IN THE COURT OF IX ADDITIONAL CHIEF JUDGE, CITY CIVIL COURT AT
HYDERABAD.
DATED, THIS THE 25 th DAY OF AUGUST, 2020
PRESENT: SMT.S.N.SREEDEVI,
IX ADDITIONAL CHIEF JUDGE.
ORIGINAL SUIT N o. 354 of 2018 (Old Suit No.894/2006)
Between:
1. Bollepalli Vijayender Reddy S/o B.Vijaya Narayana Reddy, aged about 25 years, Occ: Student, R/o 30/B, Sanjeeva Reddy Nagar, Hyderabad38
2. Bollepalli Vijaya Narayana Reddy S/o Late Sidda Reddy, aged about 62 years, Occ: Landlord, R/o 30/B, Sanjeeva Reddy Nagar, Hyderabad38 ….Plaintiffs
AND
1. M/s Bhavanam Estates Private Limited, a Company registered under the Companies Act, 1956, having office at Plot No.15, Kanthisikhara Buildings Road, Somajiguda, Hyderabad, rep. by its Managing Director B.Govinda Reddy S/o Late Venkata Reddy, aged about 40 years, Occ: Business, R/o H.No.63 252/a/15, Erramanzil Colony, Hyderabad482.
2. Smt.B.Shakeela Reddy W/o B.Govinda Reddy, aged about 37 years, Occ: Executive Director, Bhavanam Estates Private Limited, R/o 601, Riviera Apartments, Dwarakapuri Colony, Punjagutta, Hyderabad.
3. Humera Haider W/o Mohd.Allauddin Hyder, aged about 36 years, R/o 82 334/34, Road No.3, Banjara Hills, Hyderabad34.
4. J.Venkateswara Reddy (J.V.Reddy) S/o Late Govinda Reddy, aged about 50 years, R/o Flat No.102, United Enclave, 7128/4, Leelanagar, Ameerpet, Hyderabad16.
5. Dr/Mohammad Anwar Ul Islam Khan S/o Dr.Noorul Islam Khan, aged 62 years, Occ: Doctor, R/o H.No.9484/116&117, Kakatiyanagar, Hyderabad.
6. Miss Asiya Parveen D/o Dr.Mohd.Anwarul Islam Khan, aged 27 years, R/o H.No.9484/226&117, Kakatiyanagar, Hyderabad.
7. Syed Abbas Raza S/o Mehdi Hussain, aged 32 years, Occ: Business, R/o Flat No.101, Riviera Apartments, Dwarakapuri Colony, Punjagutta, Hyderabad. (Defendants 5 to 7 are added as parties as per orders in IA.No.35/2010 dated 30.06.2020)
This suit is coming on this day before me for final hearing in the presence of Sri.Y.Hema Chander, Advocate for the Plaintiffs, Sri.D.Devender Rao, Advocate for Defendant No.3, Sri.A.Venkatesh, Advocate for Defendants 5 to 7 and of Sri.P.V.S.K.Chakravarthy, Advocate for Defendant No.4 and defendants 1 and 2 remained ex parte, upon hearing all the counsel and on perusing the material available on record and the matter having been stood over for consideration till this day, the Court delivered the following:
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J U D G M E N T
This is a suit filed for declaration, recovery of possession and perpetual injunction.
1. The contents of the plaint in brief are as follows:
It is submitted by the plaintiff that the plaintiff purchased Flat No.101 admeasuring 1040 sq. feet, ground floor above parking of Revera Apartments bearing municipal No.63347/9, situated at Punjagutta for valid consideration under a registered sale deed document No.803/1998 dated 05.06.1998, from defendant No.1.
On purchase the plaintiff was inducted into possession. By the time of purchase, the defendant No.1 did not finish and complete the construction work as per specifications.
The plaintiff obtained electricity connection and other civil amenities to the purchased property. Ever since purchase the plaintiff is in possession and enjoyment of the suit property, but defendant No.1 in collusion with defendant No.3 and 4 played fraud on the plaintiff and obtained key of the flat from the plaintiff on pretext that the defendant
No.1 will complete the unfinished work in the suit flat. Thereafter defendant No.1 did not return the key and the plaintiff suspected foul play of the defendants and finally the plaintiff found that the defendants 1, 3 and 4 took possession of the suit flat. The defendants did not show any type of ownership document, but clandestinely creating nuisance day and night and not vacating the suit flat in spite of repeated demands.
It is further submitted that on a previous occasion also the defendant No.1 tried to occupy the premises and at that time the plaintiff filed suit in OS.No.6737/2000 on the file of Additional Rent Controller cum Civil Judge, and the said suit was decreed.
Since then the defendant No.1 maintained good relationship with the plaintiff and the plaintiff believed the defendant No.1 and gave the keys for repairing the drainage pipe and when the plaintiffs found that the defendants cheated, the plaintiffs were forced to file the present suit.
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It is submitted that after filing of the suit the plaintiffs came to know that the defendant No.3 without any right or title to the suit flat, sold the same to defendants 5 and 6 under a registered sale deed document No.766/2006 dated 16.03.2006, when the real owner of the suit flat No.101 is plaintiff and defendant No.4 and defendant
No.1 being owner of Flat No.101A. In fact defendants 1 and 2 sold 1/40th in the land of 2000 sq. yards in favour of defendant No.3 without giving the definite boundaries or flat number, with an intention to cause loss to the plaintiff and defendant No.4 and also to delay the execution of any decree that may be passed in the present suit. Except the sale deed, there is no other document executed in favour of defendant No.3 and therefore, the sale deed executed by defendant No.3 in favour of defendant No.5 and 6 is null and void, as no vendor can pass on better title than what he has. Defendant No.1 and 2 sold the remaining portion of Flat No.101 describing it as Flat No.101/A in favour of defendant No.4 under a registered sale deed document No.804/1998.
