MOHAMMAD SHAHBUDDIN Vs. AHMED SAIFULLA HUSSAIN

JUDGEMENT

(1.) Defendants 1 and 2 in O.S. 189 of 1966 on the file of the Second Assistant Judge, City Civil Court, Hyderabad are the appellants. The first respondent herein filed the suit for an injunction restraining the defendants from interfering with his possession of a house 1-2-524/1 situated at Domalaguda, Hyderabad. His case was that the site in which the house is situated of the extent of 500 square yards belonged to one Mohd. Haneef. On his death his widow Haziz Bi became entitled to the property. She constructed a compound wall after obtaining permission of the Municipality. Thereafter, on 10-7-1955 she executed an agreement of sale of the site together with the compound wall in favour of the plaintiff and received an advance of Rs.250.00 and handed over possession of the land on the same day to the plaintiff. Subsequently, on 12-7-1955 she executed a sale deed for Rs.3,000.00 in favour of the plaintiff. The plaintiff after obtaining permission from the Municipal Corporation constructed a house on the site. One Mohd Ghouse claiming to be the brother of Mohd. Haneef filed a suit against Haziz Bi for partition of the property belonging to Mohd. Haneef. A compromise was entered between Mohd. Ghouse and Haziz Bi and a decree was passed in terms of that compromise. But the plaintiff was not a party to the said suit or to the compromise. The land purchased by the plaintiff was not included in that suit, but the first defendant describing himself to be purchase of the decree from Mohd. Ghouse, sought to interfere with the possession of the plaintiff and brought a warrant from the Court for delivery of possession of the suit house. The plaintiff thereupon filed the suit for injunction restraining the defendant from interfering with the possession of the house, his contention being that the house was not the subject-matter of the suit or the compromise decree in that suit. D-2 and D-3 did not claim any interest in the property. The first defendant contented that the property was included in the suit filed by Mohd. Ghose against Haziz Bi and under the compromise decree Mohd. Ghouse became entitled to the suit property. The plaintiff purchased the property with full knowledge of the claim of Mohd. Ghouse. He was not a bona fide purchaser for value without notice. His purchase was affected by the doctrine of lis pendens. The prior agreement was not true ad was ante-dated. The first defendant having purchased the decree for valuable consideration from Mohd. Ghouse under a registered sale-deed dated 25-11-1960 he was entitled to the suit property which was included in the decree.

(2.) The trial Court held that the agreement of sale in favour of the plaintiff dated 10-3-1955 was true. It also held that in the plaint as originally fled on 5-8-1955 suit property was not included in the schedule. But Mohd. Ghouse filed a petition by which he sought to amend the schedule by incorporating Item 17 which was ordered on 12-9-1955. Even assuming that this item represented the suit property, as it was ordered to be included only on 12-9-1955, after the sale deed in favour of the plaintiff, the plaintiff was not affected by the compromise decree obtained in the suit, as he had acquired a valid title even before the schedule was ordered to be amended. I, therefore, held that the sale deed was not hit by the doctrine of lis pendens. It was also contended before it that the suit was not properly valued. This contention was accepted and the trial Court held that the suit should be valued at Rupees 3,000/- and the plaintiff was required to pay the deficit court-fee. The judgment was delivered on 27-8-1971 and the deficit court-fee was paid on 3-9-1971.

(3.) Defendants 1 and 2 preferred an appeal to the Additional Chief Judge, City Civil Court, Hyderabad. The lower appellate Court framed three points for determination. 1. Whether the suit property is covered by the schedule of O.S. 109/55 on the file of the Second Additional Judge, Hyderabad? 2. Whether the sale deed Exhibit A-1 is hit by lis pendens ? 3. Whether the plaintiff is entitled for the injunction as prayed for ? It held on point 1 that the present suit property was not included in the schedule to the plaint in O.S. 19/55 even as mended. On point 2 it held that even if it was covered by the schedule the transaction of sale in favour of the plaintiff was not hit by the doctrine of lis pendens. In the result, it held on point 3 that the plaintiff was entitled to the injunction as prayed for and the same was dismissed with cost.