Smt.Annapurna vs N. Srinivas
2022 Latest Caselaw 2429 Tel

              HON'BLE SMT. JUSTICE P.SREE SUDHA

                         C.C.C.A.No.362 of 2019

                            JUDGMENT

1. This appeal is directed against the judgment and decree dated

13.09.2019 passed in O.S.No.90 of 2015 on the file of the learned III

Senior Civil Judge, City Civil Court at Secunderabad.

2. The suit O.S.No.90 of 2015 was filed by the plaintiff seeking

recovery of possession, for mesne profits and for perpetual injunction.

The trial Court after considering the entire oral and documentary

evidence on record, decreed the suit directing the defendant to vacate

and handover the physical possession of house bearing No.12-11-

339/2, measuring 101 square yards, Warasiguda, Secunderabad,

(hereinafter, 'the suit schedule property') and granted mesne profits at

the rate of Rs.10,000/- per month from the date of filing suit to till the

date of realisation and also granted perpetual injunction as sought

for. Aggrieved by the said judgment and decree, the defendant

preferred this Appeal.

3. Learned counsel for the appellant would contend that the suit

is filed for recovery of possession without seeking for declaratory relief

in respect of the title over the suit schedule property is not

maintainable. He would further contend that the trial Court failed to

consider that the title of the defendant over the suit schedule property

was inherited through registered conveyance deed. He would also

argue that the trial Court erred in admitting Ex.A1 without giving

weightage to the evidence on record and the evidence of D.Ws.1 and 2

was not appreciated properly and held that the evidence of D.Ws.1

and 2 and Exs.B1 to B3 have no evidentiary value, therefore, he

sought to set aside the judgment and decree.

4. For the sake of convenience, the parties hereinafter are referred

to as arrayed in the suit.

5. Heard the learned counsel appearing for the appellant and the

learned counsel appearing for the respondent.

6. The factual matrix of the case of the plaintiff is that he filed

suit for recovery of possession and for mesne profits. It is his case that

he is the absolute owner and possessor of the suit schedule property

by virtue of registered sale deed bearing Document No.813 of 1983

and he purchased the same from Smt.Khajabi, W/o.Rajabali. He is

having three elder brothers and five sisters. The amount was obtained

from one Marwadi Seth and purchased the suit schedule property, for

which his mother kept him as a servant for five years. After the

purchase of the property, his mother died. He would submit that the

defendant and her husband-N.Krishna were staying at Mallepalli and

then shifted to Warasiguda and from there Khatedhan and when her

husband fell ill with heart problem, he was admitted in Andhra

Mahila Sabha Hospital, where he died in the year, 2003. The dead

body of her husband was brought by the plaintiff to his house at

Warasiguda and after performing funeral and other ceremonies, the

defendant shifted her house from Khatedhan to Warasiguda and

staying in the plaintiff's house. After some time, the defendant started

picking up quarrels everyday blaming the plaintiff on irrational

grounds and as such, the matter was brought to the notice of the

elders on 27.10.2007 where the defendant was advised to take

another house. The defendant instead of obliging the advise of elders

asked the plaintiff to stay somewhere and that she would stay in the

very same suit schedule property by paying rent of Rs.500/-. The

plaintiff unable to bear the harassment of the defendant, shifted his

residence to Achaiah Nagar, Hyderabad, for a rent of Rs.2,000/- per

month in the first week of December, 2007. The defendant was quite

irregular in payment of rent from the last three years and threatening

him and as such he got issued a legal notice on 25.10.2014 to her

and a reply notice was given by her denying the title and payment of

rents to the plaintiff. The suit schedule property fetches a rent of

Rs.10,000/- per month and therefore, requested mesne profits @

Rs.10,000/- per month till realisation of the decree.

7. In the written statement filed by the defendant while denying

the material allegations, she stated that the suit schedule property

was purchased by the elder brother of her husband who is also the

elder brother of the plaintiff. Her husband was working in Dubai and

he used to send amounts to the plaintiff. Accordingly, the property

was purchased in the year, 1983. At that time, the plaintiff was minor

and aged about eight to nine years and as such her husband's

brother acted as a guardian in the sale deed. As her husband was

maintaining his younger brother i.e., plaintiff, he purchased the

property in the name of the plaintiff under the guardianship of one

N.Yadagiri-elder brother of plaintiff. When her husband returned back

to India in the year 1988 stayed in the suit schedule property and got

married in the year 1989 and blessed with three female children and

their family was residing in the suit schedule property as absolute

owner and possessors of the same. N.Krishna, husband of the

defendant, was expired in the year, 2003. During his life time, he

performed the marriage of plaintiff in the year, 1998 and also provided

financial help to carry on business for his livelihood. After his death,

the plaintiff shifted his family and started residing at Ramnagar and

also doing his own business. He is having only one daughter. The

original sale deed is in the custody of the defendant and that she also

filed O.S.No.121 of 2015 for cancellation of the sale deed. She would

submit that the plaintiff is trying to dispossess her and her husband

by illegal means and made all the false allegations. She would submit

that as she is the absolute owner of the property, the question of

payment of rents does not arise. The plaintiff got issued a legal notice

with false allegations and she gave reply notice in the year, 2004. She

approached caste-association i.e., Jantanagarala Mahendra Sangam

and the committee conducted a meeting in the month of October,

2014 wherein the plaintiff did not attend the meeting. But the elder

brother of the plaintiff namely N.Yadagiri and other relatives attended

and the committee passed a resolution in her favour and directed the

plaintiff to execute release deed in favour of the defendant confirming

her ownership rights over the suit schedule property. She filed a copy

of the resolution and also original sale deed in O.S.No.121 of 2015.