Defendant No.5 and 6 inducted defendant No.7 as tenant in the suit flat and as such defendant No.5 to 7 are liable to be evicted from the suit schedule flat.
Further it is submitted that the plaintiff issued legal notice on 04.02.2010 to which defendants 5 to 7 gave reply with baseless allegations saying that defendant
No.4 purchased Flat No.101/A from defendants 1 and 2 under a registered sale deed document No.804/1998. In fact defendant No.1 and 2 had no right or title to covey
Flat portion No.101/A purchased by defendant No.4 in favour of defendant No.3 in the guise of orders in CD.No.51/1996. In fact defendant No.1 and 2 did not execute any sale deed in favour of defendant No.3 in respect of Flat No.101 and 101/A till today and defendant No.3 did not obtain any rectification deed from defendants 1 and 2 in respect of the above flats till today. In the absence of any title deed in favour of defendant No.3 in respect of Flat No.101 and 101/A, defendant No.3, 5 and 6 cannot
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have any claim over the said flats and in turn defendant No.5 and 6 executed registered lease deed in favour of defendant No.7 vide registered document No.563/2007 and defendant No.7 is liable to deposit the rents before the Court since their lessors had no legal right to lease the flats in favour of defendant No.7. The defendant No.4 had been waiting for disposal of the suit, to execute registered sale deed in respect of Flat
No.101/A in favour of plaintiff No.1 and since there was delay in disposal of the case and as it was already decided to give up right of defendant No.4 in Flat No.101/A, defendant No.4 executed registered sale deed on 02.12.2014 vide document
No.2268/2014 in favour of plaintiff No.1. Even now Flat No.101 and 101/A are not separated by any wall and defendant No.7 is in occupation as lessee.
It is further submitted that defendant No.7 agreed to pay lease amount of
Rs.21,000/ commencing from 01.04.2007 with 5% enhancement every year. In view of the title dispute between the parties, defendant No.7 be directed to deposit future rents into the Court to the credit of the suit.
Further it is submitted that the defendants while referring to the CD.No.51/1996, they have conveniently omitted to file complaint of Humer Hyder (defendant No.3) and also the reply filed by defendant No.1 and 2 in the said consumer dispute. Even the final orders of consumer dispute has not been filed. The plaintiff is not a party to
OS.No.1493/1996 and as such the orders passed in the said case are not binding on the
plaintiffs. The status quo orders cannot invalidate the orders in favour of plaintiff or defendant No.4. In fact the registered sale deed executed by defendant No.3 in favour of defendants 5 and 6 is an invalid document and not binding on the plaintiffs. That defendant No.1 agreed to pay Rs.70/ per sq. feet towards the unfinished work, to the plaintiff, but defendant No.1 neither paid nor stopped his illegal acts of creating troubles to the plaintiffs. Hence, the suit praying for a decree to declare that plaintiff
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No.1 is the absolute owner and possessor of Flat No.101 admeasruing 1040 sq. feet, recovery of possession and perpetual injunction.
2.The above plaint is the latest amended plaint, showing the impleadment of defendants 5 to 7 as per orders in IA.No.35/2010 dated 30.06.2010, as per orders in
CRP.No.7276/2017 dated 22.01.2018.
3.On the point of pecuniary jurisdiction the plaint was returned by the IV Senior
Civil Judge, for presentation before proper Court and thereafter the suit is renumbered
by the District Court as OS.No.354/2018 and made over to this Court for proceeding further as per law.
4.When the matter stood posted for trial, amendment to written statement filed by defendants 5 to 7 was allowed vide orders in IA.No.515/2010 and accordingly amended fair copy of the written statement is filed, for which the plaintiff filed rejoinder and necessary additional issues were framed at relevant point of time.
5.Defendant No.1 and 2 remained ex parte from the beginning.
6.Defendant No.4 filed written statement independently submitting that this defendant along with the plaintiff No.1 purchased half extent in the plaint schedule property under a registered sale deed dated 05.06.1998 from defendant No.1. The plaintiff No.2 however gave up his extent purchased under the sale deed in favour of plaintiff and for that purpose this defendant was provided with equal space in the sixth floor.
It is further submitted that this defendant joined the plaintiffs in filing a suit in
OS.No.6737/2001 when there was interference on the part of the defendant No.1 while
the plaintiffs were making some alterations in the plaint schedule property. This defendant is not aware of any dealings between defendants 1 and 2 and the plaintiffs, nor has any knowledge about the defendant No.3 who is a total stranger to this
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defendant. This defendant is neither a proper nor a necessary party as no relief is claimed against him and therefore, the suit be dismissed.
7.Written statement is filed by defendant No.5 and 6, which is adopted by defendant No.3 and 7. At the outset the averments of the plaint are denied by further submitting that as per the sanctioned plan by the municipal corporation, there is no permission for construction of ground floor, therefore, the construction of Flat No.101 in ground floor does not arise and as such the allegation that defendant No.1 has not finished the suit schedule property as per specifications given then and that the plaintiffs completed and finished the construction work and is in possession and enjoyment of the same, is all false. That the plaintiffs are not at all in possession of the suit schedule property and the question of obtaining electricity connection does not arise. The electricity charges demand notices and payment receipts are all fabricated. In fact the defendant No.3 was in possession of Flat No.101, First Floor, admeasuring 1650 sq. feet in pursuance of registered sale deed document No.1258/1993 and by virtue of agreement of sale dated 09.09.1992 and agreement for construction of Flat
No.101, First Floor, admeasuring 1900 sq. feet.
It is further submitted that there were proceedings vide CD.No.51/1996 on the file of State Consumer Dispute Rederssald Forum and suit in OS.No.1493/1996 on the file of VIII Senior Civil Judge and the said suit has been dismissed on 24.06.2004 and therefore the alleged sale deed vide document No.803/1998, 804/1999 and 395/2001 are viod and sham documents and are not binding the defendants 3, 5 and 6. The said sale deeds have been executed with a mala fide intention to grab the suit schedule property of defendant No.3, during the subsistence of status quo orders
IA.No.1688/1996 in OS.No.1493/1996.
