MOHAMMAD BASHEERUDDIN Vs. MOHAMMAD GIASUDDIN

JUDGEMENT

(1.) The unsuccessful defendants in both the Courts below are the appellants in the present appeal. The 1st respondent as plaintiff instituted O.S.No.1112 of 1978 on the file of the Second Assistant Judge, City Civil Court, Hyderabad for declaration of title in relation to the suit property admeasuring 150 sq. yards situated at Regdan Lakdi Ka Adda outside Yakutpura, Hyderabad which is a part and parcel of the old Survey No.65/1 an new Survey No.87/1 talab Chanchalum, Yakutpura, Hyderabad and now which is eastern portion of H.No.17-3-757/1. The appellants herein as defendants resisted the suit by filing a written statement in detail and on settlement of issues, the trial Court had recorded the evidence of P.Ws.1 and 2, D.Ws.1 to 3 and marked Exs.A-1 to A-3 and Exs.B-1 to B-38 and after recording the findings, ultimately decreed the suit with costs. Aggrieved by the same, defendants 1, 3 and 4 had preferred A.S.No.188 of 1989 on the file of the Chief Judge, City Civil Court, Hyderabad and the appellate Court by judgment dated 31-1-1994 had dismissed the appeal with costs. Aggrieved by the same, the present appellants had preferred the present second appeal.

(2.) Sri Rudra Prasad, the learned counsel representing the appellants with all emphasis had submitted that the approach of the Courts below especially in appreciating the prior common judgment in O.S.No.57 of 1971 and O.S.No.2002 of 1975 on the file of the IV Assistant Judge, City Civil Court, Hyderabad is totally erroneous. The learned counsel also had pointed out that the findings recorded in S.A.Nos.910 and 1020 of 1981 which were filed as against A.S.Nos.175 and 179 of 1979 on the file of the Additional Chief Judge, City Civil Court, Hyderabad which in fact were preferred against the judgment and decree made in O.S,No.57 of 1971 and O.S.No.2002 of 1975 on the file of the IV Assistant Judge, City Civil Court, Hyderabad and had contended that in these second appeals, a clear finding had been recorded that the plaintiff had not established title and in the light of the same a suit for ejectment filed by the plaintiff is bound to fail. The learned counsel also had pointed out to Grounds (a) to (e) specified under Ground No.10 as substantial questions of law involved in the second appeal. The learned counsel also had pointed out that the appellate Court had framed two points for consideration and while recording findings on point No.1, the appellate Court had adopted a totally erroneous approach in interpreting the findings recorded in the prior proceedings.

(3.) Per contra, Sri Balachand, the learned counsel representing the 1st respondent/ plaintiff had taken me through the findings recorded by both the Courts. The learned counsel in all fairness had submitted that no doubt in the prior second appeals, a finding had been recorded that the title was not established. But, however, the learned counsel had explained the same in detail stating that under peculiar circumstances inasmuch as the suit was based on possessory title initially and inasmuch as possession was clearly established, the party might have thought at the relevant time, the question of going into title at that stage may not be essential at all. The learned counsel also pointed out that the suit was instituted as O.S.No.57 of 1971 and the sale deed dated 27-11-1994. The learned counsel while taking me through the findings recorded by both the Courts below in a meticulous way had submitted that no doubt, in the light of the findings there is some ambiguity though voluminous documentary evidence had been adduced by both the parties, apart from the oral evidence. But, however, with all emphasis, the learned counsel contended that the very defence of the appellants/ defendants is on the strength of an unregistered document which, in fact, had been disbelieved in the prior proceeding and in the light of the subsequent event, this Court can definitely take note of the same and affirm the findings by declaring the title of the plaintiff and also by granting the relief of possession as prayed for by the 1st respondent/plaintiff in the present second appeal.