IQBAL SINGH Vs. A SUDHAKARA RAO

JUDGEMENT

(1.) Two suits being O.S.No. 8 of 1983 and O.S.No. 300 of 1982 on the file of Addl. Chief Judge, City Civil Court, Hyderabad have been decided by a common judgment on 24-4-1986. One Iqbal Singh was defendant in O.S.No. 8 of 1983 and plaintiff in O.S. No. 300 of 1982. He has filed these two appeals against the common judgment of the trial Court. During the pendency of these appeals he died and his son-2nd appellant was brought on record as his legal representative. The parties will hereinafter be referred to as they are arrayed in O.S. No. 8 of 1983.

(2.) The subject matter of both the suits related to an extent of 1000 sq.yards (975 sq.yards) of open land in premises bearing No. 5-9-96 (corresponding to old number as B-1 -89 or B-1 -96) on the public garden road, Nampally, Hyderabad. O.S.No. 8 of 1983 was a suit filed by the plaintiffs seeking possession of 1000 sq.yards in premises bearing No. 5-9-96. They also claimed mesne profits for three years amounting to Rs. 36,000/- and future mesne profits at Rs. 1000/- per month from the date of the suit till the delivery of possession. O.S. No. 300 of 1982 was filed by the defendant for a declaration that he had acquired title to the suit site admeasuring 975 sq.yards. He also sought perpetual injunction against the plaintiffs from causing any interference or obstruction in his possession and enjoyment over the suit property. The trial Court decreed O.S.No. 8 of 1983 and directed the defendant to deliver vacant possession of 1000 sq.yards in premises No. 5-9-96, public garden road, Nampally to the plaintiffs. The plaintiffs were also held entitled to mesne profits of Rs. 36,000.00 and Rs. 1,000.00 per month from the date of suit till the delivery of possession. O.S.No. 300 of 1982 was dismissed. Hence these appeals. The assertions made in the plaint in O.S.No. 8 of 1983 may be briefly mentioned hereinbelow.

