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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Appeal under section 96 of Code of Civil Procedure, 1g0B aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.'1075 of '1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court' Hyderabad Between:
Jamiatul Banaath Society, represented by its Chairman No.874/B, Saidabad, l'tyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o '
16-2-1 4612618.lD, Anand Nagar, [VIalakpet, ...RESPONDENT/PLAINTIFF CMP. NO: 188 OF 2004 Petition under order 41 rule 5 R/w Section ,1 51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of judgment and decree passed in os No.1075 of 1999, dated 15-9-2003 on the file of lV Senior civil Judge, city Civil Court, at Hyderabad till the disposal of appeal in the interest of justice Counsel for the Appellant: SRl. MD. ABDUL MUQEETH QURESHI Counsel for the Respondent: SRl. DAMODAR MUNDRA The Court delivered the following: JUDGMENT , ,\\ R,J (l(lcq ;o.I r1200'+
Razia Be51L n but failt: <[ec re', ' execuled, , Le ivery of possession was alsc effetl-" d by the Court Ila iilf uncler the cover of p anch rt: arr a on L6.72.1gtt, in E.P.No.S1 of 1992 and Snrt. Flzzra I3egrrm was put irr pr>ssession. Ever srnce then, Srrt lRl:izL I3egum was i:r ssion of the suit schedule pr-oper( )' an'1 later p,os rs( she sold i ,o the plaintiff under a registere(l sal: deed dated 2:l.t 1 . 1995 and delivered the va:ant poss':sSion ' Ever sin:t: the time of purchasing from Srnt Flezia Eiegum, the pJ airLti l'is .,n exclusive possession and enj c'5 t:enl. of the same tlo vr verr, in the month of October 199[ , there was an attemp rnzLde by Muzahid Ali Ahmed to intrrrl-er-e with the posrst: s. on of the plaintiff. As such, sL e ha s hled O.S.No.[i I '6 of 1998 for perpetual injunclion cn tht: file of the rd .y'I Jurrror Clvil Judge, ()ity ()i,ri1 Court, ea:-rL PaEe 4 of 22 AVR,J CCCA No.1 of 2004 Hyderabad and obtained the perpetual injunction as per the judgment and decree dated i7.03.1999. 5 (b). While so, in the first week of July 1999, the plaintiff has noticed some construction material adjacent to the suit sihedule property, she enquired and came to know that construction was going on in the adjacent land and she kept quiet. Again on .1999, the plaintiffs 2O.O7 husband found some encroachment into the suit plot. On enquiry, the defendant came forward and claimed ownership over the suit plot stating that it is part of his property totally admeasuring 75O square yards. In fact, the defendant has no manner of right or interest in respect of the schedule plot, since it is remained vacant and open, trespassed into the same in the month of July 1999, started unauthorized construction, as such the plaintiff has lodged a complaint with the concerned municipal authorities, but there was no action, hence the suit for declaration of title, recovery of possession and perpetual injunction in respect of the suit schedule property. AvIi,.] ,:,/ C ({N( I r)l ')r)O'l / (r (:L '['he sole dr--fenclant has filed :r rl<'t:l ,ecl r,vril terr stat( rn( <[enying thc suit claim of tht pleLin iff alleging 1-1' that thr: :rintiff is nothing to do with th,r prol)e 11. bearing 6 m un jc i[).r I' o.16 2 867 /8, u,hich was alkrttecl .rt a f irewood sl all sitr-r: t 1 Member'.( r)( retary searched, but he could not I r<.ate on ilny sllch p:() )€ rt]' with thc said door nunrbcr .rt al . The sen'irc ol ( oLrrt process was effected al rnuntcipal door No.1tr 2 8 ,t,: /t\12, which is :r hostel run frr tht irls by the 1 socletY. t e rce, the notice is not correctl",etddrr:ssed. l'he clain-L ol 1l Le p)aintifl-is that she acquired thc su t sr:hedule prop{'rtv i' ith municipal No. t 6-2-867/B i; not (., )rr(ct. She h:rd no t e to this property rvhich belor g..d to rhe deler d:rn i "he plaintiff might have purchast:<[ ,r different prop('rt}'. r,: title of the sub.ject property is vcstt C ri,ith the defencla-rt. society. The Municipal Corlt,tr lir,n of HJ'de: al;:Lr MCH) hr,rs assigr-red house rrumb:r as lfi 2- 874 /B tc' I [e defendant for which SnLt. Rirz a Begum contir.rttt:rl t o pay the property tax from 1992 1.ll . r r w 1s sold to the cleli: r r Izur t. AVR,J CCCA No. 1 ot 2004 6 (b). The plaintiff on one hand claiming that she has purchased property from Smt. Razia Begum, but describing it as Door No.l6-2-a67 lB. Originally, the property was possessed by Ahmedi Tayyaba Sultana, who in pursuance of the post-decretal agreement with her decree holder-Smt. Razia Begum, conveyed the same to the defendant-society by a registered sale deed and transaction was also confirmed by Smt. Razia Begum. At no point of time, anybody claiming through the defendant society tried to interfere in the property alieged to be belonging to the plaintiff. The property claimed by the plaintiff was never in her possession. The defendant has purchased the same under a registered sale deed dated 13'07.1998 and since then the defendant has been in possession, construction was commenced in November 1998 and completed on 76.07.1999. The defendalt has been running a school in this property since 22.07.1999 and neither the plaintiff nor her alleged vendor had any title or possession over the suit schedule property. The plaintiff remained silent and aliowed the construction of t'iso-storied building completed it was inaugurated publicly, thereafter, filed the present AVIi,J C(l(lA N,) I ol 2004 suit, rvhicl s not maintainable. According\', 1:ra5-ed for dismissal c i the suit Issue-s. E1t-i- kince and findings of the trial C,:urt: -ial 7. Basing on the above pleadings;, the t Court has fr arrLct t-he follorving issues: 1. \\' re her the plaintiff is entitled for declaratiorr as pr .1':d for? ) \[I er:her thc plaintiff is entitled 1or l-e:c'verr of vil :ant possession of suit ProPertY? 3 \\r re [h,:r the plaintiff is entitled fot corLs e'.tuentiaL rn lncl-ion as prayed for? 4.W Lether there is no cause of action? 5. Tr 'q hzrt relieP B. I-)uring triaL, on behalf of the p[a Lntiff, her husban i were marked. No oral and do::untentary docurnen,, evidenct: 'ri s adduced on trehalf of th3 def 31 da rt and accordingJ ,,, defendant's evidence was clos ed 9. ()n careful appreciation ol the orzLi and document irr' eviden(le available on recorC, ttrt: trial Court has irnssr rr:d issue No. 1 in favour of thrl plai rr iff eoldtng : -:_ t_ Page I of 22 AVR,.I CCCA No 1 of 2OO4 that she is entitled for declaration of title as owner of the suit schedule property. Similarly, issue Nos.2 & 3 were answered in favour of the plaintiff holding that she is entitied for recovery of possession of suit schedule property and for consequential injunction. While answering issue No.4, the trial Court has held that there is cause of action for the plaintiff to file the suit. Finally, issue No.5 was answered declaring the plaintiff as absolute owner of suit schedule propert5z and entitled for recovery of its vacant possession and thereafter the defendant was restrained from causing any interference with her possession. The defendant was further directed to deliver the vacant possession of suit schedule property within three months from the date of judgment, otherwise she is entitled for the said relief lor delivery o[ possession. 10. Heard the learned counsel for the appellant/ defendant and the respondent/plaintiff. The detailed submissions made on either side have received due consideration of this Court. AVIi,J C l(l\ Nc 1 ot 200.1 1t. ln the light of the rival contentiorls ld rnaterial a. available r)l) :record, the following points worrl(l arise for considcr:r i(,n i) tVhether the respondent/ plai rtilT i s ent itled lbr declaration of title, recoverlr of por,ses,sion irnd consequential injunction irs prz vt:d Ibr? ii) \Vhether the judgment and decree rrrrpu;1ned is sustainable? Point Nos i!) and tl lt'. . "(lince both the point Nos. (i) rrncl ( i) ar,: inter- relat(rd, f< : the sake of convenience and brev 1r,', t 1ey are answered qether as under: . o 1 3 , l:'or the sal hereinaltr: referred to as "plaintiff and dele edzrnt" as arra-v- ed in the originzrl suit 14. 'Ihe plaintiff has filed a comp -ehensi.re r;uit for declaratic,: r of title, recovery of possi€ s,:iior. and consequ e r :irrl injunction in respect of t he srlu . sc'hedule propert] . iJ: rdispr.rteclly, both the parties rre cl ri nirLg their _ ... ..r--::,: I: :) PaEe 70 ol 22 AVR,J CCCA No. I of 2OO4 :. title from Ahmedi Tayyaba Sultana, who conveyed the '. property to Smt. Razia Begum. The plaintiff has claimed that Smt. Razia Begum has entered into an agreement of sale for purchase of suit schedule property from Ahmedi Tayyaba Sultana, who got it in a compromise decree in O.A.No.BO of l97O and when she failed to execute the registered sale deed, Smt. Razia Begum has filed the suit in O.S.No.1233 of 1987 on the hle of the learned V Junior Civil Judge, City Civil Court, Hyderabad, for specifrc performance and obtained the decree and sale deed was executed by the Court in favour of Smt. Razia Begum, possession was also delivered on 16.12.1994. Thereafter, Smt. Razia Begum has executed a sale deed dated 24.01 .1995 in favour of the plaintiff and delivered the vacant possession. 15. Whereas, the defendant has admitted in the written statement that the property with door Nos.16-2- 867/8 was originally owned by Ahmedi Tayyaba Sultana, who had entered into agreement with Smt. Razia Begum who sold the same to the defendant on 13.O7.1998 and Page 7l of 22 A\ R,.I (l(l(1,! No I ol 2004 er.er since tlre date of purchase he is in [,osses sion. Thus, both the rlrrintiff and defendant have been cla tming suit schedule rloperty from Smt. Razia Begum :r r vendrr-.\i :-nedi Tayl.aba Sultana only 16,. I)uring trial, on behalf of the plaintill s;he has exariinei. h,:r husband as PW. 1. In his evide :r.e. trxs.A. 1 to A.r5 doc.r1nents are marked. Ex.A. 1 is Lhe reqirrtered salc deed alorr lvilh t1-re plan. It rs dated 24.C1.19tr:; e: 250 s;quar :'zards situated at Khaisar Bage u.as clelivered Page LZ of 22 AVR,J CCCA No.I of 2004 17. On a conjoint reading of Exs.A. 1 & A.2 and the boundaries of suit schedule property as per the plaint schedule, the boundaries that are mentioned in Exs.A. I & the suit schedule property as mentioned in the plaint are one and the same. Be it stated that in Ex.A.2 municipal number of the property is not mentioned, the description is only mentioned as plot No.5, but in Ex.A.4 certified copy of judgment ald decree in O.S.No.S176 of 1998, a suit is Iiled by the plaintiff herein against Mr. Mujahid Ali Ahmed, the suit schedule property is described with municipal number as mentioned in the present suit with the same boundaries. Ex.A.S is the complaint dated 06.08.1999 given by the plaintiff to the MCH alleging the encroachment and construction by the def€ndant in the suit schedule property. Whereas, Ex.A.6 is the certified copy of the sale deed No. 1943 of 1994 executed by the learned IX Assistant Judge, City Civil Court, Hyderabad, pursuant to the judgment and decree in O.S. No.1233 of 1987 in E.P.No.8l of 1992. The plaintiffs father has got this suit schedule property through Ex.A.6 pursuant to the judgment and decree in O.S.No.1233 of 1987. Thereafter, possession was AVlt,.I CC:i\No.tof200.