Haleema Bee vs Syed Yousuf
2022 Latest Caselaw 3160 Tel

         THE HONOURABLE SRI JUSTICE M.LAXMAN

               SECOND APPEAL No.1164 OF 2000

JUDGMENT:

1. The present appeal assails the judgment and decree

dated 17.12.1997 in A.S.No.185 of 1993 on the file of the

Court of the III Member Tribunal for Disciplinary

Proceedings-cum-VIII Additional Chief Judge, City Civil

Court, Hyderabad, (for short, lower appellate Court),

whereunder the appeal was allowed reversing the judgment

and decree dated 19.08.1993 in O.S.No.3019 of 1985 passed

by the Court of the VI Assistant Judge, City Civil Court,

Hyderabad (for short, trial Court) and consequently the suit

filed by the plaintiff for recovery of possession and past and

future mesne profits was dismissed.

2. Originally, appellant No.1 herein filed the above suit

against respondent No.1 herein. During the pendency of the

present appeal, appellant No.1 and respondent No.1 both

died and their legal heirs were brought on record as

appellant No.2 and respondent Nos.2 to 11 respectively.

For the sake of convenience, the parties hereinafter are

referred to as they are arrayed in the suit.

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                                                  SA_1164_2000

3. The sum and substance of the case of the plaintiff is

that she is the absolute owner of house property bearing

No.19-2-574, admeasuring 165 square yards, situated at

Takia Jamal Bee, Fathe Darwaza, Hyderabad, having

purchased the same under a registered sale deed dated

24.09.1968 (Ex.A-1) from Masliuddin (hereinafter referred to

as 'suit property'). She let out the suit property to the

defendant on 05.03.1971 on monthly rent of Rs.20/-. When

the defendant defaulted in payment of rent, the plaintiff filed

R.C.No.120 of 1973 on the file of the Rent Controller,

Hyderabad for eviction of the defendant from the suit

property. In the said case, the defendant filed an

interlocutory application vide I.A.No.226 of 1976 claiming

that there is no landlord - tenant relationship between them

and that the plaintiff was not the owner of the suit property

in the light of decree suffered by her in O.S.No.176 of 1959

on the file of the Court of the III Assistant Judge, City Civil

Court, Hyderabad, whereunder Qasim Bee and others have

got decree in their favour including the suit property. The

plaintiff instituted a suit vide O.S.No.464 of 1973 on the file

of the Court of VI Assistant Judge, City Civil Court,

Hyderabad, seeking declaration and cancellation of decree in 3 ML,J SA_1164_2000

O.S.No.176 of 1959 and the same was decreed on

17.07.1980. Ultimately, the rent control case filed by the

plaintiff was dismissed holding that there is a prima facie

title dispute between the plaintiff and the defendant and

there is no existence of landlord - tenant relationship

between them.

4. It is the further case of the plaintiff that immediately

she could not file the declaration suit since the suit filed by

her was pending. After suit for declaration and cancellation

of decree was decreed, she filed the present suit for recovery

of possession and past and future mesne profits basing on

the title.

5. The case of the defendant is that the suit property is

his ancestral property and he has been in possession of the

same since his birth along with his parents and has been

enjoying the property as his own. There is no existence of

landlord - tenant relationship between them. It is also

stated that he was not a party to O.S.No.464 of 1973, as

such, the decree passed therein has no bearing on him. It is

also claimed that he is in possession of the suit property for 4 ML,J SA_1164_2000

more than statutory period, as such, he has perfected his

title by adverse possession and prayed to dismiss the suit.

6. The trial Court, on the basis of the above pleadings,

has framed the following issues:

"1. Whether plaintiffs is entitled for declaration as prayed for?

2. Whether plaintiff is entitled for mesne profits?

3. Whether plaintiff is entitled for future mesne profits?

4. Whether Court fee paid is not correct?

5. Whether suit is barred by limitation?

6. To what relief?"

7. The plaintiff, to support her case, examined P.Ws.1

and 2 and relied upon Exs.A-1 to A-4. The defendant, to

support his case, examined D.Ws.1 to 5 and relied upon

Exs.B-1 to B-33.

8. The trial Court, after appreciating the evidence on

record, found that the plaintiff has made out her title over

the suit property and decreed the suit. However, the past

mesne profits were rejected and future mesne profits were

awarded @ Rs.1,200/- per month from the date of

institution of the suit till the date of delivery of possession of

the suit property. Aggrieved by the same, the defendant 5 ML,J SA_1164_2000

filed A.S.No.185 of 1993, but no appeal has been preferred

by the plaintiff challenging the denial of past mesne profits.

The lower appellate Court, after appreciating the evidence of

record, found that the plaintiff has failed to establish her

title over the suit property and consequently, the judgment

and decree passed by the trial Court was set aside and the

suit was dismissed. Challenging the same, the present

appeal is filed at the instance of the plaintiff.

