Mir Dawar Ali Baquri vs M/S. Pradeep Constructions And 4 ...
2021 Latest Caselaw 1420 Tel

     HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                  AND
       HONOURABLE SRI JUSTICE T.AMARNATH GOUD

                    C.M.A. No.460 and 463 of 2020

COMMON JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)


      These Appeals arise out of the same between the same parties and

so they are being disposed of by this common judgment.


2.    The appellant in both these Appeals is the plaintiff in O.S.No.961

of 2019 on the file of the XXVI Additional Chief Judge, City Civil Court,

Hyderabad.


3.    The said suit was filed on 25-10-2019 by the appellant against the

respondents for declaration of his title to the suit schedule property and

for recovery of possession by evicting the respondents, if necessary by

demolishing the constructions made by respondents.

THE STAND OF THE APPELLANT IN THE SUIT

4. The case of the appellant/plaintiff in the suit is that the suit

schedule property had been purchased by one S.Osman Ali Khan under a

registered sale deed Doc.No.1897 of 1963 dt.14-11-1963. He alleged that

out of the land 1563 sq. yds purchased under these documents, an extent

of 1286 sq.yds was gifted by an oral Hiba by S.Osman Ali Khan in

favour of Smt.Rukiya Begum, who was his step-sister.

5. It is contended by appellant that Smt.Rukiya Begum, then

constructed a house in 1974 in the suit schedule property along with ::2::

compound wall, that it was assessed to tax in 1974 and was giving House

No.6-3-1099/1/2/1.

6. The appellant contended that Smt.Rukiya Begum is his grand

mother, that she expired on 01-07-2002 intestate leaving behind her son

Mir Raza Ali Baquri, who had also expired on 10-09-2007, and he is the

sole legal heir of his father's estate.

7. He alleged that Smt.Rukiya Begum, appellant's father and

thereafter himself used to reside in the suit schedule property; that the

appellant also has a house in Dabeerpura, Hyderabad; that they were

residing in the said house by keeping the suit schedule property under

lock and key; before appellant's father's death on 10-09-2007, he was

unwell and during the period of illness, nobody looked after the suit

schedule property; the southern boundary wall of the suit schedule

property had collapsed; due to paucity of funds and due to illness of his

father, the appellant could not raise the southern boundary wall again.

8. He alleged that in September, 2018, the 1st respondent, along with

his workmen and associates, raised metal corrugated sheets in an extent

of 7500 mts by blocking the entry into the suit schedule property; that

North West and East side compound walls of the suit schedule property

remained in tact though in a dilapidated state; the appellant approached

the 1st respondent and asked him to remove the same and on the demand

of the appellant, the 1st respondent removed one sheet making it possible

to enter into the suit schedule property from its southern side.

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9. It is contended by the appellant that the 1st respondent again

blocked ingress and egress to the suit schedule property by blocking it

with huge barricades; that the appellant then came to know from

neighbours that 1st respondent was going to start a huge construction in

an extent of 7049.78 sq. mts; the said construction was commenced on

16-03-2009 by including the suit schedule properties by encroaching into

it after obtaining permission from the Greater Hyderabad Municipal

Corporation (GHMC) on 06-10-2018. It is contended by the appellant

that 1st respondent obtained construction from the GHMC by suppressing

the ownership and misrepresenting the facts and the respondents have no

title to the suit schedule property and have no right to make any

constructions therein.

10. He also stated that he filed O.S.No.701 of 2019 before the

IV Junior Civil Judge, City Civil Court, Hyderabad against 1st respondent

and GHMC to declare that the construction permission granted by the

GHMC is illegal and for an injunction restraining the 1st respondent from

making constructions in the suit schedule property; and though initially

an ex parte injunction was granted, the same was vacated and the

application for the said purpose was dismissed, and even the C.M.A. filed

against it was dismissed.

11. The appellant contended that during pendency of the C.M.A., he

came to know that 1st respondent had taken registered Development

Agreement-cum-GPA dt.12-09-2018 from respondent Nos.2 and 3 for an

extent of 4182 sq. yds and another registered Development Agreement-

cum-GPA dt.22-10-2018 from respondent Nos.4 and 5 for an extent of ::4::

3840 sq. yds. He also stated that 1st respondent is claiming that he had

purchased 1195 sq. yds under a registered sale deed dt.16-11-2006.

