Telangana High Court
Smt Srinarayan Pershad Died vs Sri Yogeshwaranarayan Died on 7 June, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
SECOND APPEAL NO.454 OF 2016
JUDGMENT:
Assailing the concurrent finding of the trial Court and first appellate Court, whereunder the suit filed by the plaintiffs vide O.S.No.139 of 1994 was dismissed, the plaintiffs in the said suit have filed this second appeal under Section 100 of Code of Civil Procedure (for short 'CPC') praying this Court to set aside the impugned Judgment and direct the defendants to vacate the suit premises and deliver the same to the plaintiffs with consequential perpetual injunction to restrain the defendants from disposing the suit schedule property.
2. As could be seen from the averments made in the plaint, it shows that the plaintiffs have filed O.S.No.139 of 194 for ejectment of the defendants from the suit premises by removing their family deity and deliver the possession in his favour. According to the averments made in the plaint, it is alleged that the 1st plaintiff is a widow and other plaintiffs are sons of late Srinarayan Pershad 2 and the defendants are the sons of one Bishamber Narayan who is brother-in-law of the said Srinarayan Pershad. The plaintiffs have claimed that they are possessors of premises bearing No.22-4-321 at Khanbagh lane, Kotla Alijah, Charminar, Hyderabad with some backyard admeasuring 109.22 sq.yards. The said property was purchased by Srinarayan Parshad under two sale deeds and backyard was purchased by sale deed, dated 16.09.1950. The sister of the said Srinarayan Pershad was married to one Bishamber Narayan. Defendant Nos.1 to 3 are their sons whereas defendant No.4 is widow of one Gopeshwar Narayan who was eldest son of Bishamber Narayan who died leaving behind defendant No.4 as his successor.
3. The plaintiffs have claimed that the said Bishamber Narayan and his family were residing in the ancestral house at Fathehulla Bagh Lane, Chown Maidan Khan, Charminar East. The said house was in mortgage and there was a decree for sale of the property. Since they were not in a possession to clear the loan and in view of their bad financial condition, the said Srinarayan Pershad brought them to his house and provided shelter at his 3 house. The plaintiffs have claimed that during the course of time, said Bishamber Narayan sought permission from Srinarayan Pershad to install the family deity in the backyard and in view of the help extended by Srinarayan Pershad which amounts to a licence, said Bishamber Narayan continued to have the deity in the backyard of the premises. Therefore, the plaintiffs have claimed that the permission obtained by said Bishamber Narayan is only to licence.
4. The plaintiffs have also claimed that Srinarayan Pershad died in 1961 and the said Bishamber Narayan died in 1968. His wife died in 1987. But, the licence granted by Srinarayan Pershad was continued and the legal heirs of Bishamber Narayan were permitted to continue the same. The plaintiffs having claimed that defendant No.1 and his elder brother became rich and opted for independent residence in a posh locality. Therefore, the plaintiffs intended to dispose of the house as such wanted to revoke the licence and approached the defendants with a demanded to surrender the backyard. Though the defendants agreed to shift the deity, sought for 4 reasonable time, subsequently, did not adhere to the words, thereby they got issued a legal notice, directing the defendants to remove the family deity. But, the defendants instead of obliging the said request gave a vague reply and refused to vacate the premises, thereby they filed suit seeking the above referred specific relief.
5. The defendants have resisted the claim, filed written statement denying all the material averments made in the plaint. They have claimed that said Srinarayan Pershad sold the property bearing No.22-4-322 to one Sri Vallabh under a registered sale deed, dated 30.06.1959. The 1st plaintiff is one of the attestors of the said sale deed. Therefore, she has got knowledge about the sale. The 1st defendant purchased the property from the said Vallabh for lawful consideration under a sale deed dated 01.03.1967. Therefore, he became absolute owner of the property. The defendants having denied the averments made by the plaintiffs and sought for dismissal of the suit
6. The record further shows that once the suit filed by the plaintiff was dismissed on 29.11.1999. The appeal preferred by the plaintiffs vide A.S.No.45 of 2000 5 was also dismissed and when the plaintiffs filed second appeal vide S.A.No.927 of 2003, this Court remanded the matter to the trial Court for fresh consideration by receiving the evidence from both parties. It also appears that the trial Court has framed the following issues at the first instance:
