Andhra Pradesh High Court - Amravati
S.Kalesha 6 Others vs Shaik Mahaboob Basha 14 Others on 19 June, 2024
APHC010145262005
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY, THE NINETEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
Appeal Suit Nos. 544 of 2005 & 644 of 2009
Between:
1. S.KALESHA, S/O.GAFOOR SAHEB R/O.GEETHA ICE
COMPANY, KOTA VEEDHI, ONGOLE
2. SHAIK YASEEN, S/O.SILAR SAHEB TAILOR R/O.KOTA
VEEDHI, ONGOLE.
3. SHAIK CHAND BEGUM, S/O.KHASIM R/O.QUARTER NO.112
B, RAILWAY QUARTERS, ONGOLE.
4. SHAIK NOORJAHAN BEGUM,, W/O.MEERA MOHIDDIN
BUSINESS R/O.KOTA VEEDHI, ONGOLE.
5. SHAIK AJID, S/O.HANEEF BUSINESS R/O.KOTA VEEDHI,
ONGOLE.
6. SHAIK SHABAJADI,, S/O.ISMAIL BUSINESS R/O.KOTA
VEEDHI, ONGOLE.
7. SHAIK ASIA KHATUM,, W/O.KHUDDUS C/O.BHASHU LORRY
BROKER, KOTA VEEDHI, ONGOLE.
...APPELLANT(S)
AND
1. SHAIK MAHABOOB BASHA 14 OTHERS, S/O.FAREED
SAHEB CYCLE REPAIRING R/O.KOTA VEEDHI, ONGOLE.
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AS Nos.544 of 2005 & 644 of 2009
2. SHAIK CHAND BASHA DIED PER LR RR1115, S/O.FAREED
SAHAD CYCLE REPAIRING R/O.KOTA VEEDHI, ONGOLE.
3. SHAIK ISMAIL BASHA, S/O.FAREED SAHEB BUNK
BUSINESS R/O.KAVAIL
4. SYED SHAFI, S/O.MOULALI BRASS-WARE VESSELS
MANUFACTURING R/O.KOTA VEEDHI, ONGOLE.
5. SHAIK MUNNA, S/O.SHAIK MIA MOHN CYCLE SHOP
REPAIRER R/O.KOTA VEEDHI, ONGOLE.
6. SHAIK MOHAMMAD HANEEF, S/O.HASANSA BRASS-WARE
VESSELS MANUFACTURING R/O.KOTA VEEDHI, ONGOLE.
7. SHAIK SULTAN, S/O.KHAJA MOHADDIN GAS CYLINDER
SUPPLIER R/O.KOTA VEEDHI, ONGOLE.
8. SHAIK JORAN BIBI DIED, W/O.LATE RAJKUMAR
R/O.BANDIVARI STREET, SAVITRUPETA,
TADEPALLIGUDEM, W.G DISTRICT.
9. SHAIK ISMAIL, S/O.ABDUL LALIF TINKERING & WELDING
WORKER R/O.KOTA VEEDHI, ONGOLE.
10. SHAIK NYMATHULLA, S/O.SILAR CYCLE REPAIRING
C/O.BHASHU LORRY BROKER, KOTA VEEDHI, ONGOLE.
11. SHAIK GHOUSIYA, D/O BAGIYA, 9TH CLASS STUDENT, R/O
SRIRAMPALLY VILLAGE, ANURMULA MANDAL, NALGONDA
DIST.,
12. SHAIK ABDULLAH, S/O KONDAIAH BUSINESS R/O
CHAKIRALA VILLAGE ,KANIGIRI MANDAL,PRAKASSAM
DISTRICT
13. SHAIK RASHEED, S/O. SITA RAMA RAO, PROPRIETOR,
UDIPI HOTEL, YELLAMANCHILI, VISAKHAPATNAM
DISTRICT.
14. SHAIK SHALMA, S/O. SITA RAMA RAO, PROPRIETOR,
UDIPI HOTEL, YELLAMANCHILI, VISAKHAPATNAM
DISTRICT.
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AS Nos.544 of 2005 & 644 of 2009
15. SHAIK NASEEMA, RR11- 15 ARE BROUGHT ON RECORD
AS LRS OF DECEASED R2 AS PER C.O.DT;14-11-2011
MADE IN ASMP-2381/2011.
...RESPONDENT(S):
Counsel for the Appellant(S):
Sri K RAGHU VEER
Counsel for the Respondent(S):
Sri VENKATESWARA RAO GUDAPATI
The Court made the following:
COMMON JUDGMENT:
-
The appeal in A.S.No.544 of 2005 is filed against the decree
and judgment dated 19.07.2005 passed by Principal Senior Civil
Judge, Ongole in O.S.No.167 of 1998 by the appellants/ defendant
Nos.1, 4, 7, 10 to 12 and 14. The respondents 1 to 3 are the plaintiffs
and the respondents 4 to 10 are the other defendants in the said suit,
during the pendency of the appeal second respondent died, his legal
representatives are brought on record as respondent Nos.11 to 15.
The plaintiffs filed the above suit for declaration of plaintiffs' right
over the plaint schedule property and to evict the defendants and for
possession of the same and for past and future profits.
The appeal in A.S.No.644 of 2009 is filed by same appellants
against the orders passed in final decree and order dated 24.07.2009
passed by learned Principal Senior Civil Judge, Ongole in I.A.No.530
of 2006 in the same suit to decide the mesne profits in the same
decree passed by the trial Court, since both these appeals are filed
against the decree and judgment passed by the trial Court, therefore,
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AS Nos.544 of 2005 & 644 of 2009
both these appeals were heard together and they are being disposed
of by this common judgment.
2. The parties to the above two appeals are referred to as they
were arrayed before the trial Court.
3. The brief averments of the plaint, in O.S. No.167 of 1998, are as
follows:
The plaintiffs are the sons of one Fareed Saheb, who is the
absolute owner of the sites covered by T.S.Nos.31, 32 and 33. When
there was a threat to dispossess from the property covered under
T.S.No.31 from Shaik Mahaboob Saheb and his wife Sk.Karimunnisa
Bibi, the plaintiffs' father filed O.S.No.216 of 1963 for declaration and
injunction, which was decreed in favour of the father of the plaintiffs.
