Once the title is proved - no need to establish that the plaintiff was in possession with in 12 years as per Art.65 of Limitation Act - since the suit was filed with in 3 years, when the suit was filed - Defendants denied as Tenant - being trespassers - their possession never debar the plaintiff to claim possession of the property - Muslim Law of inheritance- Therefore I hold that the plaintiffs have established that Smt.Qamarunissa Begum is the owner of item No.1 house. After her death under Ex.A16 dt.6.8.1981, there is relinquishment by sisters of 1st plaintiff of their 4/5th share therein in her favour. Since Syed Ahmad Hussain had died during the life time of Smt. Qamarunissa Begum, his legal heirs would not get any share as per Muslim personal law =
(i) declare that she is the absolute owner of these
properties;
(ii) for recovery of possession thereof from the
appellants/defendants;
(iii) for past mesne profits of Rs.3,600/-
against the person and properties of defendant Nos.1 to 5;
(iv) for future mesne profits from 21.08.1981 onwards till date of recovery of
possession for these properties at the rate of Rs.100/- per month;
(v) to declare the sale deed Ex.B.14 executed by defendant no.1 in favour
of his sister defendant no.5 as illegal, null and void and not binding on
her; and
(vi) costs.
The said suit was filed on 20.08.1981.=
since the suit was filed on 20.08.1981, it was filed
within three years from the date of knowledge i.e., within three years
from 21.08.1978 when IA.No.991 of 1978 was filed and so the suit is
not barred by time even if Article 59, which deals with limitation for
seeking cancellation of an instrument, is attracted.=
The 1st plaintiff further contended that since her brother Syed
Ahmed Hussain had died during the lifetime of their mother Smt.
Qamarunissa Begum, defendant nos.6 to 9 would not get any share in
these properties as per the personal law of the parties; only 1st plaintiff
and her four sisters Hafeezunissa Begum, Kareemunissa Begum,
Ayesha Begum and Hazeera Begum would inherit these properties
equally having 1/5th share therein; in OS.No.934 of 1971, the 1st
plaintiff had contended that her sisters had on 01.11.1971 orally gifted
in her favour their 4/5th share; =
in OS.No.934 of 1971, the court delivered a judgment
Ex.A.14 dismissing the suit; the court no doubt gave a finding that
Smt. Qamarunissa Begum was the absolute owner of the properties,
but took the view that the oral gift dt.01.11.1971 in favour of the 1st
plaintiff by her four sisters was not established and the 1st plaintiff
cannot be said to be the absolute owner of these houses and at best she
is the owner of only her share of 1/5th;=
Therefore I hold that the plaintiffs have established that Smt.
Qamarunissa Begum is the owner of item No.1 house. After her death
under Ex.A16 dt.6.8.1981, there is relinquishment by sisters of 1st
plaintiff of their 4/5th share therein in her favour. Since Syed Ahmad
Hussain had died during the life time of Smt. Qamarunissa Begum,
his legal heirs would not get any share as per Muslim personal law
In Mohd. Mohammad Ali v. Jagadish Kalita it was held:
(SCC p. 277, para 20)=
20. By reason of the Limitation Act, 1963 the legal
position as was obtaining under the old Act underwent a
change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his
title and it would no longer be necessary for him to prove,
unlike in a suit governed by Articles 142 and 144 of the
Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it
would be for the defendant so to prove if he wants to defeat
the plaintiffs claim to establish his title by adverse
possession.
(See also P.T. Munichikkanna Reddy v. Revamma, Binapani
Paul v. Pratima Ghosh, Kamakshi Builders v. Ambedkar
Educational Society and Bakhtiyar Hussain v. Hafiz Khan.)
71. In this view of the matter, I hold that item No.2 of the plaint
schedule property is the property of Smt. Qamarunissa Begum and
that neither 5th defendant nor 1st defendant have acquired title thereto
by adverse possession.
72. It is true that the plaintiff has filed the suit alleging that
defendant nos.1 to 4 were tenants of both items under Smt.
Qamarunissa Begum but since the defendants later pleaded that she is
not the owner and Syed Ahmed Hussain is the owner, she contended
that their possession had become illegal and as trespassers from
27.11.1978. She contended that defendant nos.1 and 5 are brother and
sister and they both had colluded and brought into existence Ex.A.18
dt.04.01.1968 and the possession of defendant no.5 is also illegal and
she is also a trespasser since 21.08.1978.
73. I hold that the Respondent no.s17-20, the legal representatives
of deceased 2nd respondent/2nd plaintiff are entitled to a decree for
possession of both items on the basis of title acquired by 1st plaintiff
under Ex.A.16 dt.06.08.1981 release deed and that the
appellants/defendants are trespassers who had failed to prove
acquisition of title to both items either by adverse possession or
otherwise. I also hold that Ex.A18=B14 Sale deed executed by 1st
defendant in favour of 5th defendant is null and void and does not bind
the respondents 17-20/1st plaintiff or 2nd plaintiff.
74. For all the foregoing reasons, I therefore do not find any merit
in both the appeals and the same are accordingly dismissed with costs.
2014-July - Part - http://judis.nic.in/judis_andhra/filename=11588
THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO
CCCA.Nos.48 of 2000 and batch
02-07-2014
Smt. Siddiquinissa Begum,Died per LRs petitioners and
othersAppellants/Defendant No.5
Smt. Shamsunnissa Begum (died)Per LRs and othersRespondents/Defendants
Counsel for the Appellants:Smt. Manjari S. Ganu
For M. Papareddy
^Counsel for Respondent
Nos.17 to 20 :Sri K. Govind
<GIST:
>HEAD NOTE:
? Cases referred
1. (2004) 1 SCC 551
2. (2006) 5 S.C.C. 353
3. (2001) 5 S.C.C. 375
4. (2007) 14 S.C.C. 183
THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
CCCA.Nos.48 and 50 of 2000
The Court made the following : [order follows]
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
CCCA.Nos.48 and 50 of 2000
COMMON JUDGMENT :
These two appeals arise out of the same suit OS.No.901 of 1981
decided by a judgment and decree dt.31.12.1999 by the IV Senior
Civil Judge, City Civil Court, Hyderabad and therefore they are being
disposed of by this common judgment.
2. The appellant in CCCA.No.48 of 2000 is the 5th defendant in
the above suit and the appellants in CCCA.No.50 of 2000 are
defendant nos.11 to 15 in the said suit.
3. Pending appeal, the appellant in CCCA.No.48 of 2000 died and
her legal representatives are impleaded vide Order dt.03.04.2001 in
CMP.No.6410 of 2001.
