A4 is the
Encumbrance, dt.31-05-2018 for period 01-01-1989 to 30-05-2018. Ex.A5 is the Encumbrance, dt.17-08-2019 for period 01-01-1992 to 16-08-2019. Ex.A6 is the request by Plaintiff to Public Information Officer under Sec.6 of R.T.I.Act, dt.01-09-2017. Ex.A7 is the Information from the Assistant Registrar/PIO to
Plaintiff, dt.23-09-2017. Ex.A8 is the Summons from Assistant Registrar/Sub-
Divisional Co-operative Officer, Trimulgherry Mandal to Plaintiff. Ex.A9 is the
Pg.No.10 of 29 OS.No.204 of 2016
Receipt dt.20-02-1994 issued by SC Co-operative Housing Society to Plaintiff.
Ex.A10 is the Receipt dt.20-02-1994 issued by SC Co-operative Housing
Society to Plaintiff. Ex.A11 is the Eenadu Telugu Daily News Paper dt.01-12- 2018 (Hyderabad Edition). Ex.A12 is The Hindu English daily News Paper dt.11-07-2013 (Entire Paper).
8.To rebutt Plaintiff case, M.J.Vijay Shanker/Defendant No.1 filed
Chief Examination Affidavit with certain addings from Written Statement. One
Lingampally Sridhar is also examined as DW2 in support of Defendant’s case.
DW1 relied Ex.B1 to Ex.B26. Ex.B1 is the certified copy of Order in
IA.No.256/2021 in OS.No.634/2021, dt.03-09-2021 on the file of XI Junior
Civil Judge, Secunderabad. Ex.B2 is the certified copy of Plaint in
OS.No.244/2019 on the file of XIX Addl.Senior Civil Judge. Ex.B3 is the
certified copy of Written Statement of Defendant No.1 in OS.No.244/2019.
Ex.B4 is the certified copy of Plaint in OS.No.634/2021 on the file of XI Junior
Civil Judge, City Civil Court, Secunderabad. Ex.B5 is the certified copy of
affidavit in IA.No.256/2021 in OS.No.634/2021. Ex.B6 is the Counter Affidavit in IA.No.256/2021 in OS.No.634/2021. Ex.B7 is the certified copy of Order in
ARC.No.221/2002 dt.26-04-2004 passed by Deputy Registrar of Co-operative
Societies. Ex.B8 is the original Notice issued by GHMC under Sec.452 (2) of
Pg.No.11 of 29 OS.No.204 of 2016
HMC Act to D.Raghupathi, dt.25-04-2016. Ex.B9 is the Notice under Sec.636 of HMC Act, issued to D.Raghupathi, dt.04-07-2018. Ex.B10 is the certified copy of Order in CMA No.98/2016 dt.03-09-2019 on the file of I Addl.Chief
Judge, CCC, Secunderabad. Ex.B11 is the Photograph. Ex.B12 is the C.D.
Ex.B13 is the certified copy of Sale Deed No.3934/2019. Ex.B14 is the certified copy of Agreement of Sale-cum-General Power of Attorney with possession vide No.3856/2019. Ex.B15 is the Encumbrance Statement, dt.07-03-2022 for period 01-01-1994 to 04-03-2022. Ex.B16 is the Encumbrance Statement, dt.26-07-2021 for period 01-01-1964 to 31-12-1980. Ex.B17 is the receipt for payment of Electricity Bill dt.15-02-2022. Ex.B18 is the Electricity Demand dt.03-02-2022. Ex.B19 is the Receipt issued by GHMC dt.27-04-2022. Ex.B20 is the Photograph. Ex.B21 is the Photograph. Ex.B22 is the Photograph.
Ex.B23 is the Photograph. Ex.B24 is the C.D. Ex.B25 is the certified copy of
Document No.732/1964. Ex.B26 is the certified copy of Document
No.1232/1964.
9(i).Learned counsel for Plaintiff submitted lengthy arguments.