They preferred an appeal in A.S.No.1 of 1966 and S.A.No.933 of 1972
which were dismissed confirming the judgment in O.S.No.216 of 1963.
The plaintiffs' father continued to be in possession and enjoyment of
the properties covered by TS.Nos.31, 32, 33 until his death. During his
life time, the plaintiffs' father dismantled the old thatched house in suit
covered in T.S.No.31 and constructed a tiled house with 7 portions in
the said site. He along with the plaintiffs' mother lived in one portion of
the said house and used to lease out the remaining portions of the
house. After the death of the plaintiffs' father, the plaintiffs' mother
used to rent out the portions and used to live in one portion. Plaintiffs
used to stay at different places and plaintiffs' mother used to collect
rent by herself and maintain herself. Plaintiffs' mother died four years
ago. Defendants 1 to 6 and Shaik Bibi John tried to occupy the
portions as tenant under rental agreement, entered into with the
plaintiffs' mother. But after the death of the plaintiffs' mother,
defendants 1 to 6 and Shaik Bibi John failed to pay the rents to the
plaintiffs inspite of their demand. Plaintiffs also demanded to pay the
5 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
arrears of rent and to vacate the portions in their respective
occupations and ultimately the first plaintiff got issued a notice to them,
for which defendants 2 to 5 gave reply with false allegations alleging
that second defendant is tenant of seventh defendant and the third
defendant claiming the house portion under registered settlement deed.
Fifth defendant setup a title to ninth defendant. They did not vacant the
house, but Smt Bibi John only vacate the portion after receipt of the
notice. It is claimed by the defendants 2 to 5 that the house portions
are not covered by T.S.Nos.31, 32 and 33, but covered by T.S.No.29,
which is totally false. Defendants have no title or right in the property in
question and the rental agreement entered into by defendants 2 to 5
and the settlement deed said to have been executed by Smt Bibi John
in favour of fourth defendant are all false and brought into existence to
make a false claim. The defendants 2 to 6 are in unauthorized
occupation of the house setup a false title to the defendants 4, 7 to 9.
Plaintiffs are entitled for past and future profits claiming Rs.100/- per
men sum against defendants 1 to 6, who are in actual possession of
the property. Since the defendants 2 to 6 setup title to the defendants
4, 7 to 9, they are impleaded as parties. Defendants 10 to 14 got
impleaded as defendants by themselves.
4. The defendant Nos.1, 3, 6, 11, 13 and 14 were remained
exparte. 8th defendant died; 4th defendant was recorded as one of the
L.R of the deceased 8th defendant.
5. The second defendant filed a written statement by denying the
averments mentioned in the plaint and further contended as under:
The judgment in O.S.No.216 of 1963 or A.S.No.1 of 1966 and
S.A.No.933 of 1972 are not binding on the defendants. The
defendants are legally entitled to the property. Second defendant is
the tenant of the seventh defendant. There is no privity of contract
6 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
between second defendant and the plaintiffs or their parents. There is
no tenancy agreement. Therefore, the plaintiffs cannot pray for eviction
of the second defendant.
6. The fourth defendant filed a written statement by denying the
averments of the plaint and further contended as under:
The fourth defendant obtained a registered settlement deed
from his mother Johran Bibi under registered settlement deed dated
20.05.1985 and since then he is in possession and enjoyment of the
same property. The said property is stood in T.S.No.29 and the prior
document is dated 16.04.1965, which is a partition deed between the
eighth defendant and Shaik Johran Bibi.
7. The defendants 5 and 9 filed written statements. The contents of
the same as under:
There is no privity of contract between the plaintiffs or their
parents with the defendants 5 and 9. The defendants are legally
entitled to the suit property and they are in possession and enjoyment
of the same.
8. The eighth defendant filed a written statement, which was
adopted by seventh defendant. The contents of the same as under:
Eighth defendant and her son Shaik Nayamuthulla sold 6 gadies
of vacant site to seventh defendant under sale deed dated 10.07.1989,
since then the seventh defendant is in possession and enjoyment of
the said property which is covered by T.S.No.29.
9. The 10th defendant filed a written statement, the contents of the
same as follows:
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AS Nos.544 of 2005 & 644 of 2009
Syed Imam Mohiddin is the son-in-law of Syed Abdul Satar. The
said Abdul Sattar filed a suit in O.S.No.531 of 1986 for partition against
Shaik Mahaboob and another and obtained a final decree also. Shaik
Imam Mohiddin got registered settlement deed from Sattar on
23.03.1996 and Shaik Imam Mohiddin sold the same to Shaik Shahida
Begam on 12.07.1997. The 10th defendant purchased the same from
Shahida Begum on 14.10.1998. Since then she is in possession and
enjoyment of the same and the plaintiffs have no right or title in the
said property.
10. The 12th defendant filed a written statement, the brief contents of
the same as follows:
The 12th defendant purchased the property from Shaik Nazeer
under registered sale deed dated 09.01.1996 and the prior document
is dated 20.02.1992 which is settlement deed executed between Shaik
Nazeer and Shaik Karimunnisa, wife of Shaik Mahaboob Saheb.
11. Based on the above pleadings, the following issues were settled
by the trial Court in O.S. No.167 of 1998.
i. Whether the plaintiffs have right and title over the suit property?
ii. Whether the plaintiffs are entitled for possession?
iii. Whether the plaintiffs are entitled for profits?
iv. To what relief?
12. During the course of trial in the trial Court, on behalf of the
Plaintiffs, PW1 to PW6 were examined and Ex.A1 to Ex.A16 were
marked. On behalf of the Defendants DW1 to DW7 were examined
and Ex.B1 to Ex.B31 were marked. Ex.C1 and Ex.C2 were marked
through commissioner and Ex.X1 was marked through third parties.