4. The 2nd appellant in CCCA.No.50 of 2000 also died and
appellant nos.10 to 12 have been impleaded as his legal
representatives vide Order dt.07.09.2001 in CMP.No.16528 of 2001.
5. The 2nd respondent in both the appeals died on 28.02.2011 and
his legal representatives have been impleaded as respondent nos.17 to
20 in both appeals.
6. The subject matter of the above suits are two connected houses
bearing Municipal Nos.19-3-728 (hereinafter referred to as Item no.1
house) and 19-3-731/1 (hereinafter referred to as Item no.2 house)
admeasuring 279 Sq.yds. at Bakshigunj, outside Gazibanda,
Hyderabad.
7. The above suit was filed by 1st respondent/1st plaintiff in both
appeals to (i) declare that she is the absolute owner of these
properties; (ii) for recovery of possession thereof from the
appellants/defendants; (iii) for past mesne profits of Rs.3,600/-
against the person and properties of defendant Nos.1 to 5; (iv) for
future mesne profits from 21.08.1981 onwards till date of recovery of
possession for these properties at the rate of Rs.100/- per month; (v)
to declare the sale deed Ex.B.14 executed by defendant no.1 in favour
of his sister defendant no.5 as illegal, null and void and not binding on
her; and (vi) costs. The said suit was filed on 20.08.1981. Pending
suit she died and her son was impleaded as the 2nd plaintiff.
8. One Smt. Qamarunissa Begum is the wife of Late Syed Akbar
Hussain who died on 27.3.1955. Syed Ahmed Hussain is their son.
They also had five daughters Hafeezunissa Begum, Kareemunissa
Begum, Ayesha Begum, Hazeera Begum and 1st plaintiff Smt.
Shamshunissa Begum. Smt. Qamarunissa Begum died on 30.8.1971.
Syed Ahmed Hussain died on 28.02.1960. Defendant no.6 is the wife
of Syed Ahmed Hussain and defendant nos.7 to 9 are their children.
9. Defendant nos.1 to 4 are the sons of one Syed Basheeruddin
and the 5th defendant is their sister.
THE PLAINT :
10. The 1st plaintiffs case was that her mother Smt. Qamarunissa
Begum purchased item no. 1 house from one Shaik Ahmed through a
sale deed Ex.A.2 dt.14th Ardi Behisht 1350 Fasli (1940) for a sum of
Rs.99/- and item no. 2 from one Mohd. Jahangir through sale deed
Ex.A.5 dt.29th Dai 1352 Fasli (1942) for Rs.30/-; in October, 1944,
Syed Basheeruddin, the father of defendant nos.1 to 4, took both items
on lease on a monthly rent of Rs.8/-; the said Syed Basheeruddin died
in July, 1959; after his death defendant nos.1 to 4 became her tenants
and continued to pay the same rent; after October, 1960 they stopped
paying rent; that Smt. Qamarunissa Begum filed RC.No.251/EV/62
under the provisions of the A.P. Building (Lease, Rent and Eviction)
Control Act, 1960 for their eviction before the Rent Controller,
Hyderabad on the ground of wilful default in payment of rents; that
she also filed SC.No.288 of 1963 for recovery of arrears of rent
Rs.240/- before the Addl. Judge, City Small Causes Court, Hyderabad
against them; defendant nos.1 to 4 compromised the matter with her
in SC.No.288 of 1963; compromise memo Ex.A.9 dt.09.07.1963 was
filed therein wherein they admitted that she was the owner and
landlady, that they were liable to pay Rs.100/- towards arrears of rent
and that they had paid Rs.140/- to her on 08.07.1963 out of Court; on
the basis of the said compromise, a decree dt.15.07.1963 (Ex.A.10)
was passed therein; another compromise Ex.A.11 dt.23.09.1963 was
also filed in RC.No.251/EV/1962 wherein defendant nos.1 to 4
admitted that she was the owner and landlady and they were her
tenants; under that compromise defendant nos.2 to 4 agreed to execute
a fresh rental deed in respect of item No.1 in her favour stating that
they will reside therein as her tenants and defendant no.1 would reside
in item 2 as her tenant for three months and thereafter he would vacate
it; after filing the said compromise, defendant nos.1 to 4 remained
absent and the Rent Controller, Hyderabad passed order of eviction
dt.23.10.1963 in RC.No.251/EV/1960; in view of these two
compromises, defendant nos.1 to 4 have to be treated as her tenants;
thereafter, Smt. Qamarunissa Begum filed on 20.08.1971, a suit for
their eviction before the IVth Assistant Judge, City Civil Court,
Hyderabad, but before it was registered she died on 30.08.1971; the
suit was then transferred to Xth Assistant Judge, City Civil Court,
Hyderabad and numbered as OS.No.934 of 1971 and that the suit was
later continued by the 1st plaintiff.
11. The 1st plaintiff further contended that since her brother Syed
Ahmed Hussain had died during the lifetime of their mother Smt.
Qamarunissa Begum, defendant nos.6 to 9 would not get any share in
these properties as per the personal law of the parties; only 1st plaintiff
and her four sisters Hafeezunissa Begum, Kareemunissa Begum,
Ayesha Begum and Hazeera Begum would inherit these properties
equally having 1/5th share therein; in OS.No.934 of 1971, the 1st
plaintiff had contended that her sisters had on 01.11.1971 orally gifted
in her favour their 4/5th share; defendant nos.1 to 4 had pleaded in
their written statement in O.S.No.934 of 1971 that Syed Ahmed
Hussain, 1st plaintiffs brother is the owner of these properties, that
they were not tenants of Smt. Qamarunissa Begum and there was no
relationship of landlord and tenant between them; during the
pendency of that suit, 5th defendant filed IA.No.991 of 1978 on
21.08.1978 seeking impleadment alleging that she had purchased item
2 from 1st defendant under a sale deed Ex.B.14 dt.04.01.1968; only
then the 1st plaintiff became aware of the said sale deed; the said IA
was dismissed on 20.09.1978 under Ex.A.13 observing that she did
not have legal interest in the subject matter of the suit and therefore
she is not a necessary party thereto observing that the result of the suit
would not affect her rights and she could seek her remedies
separately; in OS.No.934 of 1971, the court delivered a judgment
Ex.A.14 dismissing the suit; the court no doubt gave a finding that
Smt. Qamarunissa Begum was the absolute owner of the properties,
but took the view that the oral gift dt.01.11.1971 in favour of the 1st
plaintiff by her four sisters was not established and the 1st plaintiff
cannot be said to be the absolute owner of these houses and at best she
is the owner of only her share of 1/5th; the appeal against the said
judgment in AS.No.146 of 1979 was dismissed on 31.01.1981 vide
Ex.A.15 judgment; during the pendency of AS.No.146 of 1979,
defendant nos.2 to 4 filed RC.No.30/DR/80 against defendant nos.6 to
9 on 29.01.1980 before the Principal Rent Controller, Hyderabad
alleging that they were the tenants of defendant nos.6 to 9 in respect
of item 1; on 06.08.1981, the 1st plaintiffs sisters had executed
Ex.A.16 release deed releasing their 4/5th shares in favour of 1st
plaintiff; that from that date, she has become the exclusive owner of
the plaint schedule properties and is entitled to recover possession of
them apart from being entitled to challenge Ex.A18 = B.14 sale deed
dt.04.01.1968 executed in favour of 5th defendant by 1st defendant.
