SYED MAHMOOD Vs. MANIK CHANDRA

JUDGEMENT

(1.) The defen- dant in O.S.No.457 of 1979 on the file of the V Additional Judge, City Civil Court, Hyderabad has challenged the Judgment and Decree of the learned Judge dated 24-12-1982. The suit was decreed. The respondent is the plaintiff. They will be referred to in the same capacity. The plaintiff sought for a declaration that he is the owner and is in possession of the suit property and for possession of the same and such other reliefs as the Court may deem fit to grant. The suit schedule property is described as part of Survey No.266/B with some descriptions in the schedule. The plaintiff claimed the title to the suit property having an extent of 2965 square yards through his father late B. Ramaiah @ Ramanna who purchased it from one Mahaboob Begum wife of Mohammed Abdul Rahman under a sale transaction dated 14th Aban 1238 Fasli i.e. 1919 A.D. His father came into possession of the property under the sale transaction, he continued as such and after the death of his father the plaintiff has been continuing in possession and enjoyment of the same. It appears that there were some litigations between the plaintiffs father and other persons which ended in their favour. The house was also made by construction. When the Army Headquarters of Hyderabad wanted to acquire the house and the land, the plaintiff demanded Rs.5/- per square yard and the acquisition proceedings were dropped. The plaintiff was working as Assistant Director in Medical Department and retired in the year 1961. It appears that one Jangaiah Gowli encroached upon the suit property to an extent of 40 square yards and in that connection there was a litigation in O.S.No. 10/65 which was filed by the plaintiff which came to be decreed on 30-8-1967. It was confirmed throughout. It appears that the defendant filed O.S.No.536/72 for permanent injunction alleging that he purchased about 1200 square yards out of S.No. 157 from one Khaberunnisa Begwn wife of late Nasar Ben Awas who was given title of Nissan Yar Jung through a registered sale deed dated 27th October, 1971. The suit came to be decreed ex pane. The plaintiff filed an application to set aside the ex parte decree with an application to condone some delay and it came to be dismissed on 5-3-1979 by the VII Assistant Judge, City Civil Court, Hyderabad. Although the plaintiff has been the absolute owner in possession of the suit property, having due regard to the conduct of the defendant in setting up his possession and title over the same property apparently resembling a portion of the same obtaining a decree in an injunction suit, a cloud was doubted in regard to his title and possession and therefore, he has filed the suit to prevent the defendant in his attempt to alienate the property on the strength of an ex parte decree obtained by him.

(2.) The defendant denied the title of the plaintiff to the suit property, his possession, his enjoyment of the same. He denied the identity and the description of the suit property and set up his own title to a portion of the suit property to the extent of 1200 square yards out of Survey No. 157 by virtue of a document dated 13 Amardad 1320 F (1910 AD) on the basis of a perpetual lease said to have been granted to his vendor Sri Md.Fariduddin Khan. He also alleged that he was in possession of the same and the plaintiff had no right over the same. A citation has also been issued in Urdu News Paper dated 17-10-1972 before he purchased the property from his vendor and no objections came forward. Therefore, he has denied that the plaintiff is entitled to get any relief in regard to the suit property and the decision in the injunction suit bears his rights in the suit, that the suit is not maintainable and that it may be dismissed. The following issues were framed in the suit: 1) Whether the plaintiff is entitled to the declaration, possession and injunction prayed for? 2) To what relief?

(3.) During the trial, the plaintiff examined himself as P.W1 and got marked as many as 12 documents as per Exs. A-1 to A-12 and the defendant got marked 10 documents as per Exs.B-1 to B10 respectively. It appears that the defendant examined himself as D.W1. The learned trial Judge having heard both the sides and on the basis of the material before him held issue No. 1 in favour of the plaintiff and consequently decreed the suit as prayed for.