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AS Nos.544 of 2005 & 644 of 2009
13. After completion of the trial and on hearing the arguments of
both sides, the trial Court decreed the suit with costs vide its judgment,
dated 19.07.2005 and directed the plaintiffs to file a separate
application for future profits, against which A.S.No.544 of 2005 is
preferred by the defendants 1, 4, 7, 10 to 12 and 14 in the Suit
questioning the Decree and Judgment passed by the trial Court. Later
the plaintiffs filed I.A.No.530 of 2006 in O.S.No.167 of 1998 before the
Principal Senior Civil Judge, Ongole and the trial Court allowed the
petition with costs by granting the final decree ascertaining the mesne
profits over the schedule property vide its order dated 24.07.2009,
against which A.S.No.644 of 2009 is preferred by the respondents 1, 4,
7, 10 to 12 and 14 in the Interlocutory Application questioning the
order and decree passed by the trial Court.
14. In I.A.No.530 of 2006 in O.S.No.167 of 1998 on behalf of the
petitioners PW1 and PW2 were examined, no documents were
marked and on behalf of the respondents RW1 and RW2 were
examined and Ex.R1 was marked.
15. Heard Sri M.R.S.Srinivas, leaned counsel, on behalf of Sri
K.Raghuveer, learned counsel for appellants and Sri Venkateswara
Rao Gudapati, learned counsel for respondents.
16. The learned counsel for appellants would contend that the civil
Court has no jurisdiction to decide the suit and the jurisdiction of civil
Court is ousted in view of the rent control Act and the rent controller is
having exclusive jurisdiction to try the dispute involved in this case. He
would further contend that the Court below failed to consider that since
1985 the defendants are in a possession and enjoyment of the suit
properties. He would further contend that there is no privity of contract
between the plaintiffs and the appellants herein who are the
defendants in the suit and the Court below erred in relying the report of
9 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
the advocate commissioner and decreed the suit. He would further
contend that the plaintiffs did not establish their title in respect of the
suit schedule property. He would further contend that the learned trial
Judge failed to appreciate the evidence on record in a proper manner
and decreed the suit. He would further contend that though the
petitioners/plaintiffs filed an application for ascertainment of mesne
profits in I.A.No.530 of 2006 in O.S.No.167 of 1998 against which an
appeal in A.S.No.644 of 2009 is filed, no evidence is adduced in an
enquiry in the aforesaid interlocutory application to substantiate the
claim of the plaintiffs and that granting of mesne profits by the Court
below is unjust and arbitrary and liable to be set aside.
17. Per contra, the learned counsel for respondents 1 to 3/plaintiffs
would contend that on appreciation of the entire evidence on record,
the learned trial Judge rightly decreed the suit and the learned trial
Judge also rightly granted mesne profits in the Interlocutory
Application in I.A.No.530 of 2006 in O.S.No.167 of 1998 filed by the
plaintiffs and there is no need to interfere with the finding given by the
learned trial Judge in both the suit and in Interlocutory Application in
I.A.No.530 of 2006 in O.S.No.167 of 1998.
18. Having regard to the pleadings in the suit and the findings
recorded by the trial Court and in the light of rival contentions and
submissions made by either side before this Court, the following points
would arise for determination:
I. Whether the plaintiffs in O.S.No.167 of 1998 of Principal Senior
Civil Judge's Court, Ongole are entitled the relief of declaration
of their right in the plaint schedule property?
II. Whether the plaintiffs are entitled the relief of eviction of the
defendants from the plaint schedule property?
10 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
III. Whether the trial Court is justified in decreeing the suit in
O.S.No.167 of 1998?
IV. Whether the trial Court is justified in awarding an amount of
Rs.3,69,600/- in I.A.No.530 of 2006 in O.S.No.167 of 1998
towards mesne profits?
I. Whether the plaintiffs in O.S.No.167 of 1998 of Principal
Senior Civil Judge's Court, Ongole are entitled the relief
of declaration of their right in the plaint schedule property?
II. Whether the plaintiffs are entitled the relief of eviction of
the defendants from the plaint schedule property?
The case of the plaintiffs is that they are the sons of one Shaik
Fareed Saheb and the said Shaik Fareed Saheb was the absolute
owner of the sites covered by T.S.No.31, 32 and 33 and at a time
when there was a dispossession regarding the property covered by
T.S.No.31 with a thatched shed therein from Shaik Mahaboob Saheb,
son of Khadarvali and his wife Shaik Karimunnisa Bibi, he filed a suit
O.S.No.216 of 1963 on the file of District Munsif Court at Ongole
against them, the suit was contested and decreed and the same was
upheld by the appellate Court. The plaintiffs further pleaded that the
father of the plaintiffs died and mother of the plaintiffs also died at
about 4 years ago prior to filing of the suit and defendants 1 to 6 and
another Shaik Bibi John came to occupy the portions of the tiled house,
which is shown in the schedule, as tenants under rental agreement
entered with the plaintiffs' mother. They further pleaded that whoever
was in occupation of the house covered by the suit schedule property
was paying rents to the plaintiffs' mother till her death, but after her
death the defendants 1 to 6 failed to pay the rents to the plaintiffs
inspite of their demand. The plaintiffs further pleaded that though they
11 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
demanded to pay the arrears of the rent and to vacate the house, the
defendants failed to do the same. The plaintiffs further pleaded that the
plaintiffs got disgusted with the attitude of the tenants got issued a
notice to defendants 1 to 6 claiming arrears of rent of Rs.125/- per
month and sought for possession of the suit schedule property. The
plaintiffs further pleaded that the defendants 7 to 9 do not have any
title of the property in question and the rental agreement pleaded by
the defendants 2 to 5 and the settlement deed said to have been
executed by Joran Bibi in favour of 4th defendant are all false. Though
after receipt of notice, the defendants got issued a reply notice with
false allegations and they did not vacate the premises and that the
plaintiffs are constrained to file a suit. In the plaint itself there is no
whisper about the source of title of the father of the plaintiffs, except
saying that their father's title was recognized by civil Court in a civil suit
in O.S.No.216 of 1963 filed against third parties.