12. The 1st defendant remained ex parte.
WRITTEN STATEMENT OF DEFENDANT NOS.2 TO 4 :
13. Defendant nos.2-4 denied that Smt. Qamarunissa Begum is the
owner of items 1 and 2 and that she purchased them under Exs.A.2
and A.5. They also contended that Ex.A.2 is in the name of a
fictitious person and that in Ex.A.5, the vendor is a fictitious person.
They contended that Ex.A.2 is inadmissible for want of sufficient
stamp duty and registration. They also denied that their father had
obtained both premises under a lease from Smt. Qamarunissa Begum.
They alleged that item no. 1 was obtained by their father on rent more
than 40 years back from the husband of Smt. Qamarunissa Begum by
name Akber Hussain and that on his death, his son Syed Ahmed
Hussain used to collect the rents from their father and that on the
death of their father, the 1st defendant became the tenant of Syed
Ahmed Hussain in respect of item no. 1 and on the death of Syed
Ahmed Hussain, they had become tenants of his legal heirs defendant
nos.6 to 9. They admitted that they filed RC.30/DR/80 before the
Principal Rent Controller, Hyderabad for deposit of rents and it was
allowed on 10.11.1981 after a contest by defendant nos.6 to 9. They
stated that they were constrained to enter into a compromise with Smt.
Qamarunissa Begum in RC.No.251/EV/62 and also in SC.No.288 of
1963 as she had obtained an ex parte order of attachment of their
moveables before judgment in SC.No.288 of 1963. They contended
that after the said compromise, late Smt. Qamarunissa Begum had
informed them that there was a family settlement in which item no.1
had fallen to the share of her son Syed Ahmed Hussain and that rents
be paid to him only; that OS.No.934 of 1971 filed by Smt.
Qamarunissa Begum was dismissed and was confirmed in appeal and
the observations made therein do not bind the defendants; that 1st
plaintiff cannot claim ownership of items nos.1 and 2 under the
release deed Ex.A.16, when item no.1 is the property of Syed Ahmed
Hussain since 1964 onwards; they are not trespassers of item 1; that
they are lawful tenants of defendant nos.6 to 9; and contended that
plaintiff is not the absolute owner of item no.1 and has no locus standi
to file a suit.
WRITTEN STATEMENT OF DEFENDANT NO.5 :
14. The 5th defendant is the sister of defendant nos.1 to 4 and she
claimed to have purchased item no.2 under Ex.A18= B.14 sale deed
dt.04.01.1968 executed by 1st defendant in her favour. She alleged
that the 1st defendant had purchased item 2 from Syed Ahmed Hussain
under Ex.B.35 sale deed dt.09.10.1963 for Rs.30/- and contended that
Smt. Qamarunissa Begum was also a party to it. She contended that
ever since the purchase by her on 04.01.1968, she is in continuous
possession and enjoyment as owner. She also contended that she
perfected her title to item 2 house by prescription of time and
alternatively by adverse possession and that the plaintiff had no right
or interest in the said item. She pleaded that she is not a party to
RC.No.251 of 1962 or OS.No.934 of 1971 and her application to
implead herself in the latter suit was dismissed. She also contended
that plaintiff and late Smt. Qamarunissa Begum did not take steps to
get Ex.A18 sale deed cancelled in spite of lapse of time of more than
twelve years; that the suit is therefore barred by limitation and is liable
to be dismissed.
WRITTEN STATEMENT OF DEFENDANT NOS.6 TO 9 :
15. Defendant nos.6 to 9 however admitted all the facts in the plaint
and stated that they have no claim in both items since Syed Ahmed
Hussain, the husband of 6th defendant and the father of defendant
nos.7 to 9 had died during the lifetime of Smt. Qamarunissa Begum.
They admitted that after the death of Smt. Qamarunissa Begum, her
five daughters became joint owners holding equal shares and that the
plaintiffs four sisters had executed Ex.A.16 release deed
dt.06.08.1981 in favour of the plaintiff and therefore, plaintiff became
the absolute owner of both items. They also contended that 1st
defendant had claimed to have purchased item 2 under Ex.B.35 from
Syed Ahmed Hussain, who had no right in the property and the sale
deed Ex.A18 in favour of 5th defendant is illegal, bogus and baseless.
They alleged that defendant nos.2 to 4 are not their tenants of item 1
and with false pleas, they had filed RC.No.30 of 1980 for deposit of
rents.
ISSUES :
16. The trial court framed the following issues :
1. Whether plaintiff is entitled for declaration that she is the absolute
owner of H.Nos.19-3-728 and 19-3-731/1, Bakshi gunj, outside Gazi
Banda, Hyderabad ?
2. Whether plaintiff is entitled for declaration that the sale deed
dt.4-1-1968 of H.No.19-3-731/1 is illegal, null and void as prayed for ?
3. Whether plaintiff is entitled for possession of H.Nos.19-3-728 and 19-
3-731/1 against D.1 to D.5 as prayed for ?
4. Whether plaintiff is entitled to past and future mesne profits from D.1
to D.5 as claimed ?
5. Whether the suit is barred by the period of limitation ?
6. To what relief is the plaintiff entitled ?
17. Before the trial court, the 2nd plaintiffs sisters son was
examined as PW.1 and another person was examined as PW.2.
Exs.A.1 to A.20 were marked on behalf of plaintiffs. DWs.1 and 2
were examined by defendant nos.2 to 4. They marked Exs.B.1 to
B.38.
