Telangana High Court
Smt Rizia Begum vs M/S Mittal Builders on 21 February, 2025
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
CITY CIVIL COURT APPEAL NO.276 OF 2006
JUDGMENT:
(per Hon'ble Smt. Justice Tirumala Devi Eada)
This appeal arises out of the judgment and decree dated
20.06.2006 passed in O.S.No.13 of 2002 by the learned XII
Additional Chief Judge, City Civil Court (Fast Track Court) at
Hyderabad (hereinafter referred to as 'the trial Court').
2. For convenience and clarity, the parties herein are referred to
as they were arrayed before the trial Court.
3. The plaintiff's case before the trial Court is that there was an
agreement of sale dated 30.12.1987 executed by defendant Nos.1 to
3 in favour of the plaintiff and further that it was executed in lieu of
a development agreement that was executed by herself and the
defendants, over a property bearing No.7-1-67 with land
admeasuring 2701 square yards together with structures thereon
situated at Dharam Karan Road, Ameerpet, Hyderabad. It is the
contention of the plaintiff that she is the owner of the said property
by virtue of a Gift Deed executed by her husband namely late Sri
Meraj Ahmed Khan in the year 1973. That the defendant No.1 is a
Partnership Firm & Builder and defendant Nos.2 & 3 are its
partners, therefore, the plaintiff on one side and the defendants on
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the other have entered into a development agreement and that they
agreed to construct a multistoried building in the said premises
located at Ameerpet and that they agreed to provide an independent
house with land admeasuring 600 Sq.Yards and built up area of
3000 Sq.feet in a venture to be developed at Road No.14,
Banjarahills, Hyderabad known as 'Silver Rocks' and the plaintiff
agreed to pay the cost of the building. It is her case that the
defendants have allotted only 312 Sq.Yards with a plinth area of
2000 Sq.feet against the agreed area of 600 Sq.Yards for a total sale
consideration of Rs.5 Lakhs as per the agreement of sale dated
30.12.1987. That the plaintiff had paid the entire amount towards
sale consideration and that the defendants delivered possession on
14.11.1988 and ever since then she has been paying the municipal
tax and electricity charges. That the plaintiff was ready and willing
to get the sale deed registered but the defendants failed to execute
the same. It is the case of the plaintiff that she received a notice
dated 12.06.1997 from M.C.H. calling upon the plaintiff to produce
the sanction plan and that the building is constructed in the open
place i.e. the municipal land. On receiving the said notice, the
plaintiff has intimated the same to defendant Nos.1 to 3 and that
they have promised to resolve the problem. The plaintiff has further
averred that as an abundant caution, she made an application with
the consent of the defendants, to the Government for regularization
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of the suit schedule property, subject to payment of market value
and she has informed the same to the defendants to pay the market
value to the Government in the event of regularization. But
defendant Nos.1 to 3 failed to comply the same. Aggrieved by the
attitude of the defendants, the present suit is filed praying the Court
to decree the suit for specific performance of agreement of sale, dated
30.12.1987 and that defendant Nos.1 to 3 be directed to execute sale
deed in her favour or in the alternative the plaintiff may be granted
the relief of payment of Rs.40,00,000/- towards the value of the
property with interest @ 24% per annum from the date of suit to the
date of realization by the defendants and also to direct the
defendants to pay the difference of stamp duty on the sale deed in
the event of registration.
4. The averments of the defendants through their written
statement are that the suit of plaintiff is time barred and that the
development agreement over the Ameerpet land is a separate
transaction and that they have never agreed nor offered to provide
the plaintiff an independent house with 600 Sq.Yards and built up
area of 3000 Sq.feet but that the plaintiff has agreed to purchase the
house admeasuring 2000 Square Feet plinth area along with 312
Square Yards land for a total sale consideration of Rs.5 Lakhs. They
have admitted that the plaintiff was delivered the possession of suit
schedule property and that their transaction came to an end by
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04.11.1988. It is their case that they were ready and willing to
execute the sale deed but the plaintiff never came forward to get the
sale deed executed, for the reasons best known to her and on one
occasion she told the representatives of the defendants that she was
falling short of funds for payment of stamp duty and registration
charges. It is their case that due to non-cooperation of the plaintiff,
the sale deed could not be executed and that they are not at fault.
