IN THE COURT OF THE VIII JUNIOR CIVIL JUDGE
CITY CIVIL COURT : HYDERABAD
Thursday, the 27th day of March, 2014
Present : V. Rajani, VIII Junior Civil Judge.
ORIGINAL SUIT NO.4266 of 2010
BETWEEN:
Azam Ali, S/o late Khaja Muzaffar Ali, Age:45years,Occ:Business, R/o 223626/3, Mina Plaza, Zehra Nagar, Hyderabad. At present residing at 7835, Nawab Mohalla, Gulbargah, Karnataka District. … Plaintiff
AND
1.Sakina Bee W/o late Mohd Osman, Age: 77 years, Occ: Household
2.Mohd Abdul Majeed S/o Late Mohd. Osman, Age: 39 years, Occ: Business,
3.Mohd Abdul Rahman S/o Late Mohd. Osman, Age: 36 years, Occ: Business,
4.Mohd Abdul Bari S/o Late Mohd. Osman, Age: 33 years, Occ: Business, (Defendants 1 to 4 are R/o 231897/1, Kata Talab, Mir Jumla, Hyderabad)
5.Mohd Yousuf Ali S/o late Khaja Muzaffar Ali, Age: 63 years,
6.Mohd Sadath Ali S/o late Khaja Muzaffar Ali, Age: 55 years,
7.Mohd Shoukat Ali S/o late Khaja Muzaffar Ali, Age: 53 years,
8.Mohd Mauzam Ali S/o late Khaja Muzaffar Ali, Age: 43 years,
9.Mohd Mukram Ali S/o late Khaja Muzaffar Ali, Age: 41 years,
10. Bilquis Fatima D/o late Khaja Muzaffar Ali, Age: 65 years,
11. Anjum Fatima D/o late Khaja Muzaffar Ali, Age: 62 years,
12. Nusrat Fatima S/o late Khaja Muzaffar Ali, Age: 54 years,
Page No.2 O.S.No.4266 of 2010
13. Shahanaz Fatima S/o late Khaja Muzaffar Ali, Age: 51 years,
14. Anees Fatima S/o late Khaja Muzaffar Ali, Age: 48 years,
Defendants 5 to 14 are R/o H.No.226865, Panjesha, Hyderabad. … Defendants
This suit coming on 19.03.2014 before me for final hearing in the presence of Sri V.Kumar Purohit, learned counsel for the plaintiff, Sri Gopal Rao Patil, learned counsel for defendants 1 to 4; defendants 5 to 7 having remained ex parte; the suit against defendants 8 to 14 was dismissed for default and the matter having been heard and stood over for consideration till this day, this Court delivered the following:
: JUDGMENT :
This suit is filed seeking to declare order dated 19.06.2000, passed by
IAdditional Rent Controller, Hyderabad, in R.C.No.158 of 2000, as illegal, null and void, not executable and obtained by playing fraud on the Court as well as on the plaintiff and for a consequential injunction to restrain the defendants from interfering with the possession of the plaintiff over the suit schedule property bearing Municipal No.226149 to 151 situated at
Machlikaman, Hyderabad.
2.Case of the plaintiff is that the suit schedule house bearing Municipal
No. 226149 to 151, situated at Machlikaman, Hyderabad, was originally owned and possessed by his maternal grandfather by name Haji
Mohammed Hussain, who gifted the said property on 07.04.1998, by way of a registered gift deed in favour of his daughters Zainab Begum,
Ayesha Begum and Shareefa Begum and that the donees divided the said property into three equal portions as per mutual agreement dated 27.11.1987. It is stated that the mother of plaintiff i.e. Ayesha Begum filed
Page No.3 O.S.No.4266 of 2010
O.S.No.5848 of 1987 against her two sisters, for getting her share and the
said suit was decreed and thereafter, mother of the plaintiff divided her share into three portions and gifted one such portion of property to the plaintiff and two shares to her other sons, on 07.04.1998, and thus, the mother of plaintiff had settled all her property in favour of plaintiff and her other sons on 07.04.1998 and that she was not possessing even a single inch of the suit schedule property after the said date. It is stated that disputes arose between the plaintiff and his mother and therefore, in 1999 he separated from the family and started residing separately. He resided for some days at his inlaw's house and thereafter in rented and own houses.
When the mother of the plaintiff had tried to dispossess him from the gifted property due to family disputes, he filed a suit in O.S.No.4609 of 2000, which was decreed.
3.It is the further case of plaintiff that for the survival of his family, he started business at Gulbarga, and while so, on 17.07.2010, he got a message from his friend that some persons from the Court visited the suit schedule property with warrant of possession. Thereafter, the enquiries made by him revealed that a warrant has been issued by the Court of
IAdditional Rent Controller, Hyderabad, pursuant to the compromise entered by the parties in R.C.No.158 of 2000, which was filed by his mother. It is stated that his mother had no manner of right, title or interest over the suit schedule property on the date of filing the above R.C., as she delivered its possession to him prior to filing of the said R.C. It is stated that the said R.C. was filed without making him a party, but his name was
Page No.4 O.S.No.4266 of 2010 included, at the time of execution proceedings, and thus, fraud was played on him, to deprive him of the property. Hence, the order passed in the said
RC is to be declared as null and void and not binding on him. It is further stated that the plaintiff has filed E.A.(SR) No.2387 of 2010 in the R.C., but the same was rejected without being numbered. It is stated that as the proceedings were initiated before the Rent Controller by concealing the facts like executing the gift in favour of plaintiff and about his filing the suit in O.S.No.4609 of 2000, the said proceedings are liable to be declared as illegal, null and void and not executable. Hence, the suit.
4.Defendants 5 to 7 remained ex parte. The suit against defendants 8 to 14 was dismissed for default. Written statement is filed by defendants 1 to 4. In the written statement, while denying the various allegations made in the plaint, it is stated that the plaintiff has not come to the Court with clean hands. Plaintiff suppressed the material facts before the Court.
Plaintiff burnt his hands by filing claim petition in E.P.No.32 of 2000 in
R.C.No.158 of 2000. A claim petition is as good as suit and only remedy
available to him is to file a revision against the rejection order. Originally house bearing No.226149 to 151 situated at Machilikaman, Hyderabad, was owned and possessed by Haji Mohd Hussain. At the time of filing of
R.C.No.158 of 2000, Ayesha Begum informed that her father was the
original owner of house bearing No.226145 to 153 and he gifted the said property to his three daughters by name Zainab Begum; Ayesha Begum and
Shareefa Begum. This fact came to the knowledge of these defendants only when Ayesha Begum filed R.C.No.158 of 2000 for eviction before the
Page No.5 O.S.No.4266 of 2010
IAdditional Rent Controller, Hyderabad. Originally husband of defendant
No.1 and father of defendants 2 to 4 by name late Mohd Osman obtained
Mulgi No.226151 situated at Machili Kaman, Hyderabad, on rent from
Haji Mohd Hussain. Defendants are not aware of filing of the suit by the mother of the plaintiff. At the time of filing of R.C.No.158 of 2000, Ayesha
Begum informed that she became owner of the suit property by virtue of decree in O.S.No.5848 of 1987 and that she became owner of premises bearing No.226149 to 151 situated at Machilikaman, Hyderabad, by virtue of a civil suit. Prior to that late Mohd Osman was the original tenant and after his death, defendants became the tenants of late Haji Mohd Hussain and continued to pay rents to three daughters of late Mohd Haji Hussain.
