KHADER NAWAZ KHAN Vs. HABIB KHATOON

JUDGEMENT

(1.) This appeal arises out of a Judgment in suit O.S.No.471 of 1987. The plaintiff is the appellant. The suit was filed for partition and allotment of 1 /4th share in Survey No.210/6,7,8 and new Survey Nos. 41 to 43, and measuring Ac.49-24 gts. situated at Kokapet village. The facts in brief as stated in the plaint are as follows:

(2.) The original owner and pattadar of survey Nos-41 to 43 situated at Kokapet village was Qamaruddin Ali Khan. These lands were agricultural lands. One Khader Hussain Khan purchased the property covered by the Said survey numbers from Qamaruddin Ali Khan. The said Khader Hussain Khan cultivated the land and enjoyed the same as absolute owner. He died in 1352 Fasli. He left behind him his-real sister, Shahazadi Bee and two step brothers, Feroz Khan and Khadar Nawaz Khan. After the death of Khader Hussain Khan Shahzadi Bee. Feroz Khan and Khadar Nawaz Khan were in join pssession of the property as the heirs of Khader Hussain Khan Sucession certificate was granted In favour of all the three persons and patta was granted in the name of Feroz Khan, who was the elder member of the family, Feroz Khan died between 1977-78, leaving behind him defendants 1 to 9, who are the widow, sons and daughters. After the death of Feroz khan, the plaintiff viz., Khadar Nawaz Khan and defendants 1 to 11 legal representatives of Shahazadi Bee, were in joint possession and enjoyment of the plaint, schedule property. Defendant 12, who is a stranger, was creating some documents to deprive the rights of the plainff and the other sharers. Since there were differences among the family members and since it was difficult for them to continue, in joint possession the plaintiff demanded the partition of the suit properly. But the defendants did not comply with his request Finally on 15-11-1987 they refused to partition the.auit schedule properties. Therefore, the .present suit was filed for partition of Ac.49-24 gts. and allotment of 1/4 th share. The suite share. properties are matrooka propeerties

