THE HONOURABLE SRI JUSTICE N. TUKARAMJI SECOND APPEAL No.257 OF 2024

JUDGMENT:

1. This appeal has been filed assailing the Decree and Judgment dated 04.01.2024 in AS No.50 of 2021 passed by the X Additional Chief Judge, City Civil Court, Hyderabad, whereby, the Decree and Judgment dated 25.10.2021 in OS No.244 of 2016 passed by the XXII Junior Civil Judge, City Civil Court, Hyderabad has been affirmed.

2. Heard Sri V.Rama Krishna Reddy, learned counsel for the appellant and Sri B.Vamshidhar Reddy, learned counsel for respondents.

3. Briefly, stated the facts of the case are that respondent No.1/father and respondent Nos.2 and 3/ brothers of the appellant/defendant filed the suit vide OS No.244 of 2016 with a prayer to direct the appellant/defendant to vacate and handover the peaceful possession of the suit schedule property i.e., first floor premises bearing No.3-5-1094/14-A, Narayanaguda, Hyderabad (herein after referred as ‘subject property’) and also to pay future mesne profits at Rs.15,000/- per month together with interest @

12% per annum from 30.11.2015 till the vacant possession is delivered. The trial Court considering the evidence placed by both the parties, partly decreed the suit and directed the appellant/ defendant to vacate and handover the subject property within one month from the date of judgment. However, the prayer in regard to mesne profits was dismissed. Aggrieved by the judgment of eviction, appellant/defendant preferred an appeal vide AS No.50 of 2021. The appellate Court on re-appreciation of evidence, confirmed the trial Court judgment, against which, the present second appeal is filed.

4. Learned counsel for the appellant/defendant would submit that the relationship between respondent Nos.1 to 3/plaintiffs with the appellant/defendant and pleaded in possession of the property are not in dispute. Though the suit was filed for eviction, the plaintiffs were unclear as to how and when the appellant/defendant had entered into subject property. That apart, pleading that the schedule property is joint family property, a comprehensive suit seeking share has been filed vide OS No.37 of 2017 on the file of IX Additional Civil Judge, City Civil Court, Hyderabad. Further, in the written statement, the appellant/defendant had specifically pleaded that the subject property was purchased in the name of respondent No.1/plaintiff with the contribution on his mother, maternal uncle and maternal grand-parents as such it is joint family property and he is co-sharer to the property. Furthermore, as per the suit claim, the respondent No.1/plaintiff No.1 had gifted the subject property to respondent No.2/plaintiff No.2, as such, he was divested with the title. Additionally, in the suit proceedings, respondent No.2/plaintiff No.2 remained silent and did not enter the witness box. For that reason, an adverse inference has to be drawn against the respondents/plaintiffs. In support of this plea, learned counsel cited Judgment of Hon’ble Supreme Court in case of “Vidhyadhar v. Manikrao and another”, [(1999) 3 Supreme Court Cases 573] and “Iswar Bhai C.Patel vs. Harihar Behera”²

5. Additionally, pleaded that the Courts below without any material, much less pleading and in the teeth of specific denial by the appellant/defendant erred in holding that the appellant/defendant is in permissive possession of the subject property. Therefore, granting decree of eviction is improper and prayed for intervention.

6. The submissions of learned counsels are given due consideration and I have perused the materials.

7. As per the pleadings of the appellant/defendant, the subject property was purchased during the life time of his mother in the name of respondent No.1/plaintiff No.1 and he gifting the property under registered gift deed to plaintiff No.2/respondent No.2 in the year 1987 are not in dispute. Further, the appellant’s/defendant’s possession over the subject property as claimed by respondent Nos.1 to 3/plaintiffs is also in agreement. The ab