Father of defendants filed R.C.No.443 of 1993 under Section 8 of the Rent
Control Act, seeking permission for deposit of rents against Zainab Begum and her two sisters. The gift transaction was kept in dark by the legal heirs of Mohd. Hazi Hussain till filing of R.C.No.158 of 2000. Defendants are not aware of the gift made in favour of the plaintiff and his brothers by their mother on 07.04.1998 and that the suit schedule property fell to the share of the plaintiff. Ayesha Begum never informed these defendants about execution of gift deed in favour of the plaintiff. At no point of time, the plaintiff exercised his ownership over mulgi No.226151. It is denied that possession of the mulgi was delivered to the plaintiff. The gift deed is silent that there are tenants in the mulgi carrying on business. The gift deed is bogus, created and never acted upon by the donor and the donee. Plaintiff was never in possession of the gifted property, more particularly mulgi
Page No.6 O.S.No.4266 of 2010
No.226151, therefore, the question of interference of his mother with his possession does not arise. O.S.No.4609 of 2000 was a collusive suit filed by the plaintiff against his mother for declaration to show that there were differences between them. The findings in O.S.No.4609 of 2000 are not binding on the defendants. It is denied that in 1999, there were differences between the plaintiff and his mother and the plaintiff used to reside in his in laws house and thereafter in rented premises. After the death of Mohd.
Osman, these defendants inherited the tenancy in respect of mulgi No.
226151 and continued their business therein. As the mulgi was in a dilapidated condition and when Ayesha Begum, her two sisters and the plaintiff tried to dispossess the defendants from the mulgi, they filed
O.S.No.5503 of 1999 on the file of VJunior Civil Judge, City Civil Court,
Hyderabad and got an interim order for repairs of the mulgi. The defendants therein preferred C.M.A. and the same was dismissed. In the meantime, Ayesha Begum filed R.C.No.158 of 2000 under Section 12 of the
Rent Control Act. In the said case, summons was served on these defendants at mulgi No.226151 and they entered appearance in the said case and contested the same. Due to mediation of wellwishers, the matter was compromised before the Court and Ayesha Begum undertook to construct mulgi and redeliver possession to the defendants. Accordingly, on 01.07.2000, possession of the mulgi was handed over to Ayesha Begum.
Subsequently, Ayesha Begum failed to redeliver the possession after construction of the mulgi as per the terms of the compromise. Defendants filed E.P.No.32 of 2000 for the relief of redelivery of possession. One
Page No.7 O.S.No.4266 of 2010
Shareefa Begum, claiming herself to be the owner of the mulgi, filed
E.A.No.85 of 2000 and dragged on the matter for ten years without giving possession to the defendants. In the above claim petition, Shareefa Begum claimed ownership over premises No.226145 to 153 and also sought possession of the said property. The said claim petition was dismissed on 18.12.2009 and Shareefa Begum filed C.R.P.No.510 of 2010, which was also dismissed. During pendency of the claim petition, Ayesha Begum died and her legal heirs were brought on record. Plaintiff is also aware of the said litigation and having lost all the cases, he filed claim petition before the
Rent Controller, which was rejected at the S.R. Stage. Subsequent to dismissal of the claim petition, plaintiff filed E.A.Nos.47 and 48 of 2010 in
E.P.No.32 of 2000 for condonation of delay of more than 3000 days in filing
the setting aside petition in the E.P. Though no evidence was required, to delay the proceedings, plaintiff filed chief affidavit in the said petition.
Plaintiff, by filing petitions and suits, is prolonging the litigation only to avoid redelivery of possession. It is denied that plaintiff started business at
Gulbarga and it is also denied that he got a message from his friend about the warrant of possession. Plaintiff is mastermind in filing R.C.
No.158 of 2000 and he was present at the time of delivery of possession of mulgi No.226151 to his mother. At that time, he did not inform that the suit property was gifted to him. The defendants never paid rents to the plaintiff. In O.S.No.5503 of 1999 also, the plaintiff never pleaded that the suit schedule property was gifted to him. Plaintiff and his mother engaged common Advocate in O.S.No.5503 of 1999 and their plea in the said suit
Page No.8 O.S.No.4266 of 2010 was also one and the same. In the C.M.A. also, plaintiff did not plead that there were disputes between him and his mother. In O.S.No.5503 of 1999, it was clearly mentioned that the defendants are in occupation of the suit schedule mulgi as tenants and the same was within the knowledge of the plaintiff. In 1999 and 2000, defendants were in possession of the suit property as tenants and it is to be established by the plaintiff as to when the defendants were dispossessed legally, and how he came into possession of the suit property. In E.A.No.47 of 2010 in E.P.No.32 of 2000, plaintiff herein, in his crossexamination, admitted that as per the compromise, defendants handed over the key to his mother on 01.07.2000. It clearly shows that the plaintiff is aware of the proceedings in R.C.No.158 of 2000 and delivery of possession to his mother. There is no collusion between the defendants and mother of the plaintiff in initiating the proceedings in
R.C.No.158 of 2000. It is denied that through the gift deed, possession was
delivered to the plaintiff. Ayesha Begum, during her life time never intimated the defendants about execution of gift deed in favour of the plaintiff. After the death of Ayesha Begum, all her legal heirs were brought on record, but the plaintiff intentionally did not contest the matter and on the other hand, he instigated his maternal aunt to file the claim petition.
Shareefa Begum also did not reveal that the property was gifted to the plaintiff. Plaintiff has not issued any notice to Shareefa Begum, who claimed ownership over the suit property and did not question her right over the suit property. This itself shows the collusion among plaintiff, his mother and his maternal aunts. No documents are filed by the plaintiff to
Page No.9 O.S.No.4266 of 2010 show that he made construction over the suit property. The construction was made by Ayesha Begum. After taking possession from the defendants on 01.07.2000, to deprive their legitimate rights in claiming redelivery of possession, plaintiff mutated his name in September 2000 and also filed
O.S.No.4609 of 2000 against his mother during the period of three months
stipulated for redelivery of possession by the mother of the plaintiff. Fraud has been played upon the defendants by the plaintiff and his mother. Only to get rid of the old tenants, all these tricks have been played by the plaintiff and his mother. There is no cause of action for filing the suit. The burden lies on the plaintiff to prove that he became owner of the suit schedule property and exercised immediately the ownership rights over the property and he was delivered with possession of the property. The suit is timebarred and the plaintiff also instigated his tenant by name Javeed to file O.S.Nos.2834 and 4095 of 2010 and the same are pending before this
Court. Accordingly, the defendants prayed to dismiss the suit with exemplary costs.
5.Based on the above pleadings, the following issues are framed for trial:
1) Whether the plaintiff is entitled to the relief of declaration that order dated 19.06.2000 passed in R.C.No.158 of 2000 by IAdditional Rent Controller, Hyderabad, is illegal, null and void and not executable?