THE JUDGMENT OF THE TRIAL COURT :
18. By judgment and decree dt.31.12.1999, the trial court decreed
the suit with costs.
19. The trial court held that in OS.No.934 of 1971, the allegations
were similar to those in the present suit and in the judgment Ex.A.14
dt.14.11.1978 therein, the court had held that Smt. Qamarunissa
Begum is the owner of both houses, but the suit was dismissed on the
ground that 1st plaintiff was only holding 1/4th share and she cannot
seek a declaration that she was the absolute owner of the entire
property; that the appeal AS.No.146 of 1979 filed against it was
dismissed on 31.01.1981; thereafter, a registered release deed Ex.A.16
was executed on 06.08.1981 by the sisters of the 1st plaintiff in her
favour and she became an absolute owner of both items; that Ex.A16
was proved by PW.1, the son of one of the executants of Ex.A.16;
consequently, the impediment found in OS.No.931 of 1971 in seeking
declaration in respect of the plaint schedule properties is removed;
that defendant nos.6 to 9 are now sailing with the plaintiffs and
admitting the title of 1st plaintiff under Ex.A.16.
20. It referred to Ex.A.2 under which item no.1 was purchased and
held that one of the attestors of Ex.A.2 is the father in law of 2nd
defendant; although counsel for defendant nos.2 to 4 contended that in
Ex.A.2 there are corrections, this fact was not proved as no persons
relating to it were alive; that Ex.A.2 was executed in 1940 and it was
not questioned in OS.No.934 of 1971 by defendant nos.1 to 4; that it
is an unregistered sale deed, but since the sale consideration is Rs.99/-
i.e., less than Rs.100/-, it is not a compulsorily registerable document;
and is therefore valid since the presumption under Section 90 of the
Evidence Act, 1872 comes into play. It also held that the contention
of the defendant nos.2 to 4 that the translation Ex.A4 is not correct
since corrections in Ex.A2 were not carried out in the translation
Ex.A.4 cannot be countenanced in the absence of filing and marking
the correct English translation according to them.
21. Coming to Ex.A.5 dt.29 Dai 1352 in respect of item no.2, it
held that since sale consideration thereunder was Rs.30/- only, it also
did not require registration. It held that in the compromise Ex.A.8
filed by defendant nos.1 to 4 in SC.No.288 of 1963, they had admitted
that they were tenants of both items 1 and 2 and she was their
landlady and that they owed Rs.240/- in rents to Smt. Qamarunissa
Begum. It also held that in RC.No.251 of 1962 a compromise
Ex.A.11 dt.23.09.1963 was filed admitting Smt. Qamarunissa Begum
is the owner of both items; later defendant nos.2 to 4 had filed
RC.No.52 of 1969 against Smt. Qamarunissa Begum and defendant
nos.6 to 9 contending that they were informed by Smt. Qamarunissa
Begum that there was a family settlement of both items in favour of
her son Syed Ahmed Hussain who had died in 1965 and defendant
nos.6 to 9 are now the landlords of item no.1, but they could not
establish the said family settlement. It noted that in the suit for
partition filed by Smt. Qamarunissa Begum against defendant nos.6 to
9 and others in respect of the Matruka properties of her husband, these
two items were not included and this proves that they are self-
acquired properties of Smt. Qamarunissa Begum as is evident from
Exs.A.2 and A.5 and that inconsistent stands were taken by defendant
nos.1 to 4.
22. It noticed that defendant nos.6 to 9 were now supporting the 1st
plaintiffs stand that Syed Ahmed Hussain was never the owner of the
two items and therefore held that 1st plaintiff established that Smt.
Qamarunissa Begum was the owner of both items; father of defendant
no.s1-4 had taken them on lease from her; and on his death defendant
nos.1 to 4 continued to be the tenants. It held that on the death of 1st
plaintiff, her son the 2nd plaintiff became absolute owner of both
items.
23. It held that there was no mention by defendant nos. 1 to 4 in
OS.No.934 of 1971 that Syed Ahmed Hussain had sold item 2 under
Ex.B.35 unregistered sale deed dt.09.10.1963 in favour of 1st
defendant which was attested by Smt. Qamarunissa Begum and that
the 1st defendant had in turn sold item 2 to the 5th defendant; on
21.08.1978, I.A.No.991 of 1978 was filed under Order I Rule 10 CPC
by 5th defendant to implead herself and it was dismissed on
20.09.1978; only then the 1st plaintiff became aware of the sale deed
Ex.A.18 = Ex.B.14; since the suit was filed on 20.08.1981, it was filed
within three years from the date of knowledge i.e., within three years
from 21.08.1978 when IA.No.991 of 1978 was filed and so the suit is
not barred by time even if Article 59, which deals with limitation for
seeking cancellation of an instrument, is attracted.
24. It held that Ex.A.5, the unregistered sale deed dt.29th Dai 1352
Fasli under which item no. 2 was purchased by Smt. Qamarunissa
Begum was not a registerable document under Section 17 of the
Registration Act, 1908 since the sale consideration was only Rs.40/-
i.e., less than Rs.100/-. It held that 5th defendant did not give evidence
as to the purchase under Ex.B.14 and that her son PW.2 had no
personal knowledge of the transaction under Ex.B.35 and even 1st
defendant, who died in 1990, pending suit had not stated at any point
of time that he had purchased the property from Syed Ahmed Hussain
or that he had sold to 5th defendant and in OS.No.934 of 1971 he had
remained ex parte. It therefore drew adverse inference against 5th
defendant for her failure to depose and substantiate her written
statement averments. It held that Ex.B.35 is a doubtful document
considering the fact that the title of Smt. Qamarunissa Begum was
admitted in RC.No.251 of 1962 and SC.No.288 of 1963 and
considering the recital in Ex.B.35 that the grandmother Ameen Bee of
Syed Ahmed Hussain had sold item no. 2 for Rs.30/- to father of 1st
defendant in 1948, and later after receiving Rs.30/- again, Syed
Ahmed Hussain executed Ex.B.35. It held that these recitals are
contrary to the plea of defendant nos.1 to 5 that there was a family
settlement in favour of Syed Ahmed Hussain for these two items. It
noticed that even in Ex.A18 there is no recital as to how 1st defendant
got the property and there is no reference to Ex.B.35 in Ex.A18. It
therefore held that when Syed Ahmed Hussain had no title, he had no
authority to execute Ex.B.35 in favour of 1st defendant and therefore
1st defendant did not have any authority to sell it to 5th defendant
under Ex.A18. It concluded that Ex.B.35 and A18 are invalid and do
not bind Smt. Qamarunissa Begum, 1st plaintiff or 2nd plaintiff. It held
that Exs.B.18 to B.35, Exs.B.37 to B.38 are tax receipts for item no. 2
from 1963 onwards in the name of 1st defendant; after the death of 1st
defendants father in 1959, the property was in the possession of 1st
defendant and merely because 5th defendant was residing along with
her brother 1st defendant, it could not be considered to be in denial of
title of plaintiff. It held that mere mutation in Revenue Records or
municipal records or payment of tax or water charges or electricity
charges do not confer title on 5th defendant or extinguish the title of
Smt. Qamarunissa Begum. It therefore declared that Ex.A18 sale
deed dt.04.01.1968 in respect of item no.2 is illegal, null and void and
not binding on 1st plaintiff or 2nd plaintiff.