20. In the present suit, the plaintiffs are claiming the relief of title in
the plaint schedule property, their case is that their title is recognized
by a civil Court in O.S.No.216 of 1963 by the District Munsif Court,
Ongole vide its judgment dated 08.09.1965. Admittedly the defendants
herein are not the parties to the said suit. The scope of that suit is
different to the suit on hand. In that case, the plea raised by the
plaintiff i.e., father of the plaintiffs herein is that the defendants in that
suit fraudulently obtained a registered settlement deed from his sister
Peerambi and in that suit the plaintiff i.e., the father of the plaintiffs
herein has not filed any document to show the title of peerambi except
exchange of notices and extract of suit register in the said suit. The 4 th
defendant in the present suit is claiming right and title by virtue of
registered settlement deed, the 4th defendant also relied on his vendor
document i.e., Ex.B5 registration extract of partition deed. The 7th
defendant is claiming title by way of Ex.B8 sale deed. The 10th
12 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
defendant is also claiming title by virtue of Ex.B7 registration extract of
the sale deed. The 12th defendant is also claiming title under Ex.B3
registration extract of the sale deed. As stated supra, the defendants
herein are not the parties to the aforesaid suit filed by the father of the
plaintiffs herein. Therefore, the finding given in the said suit is not
binding on the defendants herein, in view of the nature of the present
suit, there is no whisper in the plaint itself about the source of their title
except saying that their father's title is declared a way back in the year
1963 in a civil suit in O.S.No.216 of 1963. The parties in that suit are
different to the parties in the present suit and the plaintiffs herein are
not aware of the said suit proceedings, the survey number and 2
boundaries in that suit schedule i.e., Northern and Western boundaries
are not tallied with the present suit schedule.
21. It was pleaded by the 4th defendant in the suit that he obtained a
registered settlement deed from his mother Joran Bibi in the year 1985
and he has been residing in the said house since then and even
otherwise he has perfected his right by way of adverse possession and
his mother obtained the said property under a registered partition deed
dated 16.04.1965 under Ex.B5. The claim of the 7th defendant is that
she purchased the said property from 8th defendant under a registered
sale deed dated 10.07.1989 under Ex.B8. The case of the 10th
defendant is that she purchased the vacant site and tiled house part
therein from one Shahida Begum on 14.10.1998 under Ex.B7
registered sale deed. The case of the 12th defendant is that she
purchased the property in question from Shaik Nazeer under a
registered sale deed dated 09.01.1996 under Ex.B3. The aforesaid
defendants are claiming the title by virtue of registered documents in
the plaint schedule property. As stated supra, no scrap of paper is filed
by the plaintiffs to prove their title except saying that their father's title
is recognized by a civil Court in a civil suit which was filed in a way
13 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
back in the year 1963 against the third parties. As stated supra, the
survey number in the said plaint schedule and 2 boundaries Northern
and Western boundaries in that plaint schedule are not tallied with the
plaint schedule in the present case.
22. The legal position is no more res integra and the same has been
well settled in catena of judgments. In a suit for declaration of title and
possession could succeed only on the strength of its own title and that
could be done only by adducing sufficient evidence to discharge the
onus on it, irrespective of the question whether the defendants have
proved their case or not?
The Apex Court in the case of Moran Mar Basselios Catholicos v.
Thukalan Paulo Avira1 held as follows:
The plaintiffs have brought the suit out of which the present appeal has
arisen claiming to be trustees and praying for a declaration of their own
title as trustees and for a declaration that the defendants were not
trustees and for possession of the trust properties and other incidental
reliefs. It is perfectly clear that in a suit of this description if the plaintiffs
are to succeed they must do so on the strength of their own title. The
plaintiffs in this suit base their title to trusteeship on their election at a
meeting of the churches alleged to have been held on August 22, 1935
at Karingasserai when the original plaintiff is said to have been elected
the Malankara Metropolitan and the plaintiffs 2 and 3 as Kathanar and
lay trustees. That meeting was admittedly held without any notice to the
members of the Catholicos party, for they were, quite erroneously as we
shall presently indicate, regarded as having gone out of the Church. In
justification of this stand reference is made, rather half-heartedly, to the
Kalpana (Ex. Z) which commanded the faithful not to have anything to
do with the heretics. On our finding on that question to be hereafter
recorded, namely, that the defendants and their partisans had not
become ipso facto heretics in the eye of the civil court or aliens or had
not gone out of the Church, it must necesssarily follow, apart from the
AIR 1959 SC 31
14 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
question of the competency of the convener of the meeting, that the
meeting had not been held on due notice to all churches interested and
was consequently not a valid meeting and that, therefore, the election of
the plaintiffs was not valid and their suit, in so far as it is in the nature of
a suit for ejectment, must fail for want of their title as trustees.
23. In a suit for declaration of title, the plaintiffs are to succeed they
must do so on the strength of their own title. In the case of Nagar
Palika Jind vs. Jagat Singh2, the apex Court held as follows:
The onus to prove the title to the property in question was on the plaintiff.
In a suit for declaration based on title, it was incumbent on the part of
the Court of appeal first to record a finding on the claim of title to the suit
land made on behalf of the plaintiff, the Court is bound to enquire or
investigate that question first before going into any other question that
may arise in a suit.
In order to prove the case of the plaintiffs, the first plaintiff is
examined as PW1. He reiterated the contents of the plaint in his
evidence affidavit as PW1. As stated supra, the case of the plaintiffs is
that their father's title was recognized by a civil Court in earlier suit in
O.S.No.216 of 1963 on the file of District Munsif Court, Ongole vide its
judgment dated 08.09.1965, which is filed against the third parties, the
defendants herein are not a party to the said suit. Further more, the
scope of that suit is different to the suit on hand. In the aforesaid case,
the plea raised by the father of the plaintiffs herein is that the
defendants in that suit obtained a registered settlement deed
fraudulently from his sister Peerambi and furthermore in the said suit,
the plaintiffs' father herein has not filed any scrap of paper to show the
title of the Peerambi except exchange of notices and extract of suit
register in another suit. In the case on hand PW1 admitted in his
evidence in cross examination itself that he has no record to show the
(1995) 3 SCC 426
15 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
construction of the tiled house and survey number in which it was
constructed. He pleaded ignorance about the induction of the
defendants as tenants by his parents in the suit schedule premises. He
further admits that there are tax receipts stand in the name of his
father till his death. Absolutely no such tax receipts are filed by the
plaintiffs herein for the reasons best known to the plaintiffs. Another
admission made by PW1 is that they have not filed any suit for survey
Nos.32 and 33 and restricted their claim for survey No.31. He further
admits that his father died at about 10 years ago and he was looking
after the affairs of his mother during her life time and his mother look
after the plaint schedule property. Another admission made by him is
that the persons who are in the occupation of survey No.29 also
encroached the plaint schedule property and there is a compound wall
in the backyard of the plaint schedule houses and the gap in between
his house and the compound wall is about 2 to 3 feet.