2) Whether the plaintiff is entitled to the relief of consequential injunction as prayed for?
3) To what relief?
Page No.10 O.S.No.4266 of 2010
6.Plaintiff in support of his case, examined himself as P.W.1 and got marked Exs.A1 to A11 and A13. During his crossexamination, Exs.B1 to B3 are marked by defendants 1 to 4. Defendant No.2 examined himself as
D.W.1 and marked Exs.B4 to B24. During his crossexamination, the plaintiff marked Ex.A12 and Ex.B2(a).
7.Heard leaned counsel appearing on either side and I have gone through the material available on record.
8.ISSUE NO.1:R.C.No.158 of 2000 on the file of IAdditional Rent
Controller was filed by Ayesha Begum, mother of the plaintiff, against defendants 1 to 4 herein under Section 12 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (for short “the Act”) to direct them to deliver vacant possession of the petition schedule premises bearing Mulgi
No.226151, situated at Machilikaman, Hyderabad to her for carrying out necessary repairs and reconstructions, if any, to be completed within a period of three months from the date of delivery of possession and that she would reinduct them into possession of the petition schedule premises, immediately after expiry of three months, as aforesaid, on a monthly rent of
Rs.600/.
9.The said R.C was compromised between the parties and on 19.06.2000, a compromise memo was filed and in terms of the said compromise memo, an order was passed allowing the petition directing the respondents to put the petitioner in possession of the petition schedule
Page No.11 O.S.No.4266 of 2010 mulgi on 01.07.2000 on condition that the petitioner has to reinduct the respondents into possession of the mulgi within three months from 01.07.2000, and it is the case of defendants 1 to 4 that they accordingly handed over possession of the mulgi to Ayesha Begum on 01.07.2000 and as she failed to redeliver the possession after expiry of three months as agreed, they filed E.P. No.32 of 2000 seeking execution of the order.
10.The case of the plaintiff is that by the date of filing of the above R.C., which was filed on 12.04.2000, his mother had no right, title or interest over the petition schedule mulgi, as the said property, along with other property, was gifted to him by his mother on 07.04.1998, and therefore, the compromise recorded in the above R.C, is not binding upon him and the compromise is an illegal one. It is also his case that there were disputes between him and his mother and due to the same in 1999, he got separated from his mother and started residing separately by staying some days at his inlaws house and thereafter, in a rented house. To deprive him of his valuable right over the above mulgi, it is the case of the plaintiff that his mother in collusion with defendants 1 to 4 herein, filed the above R.C. He came to know about the said proceedings only on 17.07.2010, as he was living separately from his mother and carrying on business at Gulbarga.
11.Learned counsel for the plaintiff contended that the order passed in the above R.C by the Rent Controller is without jurisdiction and illegal as it was passed without recording any satisfaction by the Court as to the existence of the grounds enumerated in Section 12 of the Act; that the
Page No.12 O.S.No.4266 of 2010 order is also illegal on the ground that it was passed without verifying the status of the parties and therefore, the said order is not binding on the plaintiff and hence, liable to be declared as null and void.
12.The plaintiff, who examined himself as P.W.1, in his chiefaffidavit, reiterated the averments of the plaint. He marked Exs.A1 to A11 and A13.
During his crossexamination, Exs.B1 to B3 are marked, on confrontation, by defendants 1 to 4.
13.Ex.A1 is the certified copy of gift settlement deed dated 07.04.1998;
Ex.A2 is certified copy of plaint in O.S.No.4609 of 2000, dated 13.09.2000;
Exs.A3 and A4 are certified copies of judgment and decree in O.S No.
4609 of 2000 dated 12.12.2000 on the file of IIIJunior Civil Judge, City
Civil Court, Hyderabad; Ex.A5 is certified copy of petition in R.C.No.
158 of 2000 on the file of IAdditional Rent Controller, Hyderabad, dated 12.04.2000; Ex.A6 is certified copy of memo of compromise with rough sketch plan in R.C.No.158 of 2000 dated 19.06.2000; Ex.A7 is certified copy of petition in E.P.No.32 of 2000 in R.C.No.158 of 2000 on the file of
IIAdditional Rent Controller, City Small Causes Court, Hyderabad, dated 20.11.2000; Ex.A8 is certified copy of amended petition in E.P. No.32 of 2000 in R.C.No.158 of 2000 on the file of IIAdditional Rent Controller, City
Small Causes Court, Hyderabad, dated 31.12.2002; Ex.A9 is certified copy of warrant in E.P.No.32 of 2000 in R.C.No.158 of 2000 on the file of
IAdditional Rent Controller, City Small Causes Court, Hyderabad; Ex.A10 is certified copy of bailiff's report in E.P.No.32 of 2000 in R.C. No. 158 of 2000
Page No.13 O.S.No.4266 of 2010 on the file of IAdditional Rent Controller, City Small Causes Court,
Hyderabad; Ex.A11 is certified copy of warrant in E.P.No.32 of 2000 in
R.C.No.158 of 2000 on the file of IAdditional Rent Controller, City Small
Causes Court, Hyderabad, dated 22.07.2010 and Ex.A13 is the certified copy of order in R.C.No.158 of 2000 dated 19.06.2000 passed by
IAdditional Rent Controller, Hyderabad.
14.Defendant No.2, who examined himself as D.W.1, in his chief affidavit, reiterated the averments made by him in the written statement.
Defendants 1 to 4 marked Exs.B1 to B3 in the crossexamination of P.W.1.
Exs.B1 and B2 are the certified copy of the plaint in O.S.No.5848 of 1987 and the plan attached to the plaint respectively. Certified copy of deposition of P.W.1 (plaintiff herein) in E.A.No.47 of 2010 in E.P.No.32 of 2000 is marked as Ex.B3. Exs.B4 to Ex.B24 are marked by defendant No.2. Ex.B4 is certified copy of judgment in O.S.No.5848 of 1987 dated 17.06.1988; Ex.B5 is its certified copy of decree; Ex.B6 is the certified copy of mutual agreement in Urdu along with its English translation; Ex.B7 is certified copy of order in I.A.No.971 of 1999 in O.S.No.5503 of 1999, dated 17.02.2000;
Ex.B8 is certified copy of order in I.A.No.343 of 2000 in CMA No.
52 of 2000; Ex.B9 is certified copy of sale deed, dated 14.12.1994; Ex.B10 is the certified copy of tax payment receipt; Ex.B11 is the certified copy of letter issued by the department of Telecommunication dated 25.11.1999;
Ex.B12 is the certified copies of electricity bills; Ex.B13 is the certified copy of challans showing payment of rents to the credit of R.C.No.610 of 1997;
Ex.B14 is the certified copy of order in I.A.No.970 of 1999 in O.S.No.