Learned counsel submitted that this is a suit for perpetual Injunction against defendant No.1 & 2, they filed their written statement ; this Court framed issues whether he is in possession of suit schedule property or not ; Whether Defendant
Pg.No.12 of 29 OS.No.204 of 2016 interfered into possession or not ; whether Plaintiff is entitled perpetual
Injunction or not ; to what relief. Learned counsel submitted that to prove and discharge his duties produced PW1, PW2 and Defendants are also examined as
DW1 and DW2, Plaintiff relied Ex.A1 to Ex.A12 and Defendants relied Ex.B1 to Ex.B26. Learned counsel submitted that in para No.2 of plaint, Plaintiff in pursuance of document No.71 of 2016 went to suit schedule property but the
Defendants resisted ; Even trespasser can entitled injunction. Learned counsel submitted that the case of the Defendants is that one Durgaiah purchased Plot from Society, Durgaiah has three sons ; The Defendants are claiming from
Durgaiah ; Defendant No.2 is wife of Defendant No.1 ; Defendant No.2 is the daughter of Raghupathy who is son of Durgaiah and Defendant No.1 is son-in- law of Raghupathy. It is submitted that this Hon’ble Court has pleased to grant
Status Quo and after filing counter such order had been vacated in
IA.No.148/2016 ; Plaintiff preferred CMA vide No.98/2016 wherein Hon’ble
Appellate Court ordered that Orders in IA’s are not binding in suit, now what is the case of Defendant that Defendant No.1, 2 came to know that this property belongs to Durgaiah, however, LR’s of Durgaiah failed to step into witness box claiming ownership over suit schedule property. It is submitted that the reason for non stepping into witness box is that the alleged Sale Deed of Durgaiah is not binding since there are several latches in Sale Deed i.e., Ex.B25, there are no
Pg.No.13 of 29 OS.No.204 of 2016 survey number, Vendor means SC Co-operative Housing Society Sy.No.844/34 situated at Aziz Nagar, Tukaramgate, dt.01-04-1958. Learned counsel brought focus of Court at Para No.5 of Ex.B25. Learned counsel submitted that the
Society sold plot No.122 to one Shyam Rao, the Plaintiff purchased Plot No.122 from Shyam Rao, however, the said plot belonging to government as such the
Plaintiff filed Arbitration Case ; The entire case of Plaintiff is putforth in Ex.A1, learned counsel read out Ex.A1 which explaining how the Plaintiff entered into the society and became victim ; It is submitted that at last Plot No.84 found vacant as such in pursuance of E.P. Ex.A1 came into existence ; In support of
E.P. learned counsel highlighted Ex.A4 & Ex.A5 Encumbrance Certificates showing there are nil entries.
(ii)Learned counsel for Plaintiff submitted that sons of Durgaiah did not step into witness box but they executed Agreement of Sale-cum-GPA in favour of Narayana Pandurangam during pendency of the suit ; finally submitted that while existing document No.71/2016, which is not cancelled, Defendant
No.1 & 2 transferred the suit schedule property to Lingampally Vasavi ;
Lingampally Vasavi filed suit for cancellation of document No.71/2016 which is pending. Besides oral arguments learned counsel for Plaintiff filed written arguments about 14 pages reiterating the same and enlightened oral evidence of
Pg.No.14 of 29 OS.No.204 of 2016
DW1 & DW2.
10.Learned counsel for Defendant submitted that Ex.A1 is without consideration and without possession brought into existence ; The society has strongly opposed the claim of Plaintiff in Arbitration Case ; There is no consent from the society for alternative plot to the Plaintiff ; Plaintiff failed to produce his alleged vendor document inspite of notice under Order-12 Rule-8 of CPC
before this Court ; The PW1 himself admitted he didn’t file separate petition for
possession as such there is no possession to the Plaintiff ; The Defendants are legal heirs of Durgaiah, who inturn purchased suit plot from the society and in possession in the capacity of absolute owner and subsequently sold to third party i.e., Lingampally Vasavi ; Said Vasavi filed implead petition in the present suit however, this Hon’ble Court has pleased to dismiss such application. Hence prayed to dismiss the suit.
11.ISSUE NO.1 :- “Whether the Plaintiff is in possession of the suit property ?”
(i)The burden lies on Plaintiff to prove he is in lawful possession as on date of filing of suit i.e., 04-04-2016. Let us focus material relied by PW1.
