HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY SECOND APPEAL No.130 of 2024

JUDGMENT:

This Second Appeal is filed challenging the judgment and decree dated 26.06.2023 in A.S.No.187 of 2014 on the file of the XXV Additional Chief Judge, City Civil Court, Hyderabad, wherein and whereby the judgment and decree dated 23.01.2014 in O.S.No.1714 of 2005 on the file of the IX Junior Civil Judge, City Civil Court, Hyderabad, was confirmed.

2. The petitioner herein is the plaintiff and the respondent herein is the defendant in the suit. It is pertinent to mention that during the pendency of the first appeal sole plaintiff died and his legal heirs were brought on records as appellant Nos.2 to 6 herein. For convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.

3. Brief facts leading to filing of the present Second Appeal are that originally mother of the defendant viz., Vazeera Begum was the owner of the plot No.27-A, part of survey No.67, Mallepally Village, Vijaya Nagar Colony, Hyderabad (hereinafter referred to as ‘suit schedule property’) having purchased the same through a registered sale deed vide document No.1817 of 1962, dated 07.12.1962. Thereafter, an agreement of sale/Ex.A1 was executed between the plaintiff and mother of the defendant for a sale consideration of Rs.50,000/- and as per which, the plaintiff has paid an amount of Rs.15,000/- to mother of the defendant in three different dates and she handed over possession of the suit schedule property to the plaintiff.

4. Whileso, the mother of the defendant died leaving behind sole defendant as her legal heir. Thereafter, the defendant issued legal notice dated 27.10.1987 to the plaintiff calling upon him to pay balance sale consideration of Rs.35,000/- and get registered sale deed. Upon receipt of the same, the plaintiff issued reply notice on 20.02.1987, through his counsel expressing his readiness and willingness subject to obtaining required permissions by the defendant from Urban Ceiling, Income Tax Clearance for such transactions. Since then, the defendant postponing the registration of sale deed and later, he remained silent. In the year 2004, the plaintiff constructed boundary around the suit schedule property and finally on 01.02.2005, the plaintiff asked the defendant for execution of sale deed however, there was no response. Hence, the suit for specific performance and perpetual injunction.

5. The defendant has filed the written statement denying the allegations made in the plaint inter alia contending that the plaintiff is not in possession and enjoyment of the suit schedule property and that there is no cause of action for filing the suit. It is contended that mother of the defendant was the absolute owner of the suit schedule property; that one Vazera Begum, Kubra Fathima and Khaza Azeemuddin were the joint owners of the property admeasuring 10000 sq.yds in survey No.67, Mallepally Village, Vijay Nagar Colony, Hyderabad, having purchased the same through registered sale deed document No.1817 of 1962 dated 12.12.1962. The suit schedule property is the part and parcel of the land covered under the said document, as such mother of the defendant has no right, title or interest to alienate or transfer the suit property independently without the consent of other two co-owners and therefore, the alleged agreement of sale has no legal validity. Moreover, the alleged document was never executed by mother of the defendant and the plaintiff has fabricated the documents. When the plaintiff is not at all in possession of the suit schedule property, the question of arising cause of action does not arise. Hence, prayed to dismiss the suit.

6. Basing the above pleading, the trial Court has framed the following issues:

“1. Whether the plaintiff is entitled for specific performance of contract dated 23.10.1983 as prayed for?

2. Whether the plaintiff is entitled for perpetual injunction as prayed for.

3. To what relief?”

7. Before the trial Court, on