THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA CITY CIVIL COURT APPEAL No.94 OF 2019

JUDGMENT:

This is an appeal filed by the appellant, being aggrieved by the order, dated 29.01.2019 passed in E.A.No.94 of 2016 in E.P.No.4 of 2016 in O.S.No.2204 of 2012 by the learned VII Senior Civil Judge, City Civil Court at Hyderabad (for short “the trial Court”).

2. The appellant herein is the claim petitioner, while respondent No.1 is the Decree Holder/plaintiff and respondent No.2 is the Judgment Debtor/defendant before the trial Court. For the sake of convenience and clarity, the parties herein are referred to as they were arrayed before the trial Court.

3. To avoid confusion, the pleadings in O.S.No.2204 of 2012 and the result thereon is discussed in the first instance.

4. The case of the plaintiff before the trial Court is that the father of defendant late Ali Ahmed had entered into an agreement of sale in respect of the property bearing old Municipal No.634 (new Municipal No.21-1-1098/9/10/11), situated at Rikabgunj, Pathergatti, Hyderabad, admeasuring 375 Sq.yards under an agreement of sale dated 23.02.2001, having received the entire sale consideration of Rs.8,00,000/- on the said date. It is further submitted by the plaintiff that the father of the defendant late Ali Ahmed has also entered into an agreement of sale on 28.07.2000 in respect of suit schedule property and that he filed a suit in O.S.No.4360 of 1999 on the file of X Additional Chief Judge, City Civil Court, Hyderabad, but due to the sudden demise of Ali Ahmed, the said suit was dismissed as abated. Further, Ali Ahmed had agreed to execute and register the sale deed in favour of the plaintiff as and when demanded and has also agreed to take possession from the tenants who are occupying the suit schedule property and has authorized the plaintiff to initiate the eviction proceedings against the tenants before the Rent Controller and the same was initiated by the plaintiff. Further the plaintiff has submitted that even on his repeated requests to execute and register the sale deed, the defendant has been avoiding the same on one pretext or the other. It is his further case that he has spent huge amounts for initiating legal proceedings against the tenants, inspite of the same the defendant failed to execute the registered sale deed and the eviction proceedings were dismissed for want of jurisdiction. It is his further case that time is not the essence of contract under the agreement of sale entered into between himself and the father of the defendant, therefore, the plaintiff has issued a legal notice on 08.10.2012 asking the defendant to execute the sale deed but he has been avoiding and the notice sent by the plaintiff was returned as addressee left. Therefore, the plaintiff has filed the suit for specific performance.

5. The defendant stood ex parte.

6. The plaintiff got examined himself as PW1 and got marked Exs.A1 to A7, wherein he filed the agreement of sale, valuation certificate, office copy of legal notice, its postal cover and receipt and also certified copy of link documents with English Translation. 7. Since, there was no rebuttal evidence, it was held by the trial Court that the plaintiff could prove his case through the documents submitted by him and hence, the suit was decreed in his favour.

8. In pursuance of the decree, a sale deed was executed through the process of Court in favour of the plaintiff. Following which, E.P.No.04 of 2016 was filed seeking delivery of possession. During the pendency of the E.P, the claim petitioner i.e. Alladin Charities and Zakat Wakf rep. by its Managing Trustee Mr.Habib Alladin, has filed E.A.No.94 of 2016.

9. The averments of claim petitioner in brief are that the suit is filed based on falsely created documents, over the property which is a notified and registered Wakf property belonging to Alladin Charities and Zakat Wakf. It is further averred that it is a collusive suit between the plaintiff i.e. decree holder and the defen