Ex.A1 is the Sale Deed executed by this Court in respect of suit schedule
Pg.No.15 of 29 OS.No.204 of 2016 property vide document No.71/2016 dt.28-01-2016. Ex.A2 is the Award in
A.R.C.No.221/2002 wherein Deputy Registrar on 21-08-2010 has directed the
Defendant Society to register the Plot No.84 consisting of 222 sq.yards which is vacant as on date (as per the documents Exs.P1 to P5) and registered the same in favour of the Petitioner/Plaintiff within a period of 30 days from the date of receipt of this Order to meet the ends of justice. Ex.A3 is the Order dt.10-04- 2015 in EP.No.186/2014 in ARC.No.221/2002 wherein this Court has pleased to directed the J.Dr to execute a registered Sale Deed in favour of the Decree
Holder herein in respect of Plot No.84 admn.222 sq.yards in Sy.No.844/2013 within a period of two months from the date of receipt of a copy of this Order in default, the Decree Holder is entitled to have the Sale Deed executed through the process of law as envisaged in Rule-34 of Order-21 CPC.
(ii)Likewise, DW1 relied Ex.B7 ARC.No.221/2002 dt.26-04-2004, wherein Deputy Registrar of Co-operative Societies directed the Society to allot an alternate plot to the Petitioner in lieu of his plot No.122 to an extent of 214 sq.yards by resuming vacant plots of the society by invoking Bye-law
No.42/2010 of Bye-Laws of the Society or by taking the possession of land which the members are holding in excess of their entitlement.
(iii)Having proved Ex.A1, Ex.A2, Ex.A3 and corroboration from Ex.B7
Pg.No.16 of 29 OS.No.204 of 2016 the proceedings in ARC.No.221/2002 has been proved and execution of Ex.A1 is proved. There is no rebuttal of execution of Ex.A1 even in oral evidence.
(iv)Now the burden again lies on the Plaintiff to prove Ex.A1 coupled with possession. The oral evidence of PW1 is very much relevant in this regard.
Learned counsel for Defendant elicited from the mouth of PW1 during cross examination that PW1 filed EP.No.186/2014 as Society failed to implement his award i.e., Ex.A3 ; As per Ex.A3 EP filed for execution of Sale Deed ; It is fact except Ex.A3 he has not filed any other EP. Learned counsel for Defendant further put the following questions and the answers from PW1 hereunder :
Q : Court executed Sale Deed. Who gave possession to you ? A : As per Sale Deed possession is given.
Q : For possession you have to file another EP. What do you say ? A : I do not know.
(v)Having considered oral evidence, in my considered opinion, the
Society has not delivered possession to the Plaintiff in pursuance of Ex.A1 since
PW1 has not filed separate EP for delivery of possession from Society in respect of suit schedule property.
(vi)The reasons for non delivery of possession of Plot No.84 in the society layout is in the written statement. The Defendants in their written
Pg.No.17 of 29 OS.No.204 of 2016 statement categorically pleaded that the society executed Sale Deed under
Ex.B25 vide document No.732/1964 in respect of Plot No.84 executed in favour of C.Durgaiah. The Defendants have rebutted the possession of Plaintiff through Ex.B25. The Plaintiff simply pleaded that this Court in pursuant of
ARC.No.221/2002 and on the file of EP.No.186/2014, executed Ex.A1 ; In pursuant to the registration of Ex.A1 the Plaintiff went to the suit schedule property on 26-03-2016 ; But to his utter surprise the Defendants along with their henchmen came to the suit schedule property and interfered into peaceful possession of the Plaintiff and restrained the Plaintiff from the suit schedule property forcibly and threatened him with dire consequences and created galata without any valid grounds etc. Therefore, on bare reading of plaint a layman can understood that the Plaintiff after filing of EP.No.186/2014 and in pursuance of orders in said E.P.. Ex.A1 brought into existence then only the Plaintiff proceeded to searching for possession. PW1 in his oral evidence admitted that he have no connection of electricity, water and municipal on his name.
(vii)The plaint pleadings are very simple as stated above. The PW1 improved in evidence affidavit of PW1. PW1 himself admitted in his cross examination that Plaint is prepared in 2016 whereas evidence affidavit is prepared by Sri.B.D.L.Nirmal Kumar Advocate. However, the improvements in
Pg.No.18 of 29 OS.No.204 of 2016 chief affidavit are nothing but the contents in Ex.A1. Therefore the Plaintiff is deemed to confirm the contents under Ex.A1. The essential contents in Ex.A1 are relevant to reproduce : “that Society purchased Ac.9.20 gts through document No.549/1958 in Sy.No.844/19 (old No.844/13) situated at Tukaram
Gate Lalaguda, Secunderabad, carved into plots ; one Shyam Rao purchased plot No.122 through document No.1232/1964 ; the Plaintiff inturn purchased
Plot No.122 from said Shyam Rao through document No.1134/1994 ; The Plot
No.122 was subsequently found encroached by Society infact it belongs to
Government ; The Plaintiff filed ARC.No.221/2002 for alternate plot, such ARC allowed, the Society preferred Appeal, appellate Court remanded, again ARC allowed, the society filed Appeal which is pending ; Meanwhile, the Plaintiff filed WP.No.5490/2015 wherein Hon’ble High Court has pleased to Order on 06-03-2015 to implement the award passed in ARC.No.221/2002 dt.21-08-2010 within a period of 8 weeks, if there is no appeal pending in the case.”
