Telangana High Court

Gulam Rasool Died Per L.Rs vs Habeeba Begam on 11 October, 2022

Bench: G.Anupama Chakravarthy

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.68 of 2011

JUDGMENT :

This Second Appeal is arising out of the judgment and

decree in A.S.No.29 of 2006, dated 05.07.2010 on the file of II

Additional District Judge (FTC), Mahbubnagar against the

judgment in O.S.No.57 of 1986 dated 20.03.2006 on the file of II

Additional Senior Civil Judge (FTC), Mahbubnagar.

2. For the sake of convenience, the parties herein are

referred as arrayed in the suit.

3. Initially, the plaintiffs have filed a suit for declaration

of title and for permanent injunction over the suit schedule

property admeasuring 850 sq.yards in Plot No (Sy.No.44) situated

at Subhashnagar, Boyapally gate and for cancellation of registered

sale deed of partition dated 30.04.1976 and 03.05.1976. During the

pendency of the suit, the plaintiff died and the legal representatives

of the plaintiff were brought on record.

4. The case of the plaintiffs is that the 1st plaintiff

purchased the suit schedule property from one Mohammed Sherief

in the year 1945 for a valuable consideration and took possession

of the said land. The defendants 1 to 3 and 4 to 6 are the brothers

and sisters of the 1st plaintiff respectively. D-7 to D-9 are the

wives of D-1 to D-3 respectively. D-10 and D-11 are the daughter

and son of the 5th defendant. D-12 is the son of the 4th defendant.

All the defendants who are relatives of the 1st plaintiff with a

malafide intention colluded together to grab the property for which

the 1st plaintiff is constrained to issue paper publication declaring

his rightful ownership over the property and further directing not to

purchase the property from any others. As the defendants are

trying to alienate the suit schedule property, the plaintiff filed

O.S.No.57 of 1986, seeking relief for declaration and cancellation

of registered partition deeds and for injunction. Inspite of it, the 8th

defendant sold some property to one Satyanandam, who started

constructing a house. The 1st plaintiff also filed another suit

against the said Satyanandam for declaration of title and recovery

of property which was transferred to Sub-Court and renumbered as

O.S.No.104 of 1990 and it was decreed in favour of the plaintiff

against D-5 and D-8 and the said defendants also preferred appeals

which are pending. It is the further case of the plaintiffs that some

third parties by name Md.Abdul Jabbar, his brothers and others

encroached some portion of the property and made temporary

constructions in the plaint schedule property in the year, 1990 for

which O.S.No.90 of 1996 was filed before the Sub-Court of

Mahbubnagar for relief of declaration of title and for recovery of

possession and the present suit was filed for cancellation of

partition deeds of the year, 1976.

5. On the other hand, a common written statement was

filed by D-1 and D-2 and other defendants adopted the said written

statement. All the averments in the plaint are denied including the

rights of the 1st plaintiff over the suit schedule land.

6. It is the specific case of the defendants that one

Md.Ismail, the father of the 1st plaintiff purchased the suit schedule

land in the year 1945 for the benefit of the family members and the

1st plaintiff was aged about 15-16 years at the time of the said

purchase. Md.Ismail was a rich man with a large family and

purchased several properties in the name of his children and

similarly, purchased the suit schedule property in the name of the

1st plaintiff. During the lifetime of Md.Ismail, there was a family

settlement of those properties, at different times with mutual

adjustments and transfers to one another in the division of

properties acquired by him. Accordingly, the plaintiff became the

owner of Green Lodge and in the same way, Plot No.44 and the

adjacent land, put together was partitioned in early 70's before

registration of the said settlement. In all the registered partition

deeds, the 1st plaintiff signed and therefore, cannot deny those

registered sale deeds. The plaintiff's right from 1945 till 1986 i.e.,

filing of the suit, never by his word, conduct or anything, pay any

such claim over any part of Survey No.44 of which the extents of

the land is part and that the suit filed by the plaintiff is barred by

limitation. As per the family settlement registration, in the year

1976 all the defendants have become the absolute owners of Plot

(Sy.No.44) with exclusive enjoyment and possession of the shares.

It is the specific contention in the written statement that the

plaintiff himself is the signatory to the partition deeds in the year,

1976. Further, the 1st plaintiff and his wife Smt. Aisha Begum

executed release deed on 02.04.1979 in favour of Md.Ismail,

Md.Abdul Rehman and Hazira Begum., which further discloses the

relinquishment of their rights what so ever by the plaintiffs and his

family members. It is further contended in the written statement

that the partition deeds dated 30.04.1976 and 03.05.1976 were

acted upon, by which the defendants acquired rights over the

properties and thus the suit is barred by limitation and therefore,

prayed to dismiss the suit with costs.

7. Basing on the pleadings, the trial Court had framed the

following issues:-

"1. Whether the claim is barred by law of limitation?

2. Whether the purchase of the suit plot No.44 in the name of the plaintiff under sale deed 24th Khurdad 13th Fasli is benami in the name of the plaintiff?

3. Whether the partition deeds dated 30.04.1976 and partition deed on 03.05.1976 are forged documents executed by mutual collusion?