+ , her r.rnder Ex.A.2 under th: cover of delive re pancharLar rl,1, then she has sold i t to ttLe pJa ir tiff under Ex.A. 1. 18. PW. 1, who is the husband of plaintiff, is subjectecl o lengthy cross-cxamination, tut r.lctlLrn51 worth mentionin .; is elicited in his entire cros s-exa tr ination to discrr:di, :ris version in the chief extmirttLtion or to disbclieve l.hc plaintiff's case. This witnes,s heLs r;tat:d that since the rlrrintiff is not an educated lady and lLesjtant to give evicle: rc:, he being her husband is givinSl e"idence on her beleir f. In further cross-examination a'W.1 has admi ttetl hrrt under Ex.A.2 the suit schedule l.,roperty is described ari plot No.5, whereas in Ex.A.1, ir is r eferred witl-r refi:rr n;e to municipal number and txplairr:d that the srrit lule property was identihed 'vith tlre llelp of sche: peISC,nS r( sr.ling adjacent to the suit sche lule pr:operty and also explzr rr:d the boundaries. A suggestion wits also given to PW. rr-d he admitted that the bouncl€ ries of the proport)'. s mentioned in Exs.A. 1 & A.2 ancl s,:hedule of propertf i r the plaint are one and the same. l-Ie further explzrine d l.hat he had access to the suit r;chedule property 7- Pa6e 14 of 22 CCCA No. I of 2004 from the land of the owner and there is no access from any other side. 19. Be it stated that though the defendant has claimed the suit schedule property from Smt. Razia Begum alleging that he has obtained a sale deed on 13.07.1998, he did not choose to frle the same. He is withholding the best available evidence with him in support of the claim without explaining any reason and no such suggestion is also given to PW.l stating that the defendant has obtained the sale deed dated 13.07.1998 in respect of the suit schedule property from Smt. Razia Begum. 20. The sequence of the events discussed above, would establish that originally Smt. Ahmedi Tayyaba Sultana has got the suit property under a compromise decree in O.A.No.S0 of 1970 and entered into an agreement of sale with Smt. Razia Begum, but failed to execute the sale deed. As such Smt. Razia Begum has filed O.S.No. 1233 of 1987 on the file of the learned V Junior Civil Judge, City Civii Court, Hyderabad, obtained the decree for specihc performance. Pursuant to decree a sale Pag.. 15 of 22 (lC:-,' N.r i oi 2tr(l I cleect lLs itt tl)e original of Flx.A.6 was exec.rtecl )\'th3 collrt t\ in E.l).No c1' 7992 on 24.09.1991i. Ther,:aftcr l:)oslicssion w:rs lel:t'r r-ccl in lhvour of Stnt. Razia Begtrtn is l)er thc r pa nc lr nirrr il urrder Ex.A.2 on 16.12.7994. Ther e:rfter, Srnt. RzLzia Br1_t u t has sold thc suit property in le vr)r-rr of t he I)lain r rff ol .14.01.19()5. A slrggestion was givoll lo I'W.1 to the tlrat the boundaries as menliol.lec :n Ex.A.6, c'ffe:1 trx.A.2. tr> ,4.1 and rn the schedule of procertlr alc cnc and thc s arrLe lrrd he hzrs acccl;ted it. Thcrt fore, 1- *'. bcing hrtsb:rnr1 rl plaintiiT had personal knor',ledgt, rf subject mzlttr:r itr :lispute and his explanation that sirLc,: his wit'e- plaintiff trneducatt:d lady, he was looking afle' the court i-" .rffairs r rs shc u,as hesitant to enter into t:le .\ritness zirL bor 1re rsrr ;rliving evidencc is quite convin cin5; : trL d r:liablc' 2l. 1'hough lirr the first time undr:r E:< r\ I the s"rit s<'herlule rr )perty is descrilled as with n:ut-ri<:i:i'l number, the lror-tnc i:.l ies of suit schcclule property right flom Ex.A.6 to trx.A.2 .nd fron'r there to Ifx.A. 1 and in the sr-rit sr:hedule prop(rrt\/ i:c one and the szrtne. Thus, with tlrr' ,'vicence of PW. I ar-rrl t 1e contents of Iixs.A. I to A.6, th: plaintiff is ,lr.;.tx CCCA No.l of 2004 able to establish that her vendor was having valid title in respect of the suit schedule property. Possession was delivered to her vendor pursuant to Ex.A.6 under Ex.A.2, in turn she has executed the sale deed in favour of the plaintiff under Ex.A. 1 . Whereas, the defendant hawing claimed that Smt. Razia Begum has executed the sa,le deed on 13.O7.1998 in his favour, did not choose to frle any such sale deed and did not choose to enter into the witness box to speak the contents of written statement filed by him on oath, thereby avoided cross-examination by the other side. Even otherwise, Bx.A. I sale deed executed in favour of the plaintiff by Smt. Razia Begum is dated 24.01.1995, whereas the defendant is cldiming the property through the sa-le deed said to have been executed in his favour on 13.07.1998. 22. The learned counsel for the appellant/ defendant strenuously contends that in a suit for declaration of title, the burden is always on the plaintiff to establish the cause of action and identity of the suit schedule property. In the case on hand, there is no cause of action and schedule of property is not identified Page 77 ol 22 I.\/R,J ( l(:rlA ]\o 1 of:2004 prol)erlv. 'l]re trial Court by ignoring all rh,:se aspects simrll' cl 'c -cr:d thc suit of the plaintiff c,nllz on the ground that thc ,lcfendant did not enter into the rvit_:ress box to speak th ()olte1-rts of written statement on oa.r h, which is not corr,. :t [t is th e responsibility of th e pll n ,iff to prove ther. cirs,, , weal the ;rrirrr: ples laid in the following decisic,ns: i) Sait Tarajee Khimchand ond. cttrcr:; Vs. Yelamarti Satgam and otherst; ii) M/s. Sanjag Cotton Co., Partner:;h.ip Firm .Akola Vs. M/s. Omprakash Shioprc,.k,ash,. and anotheP. iii) Shakir llussain Vs. Administrafi>r. Atagar .Palika, Mand saur3; 23. .Der contra, the learned counsrel lbr the responcle r.t,'ptaintiff contends that the plaint fi rs able to prove LreI r:itle and delivery of possessitn in l.rer favour, er-rcrrrachr tc nt caused by the defendant in re s :rec _ of the rAIR tqz: Ii 1865 '1tooltl o s(, I r)1at AVR,J CCCA No. I of 2004 suit schedule property and the trial Court has rightly appreciated the available evidence on record. The defendant having pleaded that he has purchased the suit schedule property on 13.07.1998 did not choose to examine any witness, not filed by any document in support of his claim. The plaintiff is able to discharge the initial burden and able to establish her title and her entitlement for recovery of possession ahd for consequential injunction. The impugned judgment and decree does not warrant any interference by this Court, accordingly relied on the principles laid in the following decisions: ll Gopol Krishnaii Ketkdt Vs' Mahomed Haii Lati.f and other#; ii) Niranjan Kaur Vs. New Delhi Hotels Ltd., and otherss; iii) Vidhgadhar Vs. Manikrao and otherd,. 24. In Scit Tarajee Khinchandb case (lst supra), the Honble Supreme Court ih para-15 while dealing with Pago 19 of 22 A"'Ii.J (.( AN,, lr)i:r'loq Section (i i rf the In - amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre. 2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue. PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant. 26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr) 2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \ \ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,. PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) & Nos. (ii) accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff. 28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr. As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed. SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any) 2. One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC] 3. One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC] 4. Two CD Copies VH plp \ I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S 1i'-,!^' JUDGMENT 1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\: t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s' I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between: Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o. 16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent. This Court Doth Order and Decree as follows: 1. That the appeal suit be and hereby is dismissed with costs; and 2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of 1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety. MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,; Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt) Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY// L JI CTION OFFICER To, . 2. fwo CD Copies \ / HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \ v9
<[ec re', '
execuled, , Le ivery of possession was alsc effetl-" d by the Court Ila iilf uncler the cover of p anch rt: arr a on L6.72.1gtt, in E.P.No.S1 of 1992 and Snrt. Flzzra I3egrrm was put irr pr>ssession. Ever srnce then, Srrt lRl:izL I3egum was i:r ssion of the suit schedule pr-oper( )' an'1 later p,os rs(
she sold i ,o the plaintiff under a registere(l sal: deed dated 2:l.t 1 . 1995 and delivered the va:ant poss':sSion ' Ever sin:t: the time of purchasing from Srnt Flezia Eiegum, the pJ airLti l'is .,n exclusive possession and enj c'5 t:enl. of the same tlo vr verr, in the month of October 199[ , there was an attemp rnzLde by Muzahid Ali Ahmed to intrrrl-er-e with the posrst: s. on of the plaintiff. As such, sL e ha s hled O.S.No.[i I '6 of 1998 for perpetual injunclion cn tht: file of the rd .y'I Jurrror Clvil Judge, ()ity ()i,ri1 Court, ea:-rL PaEe 4 of 22 AVR,J CCCA No.1 of 2004 Hyderabad and obtained the perpetual injunction as per the judgment and decree dated i7.03.1999.
5 (b). While so, in the first week of July 1999, the plaintiff has noticed some construction material adjacent to the suit sihedule property, she enquired and came to know that construction was going on in the adjacent land and she kept quiet. Again on .1999, the plaintiffs
2O.O7 husband found some encroachment into the suit plot. On enquiry, the defendant came forward and claimed ownership over the suit plot stating that it is part of his property totally admeasuring 75O square yards. In fact, the defendant has no manner of right or interest in respect of the schedule plot, since it is remained vacant and open, trespassed into the same in the month of July 1999, started unauthorized construction, as such the plaintiff has lodged a complaint with the concerned municipal authorities, but there was no action, hence the suit for declaration of title, recovery of possession and perpetual injunction in respect of the suit schedule property.
