Telangana High Court

Ashok Kumar Vir H.U.F vs Mohd. Khaja Pasha on 6 September, 2021

Bench: M.S.Ramachandra Rao, T.Vinod Kumar

     THE HONOURABLE THE ACTING CHIEF JUSTICE
             M.S. RAMACHANDRA RAO

                                   AND

        HONOURABLE SRI JUSTICE T. VINOD KUMAR

           Civil Miscellaneous Appeal Nos.343 and 344 of 2021


Common Judgment : (Per Hon'ble The Acting Chief Justice   M.S.Ramachandra Rao)



       These two Civil Miscellaneous Appeals arise out of the same

suit between the same parties, and so they are being disposed of by

this Common order.


2.     The appellants in these Appeals are defendant nos.58 to 67 in

the suit.

3.     All the suit schedule properties are located in Kondapur

Village, Serilingampally Mandal, Ranga Reddy District.

4.     The parties will henceforth be referred to as per their array in

the suit.

The suit


5.     The said suit was filed for partition of the suit schedule property

and for (a) allotment of 25% share to the plaintiff and defendant nos.1

to 11, and out of the same, to allot 1/12th share to the plaintiff

separately, (b) to allot other specified shares to defendant nos.12 to

50, (c) to declare registered Sale Deeds (i) Exs.P.7 being Document

No.8365 of 1994 dt.17.10.1994 in favour of 10th defendant for an

extent of Acs.1.19 gts. in Sy.No.40, (ii) Ex.P.8 being Document
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No.8367 of 1994 dt.17.10.1994 in favour of 41st defendant for an

extent of Acs.1.01 gts. in Sy.No.36 and Acs.0.34 gts. in Sy.No.38,

(iii) Ex.P.9 being Document No.8384 of 1994 dt.17.10.1994 in favour

of 41st defendant for an extent of Acs.0.18 gts. in Sy.No.46 and

Acs.0.30 gts. in Sy.No.41 to the extent of the share of the plaintiff and

also (iv) Exs.P.10 to P.19 Sale Deeds bearing Document Nos.15593 of

2019 to 15602 of 2019 all dt.06.09.2019 executed by 59th defendant in

favour of 60th defendant to 65th defendant, and by 58th defendant in

favour of       61st defendant , 66th defendant and 67th defendant

respectively.

The background facts


6.    The father of the plaintiff is one Shaik Mahaboob Saheb and his

grandfather is Ali Saheb. Ali Saheb also had six daughters.

7.    After the death of Ali Saheb, his son Shaik Mahaboob sold

Acs.3.04 ½ gts. in Sy.Nos.36 to 41 of Kondapur Village,

Serilingampally Mandal, Ranga Reddy District to Shaik Baban, the

father of defendant nos.51 to 57 under registered Sale Deed Ex.P.5

dt.13.09.1965.

8.    Thereafter, defendant nos.51 to 57, who are children of Shaik

Baban, executed Exs.P.7 to P.9 Sale Deeds dt.17.10.1994 in favour of

defendant nos.58 and 59 alienating Acs.1.19 gts. in Sy.No.40,

Acs.1.01.gts. in Sy.No.36, Ac.0.34 gts. in Sy.No.38, Acs.1.27 gts. in

Sy.No.37, Ac.0.18 gts. in Sy.No.46, and Ac.0.30 gts. in Sy.No.41 of

Kondapur village.
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9.     Subsequently, Exs.P.10 to P.16 Sale Deeds dt.06.09.2019 were

executed by 59th defendant in favour of defendant nos.60 to 65

alienating small portions admeasuring Acs.0.20 gts. Ac.0.07 gts. in

Sy.No.37, Acs.1.07 gts. in Sy.No.36, Ac.0.20 gts. in Sy.No.37,

Ac.0.34 gts. in Sy.No.38, Ac.0.10 gts. in Sy.No.37 and Ac.0.10 gts. in

Sy.No.37, of Kondapur village respectively.

10.    The 58th defendant executed Exs.P.17 to P.19 dt.06.09.2019 in

favour of defendant nos.66 and 67 alienating Ac.0.33 gts. in

Sy.No.40, Ac.0.18 gts. in Sy.No.39 and Ac.0.14 ½ gts. in Sy.No.41 of

Kondapur village.

The case of the plaintiff :


11.    The instant suit is filed for partition on 16.06.2021 by the

plaintiff contending that Late Ali Saheb and one Madar Saheb owned

Ac.1.01 gts. in Sy.No.36, Ac.1.27 gts. in Sy.No.37, Ac.0.34 gts. in

Sy.No.38, Ac.0.18 gts. in Sy.No.46, Ac.1.19 gts. in Sy.No.40, Ac.0.30

gts. in Sy.No.41 total admeasuring Acs.6.09 gts. in Kondapur Village,

that they partitioned the said lands between them in equal shares, and

after the partition, each of them got Acs.3.04 ½ gts.

