ABDUL MAJLD KHAN MOHD Vs. AFSAR KHAN

JUDGEMENT

(1.) C.M.A. No.57 of 1996: This appeal is filed against an order rejecting the application filed under Order 21, Rule 97 C.P.C seeking for adjudication of the rights of the petitioner in the petition schedule property which is a house bearing Municipal No.4-1-1/3, King Koti, Hyderabad. The respondent No.l filed E.P.No.46 of 1990 under Section 144 of Civil Procedure Code for restitution of possession on the ground that he was dispossessed on 21-10-1989 by virtue of an ex parte decree dated 1-9-1987 in O.S.No.499 of 1989.

(2.) The property in question was originally owned by respondent Nos.2 and 3.One Haji Mohd. Misbhauddin Qureshi obtained agreement of sale dated 11-7-75 from respondent Nos.2 and 3. He filed O.S.No.293 of 1982 on the file of the Fifth Additional Judge, City Civil Court, Hyderabad for specific performanceof agreement forsaleagainst them and obtained an ex parte decree on 30-6-1983. Sale deed was also got executed through Court on 25-1-1991. The petitioner claims that he paid a sum of Rs.1,60,000/- to the said Qureshi under a mortgage deed dated 22-6-1991 and he was in peaceful possession and enjoyment of the said premises having been inducted into possession in the month of June, 1991. As the first respondent obtained orders for delivery of possession, the petitioner come forward with this application to declare his rights.

(3.) The case of respondent No.l is that he was inducted into possession of the premises in question as a tenant originally by respondent Nos.2 and 3. Later, respondent Nos.2 and 3 mortgaged the said property to him on 21-7-1994 and eversince he was in possession of the said property as a possessory mortgagee. While the mortgage was subsisting, respondent Nos.2 and 3 again entered into an agreement for sale with him on 13-2-1977.The mortgagors filed O.S.No.1720 of 1979 on the file of the Second Additional Judge against him for redemption of the mortgage. However, the suit was dismissed on 21-10-1992 and the said judgment became final. As the respondent Nos.2 and 3 did not execute the sale deed as per the agreement of sale, he filed O.S.No.101 of 1980 for specific performance while the suit was pending, respondent Nos.2 and 3 in collusion with Qureshi filed O.S.No.499 of 1989on the fileof theSecond Additional judge and obtained an ex parte decree against him on 1-9-1989 and dispossessed him on21-10-1989 through a Panchanama. There upon he filed I.A.Nos.1527 of 1989 and 1528 of 1989 to set aside the ex parte decree dated 1-9-1989 and also for restitution of possession. Mohd.Qureshi has also filed I.A.No.l717of 1989 to set aside the ex parte decree and for restitution of possession to him. Both the applications filed by respondent No.l were allowed and the ex parte decree passed in O.S.No.499 of 1989 was set aside on 18-6-1990. Consequently, the application filed by Mohd. Qureshi to set aside the ex parte decree was also formally allowed/ but the application filed by Mohd. Qureshi for restitution of possession was dismissed. Aggrieved by the said order, he carried the matter in appeal in C.C.C.A. No.66 of 1990 before the High Court which was also dismissed.Mr.Qureshi has also filed E.A,No.36 of 1991 objecting to thedelivery to the respondent No.l. As the same was dismissed on 19-4-1991, he carried the matter in revision before the High Court in C.R.P.No.1333 of 1991 which was dismissed on 15-7-1991. He unsuccessfully carried the matter to the Supreme Court in S.L.P.No.12934 of 1991 which was also dismissed on 22-8-1991. After dismissal of E.A.No.36 of 1991 on 19-4-1991, the petitioner obtained a receipt dated 22-4-1991 from Mohd. Qureshi claiming to have been inducted into possession under an unregistered mortgage deed. Therefore, the petitioner claims under Mohd. Qureshi whose claim was rejected by the High Court and Supreme Court.