24. It is in the evidence of PW2 that the plaintiffs' father died at
about 18 or 19 years ago and after the death of the plaintiffs' father,
the mother of the plaintiffs resided in one portion and used to lease out
the remaining portions and plaintiffs used to reside at different places
on their livelihood and mother of the plaintiffs died at about 8 years
ago and he sold his house situated near to the suit schedule property
for the marriage expenses of his daughter and residing in a rented
house at Bandlamitta. He further admits that the suit schedule 7
portions house was constructed by father of the plaintiffs and none
else. In cross examination he admits that he does not know the survey
number in which his house was located and he pleaded ignorance
about the survey number of the plaint schedule property and he also
pleaded ignorance about the possession of 7 portions constructed
house in the plaint schedule property. Another admission made by him
is that he did not make any enquiry as to why the plaintiffs were not
16 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
residing in the plaint schedule property. PW3 is another witness to the
plaintiffs. As per his evidence, he is now residing in a rented house
which is situated to the west of the suit schedule property and father of
the plaintiffs constructed 7 portions, resided in one of the portions
along with his wife and was leasing out the remaining portions and the
father of the plaintiffs died at about 18 or 19 years back and plaintiffs
used to reside at different places for their livelihood. In cross
examination, he pleaded ignorance about the rights of the plaintiffs
and defendants in the plaint schedule property.
25. Admittedly PW2 and PW3 have not stated anything about the
alleged tenancy in between the plaintiffs' mother and the defendants
as stated by the plaintiffs in chief affidavits itself. There is no whisper in
the chief affidavit of PW2 and PW3 about the alleged possession of
the defendants.
26. PW4 is the advocate commissioner, who visited the plaint
schedule property. PW5 is the Mandal Surveyor. PW6 is the Town
Surveyor of Ongole Municipality. A warrant was issued to the advocate
commissioner to identify both the survey numbers in survey Nos.29
and 31. In the commissioner report itself, the advocate commissioner
clearly stated that he was appointed as advocate commissioner to
verify and found that the suit schedule house is situated in TS.No.31
but not in TS.No.29 with the assistance of Town Surveyor and town
survey records relating to the Ongole Municipality. PW4 the learned
advocate commissioner admits in cross examination itself that the
measurements of survey number No.29 are not mentioned and the
extents of T.S,Nos.29, 30, 31 and 32 are not mentioned and he did not
verify the town survey plan along with the report and he did not verify
when the survey operations were conducted pertaining to the survey
number verified by him. In cross examination PW5 Mandal Surveyor
17 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
admits that he did not bring the Field Measurement Book relating to
survey Nos.29, 30 and 31 and there is no separate F.M.B. for
particular survey number and it consists of many blocks and the
subsequent changes were also effected for other town survey
numbers including the survey Nos.30 and 31 and Ex.C2 does not
reflect the situation earlier to the re-survey operations. In cross
examination PW6 Town Surveyor of Ongole Municipality admits that
he was directed to produce the Field Measurement Book pertaining to
TS Nos.29 to 32 and the record brought by him to the Court does not
contain the particulars of survey numbers and Ex.X1 is the revenue
map wherein the survey numbers indicated.
27. In the case on hand, the claim of the plaintiffs is that they are
having right and title in the plaint schedule property. The plaintiffs
claimed main relief of declaration of title in the plaint schedule property.
Admittedly no single document is filed by the plaintiffs to prove their
right and title in the plaint schedule property except saying that their
father's title was declared by a civil Court a way back in the year 1965
in O.S.No.216 of 1963. As stated supra, the said suit is not filed
against the defendants herein and the said suit was filed against the
third parties and the defendants herein are not the parties to the suit.
Admittedly the Western and Northern boundaries in that plaint
schedule are not tallied with the plaint schedule and the survey
number in the said plaint schedule is 631 but not survey No.31.
Admittedly the Western and Northern boundaries in that suit schedule
are not tallied with the suit schedule on hand. This discrepancy is not
at all explained by the plaintiffs.
28. The learned counsel for appellants would contend that the Civil
Court is not having jurisdiction to decide the issue in the suit. The
plaintiffs instead of approaching the rent controller filed a civil suit for
18 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
declaration and eviction of the defendants from the plaint schedule
property which is not permissible under law. He would further contend
that jurisdiction of civil Court is ousted in view of the relationship of
landlord and tenant as pleaded by the plaintiffs.
29. The learned counsel for respondents/plaintiffs would contend
that the jurisdiction aspect was not raised before the Court below by
the parties in the suit and that the said aspect cannot be decided in the
present appeal. As seen from the plaint averments in the plaint itself it
was pleaded that the mother of the plaintiffs died at about 4 years ago,
defendants 1 to 6 and another Shaik Bibi John, wife of Shaik Sathar
came to occupy the portions of the tiled house which is shown in the
schedule as tenants under rental agreement entered into with the
plaintiff's mother by then and whoever that was in occupation of the
portions of the house covered by the suit schedule was paying the
rents to the plaintiff's mother till her death. The plaintiffs further
pleaded that after the death of the mother of the plaintiffs the
defendants 1 to 6 and Shaik Bibi John failed to pay the rents to the
plaintiffs, inspite of the demand they failed to pay the rent and failed to
vacate the house portions and ultimately the first plaintiff got disgusted
with the attitude of the tenants got issued a notice to the defendants 1
to 6 and Bibi John claiming arrears of rents of 125/- per month.