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It is further submitted that plaintiffs and defendant No.4 are well aware of the dispute between the defendants 1, 2 and 3 in respect of Flat No.101, much prior to the filing of the present suit. As per the stand taken by defendant No.4 in the written statement that the suit Flat No.101, Ground Floor admeasuring 1040 sq. feet or Flat
No.101A, Ground Floor, admeasuring 800 sq. feet, were not permitted by the municipal corporation nor it was constructed by defendant No.1 and 2 in the ground floor, reveals that the suit claim of the plaintiffs is baseless and liable to be rejected.
It is further submitted that when defendant No.1 and 2 did not complete the Flat
No.101, First Floor, admeasuring 1900 sq. feet, the defendant No.3 filed
CD.No.51/1996 and in the said consumer dispute, advocate commissioner was appointed to take measurements of the subject flat and to note the share of defendant
No.3 in the common area and to file report. The advocate commissioner filed report.
The consumer forum passed final orders on 11.07.2002. In pursuance of the orders passed in PP.No.27/2002 in CD.No.51/1996, it was informed that the complainant therein i.e. defendant No.3 herein, has been in possession of the flat has also been given electricity connection in December 2005. On 10.04.2006 the defendant No.2
Smt.Shakeela Reddy, the Executive Director of M/s Bhavanam Estates appeared on behalf of M/s Bhavanam Estates Private Limited, before the consumer form and submitted that the possession was given to defendant No.3 in December 2005 and defendant No.3 has sold the flat on 16.03.2006 in favour of a third party. After recording the submissions of defendant No.2 in PP.No.27/2002, the consumer forum passed a docket order which shows that the dispute in between defendant No.3 and 1 in respect of Flat No.101, First Floor in Rivera Apartments from the date of filing
CD.No.51/1996 and the admissions of defendant No.1 and 2 clearly establishes the
title and possession of defendant No.3 and defendant No.3 has sold the same to
defendant No.5 and 6.
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Further, it is submitted that the vendor of defendant No.5 and 6 completed the construction of Flat No.101 in the first floor and obtained electricity connection after the orders dated 21.10.2005 in PP.No.27/2002 in CD.No.51/1996 and sold out the Flat
No.101 to defendants 5 and 6 under a registered sale deed vide document
No.766/2006 dated 16.03.2006, First Floor, admeasuring 1650 sq. feet including common area with undivided share of land to the extent of 50 sq. yards in premises bearing municipal No.63347/9, Rivera Apartments, Dwarakapura Colony, Punjagutta and on the very same day defendant No.5 and 6 were put in physical possession of Flat
No.101. The present suit is filed on 05.06.2006 after execution of the said registered sale deed by defendant No.3 in favour of defendant No.5 and 6. Defendant No.5 and 6 being in possession and enjoyment of Flat No.101, First Floor, they leased out the same to defendant No.7 under a registered lease deed dated 13.03.2007 and at present defendant No.7 is in occupation of the said flat as a tenant. Therefore, the allegations of the plaintiffs that Flat No.101, ground floor is owned by them and Flat No.101A of ground floor is owned by defendant No.4, is all false and baseless. On perusing the approved plan of the entire complex constructed by defendant No.1, there is no ground floor constructed and permission is accorded vide permit No.430/41
LR.No.229/TPS/1993 dated 06.01.1994, for construction of Rivera Apartments on premises bearing municipal No.63347/9, Dwarakapuri Colony, Punjagutta and as such the construction of flats on ground floor does not arise and Flat No.101 and 101A in ground floor are not at all in existence and as such defendant No.4 has not made any claim in respect of alleged Flat No.101A of ground floor, so far from defendants 1 and
2. Further the boundaries mentioned in the suit schedule property are incorrect and not existing. In fact, defendant No.4 has admitted in his evidence in a criminal case in
CC.No.676/2012 and CC.No.836/2013 on the file of XIV Additional CMM that no
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permission has been granted by the municipal authorities for construction of ground floor nor the possession of the same has been given to the plaintiffs or to defendant
No.4. The said criminal cases were filed by the plaintiffs and defendant No.4s against defendant No.1 and 2 for criminal breach of trust and cheating, which cases clinchingly establish that defendant No.3 had purchased Flat No.101, First Floor in the year 1993, much prior to purchase by plaintiffs and defendant No.4 by paying entire sale consideration in respect of 50 sq. yards undivided share of land and for construction of
Flat No.101 on first floor vide receipt dated 09.09.1992. In the said circumstances defendant No.7 is not liable to deposit the rents into the Court since defendant No.7 obtained the Flat No.101 from its true and real owners defendant No.5 and 6.
It is further submitted that the suit in OS.No.1493/1996 has been filed by defendant No.1 against defendant No.3 and others for cancellation of registered sale deed bearing No.1285/1993, agreement of sale dated 09.09.1992 and agreement for construction dated 09.09.1992. The said suit has been dismissed confirming the title of defendant No.3 in respect of Flat No.101, First Floor, Rivera Apartments and the same is binding on the plaintiffs as well as on the defendant No.4 and even the ‘status quo’ order passed in IA.No.1688/1996 is binding on the plaintiffs and defendant No.4.
Further the plaintiff No.1 himself admitted in the suit that he is having another flat in
Rivera Apartments. As such both the plaintiffs are well acquainted with the affairs of
Rivera Apartments and they are also aware that the advocate commissioner has inspected and measured Flat No.101, First Floor after giving notices to both defendant
No.3 herein and defendant No.1 and 2 herein and after handing over the key of flat to defendant No.3 by defendant No.1 and 2 before the AP State Consumer Redressal
Commission on 22.09.2003. Thereafter the commission decided the dispute and passed orders. Knowing all the facts, the plaintiffs have filed the present suit on 05.06.2006
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with a mala fide intention by not adding defendants 5 and 6 as parties to the suit in spite of knowing that they have purchased Flat No.101 on 16.03.2006 and that defendant No.7 is carrying on business in Flat No.101 as their tenant and therefore, the suit is barred by time as against defendant No. 5 to 7. In fact defendant No.3 having obtained electricity connection, paid an amount of Rs.6,025/ on demand vide receipt
No.097087 dated 14.12.2005 and further paid all the electricity consumption charges till the date of execution of registered sale deed in favour of defendant No.5 and 6.