She also filed original letters written by her husband from Dubai,

ration card and Aadhar card relating to her in the said suit. As both

the matters are connected, requested the Court to dispose of the same

by conducting a joint trial. She would also state that as the plaintiff

filed the suit after a lapse of 36 years, it is not maintainable and the

said property was purchased by her husband during her lifetime and

therefore, prayed for dismissal of the suit.

8. In support of his case, the plaintiff examined himself as P.W.1

and Exs.A1 to A8 are marked on his behalf. The defendant examined

herself as D.W.1 and her husband was examined as D.W.2 and

marked Exs.B1 to B3 on her behalf.

9. Plaintiff herein admitted that the defendant filed O.S.No.121 of

2015 for which he also filed his written statement. He deposed that

his elder brother N.Yadagiri is a natural guardian in the sale deed and

he was a minor at that time and his second brother N.Krishna was

engaged in a private service at Dubai. The marriage of N.Krishna was

performed in the year 1988 and his marriage was performed in the

year, 1999. He further deposed that he has not received any notice

from Sangam. It was suggested to him that in spite of service of

notice, he refused the same and did not attend the Panchayat, but he

denied it. It was also suggested to him that his Advocate received

reply notice along with copy of resolution for which he stated that he

do not know the same. It was suggested to him that his other brother

N.Yadagiri in his written statement filed in O.S.No.121 of 2015

admitted that he paid sale consideration amount sent by N.Krishna to

the vendor and as such he is the absolute owner of the suit schedule

property, for which he denied the same. D.W.1 in his cross-

examination deposed that till the date of purchase of the house, her

husband paid all the taxes to the concerned department and after his

death she paid all the taxes including water and electricity. But she

paid in the name of the plaintiff as the document is in the name of

plaintiff. As N.Yadagiri was a Government Employee, the property

was purchased in the name of plaintiff with the funds of her husband.

Plaintiff issued legal notice in the year 2006 and again issued another

notice in the year, 2014. From the year, 1983 to till date, she is the

absolute owner and the exclusive owner of the property. She deposed

that she approached caste-association elders in the year, 2014 for

redressal and the resolution was passed in her favour. She filed

O.S.No.121 of 2015 for cancellation of the sale deed. In her cross-

examination, she deposed that they have taken shop at Khatedan,

after the birth of second child when they were residing in the suit

schedule property and that when they were at Khatedan, her husband

had heart attack. When she was informed by her husband's elder

sister about the heart attack, she went to Andhra Mahila Sabha

Hospital, but the authorities did not permit her to enter into the

patient's room and she returned back. She deposed that her husband

came back to India after four years. During those four years, the suit

schedule property was vacant. The defendant was also not staying in

the said house and was residing at her relatives house at Mallepalli.

She also deposed that the mother of her husband purchased the

property from Khaja Bee and all the amenities in the suit schedule

property stands in the her name. Ex.A10 contains the signature of

plaintiff. Ex.A11 contains the signature of his mother and elder

brother and it is not signed by the plaintiff. Ex.A12 contains the

signature of her elder brother-in-law Naryana. She do not know about

the bank balance of her husband in the year, 1980. She further

deposed that she approached the caste association and they called

the plaintiff for three times, but she do not know whether notices were

issued to him or not. D.W.2 in his cross-examination stated that he

has not taken any permission to act as a natural guardian to the

plaintiff and he has not acted as a guardian even at the time of

purchasing the suit schedule property. He has not signed as guardian

in the registered sale deed and also not paid the amount on behalf of

the plaintiff. D.W.1 has not written any document or any letter to him

to act as a natural guardian of the plaintiff.

10. The trial Court after considering the entire evidence on record

decreed the suit and also granted Rs.10,000/- per month towards

mesne profits as it was located in the prime area. It seems during the

pendency of the proceedings, Special Leave Petition No.3143 of 2020

was preferred by the defendant against the orders dated 02.12.2019

passed in I.A.No.1 of 2019 in C.C.C.A.No.362 of 2019 and interim

stay was granted therein including E.P.No.208 of 2019.

11. Learned counsel for the respondent also filed certified copy of

the judgment in O.S.No.121 of 2015 dated 21.08.2019. The said suit

was filed by the defendant herein along with others. In the said suit,

the defendant herein was examined as P.W.1 and the husband of

D.W.1 was examined as P.W.2 and the plaintiff herein is examined as

D.W.1 and his brother N.Yadagiri was examined as D.W.2. Exs.A1 to

A13 was also marked on behalf of the plaintiffs therein. The trial

Court after considering the entire evidence on record, dismissed the

suit. Learned counsel for the plaintiff would argue that as the suit

filed by her for cancellation of the document was dismissed on merits

after contest, the appeal filed by the defendant is devoid of merit and

is to be dismissed.

