Common Judgment:(M.S. Ramachandra Rao, J.)
1. These Appeals arise out of the same between the same parties and so they are being disposed of by this common judgment.
2. The appellant in both these Appeals is the plaintiff in O.S.No.961 of 2019 on the file of the XXVI Additional Chief Judge, City Civil Court, Hyderabad.
3. The said suit was filed on 25-10-2019 by the appellant against the respondents for declaration of his title to the suit schedule property and for recovery of possession by evicting the respondents, if necessary by demolishing the constructions made by respondents.
THE STAND OF THE APPELLANT IN THE SUIT
4. The case of the appellant/plaintiff in the suit is that the suit schedule property had been purchased by one S.Osman Ali Khan under a registered sale deed Doc.No.1897 of 1963 dt.14-11-1963. He alleged that out of the land 1563 sq. yds purchased under these documents, an extent of 1286 sq.yds was gifted by an oral Hiba by S.Osman Ali Khan in favour of Smt.Rukiya Begum, who was his step-sister.
5. It is contended by appellant that Smt.Rukiya Begum, then constructed a house in 1974 in the suit schedule property along with compound wall, that it was assessed to tax in 1974 and was giving House No.6-3-1099/1/2/1.
6. The appellant contended that Smt.Rukiya Begum is his grand mother, that she expired on 01-07-2002 intestate leaving behind her son Mir Raza Ali Baquri, who had also expired on 10-09-2007, and he is the sole legal heir of his father’s estate.
7. He alleged that Smt.Rukiya Begum, appellant’s father and thereafter himself used to reside in the suit schedule property; that the appellant also has a house in Dabeerpura, Hyderabad; that they were residing in the said house by keeping the suit schedule property under lock and key; before appellant’s father’s death on 10-09-2007, he was unwell and during the period of illness, nobody looked after the suit schedule property; the southern boundary wall of the suit schedule property had collapsed; due to paucity of funds and due to illness of his father, the appellant could not raise the southern boundary wall again.
8. He alleged that in September, 2018, the 1st respondent, along with his workmen and associates, raised metal corrugated sheets in an extent of 7500 mts by blocking the entry into the suit schedule property; that North West and East side compound walls of the suit schedule property remained in tact though in a dilapidated state; the appellant approached the 1st respondent and asked him to remove the same and on the demand of the appellant, the 1st respondent removed one sheet making it possible to enter into the suit schedule property from its southern side.
9. It is contended by the appellant that the 1st respondent again blocked ingress and egress to the suit schedule property by blocking it with huge barricades; that the appellant then came to know from neighbours that 1st respondent was going to start a huge construction in an extent of 7049.78 sq. mts; the said construction was commenced on 16-03-2009 by including the suit schedule properties by encroaching into it after obtaining permission from the Greater Hyderabad Municipal Corporation (GHMC) on 06-10-2018. It is contended by the appellant that 1st respondent obtained construction from the GHMC by suppressing the ownership and misrepresenting the facts and the respondents have no title to the suit schedule property and have no right to make any constructions therein.
10. He also stated that he filed O.S.No.701 of 2019 before the IV Junior Civil Judge, City Civil Court, Hyderabad against 1st respondent and GHMC to declare that the construction permission granted by the GHMC is illegal and for an injunction restraining the 1st respondent from making constructions in the suit schedule property; and though initially an ex parte injunction was granted, the same was vacated and the application for the said purpose was dismissed, and even the C.M.A. filed against it was dismissed.
11. The appellant contended that during pendency of the C.M.A., he came to know that 1st respondent had taken registered Development Agreement-cum-GPA dt.12-09-2018 from respondent Nos.2 and 3 for an extent of 4182 sq. yds and another registered Development Agreementcum- GPA dt.22-10-2018 from respondent Nos.4 and 5 for an extent of 3840 sq. yds. He also stated that 1st respondent is claiming that he had purchased 1195 sq. yds under a registered sale deed dt.16-11-2006.
12. He alleged that source of title of respondents is from one Smt. Indira Rai, who claims to have purchased 1777 sq. yds from late Gouse Mohiuddin under registered sale deeds dt.23-08-1961, 15-12-1961, 14-03-1962 and 08-08-1963; the said Smt. Indira Rai sold what she had purchased and there is no identity to the property purchased by respondents from her. He also contended that his own predecessor had purchased the suit schedule property much prior to the sales made by Smt. Indira Rai.
