Telangana High Court
Smt Srinarayan Pershad Died vs Sri Yogeshwaranarayan Died on 7 June, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
SECOND APPEAL NO.454 OF 2016
JUDGMENT:
Assailing the concurrent finding of the trial Court and
first appellate Court, whereunder the suit filed by the
plaintiffs vide O.S.No.139 of 1994 was dismissed, the
plaintiffs in the said suit have filed this second appeal
under Section 100 of Code of Civil Procedure (for short
'CPC') praying this Court to set aside the impugned
Judgment and direct the defendants to vacate the suit
premises and deliver the same to the plaintiffs with
consequential perpetual injunction to restrain the
defendants from disposing the suit schedule property.
2. As could be seen from the averments made in
the plaint, it shows that the plaintiffs have filed O.S.No.139
of 194 for ejectment of the defendants from the suit
premises by removing their family deity and deliver the
possession in his favour. According to the averments made
in the plaint, it is alleged that the 1st plaintiff is a widow
and other plaintiffs are sons of late Srinarayan Pershad
and the defendants are the sons of one Bishamber Narayan
who is brother-in-law of the said Srinarayan Pershad. The
plaintiffs have claimed that they are possessors of premises
bearing No.22-4-321 at Khanbagh lane, Kotla Alijah,
Charminar, Hyderabad with some backyard admeasuring
109.22 sq.yards. The said property was purchased by
Srinarayan Parshad under two sale deeds and backyard
was purchased by sale deed, dated 16.09.1950. The sister
of the said Srinarayan Pershad was married to one
Bishamber Narayan. Defendant Nos.1 to 3 are their sons
whereas defendant No.4 is widow of one Gopeshwar
Narayan who was eldest son of Bishamber Narayan who
died leaving behind defendant No.4 as his successor.
3. The plaintiffs have claimed that the said
Bishamber Narayan and his family were residing in the
ancestral house at Fathehulla Bagh Lane, Chown Maidan
Khan, Charminar East. The said house was in mortgage
and there was a decree for sale of the property. Since they
were not in a possession to clear the loan and in view of
their bad financial condition, the said Srinarayan Pershad
brought them to his house and provided shelter at his
house. The plaintiffs have claimed that during the course
of time, said Bishamber Narayan sought permission from
Srinarayan Pershad to install the family deity in the
backyard and in view of the help extended by Srinarayan
Pershad which amounts to a licence, said Bishamber
Narayan continued to have the deity in the backyard of the
premises. Therefore, the plaintiffs have claimed that the
permission obtained by said Bishamber Narayan is only to
licence.
4. The plaintiffs have also claimed that Srinarayan
Pershad died in 1961 and the said Bishamber Narayan
died in 1968. His wife died in 1987. But, the licence
granted by Srinarayan Pershad was continued and the
legal heirs of Bishamber Narayan were permitted to
continue the same. The plaintiffs having claimed that
defendant No.1 and his elder brother became rich and
opted for independent residence in a posh locality.
Therefore, the plaintiffs intended to dispose of the house as
such wanted to revoke the licence and approached the
defendants with a demanded to surrender the backyard.
Though the defendants agreed to shift the deity, sought for
reasonable time, subsequently, did not adhere to the
words, thereby they got issued a legal notice, directing the
defendants to remove the family deity. But, the defendants
instead of obliging the said request gave a vague reply and
refused to vacate the premises, thereby they filed suit
seeking the above referred specific relief.
5. The defendants have resisted the claim, filed
written statement denying all the material averments made
in the plaint. They have claimed that said Srinarayan
Pershad sold the property bearing No.22-4-322 to one Sri
Vallabh under a registered sale deed, dated 30.06.1959.
The 1st plaintiff is one of the attestors of the said sale deed.
Therefore, she has got knowledge about the sale. The 1st
defendant purchased the property from the said Vallabh for
lawful consideration under a sale deed dated 01.03.1967.
Therefore, he became absolute owner of the property. The
defendants having denied the averments made by the
plaintiffs and sought for dismissal of the suit
6. The record further shows that once the suit
filed by the plaintiff was dismissed on 29.11.1999. The
appeal preferred by the plaintiffs vide A.S.No.45 of 2000
was also dismissed and when the plaintiffs filed second
appeal vide S.A.No.927 of 2003, this Court remanded the
matter to the trial Court for fresh consideration by
receiving the evidence from both parties. It also appears
that the trial Court has framed the following issues at the
first instance:
1. Whether the plaintiffs are entitled for ejectment as prayed
for?