12. He alleged that source of title of respondents is from one Smt.

Indira Rai, who claims to have purchased 1777 sq. yds from late Gouse

Mohiuddin under registered sale deeds dt.23-08-1961, 15-12-1961,

14-03-1962 and 08-08-1963; the said Smt. Indira Rai sold what she had

purchased and there is no identity to the property purchased by

respondents from her. He also contended that his own predecessor had

purchased the suit schedule property much prior to the sales made by

Smt. Indira Rai.

I.A.No.1440 of 2019 and I.A.No.1441 of 2019

13. Along with the suit, the appellant had filed I.A.No.1440 of 2019

under Order 39 Rules 1 and 2 C.P.C. for an ad interim injunction

restraining the respondents from changing the nature of the suit schedule

property pending suit and I.A.No.1441 of 2019 under Order 39 Rule

1 C.P.C. to restrain the respondents from alienating the suit schedule

property till disposal of the suit.

14. The appellant reiterated the contents of the plaint in the said

applications.

COUNTER OF 1ST RESPONDENT/1ST DEFENDANT

15. In both these applications, counter-affidavit was filed by

1st respondent denying the appellant's contentions that he was previously

in possession of the suit schedule property.

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16. The 1st respondent stated that the appellant had filed O.S.No.701 of

2019 claiming to be in possession of the suit schedule property on the

date of filing of suit and alleging that he lost possession during pendency

of the suit, but this pleading is incorrect. He also stated that the

injunction application filed by appellant in O.S.No.701 of 2019 was

dismissed holding that the appellant failed to establish his lineage from

the person through whom he is claiming title and the same was also

confirmed in C.M.A. filed against the said order.

17. It is also contended that appellant had not filed any documents to

show that there was an oral gift by Osman Ali Khan to Smt.Rukiya

Begum by way of Hiba, and that on her death, the property devolved on

her son Mir Raza Ali Baquari, and after his death, it devolved on the

appellant.

18. The 1st respondent further contended that there are no pleadings in

the plaint or in the I.As. filed by the appellant as to when the appellant

lost possession, what is the identity of the suit schedule property and

what is the basis for seeking relief of declaration of title.

19. It contended that the suit schedule property has identifiable

boundaries, but the appellant is seeking injunction against imaginary

property, which is not identifiable and the entire litigation is speculative.

20. It further contended that 1st respondent had acquired the property

under registered Development Agreement-cum-GPA in 2018 and also

independent purchases under registered sale deeds and purchase by the ::6::

predecessors-in-title M/s Pradeep Constructions had been regularized

under G.O.Ms.No.455 by paying appropriate regularization charges.

21. According to the 1st respondent, one Gulam Mohammed Taher and

Nawab Hadi Ali Khan were owners and possessors of various extends of

land in Sy.No.22 of Somajiguda village corresponding to T.S.No.20/3.

He contended that that they sold the said land under registered sale deeds

dated 28th Meher 1338 Fasli to late Ghouse Mohiuddin and the said

Ghouse Mohiuddin executed four sale deeds on 23-08-1961, 20-12-1961,

14-03-1962 and 08-08-1963 in respect of 17,777 sq. yds in the said

Survey number/T.S.Number. Reliance is also placed on a compromise

decree dt.21-06-1993 in O.S.No.1684 of 1993, to which Smt.Indira Rai

was a party.

22. The series of transactions through which the 1st respondent and it's

predecessors acquired title to the property are set out in detail in the

counter affidavit.

23. It is submitted the by virtue of sale deeds, the respondent No.1

independently purchased land admeasuring to an extent of 1866 Sq.yds

and by virtue of 2 registered Development Agreement-cum-GPAs, it

acquired interest over the property admeasuring to an extent of 8267.63

sq. mts, totaling to an extent of 9888 Sq. yds. It is submitted that the

property on which interest of 1st respondent was created can be traced

way back from 1928.

24. It alleged that this property was taken over by the Government

under the provisions of Urban Land Ceiling Act, though possession of the ::7::

same remained with the predecessors-in-title of the principal of Pradeep

Constructions. The owners of land have approached the Government

under G.O.Ms.No.455 and got it regularized on payment of penalization

charges. The owners of land have effectively derived their title in all

respects from the government.

25. It is submitted that the 1st respondent made an application under

the provisions of Section 428 of GHMC Act to the authorities for grant of

permission along with necessary documentation and plans. The

authorities after considering the application of Pradeep Construction was

pleased to grant building permission vide permit No1/C17/17963/2018

dated 14.12.2018. This permission was granted for construction of

residential building with stilt+ 2 cellars+17upper floors.

26. The 1st respondent alleges that the appellant is claiming an

imaginary extent of property with imaginary boundaries.

27. The respondents denied all the rest of the allegations of the

appellant in the plaint and in the affidavits filed in support of the I.As.