I.A.No.1440 of 2019 and I.A.No.1441 of 2019
13. Along with the suit, the appellant had filed I.A.No.1440 of 2019 under Order 39 Rules 1 and 2 C.P.C. for an ad interim injunction restraining the respondents from changing the nature of the suit schedule property pending suit and I.A.No.1441 of 2019 under Order 39 Rule 1 C.P.C. to restrain the respondents from alienating the suit schedule property till disposal of the suit.
14. The appellant reiterated the contents of the plaint in the said applications.
COUNTER OF 1ST RESPONDENT/1ST DEFENDANT
15. In both these applications, counter-affidavit was filed by 1st respondent denying the appellant’s contentions that he was previously in possession of the suit schedule property.
16. The 1st respondent stated that the appellant had filed O.S.No.701 of 2019 claiming to be in possession of the suit schedule property on the date of filing of suit and alleging that he lost possession during pendency of the suit, but this pleading is incorrect. He also stated that the injunction application filed by appellant in O.S.No.701 of 2019 was dismissed holding that the appellant failed to establish his lineage from the person through whom he is claiming title and the same was also confirmed in C.M.A. filed against the said order.
17. It is also contended that appellant had not filed any documents to show that there was an oral gift by Osman Ali Khan to Smt.Rukiya Begum by way of Hiba, and that on her death, the property devolved on her son Mir Raza Ali Baquari, and after his death, it devolved on the appellant.
18. The 1st respondent further contended that there are no pleadings in the plaint or in the I.As. filed by the appellant as to when the appellant lost possession, what is the identity of the suit schedule property and what is the basis for seeking relief of declaration of title.
19. It contended that the suit schedule property has identifiable boundaries, but the appellant is seeking injunction against imaginary property, which is not identifiable and the entire litigation is speculative.
20. It further contended that 1st respondent had acquired the property under registered Development Agreement-cum-GPA in 2018 and also independent purchases under registered sale deeds and purchase by the predecessors-in-title M/s Pradeep Constructions had been regularized under G.O.Ms.No.455 by paying appropriate regularization charges.
21. According to the 1st respondent, one Gulam Mohammed Taher and Nawab Hadi Ali Khan were owners and possessors of various extends of land in Sy.No.22 of Somajiguda village corresponding to T.S.No.20/3. He contended that that they sold the said land under registered sale deeds dated 28th Meher 1338 Fasli to late Ghouse Mohiuddin and the said Ghouse Mohiuddin executed four sale deeds on 23-08-1961, 20-12-1961, 14-03-1962 and 08-08-1963 in respect of 17,777 sq. yds in the said Survey number/T.S.Number. Reliance is also placed on a compromise decree dt.21-06-1993 in O.S.No.1684 of 1993, to which Smt.Indira Rai was a party.
22. The series of transactions through which the 1st respondent and it’s predecessors acquired title to the property are set out in detail in the counter affidavit.
23. It is submitted the by virtue of sale deeds, the respondent No.1 independently purchased land admeasuring to an extent of 1866 Sq.yds and by virtue of 2 registered Development Agreement-cum-GPAs, it acquired interest over the property admeasuring to an extent of 8267.63 sq. mts, totaling to an extent of 9888 Sq. yds. It is submitted that the property on which interest of 1st respondent was created can be traced way back from 1928.
24. It alleged that this property was taken over by the Government under the provisions of Urban Land Ceiling Act, though possession of the same remained with the predecessors-in-title of the principal of Pradeep Constructions. The owners of land have approached the Government under G.O.Ms.No.455 and got it regularized on payment of penalization charges. The owners of land have effectively derived their title in all respects from the government.
25. It is submitted that the 1st respondent made an application under the provisions of Section 428 of GHMC Act to the authorities for grant of permission along with necessary documentation and plans. The authorities after considering the application of Pradeep Construction was pleased to grant building permission vide permit No1/C17/17963/2018 dated 14.12.2018. This permission was granted for construction of residential building with stilt+ 2 cellars+17upper floors.
26. The 1st respondent alleges that the appellant is claiming an imaginary extent of property with imaginary boundaries.
27. The respondents denied all the rest of the allegations of the appellant in the plaint and in the affidavits filed in support of the I.As. They also disputed appellant’s claim that he is the descendant of Smt.Rukiya Begum and he is the sole surviving legal heir. According to respondents, the oral Hiba set up by the appellant is a bogus one.