Another specific pleading made by the plaintiffs in the plaint is that
none of the defendants have got any right, title or interest to the house
described in the plaint schedule, while defendants 7 to 9 do not have
any title to the property in question and the rental agreement pleaded
by the defendants 2 to 5 and the settlement deed said to have been
executed by Johran Bibi in favour of 4th defendant are all false
documents. In the plaint itself it was pleaded that the defendants are
the tenants of the plaintiffs. Another important aspect is that Ex.A5 is a
notice said to have been issued by the plaintiffs prior to institution of
19 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
the suit. In Ex.A5 notice, the plaintiffs demanded the defendants to pay
the arrears of rent at the rate of Rs.125/- per month for a portion in the
occupation of the defendants and vacate the house and put up the
plaintiffs and his brothers in a vacant possession of the house. The
recitals in Ex.A5 notice and plaint itself goes to show that the plaintiffs
pleaded that the defendants are the tenants. Section 10(1)
A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 (At 15 of
1960) says as follows:
"A tenant shall not be evicted whether in execution of a decree or
otherwise except in accordance with the provisions of this Section or
Sections 12 and 13:
Provided that where the tenant, denies the title of the landlord or claims
right of permanent tenancy, the Controller shall decide whether the
denial or claim is bona fide and if he records a finding to that effect, the
landlord shall be entitled to sue for eviction of the tenant in a Civil Court
and the Court may pass a decree for eviction on any of the grounds
mentioned in the said sections, notwithstanding that the Court finds that
such denial does not involve forfeiture of the lease or that the claim is
unfounded".
30. The learned counsel for plaintiffs/respondents placed a reliance
in Vallabhaneni Lakshmana Swamy and another vs. Valluru
Basavaiah and others3.
The leaned counsel for appellants placed a reliance of four
Judge Bench of Apex Court in Kiran Singh and others vs. Chaman
Paswan and others4, in the said case law, the four Judge Bench of
Apex Court held as follows:
2004 SCC online AP 390
(1954)1 SCC 710
20 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
The answer to these contentions must depend on what the position in
law is when a court entertains a suit or an appeal over which it has no
jurisdiction, and what the effect of Section 11 of the Suits Valuation Act
is on that position. It is a fundamental principle well established that a
decree passed by a court without jurisdiction is a nullity, and that its
invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in
collateral proceedings. A defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of the subject-matter of the action,
strikes at the very authority of the court to pass any decree, and such a
defect cannot be cured even by consent of parties. If the question now
under consideration fell to be determined only on the application of
general principles governing the matter, there can be no doubt that the
District Court of Monghyr was coram non judice, and that its judgment
and decree would be nullities. The question is what is the effect of
Section 11 of the Suits Valuation Act on this position.
Section 11 enacts that notwithstanding anything in Section 578 of the
Code of Civil Procedure an objection that a court which had no
jurisdiction over a suit or appeal had exercised it by reason of
overvaluation or undervaluation, should not be entertained by an
appellate court, except as provided in the section. Then follow
provisions as to when the objections could be entertained, and how they
are to be dealt with. The drafting of the section has come in--and
deservedly--for considerable criticism; but amidst much that is obscure
and confused, there is one principle which stands out clear and
conspicuous. It is that a decree passed by a court, which would have
had no jurisdiction to hear a suit or appeal but for overvaluation or
undervaluation, is not to be treated as, what it would be but for the
section, null and void, and that an objection to jurisdiction based on
overvaluation or undervaluation, should be dealt with under that section
and not otherwise. The reference to Section 578, now Section 99 CPC,
in the opening words of the section is significant. That section, while
providing that no decree shall be reversed or varied in appeal on
account of the defects mentioned therein when they do not affect the
merits of the case, excepts from its operation defects of jurisdiction.
21 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
Section 99 therefore gives no protection to decrees passed on merits,
when the courts which passed them lacked jurisdiction as a result of
overvaluation or undervaluation. It is with a view to avoid this result that
Section 11 was enacted. It provides that objections to the jurisdiction of
a court based on overvaluation or undervaluation shall not be
entertained by an appellate court except in the manner and to the extent
mentioned in the section. It is a self-contained provision complete in
itself, and no objection to jurisdiction based on overvaluation or
undervaluation can be raised otherwise than in accordance with it. With
reference to objections relating to territorial jurisdiction, Section 21 of
the Civil Procedure Code enacts that no objection as to the place of
suing should be allowed by an appellate or revisional court, unless there
was a consequent failure of justice. It is the same principle that has
been adopted in Section 11 of the Suits Valuation Act with reference to
pecuniary jurisdiction. The policy underlying Sections 21 and 99 CPC
and Section 11 of the Suits Valuation Act is the same, namely, that
when a case had been tried by a court on the merits and judgment
rendered, it should not be liable to be reversed purely on technical
grounds, unless it had resulted in failure of justice, and the policy of the
legislature has been to treat objections to jurisdiction both territorial and
pecuniary as technical and not open to consideration by an appellate
court, unless there has been a prejudice on the merits. The contention
of the appellants, therefore, that the decree and judgment of the District
Court, Monghyr, should be treated as a nullity cannot be sustained
under Section 11 of the Suits Valuation Act.
31. The learned counsel for appellants placed another reliance in
Hira Lal Patni vs. Sri Kali Nath5, in that decision, the Apex Court held
as follows:
The only ground on which the decision of the High Court is challenged
is that the suit instituted on the original side of the Bombay High Court
was wholly incompetent for want of territorial jurisdiction and that
therefore, the award that followed on the reference between the parties
AIR 1962 SC 199
22 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
and the decree of Court, under execution, were all null and void. Strong
reliance was placed upon the decision of the Privy Council in the case
of Ledgard v. Bull. In our opinion, there is no substance in this
contention. There was no inherent lack of jurisdiction in the Bombay
High Court where the suit was instituted by the plaintiff-decree-holder.
The plaint had been filed after obtaining the necessary leave of the High
Court under clause 12 of the Letters Patent. Whether the leave obtained
had been rightly obtained or wrongly obtained is not a matter which can
be agitated at the execution stage. The validity of a decree can be
challenged in execution proceedings only on the ground that the court
which passed the decree was lacking in inherent jurisdiction in the
sense that it could not have seizin of the case because subject matter
was wholly foreign to its jurisdiction or that the defendant was dead at
the time the suit had been instituted or decree passed, or some such
other ground which could have the effect of rendering the court entirely
lacking in jurisdiction in respect of the subject matter of the suit in over
the parties to it. But in the instant case there was no such inherent lack
of jurisdiction. The decision of the Privy Council in the case of 13 Ind.