12. Learned counsel for the defendant would argue that during the

caste elders meeting her brother-in-law N.Yadagiri clearly stated that

he paid sale consideration and the said amount was sent by

N.Krishna. He acted as a guardian for the plaintiff at the time of

execution of the registered sale deed.

13. Perusal of the registered sale deed shows that N.Yadagiri acted

as a guardian and it was executed in favour of the plaintiff, but it was

not stated anywhere in the document that the amount was sent by

his elder brother-N.Krishna and it is a benami transaction. In the

panchayat, considering the admission of N.Yadagiri and also the

evidence of other relatives, the elders passed a resolution that the

plaintiff has no right in the property and he is directed to execute

release deed in favour of the defendant. The plaintiff would contend

that he has not received any notice from the Sangham and as such he

could not attend the meeting and the alleged resolution was passed at

the instance of the defendant for monetary gain. But the elder of the

panchayat was not examined by D.W.1 and also admitted in her

cross-examination that she do not know whether the notices sent to

the plaintiff was received or not. But in the resolution it was observed

that he refused to receive the notices and did not attend the meeting.

Elder of the Committee is not examined. Admittedly, the resolution

was passed in his absence and mere filing of the document under

Ex.B1 is not sufficient to substantiate the version of the defendant.

The legal notice given by the plaintiff on 25.10.2014 under Ex.A3 and

a reply notice issued by the defendant was filed under Ex.A4. The

defendant herein would state that the plaintiff issued legal notice in

the year 2006 and kept quiet till 2014 and issued another notice, but

the notice issued in the year 2006 is not filed before the Court.

14. The plaintiff filed the suit for recovery of possession after the

demise of his elder brother N.Krishna. As per the evidence on record,

N.Krishna worked in Dubai and returned to India in the year 1988

and he married the defendant in the year 1989 and that the

defendant would submit that they were residing in the suit schedule

property from then onwards and that her husband expired in the year

2003. But in the cross-examination it was elicited that immediately

after the marriage she resided at Mallepally and later at Khatedan

when her husband had an heart attack. Therefore, her contention

that she was residing in the suit schedule property from the date of

purchase cannot be accepted. Moreover, if at all the amount was sent

by N.Krishna from Dubai for purchase of the property, it should have

been mentioned in the sale deed as source of income. The defendant

would assert that since Yadagiri is a Government servant, the

property was purchased in the name of minor brother-plaintiff. Even

if the version of the defendant is believed, why they kept quiet from

1985 to 2003 without insisting for release deed or cancellation of the

document during the life time of N.Krishna is not explained. The suit

O.S.No.121 of 2015 was filed in the year 2015 for cancellation of the

document and N.Krishna was also examined as P.W.2 and that the

said suit was dismissed on contest.

15. Learned counsel for the plaintiff relied upon a case law

reported in MANGATHAI AMMAL (DIED) THROUGH L.Rs. V/s.

RAJESWARI1 in which it was held that burden of proving that a

particular sale is benami and the apparent purchaser is not the real

owner, always rests on the person asserting it to be sold. This burden

has to be strictly discharged by adducing legal evidence of a definite

character which would either directly prove the fact of the benami

transaction or establish circumstances unerringly and reasonably

raising an interference of that fact.

16. In the case on hand, the defendant failed to establish the fact

that the suit schedule property was purchased with the funds of her

husband. Though the defendant relied upon Exs.B1 to B3, the trial

Court observed that they could not establish that the money was sent

by her husband for the purchase of the suit schedule property.

Moreover, as the defendant herself filed suit for cancellation of

document and it was dismissed and a register sale deed was executed

in favour of plaintiff and all the taxes were paid in his name from the

date of purchase till today contention of defendant that suit filed

without asking for declaration of title is not maintainable. The

registered sale deed was executed in favour of the plaintiff, only after

the death of her husband, he permitted the defendant to reside in the

said house as she agreed to pay rent at the rate of Rs.500/- per

month, but the defendant could not pay the rent from the past three

MANU/SC/0772/2019

years, and thus, the plaintiff filed the suit for recovery of possession

after issuing legal notice.

17. The trial Court also observed that as the house is located in a

prima area, it fetches the rent of Rs.10,000/- per month and

accordingly granted mesne profits. As the plaintiff did not adduce any

evidence in respect of grant of mesne profits, he is at a liberty to file a

separate suit to that effect. Therefore, the judgment and decree of the

trial Court to the extent of granting relief of mesne profits is without

any evidence and basis and is accordingly set aside to that extent.

18. In the result, the appeal is dismissed confirming the judgment

and decree of the trial Court to the extent of recovery of possession of

the suit schedule property. In so far as granting of mesne profits is

concerned, the same is set aside and the plaintiff is at liberty to work

out his remedies by filing a separate suit and by adducing

independent evidence. However, there shall be no order as to costs.

19. Miscellaneous Petitions, if any, pending in this appeal shall

stand dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

8th JUNE, 2022.

PGS