28. It is the contention of the 1st respondent that the development being undertaken by 1st respondent does not include the suit schedule property and the same has nothing to do with the suit schedule property and that 1st respondent is making construction in the property covered under Development Agreements referred to above.
29. It was denied that Ms.Indira Rai had sold excess land and there is no identity to the property of respondents.
Counter affidavit of respondents 2 and 3
30. Respondent Nos.2 and 3 also filed counter-affidavit supporting the stand of 1st respondent and denying title or possession of the appellant.
31. A further plea is raised that the interim reliefs sought are in nature of an injunction, but in the main suit, such relief has not been sought and the interim orders cannot be said to be ancillary to the main relief in the suit.
32. They explained the flow of title to them from Ms.Indira Rai and also relied on endorsements issued by the Special Officer & Competent Authority under Urban Land Ceiling issued under G.O.Ms.No.2066 dt.29-11-2005.
33. It is contended that the sale deeds dt.14-11-1963 and 18-01-1969, on which reliance is being placed by appellant, are sham and bogus documents and appellant had no manner of right in the suit schedule property.
The order dt.7.9.2020 in IA No.1440 and 1441 of 2019
34. In the Court below, the appellant marked Exs.P-1 to P-26 and respondents marked Exs.R-1 to R-46.
35. By a common order dt.07-09-2020, both I.A.No.1440 of 2019 and 1441 of 2019 were dismissed by the Court below.
36. After referring to the contentions of both sides, the Court below observed that the appellant did not file any documentary evidence to prove as to how he succeeded to the property by filing legal heir certificate or family member certificate proving his succession to the property, and that he also did not file any document to show his recent possession over the said property. It considered the tax receipts filed by the appellant, and stated that these documents do not show the title or possession of the appellant for the recent years, and all the documents filed by the appellant relate to more than two decades back, which do not show his possession or the date of his dispossession.
37. It also referred to Ex.P-1 sale deed dt.09-02-1993 being relied upon by the appellant and stated that in the plaint schedule also, boundaries mentioned are identical to these mentioned in Ex.P-1 and the appellant did not show the latest boundaries. It pointed out that since the appellant had only shown boundaries of the property as they stood in 1963, it shows that he has no recent access of the suit schedule property and he does not know the current boundaries of his own property. It also held that the appellant could not show in which part of the whole construction of 1st respondent, the suit schedule property was located.
38. That apart, it also observed that the appellant could not prove the date of oral Hiba said to have been made by Osman Ali Khan in favour of Smt.Rukia Begum, that the appellant was not born on the date of the said oral Hiba, and the burden of proof rests on the appellant to prove the facts pleaded by him and he cannot depend upon the weakness of the case of the respondents.
39. It then held that without providing the identity and location of his property and locating it within the property developed by 1st respondent, appellant cannot seek the relief of injunction against the respondents either from proceeding with further construction or from alienating it.
40. It then discussed the documents Exs.R-1 to R-42 filed by respondents, and observed that prima facie 1st respondent had acquired land under Ex.P-19 Development Agreement-cum-GPA executed by respondent Nos.2 and 3 in its favour for 4182 sq. yds and Ex.R-1 Development Agreement-cum-GPA had been executed by respondent Nos.4 and 5 in favour of 1st respondent for 3840 sq. yds.
41. Apart from these, it observed that 1st respondent is the owner of property an extent of 671 sq. yds having purchased it under registered sale deed doc.No.3147 of 2016 (Ex.R-14); and under Ex.R-12, the 1st respondent had also purchased 1195 sq. yds and their title had been recognized by the Urban Land Ceiling Authorities by issuing regularization orders under Exs.R-30 to R-42.
42. It then held that if the construction is injuncted by Court order, it would cause loss to the respondents and also to the number of flat purchasers and in the event, appellants succeeds in the suit, he will get the suit schedule property along with built up area and if injunction is granted, there would be no irreparable loss caused to him.
The present Appeal
43. Assailing the same, this Appeal is filed.
44. Heard Sri V.Srinivas, learned counsel for the appellant, Sri S.Nagesh Reddy, learned counsel for Sri T.Bala Mohan Reddy, leaned counsel for 1st respondent and Sri V.Vishnuvardhan Reddy, learned counsel for respondent Nos.1 and 2.