25. It further held that the denial of title in respect of item no. 1 by
defendant nos.2 to 4 was for the first time in the counter Ex.B.13 filed
on 13.07.1966 in OP.No.1330 of 1966; OS.No.934 of 1971 was filed
within five years thereof by Smt. Qamarunissa Begum; as regards
item no. 2 only in IA.No.991 of 1978 in OS.No.934 of 1971 on
21.08.1978, 5th defendant had denied the title of Smt. Qamarunissa
Begum; the proceedings in OS.No.934 of 1971 terminated on
20-08-1981; and within one year thereof the present suit was filed for
declaration on the basis of title under Section 65 of Limitation Act,
1963 with respect to item no. 1 and within three years in respect of
item no.2 i.e., within twelve years as per Article 65 of the Limitation
Act, 1963; and therefore, the suit is not barred by limitation.
26. It therefore held that the plaintiffs are entitled to possession of
both items as against defendant nos.1 to 5 and also past mesne profits
at the rate of Rs.100/- per month and future mesne profits at the rate of
Rs.100/- per month with interest at 12% per annum on past mesne
profits of Rs.3,600/- from date of suit till decree , and at 6% till
realisation against defendant nos.2 to 5.
27. Aggrieved thereby CCCA.No.48 of 2000 is filed by 5th
defendant and CCCA.No.50 of 2000 is filed by defendant nos.2 to 4
and 11 to 15.
28. Heard Smt. Manjari S. Ganu, counsel for the appellants in both
appeals and Sri K. Govind for respondent no.2 and his legal
representatives 17-20. Both counsel submitted elaborate arguments
and also cited several judgments of this court and the Supreme Court.
To the extent these are relevant, they will be referred to in this
judgment.
29. I will first consider whether the plaintiffs should have initiated
a proceeding for eviction under the provisions of the AP Buildings
(Lease, Rent and Eviction) Control Act, 1960 against the defendant
Nos.1 to 5 and whether the present suit is not maintainable on the said
count?
30. Counsel for the appellants contended that there was an
observation in OS.No.934 of 1971 that Smt. Qamarunissa Begum
could not claim vacant possession of both suit houses in a civil court
and should proceed under the A.P. Buildings (Lease, Rent and
Eviction) Control Act, 1960 since defendant nos.1 to 4 were her
tenants and therefore, the suit for eviction of defendant nos.1 to 4 is
not maintainable.
31. The Counsel for the respondents contended that there is no such
finding and that even if there is such a finding, since there is a denial
of title by defendant nos.1 to 4 in respect of both items, even a Rent
Controller would ultimately refer the matter to the civil court to
decide the issue of title considering the denial to be bona fide, and it
would be pointless for the plaintiffs to first file a case under the said
Act and then after the Rent Controller refused to entertain it on the
ground of denial of title, to then approach the civil court.
32. I agree with the contention of the counsel for the respondents.
The observations in OS.No.934 of 1971 on this point are as under :
Issue 4 : In view of the finding given in issue No.3, it can be
straight away said that the plaintiff is not entitled to claim vacant
possession of the entire suit houses. Apart from that it is the
common case of both parties that the suit houses were constructed
much prior to the commencement of the rent control Act. The
learned counsel for the defendants 6 to 8 contended that the
plaintiff cannot seek the relief of vacant possession through the civil
court as the defendant are entitled to be protected under the Rent
Control Act being the tenants of the suit houses. There is no dispute
on the fact that the defendants No.5 to 8 are the tenants of the suit
houses having been in possession since past several years. In view
of the reason given above the plaintiff is not entitled to vacant
possession of the suit houses. The issue is therefore held in the
negative.
33. Under Issue no.3 in OS.No.934 of 1971, it was held that Smt.
Qamarunissa Begum had failed to prove that she was the absolute
owner of the plaint schedule property by virtue of the oral gift from
her sisters. This is the main reason why she was held not entitled to
claim relief of vacant possession of both houses. The above passage
in OS.No.934 of 1971 does not indicate that the court in that case had
accepted the plea of defendant nos.1 to 4 that the buildings are
covered by the Rent Control Act and on that count the civil suit is not
maintainable. It merely recorded the submission without giving any
finding thereon.
34. Even assuming for the sake of argument without conceding
that it held so, since even a Rent Controller would not proceed with an
eviction petition under the said Act [see Section 10 (2) (vi) of the Act]
if there is a bona fide denial of title (assuming in favour of the
appellant that the denial is bonafide), and would direct the parties to
approach civil court on that issue, it would be futile to non-suit the
plaintiffs on that count since they have approached the civil court for
declaration of their title and for recovery of possession.
35. In any event in the present suit the plea of defendant no.s 2-4 is
that Syed Ahmed Hussain is the owner of item no.1 and 5th defendant
had pleaded that she is the owner of item no.2 and not that they are
tenants of 1st plaintiff or her mother. They did not plead that
observations in O.S.No.934 of 1971 oust the jurisdiction of the civil
court. Defendant no.s 2 to 4 in fact pleaded that observations in
O.S.No.934 of 1971 are not binding on them. The 5th defendant
pleaded that she is not a party to O.S.No.934 of 1971 and her attempt
to get impleaded therein ended in failure.
36. If the plea raised by defendants that observations judgement in
O.S.No.934 of 1971 operates as res judicata is to be entertained,
pleadings therein have to filed and specific plea of res judicata is to
be raised, issues have to framed and decided as held in
V. Rajeshwari v. T.C. Saravanabava . In that case the Supreme
Court held:
12. The plea of res judicata is founded on proof of certain facts
and then by applying the law to the facts so found. It is, therefore,
necessary that the foundation for the plea must be laid in the
pleadings and then an issue must be framed and tried. A plea not
properly raised in the pleadings or in issues at the stage of the trial,
would not be permitted to be raised for the first time at the stage of
appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour
Hari Mahato (AIR 1936 PC 258), Medapati Surayya v. Tondapu
Bala Gangadhara Ramakrishna Reddi (AIR 1948 PC 3) and
Katragadda China Anjaneyulu v. Kattaragadda China Ramayya
(AIR 1965 AP 177)].