(3.) Defendants No.10 and 11 are the sons of Shahzadi Bee. Defendants 1 to 9 filed a memo adopting the written statement of Defendant 11. Defendant 11 filed a written statement supporting the case of the plaintiff Defendant 12 filled a written statement contending that the suit property- is not the joint property of the plaintiff and Feroz Khan and Shahzadi Bee and the suit was filed by the plaintiff in collusioin with Defendants 1 to 11: He denied the other allegations made in the plaint. He further stated that the suit schedule lands were purchased by late Khader Hussain Khan from one Qamaruddiin Alli Khan for a valid consideration under a registered sale deed dated 23 Arban 1344 Fasli and he was in exclusive possession and enjoyment of the said land, till his death in 1357 Fasli. After his death, his brother, Feroz Khan, who is the husband of defendant 1 and father of the defendants 2 to 9 became the owner of the suit schedule land by virtue of the sucession certificate bearing No. 812 of 1357 Fasli issued by the Director of Settlements, has been in continuous and exclusive possession of the suit land paying land revenue. The late Feroz Khan perfected his title of the said lands by being in exclusive possession and enjoyment as an exclusive owner for over the statutory period. One J.H. Krishna Murthy, claiming to be the general power of the attonery late Nawab Nasrat Jung-I, started interfering with the peaceful possession and enjoyment of the lands by late Feroz Khan. Defendant 12 also denied the title of Feroz Khan, Feroz Khan gave a complaint against Krishna Murthy to the police. Since the police did not take any action, Late Feroz Khan initiated proceedings under Sec.145 Cr.P.C. apprehending breach of peace before the Revenue Divisional Officer. The Revenue Divisional Officer dropped the proceedings holding that there was no breach of peace, late Feroz Khan instituted a suit O.S.No.31/66 on the file of III Additional Judge, City Civil Court, Hyderabad, against Krishna Murthy and others seeking relief of declaration and injunction. The suit was later on transferred to V Additional Judge, City Civil Court, Hyderabad, and was re-numbered as O.S.No.512 of 1973. After the institution of the suit, late Feroz Khan entered into an agreement with defendant No.12 agreeing to sell the entire extent of land covered by Survey Nos. 42 and 43 and a portion of Survey No, 41 to this defendant, pursuant to which a registered sale deed in respect of entire Survey No. 42 and a portion of S.No.41 was executed on 4-10-1969, after receiving the sale consideration. He was impleaded as 2nd plaintiff in the suit O.S.No. 512 of 1973. Since Krishna Murthy was threatening to dispossess this defendant and Late Feroz Khan, they again instituted proceedings under Section 145 Cr.P.C. before the Revenue Divisional Officer who held that Krishna Murthy was in possession of the properties. Therefore, this defendant and late Feroz Khan amended the plaint in O.S.No.512 of 1973. Feroz Khan, who was in need of money, offered to sell the entire extent of Ac. 18-25 gts. covered by Survey No.43 and executed an agreement of sale on 23-3-1973. The consideration agreed was Rs. 575/-per acre and Rs. 5000/- for the sheds which were in existence and a sum of Rs. 8000/- was received. Since the suit O.S.No.512 of 1973 was pending, it was agreed that the sale deed' should be executed in respect of Survey No.43 within two months from the date of disposal of O.S.No.512 of 1973. That suit was decided in favour of late Feroz Khan holding that he alone had title and possession of the suit schedule property. It was also held that they are entitled to recover possession of the land from Krishna Murthy. The decree was dated 30-6-1976. Krishna Murthy filed an appeal in CCCA No.142 of 1976. During the pendency of that appeal, Feroz Khan died on 22-1-1978 and his legal representatives viz. widow and children were brought on record. During the pendency of the appeal, the legal representatives of Feroz Khan tried to alienate the property. But, this defendant could not get the agreement executed in his favour on account of the fact that the sale deed was to be executed within two months from the final disposal of O.S.No.512 of 1973. He, therefore, filed a suit O.S.No.164 of 1981 on the file of the V Additional Judge, City Civil Court, for permanent injunction restraining the defendants 1 to 9 from selling or otherwise disposing of the land covered by Survey No.43 of Kokapet village to anyone else other than this defendant. The Trial Court decreed the suit. An appeal filed against the Judgment in that suit was dismissed on 27-11-1984. The appeal filed by Krishna Murthy in CCCA No.142 of 1976 was also dismissed by this Court on 11-12-85. After the dismissal of the appeal on 11-12-85, this defendant issued a notice to defendants No.1 to 9 calling upon them to execute and register a sale deed in his favour in respect of the land covered by an agreement of sale dated 23-3-1973. Since defendants 1 to 9 did not comply with the demand of this defendant, this defendant had to file O.S.No.150 of 1986 on the file of Munsif Magistrate West, R.R. District, against Defendants 1 to 9 for specific performance of the agreement of sale dated 23-3-1973 in respect of Ac. 18-25 gts. in Survey No.43 of Kokapet village. This defendant, after disposal of CCCA No.142 of 1976, filed E.P. No.88 of 1986 on the file of the Principal Sub-Judge R.R. District, for delivery of the land covered by Survey No. 41 to 42 of Kokapet village. The said E.P. was filed along with defendants 1 to 9. In trie E.P., the possession of the land was delivered on 19 5-1986. Defendant No.12 in his written statement also contended that O.S.No.150 of 1986 was also decreed on 2-11-1987 in his favour directing the defendants 1 to 9 to execute the sale deed. The plaintiff was not in possession of suit schedule lands at any time and he never claimed any title or interest in the said lands, though the litigation was pending between this defendant and Feroz Khan on one side and Krishna Murthy on the other side. He never attempted to impleaded himself as a party in any of the legal proceedings.