Contentions of counsel for parties
45. Learned counsel for appellant contended the findings of the Court below in the common order dt.07-09-2020 in I.A. Nos.1440 and 1441 of 2019 are not correct and are contrary to record. He also placed reliance on Exs.P-24 and P-25 tax receipts issued on 17-04-1997 and 25-12-1974 in favour of Rukiya Begum, and contended that they prima facie prove Rukiya Begum’s possession over the property. He also contended that there is nothing wrong in appellant showing the boundaries to the suit schedule property as per Ex.P-17 sale deed dt.14-11-1963 and that being a 30 year old document, its contents are presumed to be true under Section 90 of the Evidence Act. According to him, a presumption forward of possession is available under Section 110 of the Evidence Act, and Ex.P-22 market value certificate dt.16-10-2019 and Ex.P-23 Encumbrance Certificate dt.28-08-2020 would prove the possession of Smt.Rukiya Begum, the appellant’s father and appellant, and that most of the Government Orders issued to the respondents do not establish their title.
46. Learned counsel for respondents refuted the said contentions.
CONSIDERATION BY THE COURT
47. We have noted the submissions of both sides.
48. In the plaint schedule, the property is described as:
“All that the house property bearing H No.6-3-1099/1/2/1 admeasuring 1286 square yards in part of Sy.No.22 situated at Somajiguda, Hyderabad and bounded on :
North : Land belongs to Smt.Indira Rai
South : Sy.No.31 Part and Road
East : Neighbor’s property
West : Neighbor’s property”
49. In Ex.P-17 registered sale deed dt.14-11-1963 executed by Ghouse Mohiddin in favour of S. Osman Ali Khan for 1563 sq.yds in Sy.No.22 and 31 of Soamjiguda, the following boundaries are shown:
East : Out houses belonging to Junaid Kamal Mohiuddin and Junaid Adil Mohiuddin
West : land belonging to Gulam Ahmed situated in Sy.No.6 and Gulam Mohiuddin in Sy.Nio,.31/2
North : Land belonging to Mrs.Indira Rai
South : Tennis Court in the land belonging to Ghouse Mohiuddin in Sy.No.31/1 and the main cement Road”
50. Thus, the southern and northern boundary of the suit schedule properties are identical to those mentioned in Ex.P-17 sale deed dt. 14-11-1963. Between 1963 and October, 2019, when the suit was filed, the area of Somajiguda had developed dramatically and a lot of new structures have come up. In this period of time, it is not possible that the b
Please Login To View The Full Judgment!
oundaries as were shown in Ex.P-17 sale deed continued to exist even in October, 2019. 51. Also in the plaint, the appellant mentioned the Eastern and Western boundary as simply ‘neighbor’s property’ without mentioning who the neighbors are. So we are of the opinion that prima facie the suit schedule appears to be vague. 52. On the other hand, the documents filed by respondents show clear boundaries to the plaint schedule and they have specifically made an allegation that the plaint schedule is vague and the appellant is seeking recovery of possession of imaginary property with imaginary boundaries. 53. We are also of the opinion that the appellant failed to establish prima facie the relationship between Osman Ali Khan, the purchaser under Exs.P-17 and P-18 sale deeds and Smt.Rukiya Begum, who is said to be his step-sister, and the alleged oral Hiba made by Osman Ali Khan in favor of Smt.Rukiya Begum. These are matters to which need to be established during trial. 54. Though respondents have sought to contend that in the suit there is no relief of perpetual injunction and the appellant cannot seek the relief of interim injunction in I.A.Nos.1440 and 1441 of 2019, we do not agree with the said contentions for the reason that the relief sought in the suit is declaration of title and recovery of possession and if the appellant were to make out of a case for such relief in the suit, the interim relief in I.A.Nos.1440 and 1441 of 2019 would aid the same. 55. Be that as it may, in our opinion, the appellant has not established prima facie case and we hold that the court below has rightly dismissed I.A.Nos.1440 and 1441 of 2019. 56. Accordingly, the Appeals fail and are dismissed. 57. However, it is made clear that any alienations made by respondents during pendency of suit shall abide by the result of the suit. No costs. 58. Consequently, miscellaneous petitions, pending if any, shall stand closed.