9. This Court, by referring ground Nos.3, 4, 9 and 10

mentioned in the memorandum of grounds, admitted the

appeal, but such a procedure is not in tune with Section 100

of CPC and also the decision of the Apex Court, as per

which, the Court hearing the Second Appeal has to frame

the substantial questions of law. Therefore, this Court, by

order dated 21.06.2022, has framed the following

substantial questions of law:

"1. Whether the finding of the first appellate Court in denying the relief of possession based on the title of the plaintiff suffers from any perversity?

2. Whether the finding of the first appellate Court in declaring the title of the defendants by adverse possession without any counter-claim suffers from perversity?"

10. Heard learned counsel for the appellants. There is no

representation for the respondents on the date of hearing of 6 ML,J SA_1164_2000

the appeal and subsequently, when the appeal was posted

for pronouncement of judgment on two or three occasions.

In the said circumstances, the appeal is taken up for ex

parte disposal.

Findings on substantial question of law No.1:

11. Initially, the plaintiff filed the rent control case for

eviction of the defendant in R.C.No.120 of 1973 on the

premise that there is landlord - tenant relationship existing

between them. In the said case, the defendant filed

I.A.No.226 of 1976 to dismiss the rent control case on the

ground that the plaintiff was not the owner of the suit

property. The pleadings of the said application read as

under:

" In the accompanied affidavit, the petitioner states that he is the respondent in the main eviction petition that the respondent herein is not at all the owner much unless landlady within the meaning of Rent Control Act and inasmuch as he himself is claiming the right and title to the premises a suit O.S.No.464/73 on the file of the III Asst. Judge, City Civil Court, Hyderabad is filed by the respondent herein against one Qasim Bee for a declaration that she is the absolute owner of the said house and for cancellation of the preliminary decree dt.23-8-1966 in O.S.176/1959 passed by the III Asst. Judge in favour of the said Qasim Bee and others for the partition of the schedule property. He has herewith filed a certified copy of the plaint in O.S.464/73. In view of the above facts, there is bonafide denial of the petitioner's right in the main case and also bonafide dispute regarding the title of the property. As on the date of petition for eviction filed by the petitioner therein, the petitioner was not the owner. Admittedly, there is a 7 ML,J SA_1164_2000

decree against her in O.S.176/59. Hence, the petitioner has got no locus standi to file eviction petition against the respondent and there is absolutely no cause of action for the main case. Thus, he prays to dismiss the eviction petition inclimine with exemplary costs."

12. As seen from the above pleadings, the initial stand of

the defendant was that the plaintiff was not the owner of the

suit property, but he never set up the title of his own in

respect of the suit property. His only contention in the rent

control case was that the plaintiff herself filed O.S.No.464 of

1973 for cancellation of decree obtained by Qasim Bee and

others in O.S.No.176 of 1959. When the plaintiff suffered

the decree against her, she cannot claim that she is the

owner of the suit property and cannot seek eviction of the

defendant from the property. On filing of I.A.No.226 of 1976

by the defendant, the Rent Controller dismissed the case

holding that there is prima facie title dispute between the

plaintiff and the defendant and there is no existence of

landlord - tenant relationship between them. The said order

was passed on 24.04.1976. The plaintiff could not

immediately take steps for filing the present suit. According

to the plaintiff, since the suit filed by her for declaration and

cancellation of decree was pending, she could not file the

present suit. After getting the decree, the present suit has

been filed.

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                                                SA_1164_2000

13. The evidence and pleadings of the plaintiff show that

she purchased the suit property under a registered sale deed

under Ex.A-1 on 24.09.1968. The plaintiff also relied upon

the decree in O.S.No.464 of 1973 under Ex.A-4, which is

dated 17.08.1980 to contend that she was successful in

reversing the judgment and decree, which was against her,

in O.S.No.176 of 1959, which was the basis for the Rent

Controller to dismiss her case on the ground that there was

prima facie title dispute between the plaintiff and the

defendant. The plaintiff was examined as P.W.1 and also

examined P.W.2, her son.

14. The case set up by the defendant is that the suit

property is his ancestral property and he was in possession

of the same since his birth along with his parents. He has

also set the case of adverse possession. However, the

defendant has not produced any evidence to show that his

ancestors were the possessors of the suit property. It is to

be noted that there is no concept of ancestral property in

Muslim religion unlike the Hindu religion. Therefore, the

claim of the defendant is not maintainable.

