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Andhra Pradesh High Court
Judges : A.GOPAL REDDY
K.R.Krishna Murthy - Appellant
Versus
Hyderabad Allwyn ltd. - Respondent
Decided On : 11-14-05
A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 – Transfer of Property Act – Section 106 – Indian Easements Act, 1882 – Section 62 (a) (e) – Indian Stamp Act – Section 35 – Registration Act – Section 49 – Bombay Rent Act – Section 15-A – Civil Procedure Code – Rule 27 Order XLI – Rule 9 Order VII – Property Possession – Eviction – Damages – The defendant in the court below filed this appeal against the judgment and decree of the I Additional judge, City Civil Court, Hyderabad, decreeing the suit of the respondent/plaintiff for possession and directing the defendant to pay a sum of Rs. 11,000/- towards past damages for use and occupation and future damages at the rate of Rs. 1,000/- from the date of filing of the suit till the date of delivery of the quarter – Held, the fact that suit for partition is pending, it is not open for the appellant/defendant to plead merger and he cannot acquire any right in the property unless the property is allotted to his vendor in the said suit – He cannot resist the claim of the plaintiff for due eviction – If he acquired any right in the suit schedule property under the registered sale deed, first he has to vacate and handover the possession of the property to the plaintiff and implead in the suit filed for partition and can plead equities by allotting the said property to his vendors but not otherwise – Accordingly, court do not see any force in the submission made by the learned counsel for the appellant/defendant that the plaintiff cannot prosecute the appeal – After delivery of the judgment, learned Counsel for the appellant/defendant seeks time for eviction Since the defendant who was successfully dragged on eviction proceedings from the date of his retirement for a period of 26 years, counsel s request is rejected – Appeal Dismissed
( 2 ) A short resume of facts, which are necessary for disposal of the appeal, are as under:
( 3 ) FOR the sake of convenience the parties are arrayed as shown in the Court below.
( 4 ) M/s. Hyderabad Allwyn Limited/ plaintiff, which was subsequently taken over by M/s. Voltas Limited during the pendency of appeal with effect from 1-4-1993 under a scheme of rehabilitation by Board for industrial Finance and Reconstruction (BIFR) vide order dated 4-4-1994, instituted the suit alleging that it obtained suit schedule quarter along with various other quarters from its original owner M/s. Khan Bahadur ahmed Alladin and Sons by way of lease for the purpose of making them available to the officers of the plaintiff-Company. Accordingly plaintiff allotted the quarters to various officers working in its Company. The defendant, who was working as production Manager in the year 1978-79, was allotted the said quarter, which was in his possession since from 1950, under a deed of licence dated 26-3-1973. The defendant though retired from service on attaining the age of superannuation of 55 years on 24-8-1979 failed to handover the vacant possession of the suit quarter as per the deed of licence dated 26-3-1973- ex. A3. Therefore, he was issued a letter dated 20-11-1979-Ex A2 to vacate and handover the vacant possession, failing which legal action will be taken and a sum of Rs. 1,000/- will be deducted towards rent for use and occupation of the premises defendant filed O. S. No. 996 of 1980 before the I Assistant Judge, City Civil Court, secunderabad seeking permanent injunction restraining the plaintiff-Company not to evict him from the quarter, which has been later transferred to JJ Assistant Judge, City civil Court, Hyderabad by the High Court in Tr. C. M. P. No. 8794 of 1980. In view of the same, plaintiff-Company filed the above suit for the aforesaid reliefs
( 5 ) DEFENDANT filed a written statement (amended) raising several contentions, which were elaborately set out at length in the judgment of the trial Court. The sum and substance of the same briefly stated as under.
( 6 ) THE plaintiff has no locus standi to file the suit against the defendant In o. S. Nos 111 of 1973; 223 of 1974 and 319 of 1973, the IV Additional Judge, City civil Court, Hyderabad held that the plaintiff was neither permanent lessee of Noor Mohd Allauddin and others or khan Bahadur Ahmed Allauddin and Sons. The plaintiff filed the above suits in respect of the buildings in Czech Colony against noor Mohd Allauddin and others (successor of Khan Bahadur Ahmed allauddin and Sons) to declare the plaintiff as permanent lessee of Noor Mohd allauddin and others, Khan Bahadur allauddin had two sons, namely, Dosth mohd Allauddin and Noor Mohd allauddin Desth Mohd Allauddin died prior to filing of the suits, referred to above. After the death of Dosth Mohd Allauddin, iqbal Allauddin is looking after the buildings in Czech Colony, Sanathnagar. Mr. LM smghvi, G P. A. holder of plaintiff-Company is not entitled to file the above suit and the plaintiff was not in occupation of the quarter No. 22/a along with other quarters and there was no lease between Khan bahadur Allauddin and Sons and plaintiff nor there is any such lease subsisting. Defendant has been the tenant of Dosth mohd Allauddin and after his death Iqbal ahmed Allauddin is in exclusive, continuous and uninterrupted possession over the suit schedule quarter. The plain
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