That apart, defendant No.3 also paid a sum of Rs.33,000/ towards development charges to the Rivera Apartments Owners Welfare Association, vide demand letter
dated 16.02.2006 for Flat No.101 in First floor. The municipal corporation of
Hyderabad has assessed Flat No.101 and collected property tax from defendant No.3 vide special notice D.No.352/T1/TCS/MCH/2006 dated 13.03.2006, for non residential purpose. The plaintiffs have purposefully to take advantage and mislead this
Court, they have mentioned in the schedule by adding in the brackets “above the parking” whereas in the alleged sale deed document No.803/1998, there is no such mention in the schedule. The present suit is filed only to harass and extract money from defendants 5 and 6. There is no cause of action for filing the suit. The suit schedule property was not in existence as on 05.06.1998 nor thereafter the ground floor was constructed nor permitted by the municipal corporation to construct ground floor. Therefore the suit schedule property is fictitious and the claim of the plaintiffs is baseless and fabricated one. The plaintiffs in collusion with defendant No.4 have created and fabricated the alleged sale deed document No.2268/2014 dated 02.12.2014 knowing fully well about the pendency of the present suit. Therefore, the suit is liable to be dismissed. Even the Court fee paid is incorrect and the reliefs are not properly valued.
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8.Rejoinder is filed by the plaintiffs submitting that after issuance of legal notice
dated 04.02.2010, the defendants 5 to 7 gave reply notice with false allegations.
Defendant No.4 purchased Flat No.101A from defendant No.1 and 2 under registered sale deed document No.804/1998 and therefore, defendant No.1 and 2 had no right or title to convey the flat portion No.101A purchased by defendant No.4, in favour of defendant No.3 in the guise of orders in CD.No.51/1996. Defendant No.3 had no right to execute any sale deed in favour of defendant No.5 and 6. It is further submitted that defendant No.4 had been waiting for disposal of the suit to execute registered sale deed in respect of Flat No.101A in favour of plaintiff No.1 and since there was delay in disposal of the case and as it was already decided to give up the rights of defendant
No.4, defendant No.4 executed registered sale deed on 02.12.2014 in favour of plaintiff
No.1. Even now Flat No.101 and 101A are not separated by any wall and defendant
No.7 is in occupation of the said premises as lessee of defendant No.5 and 6 vide registered lease deed document No.563/2007. The Managing Director of defendant
No.1 obtained keys of the flat from plaintiff No.2 and handed over possession of the same to defendant No.3 illegally without any right to convey title or possession to defendant No.3 as on that date. Defendant No.5 to 7 are liable to vacate Flat No.101A and hand over vacant possession of Flat No.101 and 101A to plaintiff No.1 and defendant No.7 is liable to deposit the rents into the Court in view of the title dispute between the parties at the rate of Rs.21,000/ per month commencing from 01.04.2007 at 5% enhancement every year. All other contentions raised in the written statement are denied. It is further submitted that the plaintiffs are not parties to CD.No.51/1996,
OS.No.1493/1996 and IA.No.1688/1996 and as such the proceedings and orders
therein are not binding on the plaintiffs.
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9.Basing on the above pleadings, initially on 02.04.2009, the Senior Civil Judge
Court had framed the following issues for trial:
1. Whether the plaintiff got right and title over the suit schedule property?
2. Whether the plaintiff is entitled for recovery of possession of suit property?
3. Whether the plaintiff is entitled for injunction as prayed for?
4. Whether suit is bad for misjoinder of defendant No.4?
5. To what relief?
10.Additional issues were framed by the Senior Civil Judge Court on 30.09.2010:
6. Whether the registered sale deed dated 16.03.2006 is true, valid and binding on the plaintiff?
7. Whether defendants 5 to 7 are liable to be evicted from the suit schedule flat as claimed by the plaintiffs?
8. Whether registered lease deed dated 13.03.2007 executed in favour of defendant No.7 is true, valid and binding o the plaintiffs?
11.During trial, plaintiff No.1 got himself examined as PW1 and got marked Ex.A1 to A19. No evidence is adduced by defendants 1 to 4. While defendant No.5 got himself examined as DW1 and got marked Ex.B1 to B59.
12.Heard both sides and perused the case records.
13.Issue No.1 to 3:
It is the contention of the plaintiff No.1 and also his evidence as PW1 that at the time of purchase of suit schedule property under registered sale deed marked Ex.A1, plaintiff No.1 i.e. PW1 was a minor and the property was purchased by plaintiff No.2 in the name of plaintiff No.1. That the possession of flat was also delivered by defendant
No.1 on the same day and in pursuance thereof PW1 took electricity connection for the suit flat. That at the same time defendant No.4 i.e. J.Venkateshwar Reddy also purchased Flat No.101/A from defendant No.1 and 2 under a registered sale deed document No.804/1998 dated 05.06.1998, marked Ex.A12 and in pursuance thereof defendant No.4 took possession of the said flat. After some time defendant No.1
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obtained the key of the flat on the premise of completing the unfinished interior works and later on created nuisance without handing over the suit flat. At that time the plaintiff filed suit in OS.No.6737/2000 on the file of Additional Rent Controller – cum –
Civil Judge and the same was decreed on 22.12.2003. Thereafter the plaintiffs came to
know that defendant No.1 and 2 sold 1/40th share in the land of 2000 sq. yards in favour of defendant No.3 without giving any definite boundaries or flat numbers, with an intention to cause loss to the plaintiff as well as to the defendant No.4. In fact defendant No.1 and 2 have no right or title to convey Flat No.101/A which is the property that was sold by defendant No.1 and 2 in favour of defendant No.4. That defendant No.1 and 2 did not execute any sale deed in favour of defendant No.3 in respect of Flat No.101 and 101/A specifically till today and they have shown to have sold 1/40th share in the land of 2000 sq. yards, without giving any definite boundaries or flat numbers and in the absence of any title deed in favour of defendant No.3 in respect of Flat No.101 and 101/A, the alienation by defendant No.3 in favour of defendant No.5 and 6 vide registered sale deed document No.766/2006 dated 16.03.2006 is a sham document.