AvIi,.] ,:,/ C ({N( I r)l ')r)O'l / (r (:L '['he sole dr--fenclant has filed :r rl<'t:l ,ecl r,vril terr stat( rn( <[enying thc suit claim of tht pleLin iff alleging
1-1'
that thr: :rintiff is nothing to do with th,r prol)e 11. bearing
6
m un jc i[).r I' o.16 2 867 /8, u,hich was alkrttecl .rt a f irewood sl all sitr-r: t 1 Member'.( r)( retary searched, but he could not I r<.ate on ilny sllch p:() )€ rt]' with thc said door nunrbcr .rt al . The sen'irc ol ( oLrrt process was effected al rnuntcipal door No.1tr 2 8 ,t,: /t\12, which is :r hostel run frr tht irls by the 1 socletY. t e rce, the notice is not correctl",etddrr:ssed. l'he clain-L ol 1l Le p)aintifl-is that she acquired thc su t sr:hedule prop{'rtv i' ith municipal No. t 6-2-867/B i; not (., )rr(ct. She h:rd no t e to this property rvhich belor g..d to rhe deler d:rn i "he plaintiff might have purchast:<[ ,r different prop('rt}'. r,: title of the sub.ject property is vcstt C ri,ith the defencla-rt. society. The Municipal Corlt,tr lir,n of HJ'de: al;:Lr MCH) hr,rs assigr-red house rrumb:r as lfi 2- 874 /B tc' I [e defendant for which SnLt. Rirz a Begum contir.rttt:rl t o pay the property tax from 1992 1.ll . r r w 1s sold to the cleli: r r Izur t. AVR,J CCCA No. 1 ot 2004 6 (b). The plaintiff on one hand claiming that she has purchased property from Smt. Razia Begum, but describing it as Door No.l6-2-a67 lB. Originally, the property was possessed by Ahmedi Tayyaba Sultana, who in pursuance of the post-decretal agreement with her decree holder-Smt. Razia Begum, conveyed the same to the defendant-society by a registered sale deed and transaction was also confirmed by Smt. Razia Begum. At no point of time, anybody claiming through the defendant society tried to interfere in the property alieged to be belonging to the plaintiff. The property claimed by the plaintiff was never in her possession. The defendant has purchased the same under a registered sale deed dated 13'07.1998 and since then the defendant has been in possession, construction was commenced in November 1998 and completed on 76.07.1999. The defendalt has been running a school in this property since 22.07.1999 and neither the plaintiff nor her alleged vendor had any title or possession over the suit schedule property. The plaintiff remained silent and aliowed the construction of t'iso-storied building completed it was inaugurated publicly, thereafter, filed the present AVIi,J C(l(lA N,) I ol 2004 suit, rvhicl s not maintainable. According\', 1:ra5-ed for dismissal c i the suit Issue-s. E1t-i- kince and findings of the trial C,:urt: -ial 7. Basing on the above pleadings;, the t Court has fr arrLct t-he follorving issues: 1. \\' re her the plaintiff is entitled for declaratiorr as pr .1':d for? ) \[I er:her thc plaintiff is entitled 1or l-e:c'verr of vil :ant possession of suit ProPertY? 3 \\r re [h,:r the plaintiff is entitled fot corLs e'.tuentiaL rn lncl-ion as prayed for? 4.W Lether there is no cause of action? 5. Tr 'q hzrt relieP B. I-)uring triaL, on behalf of the p[a Lntiff, her husban i were marked. No oral and do::untentary docurnen,, evidenct: 'ri s adduced on trehalf of th3 def 31 da rt and accordingJ ,,, defendant's evidence was clos ed 9. ()n careful appreciation ol the orzLi and document irr' eviden(le available on recorC, ttrt: trial Court has irnssr rr:d issue No. 1 in favour of thrl plai rr iff eoldtng : -:_ t_ Page I of 22 AVR,.I CCCA No 1 of 2OO4 that she is entitled for declaration of title as owner of the suit schedule property. Similarly, issue Nos.2 & 3 were answered in favour of the plaintiff holding that she is entitied for recovery of possession of suit schedule property and for consequential injunction. While answering issue No.4, the trial Court has held that there is cause of action for the plaintiff to file the suit. Finally, issue No.5 was answered declaring the plaintiff as absolute owner of suit schedule propert5z and entitled for recovery of its vacant possession and thereafter the defendant was restrained from causing any interference with her possession. The defendant was further directed to deliver the vacant possession of suit schedule property within three months from the date of judgment, otherwise she is entitled for the said relief lor delivery o[ possession. 10. Heard the learned counsel for the appellant/ defendant and the respondent/plaintiff. The detailed submissions made on either side have received due consideration of this Court. AVIi,J C l(l\ Nc 1 ot 200.1 1t. ln the light of the rival contentiorls ld rnaterial a. available r)l) :record, the following points worrl(l arise for considcr:r i(,n i) tVhether the respondent/ plai rtilT i s ent itled lbr declaration of title, recoverlr of por,ses,sion irnd consequential injunction irs prz vt:d Ibr? ii) \Vhether the judgment and decree rrrrpu;1ned is sustainable? Point Nos i!) and tl lt'. . "(lince both the point Nos. (i) rrncl ( i) ar,: inter- relat(rd, f< : the sake of convenience and brev 1r,', t 1ey are answered qether as under: . o 1 3 , l:'or the sal hereinaltr: referred to as "plaintiff and dele edzrnt" as arra-v- ed in the originzrl suit 14. 'Ihe plaintiff has filed a comp -ehensi.re r;uit for declaratic,: r of title, recovery of possi€ s,:iior. and consequ e r :irrl injunction in respect of t he srlu . sc'hedule propert] . iJ: rdispr.rteclly, both the parties rre cl ri nirLg their _ ... ..r--::,: I: :) PaEe 70 ol 22 AVR,J CCCA No. I of 2OO4 :. title from Ahmedi Tayyaba Sultana, who conveyed the '. property to Smt. Razia Begum. The plaintiff has claimed that Smt. Razia Begum has entered into an agreement of sale for purchase of suit schedule property from Ahmedi Tayyaba Sultana, who got it in a compromise decree in O.A.No.BO of l97O and when she failed to execute the registered sale deed, Smt. Razia Begum has filed the suit in O.S.No.1233 of 1987 on the hle of the learned V Junior Civil Judge, City Civil Court, Hyderabad, for specifrc performance and obtained the decree and sale deed was executed by the Court in favour of Smt. Razia Begum, possession was also delivered on 16.12.1994. Thereafter, Smt. Razia Begum has executed a sale deed dated 24.01 .1995 in favour of the plaintiff and delivered the vacant possession. 15. Whereas, the defendant has admitted in the written statement that the property with door Nos.16-2- 867/8 was originally owned by Ahmedi Tayyaba Sultana, who had entered into agreement with Smt. Razia Begum who sold the same to the defendant on 13.O7.1998 and Page 7l of 22 A\ R,.I (l(l(1,! No I ol 2004 er.er since tlre date of purchase he is in [,osses sion. Thus, both the rlrrintiff and defendant have been cla tming suit schedule rloperty from Smt. Razia Begum :r r vendrr-.\i :-nedi Tayl.aba Sultana only 16,. I)uring trial, on behalf of the plaintill s;he has exariinei. h,:r husband as PW. 1. In his evide :r.e. trxs.A. 1 to A.r5 doc.r1nents are marked. Ex.A. 1 is Lhe reqirrtered salc deed alorr lvilh t1-re plan. It rs dated 24.C1.19tr:; e: 250 s;quar :'zards situated at Khaisar Bage u.as clelivered Page LZ of 22 AVR,J CCCA No.I of 2004 17. On a conjoint reading of Exs.A. 1 & A.2 and the boundaries of suit schedule property as per the plaint schedule, the boundaries that are mentioned in Exs.A. I & the suit schedule property as mentioned in the plaint are one and the same. Be it stated that in Ex.A.2 municipal number of the property is not mentioned, the description is only mentioned as plot No.5, but in Ex.A.4 certified copy of judgment ald decree in O.S.No.S176 of 1998, a suit is Iiled by the plaintiff herein against Mr. Mujahid Ali Ahmed, the suit schedule property is described with municipal number as mentioned in the present suit with the same boundaries. Ex.A.S is the complaint dated 06.08.1999 given by the plaintiff to the MCH alleging the encroachment and construction by the def€ndant in the suit schedule property. Whereas, Ex.A.6 is the certified copy of the sale deed No. 1943 of 1994 executed by the learned IX Assistant Judge, City Civil Court, Hyderabad, pursuant to the judgment and decree in O.S. No.1233 of 1987 in E.P.No.8l of 1992. The plaintiffs father has got this suit schedule property through Ex.A.6 pursuant to the judgment and decree in O.S.No.1233 of 1987. Thereafter, possession was AVlt,.I CC:i\No.tof200.+ , her r.rnder Ex.A.2 under th: cover of delive re pancharLar rl,1, then she has sold i t to ttLe pJa ir tiff under Ex.A. 1. 18. PW. 1, who is the husband of plaintiff, is subjectecl o lengthy cross-cxamination, tut r.lctlLrn51 worth mentionin .; is elicited in his entire cros s-exa tr ination to discrr:di, :ris version in the chief extmirttLtion or to disbclieve l.hc plaintiff's case. This witnes,s heLs r;tat:d that since the rlrrintiff is not an educated lady and lLesjtant to give evicle: rc:, he being her husband is givinSl e"idence on her beleir f. In further cross-examination a'W.1 has admi ttetl hrrt under Ex.A.2 the suit schedule l.,roperty is described ari plot No.5, whereas in Ex.A.1, ir is r eferred witl-r refi:rr n;e to municipal number and txplairr:d that the srrit lule property was identihed 'vith tlre llelp of sche: peISC,nS r( sr.ling adjacent to the suit sche lule pr:operty and also explzr rr:d the boundaries. A suggestion wits also given to PW. rr-d he admitted that the bouncl€ ries of the proport)'. s mentioned in Exs.A. 1 & A.2 ancl s,:hedule of propertf i r the plaint are one and the same. l-Ie further explzrine d l.hat he had access to the suit r;chedule property 7- Pa6e 14 of 22 CCCA No. I of 2004 from the land of the owner and there is no access from any other side. 19. Be it stated that though the defendant has claimed the suit schedule property from Smt. Razia Begum alleging that he has obtained a sale deed on 13.07.1998, he did not choose to frle the same. He is withholding the best available evidence with him in support of the claim without explaining any reason and no such suggestion is also given to PW.l stating that the defendant has obtained the sale deed dated 13.07.1998 in respect of the suit schedule property from Smt. Razia Begum. 20. The sequence of the events discussed above, would establish that originally Smt. Ahmedi Tayyaba Sultana has got the suit property under a compromise decree in O.A.No.S0 of 1970 and entered into an agreement of sale with Smt. Razia Begum, but failed to execute the sale deed. As such Smt. Razia Begum has filed O.S.No. 1233 of 1987 on the file of the learned V Junior Civil Judge, City Civii Court, Hyderabad, obtained the decree for specihc performance. Pursuant to decree a sale Pag.. 15 of 22 (lC:-,' N.r i oi 2tr(l I cleect lLs itt tl)e original of Flx.A.6 was exec.rtecl )\'th3 collrt t\ in E.l).No c1' 7992 on 24.09.1991i. Ther,:aftcr l:)oslicssion w:rs lel:t'r r-ccl in lhvour of Stnt. Razia Begtrtn is l)er thc r pa nc lr nirrr il urrder Ex.A.2 on 16.12.7994. Ther e:rfter, Srnt. RzLzia Br1_t u t has sold thc suit property in le vr)r-rr of t he I)lain r rff ol .14.01.19()5. A slrggestion was givoll lo I'W.1 to the tlrat the boundaries as menliol.lec :n Ex.A.6, c'ffe:1 trx.A.2. tr> ,4.1 and rn the schedule of procertlr alc cnc and thc s arrLe lrrd he hzrs acccl;ted it. Thcrt fore, 1- *'. bcing hrtsb:rnr1 rl plaintiiT had personal knor',ledgt, rf subject mzlttr:r itr :lispute and his explanation that sirLc,: his wit'e- plaintiff trneducatt:d lady, he was looking afle' the court i-" .rffairs r rs shc u,as hesitant to enter into t:le .\ritness zirL bor 1re rsrr ;rliving evidencc is quite convin cin5; : trL d r:liablc' 2l. 1'hough lirr the first time undr:r E:< r\ I the s"rit s<'herlule rr )perty is descrilled as with n:ut-ri<:i:i'l number, the lror-tnc i:.l ies of suit schcclule property right flom Ex.A.6 to trx.A.2 .nd fron'r there to Ifx.A. 1 and in the sr-rit sr:hedule prop(rrt\/ i:c one and the szrtne. Thus, with tlrr' ,'vicence of PW. I ar-rrl t 1e contents of Iixs.A. I to A.6, th: plaintiff is ,lr.;.tx CCCA No.l of 2004 able to establish that her vendor was having valid title in respect of the suit schedule property. Possession was delivered to her vendor pursuant to Ex.A.6 under Ex.A.2, in turn she has executed the sale deed in favour of the plaintiff under Ex.A. 1 . Whereas, the defendant hawing claimed that Smt. Razia Begum has executed the sa,le deed on 13.O7.1998 in his favour, did not choose to frle any such sale deed and did not choose to enter into the witness box to speak the contents of written statement filed by him on oath, thereby avoided cross-examination by the other side. Even otherwise, Bx.A. I sale deed executed in favour of the plaintiff by Smt. Razia Begum is dated 24.01.1995, whereas the defendant is cldiming the property through the sa-le deed said to have been executed in his favour on 13.07.1998. 22. The learned counsel for the appellant/ defendant strenuously contends that in a suit for declaration of title, the burden is always on the plaintiff to establish the cause of action and identity of the suit schedule property. In the case on hand, there is no cause of action and schedule of property is not identified Page 77 ol 22 I.\/R,J ( l(:rlA ]\o 1 of:2004 prol)erlv. 'l]re trial Court by ignoring all rh,:se aspects simrll' cl 'c -cr:d thc suit of the plaintiff c,nllz on the ground that thc ,lcfendant did not enter into the rvit_:ress box to speak th ()olte1-rts of written statement on oa.r h, which is not corr,. :t [t is th e responsibility of th e pll n ,iff to prove ther. cirs,, , weal the ;rrirrr: ples laid in the following decisic,ns: i) Sait Tarajee Khimchand ond. cttrcr:; Vs. Yelamarti Satgam and otherst; ii) M/s. Sanjag Cotton Co., Partner:;h.ip Firm .Akola Vs. M/s. Omprakash Shioprc,.k,ash,. and anotheP. iii) Shakir llussain Vs. Administrafi>r. Atagar .Palika, Mand saur3; 23. .Der contra, the learned counsrel lbr the responcle r.t,'ptaintiff contends that the plaint fi rs able to prove LreI r:itle and delivery of possessitn in l.rer favour, er-rcrrrachr tc nt caused by the defendant in re s :rec _ of the rAIR tqz: Ii 1865 '1tooltl o s(, I r)1at AVR,J CCCA No. I of 2004 suit schedule property and the trial Court has rightly appreciated the available evidence on record. The defendant having pleaded that he has purchased the suit schedule property on 13.07.1998 did not choose to examine any witness, not filed by any document in support of his claim. The plaintiff is able to discharge the initial burden and able to establish her title and her entitlement for recovery of possession ahd for consequential injunction. The impugned judgment and decree does not warrant any interference by this Court, accordingly relied on the principles laid in the following decisions: ll Gopol Krishnaii Ketkdt Vs' Mahomed Haii Lati.f and other#; ii) Niranjan Kaur Vs. New Delhi Hotels Ltd., and otherss; iii) Vidhgadhar Vs. Manikrao and otherd,. 24. In Scit Tarajee Khinchandb case (lst supra), the Honble Supreme Court ih para-15 while dealing with Pago 19 of 22 A"'Ii.J (.( AN,, lr)i:r'loq Section (i i rf the In - amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre. 2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue. PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant. 26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr) 2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \ \ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,. PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) & Nos. (ii) accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff. 28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr. As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed. SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any) 2. One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC] 3. One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC] 4. Two CD Copies VH plp \ I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S 1i'-,!^' JUDGMENT 1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\: t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s' I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between: Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o. 16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent. This Court Doth Order and Decree as follows: 1. That the appeal suit be and hereby is dismissed with costs; and 2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of 1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety. MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,; Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt) Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY// L JI CTION OFFICER To, . 2. fwo CD Copies \ / HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \ v9
1 Member'.( r)( retary searched, but he could not I r<.ate on ilny sllch p:() )€ rt]' with thc said door nunrbcr .rt al . The sen'irc ol ( oLrrt process was effected al rnuntcipal door No.1tr 2 8 ,t,: /t\12, which is :r hostel run frr tht irls by the
1 socletY. t e rce, the notice is not correctl",etddrr:ssed. l'he clain-L ol 1l Le p)aintifl-is that she acquired thc su t sr:hedule prop{'rtv i' ith municipal No. t 6-2-867/B i; not (., )rr(ct. She h:rd no t e to this property rvhich belor g..d to rhe deler d:rn i "he plaintiff might have purchast:<[ ,r different prop('rt}'. r,: title of the sub.ject property is vcstt C ri,ith the defencla-rt. society. The Municipal Corlt,tr lir,n of HJ'de: al;:Lr MCH) hr,rs assigr-red house rrumb:r as lfi 2- 874 /B tc' I [e defendant for which SnLt. Rirz a Begum contir.rttt:rl t o pay the property tax from 1992 1.ll . r r w 1s sold to the cleli: r r Izur t.
