THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA CITY CIVIL COURT APPEAL No.69 of 2009

JUDGMENT

This appeal is filed under Section 96 of the Code of Civil Procedure, 1908 by the appellant-plaintiff against the judgment and decree, dated 03.02.2009 passed in O.S.No.82 of 2007 on the file of the III Senior Civil Judge, City Civil Court, Secunderabad, wherein the suit filed by the plaintiff seeking for declaration that the plaintiff is entitled for recovery of possession of the suit schedule property was dismissed.

2. For the sake of convenience, the parties will be referred to as they were arrayed in the suit as plaintiff and the defendant.

3. The plaintiff filed O.S.No.82 of 2007 seeking the following reliefs:-

(i) declaring that the plaintiff has right to recover possession of the suit schedule property;

(ii) directing the defendant and all persons claiming through him to hand over vacant and peaceful possession of the portion of the suit schedule property;

(iii) directing the defendant and all persons claiming through the defendant to pay damages for use and occupation of the suit schedule property at Rs.1,000/- per month from the date of delivery of vacant possession.

4. Brief facts of the case are that originally the father of the plaintiff by name N.Rajaiah was tenant of the property bearing Block No.33/J, which belongs to the Municipal Corporation, Secunderabad Division and his father was allotted the subject property and subsequently, he purchased the same on payment of some amounts and after the death of his father, the said property was transferred in the name of the plaintiff. The defendant, who is the distant relative of the plaintiff’s father, was permitted to occupy the western portion of the suit schedule property and the defendant had been continued to occupy even after the death of his father. In the year, 2005 the defendant had constructed a house of his own and shifted his residence to the said house and inspite of the same, the defendant neither vacated the premises nor handed over the possession to the plaintiff. As such, the plaintiff got issued a legal notice, dated 17.12.2006, requesting the defendant to vacate the premises by revoking the permission given to him to stay in the western portion of the house, for which the defendant also got issued a reply notice disputing the claim of the plaintiff. Therefore, the plaintiff filed the said suit seeking the above reliefs.

5. The sole defendant had filed his written statement contending that the father of the plaintiff and his father are close relatives and that the father of the defendant and father of the plaintiff have jointly approached the Municipal Corporation for allotment of the quarter and as they had cordial relationship, the father of the plaintiff alone had made an application for allotment of the quarter in his name with an understanding that the said quarter would belong to both the families and the father of the defendant was permitted to stay only on the western portion of the quarter. Further, there was an understanding that the father of the defendant shall pay half of the amount, which is payable to the Municipal Corporation, to the father of the plaintiff and the said amount was also paid by him. Even after the death of the father of the plaintiff also the defendant had contributed his share in payment of instalments to the Municipal Corporation. Further, the father of the plaintiff gave a written undertaking that half of the suit schedule property belongs to the father of the defendant and based on the said understanding, a partition wall was also raised separating the quarter into two and as such, the plaintiff has no exclusive right over the suit schedule property and that the plaintiff filed the suit manipulating the records of the Municipal Corporation.

6. Basing on the pleadings of both the parties, the trial Court framed the following issues:-

“1. Whether the plaintiff is entitled to possession of suit schedule property from the defendant?

2.