Coming to the documents exhibited by the plaintiffs in substantiating their claim, the crucial documents to be looked into on behalf of the plaintiffs in respect of the suit flat is Ex.A1 through which sale deed the plaintiff purchased Flat No.101, Ground
Floor, admeasuring 1040 sq. feet, the sale deed Ex.A12 through which defendant No.4
J.Venkateshwar Reddy purchased Flat No.101(A), Ground Floor and Ex.A14 through which plaintiff No.1 purchased Flat No.101(A) from defendant No.4. All the said three sale deeds when read along with the municipal sanctioned plan for the construction of
Revera Apartments, marked Ex.B1, it is clear as seen from Ex.B1 sanction plan that there are no flats in the ground floor, whereas the suit schedule flat is claimed to be in
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the ground floor. As against the said claim, it is the version of PW1 in the course of cross examination that there are seven shops in the ground floor of which he owns four shops. On confronting the sanctioned plan Ex.B1 to PW1, he categorically states that there is no permission granted for making construction in the ground floor, by further adding that there are structures and the builder has built them in the ground floor for which there is no evidence placed before the Court.
It is further observed from the sale deed of the plaintiff that the property purchased by him under Ex.A1 is described in the schedule as “unfinished Flat No.101 in ground floor with the following boundaries: North: Corridor and Flat No.101/A,
South: Flat No.106(A), East: Corridor and West: Open to sky”. As seen further from
Ex.A12 sale deed in respect of Flat No.101/A, the schedule is described as Flat
No.101/A, Ground Floor, but the same property which the plaintiff claims to have purchased from defendant No.4 J.Venkateshwar Reddy under Ex.A14 sale deed, the schedule in the document is described as “Flat No.101(A), Ground Floor (above
parking) with boundaries: North: Flat No.102 of the same building, South: Flat
No.101 of the same building, East: Corridor and West: Open to sky”. From the said observations it is clear that the property under Ex.A12 is not the same which is sold by defendant No.4 to the plaintiff under Ex.A14 and there is ambiguity as to the location of the property.
It is further seen from the encumbrance certificate marked Ex.A17 which is obtained by the plaintiff after purchase of Flat No.101/A, the link document is shown
as 804/1998, but the column meant for description of the property does not refer to
either the floor or the word “above parking” as mentioned in Ex.A14. Even the registration plan annexed to the sale deed under Ex.A14 does not refer to the word “above parking” and it only says Flat No.101(A) on Ground Floor.
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Through PW1 Ex.B2 to B6 are marked, which documents relate to the suit proceedings in OS.No.1733/2007 filed for recovery of possession in respect of shops located in the ground floor, by the plaintiffs themselves against defendant No.1, before the X Senior Civil Judge, City Civil Court, Hyderabad. On perusal of the said documents
PW1 goes to say in his evidence that the property purchased by him which is the subject matter of OS.No.1733/2007 is situated in the ground floor. PW1 further goes to say that the property claimed and covered under Ex.B2 to B6 are different from the property claimed in the present suit and that the property in the present suit is situated above the property covered under Ex.B2 to B6. From the said testimony of PW1 it is clear that the present suit property is above the property covered by Ex.B2 to B6, the suit schedule property should be definitely above the ground floor. Even in the sanctioned plan under Ex.B1 the suit schedule property is no where depicted in the ground floor. It is further clear from the version of PW1 that none of the documents filed by him in this case indicate that he has purchased any piece of property in the first floor, that the plaintiffs claim of ownership over the suit schedule property alleged to be in the ground floor, is only an afterthought to usurp the property belonging to defendant No.5 and 6 which they claim to have purchased under Ex.B19.
At this juncture it is relevant to switch on to the case of the defendants that defendant No.3 filed CD.No.51/1996 when the defendant No.1 did not complete the flat sold to him in spite of execution of sale deed document No.1258/1993 under
Ex.B7. Pursuant to the orders in the said consumer dispute, an advocate commissioner was appointed to measure the subject property therein and also the property of the complainant therein in the common area of Revera Apartment. Based on the advocate commissioner’s report, the State Commission passed orders under Ex.B10 to B12.
Pursuant to the orders of the State Commission, defendant No.3 herein (complainant)
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filed PP.No.27/2002 seeking for the relief of handing over possession of Flat No.101,
First Floor, Revera Apartments and thereafter on 10.04.2006 the defendant No.1 herein (respondent therein) appeared before the State Commission and stated that the possession of Flat No.101 was given to defendant No.3 in November 2005 itself and that the electricity supply was also given. Pursuant to the orders in CD.No.51/1996, the defendants 5 and 6 purchased Flat No.101 vide sale deed document No.766/2006 under Ex.B19 and they became the absolute owners and possessors of Flat No.101,
First Floor, Revera Apartments. That the defendants got their names mutated in the municipal records, marked Ex.B22 and they are also paying property taxes and electricity bills to the statutory authorities under Ex.B23 to B31.
With reference to the said case of the defendants, it is the argument of the learned counsel for the plaintiffs that defendant No.3 without any valid title sold the flats 101 and 101A to defendant No.5 and 6 and in turn defendant No.5 and 6 inducted defendant No.7 as tenant in the suit schedule flat and defendant No.7 is in occupation of the premises as lessee. That the plaintiffs are not parties to the consumer dispute.
