GAFFER Vs. HSAHJEHAN BEGAUM

JUDGEMENT

(1.) The dispute in the suit relates to a house No 22.7.524 covering 629 Square yards know as house at "purana haveli". Gaffar and Younus (Defendants 1 and 2) parchared the house on 21st Febrnary, 1968 for Rs. 10,000 under a registered sale deed Exhibit B-1 The general power agent of the vendor (D.W. 5) delivered possession of the home to them on 17th February, 1968. Before the deed was registered, a non-encumbrance certificate on 1st February, 1968, Exhibit B-8 was obtained by the vendees showing the house was not in any manner encumbered. (This proved to be a false or incorrect certificate.) On 14th May, 1968 the vendees got the house mutated in their names by the order in Exhibit B-13 of the Hyderabad Municipal Corporation. Later they obtained what is termed a "sanction" on 14th May, 1968 (Exhibit B-12) to reconstruct the dilapidated house. D W. 2 Md Hussani, the step-son of the vondorde posed that the purchaser of the house laid a 'pipe-line" across his land for supply of water to the house. A letter written in thig regard Exhibit B-3 dated 13th May, 1968 and Exhibit B-4 dated 7th July, 1968 a receipt passed for Rs. 1,000 shows that D.W. 2 was paid compensation for the are of the land covered by the pipe-line. The dilapidated house was dismantled. A new house on the same premises was constructed by the defendants one and two. The further facts fof the case show Saheed Khatoon (the fourth defendant purchased the house on 29th February, 1962 under document No. 1144 of 1962 and she in Exhibit B-6 reconveyed the house on 6tb January, 1968 to the vendor in Exhibit B-1. In between Saheed Khatoon had lodged eviction proceedings against the vendor in Exhibit B-1 before the Rent Controller at Hyderabad. Exhibit B-5 is her petition (R.C. No. 518 of 1965). Exhibit B-9 is the counter lodged on 27th June, 1967. Before the execution of the deed Exhibit B-6, eviction petition (Exhibit B-5) was withdrawn. These facts are averred to show the vendor in Exhibit B-1 had absolute title to the suit house on 2lst February, 1968. The house, however, was found encumbered by the transaction in Exhibit A-1 dated 5th January. 1959 a transaction which was not shown in Exhibit B-8 certificate. Because of the mistake the dispute in the instant suit arose. The deed (Exhibit A-1) shows Shah Jehan Begum the plaintiff purrhased the suit house. The defendants 1 and 2 averred they were not aware of the transaction in the deed and in the suit they contend Exhibit A-1, even be true, was nominal.

(2.) Shah Jehan Begum in the plaint claimed title to the house for she averred to have purchased the house on 5th January, 1959; repaired the house and that she was dispossessed on 23rd May, 1968, by defendants 1 and 2. Her husband Hyder Ali Khan (P.W. 1) a Deputy Superintendent of Police who retired from service in 1950, made a complaint to the Police Commissioner on 24th May, 1968 (Exhibit A-4) as to how defendants one and two have trespassed. That on 10th June, 1968 the plaintiff served notice to the vendee in Exhibit B-1 and received the reply on 24th June, 1968. Since the house was not vacated by defendant' one and two, the instant suit was lodged on 19th November, 1968 impleading the vendor in Exhibit A-1 a the third defendant. The fourth defendant, who claimed no title for the house was reconveyed by her on 6th January, 1968 was also added as party-defendant. The second Additional Judge, City Civil Court at Hyderabad on 16th December, 1975 in the judgment under appeal, accepted the documents Exhibit A-7 and A-9 and Exhibit A-4 to be true and held the plaintiff was dispoisessed by defendants 1 and 2 and ordered possession be delivered to the plaintiff. Hence the appeal.

(3.) Though the plaintiff complained of dispossession, there is no evidence adduced to show she was ever in possession between 5th January, 1959 and 24(h May, 1968 the date in Exhibit A-4 or by 19th November, 1968 the date of suit. It is averred in Exhibin A-4 that the plaintiff locked the houie whilst she was at Warangal and the lock was broken open by the defendants 1 and 2. Mr. Niaz Mohamed was examined (P.W. 2) in proof of this fact and the witness deposed that there was a crowd in front of the house one day when be was passing by and he witnessed break ing of the lock by defendants 1 and 2 He questioned them but he was asked to mind his business. According to this witness, he received invitation Exhibit A-8 but admits that "he is neither a friend" "nor a relative" of the plaintiff for her husband. If that be so, it is strange how he could have received Exhibit A-8 which is "a morning invitation", issued by the plaintiff and her spouse on the death of their daughter.