Page No.14 O.S.No.4266 of 2010 5503 of 1999 dated 19.11.1999; Ex.B15 is the certified copy of order in
I.A.No.970 of 1999 in O.S.No.5503 of 1999 dated 29.11.1999; Ex.B16 is the certified copy of memo filed in O.S.No.5503 of 1999; Ex.B17 is the certified copy of order in I.A.No.970 of 1999 in O.S.No.5503 of 1999 dated 19.11.1999; Ex.B18 is the certified copy of order in I.A.No.971 of 1999 in
O.S.No.5503 of 1999 dated 17.02.2000; Ex.B19 is the certified copy of
order in I.A.No.343 of 2000 in CMA No.52 of 2000 dated 07.03.2000;
Ex.B20 is the certified copy of order in R.C.No.473 of 1993 dated 26.04.1994; Ex.B21 is the certified copy of summons issued to the plaintiff herein in I.A.No.970 of 1999 in O.S.No.5503 of 1999; Ex.B22 is the certified copy of photographs. Ex.B23 is the certified copy of order dated 15.11.1999 in I.A.No.970 of 1999 in O.S.No.5503 of 1999 and Ex.B24 is the certified copy of notice in I.A.No.970 of 1999 in O.S.No.5503 of 1999 issued to Ayesha Begum.
15.Defendant No.2, in his evidence as D.W.1, has stated that Ayesha
Begum and her two sisters are the owners of the suit schedule property and in 2000, they came to know that Ayesha Begum became owner of the property in 1987. They deposited rents from 1993 in the name of Ayesha
Begum and her two sisters and after the death of their father, they filed
R.C.No.610 of 1997 seeking permission for deposit of rents and the order in
the said case was an ex parte order. He further admitted that the order under Ex.B20 was also an ex parte order. After death of their father, they tendered rents to Ayesha Begum, but she refused to receive the same. In his further crossexamination, he stated that possession of the mulgi was
Page No.15 O.S.No.4266 of 2010 delivered to Ayesha Begum on 01.07.2000 but there is no mention in Ex.A6 about handing over of possession of the mulgi on the said date. On the other hand, in his crossexamination, P.W.1 denied that father of defendants 2 to 4 by name Mohd. Osman was tenant in mulgi No. 226151 from 1948 and thereafter defendants 2 to 4 became tenants up to the end of June, 2000. He further stated that in 2000, his portion was reconstructed, but he has not taken permission for reconstruction.
16.Ex.B7 is the certified copy of order passed in I.A.No.971 of 1999 in
O.S.No.5503 of 1999 filed by defendants 1 to 4 herein to direct the
respondents therein, who are Zainab Begum; Ayesha Begum; Shareefa and
Mohd Azam Ali (plaintiff herein), to reconstruct the Eastern side wall of mulgi bearing No.226151. The cause title of this petition shows that it was contested by the respondents therein by entering appearance through an advocate by name Mr Ahmed Khan. In this petition, respondent No.2 therein (Ayesha Begum) filed counteraffidavit contending that respondents 1, 3 and 4 have nothing to do with the petition schedule property and she alone is the owner by virtue of the judgment and decree passed in
O.S.No.5848 of 1987 on the file of IXAssistant Judge, City Civil Court,
Hyderabad, dated 17.06.1988. It is further mentioned in the counter affidavit that the respondents never tried to interfere with the possession of the petitioners; that the petitioners are not paying rents and therefore, they are not entitled to the relief as prayed for. There is also a finding in the order under Ex.B7 that there is no dispute with respect to the relationship of the petitioners with the respondents and that the certified copy of order
Page No.16 O.S.No.4266 of 2010 in R.C.No.610 of 1997 dated 11.02.1998 on the file of IAdditional Rent
Controller, Hyderabad, marked as Ex.P1, clearly shows that the petitioners were permitted to deposit rents from 01.10.1995 to 31.08.1997 and they were also permitted to deposit the future rents @ Rs.90/ per month. It is further observed in the said order that the petitioners in the said case and in the case under Ex.P1 are one and the same. In Ex.B8, the certified copy of the order passed in the CMA also, there is an observation to the effect that Ayesha Begum is the landlady and the respondents therein (defendants 1 to 4 herein) are her tenants and there is no inter se dispute among the petitioners therein. The order under Ex.B8 was passed on 07.03.2000 and the said finding is not challenged by the plaintiff herein either disputing the tenancy of defendants 1 to 4 over the petition schedule mulgi or stating that he is the owner of the mulgi by virtue of Ex.A1 and Ayesha Begum is not the owner.
17.It is submitted by learned counsel for the plaintiff that O.S.No.
5503 of 1999 was dismissed on 11.07.2001 and the interim order merges with the final order and hence, no reliance can be placed on Exs.B7 and B8.
Though a suggestion to the effect that O.S.No.5503 of 1999 was dismissed is given to D.W.1, he pleaded ignorance of the said fact. The judgment passed in O.S.No.5503 of 1999 is not placed before this Court and it is not the case of the plaintiff that there is any finding in the said judgment to the effect that defendants 1 to 4 were not the tenants of the petition schedule mulgi or that it was dismissed on the ground that Ayesha Begum, as on the
Page No.17 O.S.No.4266 of 2010 date of filing of that suit, was not the owner of the mulgi. This Court does not know the grounds on which the said suit was dismissed and whether it was dismissed on merits or otherwise. In the absence of any such information, this Court opines that the the observations/findings under
Exs.B7 and B8 can be looked into.
18.Learned counsel for the plaintiff, based on the statement of D.W.1 in his crossexamination that prior to 1987, husband of Zainab Begum used to collect the rents in the capacity of landlord, contended that this admission confirms the recital in Ex.B6 that the defendants were in occupation of the portion, which belongs to Zainab Begum.
19.Ex.B6 is the mutual agreement for division of property bearing No.
226145 to 153 entered by Zainab Begum; Ayesha Begum and Shareefa
Begum on 27.11.1987. This mutual agreement shows that the above property is divided into three portions with an understanding that Portion
No.1 bearing No.226145 to 148, which is comprising of four mulgies, would be exclusive property of Shareefa Begum; Portion No.2 bearing
No.226149 to 151, which is consisting of three mulgies and back portion would be the exclusive property of Ayesha Begum and Portion No.3 bearing
No.226152 to 153 consisting of two mulgies, kitchen, RCC building known as Ismail Hotel would be the property of Zainab Begum. It is further stated that backside portion of 226149 to 151 consisting of a tin shed hall was let out to Ismail Hotel and hence the holder of third portion namely;
Zainab Begum would pay 20% of the total rent to Ayesha Begum every
Page No.18 O.S.No.4266 of 2010 month. The other three tenants by name Mohd Osman; Saleh Bin Shahran and Ali Chaus are not paying the rents and whenever the rent is paid by them it shall be equally divided between the three shareholders.