AVR,J CCCA No. 1 ot 2004
6 (b). The plaintiff on one hand claiming that she has purchased property from Smt. Razia Begum, but describing it as Door No.l6-2-a67 lB. Originally, the property was possessed by Ahmedi Tayyaba Sultana, who in pursuance of the post-decretal agreement with her decree holder-Smt. Razia Begum, conveyed the same to the defendant-society by a registered sale deed and transaction was also confirmed by Smt. Razia Begum. At no point of time, anybody claiming through the defendant society tried to interfere in the property alieged to be belonging to the plaintiff. The property claimed by the plaintiff was never in her possession. The defendant has purchased the same under a registered sale deed dated 13'07.1998 and since then the defendant has been in possession, construction was commenced in November 1998 and completed on 76.07.1999. The defendalt has been running a school in this property since 22.07.1999 and neither the plaintiff nor her alleged vendor had any title or possession over the suit schedule property. The plaintiff remained silent and aliowed the construction of t'iso-storied building completed it was inaugurated publicly, thereafter, filed the present AVIi,J C(l(lA N,) I ol 2004 suit, rvhicl s not maintainable. According\', 1:ra5-ed for dismissal c i the suit Issue-s. E1t-i- kince and findings of the trial C,:urt:
-ial
7. Basing on the above pleadings;, the t Court has fr arrLct t-he follorving issues:
1. \\' re her the plaintiff is entitled for declaratiorr as pr .1':d for?
) \[I er:her thc plaintiff is entitled 1or l-e:c'verr of vil :ant possession of suit ProPertY?
3 \\r re [h,:r the plaintiff is entitled fot corLs e'.tuentiaL rn lncl-ion as prayed for?
4.W Lether there is no cause of action?
5. Tr 'q hzrt relieP B. I-)uring triaL, on behalf of the p[a Lntiff, her
husban i were marked. No oral and do::untentary docurnen,, evidenct: 'ri s adduced on trehalf of th3 def 31 da rt and accordingJ ,,, defendant's evidence was clos ed 9. ()n careful appreciation ol the orzLi and document irr' eviden(le available on recorC, ttrt: trial Court has irnssr rr:d issue No. 1 in favour of thrl plai rr iff eoldtng : -:_ t_ Page I of 22 AVR,.I CCCA No 1 of 2OO4 that she is entitled for declaration of title as owner of the suit schedule property. Similarly, issue Nos.2 & 3 were answered in favour of the plaintiff holding that she is entitied for recovery of possession of suit schedule property and for consequential injunction. While answering issue No.4, the trial Court has held that there is cause of action for the plaintiff to file the suit. Finally, issue No.5 was answered declaring the plaintiff as absolute owner of suit schedule propert5z and entitled for recovery of its vacant possession and thereafter the defendant was restrained from causing any interference with her possession. The defendant was further directed to deliver the vacant possession of suit schedule property within three months from the date of judgment, otherwise she is entitled for the said relief lor delivery o[ possession. 10. Heard the learned counsel for the appellant/ defendant and the respondent/plaintiff. The detailed submissions made on either side have received due consideration of this Court. AVIi,J C l(l\ Nc 1 ot 200.1 1t. ln the light of the rival contentiorls ld rnaterial a. available r)l) :record, the following points worrl(l arise for considcr:r i(,n i) tVhether the respondent/ plai rtilT i s ent itled lbr declaration of title, recoverlr of por,ses,sion irnd consequential injunction irs prz vt:d Ibr? ii) \Vhether the judgment and decree rrrrpu;1ned is sustainable? Point Nos i!) and tl lt'. . "(lince both the point Nos. (i) rrncl ( i) ar,: inter- relat(rd, f< : the sake of convenience and brev 1r,', t 1ey are answered qether as under: . o 1 3 , l:'or the sal hereinaltr: referred to as "plaintiff and dele edzrnt" as arra-v- ed in the originzrl suit 14. 'Ihe plaintiff has filed a comp -ehensi.re r;uit for declaratic,: r of title, recovery of possi€ s,:iior. and consequ e r :irrl injunction in respect of t he srlu . sc'hedule propert] . iJ: rdispr.rteclly, both the parties rre cl ri nirLg their _ ... ..r--::,: I: :) PaEe 70 ol 22 AVR,J CCCA No. I of 2OO4 :. title from Ahmedi Tayyaba Sultana, who conveyed the '. property to Smt. Razia Begum. The plaintiff has claimed that Smt. Razia Begum has entered into an agreement of sale for purchase of suit schedule property from Ahmedi Tayyaba Sultana, who got it in a compromise decree in O.A.No.BO of l97O and when she failed to execute the registered sale deed, Smt. Razia Begum has filed the suit in O.S.No.1233 of 1987 on the hle of the learned V Junior Civil Judge, City Civil Court, Hyderabad, for specifrc performance and obtained the decree and sale deed was executed by the Court in favour of Smt. Razia Begum, possession was also delivered on 16.12.1994. Thereafter, Smt. Razia Begum has executed a sale deed dated 24.01 .1995 in favour of the plaintiff and delivered the vacant possession. 15. Whereas, the defendant has admitted in the written statement that the property with door Nos.16-2- 867/8 was originally owned by Ahmedi Tayyaba Sultana, who had entered into agreement with Smt. Razia Begum who sold the same to the defendant on 13.O7.1998 and Page 7l of 22 A\ R,.I (l(l(1,! No I ol 2004 er.er since tlre date of purchase he is in [,osses sion. Thus, both the rlrrintiff and defendant have been cla tming suit schedule rloperty from Smt. Razia Begum :r r vendrr-.\i :-nedi Tayl.aba Sultana only 16,. I)uring trial, on behalf of the plaintill s;he has exariinei. h,:r husband as PW. 1. In his evide :r.e. trxs.A. 1 to A.r5 doc.r1nents are marked. Ex.A. 1 is Lhe reqirrtered salc deed alorr lvilh t1-re plan. It rs dated 24.C1.19tr:; e: 250 s;quar :'zards situated at Khaisar Bage u.as clelivered Page LZ of 22 AVR,J CCCA No.I of 2004 17. On a conjoint reading of Exs.A. 1 & A.2 and the boundaries of suit schedule property as per the plaint schedule, the boundaries that are mentioned in Exs.A. I & the suit schedule property as mentioned in the plaint are one and the same. Be it stated that in Ex.A.2 municipal number of the property is not mentioned, the description is only mentioned as plot No.5, but in Ex.A.4 certified copy of judgment ald decree in O.S.No.S176 of 1998, a suit is Iiled by the plaintiff herein against Mr. Mujahid Ali Ahmed, the suit schedule property is described with municipal number as mentioned in the present suit with the same boundaries. Ex.A.S is the complaint dated 06.08.1999 given by the plaintiff to the MCH alleging the encroachment and construction by the def€ndant in the suit schedule property. Whereas, Ex.A.6 is the certified copy of the sale deed No. 1943 of 1994 executed by the learned IX Assistant Judge, City Civil Court, Hyderabad, pursuant to the judgment and decree in O.S. No.1233 of 1987 in E.P.No.8l of 1992. The plaintiffs father has got this suit schedule property through Ex.A.6 pursuant to the judgment and decree in O.S.No.1233 of 1987. Thereafter, possession was AVlt,.I CC:i\No.tof200.+ , her r.rnder Ex.A.2 under th: cover of delive re pancharLar rl,1, then she has sold i t to ttLe pJa ir tiff under Ex.A. 1. 18. PW. 1, who is the husband of plaintiff, is subjectecl o lengthy cross-cxamination, tut r.lctlLrn51 worth mentionin .; is elicited in his entire cros s-exa tr ination to discrr:di, :ris version in the chief extmirttLtion or to disbclieve l.hc plaintiff's case. This witnes,s heLs r;tat:d that since the rlrrintiff is not an educated lady and lLesjtant to give evicle: rc:, he being her husband is givinSl e"idence on her beleir f. In further cross-examination a'W.1 has admi ttetl hrrt under Ex.A.2 the suit schedule l.,roperty is described ari plot No.5, whereas in Ex.A.1, ir is r eferred witl-r refi:rr n;e to municipal number and txplairr:d that the srrit lule property was identihed 'vith tlre llelp of sche: peISC,nS r( sr.ling adjacent to the suit sche lule pr:operty and also explzr rr:d the boundaries. A suggestion wits also given to PW. rr-d he admitted that the bouncl€ ries of the proport)'. s mentioned in Exs.A. 1 & A.2 ancl s,:hedule of propertf i r the plaint are one and the same. l-Ie further explzrine d l.hat he had access to the suit r;chedule property 7- Pa6e 14 of 22 CCCA No. I of 2004 from the land of the owner and there is no access from any other side. 19. Be it stated that though the defendant has claimed the suit schedule property from Smt. Razia Begum alleging that he has obtained a sale deed on 13.07.1998, he did not choose to frle the same. He is withholding the best available evidence with him in support of the claim without explaining any reason and no such suggestion is also given to PW.l stating that the defendant has obtained the sale deed dated 13.07.1998 in respect of the suit schedule property from Smt. Razia Begum. 20. The sequence of the events discussed above, would establish that originally Smt. Ahmedi Tayyaba Sultana has got the suit property under a compromise decree in O.A.No.S0 of 1970 and entered into an agreement of sale with Smt. Razia Begum, but failed to execute the sale deed. As such Smt. Razia Begum has filed O.S.No. 1233 of 1987 on the file of the learned V Junior Civil Judge, City Civii Court, Hyderabad, obtained the decree for specihc performance. Pursuant to decree a sale Pag.. 15 of 22 (lC:-,' N.r i oi 2tr(l I cleect lLs itt tl)e original of Flx.A.6 was exec.rtecl )\'th3 collrt t\ in E.l).No c1' 7992 on 24.09.1991i. Ther,:aftcr l:)oslicssion w:rs lel:t'r r-ccl in lhvour of Stnt. Razia Begtrtn is l)er thc r pa nc lr nirrr il urrder Ex.A.2 on 16.12.7994. Ther e:rfter, Srnt. RzLzia Br1_t u t has sold thc suit property in le vr)r-rr of t he I)lain r rff ol .14.01.19()5. A slrggestion was givoll lo I'W.1 to the tlrat the boundaries as menliol.lec :n Ex.A.6, c'ffe:1 trx.A.2. tr> ,4.1 and rn the schedule of procertlr alc cnc and thc s arrLe lrrd he hzrs acccl;ted it. Thcrt fore, 1- *'. bcing hrtsb:rnr1 rl plaintiiT had personal knor',ledgt, rf subject mzlttr:r itr :lispute and his explanation that sirLc,: his wit'e- plaintiff trneducatt:d lady, he was looking afle' the court i-" .rffairs r rs shc u,as hesitant to enter into t:le .