They further averred that the notice issued by M.C.H. was informed
to them by the plaintiff and that they have already submitted a
revised plan by them in respect of the suit schedule property to the
M.C.H. in the month of November, 1987 for the purpose of intimating
the corporation about the changes in the internal location of the
building in the already sanctioned layout. They further submitted
that the said changes in the internal location was legally permissible
in view of the conditions put up by the corporation while sanctioning
the layout and that the plaintiff knew about this fact while
purchasing the suit property. They further submitted that in view of
M.C.H. not responding to the same it is deemed that the said revised
plan was accepted by the corporation and that there is no violation
committed by the defendants in the construction of the suit schedule
property. It is their case that the plaintiff has purchased the
property after going through all the documents pertaining to it and
that there were no bonafides on part of the plaintiff in issuing the
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legal notice, dated 06.04.1998 and that the plaintiff has filed the suit
with ulterior motive. They further submitted that though they were
not liable, they paid the additional charges to M.C.H. along with an
application for regularization of the layout and the building
construction in the plaintiff's name and that they have been always
helping the plaintiff right from the beginning of their transaction and
that the plaintiff was aware of all the events and the status of the
property. They further submitted that they are not aware of the
application made by the plaintiff to the Government for
regularization and issuance of patta certificate and that when there
is no dispute with regard to the title of the property, the question of
issuance of patta certificate, payment of market value and further
the payment of the same by the defendants do not arise. That there
is no cause of action for the plaintiff to file the present suit and thus,
prayed the Court to dismiss the suit.
5. Based on the above pleadings, the trial Court has framed the
following issues:
"1. Whether the plaintiff is entitled for specific performance as
prayed for?
2. Whether the plaintiff is entitled to the differential amount of
stamp duty on the sale deed in the event of registration?
3. Whether the plaintiff is entitled to the alternative relief of
Rs.40,00,000/- together with interest @24% p.a. from the
date of suit till the date of realization?
4. To what relief?"
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6. Before the trial Court, the plaintiff got examined as PW1 and
got marked Exs.A1 to A26. While the defendants got examined one
Hanumanth Prasad Sarogi, General Power of Attorney of the
defendants as DW1 and no documents were marked on behalf of the
defendants.
7. On consideration of the evidence on record, the trial Court has
dismissed the suit. Aggrieved by the same, the present appeal is
filed by the plaintiff.
8. Heard the submissions of Sri P.Prabhakar Reddy, learned
counsel for the appellant and Sri Shyam S Agrwal, learned counsel
for respondent Nos.1 to 3.
9. Learned counsel for the appellant has submitted that the trial
Court has dismissed the suit without appreciating the evidence on
record in a proper perspective and that the defendants are liable to
execute the sale deed in favour of the plaintiff, as the plaintiff has
already paid the entire sale consideration. It is further contended
that the defendants have caused much mental agony to the plaintiff
when she has learnt that the defendants do not have a clear title over
the property, and that it was subject to regularization from the
municipal authorities. That the plaintiff has suffered for all these
years without any sale deed being executed by the defendants and
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has prayed this Court to allow the appeal by setting aside the
judgment and decree passed by the trial Court.
10. Learned counsel for the respondents has submitted that the
defendants were always ready and willing to execute the sale deed
but the plaintiff has failed to perform her part of contract and that
she has filed the suit after long gap of around 14 years from the date
of agreement of sale and that the trial Court has rightly dismissed
the suit. Thus, he prayed this Court to confirm the judgment and
decree of the trial Court.
