ASKARI BEGUM Vs. MOHD AYAZ KHAN

JUDGEMENT

(1.) Both the appeals arise out of common property, which is a house property bearing No. 22-3-908 situated at Vazir Ali lane, Darulshifa, Hyderabad, in an extent of 197 square yards.

(2.) City Civil Court Appeal No. 225 of 2001 arises out of the judgment in O.S. No. 756 of 1991 on the file of I Senior Civil Judge, City Civil Court, Hyderabad, whereas the Second Appeal arises out of the judgment in A.S. No. 292 of 1988 on the file of Additional Chief Judge, City Civil Court, Hyderabad.

(3.) The facts of the case are that the suit property originally belonged to one Khaja Fateh Ali and he sold the same to Smt. Kaneez Fiza @ Putli Bi, W/o. Syed Mohd.Thaqui Saheb on 18.01.1925 for a consideration of Rs. 750/-. Smt. Kaneez Fiza and her husband were residents of Parbhani of Maharashtra State and they had only one daughter Kubra Begum, who is the 2nd Plaintiff and who was married to one Mohd. Ishaq and they had a daughter by name Sajeeda Begum, who is wife of the 1st Plaintiff. Syed Mohd. Thaqui Saheb died on 04.08.1930 leaving behind him his wife and daughter. The property was leased out to one Zaheer-ul-Hasan, S/o. Naqui in 1935 and on 05.12.1959 Khaneez Fiza leased out the plaint schedule property to the 2nd Defendant on a monthly rent of Rs. 20/-. The 2nd Defendant was paying the rent On 01.03.1969 in a sound disposing state of mind Kaneez Fiza executed a Will in favour of the 1st Plaintiff conveying the schedule property and therefore, the 1st Plaintiff became entitled to the property. His name was also mutated in the Municipal records as per the orders dated 24.10.1970. The tenant attorned the tenancy and in 1974 the 1st Plaintiff requested the tenant to vacate the house. The father of the 2nd Defendant by name Nazir Hussain was also living in the plaint schedule property along with, 2nd Defendant and he filed a suit in O.S. No. 445 of 1974 on the file of IV Assistant Judge, City Civil Court, Hyderabad, questioning the mutation in favour of the 1st Plaintiff and the said suit was dismissed on 07.12.1977 and thereafter A.S. No. 10 of 1978 was preferred to the Chief Judge, City Civil Court, Hyderabad, which was also dismissed on 24.07.1978. Thereafter, Nazar Hussain instituted another suit O.S. No. 345 of 1978 on the file of V. Assistant Judge, City Civil Court, Hyderabad, for declaration of his title and for permanent injunction claiming title and perfecting right by adverse possession. The suit was contested by the 1st Plaintiff and the said suit was dismissed holding that there was No. title but it was partly decreed granting injunction. Thereafter, the 1st Plaintiff filed R.C. No. 173 of 1980 on the file of III Additional Rent Controller, Hyderabad, against the 2nd Defendant for eviction, in which relationship of landlord and tenant was denied and claimed that the property was purchased by Md. Thaqui and that Syed Nazar Hussain, who is the son of Thaqui, became entitled to the schedule property. The said R.C., was dismissed and against that the appeal was filed and it was also dismissed. As against the judgment in O.S. No. 345 of 1978 the Plaintiff preferred appeal A.S. No. 292 of 1988 on the file of Additional Chief Judge, City Civil Court, Hyderabad, and the said appeal was allowed on 07.12.1998 and as against that the Second Appeal No. 336 of 1990 was preferred. Therefore, in view of the above circumstances, the suit was filed for declaration of title as the legatee under the Will and for recovery of the possession from the Defendants along with damages. In case the 1st Plaintiff is not entitled to the property as a legatee, in the alternative the 2nd Plaintiff is entitled to the suit property as being the sole daughter of Kubra Begum.