13. Not only the plea has to be taken, it has to be substantiated by
producing the copies of the pleadings, issues and judgment in the
previous case. Maybe, in a given case only copy of judgment in
previous suit is filed in proof of plea of res judicata and the
judgment contains exhaustive or in requisite details the statement of
pleadings and the issues which may be taken as enough proof.
14. That apart, the plea, depending on the facts of a given case, is
capable of being waived, if not properly raised at an appropriate
stage and in an appropriate manner. The party adversely affected
by the plea of res judicata may proceed on an assumption that his
opponent had waived the plea by his failure to raise the same.
Reference may be had to Pritam Kaur v. State of Pepsu (AIR 1963
Punj 9)and Rajani Kumar Mitra v. Ajmaddin Bhuiya (AIR 1929 Cal
163)and we find ourselves in agreement with the view taken therein
on this point.(emphasis supplied)
37. Since it was not raised in pleadings in this suit and pleadings in
O.S.No.934 of 1971 are not filed, no issue was framed and decided,
the defendants are not entitled to raise it and are deemed to have
waived it. Therefore this contention of counsel for appellants is
rejected.
38. I will now consider whether the plaintiffs have established
that Smt. Qamarunissa Begum is the owner of item No.1 house?
39. In the present suit, defendant nos.2 to 4 have only pleaded that
the title to item no.1 is with Syed Ahmed Hussain, the son of Smt.
Qamarunissa Begum and have not pleaded any title in themselves as
far as this item is concerned. They have also not pleaded any
acquisition of title by way of adverse possession for this item.
40. Defendant nos.6 to 9, the wife and children of Syed Ahmed
Hussain have admitted the title of Smt. Qamarunissa Begum as well
as the title of the plaintiffs under the registered Relinquishment Deed
Ex.A.16 executed in the 1st plaintiffs favour by her sisters. Once
defendant nos.6 to 9 have accepted the plaintiffs case about the title
of Smt. Qamarunissa Begum to item no.1, it is not open to defendant
nos.2 to 4 to plead the alleged title of Syed Ahmed Hussain or of
defendant nos.6 to 9 and oppose the suit on the said ground.
41. Moreover, the title of Smt. Qamarunissa Begum to item no.1
was acquired under Ex.A.2 sale deed dt.14th Arthi Behest 1350 Fasli,
a document more than thirty years old and therefore under Section 90
of the Evidence Act, 1872, it has to be presumed to be genuine.
Admittedly, the consideration mentioned in Ex.A2 was Rs.99/- i.e.,
less than Rs.100/- thus making Ex.A.2, a document which did not
require registration under Section 17 of the Registration Act, 1908.
42. Although it is contended by counsel for the appellants that
there were certain interpolations in Ex.A.2, and that its translation
Ex.A.4 did not reflect the corrections made in it, since the correct
translation in English of Ex.A.2 Urdu document was not filed by the
appellants, the court below rightly held that this plea of interpolations
would not affect the passage of title to Smt. Qamarunissa Begum. It is
important to note that the appellants/defendants had not examined any
person having knowledge of Urdu language to explain the contents of
Ex.A1. It is settled law corrections made in a document prior to its
execution do not invalidate it. Assuming there are corrections in
Ex.A1 unless it is established by appellants that they were made prior
to its execution, the said corrections do not invalidate it. They cannot
be termed as interpolations which term suggests that something was
added in a document after its execution.
43. It is not disputed that she had filed SC.No.288 of 1963 against
defendant nos.1 to 4 and also RC.No.251 of 1962 for their eviction
and in both these proceedings Ex.A.8 compromise dt.09.07.1963 and
Ex.A.11 compromise dt.23.09.1963 were filed by defendant nos.1 to 4
admitting her claim and their status as tenants and their liability to pay
as arrears of rent to her. This conduct of defendant nos.1 to 4 shows
that they admitted that she is the land lady and that they are her
tenants.
44. Their explanation in the written statement that they had entered
into the compromise in these proceedings since she had obtained an ex
parte order of attachment of their moveables before judgment, does
not render the compromise invalid on any count since obtaining such
orders through the process of law to recover payment of amounts
cannot be said to amount to coercion in the eye of law.
45. In the counter affidavit filed by the defendant nos.2 to 4 in
O.P.1330/EV/1966 filed by her for their eviction, for the first time
they pleaded that Syed Akbar Hussain, her husband was the owner of
this item and after his death, the son Syed Ahmad Hussain used to
collect rents and that they were informed by her that there was a
family settlement under which her son became its owner.
46. The defendant Nos.2 to 4 have also failed to establish that Syed
Akbar Hussain was the original owner. Admittedly O.S.185 of 1970
was filed by Smt.Qamarunnissa Begum for partition of matruka
property of her husband Syed Akbar Hussain, but this item was not
included as his property in that suit. This indicates that item no.1 is
not the property of Syed Akbar Hussain.
47. Although the defendant nos.2 to 4 pleaded about a family
settlement under which both items are said to have fallen to the share
of Syed Ahmed Hussain, both DWs.1 and 2 stated that they had no
personal knowledge about the alleged family settlement and therefore
the trial court in my opinion rightly disbelieved the said plea. Thus the
defendant Nos.2 to 4 have failed to establish that Syed Ahmad
Hussain became the owner of item No.1 under a family settlement.
48. Therefore I hold that the plaintiffs have established that Smt.
Qamarunissa Begum is the owner of item No.1 house. After her death
under Ex.A16 dt.6.8.1981, there is relinquishment by sisters of 1st
plaintiff of their 4/5th share therein in her favour. Since Syed Ahmad
Hussain had died during the life time of Smt. Qamarunissa Begum,
his legal heirs would not get any share as per Muslim personal law.
Even though in O.S.No.934 of 1971, relief of recovery of possession
was denied to 1st plaintiff on ground that oral release in her favour is
not proved, once there is a registered release deed Ex.A.16, the
judgment in O.S.No.934 of 1971 would not come in the way of grant
of relief to 1st plaintiff or to her son after her death in respect of this
item.