They also disputed appellant's claim that he is the descendant of

Smt.Rukiya Begum and he is the sole surviving legal heir. According to

respondents, the oral Hiba set up by the appellant is a bogus one.

28. It is the contention of the 1st respondent that the development being

undertaken by 1st respondent does not include the suit schedule property

and the same has nothing to do with the suit schedule property and that

1st respondent is making construction in the property covered under

Development Agreements referred to above.

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29. It was denied that Ms.Indira Rai had sold excess land and there is

no identity to the property of respondents.

Counter affidavit of respondents 2 and 3

30. Respondent Nos.2 and 3 also filed counter-affidavit supporting the

stand of 1st respondent and denying title or possession of the appellant.

31. A further plea is raised that the interim reliefs sought are in nature

of an injunction, but in the main suit, such relief has not been sought and

the interim orders cannot be said to be ancillary to the main relief in the

suit.

32. They explained the flow of title to them from Ms.Indira Rai and

also relied on endorsements issued by the Special Officer & Competent

Authority under Urban Land Ceiling issued under G.O.Ms.No.2066

dt.29-11-2005.

33. It is contended that the sale deeds dt.14-11-1963 and 18-01-1969,

on which reliance is being placed by appellant, are sham and bogus

documents and appellant had no manner of right in the suit schedule

property.

The order dt.7.9.2020 in IA No.1440 and 1441 of 2019

34. In the Court below, the appellant marked Exs.P-1 to P-26 and

respondents marked Exs.R-1 to R-46.

35. By a common order dt.07-09-2020, both I.A.No.1440 of 2019 and

1441 of 2019 were dismissed by the Court below.

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36. After referring to the contentions of both sides, the Court below

observed that the appellant did not file any documentary evidence to

prove as to how he succeeded to the property by filing legal heir

certificate or family member certificate proving his succession to the

property, and that he also did not file any document to show his recent

possession over the said property. It considered the tax receipts filed by

the appellant, and stated that these documents do not show the title or

possession of the appellant for the recent years, and all the documents

filed by the appellant relate to more than two decades back, which do not

show his possession or the date of his dispossession.

37. It also referred to Ex.P-1 sale deed dt.09-02-1993 being relied

upon by the appellant and stated that in the plaint schedule also,

boundaries mentioned are identical to these mentioned in Ex.P-1 and the

appellant did not show the latest boundaries. It pointed out that since the

appellant had only shown boundaries of the property as they stood in

1963, it shows that he has no recent access of the suit schedule property

and he does not know the current boundaries of his own property. It also

held that the appellant could not show in which part of the whole

construction of 1st respondent, the suit schedule property was located.

38. That apart, it also observed that the appellant could not prove the

date of oral Hiba said to have been made by Osman Ali Khan in favour of

Smt.Rukia Begum, that the appellant was not born on the date of the said

oral Hiba, and the burden of proof rests on the appellant to prove the facts

pleaded by him and he cannot depend upon the weakness of the case of

the respondents.

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39. It then held that without providing the identity and location of his

property and locating it within the property developed by 1st respondent,

appellant cannot seek the relief of injunction against the respondents

either from proceeding with further construction or from alienating it.

40. It then discussed the documents Exs.R-1 to R-42 filed by

respondents, and observed that prima facie 1st respondent had acquired

land under Ex.P-19 Development Agreement-cum-GPA executed by

respondent Nos.2 and 3 in its favour for 4182 sq. yds and Ex.R-1

Development Agreement-cum-GPA had been executed by respondent

Nos.4 and 5 in favour of 1st respondent for 3840 sq. yds.

41. Apart from these, it observed that 1st respondent is the owner of

property an extent of 671 sq. yds having purchased it under registered

sale deed doc.No.3147 of 2016 (Ex.R-14); and under Ex.R-12, the

1st respondent had also purchased 1195 sq. yds and their title had been

recognized by the Urban Land Ceiling Authorities by issuing

regularization orders under Exs.R-30 to R-42.

42. It then held that if the construction is injuncted by Court order, it

would cause loss to the respondents and also to the number of flat

purchasers and in the event, appellants succeeds in the suit, he will get

the suit schedule property along with built up area and if injunction is

granted, there would be no irreparable loss caused to him.

The present Appeal

43. Assailing the same, this Appeal is filed.

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44. Heard Sri V.Srinivas, learned counsel for the appellant, Sri

S.Nagesh Reddy, learned counsel for Sri T.Bala Mohan Reddy, leaned

counsel for 1st respondent and Sri V.Vishnuvardhan Reddy, learned

counsel for respondent Nos.1 and 2.