20.The above contents of the mutual agreement do not show that Mohd
Osman is the tenant of Zainab Begum. After mentioning about portion of 226149 to 151, which according to this mutual agreement, consists of three mulgies and backside portion, it is averred that the tenants of the three mulgies are not paying rents. Hence, it cannot be said that this mutual agreement shows that Mohd Osman was in occupation of the portion of
Zainab Begum. Further, the documents filed by defendants 1 to 4 also prove their case of tenancy over the mulgi in question. Ex.B20 the certified copy of order in R.C.No.474 of 1993 dated 26.04.1994 passed by the
IVAdditional Rent Controller, Hyderabad, shows that it was filed by Mohd
Osman against Zainab Begum; Ayesha Begum and Shareefa Begum under
Section 8(5) of the Act to permit him to deposit the rents in the Court. In the said case, the petition averments show that the petitioner is the tenant of mulgi bearing Municipal No.226151, Machilikaman, Hyderabad, and that by refusing to receive rents, the respondents filed R.C.No.697 of 1988 against the petitioner for eviction. In the said petition, it is further averred that when petitioner was continuing to send the rents through money orders, the respondents were refusing to receive the same, as such, the petitioner issued a notice to respondents 1 to 3 to give their bank account number and also sent cheques, but they were refused. Hence, he sought
Page No.19 O.S.No.4266 of 2010 permission for deposit of rents in the Court. The order passed in the said petition shows that respondents 1 and 3 remained ex parte and respondent
No.2/Ayesha Begum entered appearance, but the counsel representing her reported no counter and also reported to pass orders on merits. The said petition was allowed permitting the petitioner to deposit the rents. This order itself is a proof that Mohd Osman was in occupation of mulgi No.
226151 as its tenant. Further Ex.B10, the certified copy of occupier's notice dated 06.12.1986 issued by the Municipal Corporation of
Hyderabad, under Section 276 of the HMC Act, 1955 to Mohd Osman, tenant in House No.226151 for payment of property tax; Ex.B11 letter addressed by the Divisional Engineer, Telephone Exchange, Charminar,
Hyderabad to Mohd Osman, Shop No.226151; Machilikaman, Pathergatti,
Hyderabad, dated 25.11.1999; Ex.B12, the certified copies of the electricity bills dated 01.02.2000 and 12.06.2000 issued in the name of Mohd Osman, 226151, Machlikaman, and Ex.B13, the certified copies of challans showing deposit of rent for the premises bearing No.226151,
Machlikaman, Hyderabad, to the credit of R.C.No.610 of 1997 by A.Majeed,
dated 08.11.1999; 08.12.1999; 12.01.2000; 09.02.2000; 09.03.2000;
06.04.2000; 09.05.2000 and 10.07.2000 would go to establish the possession of Mohd Osman and defendants 1 to 4 over mulgi bearing
No.226151 till 2000 as tenants thereof. Plaintiff in his deposition under
Ex.B3 admitted that as per the compromise, R1 to R4 (defendants 1 to 4 herein) handed over the key of the petition schedule property to his mother on 01.07.2000.
Page No.20 O.S.No.4266 of 2010
21.The case of the plaintiff is that under the original of Ex.A1, he was gifted with property bearing No.226149 to 151 of an extent of 38 square yards by his mother on 07.04.1998, and therefore, his mother had no right or title over mulgi No.226151 by the date of filing of the said R.C. It is also his case that to take revenge against him, his mother filed the said RC in collusion with defendants 1 to 4. The filing of petitions by Mohd Osman and defendants 1 to 4 herein seeking deposit of rents in the Court and filing of O.S.No.5503 of 1999 by defendants 1 to 4 for mandatory injunction to direct the defendants therein to make repairs to the mulgi in question, all would indicate that the relations between defendants 1 to 4 and Ayesha
Begum were not cordial. Hence, there would be no scope for defendants 1 to 4 to collude with Ayesha Begum in filing of R.C.No.158 of 2000.
22.It is the contention of defendants 1 to 4 in their written statement that no possession was delivered to the plaintiff by virtue of Ex.A1 and that the fact of execution of gift deed was not intimated to them either by their landlady Ayesha Begum or by the plaintiff. It is also their contention that plaintiff and his mother colluding with each other filed R.C.No.158 of 2000 and after taking delivery of property from them, this Ex.A1 is brought into existence. It is also their case that to pretend that there are disputes between him and his mother, plaintiff filed O.S.No.4609 of 2000, on 13.09.2000 for declaration of his ownership rights over the above property and for a consequential injunction on the false ground that his mother is interfering with his possession and that the said suit was filed after disposal
Page No.21 O.S.No.4266 of 2010 of R.C and just prior to the date of redelivery of mulgi to them, with a view to avoid the same.
23.In his crossexamination, P.W.1 stated that for the past 15 years, he is residing at H.No.223626/3, which is his own property, and that he can file documents to prove his ownership. He admitted that he has not filed any document to show that either he resided or carried on business in Gulbarga.
He admitted that his mother was the owner of premises bearing No.
226149 to 151 and she became owner in 1969. He further stated that till 1999, he resided with his parents in H.No.226865, Panjesha and though he resided with his parents from 1986 to 1999, he does not know, who collected rents from 1986 to 1998. He stated that after 1998, he was collecting the rents and Mohd Altaf, Syed Irfan, Mohd Asif, Abdul Samad,
Mohd Musaf, Mohd Hakim, Mohd Javed, Mohd Irfan etc. were the tenants, and he is in custody of the documents pertaining to the business carried on by the above persons. He further stated that in 2000, the property allotted to him was dismantled and reconstructed, but he had not taken permission for reconstruction. He further stated that his relations with his mother were strained in 1999/2000. He denied the suggestion that O.S.No.4609 of 2000 is a collusive suit. He further stated that as there was paucity of funds, he could not mutate his name immediately after Ex.A1. He does not remember how much fee, he paid for mutation. He denied the suggestion that as defendants 2 to 4 were in possession of the property, he did not get his name mutated.
Page No.22 O.S.No.4266 of 2010
24.Thus, no documents are filed by the plaintiff to show that in pursuance of Ex.A1, in 1998, he was delivered with possession of mulgi bearing No.226151; that he was collecting rents from the tenants or that the tenants named by him were in possession of the property gifted to him.
The evidence of the plaintiff herein is in contradiction of his evidence under
Ex.B3. In the said case, he deposed that he utilized the gifted property as a godown. But, there is no evidence either to show that he utilized the property gifted to him as a godown or that there were tenants in it, whose names were given in his crossexamination recorded in the present suit.
Thus the plaintiff failed to prove that he was delivered with the possession of the property gifted to him under Ex.A1 and that he acted upon the said gift deed.
25.It is also the contention of defendants 1 to 4 that the compromise in
R.C.No.158 of 2000 is a plan hatched out to take possession of the mulgi
from them and if really, the gift was executed in 1998 in favour of the plaintiff; he would have filed a separate counter in I.A.No.970 of 1999 in
O.S.No.5503 of 1999 and would have mentioned that gift was executed. It
is the further contention of defendants 1 to 4 that had the plaintiff was residing separately from his mother, he would not have received the summons in I.A.No.970 of 1999 in the same address of his mother and
Ex.A1 would have also contained some other address. Exs.B21 and B24 are the certified copies of notices in I.A No.970 of 1999 in O.S.No.5503 of 1999 issued to the plaintiff herein and Ayesha Begum. Ex.B21 shows the address
Page No.23 O.S.No.4266 of 2010 of the plaintiff as R/o H.No.226865, Panjeshah, Hyderabad and the endorsement on the back side shows that it was received by the plaintiff.
