ZAHIDUNNISA BEGUM Vs. SAIB HUSSAIN

JUDGEMENT

(1.) THE plaintiff has filed this Second Appeal. She filed O.S. No. 2603 of 1979 on the file of the Court of the X Assistant Judge, City Civil Court, Hyderabad for permanent injunction in respect of 27 sq. yards of land. She claimed to be in possession of the suit schedule land on the basis of an agreement of sale dated 10 -8 -1979 executed by Sri Md. Yousuf in her favour. She pleaded that the defendants dumped some stones in the said land on 20 -8 -1979 and threatened her with dispossession. The first defendant resisted the suit stating that the alleged agreement dated 10 -8 -1979 was created to usurp the property and that neither the plaintiff nor her vendor had any title to or possession of the suit land. He has asserted that he is the owner of the suit land and that the plaintiff is attempting to get into possession of the suit schedule land under the guise of an injunction order. He filed counter claim seeking delivery of possession on the ground that the plaintiff illegally occupied the suit schedule land on the intervening night of 24/25 -8 -1979. Oral and documentary evidence was adduced on behalf of both the parties. On consideration of the evidence, the trial court dismissed the suit and allowed the counter claim. On appeal, the learned Chief Judge confirmed the judgment of the trial Court. It is contended by the learned counsel for the appellant that the courts below have not identified the property and the finding as to possession is not correctly recorded. It is further contended that the counter claim filed by the first defendant for delivery of possession in a suit for injunction is not maintainable. In the plaint, the suit property is shown as bearing Municipal No. 10 -3 -6/A. According to the defendant, the suit land is part of his property bearing Municipal No. 10 -3 -6. On a thorough appraisal of the oral and documentary evidence, the lower appellate court has found that the suit schedule property is part of the larger extent of the property owned by the first defendant bearing Municipal No. 10 -3 -6 and the plaintiff has filed the suit to grab the suit property on the basis of Ex. A -1 agreement. The Plaintiff has not produced any evidence to prove her possession. Both the courts below have pointed out the discrepancies in the evidence of P.Ws. 1 to 4 as to payment of consideration under Ex. A -1 agreement and the number of rooms constructed in the suit land. Except Ex. A -1 agreement no other document is produced to prove title of the plaintiff or her vendor to the suit land. No receipts as to payment of Municipal tax have been produced. On the other hand, the courts below have found on the basis of Exs. B -1 to B -16 that the first defendant is the owner of the suit land and he has been paying the Municipal taxes. They have referred to Exs. B -1 to B -6 and on the basis of the recitals therein they have held that the suit property forms part of the property of the first defendant. Ex. B -7 a plan issued by the Municipal Corporation of Hyderabad in the year 1956 further supports the case of the first defendant that the suit property belongs to him. As both the courts below recorded a concurrent finding of fact on the basis of evidence that the plaintiff was not in possession of the suit land on the date of filing of the suit and the first defendant who was in possession of the property was forcibly evicted on the intervening night of 24/25 -8 -1979 under the guise of interim injunction granted by the Court, I do not see any ground to interfere with the said finding in this second appeal.

(2.) IT is next contended that the counter -claim filed by the first defendant in a suit for permanent injunction is not maintainable. The learned counsel has drawn my attention to the provisions of Rules 6, 6A, 6B, 6C, 6D, 6E, 6F of Order 8 C.P.C. and argued that a counter claim can be set up only in a suit for money and not in any other suit. In support of his contention the learned counsel has relied on a decision of the Patna High Court in Jashwant Singh V. Darshan Kaur : (A.I.R. 1983 Patna page 132). To appreciate this contention it will be necessary to refer to the relevant provisions of the Civil Procedure Code relating to counter claim. Order 8 Rule 6 CPC provides that in a suit for recovery of money the defendant can claim set off against the plaintiff's demand. Prior to amendment of Civil Procedure Code by Act No. 104 of 1976 there was no statutory provision conferring a right on the defendant to set up counter claim even in a money suit. However, having regard to the provisions of Order 21 Rule 19 the Courts have taken the view that the defendant can set up a counter claim in a suit for recovery of money. By the Amendment Act No. 104 of 1976 the Parliament introduced rules 6 -A to 6 -G in Order 8 CPC Rule 6 -A which deals with counter claim by the defendants is relevant for our purpose and it reads as follows: - -