(viii)From the above recitals in Ex.A1 and deposed in chief examination of PW1 the existence of Society is proved. The society purchased land and carved into plots is proved. In these circumstances, the Plaintiff estopped from saying the Society falsely executed Ex.B25 in favour of Durgaiah. Even, in oral evidence, PW1 stated that he does not know what happened before 1994 in the
Pg.No.19 of 29 OS.No.204 of 2016
Society.
(ix)This is a suit for mere perpetual Injunction. The point involved and triable is possession. However, incidentally warranted to focus title also.
(x)The Plaintiff who approached this Court in getting discretionary relief should be free from blame. The Plaintiff has failed to produce his and vendor documents. Even the Defendant filed petition under Order-12 Rule-8 of
CPC to produce admitted documents those are pertaining to Plaintiff and vendor of Plaintiff namely Shyam Rao vide document No.1232/1964 in respect of Plot
No.122. This Court has taken adverse inference for non production of document
No.1232/1964 by Plaintiff inspite of Notice stated above. The Defendant has taken pain and placed before this court vide document No.1232/1964 and proved under Ex.B26, wherein it is obtained from Sub-Registrar Marredpally. The jurisdiction of Tukaramgate undisputedly falls under Sub-Registrar Marredpally in the year 1964. On perusal of Ex.B26 the vendor is Nageshwar Rao and purchaser is Sohan Lal in respect of H.No.1-6-142 and 1-6-143. Therefore, the contention of Plaintiff that his vendor Shyam Rao purchased Plot No.122 through document No.1232/1964 registered with SRO Marredpally is rebutted by Defendant. Even the Plaintiff has not placed his document No.1134/1994 said to have been executed by his vendor Shyam Rao.
Pg.No.20 of 29 OS.No.204 of 2016
(xi)Once the PW1 admitted contents in Ex.A1 wherein one content is that he preferred Writ Petition vide WP.No.5490/2015 wherein Hon’ble High
Court on 06-03-2015 has pleased to Order to implement the award passed in
ARC.No.221/2002 dt.21-08-2010 within a period of 8 weeks, if there is no appeal pending in the case. The duty cast upon the Plaintiff whether appeal preferred by Society is pending or disposed prior to disposal of EP under Ex.P3.
This court proceeded to pass order in ExA3 by giving a finding at Para No.13 “… As rightly contended by the Decree Holder, in the absence of an Order staying the operation of the Award by the Appellate Authority, the proceedings in the present EP need not be stopped.” If the Appeal preferred by Society is pending then the order in E.P. under Ex.A3 would become illegal and contrary to observation of Hon’ble High Court in WP.No.5490/2015. WP.No.5490/2015 is disposed on 06-03-2015 and EP is disposed on 10-04-2015. The EP is disposed sibsequent to WP.No.5490/2015.
(xii)However, the Plaintiff is able to prove he is a member with Society since PW1 proved Ex.A9 dt.20-02-1994 and Ex.A10 dt.20-02-1994 issued by the Scheduled Caste Co-operative Housing Society.
(xiii)Let us switch over to the defence case. The case of the Defendants
Pg.No.21 of 29 OS.No.204 of 2016 is that Durgaiah purchased Plot No.84 from Society and proved under Ex.B25.
Said Durgaiah died leaving behind his three sons namely D.Sridharan,
D.Muralidharan and D.Raghupathi. The Defendant No.2 is the daughter of
Raghupathi. As seen from Ex.B8, GHMC issued orders under Ex.B8, dt.25-04- 2016 in respect of Plot No.84 at Sai Nagar, Tukaramgate, in Plot No.84 on the name of D.Raghupathi, Orders dt.04-07-2018 from GHMC under Ex.B9 in the name of D.Raghupathi in respect of Plot No.84, in Tukaramgate are clearly proved Raghupathi is in the possession of Plot No.84. Further admittedly,
Raghupathi filed suit against GHMC vide OS.No.262/2016 is also corroborating they are in possession. PW1 filed implead petition in OS.No.262/2016 also.