Similarly Ex.B24 issued to Ayesha Begum shows her address as R/o
H.No.226865, Panjeshah, Hyderabad and the endorsement on the back side of the notice shows that it was received by Azam Ali (plaintiff herein) for Ayesha Begum. Had there been disputes between the plaintiff and his mother and the plaintiff was residing separately from his mother, the plaintiff would not have received the notice issued to him and to his mother at the address mentioned in the said notice. Plaintiff also failed to produce any evidence to show that since 1999, he was residing separately.
26. Without taking possession of the property immediately after Ex.A1 and without giving any intimation to defendants 1 to 4 about the gift/Ex.A1, now it is not open to the plaintiff to plead collusion and fraud. Plaintiff also failed to establish that till 2010 he was unaware of the RC proceedings.
After the claim petition filed by his maternal aunt in the EP was dismissed, plaintiff filed a claim petition in the E.P which was rejected. He did not challenge the said rejection order and straightaway filed this suit attributing fraud to his mother and that the proceedings in the RC are collusive one.
The proceedings in O.S.No.5503 of 1999 would clearly indicate that the plaintiff has knowledge about the tenancy and he failed to plead about the gift in the said case even though he entered appearance therein. Therefore, it can be taken that intentionally the plaintiff did not reveal anything about the gift deed, and he, colluding with his mother, got filed R.C.No.
158 of 2000 against respondents/defendants 1 to 4, took possession of the
Page No.24 O.S.No.4266 of 2010 mulgi from defendants 1 to 4 under the compromise order, and to deprive defendants 1 to 4, the benefit of redelivery of the mulgi, filed this suit. The collusion in between the plaintiff and his mother is also clearly visible from the fact of filing of O.S.No.4609 of 2000 just prior to the date of redelivery.
27.The learned counsel for the plaintiff in support of his contention that the decree passed by the Rent Controller without satisfying itself with regard to the ground of eviction is nullity and cannot be executed, relied on
Kaushalya Devi v. K.L.Bansal reported in AIR 1970 Supreme Court, 838.
The case before the Hon'ble Supreme Court was an appeal preferred against the order passed in the Civil Revision Petition by the Hon'ble High Court of
Delhi. The facts of the said case are that the predecessorininterest of the appellant/plaintiff filed a suit for eviction of his tenant/defendant on the grounds (1) personal requirement of the premises (2) the defendant has a own house (3) default in payment of rents. Written statement was filed by the defendant and issues were framed. While so, the plaintiff and the defendant filed a petition for compromise and decree was passed in terms of the compromise in favour of the plaintiff and against the defendant. One of the terms of the compromise is that the decree would be executable after 31st December, 1958, if the defendant fails to give possession by then. The defendant did not vacate the premises on December 31, 1958 and he filed a petition under Section 47 CPC challenging the validity of the decree alleging that the same had been passed in contravention of the provisions of
Section 13 of the Delhi and Ajmer Rent Control Act, 1952 and hence, the decree was a nullity. He failed before the SubJudge and the senior Sub
Page No.25 O.S.No.4266 of 2010
Judge. On revision, the Hon'ble High Court held that the decree was a
nullity as the order passed on the basis of the compromise did not indicate that any of the statutory grounds mentioned in Section 13 of the Act existed. The Hon'ble Supreme Court observed that the case is governed by the provisions of Section 13(1) of the Act and in view of the judgment in
Bahadur Singh's case (1969) 1 SCWR 51, wherein it was held that the decree passed on the basis of an award was in contravention of Section 13(1) of the Act because the Court had passed the decree in terms of the award without satisfying itself that the ground of eviction existed and that on the plain reading of Section 13(1) of the Act, the Court was forbidden to pass the decree, the appeal must fail, and accordingly the appeal was dismissed. The learned counsel further relied on Lehri Bai v. Bherulal reported in AIR 2013 Rajasthan 183, wherein also it was held by the
Hon'ble Rajasthan High Court, while relying on the judgment in Kaushalya
Devi's case, that tenant can be evicted only if satisfaction of Court is recorded while passing decree of eviction as regards existence of ground of eviction under the Rent Act. Decree not recording such satisfaction would be nullity and cannot be executed.
28.In the present R.C, the compromise was entered into by the parties stating that the tenant would be reinducted into possession, after making repairs to the petition schedule premises, within three months from the date of delivery of possession of the property to the petitioner, and in the affidavit of the RC, the petitioner therein (Ayesha Begum) had referred to
Page No.26 O.S.No.4266 of 2010 filing of O.S.No.5503 of 1999 by defendants 1 to 4 for mandatory and perpetual injunctions against her and others and about the order passed in
I.A.No. 971 of 1999 and confirmation of the same in the CMA. The petitioner further stated that therefore, she felt the necessity of carrying out repairs to the petition schedule mulgi and hence sought for delivery of possession of the petition schedule mulgi giving an undertaking that she would redeliver the mulgi to the respondents therein, within three months.
Section 12 (1) (a) of the Act says that the Rent Controller may, if he is satisfied, that the building is reasonably and bona fidely required by the landlord for carrying out repairs, alterations or additions which cannot be carried out without the building vacated, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.
In the above cases relied on by the learned counsel, the validity of the order was questioned by the tenants stating that the Rent Controller, before ordering eviction, has not recorded anything as to his satisfaction with regard to existence of grounds for eviction. In the present case, it is not the tenant, who is questioning the order passed by the Rent Controller about recording of the existence of the grounds of reasonable and bona fide requirement, but it is the plaintiff, who alleges to have got rights upon the premises by the date of passing of the order in the R.C. Hence, it can be said that the facts of the present case are different from the facts of the decisions relied on by the learned counsel for the plaintiff and therefore, the ratio laid down in the above cases, can be said to be not applicable to the present case more so, in the light of the findings of this Court,
Page No.27 O.S.No.4266 of 2010 mentioned above, that the plaintiff failed to establish that by the date of filing of R.C, he acted upon Ex.A1 and he was in possession of the gifted property.
29.The learned counsel further relied onM.M.Quasim v. Manohar Lal
Sharma and others reported in AIR 1981 Supreme Court 1113 to contend that as on the date of filing of R.C, the mother of the plaintiff was not the owner of the petition schedule premises, therefore, the compromise order passed in the RC is an illegal one. In the above case, it is held in para 24 that the person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation and this would imply that he must be a person, who has a right to remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property. For the purpose of Section 11 (1) (c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, the expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. It is such a person, who can seek to evict the tenant on the ground that he requires possession in good faith for his own occupation. A rent collector or an agent is not entitled to occupy the house in his own right. Even if such a person be a lessor, and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict
Page No.28 O.S.No.4266 of 2010 the tenant on the ground that he wants to personally occupy the house. He cannot claim such a right against the real owner and as a necessary corollary, he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation.
30.The facts of the above case are also not applicable to the case on hand since the RC was filed by Ayesha Begum under Section 12 of the Act seeking delivery of possession for conducting repairs to the mulgi and the plaintiff did not bring to the notice of the Rent Controller or of the defendants that there was a gift deed in his favour or he acted upon the said gift deed by taking delivery of possession of the property.