12.    He alleged that Ali Saheb died intestate and the plaintiff and

defendant nos.1 to 50 inherited the land and it became their joint

property; that they came to know that defendant nos.58 and 59 were

claiming title over the property on the basis of purchase made by them

from defendant nos.51 to 57 under Exs.P.7 to P.9 Sale Deeds; that

Shaik Baban, the father of defendant nos.51 to 57 was not sold any
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land by the plaintiff's father Mahaboob Saheb; and so defendant

nos.51 to 57 or defendant nos.58 and 59 have no valid title to the suit

schedule property, and that it is the joint property of the plaintiff and

defendant nos.1 to 46.

13.   He also alleged that defendant nos.12 to 20 filed O.S.No.946 of

2012 before the III Additional District Judge, L.B. Nagar; the said

persons are the children of the 1st daughter of Late Ali Saheb; that the

plaintiff along with defendant nos.1 to 11 filed Written Statement

therein to partition the property; that the said suit was subsequently

withdrawn on 04.06.2019 without informing the plaintiff and

defendant nos.1 to 11; that the said suit was withdrawn on the ground

that Ex.R.1 Ratification / Confirmation Deed being Doc.No.8707 of

2019 dt.16.05.2019 was executed by defendant nos.12 to 20 in favour

of 58th defendant after compromise between them to which the

plaintiff and defendant No. 1 to 11 had not been parties; and the said

settlement between them does not bind him.

14.   It is stated that subsequently Exs.P.10 to P.19 came to be

executed by defendant nos.58 to 59 in favour of defendant nos.60 to

67, that defendant nos.60 to 66 executed registered Development

Agreement - cum - General Power of Attorney Ex.P.20 being

Document No.15606 of 2019 in favour of 67th defendant and the latter

was trying to change the nature of the property.

15.   The suit schedule property is described as extent of Acs.3.04 ½

gts. (15065.00 Sq.yds.) in Sy.No.36 to 41 of Kondapur Village.
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16.    The plaintiff paid Court Fee under Section 34(1) of the

Telangana Court Fee and Suits Valuation Act, thereby admitting that

he was not in joint possession of the suit schedule property.

I.A.Nos.315 and 316 of 2021


17.    Along with the suit, the plaintiff filed I.A.No.315 of 2021 under

Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908 to

restrain defendant nos.58 to 67 from alienating or creating charge to

third-parties; and I.A.No.316 of 2021 also under the said provision of

law restraining respondent nos.58 to 67 from changing the nature of

the suit schedule property.

18. The plaintiff reiterated the contents of the plaint in these

applications.

The stand of defendant nos.58 to 67 in the I.A.s 315 and 316 of 2021

19. Counter-affidavits were filed in these applications by 67th

defendant on its behalf and also on behalf of defendant nos.58 to 66

opposing grant of interim relief to the plaintiff.

20. They contended that the parties being members of the Muslim

community, there is no concept of joint property or co-parcenary; that

the compromise in O.S.No.946 of 2012 was valid in law since all the

defendants therein received notices and reported 'No Objection' and

so the suit was withdrawn on 04.06.2019 on the basis of the Memo

filed in the Court; and the order passed therein cannot be questioned

in the suit.

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21. They contended that since the property was sold by the father of

the plaintiff during his lifetime under registered sale deed, neither the

plaintiff nor the other legal heirs of Late Mahaboob Saheb can make

any claim over the suit schedule property.

22. It is contended that the sisters of Mahaboob Saheb / daughters

of Late Ali Saheb had ratified and confirmed the sale deed executed

by Mahaboob Saheb to Shaik Baban Saheb under registered

Rectification Deed Ex.R.1 dt.16.05.2019; since Mahaboob Saheb

executed Ex.P.5, the plaintiff and defendant nos.1 to 11 were excluded

and they have no right to claim the property as per Muslim Personal

Law.

23. It is also contended that the said sale deed of 1965 had not been

challenged since 55 years even in the suit and so the plaintiff is not

entitled to any relief as per Section 41 of the Specific Relief Act,

1963.

24. It is further contended that the suit is also barred by limitation.

25. It is alleged that the purchasers of the property are in

continuous possession without any interference from 1965 onwards

and the names of respondent nos.58 and 59 were incorporated in

Revenue Records from 1994 - 1995 in the Pattedar Column.

The order of the Court below :

26. Before the Court below the plaintiff marked Exs.P.1 to P.22

while respondent nos.58 to 67 marked Exs.R.1 and R.2.

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27. Initially, on 16.06.2021, an ex parte temporary injunction was

granted in favour of the plaintiff in both the interim applications

I.A.Nos.315 and 316 of 2021 and the same was extended till

08.07.2021.