App. 134 (P. C.) is an authority for the proposition that consent or
waiver can cure defect of jurisdiction but cannot cure inherent lack of
jurisdiction. In that case, the suit had been instituted in the court of the
subordinate Judge, who was incompetent to try it. By consent of the
parties, the case was transferred to the Court of the District Judge for
convenience of trial. It was laid down by the Privy Council that as the
Court in which the suit had been originally instituted was entirely lacking
in jurisdiction, in the sense that it was incompetent to try it, whatever
happened subsequently was null and void because consent of parties
could not operate to confer jurisdiction on a court which was
incompetent to try the suit. That decision has no relevance to a case like
the present where there could he no question of inherent lack of
jurisdiction in the sense that the Bombay High Court was incompetent to
try a suit of that kind. The objection to its territorial jurisdiction is one
which does not go to the competence of the Court and can, therefore,
be waived. In the instant case, when the plaintiff obtained the leave of
the Bombay High Court on the original side, under Cl. 12 of the Letters
Patent, the correctness of the procedure or of the order granting the
23 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
leave could be questioned by the defendant or the objection could be
waived by him. When he agreed to refer the matter to arbitration
through Court, he would be deemed to have waived his objection to the
territorial jurisdiction of the Court, raised by him in his written statement.
It is well settled that the objection as to local jurisdiction of a court does
not stand on the same footing as an objection to the competence of a
court to try case. Competence of a court to try a case goes to the very
root of the jurisdiction, and where it is lacking, it is a case of inherent
lack of jurisdiction. On the other hand an objection as to the local
jurisdiction of a court can be waived and this principle has been given a
statutory recognition by enactments like S. 21 of the Code of Civil
Procedure. Having consented to have the controversy between the
parties resolved by reference to arbitration through court, the defendant
deprived himself of the right to question the authority of the Court to
refer the matter to arbitration or of the arbitrator to render the award. It is
clear, therefore, that the defendant is estopped from challenging the
jurisdiction of the Bombay High Court to entertain the suit and to make
the reference to the arbitrator. He is equally estopped from challenging
the authority of the arbitrator to render the award. In our opinion, this
conclusion is sufficient to dispose of the appeal. It is not, therefore,
necessary to determine the other points in controversy, including the
question whether the Decrees and Orders Validating Act, 1936 (Act V of
1936) had the effect of validating what otherwise may have been invalid.
32. In a case of Dhurandhar Prasad Singh vs. Jai Prakash
University and others6, the Apex Court held as follows:
In the case of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340,
question was raised, when decree passed by a Court is nullity and
whether execution of such a decree can be resisted at the execution
stage which would obviously mean by taking an objection under Section
47 of the Code. Venkatarama Ayyar, J. speaking for himself and on
behalf of B. K. Mukherjee, Vivian Bose, Ghulam Hasan, JJ., observed at
page 342 thus.
(2001)6 SCC 534
24 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
"It is a fundamental principle well-established that a decree
passed by a Court without jurisdiction is a nullity, and that its
invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even
in collateral proceedings."
Again, in the case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul
Rehman, AIR 1970 SC 1475, the Court was considering scope of
objection under Section 47 of the Code in relation to the executability of
a decree and it was laid down that only such a decree can be subject-
matter of objection which is nullity and not a decree which is erroneous
either in law or on facts. J. C. Shah, J. speaking for himself and on
behalf of K. S. Hegde and A. N. Grover, JJ. laid down the law at pages
1476- 77 which runs thus: -
"A Court executing a decree cannot go behind the decree between the
parties or their representatives; it must take the decree according to its
tenor, and cannot entertain any objection that the decree was incorrect
in law or on facts. Until it is set aside by an appropriate proceeding in
appeal or revision, a decree even if it be erroneous is still binding
between the parties.
When a decree which is a nullity, for instance, where it is passed
without bringing the legal representatives on the record of a person who
was dead at the date of the decree, or against a ruling prince without a
certificate, is sought to be executed an objection in that behalf may be
raised in a proceeding for execution. Again, when the decree is made
by a Court which has no inherent jurisdiction to make it, objection as to
its validity may be raised in an execution proceeding if the objection
appears on the face of the record: where the objection as to the
jurisdiction of the Court to pass the decree does not appear on the face
of the record and requires examination of the questions raised and
decided at the trial or which could have been but have not been raised,
the executing Court will have no jurisdiction to entertain an objection as
to the validity of the decree even on the ground of absence of
jurisdiction."
25 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
33. In a case of Sarwan Kumar and another vs. Madan Lal
Aggarwal7, the Apex Court held as follows:
In the present case because of the operation of Section 14 of the Act
the only authority to pass a decree for ejectment of the tenanted
premises is the Rent Controller appointed under the Act and Section 50
of the Act specifically bars the jurisdiction of the Civil Court to entertain
any suit or proceeding in so far as it relates to the eviction of any tenant
from the premises which were covered by the Delhi Rent Control Act.
The Civil Court lacked the inherent jurisdiction to take cognizance of the
cause and to pass a decree. Challenge to such a decree on the ground
of nullity could be raised at any later stage including the execution
proceedings. Tenancy of the building was governed by a Special Act
and therefore the decree passed by the Civil Court was a nullity and
therefore inexecutable. Judgment-debtors had not filed their written
statement in the Civil Court and no issue regarding the jurisdiction of the
Civil Court to try the suit was framed. Tenant in the special leave
petition in this Court raised the contention that the eviction decree
passed by the Civil Court could not be executed against them. This
Court refused to go into that question as it was not the subject-matter of
the order under appeal. It was left open to the judgment-debtors to raise
this ground before the appropriate forum, if available to them under law.
The only forum where the judgment-debtors could raise the objection
regarding the executability of the decree was in the execution
proceedings which they did. Since the jurisdiction of the Civil Court was
barred, the decree passed by it was a nullity and the judgment-debtors
could successfully raise objection regarding the executability of such a
decree. The executing Court erred in holding that judgment-debtors
could not raise the objection to the executability of the decree being
nullity having been passed by a Court lacking inherent jurisdiction to do
so. This Court in Gian Devi Anand's case (supra) did not lay down any
new law but only interpreted the existing law which was in force. As was
observed by this Court in Lily Thomas's case (supra) the interpretation
of a provision relates back to the date of the law itself and cannot be
prospective of the judgment. When the Court decides that the
(2003)4 SCC 147
26 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
interpretation given to a particular provision earlier was not legal, it
declares the law as it stood right from the beginning as per its decision.