2. Whether the plaintiffs are entitled for consequential relief of
injunction as prayed for?
3. To what relief?
7. During the course of trial, the 1st plaintiff was
examined as PW1. Exs.A1 to A4 were marked. After the
above referred remand by the High Court, the plaintiffs
have marked Exs.A26 to A34 and examined one Udayaraj
Mathur as PW2. One M.K.Mathur was examined as PW3.
Defendant No.1 was examined as DW1 and defendants
have marked Exs.B1 to B6.
8. It appears from the impugned Judgment that
after the matter was remanded back for fresh
consideration, PW1 was recalled and marked some more
documents. In view of the subsequent developments, the
parties have filed interlocutory applications and on a re-
appreciation of entire evidence, the trial Court dismissed
the suit again by Judgment dated 17.04.2006. The first
appeal preferred by the plaintiffs vide A.S.No.276 of 2006
was also dismissed on 11.02.2016.
9. This second appeal has been admitted on the
following substantial questions of law:
1. On a remand from the appellate Court under Order 41 Rule
23 to 25 while giving specific direction can the trial Court
give contra finding by diluting the directions of the Court
while exercising power under Oder 20 of C.P.C.
2. In a suit for eviction/termination of license can the
defendant is entitled to take a defence of title in himself, if
so whether the Court has jurisdiction to decide the same.
10. The scope of the present second appeal is very
narrow. As already stated in the previous paragraphs, the
suit filed by the plaintiffs before the trial Court was once
dismissed on merits. First appeal was decided against the
plaintiffs. However, the second appeal preferred by them,
was disposed by remanding the matter to trial Court by
setting aside the Judgment of the trial Court with a
direction to give opportunity to both parties to adduce oral
and documentary evidence, if they wish and it also appears
that in pursuance of the said direction, the trial Court
allowed the parties to produce further evidence.
11. As could be seen from the impugned Judgment
of the trial Court, the suit filed by the plaintiffs was again
dismissed on re-appreciation of the oral and documentary
evidence and the first appeal was also decided against the
plaintiffs. In view of the specific substantial question of law
on which this appeal was admitted, the burden is on the
plaintiffs to prove that the trial Court gave a contra finding
by diluting the directions of this Court and since the suit
was for eviction of a license, the defendants cannot take a
defense of title.
12. Even though the plaintiffs have filed the suit for
ejectment of the defendants from the suit schedule
property on the ground that the original owner of the
property Srinarayan Pershad granted license to the
defendants to install their family deity and to occupy the
suit schedule property, it was their case before the trial
Court that when the defendants settled in their life and
moved to a posh locality and as the plaintiffs wanted to
dispose of the suit schedule premises, said to have
terminated the alleged license and requested the
defendants to remove the family deity. However, the
defendants have claimed that there was no such licnese
and in fact the property was alienated by the said
Srinarayan Pershan under a valid registered sale deed
which was attested by his wife who is shown as 1st
plaintiff. Thereafter, defendant No.1 has purchased the
property under a valid registered sale deed. Therefore, they
denied the alleged license and disputed the right of
plaintiffs to maintain suit for ejectment.
13. The oral and documentary evidence produced
by the parties indicates that in spite of the specific
contention of the plaintiff that Srinarayan Pershad allowed
the defendants to occupy the premises by way of license,
they were not able to substantiate their claim through any
acceptable evidence whereas the defendants were able to
prove that said Srinarayan Pershad alienated the suit
schedule property to Vallabh and from him defendants
No.1 has purchased the property. Even though the
plaintiffs have claimed that there was a license, in the light
of the specific contention that the property was already
alienated by Srinaryan Pershan under a registered sale
deed, there was no scope for him to permit the defendants
to remain in the property under an alleged licence. Since
the defendants have claimed that defendant No.1 has
purchased the property through a registered sale deed and
as they denied the contention with regard to license,
certainly entitled to take the plea of sale and the trial Court
has appreciated this fact in a proper way and came to a
correct conclusion, thereby there are no merits in the
second appeal, as such the same is liable to be dismissed.
14. In the result, the second appeal is dismissed.
No costs.
Pending miscellaneous applications, if any, shall
stand closed.
___________________________________
JUSTICE SAMBASIVARAO NAIDU
Date:07.06.2024
PSSK