Undisputedly Raghupathy is son of Durgaiah as such the possession of
Raghupathi is lawful. The statement of PW1 that Raghupathy managed GHMC is baseless.
(xiv)In the present case the suit schedule property in plot No.84, in
Sy.No.844/19 (old No.844/13) admeasuring 222 sq.yards in Ward No.10, Block
No.5, situated at SC Co-operative Housing Society, Tukaramgate, Lalaguda,
Secunderabad, and the property claimed in Ex.B25 are one and the same.
(xv)Learned Counsel for Plaintiff argued that there are no encumbrances over #84 as such Deputy Registrar passed order to register #84 in
Pg.No.22 of 29 OS.No.204 of 2016
ARC. How much force in this argument let us see. PW1 did not file first Award copy. Defendant proved first Award vide Ex.B7, wherein, it is directed to allot an alternative plot to the Petitioner in lieu of his Plot No.122 to an extent of 214 sq.yards. As per Ex.A2, second Award Plot No.84 is mentioned. So, Plot No.84 is found vacant subsequent without proper enquiry with Society nor Deputy
Registration office. Let us see Ex.A4 & Ex.A5. Ex.A4 Encumbrance for a period from 01-01-1989 to 30-05-2018, Ex.A5 Encumbrance for period from 01-01-1992 to 16-08-2019. If we focus on Ex.A4, Ex.A5, we may see
Document No.71/2016 only. Surprisingly, Document No.1232/1964 and Shyam
Rao are also not reflectiong. Adding to it Ex.A4, Ex.A5 obtained from SRO,
Marredpally, but Document No.71/2016 registered with Bowenpally reflected in
Ex.A4, Ex.A5. Now, Ex.B16 rebutted the contention of Plaintiff. As per
Ex.B16, Plot No.84 is registered vide document No.732/1964. As far as genuinity of encumbrances vide Ex.A4, Ex.A5, Ex.B15 & Ex.B16, I found no doubt. The question is what prevented Plaintiff from obtaining Encumbrance from 1964 onwards on par with Ex.B16. Ex.B16 is a period from 01-01-1964 to 31-12-1980. Ex.B15 is period from 01-01-1994 to 04-03-2022.
(xvi)The oral evidence of PW1 and material relied by Plaintiff are not established possession, hence, the oral evidence of PW2 is no useful, since he is
Pg.No.23 of 29 OS.No.204 of 2016 a hear say witness and not residing in Nanda Nagar, where suit schedule property is situated.
(xvii)It is settled law that when there are two sale deeds in respect of one and the same property, then the prior sale deed will prevails over all the subsequent sale deeds. In this case, Ex.B25 is the prior sale deed and Ex.A1 is the subsequent sale deed. Therefore, until and unless Ex.B25 is cancelled or declared as null and void by a competent court of law, the purchasers under
Ex.B25 (namely C.Durgaiah and his LRs) are certainly entitled in law to assert their right, title and interest over the property. Therefore, even if the vendor under the prior sale deed executes any Sale Deed subsequently in favour of any third party, as has been done in this case, such subsequent sale deed, does not have primacy over the prior Sale Deed. In the instant case, admittedly, except execution of Ex.A1 Sale Deed by this Court, delivery of possession or atleast symbolic delivery of possession by this court in favour of plaintiff has not taken place, since the Plaintiff did not produce any separate document to show such delivery of possession in his favour.
(xviii)In the present case, legal heirs of C.Durgaiah namely D.Sundari,
D.Sridharan who is son of Durgaiah and D.Murali who is son of Durgiah filed
OS.No.244/2019 proved under Ex.B2 on the file of Hon’ble XIX Senior Civil
Pg.No.24 of 29 OS.No.204 of 2016
Judge to declare the document No.71/2016 i.e., Ex.A1. The Plaintiff herein filed
OS.No.634/2021 proved under Ex.B4 on the file of this Court against one
Lingampally Vasavi who is subsequent purchaser of suit schedule property for perpetual Injunction. Learned counsel for Plaintiff and Defendant struggled for the relief claimed in temporary Injunction moved in OS.No.634/2021. The
Defendants proved affidavit in IA.No.256/2021 in OS.No.634/2021 wherein the
Petitioner/Plaintiff herein sought temporary Injunction to restrain the
Respondent or any other therein from interfering. The Defendants proved Ex.B1 order in IA.No.256/2021 in OS.No.634/2021 proved in Ex.B1 wherein this
Court has pleased to allowed and ordered that the Petitioner is entitled for temporary Injunction directing the Respondent not to alienate the petition schedule property till the disposal of main suit. Therefore the tenor of order in
IA.No.256/2021 is clear that not to alienate instead of restraining the
Respondent from interfering as contended by Plaintiff herein.