49. Since the defendant Nos.2 to 4 have denied the title of Smt.
Qamarunissa Begum and pleaded that defendant Nos.6 to 9 are the
owners of item No.1 house and have failed to establish it, they are
held to be trespassers having no right to continue therein and are
entitled to be evicted therefrom forthwith.
50. I will now consider whether Smt. Qamarunissa Begum had
title to item No.2 house? and whether the 5th defendant is to be held
to be its owner either on account of purchase by her under the sale
deed Ex.A-18 dt.04-01-1968 executed in her favour by 1st defendant or
on the ground that she had acquired title by adverse possession?
51. The 1st plaintiff had contended that item No.2 house was
purchased under an unregistered sale deed Ex.A-5 dt.29th Dai 1352
Fasli for Rs.30/- by Smt. Qamarunissa Begum from Mohd. Jahangir
and that it was also leased by her to Syed Basheeruddin, the father of
defendant Nos.1 to 4. She alleged that in S.C.No.288/2 of 1963 and
R.C.No.251/EV/62, defendant Nos.1 to 4 had admitted that they were
tenants of this item as well as item No.1. It is not disputed that in
O.S.No.934 of 1971 filed by Smt. Qamarunissa Begum / the 1st
plaintiff herein in 1971, they had sought eviction of defendant Nos.1
to 4 from item No.2 also apart from item No.1 and in that suit also the
same plea of acquisition of title by Smt. Qamarunissa Begum under
Ex.A-5 sale deed was pleaded. The 1st defendant herein, who was 5th
defendant therein, remained ex parte.
52. On 21-08-1978, I.A.No.991 of 1978 in O.S.No.934 of 1971
was filed by 5th defendant to implead herself in the said suit pleading
that she had purchased item No.2 house from her brother, the 1st
defendant, under Ex.A-18 sale deed dt.04-01-1968. In that
application she also pleaded that her brother had obtained an
unregistered sale deed from Syed Ahmad Hussain, the son of Smt.
Qamarunissa Begum but did not mention the date of this document.
The said I.A. was dismissed on 20-09-1978 by the X Assistant Judge,
City Civil Court, Hyderabad leaving it open to the 5th defendant to
work out her rights in separate proceedings.
53. The plaintiff No.1 contends that she came to know about this
claim of 5th defendant only after I.A.No.991 of 1978 was filed on
21-08-1978 and that since she filed this present suit on 20-08-1981,
the suit has to be held to be within time since it is filed within three
years from the date of knowledge of Ex.A-18 in I.A.991 of 1978.
54. The 5th defendant on the other hand contends that the sale deed
under which the 1st defendant purchased item No.2 from 1st defendant
is Ex.B-35 dt.09-10-1963 and subsequent thereto the 1st defendant had
sold to her under Ex.A-18 sale deed dt.04-01-1968; therefore
limitation is to be counted from 09-10-1963/04-01-1968 and not from
21-08-1978. It is the contention of the 5th defendant that under Article
59 of the Limitation Act, 1963, a suit to cancel a sale deed should be
filed within three years when the facts entitling the plaintiff to have it
cancelled first become known to him/her and that the present suit filed
on 21-08-1981 to cancel the sale deed dt.04-01-1968 is hopelessly
barred by time. In the alternative, it is contended that assuming that
Syed Ahmad Hussain had no title to the property, possession under
Ex.B-35 sale deed dt.09-10-1963 of the 1st defendant and under
Ex.A-18 sale deed dt.04-01-1968 of the 5th defendant is adverse and
since the period of 12 years expired by 08-10-1975 itself (counting
from 9.10.1963), the suit is barred by limitation even if Article 65 of
the Limitation Act, 1963 is attracted.
55. Through PW.1, the 1st plaintiff marked Ex.A-5 unregistered
sale deed dt.29th dai 1352 Fasli under which Smt. Qamarunissa
Begum purchased item No.2 house. This is a document more than 30
years old and therefore the presumption under Section 90 of the
Evidence Act, 1872 is attracted and it has to be presumed to be
genuine and valid.
56. Admittedly the claim of Smt. Qamarunissa Begum that she is
the landlord and the defendant Nos.1 to 4 were her tenants was
admitted in Ex.A-8 compromise filed by defendant Nos.1 to 4 in
S.C.No.288/2 of 1963 as well as in R.C.No.251/EV/1962 in respect of
this item as well. The 1st plaintiff has alleged that on 23-10-1963, a
decree for eviction was passed against 1st defendant and other
defendants in R.C.No.251/EV/1962. This has not been denied by the
1st defendant herein since he remained ex parte. If he really purchased
this item from Syed Ahmad Hussain on 09-10-1963, he ought to have
resisted the eviction on the said ground. Admittedly he did not do so.
57. Moreover in O.S.No.934 of 1971 filed by Smt. Qamarunissa
Begum against 1st defendant and other defendants (except 5th
defendant) on 08-09-1971 also the 1st defendant had remained ex
parte and did not plead that he had purchased this item from Syed
Ahmad Hussain. For the first time a plea of this nature that there was
an unregistered sale by Syed Ahmad Hussain in favour of 1st
defendant was raised in I.A.No.991 of 1978 filed on 21-08-1978 in
O.S.No.934 of 1971. In fact the date of this transaction is not
mentioned therein as can be seen from Ex.A-12, the affidavit in the
said I.A. The defendant Nos.6 to 9, who are the wife and children of
Syed Ahmad Hussain, have filed written statement admitting that Smt.
Qamarunissa Begum is the owner of this item and that Syed Ahmad
Hussain had no right therein.
58. The contents of Ex.B-35 indicate that this item belonged to
Smt. Ameer Bee, the paternal grandmother of Syed Ahmad Hussain
and that she had sold this to 1st defendant in 1948 itself and that again
by taking further sum of Rs.50/-, Syed Ahmad Hussain had sold it to
1st defendant. This does not support the case of 5th defendant since it
is not the case of the 5th defendant or 1st defendant that Smt. Ameer
Bee was the owner of this item at all at any point of time.
59. More importantly in Ex.A18=B14 sale deed executed in favour
of 5th defendant, the 1st defendant makes no reference to Ex.B.35. The
silence of 1st defendant about Ex.B-35 in R.C.No.251/EV/1962 or in
O.S.No.934 of 1971 coupled with the stand now taken by defendant
Nos.6 to 9, throw serious doubts on the genuineness of Ex.B-35. For
the first time it had come into light on 21-08-1978, 15 years after it
was executed. It appears to have been brought into existence as an
afterthought to buttress the claim of 5th defendant.