That, in the consumer dispute the defendant No.3 did not claim any particular flat with number and defendant No.1, defendant No.2 under orders in CD.No.51/1996 have no right to deliver possession of Flat No.101 and 101A to defendant No.3 and defendant
No.3 had no right to execute sale deed in favour of defendant No.5 and 6. It is not the case of defendant No.3 that he has obtained any rectification deed from defendant
No.1 and 2 in respect of Flat No.101 and 101A till date. With all the said inconsistencies, the defendants have conveniently omitted to file original complaint filed by defendant No.3 and the reply filed by defendant No.1 and 2 in the said consumer dispute. As such neither the status quo orders in IA.No.1688/1996 (in
OS.No.1493/1996) nor the orders in consumer dispute are binding on the plaintiffs
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and those orders cannot invalidate the sale deed in favour of the plaintiff in respect of
Flat No.101 and also the sale deed in favour of defendant No.4 in respect of Flat
No.101/A.
Admittedly the sale deed of plaintiff under Ex.A1 and the sale deed of defendant
No.4 under Ex.A12 are obtained during the subsistence of the suit proceedings in
OS.No.1493/1996. The suit in OS.No.1493/1996 was filed by defendant No.1 against
defendant No.3 and others for cancellation of registered sale deed bearing
No.1285/1993 (Ex.B7), agreement of sale dated 09.09.1992 and agreement for construction dated 09.09.1992 and the same was dismissed for default. It is clear that the sale deed of defendant No.3 was not canceled. When such being the case the transaction under Ex.A1 can have no legal sanctity. It is a settled principle of law that any transactions done during the pendency of any suit relating to the subject matter, such transactions are subject to the result in the already pending suit. As the suit in
OS.No.1493/1996 was dismissed vide Ex.B36 on 24.06.2004, the vendor of the
plaintiff was not vested with any right or title in respect of the disputed property. As per Section 43 of the Transfer of Property Act, no person can convey a better title than what he has. Therefore, the execution of sale deed under Ex.A1 in favour of plaintiff and the sale deed under Ex.A14 in favour of defendant No.4 by defendant No.1 does not arise.
At this juncture, the learned counsel for the defendant No.5, 6 relied upon the judgment of Apex Court in
(1) Tirumala Venkata Reddiah Chowdary
vs.
V.Potla Krishna Prasad reported in
and
(2) Thomson Press (India) Limited
vs.
Namak Brilder reported in AIR 2013 SC 2389.
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In the first decision it was held that no person can pass a better title than what he has. In the second case it was held “that decision of Court in a suit should be
binding not only on the litigating parties but also on those who derive title
pendenti lite”.
The principle laid down in the above precedents apply to the circumstances of the present case. In fact it is borne by record that the suit in OS.No.1493/1996 was dismissed on 24.06.2014 (Ex.B36). As per Ex.B32 and B33, the same Court has passed a ‘status quo’ order in IA.No.1688/1996 on 07.11.1996 and the said orders were in force till the dismissal of the suit. It is not the case of the plaintiff that the said suit was again pursued from their end as the orders are likely to affect their rights which they claim to have accrued under the registered sale deed Ex.A1. It is further observed that
M/s Bhavanam Estates Private Limited represented by B.Govinda Reddy as plaintiff in the above referred suit (defendant No.1 in this suit) has filed a memo on 25.01.2001 that he undertakes to maintain status quo with respect to alienation, which order was passed on 07.11.1996 under Ex.B33 and the genuineness of the said memo can be assessed, when defendant No.1 himself executed registered sale deed in 1998 in favour of plaintiff and defendant No.4, even when the status quo order subsists and the suit remained pending. Further, the plaintiff contended in the written arguments that the schedule mentioned in Ex.B7 does not contain any flat number and boundaries relate to entire 2000 sq. yards of land where Revera Apartments was constructed. That clause 2 at page No.5 of Ex.B7 it is mentioned as “vendors shall construct on the schedule
property an apartment for the vendee as separately agreed between them bearing
Flat No.101 (corrected as 106) on the first floor, admeasuring 1900 sq. feet”. No separate agreement has been filed by defendant No.3 in respect of Flat No.101, except filing the agreement of sale Ex.B8 and agreement of construction Ex.B9 along with
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receipt. There is no mention of Flat No.101 or its extent in both the said documents and defendant No.3 did not enter the witness box to explain about the discrepancy with regard to Flat No.101 corrected as 106 and he did not even file the original of
Ex.B7 and thus deprived the plaintiff from the opportunity of sending it to handwriting expert. Defendant No.1 sold the property to plaintiff on 05.06.1998. Thus earlier status orders of the Court in IA.No.1688/1996 under which defendant No.1 who was builder, sold the flats 101 and 101/A to plaintiff and defendant No.4. Those sales by defendant
No.1 in favour of plaintiff and defendant No.4 were not challenged in any civil Court till today. It is for defendant No.3 to explain why he purchased undivided property in
Reviera Apartments without purchasing any specific flat and what is not purchased was sold to defendant No.5 and 6 by defendant No.3. There is no document of title in favour of defendant No.3 till today and she has no right to convey title to defendant
No.5 and 6.
It is further contended by the plaintiff in the written arguments that defendant
No.5 who is examined as DW1 admitted that after the passing of orders in
PP.No.27/2002 in CD.No.51/1996, defendant No.3 obtained electricity connection for
Flat No.101, which admission clearly proves that defendant No.3 was not inducted into possession of Flat No.101 by defendant No.1 and 2 at the time of execution of sale deed under Ex.B7 and there is no evidence as to whether defendant No.3 came into possession of Flat No.101 immediately after her purchase. In the said circumstances, the argument of the learned counsel for defendant No.5 and 6 that the plaintiff did not challenge the order in CD.No.51/1996 does not hold any water as the plaintiff was not made party to CD.No.51/1996 and immediately after dispossession of the plaintiff by virtue of orders in PP.No.27/2002 when defendant No.1 took key and handed over to defendant No.3, the plaintiff filed the present suit within 6 months as contemplated
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under Section 6 of Specific Relief Act.