(xix)The contention of learned counsel for Plaintiff is that the DW1 is no way concerned with the suit schedule property since his wife is the necessary but she failed to step into the witness box as such adverse inference may be drawn against Defendant. This is a suit for injunction as such the burden lies on the Plaintiff. The Plaintiff cannot take weakness of defence. However, the suit
Pg.No.25 of 29 OS.No.204 of 2016 schedule property is transferred to one Lingampally Vasavi through Ex.B13.
Admittedly, OS.No.634/2021 filed by Plaintiff against Lingampally Vasavi.
(xx)DW1 is a Defendant No.1, his name is M.J.Vijay, DW1 is son-in- law of Rgahupathy, Defendant No.2 who is wife of Defendant No.1 and daughter of Raghupathy. Raghupathy is son of C.Durgaiah. DW1 stated that
Raghupathy transferred suit schedule property to Lingampally Vasavi during pendency of suit in 2019. DW2 who is husband of Lingampally Vasavi and not belonging to schedule caste. DW1 denied suggestion made to him that on 26- 03-2016 himself and his wife interferred into suit schedule property. The right to sale and purchase is a fundamental right of parties. In this case, Plaintiff published a notice to general public through Ex.A11, Ex.A12. As I stated on foregoing paras, this is a suit for mere injunction, as such the value of Ex.A11,
Ex.A12 to be decided in OS.No.244/2019, OS.No.634/2021. The defence of
Defendant that Plaintiff has not joined necessary parties does not arise, the
Plaintiff is a matter of his own case to join parties.
(xxi)The numerous paragraphs and pages of written arguments of
Plaintiff are in my considered opinion no useful since there is no delivery of possession to the Plaintiff by Society.
Pg.No.26 of 29 OS.No.204 of 2016
(xxii)Learned counsel for Plaintiff relied authorities in support of
Plaintiffs case. (i) Sima Mayee Gurubala and others vs. Golaka Chandra Sahu and others reported in 2007 0 Supreme (ORI) 388. The Civil Court is having jurisdiction to decide which document is valid. In the present case this is a suit for perpetual Injunction as such this Court is not authorized to decide whether
Ex.A1 is valid or Ex.B25 is valid. With due respect to Hon’ble Orissa High
Court the ratio is not applicable to the present case. (ii) Ramji Rai vs. Jagadeesh
Mallah reported in 2006 0 Supreme (SC) 1225, (iii) Podili Kotamma vs.
M.Deshapathy reported in 2011 0 Supreme (AP) 140. I do agree with the learned counsel that the encroacher is also entitled injunction. In the present case, as I discussed above, the Plaintiff is not in possession of suit schedule property. With due respect to Hon’ble Supreme Court the ratio is not applicable to the facts of case. (iv) Ramaiah Gouda vs. M.Varadappa Naidu reported in (2004) 1 SCC 769, in view olf facts and circumstances of case, with due respect to Hon’ble Supreme Court the ratio is not applicable.
(xxiii)On foregoing discussion, in my considered opinion, he Plaintiff failed to prove possession as on date of filing of suit. Accordingly, Issue No.1 answered against Plaintiff.
12.ISSUE NO.2 & 3 :-
Pg.No.27 of 29 OS.No.204 of 2016 “2. Whether Defendants interfered with Plaintiff’s possession ?
3. Whether Plaintiff is entitled for perpetual Injunction ?”
(i)As Issue No.1 answered against Plaintiff, interference by Defendant does not arise, accordingly, Plaintiff is not entitled perpetual Injunction.
13.ISSUE NO.4 :- “To what relief ?”
(i)In the result, suit is dismissed without cost.
Typed to my dictation, by the Stenographer, corrected and pronounced by me in the open Court on this the 26th day of JULY, 2022.
