AFSAR KHAN Vs. COL GOVINDACHARYULA NARSING RAO

JUDGEMENT

(1.) The unsuccessful defendant is the appellant. The respondent-plaintiff filed the suit for declaration of his title and for possession of Plot No. 7 admeasuring 383.75 sq. yards of vacant site situated in Survey No. AD 51/4 and 51/2 of Bagh Amberpet, University Road within the limits of Municipal Corporation of Hyderabad, and for consequential relief of mandatory injunction to demolish the existing building in the suit site at the cost of the defendant.

(2.) The case of the respondent is that his father Sri Govindacharyula Ramarao purchased the plaint schedule site under a registered sale deed dt. 24-6-1963 from one P.V.P. Vithal Prasad. His father bequeathed the said property to him by his will dated 28-12-1975 which was duly probated in O.P.No. 243 of 1978. The respondent being the executor of the said will is competent to file the suit to safeguard the interest of himself and his brothers. As the appellant-defendant under ostensible plea of purchase from one Ramamohana Rao who has no title to the property seems to have obtained permission for construction of a multi-storeyed structure on the suit site and in pursuance thereof started construction. The respondent was serving in Indian Army and after his release, he was employed in Iraq. The respondent came to Hyderabad for vacation in December, 1983 and noticed the same. Even the sanction for construction of the building was obtained by fraud and by misrepresentation. He issued a notice to the appellant on 30-1-1984, but no reply was received. Meanwhile the illegal construction has reached the level of first floor. Hence the suit.

(3.) Denying the material allegations, the appellant in his written statement contended that neither Mustaq Ali Khan nor Vithal Prasad was the owner of Survey No. 51/1, but the site belongs to Syed Ajam and others. But as seen from document No. 2001/60 dated 20-8-1960 Mustaq Ali Khan has included Survey No. 51/1 in the sale deed, although he has no right or title to survey No. 51/1. Hence the sale is not binding on the appellant. The respondent has nothing to do with the suit site as the appellant has not encroached any land of the respondent,