\ritness zirL bor 1re rsrr ;rliving evidencc is quite convin cin5; : trL d r:liablc' 2l. 1'hough lirr the first time undr:r E:< r\ I the s"rit s<'herlule rr )perty is descrilled as with n:ut-ri<:i:i'l number, the lror-tnc i:.l ies of suit schcclule property right flom Ex.A.6 to trx.A.2 .nd fron'r there to Ifx.A. 1 and in the sr-rit sr:hedule prop(rrt\/ i:c one and the szrtne. Thus, with tlrr' ,'vicence of PW. I ar-rrl t 1e contents of Iixs.A. I to A.6, th: plaintiff is ,lr.;.tx CCCA No.l of 2004 able to establish that her vendor was having valid title in respect of the suit schedule property. Possession was delivered to her vendor pursuant to Ex.A.6 under Ex.A.2, in turn she has executed the sale deed in favour of the plaintiff under Ex.A. 1 . Whereas, the defendant hawing claimed that Smt. Razia Begum has executed the sa,le deed on 13.O7.1998 in his favour, did not choose to frle any such sale deed and did not choose to enter into the witness box to speak the contents of written statement filed by him on oath, thereby avoided cross-examination by the other side. Even otherwise, Bx.A. I sale deed executed in favour of the plaintiff by Smt. Razia Begum is dated 24.01.1995, whereas the defendant is cldiming the property through the sa-le deed said to have been executed in his favour on 13.07.1998. 22. The learned counsel for the appellant/ defendant strenuously contends that in a suit for declaration of title, the burden is always on the plaintiff to establish the cause of action and identity of the suit schedule property. In the case on hand, there is no cause of action and schedule of property is not identified Page 77 ol 22 I.\/R,J ( l(:rlA ]\o 1 of:2004 prol)erlv. 'l]re trial Court by ignoring all rh,:se aspects simrll' cl 'c -cr:d thc suit of the plaintiff c,nllz on the ground that thc ,lcfendant did not enter into the rvit_:ress box to speak th ()olte1-rts of written statement on oa.r h, which is not corr,. :t [t is th e responsibility of th e pll n ,iff to prove ther. cirs,, , weal the ;rrirrr: ples laid in the following decisic,ns: i) Sait Tarajee Khimchand ond. cttrcr:; Vs. Yelamarti Satgam and otherst; ii) M/s. Sanjag Cotton Co., Partner:;h.ip Firm .Akola Vs. M/s. Omprakash Shioprc,.k,ash,. and anotheP. iii) Shakir llussain Vs. Administrafi>r. Atagar .Palika, Mand saur3; 23. .Der contra, the learned counsrel lbr the responcle r.t,'ptaintiff contends that the plaint fi rs able to prove LreI r:itle and delivery of possessitn in l.rer favour, er-rcrrrachr tc nt caused by the defendant in re s :rec _ of the rAIR tqz: Ii 1865 '1tooltl o s(, I r)1at AVR,J CCCA No. I of 2004 suit schedule property and the trial Court has rightly appreciated the available evidence on record. The defendant having pleaded that he has purchased the suit schedule property on 13.07.1998 did not choose to examine any witness, not filed by any document in support of his claim. The plaintiff is able to discharge the initial burden and able to establish her title and her entitlement for recovery of possession ahd for consequential injunction. The impugned judgment and decree does not warrant any interference by this Court, accordingly relied on the principles laid in the following decisions: ll Gopol Krishnaii Ketkdt Vs' Mahomed Haii Lati.f and other#; ii) Niranjan Kaur Vs. New Delhi Hotels Ltd., and otherss; iii) Vidhgadhar Vs. Manikrao and otherd,. 24. In Scit Tarajee Khinchandb case (lst supra), the Honble Supreme Court ih para-15 while dealing with Pago 19 of 22 A"'Ii.J (.( AN,, lr)i:r'loq Section (i i rf the In - amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre. 2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue. PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant. 26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr) 2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \ \ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,. PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) & Nos. (ii) accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff. 28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr. As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed. SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any) 2. One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC] 3. One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC] 4. Two CD Copies VH plp \ I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S 1i'-,!^' JUDGMENT 1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\: t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s' I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between: Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o. 16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent. This Court Doth Order and Decree as follows: 1. That the appeal suit be and hereby is dismissed with costs; and 2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of 1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety. MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,; Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt) Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY// L JI CTION OFFICER To, . 2. fwo CD Copies \ / HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \ v9
i were marked. No oral and do::untentary docurnen,, evidenct: 'ri s adduced on trehalf of th3 def 31 da rt and accordingJ ,,, defendant's evidence was clos ed
9. ()n careful appreciation ol the orzLi and document irr' eviden(le available on recorC, ttrt: trial Court has irnssr rr:d issue No. 1 in favour of thrl plai rr iff eoldtng : -:_ t_ Page I of 22 AVR,.I CCCA No 1 of 2OO4 that she is entitled for declaration of title as owner of the suit schedule property. Similarly, issue Nos.2 & 3 were answered in favour of the plaintiff holding that she is entitied for recovery of possession of suit schedule property and for consequential injunction. While answering issue No.4, the trial Court has held that there is cause of action for the plaintiff to file the suit. Finally, issue No.5 was answered declaring the plaintiff as absolute owner of suit schedule propert5z and entitled for recovery of its vacant possession and thereafter the defendant was restrained from causing any interference with her possession. The defendant was further directed to deliver the vacant possession of suit schedule property within three months from the date of judgment, otherwise she is entitled for the said relief lor delivery o[ possession.
10. Heard the learned counsel for the appellant/
defendant and the respondent/plaintiff. The detailed submissions made on either side have received due consideration of this Court.
AVIi,J C l(l\ Nc 1 ot 200.1
1t. ln the light of the rival contentiorls ld rnaterial a.
available r)l) :record, the following points worrl(l arise for considcr:r i(,n i) tVhether the respondent/ plai rtilT i s ent itled lbr declaration of title, recoverlr of por,ses,sion irnd consequential injunction irs prz vt:d Ibr?
ii) \Vhether the judgment and decree rrrrpu;1ned is sustainable?
Point Nos i!) and tl lt'. . "(lince both the point Nos. (i) rrncl ( i) ar,: inter-
relat(rd, f< : the sake of convenience and brev 1r,', t 1ey are answered qether as under:
. o
1 3 , l:'or the sal hereinaltr: referred to as "plaintiff and dele edzrnt" as arra-v- ed in the originzrl suit 14. 'Ihe plaintiff has filed a comp -ehensi.re r;uit for declaratic,: r of title, recovery of possi€ s,:iior. and consequ e r :irrl injunction in respect of t he srlu . sc'hedule propert] . iJ: rdispr.rteclly, both the parties rre cl ri nirLg their _ ... ..r--::,: I: :) PaEe 70 ol 22 AVR,J CCCA No. I of 2OO4 :. title from Ahmedi Tayyaba Sultana, who conveyed the '. property to Smt. Razia Begum. The plaintiff has claimed that Smt. Razia Begum has entered into an agreement of sale for purchase of suit schedule property from Ahmedi Tayyaba Sultana, who got it in a compromise decree in O.A.No.BO of l97O and when she failed to execute the registered sale deed, Smt. Razia Begum has filed the suit in O.S.No.1233 of 1987 on the hle of the learned V Junior Civil Judge, City Civil Court, Hyderabad, for specifrc performance and obtained the decree and sale deed was executed by the Court in favour of Smt. Razia Begum, possession was also delivered on 16.12.1994. Thereafter, Smt. Razia Begum has executed a sale deed dated 24.01 .1995 in favour of the plaintiff and delivered the vacant possession. 15. Whereas, the defendant has admitted in the written statement that the property with door Nos.16-2- 867/8 was originally owned by Ahmedi Tayyaba Sultana, who had entered into agreement with Smt. Razia Begum who sold the same to the defendant on 13.O7.1998 and Page 7l of 22 A\ R,.I (l(l(1,! No I ol 2004 er.er since tlre date of purchase he is in [,osses sion. Thus, both the rlrrintiff and defendant have been cla tming suit schedule rloperty from Smt. Razia Begum :r r vendrr-.\i :-nedi Tayl.aba Sultana only 16,. I)uring trial, on behalf of the plaintill s;he has exariinei. h,:r husband as PW. 1. In his evide :r.e. trxs.A. 1 to A.r5 doc.r1nents are marked. Ex.A. 1 is Lhe reqirrtered salc deed alorr lvilh t1-re plan. It rs dated 24.C1.19tr:; e: 250 s;quar :'zards situated at Khaisar Bage u.as clelivered Page LZ of 22 AVR,J CCCA No.I of 2004 17. On a conjoint reading of Exs.A. 1 & A.2 and the boundaries of suit schedule property as per the plaint schedule, the boundaries that are mentioned in Exs.A. I & the suit schedule property as mentioned in the plaint are one and the same. Be it stated that in Ex.A.2 municipal number of the property is not mentioned, the description is only mentioned as plot No.5, but in Ex.A.4 certified copy of judgment ald decree in O.S.No.S176 of 1998, a suit is Iiled by the plaintiff herein against Mr. Mujahid Ali Ahmed, the suit schedule property is described with municipal number as mentioned in the present suit with the same boundaries. Ex.A.S is the complaint dated 06.08.1999 given by the plaintiff to the MCH alleging the encroachment and construction by the def€ndant in the suit schedule property. Whereas, Ex.A.6 is the certified copy of the sale deed No. 1943 of 1994 executed by the learned IX Assistant Judge, City Civil Court, Hyderabad, pursuant to the judgment and decree in O.S. No.1233 of 1987 in E.P.No.8l of 1992. The plaintiffs father has got this suit schedule property through Ex.A.6 pursuant to the judgment and decree in O.S.No.1233 of 1987. Thereafter, possession was AVlt,.I CC:i\No.tof200.