4. Whether the plaintiffs executed release deed on 02.04.1979 and if so what is its effect?

5. Whether the plaintiff are entitled to declaration over the suit schedule plot as prayed for?

6. Whether the plaintiffs are entitled to get registered partition deeds dated 30.04.1976 and 03.05.1976 cancelled?

7. Whether the plaintiffs are entitled for permanent injunction as prayed for?

8. To what relief?"

8. On behalf of the plaintiffs, PWs-1 and 2 are examined

and Exs.A-1 to A-7 were got marked. On behalf of the defendants,

DWs-1 to 3 were examined and Ex.B-1 to B-10 were got marked.

9. The trial Court after considering the oral and

documentary evidence on record dismissed the suit with a finding

that Exs.B-5 and B-9 deeds are true and valid and were duly

executed by PW-1 along with others and same are acted upon and

the plaintiffs have failed to prove that the partition deeds are forged

and fabricated documents or created with mutual collusion and the

suit was barred by limitation.

10. Being aggrieved by the judgment and decree in

O.S.No.57 of 1986, dated 20.03.2006, the plaintiffs have preferred

the 1st appeal i.e., A.S.No.29 of 2006 on the file of II Additional

District Judge (FTC) Mahbubnagar. The 1st appellate Court after

hearing the arguments of both the parties have framed the

following points for consideration:-

"1. Whether the 1st plaintiff is the absolute owner of the Sy No.44 admeasuirng Ac.0.39 gts at Subhashnagar, Boyapally gate, Mahbubnagar?

Or

Whether purchase of the plot No.44 in the name of plaintiff No.1/late Gulam Rasool under sale deed dated 24th Khurdad, 1354 Fasli is benami in the name of the 1st plaintiff?

2. Whether the plaintiff No.1 executed release dated 02.04.1979,if so, what is its effect?

3. Whether registered partition deeds dated 30.04.1976 and 03.05.1976 are forged documents brought into existence by defendants in collusion if so, whether the said partition deeds are not binding on the plaintiff No.1?

4. Whether the plaintiff No.1 is entitled for relief of declaration that he is the owner of the suit plot No.850 sq.yards out of Ac.0.39 gts in plot (Sy.No).44 situated at Subhashnagar, Boyapally gate, Mahbubnagar?

5. Whether the 1st plaintiff is entitled to seek cancellation of registered partition deeds dated 30.04.1976 and 03.05.1976 as prayed in the suit?

6. Whether the suit of the plaintiff No.1 late Gulam Rasool seeking for cancellation of registered partition deeds dated 30.04.1976 and 03.05.1976 is barred by limitation?

7. Whether plaintiff No.1 is entitled to seek relief of perpetual injunction prayed for against the defendants?

8. Whether there are any grounds to interfere with the judgment and decree of the trial Court?

9. To what relief?"

11. Considering the entire oral and documentary

evidence, the 1st appellate Court has dismissed the appeal with a

specific finding that the 1st plaintiff had knowledge about the

partition of the properties orally as seen from Exs.B-3 and B-4 and

subsequently parties got executed registered documents Exs. B-5

to B-8 in the year, 1976 and they were duly acted upon and

pursuant to it, the 1st plaintiff and his wife executed Ex.B-9

relinquishment deed and the date shown for the cause of action as

05.07.1986 is only invented for the purpose of limitation. Further,

PW-1 is the signatory to Ex.B-5 to B-9 documents and he has to

seek cancellation of those documents under Section 31 of the

Specific Relief Act, 1963. Further, PW-1 is also the signatory to

Ex.B-9, the relinquishment deed executed by the 1st plaintiff and

therefore, he is not entitled for the relief prayed for.

12. Aggrieved by the judgment and decree of the 1st

appellate Court, the plaintiffs/appellants have preferred the

Second Appeal with the following grounds:-

"1. Whether the lower appellate court was right in law in saying that the plaintiff cannot have any absolute rights over the suit schedule property eventhough, there is no concept of joint property in Muslims and the concept of coparcenary does not arise and the concept of family existence has no resistance in Muslims?

2. Whether the property purchased with the money taken from father's estate would make the property the common property of the family and create an interest for all the other members of the family?

3. Whether the findings of the lower appellate court on facts are contrary to the evidence on record and perverse?

4. Whether the non-examination of the party to the suit as witness was fatal?

5. Whether the suit filed by the appellants was barred by limitation, while the suit was filed within 3 years from the date of knowledge?

6. Whether the lower appellate courts conclusion are vitiated by non-consideration of the evidence on record, interpretation of Muslim law?"

13. Heard learned counsel for the appellant and learned

counsel for the respondents. Perused the record.

14. It is pertinent to mention that the grounds of the

appeal do not contain any substantial question of law. No

substantial question of law is raised by the appellant.

15. As per Section 100 of CPC, an appeal shall lie to the

High Court from every decree passed in appeal by any Court

subordinate to the High Court, if the High Court is satisfied that the

case involves a substantial question of law.

"Section 100 (3) of CPC envisages that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal."

"Section 100 (4) of CPC envisages that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate the question."

"Section 100 (5) of CPC envisages that the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question."

16. In the present case, the memorandum of grounds do

not contain any substantial question of law and even the grounds

do not reveal any substantial question. Though the ground No.5

deal with limitation, the plaintiffs/appellants cannot plead at this

stage with respect to limitation as the trial Court as well as the

appellate Court have dealt the matter on merits i.e., considering the

oral and the documentary evidence and the suit was not dismissed

on the ground of limitation, though pleaded by the defendants.

17. Both the Courts have given concurrent findings

basing on the oral and documentary evidence on record. In a suit

for perpetual injunction, the plaintiffs have to establish that they

were in possession of the property as on the date of filing of the