But, the plaintiff having filed suit for declaration of title, the burden is on the plaintiff to prove and establish his case. The plaintiffs cannot rely on the weakness of the defendants case as pointed out in the preceding paragraphs, for grant of the relief of declaration. The plaintiff should succeed on the strength of his own case and not on the weaknesses of the defendants case.
It is the plaintiff’s own version that he has handed over the key of the subject flat to defendant No.1 on the ground that defendant No.1 asked for the key to complete the unfinished work in the flat. It is also borne by record that the plaintiff is owning another flat No.501 in fifth floor apart from owning four shops in the ground floor.
Therefore, the plaintiff must be very well aware of what is going on in the Revera
Apartments. It is not the case of plaintiff that he is not aware of the advocate commissioner visiting the Revera Apartments in connection with CD.No.51/1996. Even when the plaintiff has handed over the key to defendant No.1 for attending to the unfinished work, it is clear that the plaintiff was not in physical possession and occupation of the flat, which according to him is purchased under Ex.A1. There is a better evidence produced by defendants to show that the subject property has been duly sold under Ex.A19 sale deed by defendant No.3 in favour of defendant No.5 and 6 and the subject property has been mutated in the names of defendant No.5 and 6 under
Ex.A20.
It is further seen from the record that the property tax for the subject property is either paid by defendant No.3 or by defendant No.5 as transpired in Ex.A22 to A26.
Similar is the case with reference to payment of electricity bills Ex.B28 to B31. Even the encumbrance certificate obtained from 1995 to 2015 and got marked by DW1 and
Ex.B57 to B59 does not reflect the alleged sale transaction of the plaintiff vide sale
Page No.21 O.S.No.354/2018
deed No.803/1998 and the encumbrance certificate reflect the sale deed 804/1998
Ex.B4. Having regard to all the discrepancies and the inconsistencies as pointed out in the preceding paragraphs in the case of the plaintiff and under no stretch of imagination can it be said that the plaintiffs neither proved the title to the suit property nor its possession nor its identity. Issues 1 to 3 are held in negative.
14.Issue No.4:
There is a cloud to be cleared only during trial as to Flat No.101 and 101A as to whether they are in the ground floor or first floor pursuant to the respective sales and who got title over it and for that the purchase made by plaintiffs and defendant No.4 for Flat No.101 and 101A respectively from defendant No.1 and 2, by the then existing ground floor and later converted as the present first floor, which defendant No.3 claims
Flat No.101 of the first floor covered by his registered sale deed 1258/1993. For clearing the above referred cloud, defendant No.4 is a proper party to the suit.
Moreover, the plaintiffs claim to have purchased the Flat No.101A from defendant
No.4 on 02.12.2014 vide document No.2268/2014. Accordingly issue No.4 is answered.
15.Issue No.6,7&8:
For deciding the title of the plaintiffs in the suit it is necessary to trace the title to his vendor and incidentally for deciding the issue the Court has to look into the title of defendant No.3 who also traced his title to the same vendor. The discussion is only incidental and not to see whether plaintiff has got right, title over the subject property has been in any manner divested by the subsequent transactions. The very dispute is whether plaintiff bears title in the first place or whether he can be declared as the owner. In such a suit the Court is not expected to adjudicate the title of the defendant, except incidental, more so when there is no contest from defendant No.3 and no Court
Page No.22 O.S.No.354/2018
fee paid. Therefore, the question of whether existed sale deed dated 16.03.2006 is true, valid and binding on the plaintiff, does not arise and so also the binding nature of the existed lease deed executed in favour of defendant No.7 and consequently the eviction defendants 5 to 7. These issues are accordingly answered.
16.Issue No.5:
In view of the findings on the above issues, the suit of the plaintiff fails and the same is liable to be dismissed.
In the result, the suit is dismissed without costs.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court, this the 25th day of August, 2020. Sd/ S.N.Sreedevi IX Additional Chief Judge City Civil Court, Hyderabad.