+ , her r.rnder Ex.A.2 under th: cover of delive re pancharLar rl,1, then she has sold i t to ttLe pJa ir tiff under Ex.A. 1. 18. PW. 1, who is the husband of plaintiff, is subjectecl o lengthy cross-cxamination, tut r.lctlLrn51 worth mentionin .; is elicited in his entire cros s-exa tr ination to discrr:di, :ris version in the chief extmirttLtion or to disbclieve l.hc plaintiff's case. This witnes,s heLs r;tat:d that since the rlrrintiff is not an educated lady and lLesjtant to give evicle: rc:, he being her husband is givinSl e"idence on her beleir f. In further cross-examination a'W.1 has admi ttetl hrrt under Ex.A.2 the suit schedule l.,roperty is described ari plot No.5, whereas in Ex.A.1, ir is r eferred witl-r refi:rr n;e to municipal number and txplairr:d that the srrit lule property was identihed 'vith tlre llelp of sche: peISC,nS r( sr.ling adjacent to the suit sche lule pr:operty and also explzr rr:d the boundaries. A suggestion wits also given to PW. rr-d he admitted that the bouncl€ ries of the proport)'. s mentioned in Exs.A. 1 & A.2 ancl s,:hedule of propertf i r the plaint are one and the same. l-Ie further explzrine d l.hat he had access to the suit r;chedule property 7- Pa6e 14 of 22 CCCA No. I of 2004 from the land of the owner and there is no access from any other side. 19. Be it stated that though the defendant has claimed the suit schedule property from Smt. Razia Begum alleging that he has obtained a sale deed on 13.07.1998, he did not choose to frle the same. He is withholding the best available evidence with him in support of the claim without explaining any reason and no such suggestion is also given to PW.l stating that the defendant has obtained the sale deed dated 13.07.1998 in respect of the suit schedule property from Smt. Razia Begum. 20. The sequence of the events discussed above, would establish that originally Smt. Ahmedi Tayyaba Sultana has got the suit property under a compromise decree in O.A.No.S0 of 1970 and entered into an agreement of sale with Smt. Razia Begum, but failed to execute the sale deed. As such Smt. Razia Begum has filed O.S.No. 1233 of 1987 on the file of the learned V Junior Civil Judge, City Civii Court, Hyderabad, obtained the decree for specihc performance. Pursuant to decree a sale Pag.. 15 of 22 (lC:-,' N.r i oi 2tr(l I cleect lLs itt tl)e original of Flx.A.6 was exec.rtecl )\'th3 collrt t\ in E.l).No c1' 7992 on 24.09.1991i. Ther,:aftcr l:)oslicssion w:rs lel:t'r r-ccl in lhvour of Stnt. Razia Begtrtn is l)er thc r pa nc lr nirrr il urrder Ex.A.2 on 16.12.7994. Ther e:rfter, Srnt. RzLzia Br1_t u t has sold thc suit property in le vr)r-rr of t he I)lain r rff ol .14.01.19()5. A slrggestion was givoll lo I'W.1 to the tlrat the boundaries as menliol.lec :n Ex.A.6, c'ffe:1 trx.A.2. tr> ,4.1 and rn the schedule of procertlr alc cnc and thc s arrLe lrrd he hzrs acccl;ted it. Thcrt fore, 1- *'. bcing hrtsb:rnr1 rl plaintiiT had personal knor',ledgt, rf subject mzlttr:r itr :lispute and his explanation that sirLc,: his wit'e- plaintiff trneducatt:d lady, he was looking afle' the court i-" .rffairs r rs shc u,as hesitant to enter into t:le .\ritness zirL bor 1re rsrr ;rliving evidencc is quite convin cin5; : trL d r:liablc' 2l. 1'hough lirr the first time undr:r E:< r\ I the s"rit s<'herlule rr )perty is descrilled as with n:ut-ri<:i:i'l number, the lror-tnc i:.l ies of suit schcclule property right flom Ex.A.6 to trx.A.2 .nd fron'r there to Ifx.A. 1 and in the sr-rit sr:hedule prop(rrt\/ i:c one and the szrtne. Thus, with tlrr' ,'vicence of PW. I ar-rrl t 1e contents of Iixs.A. I to A.6, th: plaintiff is ,lr.;.tx CCCA No.l of 2004 able to establish that her vendor was having valid title in respect of the suit schedule property. Possession was delivered to her vendor pursuant to Ex.A.6 under Ex.A.2, in turn she has executed the sale deed in favour of the plaintiff under Ex.A. 1 . Whereas, the defendant hawing claimed that Smt. Razia Begum has executed the sa,le deed on 13.O7.1998 in his favour, did not choose to frle any such sale deed and did not choose to enter into the witness box to speak the contents of written statement filed by him on oath, thereby avoided cross-examination by the other side. Even otherwise, Bx.A. I sale deed executed in favour of the plaintiff by Smt. Razia Begum is dated 24.01.1995, whereas the defendant is cldiming the property through the sa-le deed said to have been executed in his favour on 13.07.1998. 22. The learned counsel for the appellant/ defendant strenuously contends that in a suit for declaration of title, the burden is always on the plaintiff to establish the cause of action and identity of the suit schedule property. In the case on hand, there is no cause of action and schedule of property is not identified Page 77 ol 22 I.\/R,J ( l(:rlA ]\o 1 of:2004 prol)erlv. 'l]re trial Court by ignoring all rh,:se aspects simrll' cl 'c -cr:d thc suit of the plaintiff c,nllz on the ground that thc ,lcfendant did not enter into the rvit_:ress box to speak th ()olte1-rts of written statement on oa.r h, which is not corr,. :t [t is th e responsibility of th e pll n ,iff to prove ther. cirs,, , weal the ;rrirrr: ples laid in the following decisic,ns: i) Sait Tarajee Khimchand ond. cttrcr:; Vs. Yelamarti Satgam and otherst; ii) M/s. Sanjag Cotton Co., Partner:;h.ip Firm .Akola Vs. M/s. Omprakash Shioprc,.k,ash,. and anotheP. iii) Shakir llussain Vs. Administrafi>r. Atagar .Palika, Mand saur3; 23. .Der contra, the learned counsrel lbr the responcle r.t,'ptaintiff contends that the plaint fi rs able to prove LreI r:itle and delivery of possessitn in l.rer favour, er-rcrrrachr tc nt caused by the defendant in re s :rec _ of the rAIR tqz: Ii 1865 '1tooltl o s(, I r)1at AVR,J CCCA No. I of 2004 suit schedule property and the trial Court has rightly appreciated the available evidence on record. The defendant having pleaded that he has purchased the suit schedule property on 13.07.1998 did not choose to examine any witness, not filed by any document in support of his claim. The plaintiff is able to discharge the initial burden and able to establish her title and her entitlement for recovery of possession ahd for consequential injunction. The impugned judgment and decree does not warrant any interference by this Court, accordingly relied on the principles laid in the following decisions: ll Gopol Krishnaii Ketkdt Vs' Mahomed Haii Lati.f and other#; ii) Niranjan Kaur Vs. New Delhi Hotels Ltd., and otherss; iii) Vidhgadhar Vs. Manikrao and otherd,. 24. In Scit Tarajee Khinchandb case (lst supra), the Honble Supreme Court ih para-15 while dealing with Pago 19 of 22 A"'Ii.J (.( AN,, lr)i:r'loq Section (i i rf the In - amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre. 2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue. PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant. 26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr) 2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \ \ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,. PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) & Nos. (ii) accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff. 28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr. As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed. SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any) 2. One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC] 3. One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC] 4. Two CD Copies VH plp \ I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S 1i'-,!^' JUDGMENT 1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\: t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s' I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between: Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o. 16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent. This Court Doth Order and Decree as follows: 1. That the appeal suit be and hereby is dismissed with costs; and 2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of 1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety. MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,; Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt) Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY// L JI CTION OFFICER To, . 2. fwo CD Copies \ / HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \ v9
hereinaltr: referred to as "plaintiff and dele edzrnt" as arra-v- ed in the originzrl suit
14. 'Ihe plaintiff has filed a comp -ehensi.re r;uit for declaratic,: r of title, recovery of possi€ s,:iior. and consequ e r :irrl injunction in respect of t he srlu . sc'hedule propert] . iJ: rdispr.rteclly, both the parties rre cl ri nirLg their _ ... ..r--::,: I: :)
PaEe 70 ol 22 AVR,J CCCA No. I of 2OO4 :.
title from Ahmedi Tayyaba Sultana, who conveyed the '.
property to Smt. Razia Begum. The plaintiff has claimed that Smt. Razia Begum has entered into an agreement of sale for purchase of suit schedule property from Ahmedi Tayyaba Sultana, who got it in a compromise decree in O.A.No.BO of l97O and when she failed to execute the registered sale deed, Smt. Razia Begum has filed the suit in O.S.No.1233 of 1987 on the hle of the learned V Junior Civil Judge, City Civil Court, Hyderabad, for specifrc performance and obtained the decree and sale deed was executed by the Court in favour of Smt. Razia Begum, possession was also delivered on 16.12.1994. Thereafter, Smt. Razia Begum has executed a sale deed dated 24.01 .1995 in favour of the plaintiff and delivered the vacant possession.
15. Whereas, the defendant has admitted in the written statement that the property with door Nos.16-2- 867/8 was originally owned by Ahmedi Tayyaba Sultana, who had entered into agreement with Smt. Razia Begum who sold the same to the defendant on 13.O7.1998 and Page 7l of 22 A\ R,.I (l(l(1,! No I ol 2004 er.er since tlre date of purchase he is in [,osses sion. Thus, both the rlrrintiff and defendant have been cla tming suit schedule rloperty from Smt. Razia Begum :r r vendrr-.\i :-nedi Tayl.aba Sultana only
16,. I)uring trial, on behalf of the plaintill s;he has exariinei. h,:r husband as PW. 1. In his evide :r.e. trxs.A.
