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2018 Supreme(AP) 278
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
V. RAMASUBRAMANIAN, N. BALAYOGI, JJ.
Mrs. Noorunnisa Begum W/o Shujath Ali Khan – Appellant
Versus
Raj Kumar Chand S/o Mahesh Chand – Respondent
A.S. Nos. 149, 239 of 2015
Decided On : 27-06-2018
For the Appellant : Mr. M.V.S. Suresh Kumar.
For the Respondent: Mr. Rakesh Sanghi.
Headnote:Code of civil procedure 1908, Order XI Rule 12 and 14, Order VIII, Order VIII Rule 6A, Order XXII Rule 5 - Transfer of Property Act 1882, section 47 – Indian evidence act, 1872, Section 40, 42, 43, 106 – Urban land (ceiling and regulation) act 1976 section 6, 84 - Appeal filed by the appellant against order dismissing the suit by the appellant but decreeing claim by the respondent – appellants suit stated that she was the absolute owner of the extent of land and requested revenue authorities to make necessary corrections in a revenue record by deleting the names of the defendants and entering name of the plaintiff – defendant in the written statement with the counterclaim seek decree of permanent injunction restraining the plaintiff from interfering in their peaceful enjoyment – trial court dismissed the suit of the plaintiff and decreed the counterclaim of the defendant – hence the appeal – the plaintiff/appellant was the grand daughter of the owner of the property, defendants challenged her lineage – court put the burden on the plaintiff to prove her lineage and entitlement over the property –plaintiff was successful in exhibiting a genealogy tree of the family where it stated her name as the granddaughter of Nawab rai yaar Jung the original owner of the property, therefore she established her lineage with the owner – Court observed that plaintiff had credible evidence and she has full entitlement to the suit property, plaintiff is entitled to possession – Appeal are allowed, judgement of the trial court is set aside and the suit of the plaintiff is decreed, counterclaim of the respondent is dismissed – appellant/plaintiff will be entitled to cost throughout.
Once a person is found to be entitled to a declaration of title such a person would also normally be entitled to recover possession, unless a bar of such recovery on the ground of limitation or other technicalities pleased credit
The identity of a party to a suit can be challenged in two ways viz. (a) by contending that there was never such a person in existence or (b) that the person claiming to be so and so, was not the actual person but an impersonator.
If a party to a suit has chosen the first method indicated in the preceding paragraph to challenge the identity of the other party, he must positively plead that the ancestor, whose lineage is claimed, never had such a son or daughter or grand-child. As a corollary, he must plead who were the actual children of that ancestor. If the defendants had chosen the second way of challenging the identity of the plaintiff, they must have stated that the plaintiff was not the same Noorunnisa Begum, who was the daughter of Shah Jahan Begum and the grand-daughter of Nawab Rais Yar Jung, but an impersonator. (Para 20,21,22)
V. RAMASUBRAMANIAN, J.
1. These appeals arise out of a judgment and decree of the Additional District Court, Vikarabad, dismissing the suit filed by the appellant, but decreeing the counter claim made by the respondents.
2. Heard Mr. M.V.S. Suresh Kumar, learned Senior Counsel appearing for the appellant/ plaintiff and Mr. Rakesh Sanghi, learned counsel appearing for the respondents/ defendants.
3. The appellant herein filed a suit in O.S. No. 8 of 2013 on the file of the Court of Additional District Judge, Vikarabad, seeking a declaration that she is the absolute owner of the land of an extent of Ac. 17.35 guntas in Survey Nos. 60, 61, 62, 66, 71 and 72, situated at Sivareddypet village, Vikarabad Mandal, Ranga Reddy District and for recovery of possession of the said property and for a further direction to the revenue authorities to make necessary corrections in the revenue records by deleting the names of the defendants and entering the name of the plaintiff. The defendants filed a written statement along with a counter claim seeking a decree of permanent injunction restraining the plaintiff from interfering with their peaceful possession and enjoyment of the suit property. After trial, the Court below dismissed the suit filed by the appellant, but decreed the counter claim filed by the defendants. Hence, the present appeals.
Case in the Plaint:
4. The case of the appellant in her plaint was that the suit schedule property was originally owned by one Nawab Rais Yar Jung; that his name was found recorded as pattadar and possessor, in respect of a larger extent of land including the suit property in the Khasra Pahani of 1954-55; that the said Nawab Rais Yar Jung had two sons and two daughters by name Mir Fazilath Hussain, Mir Mujtaba Hussain, Shahjahan Begum and Fakhr Jahan Begum; that out of them, the first son Mir Fazilath Hussain died leaving behind his widow Azamunnisa Begum and she became entitled to 8.31% share; that the second son Mir Mujtaba Hussain died leaving behind his widow Basheerunnisa Begum and two daughters Muneerunissa Begum and Sarfaraz Jahan; that the wife being entitled to 5.75% and each of the daughters entitled to 20.05%; one daughter Shahjahan Begum died leaving behind a son and daughter by name Shahryar Ali Khan and Noorunnissa Begum (the appellant/ plaintiff), who became entitled respectively to 15.28% and 7.64% that the other daughter Fakhr Jahan Begum died leaving behind one daughter by name Afsar Riza Qizilbash, who became entitled to 22.92% share; that the plaintiff, who was the daughter of Shahjahan Begum, thus became entitled to 7.64% share in the estate of Nawab Rais Yar Jung; that on account of the shares to which the children became entitled, the Mandal Revenue Officer, Vikarabad issued pattadar passbook bearing No. 307332 bearing Patta No. 63 dated 24.12.1995 in favour of the plaintiff, to the extent of Ac. 17.35 guntas; that the defendants managed the Revenue Officers and secured mutation in the records; that the mutation was obtained behind the back of the plaintiff; that on 05.03.2007, the associates of the defendants tried to interfere with the possession of the plaintiff and that upon coming to know of the same that they were making illegal entries in the revenue records, the plaintiff was compelled to file the suit.
5. The defendants filed written statement contending inter-alia, that the plaintiff was not the relative, descendent or legal heir or successor of the original pattadar Nawab Rais Yar Jung; that the plaintiff bribed the officials of the Revenue Department and got her name recorded in the revenue records without any enquiry; that the entries so gained in the revenue records surreptitiously, cannot confer valid title upon the plaintiff; that it was not open to the plaintiff to unilaterally decide how the alleged matruka estate of Nawab Rais Yar Jung could be partitio