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                                                    SA_1164_2000

15. The claim of the plaintiff for title based on the sale

deed under Ex.A-1 was not accepted by the lower appellate

Court. The main reason for not accepting the sale deed is

that the plaintiff has not examined any of the parties to the

sale deed, treating the document as a compulsory attestable

document. This approach of the lower appellate Court is

erroneous. The reason is that though the sale deed is not a

compulsory attestable document, it has a presumptive value

under the Stamps and Registration Act and

non-examination of attestor is not fatal to the case of the

plaintiff. In fact, the plaintiff has not denied the execution of

such a sale deed by Masliuddin. The case of the defendant

is that he is the owner of the suit property by virtue of

inheritance from his ancestors, but he failed to establish the

same.

16. The lower appellate Court has laid more emphasis on

the failure of the plaintiff to place any record to show that

her vendor was holding title and in possession of the suit

property. More credence was given to Exs.B-1 to B-7 which

are the letters among the family members of the defendant,

the postal acknowledgement and reply notice. All those

documents have rightly been considered by the trial Court to 10 ML,J SA_1164_2000

hold that they are not true documents and no witness to the

said documents, more particularly postal acknowledgement

and receipts, were examined.

17. A close scrutiny of those documents shows that no

signatures of public officials were endorsed on those

documents and they were not properly stamped so as to

consider such documents as public documents in order to

give initial presumption of validity of such documents. This

aspect was not considered by the lower appellate Court in

placing reliance on Exs.B-1 to B-7 to hold that the

defendant is in possession of the suit property much prior to

the purchase of the plaintiff.

18. The lower appellate Court has laid a great emphasis on

the failure of the plaintiff to demonstrate that the defendant

was inducted into the possession of the suit property. The

suit is for recovery of possession based on title and not of

prior possession. In this regard, reference to Articles 64 and

65 of the Limitation Act is required and they read as under:

 "    PART V.--SUITS RELATING TO IMMOVABLE PROPERTY

 Description of suits                         Period of      The time from
                                              limitation     which period
                                                             begins to run

 64. For possession of immovable              Twelve years   The date of
 property based on previous possession                       dispossession
 and not on title, when the plaintiff
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                                                                      SA_1164_2000

while in possession of the property has been dispossessed.

65. For possession of immovable property Twelve years When the possession or any interest therein based on title of the defendant Explanation:- For the purpose of this Article:- becomes adverse to

(a) where the suit is by a remainderman, a the plaintiff revisoner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;

(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession."

19. The date of dispossession is relevant, if a suit is filed

basing on prior possession in terms of Article 64 of the

Limitation Act. The present suit is not under Article 64 of

the Limitation Act, but it is under Article 65. The plaintiff's

relief for recovery of possession is based on title under

Ex.A-1 document. The right to sue would arise when the

possession of the defendant becomes adverse to the plaintiff.

20. In the present case, the possession of the defendant

over the suit property adverse when he raised the issue by

filing interlocutory application under Ex.B-3 in the rent

control case by denying the title of the plaintiff over the suit

property. In the said case, the defendant has not set up title

of his own as held by the lower appellate Court. The 12 ML,J SA_1164_2000

pleadings are essentials and not the contentions, as was

relied upon by the lower appellate Court to hold that the

defendant has also set up a plea that he is the owner in the

rent control case. This finding of the lower appellate Court

is contrary to the pleadings which I referred as contained

under Ex.B-33. When the suit is based on title, even

possession of the defendant to prior what the plaintiff has

set up has no relevance and such possession is only a

permissive possession and not otherwise until his

possession is said to be adverse to the plaintiff. Therefore,

this Court feels that the findings of the lower appellate Court

in denying the title to the plaintiff suffer from perversity and

requires to be set aside. Accordingly, this substantial

question of law is answered.

Findings on substantial question of law No.2:

21. The lower appellate Court, without any counter-claim

from the defendant, has declared the title of the defendant

by adverse possession which is unknown to law. The suit of

the plaintiff is for recovery of possession based on title. IN

such suits, the Court is required to see whether the suit is

within statutory period in terms of Section 65 of the

Limitation Act so as to grant relief to the plaintiff. If it is not 13 ML,J SA_1164_2000

within statutory limitation, the Court can dismiss the suit

and it cannot decide the title of the defendant without any

counter-claim or payment of Court fee. The procedure

adopted by the lower appellate Court also suffers from

perversity. Therefore, this finding also requires to be set

aside. Accordingly, this substantial question of law is

answered.

22. In the result, the Second Appeal is allowed, setting

aside the judgment and decree dated 17.12.1997 in

A.S.No.185 of 1993 on the file of the Court of the III Member

Tribunal for Disciplinary Proceedings-cum-VIII Additional

Chief Judge, City Civil Court, Hyderabad and confirming the

judgment and decree dated 19.08.1993 in O.S.No.3019 of

1985 passed by the Court of the VI Assistant Judge, City

Civil Court, Hyderabad. There shall be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand closed.

________________ M.LAXMAN, J Date: 30.06.2022 TJMR