MOHD MUJTABA Vs. MOHD AHMED PASHA

JUDGEMENT

(1.) THIS revision petition has been preferred by the plaintiff in O. S. No. 1038 of 2007 on the file of the IV Additional Rent Controller - cum-XVI Junior Civil Judge, City Civil Court, Hyderabad.

(2.) THE said suit was filed by the plaintiff for perpetual injunction. In the said suit the defendants filed a counter claim for partition of the suit schedule properties into four shares and put the defendants in one such share. Subsequently, the plaintiff filed I. A. No. 222 of 2007 under Order VIII Rule 6-c read with Section 151 C. P. C praying to exclude the counter claim made by the defendants as prayed for. The plaintiff is contending that he is in exclusive possession of the property. He filed the suit for permanent injunction and also obtained a temporary injunction. The defendants are claiming that the plaintiff and the defendants are in joint possession of the properties. Therefore, the properties are liable for partition. The plaintiff is contending that the filed the suit for injunction simpliciter. Therefore, the defendants cannot convert the said suit into partition suit by paying Rs. 200.00 towards fixed Court Fee and if the defendants have got any right over the property they are entitled to file a separate suit. He further pleaded that as on the date of filing of the suit the schedule property is a Government land and they cannot seek partition as if it is a joint family property. When once the suit schedule property is transferred in the name of the plaintiff the defendants may file the suit for partition and as the defendants filed an application before the Collector opposing mutation in the name of the plaintiff, the counter claim cannot be entertained. Therefore, it is liable to be excluded. The plaintiff further contended that though the defendant filed written statement on 21-11-2005 he could not instruct the counsel to file rejoinder to the written statement within 90 days as there was a change of the counsel and he was made to roam around the Collector's office in connection with the regularization of the property in his name. The delay in filing the rejoinder is not wilful. Therefore, he requested to condone the delay of 190 days in filing the rejoinder. Otherwise he will be put irreparable loss.

(3.) THE lower Court dismissed the said application by observing that on perusal of the plaint it is clear that the plaintiff filed the suit against the defendants on the ground that he encroached the land wherein the suit schedule house was constructed by the plaintiff by spending huge amounts and the government subsequently regularized unauthorized possession over the Government land, that the plaintiff paid amount to the Government for regularization of the unauthorized possession of the plaint schedule property. The defendants are contending that they are also in possession and enjoyment of the property along with the plaintiff with their parents. The suit schedule property was valued at Rs. 4,98,000.00 and the defendants also paid some amount to the Government for the purpose of regularization and the Joint Collector kept in abeyance of the regularization of the property till the disposal of the suit. Therefore, the defendants filed counter claim for partition of the suit property. The lower Court further observed as follows :