11. Having considered the trial Court record, this Court frames the
following points for consideration:
1. Whether the agreement of sale under Ex.A1 is true,
valid and binding on the defendants?
2. Whether the plaintiff is entitled for specific
performance of agreement of sale under Ex.A1?
3. Whether the plaintiff is entitled to alternative relief of
payment of Rs.40,00,000/- by the defendants with an
interest of 24% per annum from the date of
suit till the date of realization?
4. Whether the judgment and decree of the trial Court
needs any interference?
5. To what relief?
12. POINT NOS.1 TO 3:
a) It is the claim of the plaintiff that the agreement of sale was
executed by the defendants in her favour on 30.12.1987 and DW1
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has admitted the same during his cross examination. A perusal of
Ex.A1 shows that the M/s.Mittal Builders is the partnership firm and
he has entered into a development agreement with the owner of the
property i.e. Metto Ranga Reddy S/o.Metto Matta Reddy who is
alleged to be the owner of 5043 Sq.Yards in the village 'Kanchar
Patti, Sewar', Shaikpet Taluka, West District, Hyderabad in the
Banjara Hills Area, now falling within the limits of Hyderabad
Municipal Corporation bearing Survey No.121/64/1, having
purchased the same under sale deed, dated 19.02.1964 executed by
Dr.Jaffar Hassan S/o.Amir Hassan. By development agreement,
dated 22.11.1984 between Metto Ranga Reddy on one part and the
Mittal Builders on the other, the owner had conveyed irrevocable
rights and absolute authority to enter upon the said property and to
develop the said property by constructing building as per the terms
and conditions mentioned therein. Therefore, the defendants herein
are the builders of the property at Banjara Hills (suit schedule
property) and the plaintiff alleged to have entered into agreement of
sale with the builders i.e. defendant Nos.1 to 3, that they would
construct an independent house with land measuring 600 Sq.Yards
and built up area of 3000 Sq.feet in a venture to be developed at
Road No.14, Banjarahills, Hyderabad known as 'Silver Rocks'. In
support of Ex.A1 neither of the parties have filed any document to
show that there was a proper sale deed in favour of the original
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owner Metto Ranga Reddy who inturn entered into a development
agreement with defendant Nos.1 to 3 herein. No document is filed to
prove that defendant Nos.1 to 3 are authorized to develop the
property mentioned in Ex.A1 and that they are further authorized to
sell the same. In the absence of any authorization in favour of
defendant Nos.1 to 3 they cannot convey any title in favour of any
other person. It is the case of the defendants that they were always
ready and willing to execute the sale deed, then they must have filed
documents in support of their contention to prove that they are the
authorized to sell and that they are ready to execute the sale deed,
which is not done. Moreover, a perusal of Ex.A11 shows that it is a
notice issued by the Municipal Corporation to the plaintiff herein,
wherein it is mentioned that the plaintiff is directed to stop the
construction as the same is carried on without seeking permission as
required under Section 428 of the Greater Hyderabad Municipal
Corporation Act, 1955 (for short "the H.M.C. Act") contrary to the
sanctioned plan and contrary to the provisions of HMC Act, 1955. It
is in pursuance of this notice by the M.C.H. that the plaintiff got
issued notice to the defendants herein and the defendants got issued
reply notice. Further, a perusal of Ex.A19 shows that the M.C.H
authorities have regularized the building based on the application
made by the plaintiff under Ex.A16. Ex.A19 is the BRS approval
intimation letter addressed to the plaintiff, which shows that the
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land in which the building is built up and where the plaintiff is
residing at present belongs to the municipal authorities and that it
was regularized on an application made by the plaintiff. A perusal of
the oral evidence of PW1 reveals that the defendants have paid the
regularization fees of suit property in the year 1998-1999 and that
she constructed the house on the area allotted 'left for MCH open
space". She has admitted that she does not have any document to
show that the defendants approached her for development of
Ameerpet property and she further admitted that she received
Rs.18,00,000/- mentioned in the said agreement. She has stated
that she was staying in the suit house from the date of taking
possession i.e. 14.11.1988 till date. Though she made an application
under Ex.A16 to the MCH authorities for regularization, she denied
the same and stated that she never made any application to M.C.H.