(3.) The plaintiffs claimed that an open site admeasuring 4046 sq.yards with a house bearing old No. B-1-89 corresponding to new No. B-1-96 and present No. 5-9-96 was an evacuee property and was in the custody of Custodian of Evacuee Properties. On one side of the suit property one N.M. Khan had taken a small portion of open site on lease and had started an automobile workshop known as Cosmos Automobiles before the property became evacuee property. The said N.M. Khan also migrated to Pakisthan and the said workshop vested in the custodian. The defendant was a displaced person who had migrated from West Punjab in Pakistan after partition of the country and had settled in Hyderabad in 1952. The custodian of evacuee property let out a small portion of the house existing in plaint A schedule property on a month to month tenancy at Rs. 12.56 ps. per month to the defendant. Thereafter the defendant approached the custodian and obtained from him an allotment order No. 5929, dated 12-9-1953 with respect to Cosmos Automobiles and it was accordingly rented out to the defendant by the custodian. The defendant, therefore, became a tenant in respect of a small portion of the premises in plaint A schedule property and also an allottee of the machinery as Cosmos Automobiles existing in a small portion of the open site. Subsequently the custodian sold plaint A schedule property in a public auction to one Vasudev Jothanand Bhavani who in turn sold it for a consideration of Rs. 95,000/-through a registered sale deed dt. 17-4-1965 'to A.V. Subba Rao, A. Tirupathi Raidu, A. Sudhakar Rao. The machinery belonging to Cosmos Automobile was sold to the defendant for Rs. 3125.00. Of these three purchasers who purchased plaint A schedule property, A Subba Rao died on 24-9-65 and A. Tirupathi Rayudu died on 5-1-1975. The plaintiffs 2 to 6 were the legal representatives of Subba Rao and Tirupathi Rayaudu. The plaintiff No.1 is one of the original purchasers. The defendant had become a tenant of Bhavani Prasad on his purchasing the property in the auction and later on because of the sale deeds in favour of the plaintiff No. 1 and two others, the defendant had also become their tenant. Along with the defendant, there was another tenant in the suit property whose name was Jaunathy. After purchase the plaintiffs asked the defendant to vacate the portion of house occupied by him as they needed the portion of the house and vacant site for their personal use and occupation. The defendant did not vacate the premises, so the plaintiffs moved the Government for an exemption under Section 26 of the A.P. Housing Rent Control Act of 1960. The Government issued a notification vide G.O.Ms.No. 324 on 12-4-1967 exempting the premises from the operation of the Rent Control Act. Thereafter the plaintiffs issued a notice to the defendant on 27-5-1967 terminating the tenancy with effect from 1 -7-1967 to which the defendant sent a reply setting up false and untenable claims. He did not vacate the premises and O.S.No. 12 of 1968 was filed against him before the III Asst. Judge, City Civil Court, Hyderabad in which he admitted that he was a tenant in a portion of the schedule premises on a monthly rent of Rs. 12.56 ps. He filed a petition Case No. 712/Dr. of 1967 before the Addl. Rent Controller, Hyderabad against the father of plaintiff No. 1 for deposit of rents. In the written statement filed in that suit the defendant pleaded that two rooms occupied by him as a tenant in the house existing in plaint A schedule premises belonged to the plaintiffs and their predecessor in title, but pleaded that the shed existing over 100 sq. foot and 60 yards of site in which the machinery was installed in the compound of plaint A schedule premises belonged to him. He asserted that he purchased it in auction from Regional Settlement Commissioner, Bombay for Rs. 3125 and the plaintiffs therein had no concern whatsoever with that property. O.S.No. 12 of 1968 was renumbered as O.S.No. 1044 of 1969 and it was decreed on 28-3-1970 by the IV Asst. Judge, against which the defendant preferred an appeal being A.S.No. 120 of 1974. During the pendency of the appeal the plaintiffs 1 and 2 in that suit died and their legal representatives were brought on record. After the amendment of the plaint the appellate Court remanded the matter back to the trial Court for fresh disposal. The defendant filed an additional written statement on 23-10-1976. He asserted that he was in possession and enjoyment of the surrounding open land admeasuring 1000 sq.yards without any hindrance or interruption and from August, 1953 he had been in continuous possession and had perfected his title by way of adverse possession. He claimed that he was running the automobile workshop and the vehicles which were brought for repairs would always park on the surrounding open land which was in his exclusive occupation and there was no privity of contract or tenancy in respect of the workshop or in respect of the surrounding land. The defendant also claimed that he had filed a suit being O.S.No. 195 of 1976 for a declaration of ownership and possession in respect of workshop on the basis of a sale dated 13-3-1976. This suit and the suit being O.S.No. 1044 of 1969 filed by the plaintiffs were tried together by the IV Asst. Judge, City Civil Court, Hyderabad and they were disposed of by a common judgment on 19-7-1977. O.S.No. 1044 of 1999 was decreed with costs in respect of residential portion occupied by the defendant, but it was dismissed as regards the portion occupied by the defendant to the extent of 60 sq.yards and 100 sq.feet for want of proper notice under Section 106 of the Transfer of Property Act. O.S.No. 195 of 1976 was dismissed with costs. The plaintiffs filed A.S.No. 366 of 1977 and the defendant filed A.S.No. 368 of 1977 against the judgment in O.S.No. 1044 of 1969. The defendant also filed A.S.No. 371 of 1977 against the judgment in O.S.No. 195 of 1976. All the three appeals were disposed of by the Addl. Chief Judge, City Civil Court, Hyderabad by a common judgment dt. 19-12-1978. He allowed A.S.No. 366 of 1977 and granted four months' time to the defendant to vacate the premises covered by the workshop, shed and machinery in plaint A schedule properties and he dismissed both the appeals being A.S.Nos. 368 and 371 of 1977 filed by the defendant. The defendant preferred second appeals against the common judgment of the trial Court being S.A.Nos. 416, 417 and 418 of 1979. In S.A.No. 418 of 1979 the defendant pleaded that no immoveable property was conveyed to him under the sale certificate issued in respect of the sale of the machinery. So he did not press his claim made in O.S.No. 195 of 1976 and hence S.A.No. 418 of 1979 was dismissed on 24-12-1981. With respect to two rooms of the house in plaint A schedule property in which the defendant was residing, the defendant in S.A.Nos. 416 and 417 of 1979 accepted that he was a tenant only and he sought reasonable time to vacate the premises. The High Court granted him time to vacate the premises till 1 -1 -1982. The High Court also held that with respect to 1000 sq.yards in plaint A schedule property the defendant was only a trespasser, but as court fee paid was under Section 40 of the A.P. Court Fees and Suits Valuation Act in O.S.No. 1044 of 1969 the High Court felt that the defendant could not be evicted and observed that if so advised the plaintiffs in O.S.No. 1044 of 1969 could file a fresh suit for evicting the defendant. The High Court also granted time to file such a suit on or before 1 -2-1982. Thereafter the present suit was filed.