31.The learned counsel for the plaintiff further contended that the note appended to Ex.A12 shows that the original typed order dated 19.06.2000 was torn and only half one side sheet of order was available and the same order was prepared again basing on the original docket sheet, therefore, the legality of the order is in doubt and no notice was given before reconstruction of the order. It is not known whether any notice before reconstruction of the order was given or not, and no question was put to
D.W.1 with respect to the same. The order was reconstructed based on the original docket sheet, and hence, the legality of the same cannot be doubted.
32.The last mulgi in Ex.B2/plan is identified by D.W.1 as the petition schedule mulgi and the said portion is marked as Ex.B2 (a). It is elicited from D.W.1 that there is variation in the boundaries of the mulgi shown
Page No.29 O.S.No.4266 of 2010 under Ex.B2(a) from the boundaries mentioned in Ex.B23/the certified copy of order dated 15.11.1999 passed in I.A.No.970 of 1999 in
O.S.No.5503 of 1999. Since the plaintiff failed to prove that due to alleged
disputes between him and his mother, his mother to defraud him, filed the
RC and got the matter compromised with defendants 1 to 4 though she did not have any right over the property as on the date of filing of the suit, this
Court feels that it is not necessary to dilate upon the aspect whether there is any variation in the boundaries mentioned his in Ex.B2 (a) with the boundaries of the mulgi stated by D.W.1. There is also nothing in the pleadings of the plaintiff disputing the identity of the mulgi, in question.
33.The learned counsel for the plaintiff contended that in Ex.A6/ compromise memo, though no dates are mentioned in respect of delivery and redelivery of possession, the order/Ex.A13 shows the dates. He further contended that Ex.A6/memo mentions that the petitioner and her sisters require possession of the petition schedule premises for carrying out all necessary repairs and the respondents shall deliver possession thereof to the petitioner and her sisters. But the order/Ex.A13 shows that the property is to be delivered to the petitioner only. Thus, the order is not in consonance with Ex.A6. The order/Ex.A13 shows that the parties were present before the Court. The respondents reported that they were going to vacate the premises on 01.07.2000 and the petitioner promised that she would complete construction and put back the respondents in possession within three months from 01.07.2000. Thus the date of 01.07.2000 came to be mentioned in the order on the representation made by the respondents.
Page No.30 O.S.No.4266 of 2010
Since the petitioner is only the party to the R.C, and she was only present
before the Court, as is seen from the order under Ex.A13, the possession of
the property by the respondents was directed to be given to her. As required under Section 12 of the Act, the dates of delivery of the property to the landlord and redelivery of the same to the tenants were mentioned in the order. Hence, it cannot be said that the order is illegal or inconsistent with the memo of compromise.
34.The learned counsel further contended that the proceedings in the RC are not maintainable, as admittedly the daughters of Mohd Osman were not made parties to it, as after the death of Mohd Osman, all his legal heirs would become tenantsincommon and any proceedings passed without making all of them as parties, would be nullity. The learned counsel, in support of his contentions, relied on Textile Association (India) Bombay
Unit v. Balmohan Gopal Kurup and another AIR 1990 SC 2053. The facts of the case before the Hon'ble Supreme Court are as follows: One Gopal
Kurup was in the occupation of the premises in question. He died leaving behind his widow, two sons and daughters. After his death, his landlord filed eviction petition on the ground of bona fide requirement and default in payment of rents. To that suit, mother and brother alone were impleaded as parties and respondent No.1 was not a party. The suit was decreed ex parte.
That decree was executed and possession was recovered. On 13.08.1979, respondent No.1 filed a suit claiming that he was one of the tenants living in the premises at the time of death of his father Gopal Kurup and the ex parte decree was obtained by the landlord, therefore, not binding upon
Page No.31 O.S.No.4266 of 2010 him. The trial Court, having found that he was also one of the tenants who lived along with the father, declared the ex parte decree for eviction was not binding on him. The appeal was dismissed and also the writ petition.
Therefore, the appeal is preferred before the Hon'ble Supreme Court. The
Hon'ble Supreme Court, by recording a finding that the respondent was as
much a tenant as the mother and the other brother, held that the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit, has to be set aside. It is further observed that:
“It is not sufficient as the Courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondent. The respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, therefore, the ex parte decree for eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits.”
35.The facts of the above case are altogether different from the facts of the present case. The present suit is not filed by the daughters of Mohd
Osman challenging the order passed in the RC and it is not the case of the plaintiff herein that the daughters of Mohd Osman were ever in possession of the mulgi in question as tenants along with defendants 1 to 4, after death of Mohd Osman. Hence, the principles of the above case are not applicable to the case on hand.
36.The learned counsel further relied on Budh Sen v. Sheel Chandra
Agarwal reported in AIR 1978 Allahabad 88, wherein the distinction in between joint tenant and tenantsincommon was discussed while
Page No.32 O.S.No.4266 of 2010 considering the issue with respect to service of notice under Section 106 of the Transfer of Property Act. It is held in this decision that “It is wellsettled that tenancy rights are heritable and devolve upon all the heirs of the deceased irrespective of the question as to whether some of them are in occupation of the demised premises or not. The mere fact that some of the heirs are not in actual occupation of the leased premises cannot operate to put an end to tenancy rights to which they have succeeded as a result of the demise of their predecessorininterest.” “The basic distinction thus between 'joint tenant' and 'tenantsincommon' is that in the case of joint tenant there is unity of title and possession while in the case of tenants in common though there is unity of possession there is no unity of title. The view, therefore, appears to be reasonable that while a notice served under S.106 of the T.P.Act only on one of the joint tenants is effective to terminate the tenancy of all the joint tenants who have unity of title, no such result follows where a notice is served only on one of the tenants in common since there is no unity of title as between them in contradistinction to the joint tenants................Each one of the cotenants is the owner of specific interest in the property and therefore, notice given to one of them cannot have the effect of determining the interest of other interest holder”
37.In the present case, the daughters of Mohd Osman are not questioning the compromise order passed in the RC stating that the said order is not valid as they were not made parties to the RC. In the above case, there was no issue before the Hon'ble High Court as to what were the consequences, if a person initiates proceedings without making some of the tenantsincommon as parties to the same and obtains any order, which order in no way affects the rights of those tenantsincommon, and further can a third party plead that those proceedings are not valid as some of the tenantsincommon are not parties to the same. Hence, the above decision is not applicable to the case on hand.
Page No.33 O.S.No.4266 of 2010
38.The learned counsel further relied on Praveen Kumar and others v.
VIIAdditional District Judge, Meerut and others (AIR 1994 Allahabad 153), wherein it is held that after death of original tenant, his heirs become tenantsincommon and not joint tenants. In the said case, claim for grant of injunction against dispossession in pursuance of eviction decree was made by a married daughter of the deceasedoriginal tenant only after the eviction decree has been passed and approved by the Hon'ble Supreme
Court on the ground that she is a tenant of the disputed shop being heir of original tenant, whose tenancy has not been terminated and who was not also party to the eviction suit. The Hon'ble Supreme Court held hat such claim should not be allowed unless there is positive evidence of her participation in the business run in disputed shop, payment of rent or some other action on her part from which the Court could be satisfied to have a prima facie view that she continued to assert tenancy right.