28. After hearing arguments on 16.07.2021, the I.A.s were allowed

with costs, and the orders passed on 16.06.2021 were made absolute.

29. The Court below observed that the Memorandum Ex.P.3 filed

in O.S.no.946 of 2012 was not signed by plaintiff and defendant nos.1

to 11 herein, and when some of the defendants are not parties to the

compromise in a suit for partition, it cannot be said that the matter was

fully settled and there was also compromise with the plaintiff and

defendant nos.1 to 11, more particularly when they had also filed

Written Statement in the suit, and there is no material to show that all

parties to the said suit had participated in the said compromise, for not

pressing the said suit.

30. It therefore held that the Compromise in O.S.No.946 of 2012

does not bind the plaintiff and defendant nos.1 to 11 who also have

share in the suit schedule property.

31. It therefore concluded that there was prima facie case in favour

of the plaintiff, and balance of convenience was also in his favour and

it was a fit case to grant temporary injunction because if it is not

granted the plaintiff will suffer irreparable loss.

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The instant C.M.A.s

32. Challenging the same, the present Appeals were filed by

defendant nos.58 to 67 in the suit.

33. Heard Sri D. Madhava Rao, counsel for the appellants, and Sri

V. Srinivas, Senior Counsel for Sri B. Vijaysimha Reddy, counsel for

the 1st respondent in the C.M.A.s / plaintiff in the suit.

34. It is admitted by the plaintiff that his grandfather Ali Saheb was

the owner of Acs.3.04 ½ gts. after partition with Sri Madar Saheb.

35. There is a registered Sale Deed Ex.P.5 dt.13.09.1965 allegedly

executed by Shaik Mahaboob, son of Ali Saheb in favour of Shaik

Baban, the father of defendant nos.51 to 57.

36. Except saying that Shaik Mahaboob did not execute the said

document and it is not binding on him, the plaintiff did not challenge

the said transaction governed by Ex.P.5 at all which occurred 55 years

back.

37. Admittedly, the suit schedule property is not in the possession

of the plaintiff or defendant nos.1 to 11 from 1965. The fact that the

plaintiff is not in joint possession of the property is clear because he

paid Court Fee under Section 34(1) of the Telangana State Court Fee

and Suit Valuation Act on ad valorem basis. This itself indicates that

the plaintiff had been excluded from possession of the property.

38. Further, the concept of joint possession of heirs on the death of

an owner as in the case of Hindus, would not apply to the instant case, ::9::

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because there is no concept of coparcenary or joint family property

under Muslim Law. The heirs are tenants in common and not joint

tenants.

39. It is not disputed that under Islamic Law of Inheritance there is

no right by birth in property of an ancestor and only after the death of

an ancestor can inheritance be claimed. There is no concept of a

person being a heir of a living person.

40. Prima facie, therefore during the lifetime of his father

Mahaboob Saheb, the plaintiff had no right in the subject property.

41. When Ex.P.5 prima facie shows sale by his father in 1965,

there was no property left for the plaintiff to inherit on the death of

Mahaboob Saheb.

42. It may be that the compromise in O.S.No.946 of 2012 to which

the plaintiff and defendant nos.1 to 11 herein are parties may not bind

them because there is no material to show that they agreed to such

compromise and for withdrawal of the said suit for partition.

43. But, there is no explanation from the plaintiff as to how he is

entitled to collaterally challenge the transaction governed by Ex.P.5,

55 years after its execution, when third-parties are in possession of the

same for the said period.

44. Assuming for the sake of argument that the said transaction is

invalid for any reason such as non-joinder of all the legal heirs of Ali

Saheb, the grand-father of the plaintiff, it is settled law that possession ::10::

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under such invalid transaction is adverse possession from its inception

and primafacie the title if any of the plaintiff would stand

extinguished by ouster.

45. In State of W.B. v. Dalhousie Institute Society1, the Supreme

Court held as follows :

"16. There is no material placed before us to show that the grant has been made in the manner required by law though as a fact a grant of the site has been made in favour of the Institute. The evidence relied on by the Special Land Acquisition Judge and the High Court also clearly establishes that the respondent has been in open, continuous and uninterrupted possession and enjoyment of the site for over 60 years. In this respect the material documentary evidence referred to by the High Court clearly establishes that the respondent has been treated as owner of the site not only by the Corporation, but also by the Government. The possession of the respondent must have been on the basis of the grant made by the Government, which, no doubt, is invalid in law. As to what exactly is the legal effect of such possession has been Considered by this Court in Collector of Bombay v. Municipal Corporation of the City of Bombay, 1952 SCR 43: AIR 1951 SC 469 as follows:

".... the position of the respondent Corporation and its prodecessor-in-title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor-in-title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right, and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title to it and its predecessor-in-title had been prescribing for during all this period, that is to say, the right to hold in perpetuity free from rent but only

(1970) 3 SCC 802 ::11::