AYED FAHIM ARIF Vs. RAHAMATUNNISA BEGUM

JUDGEMENT

(1.) Introduction: Challenge is made by the unsuccessful appellants/plaintiffs who were non-suited by the learned VII Senior Civil Judge, City Civil Court, Hyderabad, in O.S. No.318/96 dated 28-1-2002. The suit was instituted by the appellants/plaintiffs for declaration that they are the lawful owners of premises bearing No.8-2-624/A/l/2 and 8-2-624/A/l/ 3, between Road Nos.10 and 11 of Banjara Hills, Hyderabad, formerly known as Plot No.83 in S.No.l 17, Shaikpet Village, within Hyderabad West, for a perpetual injunction restraining the respondents/defendants, their men, agents and servants from making any construction, for a mandatory injunction to demolish and remove the constructions already made and also for such other suitable reliefs. The learned Judge recorded the evidence of the 1st plaintiff as PW-1 and also the evidence of DW-1, the 1st defendant, had been recorded on Commission. Exs.A-1 to A-14 and Exs.B-1 to B-15 were marked on behalf of the respective parties and the learned Judge after recording the findings found Issues 1, 2, 3, and 4 against appellants/plaintiffs and came to the conclusion that they failed to prove their right and possession over the suit property and thereby they are not entitled for declaration of right, perpetual injunction and mandatory injunction and consequently dismissed the suit with costs. Aggrieved by the same, the appellants/plaintiffs preferred the present C.C.C.A.

(2.) Incidentally it may be referred to here that pending this Appeal certain interlocutory applications i.e., C.C.C.A.M.P. Nos.6/2005, 7/2005, 14/2005, 15/2005 and 114/2005 were moved praying for passing of certain interim orders against non-parties to the litigation, to implead such parties in the application complaining violation of interim orders and also praying for permission to examine the mother of the appellants/plaintiffs. Certain interim orders had been granted for a limited period which are being extended from time to time.

(3.) Submission of Sri Anjappa, the learned Counsel representing the appellants /plaintiffs : Sri Anjappa, the learned Counsel representing the appellants/plaintiffs had taken this Court through the respective pleadings of the parties, the oral and documentary evidence available on record, the findings recorded by the learned Judge and had also commented how the said findings are not in accordance with law. The Counsel also pointed out the non-consideration of the documentary evidence in proper perspective and the consideration of inadmissible evidence and also total omission of consideration of certain documents which have material bearing on the result of the suit. The learned Counsel pointed out that the learned Judge had given undue importance to corrections made in the documents and also the rectification of plot number. The learned Counsel also would maintain that in a suit of this nature, the evidence of the appellants/plaintiffs and the evidence of the respondents/defendants may have to be weighed in a balanced manner and the learned Trial Judge had concentrated in appreciating the evidence of the appellants/plaintiffs alone totally disregarding the evidence of DW-1 since the evidence of DW-1 would definitely go to show that she has no right or marketable title to the suit property and even if such property is available to her it may be under a different survey number and definitely not the plaint schedule property. The Counsel also pointed out that Exs.A-1 to A-3 clearly refer S.No.l 17 and Plot No.83 admeasuring 3633 sq.yards which was purchased by the mother of the appellants/ plaintiffs on 27 Farvardi 1355 Fasli dated 27-2-1945 and the same was produced from lawful custody and the learned Counsel also pointed out to the vendors title on 26 Amardad 1354 Fasli. The Counsel also would maintain that the mistake relating to plot number was only a mistake of fact which had been duly corrected. The learned Counsel commented that the findings recorded in relation to Exs.A-5, A-6 and A-6(a) definitely cannot be sustained especially in the light of Sections 82 and 85 of the Indian Evidence Act 1872. The Counsel also made elaborate submissions relating to oral gift which is recognized by the Muslim Law and in the light of the peculiar position the Counsel would comment that the non-examination of mother definitely is not fatal to the case of the appellants/ plaintiffs. Even otherwise the Counsel would maintain that at present an application i.e., C.C.C.A.M.P. No.l 14/2005 had been moved before this Court praying for permission to examine the mother and in the interest of justice the said application may have to be allowed. The learned Counsel explained when once a mistake regarding plot number was made, the same mistake continued in all the subsequent documents, the original being in Urdu and the mistake which occurred had been carried forward in other documents and this was just a continuation of the said mistake. The learned Counsel also commented that Exs.A-7 and A-9, the crucial documents had been referred to in a casual manner by the learned Judge. The learned Counsel pointed out that the abduction of secondary evidence and marking of such documents on respondents/defendants side though specific objection had been taken before the then Commissioner definitely is not in accordance with law. The learned Counsel also had pointed out to Ex.A-6 plan and made submissions that the learned Judge recorded certain findings reaching the same on unsustainable grounds. The learned Counsel also had taken this Court through Ex.A-7, dated 23-10-1978 with a reverse endorsement on payment of betterment charges of Rs.44,000/- duly paid to the M.C.H. The learned Counsel also had pointed out to O.S. No.804/97 in relation thereto. The learned Counsel also would submit that Ex.A-9, the supplementary G.P.A. was admitted without objection and marked and acted upon and hence the same cannot be questioned at a later point of time. While further commenting about Exs.A- 8 and A-9 and the findings recorded by the learned Judge, comment had been made that the Stamp Act is only an enabling provision to avoid stamp duty when a document is already stamped and hence there is no question of further valuation under the Stamp Act and the Counsel would point out that proper stamp duty had been paid and the document had been marked without objection and this aspect had not been properly considered. The learned Counsel also pointed out to O.S. No.6023/ 94 filed by the respondents/defendants against M.C.H. which ended in dismissal. The learned Counsel also pointed out the circumstances under which the memo of gift was prepared and the persons concerned with the same are no more. The learned Counsel also pointed out to the sale deed in favour of Ramachandra Reddy. The learned Counsel also pointed out that when once the title is established by the appellants/ plaintiffs the burden to prove adverse possession or perfection of title would lie on the respondents/defendants and even otherwise there is no plea of adverse possession and this aspect had not been taken note of while appreciating the aspect of burden of proof. The total non-consideration of Ex.A-14 had been commented upon. The report of the Commissioner and the objections filed thereto also had been pointed out. The Counsel no doubt commented that in the light of the fact that oral gift is well recognized under Muslim Law non- examination of the mother would not alter the situation in anyway but even otherwise for the reasons explained in C.C.C.A.M.P. No. 114/2005 she may be permitted to be examined. The learned Counsel would comment that in the light of Sections 82 and 85 of the Indian Evidence Act, 1872 definitely the procedure followed in England in relation to Ex.A-5 cannot be found fault by an Indian Court. The learned Counsel also had explained certain anomalies in the documents referring to Jubilee Hills and Banjara Hills in this regard. The learned Counsel also pointed out to the ancient nature of these documents and laid stress on the tax payment receipts as well. The learned Counsel also placed reliance on certain decisions.