39.In the present case also, there is no evidence on record to show that the daughters of Mohd Osman had run business in the mulgi in question, along with their brothers, and hence, it cannot be said that the RC proceedings are void as the daughters of Mohd Osman were not made parties to the RC.
40.The plaintiff failed to establish that there were inimical terms between him and his mother; that he was residing separately since 1999; that he took delivery of possession of the property covered by Ex.A1, in 1998, and that to defraud his interests upon the said property, his mother to
Page No.34 O.S.No.4266 of 2010 take revenge against him, by colluding with defendants 1 to 4, filed
R.C.No.158 of 2000 and got the matter compromised with them.
Therefore, he is not entitled to the relief of declaration as sought for. Issue
No.1 is accordingly answered.
41.ISSUE NO.2: Since in issue No.1, it is held that the plaintiff is not entitled to the relief of declaration, he is not entitled to the relief of consequential injunction as prayed for. The suit is filed in respect of the mulgi involved in R.C.No.158 of 2000 i.e., mulgi bearing No.226151. But the plaintiff had shown the entire schedule property of Ex.A1 as the suit schedule property and sought injunction in respect of the entire schedule property. However, since the plaintiff is not entitled to the relief of declaration, he is not entitled to the consequential injunction also. Issue
No.2 is accordingly answered.
42.ISSUE NO.3:In view of my findings on issues 1 and 2, the plaintiff is not entitled to the relief of declaration and consequential injunction as sought for.
43.In the result, the suit is dismissed with costs.
Prepared, corrected and pronounced by me in the open Court on this the 27th day of March, 2014.
VIII JUNIOR CIVIL JUDGE,
CITY CIVIL COURT :: AT HYDERABAD
Page No.35 O.S.No.4266 of 2010
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANTS: P.W.1: Azam Ali D.W.1: Mohd Abdul Majeed
DOCUMENTS MARKED
FOR PLAINTIFF: Ex.A1: Certified copy of gift settlement deed, dated 07.04.1998 Ex.A2 : Certified copy of plaint in O.S.No.4609 of 2000, dated 13.09.2000 Ex.A3 : Certified copy of judgment in O.S.No.4609 of 2000,
dated 12.12.2000
Ex.A4 : Certified copy of decree in O.S.No.4609 of 2000,
dated 12.12.2000
Ex.A5 :Certified copy of petition in RC.No.158 of 2000 on the file of IAdditional Rent Controller, Hyderabad, dated 12.04.2000 Ex.A6 : Certified copy of memo of compromise with rough sketch plan in RC.No.158 of 2000, dated 19.06.2000 Ex.A7 : Certified copy of petition in E.P.No.32 of 2000 in RC.No. 158 of 2000 on the file of IIAdditional Rent Controller, City Small Causes Court, Hyderabad, dated 20.11.2000 Ex.A8 : Certified copy of amended petition in EP.No.32 of 2000 in RC.No.158 of 2000 on the file of IIAdditional Rent Controller, City Small Causes Court, Hyderabad, dated 31.12.2002 Ex.A9 : Certified copy of execution warrant in EP.No.32 of 2000 in RC.No.158 of 2000 on the file of IAdditional Rent Controller, City Small Causes Court, Hyderabad, dated 20.11.2000 Ex.A10 : Certified copy of Bailiff's report in EP.No.32 of 2000 in
RC.No.158 of 2000 on the file of IAdditional Rent
Controller, City Small Causes Court, Hyderabad Ex.A11 : Certified copy of execution of warrant in EP.No.32 of 2000 in RC.No.158 of 2000 on the file of IAdditional Rent Controller, City Small Causes Court, Hyderabad Ex.A12 : Certified copy of petition and affidavit in I.A.No. 970 of 1999 in O.S.No.5503 of 1999 (Ex.A12 is marked in the crossexamination of D.W.1)
Ex.A13 : Certified copy of order in RC.No.158 of 2000, dated 19.06.2000 passed by IAdditional Rent Controller, Hyderabad.
FOR DEFENDANTS 1 TO 4:
Ex.B1 : Certified copy of the plaint in O.S.No.5848 of 1987 Ex.B2 : Certified copy of the plan attached to the plaint of
O.S.No.5848 of 1987
Page No.36 O.S.No.4266 of 2010
Ex.B2(a): The portion of mulgi marked in Ex.B2 Ex.B3 : Certified copy of deposition of P.W.1 (plaintiff herein) in E.A.No.47 of 2010 in E.P.No.32 of 2000 (Exs.B1, B2 and B3 are marked in the crossexamination of P.W.1) (Ex.B2(a) is marked in the crossexamination of D.W.1)
Ex.B4 : Certified copy of judgment in O.S.No.5848 of 1987,
dated 17.06.1988
Ex.B5 : Certified copy of decree in O.S.No.5848 of 1987,
dated 17.06.1988
Ex.B6 : Certified copy of mutual agreement in Urdu along with its certified copy of English translation Ex.B7 : Certified copy of order in I.A.No.971 of 1999 in O.S.No. 5503 of 1999, dated 17.02.2000 Ex.B8 : Certified copy of order in I.A.No.343 of 2000 in CMA No.52 of 2000 dated 07.03.2000. Ex.B9 : Certified copy of sale deed, dated 14.12.1994 Ex.B10 : Certified copy of tax payment receipts Ex.B11 : Certified copy of letter issued by the department of Telecommunications, dated 25.11.1999 Ex.B12 : Certified copies of electricity bills Ex.B13 : Certified copies of challans showing payment of rents to the credit of RC.No.610 of 1997 Ex.B14 : Certified copy of order in I.A.No.970 of 1999 in O.S.No. 5503 of 1999, dated 19.11.1999 Ex.B15 : Certified copy of order in I.A.No.970 of 1999 in O.S.No. 5503 of 1999, dated 29.11.1999 Ex.B16 : Certified copy of memo filed in O.S.No.5503 of 1999 Ex.B17 : Certified copy of order in I.A.No.970 of 1999 in O.S.No. 5503 of 1999, dated 19.11.1999 Ex.B18 : Certified copy of order in IA.No.971 of 1999 in O.S.No. 5503 of 1999, dated 17.02.2000 Ex.B19 : Certified copy of order in I.A.No.343 of 2000 in CMA No.52 of 2000 dated 07.03.2000 Ex.B20 : Certified copy of order in R.C.No.473 of 1993, dated 26.04.1994 Ex.B21 : Certified copy of summons issued to the plaintiff in I.A.No.970 of 1999 in O.S.No.5503 of 1999 Ex.B22 : Certified copy of photographs (Ex.B22 is marked subject to objection that certified copies of photographs are not admissible in evidence) Ex.B23 : Certified copy of order, dated 15.11.1999 in I.A.No. 970 of 1999 in O.S.No.5503 of 1999 Ex.B24 : Certified copy of notice in I.A.No.970 of 1999 in O.S.No. 5503 of 1999
VIII JUNIOR CIVIL JUDGE,
CITY CIVIL COURT :: AT HYDERABAD