1
to A.r5 doc.r1nents are marked. Ex.A. 1 is Lhe reqirrtered salc deed alorr lvilh t1-re plan. It rs dated 24.C1.19tr:; e: 250 s;quar :'zards situated at Khaisar Bage u.as clelivered Page LZ of 22 AVR,J CCCA No.I of 2004 17. On a conjoint reading of Exs.A. 1 & A.2 and the boundaries of suit schedule property as per the plaint schedule, the boundaries that are mentioned in Exs.A. I & the suit schedule property as mentioned in the plaint are one and the same. Be it stated that in Ex.A.2 municipal number of the property is not mentioned, the description is only mentioned as plot No.5, but in Ex.A.4 certified copy of judgment ald decree in O.S.No.S176 of 1998, a suit is Iiled by the plaintiff herein against Mr. Mujahid Ali Ahmed, the suit schedule property is described with municipal number as mentioned in the present suit with the same boundaries. Ex.A.S is the complaint dated 06.08.1999 given by the plaintiff to the MCH alleging the encroachment and construction by the def€ndant in the suit schedule property. Whereas, Ex.A.6 is the certified copy of the sale deed No. 1943 of 1994 executed by the learned IX Assistant Judge, City Civil Court, Hyderabad, pursuant to the judgment and decree in O.S. No.1233 of 1987 in E.P.No.8l of 1992. The plaintiffs father has got this suit schedule property through Ex.A.6 pursuant to the judgment and decree in O.S.No.1233 of 1987. Thereafter, possession was AVlt,.I CC:i\No.tof200.+ , her r.rnder Ex.A.2 under th: cover of delive re pancharLar rl,1, then she has sold i t to ttLe pJa ir tiff under Ex.A. 1. 18. PW. 1, who is the husband of plaintiff, is subjectecl o lengthy cross-cxamination, tut r.lctlLrn51 worth mentionin .; is elicited in his entire cros s-exa tr ination to discrr:di, :ris version in the chief extmirttLtion or to disbclieve l.hc plaintiff's case. This witnes,s heLs r;tat:d that since the rlrrintiff is not an educated lady and lLesjtant to give evicle: rc:, he being her husband is givinSl e"idence on her beleir f. In further cross-examination a'W.1 has admi ttetl hrrt under Ex.A.2 the suit schedule l.,roperty is described ari plot No.5, whereas in Ex.A.1, ir is r eferred witl-r refi:rr n;e to municipal number and txplairr:d that the srrit lule property was identihed 'vith tlre llelp of sche: peISC,nS r( sr.ling adjacent to the suit sche lule pr:operty and also explzr rr:d the boundaries. A suggestion wits also given to PW. rr-d he admitted that the bouncl€ ries of the proport)'. s mentioned in Exs.A. 1 & A.2 ancl s,:hedule of propertf i r the plaint are one and the same. l-Ie further explzrine d l.hat he had access to the suit r;chedule property 7- Pa6e 14 of 22 CCCA No. I of 2004 from the land of the owner and there is no access from any other side. 19. Be it stated that though the defendant has claimed the suit schedule property from Smt. Razia Begum alleging that he has obtained a sale deed on 13.07.1998, he did not choose to frle the same. He is withholding the best available evidence with him in support of the claim without explaining any reason and no such suggestion is also given to PW.l stating that the defendant has obtained the sale deed dated 13.07.1998 in respect of the suit schedule property from Smt. Razia Begum. 20. The sequence of the events discussed above, would establish that originally Smt. Ahmedi Tayyaba Sultana has got the suit property under a compromise decree in O.A.No.S0 of 1970 and entered into an agreement of sale with Smt. Razia Begum, but failed to execute the sale deed. As such Smt. Razia Begum has filed O.S.No. 1233 of 1987 on the file of the learned V Junior Civil Judge, City Civii Court, Hyderabad, obtained the decree for specihc performance. Pursuant to decree a sale Pag.. 15 of 22 (lC:-,' N.r i oi 2tr(l I cleect lLs itt tl)e original of Flx.A.6 was exec.rtecl )\'th3 collrt t\ in E.l).No c1' 7992 on 24.09.1991i. Ther,:aftcr l:)oslicssion w:rs lel:t'r r-ccl in lhvour of Stnt. Razia Begtrtn is l)er thc r pa nc lr nirrr il urrder Ex.A.2 on 16.12.7994. Ther e:rfter, Srnt. RzLzia Br1_t u t has sold thc suit property in le vr)r-rr of t he I)lain r rff ol .14.01.19()5. A slrggestion was givoll lo I'W.1 to the tlrat the boundaries as menliol.lec :n Ex.A.6, c'ffe:1 trx.A.2. tr> ,4.1 and rn the schedule of procertlr alc cnc and thc s arrLe lrrd he hzrs acccl;ted it. Thcrt fore, 1- *'. bcing hrtsb:rnr1 rl plaintiiT had personal knor',ledgt, rf subject mzlttr:r itr :lispute and his explanation that sirLc,: his wit'e- plaintiff trneducatt:d lady, he was looking afle' the court i-" .rffairs r rs shc u,as hesitant to enter into t:le .\ritness zirL bor 1re rsrr ;rliving evidencc is quite convin cin5; : trL d r:liablc' 2l. 1'hough lirr the first time undr:r E:< r\ I the s"rit s<'herlule rr )perty is descrilled as with n:ut-ri<:i:i'l number, the lror-tnc i:.l ies of suit schcclule property right flom Ex.A.6 to trx.A.2 .nd fron'r there to Ifx.A. 1 and in the sr-rit sr:hedule prop(rrt\/ i:c one and the szrtne. Thus, with tlrr' ,'vicence of PW. I ar-rrl t 1e contents of Iixs.A. I to A.6, th: plaintiff is ,lr.;.tx CCCA No.l of 2004 able to establish that her vendor was having valid title in respect of the suit schedule property. Possession was delivered to her vendor pursuant to Ex.A.6 under Ex.A.2, in turn she has executed the sale deed in favour of the plaintiff under Ex.A. 1 . Whereas, the defendant hawing claimed that Smt. Razia Begum has executed the sa,le deed on 13.O7.1998 in his favour, did not choose to frle any such sale deed and did not choose to enter into the witness box to speak the contents of written statement filed by him on oath, thereby avoided cross-examination by the other side. Even otherwise, Bx.A. I sale deed executed in favour of the plaintiff by Smt. Razia Begum is dated 24.01.1995, whereas the defendant is cldiming the property through the sa-le deed said to have been executed in his favour on 13.07.1998. 22. The learned counsel for the appellant/ defendant strenuously contends that in a suit for declaration of title, the burden is always on the plaintiff to establish the cause of action and identity of the suit schedule property. In the case on hand, there is no cause of action and schedule of property is not identified Page 77 ol 22 I.\/R,J ( l(:rlA ]\o 1 of:2004 prol)erlv. 'l]re trial Court by ignoring all rh,:se aspects simrll' cl 'c -cr:d thc suit of the plaintiff c,nllz on the ground that thc ,lcfendant did not enter into the rvit_:ress box to speak th ()olte1-rts of written statement on oa.r h, which is not corr,. :t [t is th e responsibility of th e pll n ,iff to prove ther. cirs,, , weal the ;rrirrr: ples laid in the following decisic,ns: i) Sait Tarajee Khimchand ond. cttrcr:; Vs. Yelamarti Satgam and otherst; ii) M/s. Sanjag Cotton Co., Partner:;h.ip Firm .Akola Vs. M/s. Omprakash Shioprc,.k,ash,. and anotheP. iii) Shakir llussain Vs. Administrafi>r. Atagar .Palika, Mand saur3; 23. .Der contra, the learned counsrel lbr the responcle r.t,'ptaintiff contends that the plaint fi rs able to prove LreI r:itle and delivery of possessitn in l.rer favour, er-rcrrrachr tc nt caused by the defendant in re s :rec _ of the rAIR tqz: Ii 1865 '1tooltl o s(, I r)1at AVR,J CCCA No. I of 2004 suit schedule property and the trial Court has rightly appreciated the available evidence on record. The defendant having pleaded that he has purchased the suit schedule property on 13.07.1998 did not choose to examine any witness, not filed by any document in support of his claim. The plaintiff is able to discharge the initial burden and able to establish her title and her entitlement for recovery of possession ahd for consequential injunction. The impugned judgment and decree does not warrant any interference by this Court, accordingly relied on the principles laid in the following decisions: ll Gopol Krishnaii Ketkdt Vs' Mahomed Haii Lati.f and other#; ii) Niranjan Kaur Vs. New Delhi Hotels Ltd., and otherss; iii) Vidhgadhar Vs. Manikrao and otherd,. 24. In Scit Tarajee Khinchandb case (lst supra), the Honble Supreme Court ih para-15 while dealing with Pago 19 of 22 A"'Ii.J (.( AN,, lr)i:r'loq Section (i i rf the In - amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre. 2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue. PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant. 26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr) 2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \ \ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,. PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) & Nos. (ii) accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff. 28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr. As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed. SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any) 2. One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC] 3. One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC] 4. Two CD Copies VH plp \ I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S 1i'-,!^' JUDGMENT 1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\: t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s' I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between: Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o. 16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent. This Court Doth Order and Decree as follows: 1. That the appeal suit be and hereby is dismissed with costs; and 2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of 1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety. MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,; Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt) Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY// L JI CTION OFFICER To, . 2. fwo CD Copies \ / HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \ v9
250 s;quar :'zards situated at Khaisar Bage u.as clelivered Page LZ of 22 AVR,J CCCA No.I of 2004
17.
On a conjoint reading of Exs.A. 1 & A.2 and the boundaries of suit schedule property as per the plaint schedule, the boundaries that are mentioned in Exs.A. I & the suit schedule property as mentioned in the plaint are one and the same. Be it stated that in Ex.A.2 municipal number of the property is not mentioned, the description is only mentioned as plot No.5, but in Ex.A.4 certified copy of judgment ald decree in O.S.No.S176 of 1998, a suit is Iiled by the plaintiff herein against Mr. Mujahid Ali Ahmed, the suit schedule property is described with municipal number as mentioned in the present suit with the same boundaries. Ex.A.S is the complaint dated 06.08.1999 given by the plaintiff to the MCH alleging the encroachment and construction by the def€ndant in the suit schedule property. Whereas, Ex.A.6 is the certified copy of the sale deed No. 1943 of 1994 executed by the learned IX Assistant Judge, City Civil Court, Hyderabad, pursuant to the judgment and decree in O.S. No.1233 of 1987 in E.P.No.8l of 1992. The plaintiffs father has got this suit schedule property through Ex.A.6 pursuant to the judgment and decree in O.S.No.1233 of 1987. Thereafter, possession was AVlt,.I CC:i\No.tof200.+ , her r.rnder Ex.A.2 under th: cover of delive re pancharLar rl,1, then she has sold i t to ttLe pJa ir tiff under Ex.A. 1.
18. PW. 1, who is the husband of plaintiff, is subjectecl o lengthy cross-cxamination, tut r.lctlLrn51 worth mentionin .; is elicited in his entire cros s-exa tr ination to discrr:di, :ris version in the chief extmirttLtion or to disbclieve l.hc plaintiff's case. This witnes,s heLs r;tat:d that since the rlrrintiff is not an educated lady and lLesjtant to give evicle: rc:, he being her husband is givinSl e"idence on her beleir f. In further cross-examination a'W.1 has admi ttetl hrrt under Ex.A.2 the suit schedule l.,roperty is described ari plot No.5, whereas in Ex.A.1, ir is r eferred witl-r refi:rr n;e to municipal number and txplairr:d that the srrit lule property was identihed 'vith tlre llelp of sche:
peISC,nS r( sr.ling adjacent to the suit sche lule pr:operty and also explzr rr:d the boundaries. A suggestion wits also given to PW. rr-d he admitted that the bouncl€ ries of the
proport)'. s mentioned in Exs.A. 1 & A.2 ancl s,:hedule of propertf i r the plaint are one and the same. l-Ie further explzrine d l.hat he had access to the suit r;chedule property
7-
Pa6e 14 of 22 CCCA No. I of 2004 from the land of the owner and there is no access from any other side.
19. Be it stated that though the defendant has claimed the suit schedule property from Smt. Razia Begum alleging that he has obtained a sale deed on 13.07.1998, he did not choose to frle the same. He is withholding the best available evidence with him in support of the claim without explaining any reason and no such suggestion is also given to PW.l stating that the defendant has obtained the sale deed dated 13.07.1998 in respect of the suit schedule property from Smt. Razia Begum.
20. The sequence of the events discussed above, would establish that originally Smt. Ahmedi Tayyaba Sultana has got the suit property under a compromise decree in O.A.No.S0 of 1970 and entered into an agreement of sale with Smt. Razia Begum, but failed to execute the sale deed. As such Smt. Razia Begum has filed O.S.No. 1233 of 1987 on the file of the learned V Junior Civil Judge, City Civii Court, Hyderabad, obtained the decree for specihc performance. Pursuant to decree a sale Pag.. 15 of 22 (lC:-,' N.r i oi 2tr(l I cleect lLs itt tl)e original of Flx.A.6 was exec.rtecl )\'th3 collrt t\
in E.l).No c1' 7992 on 24.09.1991i. Ther,:aftcr l:)oslicssion w:rs lel:t'r r-ccl in lhvour of Stnt. Razia Begtrtn is l)er thc r pa nc lr nirrr il urrder Ex.A.2 on 16.12.7994. Ther e:rfter, Srnt. RzLzia Br1_t u t has sold thc suit property in le vr)r-rr of t he I)lain r rff ol .14.01.19()5. A slrggestion was givoll lo I'W.1 to the tlrat the boundaries as menliol.lec :n Ex.A.6, c'ffe:1 trx.A.2. tr> ,4.1 and rn the schedule of procertlr alc cnc and thc s arrLe lrrd he hzrs acccl;ted it. Thcrt fore, 1- *'. bcing hrtsb:rnr1 rl plaintiiT had personal knor',ledgt, rf subject mzlttr:r itr :lispute and his explanation that sirLc,: his wit'e- plaintiff trneducatt:d lady, he was looking afle' the court i-"
.rffairs r rs shc u,as hesitant to enter into t:le .\ritness zirL bor 1re rsrr ;rliving evidencc is quite convin cin5; : trL d r:liablc'
2l. 1'hough lirr the first time undr:r E:< r\ I the s"rit s<'herlule rr )perty is descrilled as with n:ut-ri<:i:i'l number, the lror-tnc i:.l ies of suit schcclule property right flom Ex.A.6 to trx.A.2 .nd fron'r there to Ifx.A. 1 and in the sr-rit sr:hedule prop(rrt\/ i:c one and the szrtne. Thus, with tlrr' ,'vicence of PW. I ar-rrl t 1e contents of Iixs.A. I to A.6, th: plaintiff is ,lr.;.tx CCCA No.l of 2004 able to establish that her vendor was having valid title in respect of the suit schedule property. Possession was delivered to her vendor pursuant to Ex.A.6 under Ex.A.2, in turn she has executed the sale deed in favour of the plaintiff under Ex.A. 1 . Whereas, the defendant hawing claimed that Smt. Razia Begum has executed the sa,le deed on 13.O7.1998 in his favour, did not choose to frle any such sale deed and did not choose to enter into the witness box to speak the contents of written statement filed by him on oath, thereby avoided cross-examination by the other side. Even otherwise, Bx.A. I sale deed executed in favour of the plaintiff by Smt. Razia Begum is dated 24.01.1995, whereas the defendant is cldiming the property through the sa-le deed said to have been executed in his favour on
13.07.1998.