In Gian Devi Anand's case (supra) the interpretation given by the Delhi
High Court that commercial tenancies were not heritable was overruled
being erroneous. Interpretation given by the Delhi High Court was not
legal. The interpretation given by this Court declaring that the
commercial tenancies heritable would be the law as it stood from the
beginning as per the interpretation put by this Court. It would be
deemed that the law was never otherwise. Jurisdiction of the Civil Court
has not been taken away by the interpretation given by this Court. This
Court declared that the Civil Court had no jurisdiction to pass such a
decree. It was not a question of taking away the jurisdiction it was the
declaration of law by this Court to that effect. The Civil Court assumed
the jurisdiction on the basis of the interpretation given by the High Court
in Gian Devi Anand's case, which was set aside by this Court.
For the reasons stated above, the appeal is accepted. The order passed
by the High Court as well as the executing Court regarding the
executability of the decree passed by the Civil Court are set aside. It is
held that the jurisdiction of the Civil Court to pass the decree for
ejectment was barred. A decree passed by a Court having no
jurisdiction over the subject-matter would be a nullity and the judgment-
debtor can object to the execution of such a decree being a nullity and
non est. Its invalidity can be set up whenever it is sought to be enforced
including the stage of execution of the decree or any other collateral
proceedings. We are conscious of the fact that it would work a great
hardship on the respondent-decree-holder who would not be able to
reap the benefit of the decree passed in his favour having won at all the
stages but the vagaries of law cannot be helped. Accordingly, appeal is
accepted. Orders of the High Court and the executing Court are set
aside. It is held that the decree obtained by the decree-holder cannot be
executed being a nullity and non est. The parties are directed to bear
their own costs.
Admittedly, in the case on hand, the plaintiffs pleaded that the
defendants are the tenants in the plaint schedule property during the
27 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
life time of their mother, they used to pay the rents and later the
defendants did not pay any rent to the plaintiffs. None of the witnesses
of the plaintiffs stated in their evidence that the defendants are the
tenants of the plaintiffs and none of the witnesses of the plaintiffs also
stated that the defendants are in a possession of the plaint schedule
property as tenants or otherwise. As stated supra, Section 10(1) of
A.P.Buildings (Lease, Rent and Eviction) control Act, 1960 (Act 15 of
1960) ousted the jurisdiction of civil Court, in view of the dispute in
between landlord and tenants. Therefore, for the aforesaid case law
and for the aforesaid reasons, the civil Suit itself is not at all
maintainable. Though the defendants filed a lot of documentary
evidence and house tax receipts and registration extracts of the
documents which are marked as exhibits, the plaintiffs have not filed
any scrap of paper to show their father's right and title in the plaint
schedule property. The 4th defendant relied on registration extract of
the settlement deed said to have been executed by his mother which
is marked as exhibit and he also relied on Ex.B5 partition deed which
is a title of his mother. The 7th defendant also relied on Ex.B8
registration extract of the sale deed. The 10th defendant also relied on
Ex.B7 registration extract of the sale deed. The 12th defendant is also
relied on the registration extract of the sale deed dated 09.01.1996
said to have been executed by Shaik Nazeer. In order to prove their
possession and payment of house tax, they also relied on house tax
receipts, those are marked as Ex.B9 to Ex.B31 respectively.
Furthermore, the case of the plaintiffs is that their father's right is
recognized by the civil Court in earlier suit in O.S.No.216 of 1963. As
stated supra, the defendants herein are not a party to the said suit and
the scope of that suit is different and the said suit is filed against the
third parties. Undoubtedly the plaintiffs in the present suit on hand
failed to prove that they are having right and title in the plaint schedule
28 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
property. There is no whisper in the plaint itself when the defendants
are in a possession of the plaint schedule property, furthermore, none
of the witness of the plaintiffs stated about the alleged tenancy of
landlord and tenant in between the plaintiffs and defendants and
possession of the defendants in the plaint schedule property.
34. For the aforesaid reasons, the plaintiffs failed to prove that they
are having right and title in the plaint schedule property, therefore, the
plaintiffs are not entitled the relief of declaration of title in the plaint
schedule property. Since the plaintiffs are not entitled the main relief of
declaration of title, question of granting the relief of eviction does not
arise. Accordingly, the point Nos.1 and 2 are answered in favour of the
appellants.
35. Point Nos. 3 and 4 :
III. Whether the trial Court is justified in decreeing the suit
in O.S.No.167 of 1998?
IV. Whether the trial Court is justified in awarding an
amount of Rs.3,69,600/- in I.A.No.530 of 2006 in
O.S.No.167 of 1998 towards mesne profits?
In view of my findings on point Nos.1 and 2, the trial Court is not
justified in decreeing the suit with costs with an observation that the
plaintiffs are having right and title in the plaint schedule property and
by declaring that the plaintiffs are having right and title and they are
entitled relief of eviction of the plaint schedule property. For the
reasons stated above, the plaintiffs failed to prove that they are having
right and title in the plaint schedule property and therefore they are
also not entitled the relief of eviction of the defendants from the plaint
schedule property and consequently the suit in O.S.No.167 of 1998 on
the file of Senior Civil Judge's Court, Ongole is liable to be dismissed
without costs. Since the suit of the trial Court is dismissed, question of
29 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
granting mesne profits does not arise. Therefore, the decree and order
passed in I.A.No.530 of 2006 in O.S.No.167 of 1998, dated
24.07.2009 are liable to be set aside, accordingly, the point Nos.3 and
4 are answered.
36. In the result, both the appeals are allowed. Considering the
circumstances of the cases, I order each party do bear their own costs
in both the appeals.
As a sequel, miscellaneous petitions, if any, pending in the
Appeals shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 19.06.2024
sj
30 VGKRJ
AS Nos.544 of 2005 & 644 of 2009
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
Appeal Suit Nos. 544 of 2005 & 644 of 2009
Date: 19.06.2024
sj