1. Whether the plaintiffs are entitled for ejectment as prayed for?
2. Whether the plaintiffs are entitled for consequential relief of injunction as prayed for?
3. To what relief?
7. During the course of trial, the 1st plaintiff was examined as PW1. Exs.A1 to A4 were marked. After the above referred remand by the High Court, the plaintiffs have marked Exs.A26 to A34 and examined one Udayaraj Mathur as PW2. One M.K.Mathur was examined as PW3. Defendant No.1 was examined as DW1 and defendants have marked Exs.B1 to B6.
8. It appears from the impugned Judgment that after the matter was remanded back for fresh consideration, PW1 was recalled and marked some more documents. In view of the subsequent developments, the 6 parties have filed interlocutory applications and on a re- appreciation of entire evidence, the trial Court dismissed the suit again by Judgment dated 17.04.2006. The first appeal preferred by the plaintiffs vide A.S.No.276 of 2006 was also dismissed on 11.02.2016.
9. This second appeal has been admitted on the following substantial questions of law:
1. On a remand from the appellate Court under Order 41 Rule 23 to 25 while giving specific direction can the trial Court give contra finding by diluting the directions of the Court while exercising power under Oder 20 of C.P.C.
2. In a suit for eviction/termination of license can the defendant is entitled to take a defence of title in himself, if so whether the Court has jurisdiction to decide the same.
10. The scope of the present second appeal is very narrow. As already stated in the previous paragraphs, the suit filed by the plaintiffs before the trial Court was once dismissed on merits. First appeal was decided against the plaintiffs. However, the second appeal preferred by them, was disposed by remanding the matter to trial Court by setting aside the Judgment of the trial Court with a direction to give opportunity to both parties to adduce oral and documentary evidence, if they wish and it also appears 7 that in pursuance of the said direction, the trial Court allowed the parties to produce further evidence.
11. As could be seen from the impugned Judgment of the trial Court, the suit filed by the plaintiffs was again dismissed on re-appreciation of the oral and documentary evidence and the first appeal was also decided against the plaintiffs. In view of the specific substantial question of law on which this appeal was admitted, the burden is on the plaintiffs to prove that the trial Court gave a contra finding by diluting the directions of this Court and since the suit was for eviction of a license, the defendants cannot take a defense of title.
12. Even though the plaintiffs have filed the suit for ejectment of the defendants from the suit schedule property on the ground that the original owner of the property Srinarayan Pershad granted license to the defendants to install their family deity and to occupy the suit schedule property, it was their case before the trial Court that when the defendants settled in their life and moved to a posh locality and as the plaintiffs wanted to dispose of the suit schedule premises, said to have 8 terminated the alleged license and requested the defendants to remove the family deity. However, the defendants have claimed that there was no such licnese and in fact the property was alienated by the said Srinarayan Pershan under a valid registered sale deed which was attested by his wife who is shown as 1st plaintiff. Thereafter, defendant No.1 has purchased the property under a valid registered sale deed. Therefore, they denied the alleged license and disputed the right of plaintiffs to maintain suit for ejectment.
13. The oral and documentary evidence produced by the parties indicates that in spite of the specific contention of the plaintiff that Srinarayan Pershad allowed the defendants to occupy the premises by way of license, they were not able to substantiate their claim through any acceptable evidence whereas the defendants were able to prove that said Srinarayan Pershad alienated the suit schedule property to Vallabh and from him defendants No.1 has purchased the property. Even though the plaintiffs have claimed that there was a license, in the light of the specific contention that the property was already 9 alienated by Srinaryan Pershan under a registered sale deed, there was no scope for him to permit the defendants to remain in the property under an alleged licence. Since the defendants have claimed that defendant No.1 has purchased the property through a registered sale deed and as they denied the contention with regard to license, certainly entitled to take the plea of sale and the trial Court has appreciated this fact in a proper way and came to a correct conclusion, thereby there are no merits in the second appeal, as such the same is liable to be dismissed.
14. In the result, the second appeal is dismissed. No costs.
Pending miscellaneous applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVARAO NAIDU Date:07.06.2024 PSSK