22. The learned counsel for the appellant/
defendant strenuously contends that in a suit for declaration of title, the burden is always on the plaintiff to establish the cause of action and identity of the suit schedule property. In the case on hand, there is no cause of action and schedule of property is not identified Page 77 ol 22 I.\/R,J ( l(:rlA ]\o 1 of:2004
prol)erlv. 'l]re trial Court by ignoring all rh,:se aspects simrll' cl 'c -cr:d thc suit of the plaintiff c,nllz on the ground that thc ,lcfendant did not enter into the rvit_:ress box to speak th ()olte1-rts of written statement on oa.r h, which is not corr,. :t [t is th e responsibility of th e pll n ,iff to prove ther. cirs,, , weal the ;rrirrr: ples laid in the following decisic,ns: i) Sait Tarajee Khimchand ond. cttrcr:; Vs. Yelamarti Satgam and otherst; ii) M/s. Sanjag Cotton Co., Partner:;h.ip Firm .Akola Vs. M/s. Omprakash Shioprc,.k,ash,. and anotheP. iii) Shakir llussain Vs. Administrafi>r. Atagar .Palika, Mand saur3; 23. .Der contra, the learned counsrel lbr the responcle r.t,'ptaintiff contends that the plaint fi rs able to prove LreI r:itle and delivery of possessitn in l.rer favour, er-rcrrrachr tc nt caused by the defendant in re s :rec _ of the rAIR tqz: Ii 1865 '1tooltl o s(, I r)1at AVR,J CCCA No. I of 2004 suit schedule property and the trial Court has rightly appreciated the available evidence on record. The defendant having pleaded that he has purchased the suit schedule property on 13.07.1998 did not choose to examine any witness, not filed by any document in support of his claim. The plaintiff is able to discharge the initial burden and able to establish her title and her entitlement for recovery of possession ahd for consequential injunction. The impugned judgment and decree does not warrant any interference by this Court, accordingly relied on the principles laid in the following decisions: ll Gopol Krishnaii Ketkdt Vs' Mahomed Haii Lati.f and other#; ii) Niranjan Kaur Vs. New Delhi Hotels Ltd., and otherss; iii) Vidhgadhar Vs. Manikrao and otherd,. 24. In Scit Tarajee Khinchandb case (lst supra), the Honble Supreme Court ih para-15 while dealing with Pago 19 of 22 A"'Ii.J (.( AN,, lr)i:r'loq Section (i i rf the In - amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre. 2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue. PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant. 26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr) 2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \ \ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,. PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) & Nos. (ii) accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff. 28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr. As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed. SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any) 2. One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC] 3. One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC] 4. Two CD Copies VH plp \ I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S 1i'-,!^' JUDGMENT 1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\: t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s' I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between: Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o. 16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent. This Court Doth Order and Decree as follows: 1. That the appeal suit be and hereby is dismissed with costs; and 2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of 1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety. MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,; Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt) Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY// L JI CTION OFFICER To, . 2. fwo CD Copies \ / HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \ v9
the ;rrirrr: ples laid in the following decisic,ns:
i) Sait Tarajee Khimchand ond. cttrcr:;
Vs.
Yelamarti Satgam and otherst;
ii) M/s. Sanjag Cotton Co., Partner:;h.ip Firm .Akola Vs. M/s. Omprakash Shioprc,.k,ash,. and anotheP.
iii) Shakir llussain Vs. Administrafi>r.
Atagar .Palika, Mand saur3;
23. .Der contra, the learned counsrel lbr the responcle r.t,'ptaintiff contends that the plaint fi rs able to prove LreI r:itle and delivery of possessitn in l.rer favour, er-rcrrrachr tc nt caused by the defendant in re s :rec _ of the rAIR tqz: Ii 1865
'1tooltl o s(, I r)1at AVR,J CCCA No. I of 2004 suit schedule property and the trial Court has rightly appreciated the available evidence on record. The defendant having pleaded that he has purchased the suit schedule property on 13.07.1998 did not choose to examine any witness, not filed by any document in support of his claim. The plaintiff is able to discharge the initial burden and able to establish her title and her entitlement for recovery of possession ahd for consequential injunction. The impugned judgment and decree does not warrant any interference by this Court, accordingly relied on the principles laid in the following decisions:
ll Gopol Krishnaii Ketkdt Vs' Mahomed Haii Lati.f and other#;
ii) Niranjan Kaur Vs. New Delhi Hotels Ltd., and otherss;
iii) Vidhgadhar Vs. Manikrao and otherd,.
24. In Scit Tarajee Khinchandb case (lst supra), the Honble Supreme Court ih para-15 while dealing with
Pago 19 of 22 A"'Ii.J (.( AN,, lr)i:r'loq
Section (i i rf the In - amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre. 2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue. PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant. 26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr) 2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \ \ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,. PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) & Nos. (ii) accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff. 28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr. As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed. SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any) 2. One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC] 3. One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC] 4. Two CD Copies VH plp \ I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S 1i'-,!^' JUDGMENT 1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\: t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s' I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between: Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o. 16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent. This Court Doth Order and Decree as follows: 1. That the appeal suit be and hereby is dismissed with costs; and 2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of 1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety. MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,; Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt) Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY// L JI CTION OFFICER To, . 2. fwo CD Copies \ / HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \ v9
-
amolln t r an admrssion of its contents and ti I the party s has :r rir,, rt to cross examinc to show thz t the d ccr,.menl is not il g{rn rj ne onr:. I;r Shckir .Elussain's case (3 ,l sultra), the Hon'ble I Lrpreme Court in a suit for (tecLztr.ll ron of title undr:r ii: :t orr 34 o1- the Specific Relief l\ct. 1 rr)3 ,leclined to interk r-r: rvith the findings recorded holdirrg that the plaintifl r a lnot succeed in a suit for rlec[:,rr eL:ion unlcss estaL.>li:rl-, s his titlt: rrnd possession in respecl ,rf tl-rt sanre.
2 ) . ln Gopal Krishnaji Ketkar's c asr: (, I t sr.rpra) . in pzrr:r-5 t)re Hon'bkr Apex Court while dealint' v,ith lhe burclen o lrroof hcld that c\ren if the burden rf prrrof does not lie orr a pzr.rty, tlte Court may draw ar arlverste inferer-rce if' such ir pilrty is u,ithholding important docurrrents in his possess;irr r. whictr clrn throrv the light on the f,ir ts rrt issue.
PaEe ZO of ZZ CCCA No.1 of 2004 In Niranjan l(aur's case (5th supra), a learned single judge of Delhi High Court dealt with the applicability of principle of adverse inference in a suit for recovery of money for withholding the written evidence in their possession which would throw sight upon the facts of the case. In Vid.hgadhar's case (6tt' supra), the Hon'ble Supreme Court dealt with the presumption under Section 114 (g) of the Evidence Act for withholding best available evidence with a party and held that in a case where the defendant having {i1ed the written statement failed to enter into the witness box to speak the contents of the written statement fi1ed by him on oath and withholding the best available evidence with him, al adverse inference has to be drawn against such defendant.
26. In the instant case, as stated in the preceding paragraphs, the defendant is also claiming possession and title of the suit schedule property from Smt. Razia Begum alleging that he has obtained the sale deed on 13.O7.7998, which is much later to the sale deed under Ex.A. 1 dated 24.O7.1995 in favour of the plaintiff. Further, the defendant did not choose to enter into the witness box, not P age 2l ol 22 A,/lt,J a:(:A N( I ol i)O(14 filed atLv s,tch sale deed or erny other piece lf tr,aper 1n suppor'- r f their claim to the suit schedulc prop:rty. As sucl- , s1 r.c3 the rlcfendant having p leadecl ti'-le and possess,irr r over the suit schedule proportv th: ou13h Smt Razra Eie 5 u r-r did not choose to enter inl o the r,,itn ess box to speak h,: contents of rvrittcn statemerrt hlerl bv 1.hem on oath, etcl e.-se infe rence has to be dr ar,r,.n. :.gai ast the defendzLr.L -society under Section 1 14 (g) cf the Evidt:nce Act holding t uLt the case set up by the defe r drrnt is not correct, Ls held by the Hon'b1e Sr prem e Court in Vidhyadh zr's case (6th suprzr)
2',7. 'lherefore, for all the reasons stat3(l al)ove, in my consir e-ecl opinron, the plaintiff with the orirl vidence e of PW. I Lr d the contents of Exs.A. ] :o A.. I is able to establish her title to the suit schedul' prcpr:rt1 under Ex.A.l at d cause of action in respect of s -ri - s:hedule \
\ propertlf i girinst the defendant-society arrd he;' ,,ntitlement for r,:cove 1, of possession, consequential injurrction order. According y I do not hnd any irregular:ty or i:rfirmity in appreciat;.rr-L of the oral and documentary er.irle ecc by the f T t,.
PaBe 22 of 22 AVR,J CCCA No 1 of 2OO4 trial Court. The impugned judgment and decree dated 15.O9.2003 in O.S.No.1075 of 1999 does not warrant any interference by this Court. The point (i) &
Nos. (ii)
accordingly answered against the appellant/ defendant and in favour of the respondent/plaintiff.
28. In the result, the appeal suit is dismissed with costs, conhrming the impugned judgment and decree dated 15.09.2003 in O.S.No.1075 of 7999 on the file of the learned IV Junior Civil Judge, City Civil Court, Hyderabad, in its entiretSr.
As a sequel, miscellaneous appiications, if any pending in this appeal suit, shal1 stand closed.
SdAK.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY//
SECTION OFFICER To, 1. The lVth Senior Civil Judge, City Civil Court, Hyderabad (with records, if any)
2.
One CC to SRl. IMD ABDUL IVUQEETH QURESHI, Advocate [OPUC]
3.
One CC to SRl. DAMODAR MUNDRA, Advocate [OPUC]
4.
Two CD Copies VH plp \
I HIGH COURT DATED: 3110112.023 ....4 l416 {f_ S
1i'-,!^'
JUDGMENT
1l , z /1jl II CCCA.No.1 o12,004 ? J\JI ?UIJ C, \:, t\:
t go /). ir1! '"}1 DISMISSING I HE APPEAL WITH COSTS J v9 -s'
I h IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CITY CIVIL COURT APPEAL NO: 1 OF 2004 Between:
Jamiatul Banaath Society, represented by its Chairman No.874/8, Saidabad, Hyderabad ...APPELLANT/DEFENDANT AND Smt. Seeta Bai, W/o. Omprakash Gupta, Aged 48 years, Occ: Household Rl/o.
16-2-1 46126lBlD, Anand Nagar, Malakpet ..RESPONDENT/PLAINTIFF Appeal under section g6 of Code of Civil Procedure, 1908 aggrieved by the Judgment and decree dated 15-9-2003 passed in O.S. No.1075 of 1999 on the file of the Hon'ble lVth Senior Civil Judge, City Civil Court, Hyderabad This Appeal coming on for hearing and upon perusing the ground of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of SRl. MD. ABDUL MUQEETH QURESH|, Advocate for the Appellant and SRl. DAMODAR MUNDRA, Advocate for the Respondent.
This Court Doth Order and Decree as follows:
1. That the appeal suit be and hereby is dismissed with costs; and
2. That the impugned judgment decree dated 15-09-2023 in O.S.No. 1075 of
1999 on the file of the lV Junior Civil Judge, City Civil Court, Hyderabad be and hereby is confirmed in its entirety.
MEMORANDUM OF COSTS C.C.C.A.No. 1 o't 2004 Rs. P,;
Stamps for Vaka atrar ra 5 - C0 Advocate's fee on Rup ,:e s (Fees Certificate not fil :d) 0-00 Translation and Printin r;harge 0-00 .y Total 5-C0 (Thc rcspondcnt is cntit lerl to costs of lts. 5/- to be paid by th,: Appt lllrnt)
Sd/-K.SRINIVASA RAO .,OIN']' REGISTRAR ,TRUE COPY//
L JI CTION OFFICER To, .
2. fwo CD Copies \
/
HIGH COURT DATED: 31/0112023 DECREE CCCA.No.1 of 2004 DISMISSING I HE APPEAL WITH COSTS \
v9
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