APPENDIX OF EVIDENCE:
Witnesses Examined
For the plaintiffs: For defendants 5 to 7:
PW1: P.Vijayender ReddyDW1: Dr.Mohammed Anwar Ul Islam
Documents marked for the plaintiffs:
Ex.A1 is the certified copy of registered sale deed dated 05.06.1998 Ex.A2 is the electricity demand notice dated 17.01.2001 Ex.A3 is the reconnection fee bill issued by electricity department Ex.A4 is the demand notice dated 17.01.2001 issued by electricity department Ex.A5 is the electricity bill dated 31.03.2001 Ex.A6 is the electricity bill dated 28.08.2010 issued by electricity department Ex.A7 is the copy of income tax return for the assessment year 20052006 Ex.A8 is the encumbrance certificate dated 12.04.2006 from 01.05.1995 to 11.04.2006 Ex.A9 is the certified copy of judgment in OS.No.6737/2000 dated 22.12.2003 Ex.A10 is the certified copy of decree in OS.No.6737/2000 Ex.A11 is the certified copy of plaint in OS.No.6737/2000 Ex.A12 is the certified copy of registered sale deed dated 05.06.1998 executed by M/s Bhavanam Estates Private Limited in favour of defendant No.4 Ex.A13 is the encumbrance certificate dated 12.04.2006 in respect of Flat No.101 Ex.A14 is the certified copy of registered sale deed document No.2268 dated 02.12.2014 Ex.A15 is the market value certificate dated 30.01.2015 Ex.A16 is the statement of encumbrance of property of Flat No.101 dated 30.01.2015
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Ex.A17 is the statement of encumbrance of propery of Flat No.101(A) dated 30.01.2015 Ex.A18 is the certified copy of charge sheet filed in CC.No.676/2012 dated 31.03.2012 Ex.A19 is the certified copy of charge sheet filed in CC.No.836/2013 dated 10.02.2013
Documents marked for the defendant No.5 to 7:
Ex.B1 is the sanctioned plan granted for construction of ground floor Ex.B2 is the certified copy of judgment in OS.No.1733/2007 dated 18.11.2010 Ex.B3 is the certified copy of decree in OS.No.1733/2007 dated 18.11.2020 Ex.B4 is the certified copy of chief examination of PW1 in OS.No.1733/2007 Ex.B5 is the certified copy of written statement of defendants 3 to 6 in
OS.No.1733/2007
Ex.B6 is the certified copy of plaint in OS.No.1733/2007 Ex.B7 is the certified copy of sale deed dated 25.02.1993 Ex.B8 is the agreement dated 09.09.1992 Ex.B9 is the receipt dated 09.09.1992 Ex.B10 is the certified copy of oral order in CD.No.51/1996 (OP.No.51/1996) Ex.B11 is the certified copy of docket proceedings and docket orders in PP.No.27/2002 in CD.No.51/1996 (OP.No.51/1996) Ex.B12 is the certified copy of advocate commissioner’s report along with rough sketch plan Ex.B13 is the original letter dated 16.02.2006 issued by Riviera Apartments Owners Welfare Association Ex.B14 is the original payment receipt dated 25.02.2006 issued by RAOWA Ex.B15 is the tax notice issued by MCH dated 13.03.2006 Ex.B16 is the original payment receipt dated 14.03.2006 issued by MCH Ex.B17 is the demand letter dated 29.11.2005 issued by AP TRANSCO Ex.B18 is the payment receipt dated 14.12.2005 issued by APCPDCL Ex.B19 is the certified copy of sale deed document No.766/2006 dated 16.03.2006 Ex.B20 is the demand letter dated 27.02.2006 issued by RAOWA Ex.B21 is the payment receipt dated 12.04.2006 issued by RAOWA Ex.B22 is the mutation proceedings dated 19.04.2006 issued by Deputy Commissioner, Circle No.5, MCH. Ex.B23 is the original tax payment receipt dated 15.04.2006 Ex.B24 is the original tax payment receipt dated 03.04.2007 Ex.B25 is the original tax payment receipt dated 05.07.2008 Ex.B26 is the original tax payment receipt dated 18.03.2010 Ex.B27 is the original registered lease deed document No.563/2007 dated 13.03.2007 Ex.B28 is the original electricity demand bill and payment receipt dated 11.06.2006 Ex.B29 is the original electricity demand bill and payment receipt dated 03.04.2007 Ex.B30 is the original electricity demand bill and payment receipt dated 04.05.2010 Ex.B31 is the original electricity demand bill and payment receipt dated 04.05.2010 Ex.B32 is the certified coy of interim orders in IA.No.1688/1996 in OS.No.1493/1996
dated 07.11.1996
Ex.B33 is the certified copy of common orders in IA.No.1688/1996 and
IA.No.1608/2000 in OS.No.1493/1996 dated 23.02.2001
Ex.B34 is the certified copy of plaint in OS.No.1493/1996 dated 07.11.1996 Ex.B35 is the certified copy of written statement filed by defendant No.2 and 3 in
OS.No.1493/1996 dated 03.04.1997
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Ex.B36 is the certified copy of judgment in OS.No.1493/1996 dated 24.06.2004 Ex.B37 is the certified copy of agreement of sale dated 09.09.1992 Ex.B38 is the certified copy of record of notes discussed in Riviera Apartments dated 30.10.1994 Ex.B39 is the certified copy of letter dated 30.11.1994 issued by Bhavanam Estates Ex.B40 is the certified copy of letter dated 13.12.1994 issued by Bhavanam Estates Ex.B41 is the certified copy of circular dated 27.04.1995 issued by Bhavanam Estates Ex.B42 is the certified copy of complaint dated 20.12.2000 addressed to SHO, Punjagutta Ex.B43 is the certified copy of representation dated 01.12.2000 addressed to Hon’ble Chief Minister of AP Ex.B44 is the certified copy of representation addressed to Director General of Police, CBCID Ex.B45 is the certified copy of minutes of the meeting held on 02.10.1994 Ex.B46 is the certified copy of receipt dated 03.10.1994 issued by RAOWA Ex.B47 is the certified copy of record of discussions held on 28.09.1994 Ex.B48 is the certified copy of record of discussions held on 08.08.1994 Ex.B49 is the certified copy of proceedings of meeting held on 07.08.1994 Ex.B50 is the certified copy of memo dated 25.01.2001 filed in OS.No.1493/1996 Ex.B51 is the certified copy of petition filed in OS.No.1493/1996 under Order 9 Rule 9
dated 07.10.2004 vide IASR.No.2367/2004
Ex.B52 is the certified copy of out of order petition filed in OS.No.1493/1996 dated 07.10.2004 vide IASR.No.2369/2004 Ex.B53 is the certified copy of docket order in IASR.No.2367/2004 in
OS.No.1493/1996 dated 08.12.2004
Ex.B54 is the certified copy of docket order in IASR.No.2369/2004 in
OS.No.1493/1996 dated 08.12.2004
Ex.B55 is the certified copy of registered sale deed vide document No.804/1998 dated 05.06.1998 Ex.B56 is the certified copy of registered sale deed vide document No.395/2001 dated 31.12.2000 Ex.B57 is the original E.C. issued by SRO, S.R. Nagar, dated 23.01.2015 Ex.B58 is the original E.C. issued by District Registrar, Red Hills dated 21.01.2015 Ex.B59 is the original E.C. issued by SRO, S.R. Nagar, dated 22.01.2015
Sd/ S.N.Sreedevi IX Additional Chief Judge City Civil Court, Hyderabad.