HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CITY CIVIL COURT APPEALNo.91 of 2014

JUDGMENT:

(per Hon’ble Sri Justice Laxmi Narayana Alishetty)

This appeal is filed aggrieved by the judgment and decree dated 02.06.2014 in O.S.No.719 of 2007 on the file of the IIAdditional Chief Judge, City Civil Court, Hyderabad.

2. Heard Sri Mohd. Ajmal Ahmed, learned counsel for the appellant, and Sri Kiran Palakurthi, learned counsel for the respondents.

3. The appellant herein is defendant and respondent No.1 herein is plaintiff in the suit. During the pendency of this appeal, respondent No.1 died; hence, his legal representatives were brought on record as respondent Nos.2 to 4. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.

4. The facts that lead to filing of the present appeal as averred in the plaint are as hereunder:

(i) the plaintiff is the owner and possessor of house property bearing municipal No.12-2-800/441/3, admeasuring 295 square yards situated at Dilshadnagar Colony, RetiBowli, Mehdipatnam, Hyderabad (hereinafter referred to as “suit schedule property”), having acquired the same under registered gift settlement deed document bearing document No.38/2005, dated 05.01.2005, executed by the defendant, who is her brother; that she has been paying the electricity bills, water charges and municipal taxes to the Departments concerned; that defendant, after executing gift settlement deed, shifted his residence to Karimnagar and started living there in the ancestral house bearing No.4-2-91 to 95 at Shastri Road.

(ii) The plaintiff is working as Staff Nurse in Aseer Central Hospital, Abha Kingdom of Saudi Arabia, and she used to visit Hyderabad in the vacations; that after execution of gift settlement deed, she joined her duty at Kingdom of Saudi Arabia and her husband and two sons were in possession of the suit schedule property; that during her visit in the year 2006, the defendant requested her to permit him to stay in the suit schedule property as he was facing difficulty for studies of his children and considering his request and relationship, in good faith, she permitted the defendant to stay in the suit schedule property along with his family and thus, the defendant was in permissive possession of the suit schedule property;

(iii) that as defendant and the plaintiff were in cordial terms, the latter used to take care of his needs and necessities and also used to help him financially; that the defendant has obtained a sum of Rs.40,00,000/- from plaintiff towards interest free hand loan; that despite repeated requests by the plaintiff to repay the amount, the defendant failed to repay the amount and therefore, she was forced to issue legal notice on 20.11.2007 to the defendant asking him to pay the entire amount within a period of one week and also issued another notice to her elder brother for partition of ancestral property situated at Shastri Road, Karimnagar, and she left for Saudi Arabia to join her duty.

(iv) In the absence of the plaintiff, the defendant unilaterally, without consent, intimation and concurrence of plaintiff, cancelled the gift settlement deed on 03.12.2007, vide cancellation deed bearing document No.5287 of 2007. The defendant issued reply to the legal notice issued by the plaintiff on 15.12.2007 without disclosing the cancellation of gift settlement deed; that the husband of plaintiff came to know about the cancellation of gift settlement deed on the intervening night of 16/17.12.2007 when the defendant forcefully driven out him and their minor sons from the suit schedule property and claimed ownership over the suit schedule property and disclosed about the cancellation of gift settlement deed.

(v) That husband of the plaintiff informed the plaintiff about the development of issues and thereafter, he has applied for certified copy of the cancellation deed and in the meanwhile, the plaintiff came back to India on 26.12.2007, on e