Contentions of counsel for parties

45. Learned counsel for appellant contended the findings of the Court

below in the common order dt.07-09-2020 in I.A. Nos.1440 and 1441 of

2019 are not correct and are contrary to record. He also placed reliance

on Exs.P-24 and P-25 tax receipts issued on 17-04-1997 and 25-12-1974

in favour of Rukiya Begum, and contended that they prima facie prove

Rukiya Begum's possession over the property. He also contended that

there is nothing wrong in appellant showing the boundaries to the suit

schedule property as per Ex.P-17 sale deed dt.14-11-1963 and that being

a 30 year old document, its contents are presumed to be true under

Section 90 of the Evidence Act. According to him, a presumption

forward of possession is available under Section 110 of the Evidence Act,

and Ex.P-22 market value certificate dt.16-10-2019 and Ex.P-23

Encumbrance Certificate dt.28-08-2020 would prove the possession of

Smt.Rukiya Begum, the appellant's father and appellant, and that most of

the Government Orders issued to the respondents do not establish their

title.

46. Learned counsel for respondents refuted the said contentions.

CONSIDERATION BY THE COURT

47. We have noted the submissions of both sides.

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48. In the plaint schedule, the property is described as:

"All that the house property bearing H No.6-3-1099/1/2/1 admeasuring 1286 square yards in part of Sy.No.22 situated at Somajiguda, Hyderabad and bounded on :

North : Land belongs to Smt.Indira Rai South : Sy.No.31 Part and Road East : Neighbor's property West : Neighbor's property"

49. In Ex.P-17 registered sale deed dt.14-11-1963 executed by Ghouse

Mohiddin in favour of S. Osman Ali Khan for 1563 sq.yds in Sy.No.22

and 31 of Soamjiguda, the following boundaries are shown:

       East          :      Out houses belonging to Junaid Kamal
                             Mohiuddin and Junaid Adil Mohiuddin

       West          :       land belonging to Gulam Ahmed situated in
                            Sy.No.6 and Gulam Mohiuddin in Sy.Nio,.31/2

       North         :      Land belonging to Mrs.Indira Rai
       South         :      Tennis Court in the land belonging to Ghouse
                            Mohiuddin in Sy.No.31/1 and the main cement
                            Road"

50. Thus, the southern and northern boundary of the suit schedule

properties are identical to those mentioned in Ex.P-17 sale deed dt.

14-11-1963. Between 1963 and October, 2019, when the suit was filed,

the area of Somajiguda had developed dramatically and a lot of new

structures have come up. In this period of time, it is not possible that the

boundaries as were shown in Ex.P-17 sale deed continued to exist even in

October, 2019.

51. Also in the plaint, the appellant mentioned the Eastern and Western

boundary as simply 'neighbor's property' without mentioning who the ::13::

neighbors are. So we are of the opinion that prima facie the suit schedule

appears to be vague.

52. On the other hand, the documents filed by respondents show clear

boundaries to the plaint schedule and they have specifically made an

allegation that the plaint schedule is vague and the appellant is seeking

recovery of possession of imaginary property with imaginary boundaries.

53. We are also of the opinion that the appellant failed to establish

prima facie the relationship between Osman Ali Khan, the purchaser

under Exs.P-17 and P-18 sale deeds and Smt.Rukiya Begum, who is said

to be his step-sister, and the alleged oral Hiba made by Osman Ali Khan

in favor of Smt.Rukiya Begum. These are matters to which need to be

established during trial.

54. Though respondents have sought to contend that in the suit there is

no relief of perpetual injunction and the appellant cannot seek the relief

of interim injunction in I.A.Nos.1440 and 1441 of 2019, we do not agree

with the said contentions for the reason that the relief sought in the suit is

declaration of title and recovery of possession and if the appellant were to

make out of a case for such relief in the suit, the interim relief in

I.A.Nos.1440 and 1441 of 2019 would aid the same.

55. Be that as it may, in our opinion, the appellant has not established

prima facie case and we hold that the court below has rightly dismissed

I.A.Nos.1440 and 1441 of 2019.

56. Accordingly, the Appeals fail and are dismissed.

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57. However, it is made clear that any alienations made by respondents

during pendency of suit shall abide by the result of the suit. No costs.

58. Consequently, miscellaneous petitions, pending if any, shall stand

closed.

____________________________ M.S. RAMACHANDRA RAO, J

_______________________ T.AMARNATH GOUD, J Date: 30-04-2021 Vsv