On one occasion, during the course of cross examination she has
stated that defendants never refused to execute the sale deed in
respect of the suit schedule property in her favour and that there is
no understanding between herself and the defendants towards the
payment of interest.
b) The agreement of sale is dated 30.12.1987 and the plaintiff
claims that she was put in possession on 14.11.1988, if at all she
was interested in getting the sale deed executed there is no reason
for her to wait till 1998 for issuance of legal notice to the defendants,
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for execution of the sale deed. It is only after she received notice
from the MCH authorities in the year 1997 that she started
communicating to the defendants and insisting on the execution of
sale deed. Even after noticing that the land belongs to the municipal
authorities she kept quiet and got the land regularized by an
application under Ex.A16 and got the approval under Ex.A19 on one
hand and was issuing notices to the defendants on the other. The
suit is filed on 10.12.2001 that means from the date of alleged
agreement of sale, the suit is filed after a span of 14 years. By no
stretch of imagination, the suit can be held to be within the period of
limitation. Even if it is reckoned from the date of issuance of legal
notice by the municipal authorities also, the suit is barred by
limitation.
c) Thus, by going through the oral evidence and the documents
on record, it is clear that the plaintiff has not approached the Court
with clean hands. Though, there was a denial of the plaintiff's claim
in their written statement, DW1 has clearly admitted the execution of
agreement of sale and further stated that they have received the total
sale consideration and that there is no amount due from the plaintiff
and that there is a connection between the suit property and the
Ameerpet property and that as per the term in Ex.A1, the defendant
has to execute the sale deed in favour of the plaintiff. He has further
stated during the cross examination that the initial layout obtained
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by the defendants was subsequently revised and the suit property is
not in the open land as per the revised plan. This admission of DW1
and the payment of the charges to the MC.H. on one hand and the
claim of the plaintiff on the other clearly prove that it is a collusive
suit. The notice under Ex.A11 proves that it is a land of Municipal
Corporation and that it was regularized under Ex.A19 on payment of
the charges in favour of the plaintiff. Therefore, the plaintiff has filed
a suit raising a false claim under the agreement of sale. The
defendants have failed to establish their right to convey a title in
favour of the plaintiff, though they claim that they are the builders
and have entered into a development agreement with the owner of
the property i.e. Metto Ranga Reddy S/o.Metto Matta Reddy, they
have not filed the said agreement or the title document of the real
owner. No one can convey a better title than what he has. The other
exhibits, under Exs.A12 to A15 and Exs.A20 to A26, are the notices
and reply notices issued by plaintiff and defendants against each
other, which do not throw any light on the existence of any right or
title in favour of the defendants to convey the same in favour of the
plaintiff. Therefore, without any right over the property, the
defendants were not supposed to enter into any agreement of sale
under Ex.A1. Therefore, it is held that Ex.A1 is not true and valid
and thus, the plaintiff is not entitled for the relief of specific
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performance or the alternative relief of refunding the amount. Point
Nos.1 to 3 are answered accordingly.
13. POINT NO.4:
In view of the findings arrived at by this Court under point
Nos.1 to 3, it is held that the trial Court has rightly dismissed the
suit based on reasoned findings and therefore, the judgment and
decree of the trial Court do not need any interference.
14. POINT NO.5:
In the result, the appeal is dismissed upholding the judgment
and decree dated 20.06.2006 passed in O.S.No.13 of 2002 by the
learned XII Additional Chief Judge, City Civil Court (Fast Track
Court) at Hyderabad. No costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________
ABHINAND KUMAR SHAVILI, J
___________________________
TIRUMALA DEVI EADA, J
Date: 21.02.2025
ns