XI JUNIOR CIVIL JUDGE
CITY CIVIL COURT, SECUNDERABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiffs: For Defendants:
PW1 : N.Suryanarayana DW1 : M.J.Vijay Shankar
PW2 : P.Laxminarayana DW2 : Lingampalli Sreedhar Documents marked on behalf of Plaintiffs : Ex.A1 is the original Sale Deed No.71/2016.
Ex.A2 is the Award in ARC.No.221/2002, dt.21-08-2010 passed by Deputy Registrar/Divisional Co-operative Officer.
Ex.A3 is the certified copy of Order in EP.No.186/2014 in ARC.No.221/2002, dt.10-04-2018 on the file of XI Junior Civil Judge, Secunderabad.
Ex.A4 is the Encumbrance, dt.31-05-2018 for period 01-01-1989 to 30-05-2018.
Ex.A5 is the Encumbrance, dt.17-08-2019 for period 01-01-1992 to 16-08-2019.
Pg.No.28 of 29 OS.No.204 of 2016
Ex.A6 is the request by Plaintiff to Public Information Officer under Sec.6 of R.T.I.Act, dt.01-09-2017.
Ex.A7 is the Information from the Assistant Registrar/PIO to Plaintiff, dt.23-09- 2017.
Ex.A8 is the Summons from Assistant Registrar/Sub-Divisional Co-operative Officer, Trimulgherry Mandal to Plaintiff.
Ex.A9 is the Receipt dt.20-02-1994 issued by SC Co-operative Housing Society to Plaintiff.
Ex.A10 is the Receipt dt.20-02-1994 issued by SC Co-operative Housing Society to Plaintiff.
Ex.A11 is the Eenadu Telugu Daily News Paper dt.01-12-2018 (Hyderabad Edition).
Ex.A12 is The Hindu English daily News Paper dt.11-07-2013 (Entire Paper).
Documents marked on behalf of Defendants :
Ex.B1 is the certified copy of Order in IA.No.256/2021 in OS.No.634/2021, dt.03-09-2021 on the file of XI Junior Civil Judge, Secunderabad.
Ex.B2 is the certified copy of Plaint in OS.No.244/2019 on the file of XIX Addl.Senior Civil Judge.
Ex.B3 is the certified copy of Written Statement of Defendant No.1 in
OS.No.244/2019.
Ex.B4 is the certified copy of Plaint in OS.No.634/2021 on the file of XI Junior Civil Judge, City Civil Court, Secunderabad.
Ex.B5 is the certified copy of affidavit in IA.No.256/2021 in OS.No.634/2021.
Ex.B6 is the Counter Affidavit in IA.No.256/2021 in OS.No.634/2021.
Ex.B7 is the certified copy of Order in ARC.No.221/2002 dt.26-04-2004 passed by Deputy Registrar of Co-operative Societies.
Ex.B8 is the original Notice issued by GHMC under Sec.452 (2) of HMC Act to D.Raghupathi, dt.25-04-2016.
Ex.B9 is the Notice under Sec.636 of HMC Act, issued to D.Raghupathi, dt.04-07-2018.
Ex.B10 is the certified copy of Order in CMA No.98/2016 dt.03-09-2019 on the file of I Addl.Chief Judge, CCC, Secunderabad.
Ex.B11 is the Photograph.
Pg.No.29 of 29 OS.No.204 of 2016
Ex.B12 is the C.D.
Ex.B13 is the certified copy of Sale Deed No.3934/2019.
Ex.B14 is the certified copy of Agreement of Sale-cum-General Power of Attorney with possession vide No.3856/2019.
Ex.B15 is the Encumbrance Statement, dt.07-03-2022 for period 01-01-1994 to 04-03-2022.
Ex.B16 is the Encumbrance Statement, dt.26-07-2021 for period 01-01-1964 to 31-12-1980.
Ex.B17 is the receipt for payment of Electricity Bill dt.15-02-2022.
Ex.B18 is the Electricity Demand dt.03-02-2022.
Ex.B19 is the Receipt issued by GHMC dt.27-04-2022.
Ex.B20 is the Photograph.
Ex.B21 is the Photograph.
Ex.B22 is the Photograph.
Ex.B23 is the Photograph.
Ex.B24 is the C.D.
Ex.B25 is the certified copy of Document No.732/1964.
Ex.B26 is the certified copy of Document No.1232/1964.
XI JUNIOR CIVIL JUDGE
CITY CIVIL COURT, SECUNDERABAD