60. This item was admittedly not included in O.S. 185 of 1970
filed by Smt.Qamarunnissa Begum for partition of matruka property
of her husband Syed Akbar Hussain. This also indicates that item no.2
is not the property of Syed Akbar Hussain or Syed Ahmad Hussain
and is her absolute property.
61. In the light of this evidence, I reject the plea of defendants that
Syed Ahmad Hussain was the owner of item No.2 and that he had sold
it to 1st defendant under Ex.B-35.
62. Assuming for the sake of argument without conceding that
Syed Ahmad Hussain did execute Ex.B.35 in favour of
1st defendant, since Syed Ahmad Hussain was not the owner of item
No.2 house, he could not have conveyed any title to the
1st defendant under Ex.B-35. Therefore Ex.B-35 is void.
63. Since 1st defendant did not get any right, title or interest in item
no.2 from Syed Ahmad Hussain, the 1st defendant could not have
conveyed any right, title or interest in item No.2 house to 5th
defendant under Ex.A-18=B.14 sale deed dt.04-01-1968. Therefore
even Ex.A-18 is void.
64. It is settled law that Article 59 of the Limitation Act, 1963,
which prescribes period of limitation for filing a suit to cancel a
document, applies only to voidable transactions and not to void
transactions. In Prem Singh and others Vs. Birbal and others , the
Supreme Court held that Article 59 would be attracted where a
document is prima facie valid but where coercion, undue influence,
misappropriation or fraud are asserted by the plaintiff which require to
be proved; and that when a document is void ab initio, a decree for
setting aside the same would not be necessary as the same is non-est
in the eye of law, as it would be a nullity. Therefore the contention of
the 5th defendant that the present suit is bared by limitation with
reference to Article 59 of the Limitation Act, 1963 is liable to be
rejected. Since Ex.A18 is void, there was no necessity for 1st plaintiff
to seek relief of declaration that it is void. Merely because such prayer
is made, Art.59 cannot be said to be attracted.
65. Coming to the contention of the 5th defendant that she had
perfected title to this item by way of adverse possession and that
adverse possession should be counted from the date when Ex.B-35
unregistered sale deed was allegedly executed by Syed Ahmad
Hussain in favour of 1st defendant i.e. 09-10-1963 is concerned, for
the first time sale by Syed Ahmad Husain in favour of 1st defendant
fact was stated only in I.A.No.991 of 1978 in O.S.No.934 of 1971
filed by 5th defendant. Therefore 09-10-1963 cannot be taken as the
date from which commencement of adverse possession is to be
counted. In my opinion, only 21-08-1978, the date when I.A.No.991
of 1978 was filed, could be taken as the date for commencement of
adverse possession.
66. Even if 09-10-1963 is taken as the date of commencement of
adverse possession in favour of 1st defendant as against
Smt.Qamarunissa Begum, admittedly suit O.S.No.934 of 1971 for
recovery of possession as against 1st defendant had been filed on
08-09-1971 by her. The moment such a suit is filed, the running of
time for acquiring title by adverse possession gets arrested. In Babu
Khan Vs. Nazim Khan , the Supreme Court has held that in view of
Article 65 of the Limitation Act, 1963, for bringing a suit for
possession of immovable property, the period of limitation is 12 years
when the possession of a defendant becomes adverse to the plaintiff
and that once a suit for recovery of possession is instituted against a
defendant in adverse possession, his adverse possession does not
continue thereafter. It held that the running of time for acquiring title
by adverse possession gets arrested.
67. Admittedly the O.S.934 of 1971 was dismissed on 14-11-1978
and A.S.No.146 of 1979 filed against the judgment in O.S.No.934 of
1971 was dismissed on 31-01-1981. Thus from 08-09-1971 till
31-01-1981, the running of time for acquisition of title by adverse
possession stood arrested.
68. The present suit was admittedly filed on 20-08-1981 by 1st
plaintiff for recovery of possession of item No.2 as against 5th
defendant. Therefore, if the period from 08-09-1971 till
31-01-1981 is excluded, even if the period of adverse possession is
counted from 09-10-1963, the period of 12 years prescribed under
Article 65 of the Limitation Act, 1963, is not exhausted. So there is no
merit in the plea of acquisition of title by adverse possession of 1st
defendant raised by 5th defendant.
69. The 5th defendant is not entitled to count the period of limitation
for the purpose of adverse possession from 04-01-1968, the date when
Ex.B-14/A-18 sale deed was executed in her favour by 1st defendant
and she has to necessarily count it from 09-10-1963 when Ex.B-35
was allegedly executed in favour of 1st defendant by Syed Ahmad
Hussain, who had no title to item No.2. This is because even
according to her only after acquisition of title to item No.2 under
Ex.B-35 from Syed Ahmad Hussain, the 1st defendant had executed
Ex.B-14/Ex.A-18 in her favour.
70. I also reject the contention of the counsel for the appellants that
the plaintiffs ought to have filed the suit within 12 years from the date
of their dispossession and that because they have not done so, the suit
is liable to be dismissed as barred by limitation. Such a contention
would have had some basis under the Limitation Act, 1908 but after
the coming into force of the Limitation Act, 1963, such a plea is
impermissible. In C. Natrajan v. Ashim Bai , the Supreme Court
explained the change of law brought about by Parliament in the
Limitation Act, 1963 from the pre-existing law under the Limitation
Act, 1908. It held:
16. The law of limitation relating to the suit for possession has
undergone a drastic change. In terms of Articles 142 and 144 of the
Limitation Act, 1908, it was obligatory on the part of the plaintiff to
aver and plead that he not only has title over the property but also has
been in possession of the same for a period of more than 12 years.
However, if the plaintiff has filed the suit claiming title over the suit
property in terms of Articles 64 and 65 of the Limitation Act, 1963,
burden would be on the defendant to prove that he has acquired title
by adverse possession.
17. In Mohd. Mohammad Ali v. Jagadish Kalita it was held:
(SCC p. 277, para 20)
20. By reason of the Limitation Act, 1963 the legal
position as was obtaining under the old Act underwent a
change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his
title and it would no longer be necessary for him to prove,
unlike in a suit governed by Articles 142 and 144 of the
Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it
would be for the defendant so to prove if he wants to defeat
the plaintiffs claim to establish his title by adverse
possession.
(See also P.T. Munichikkanna Reddy v. Revamma, Binapani
Paul v. Pratima Ghosh, Kamakshi Builders v. Ambedkar
Educational Society and Bakhtiyar Hussain v. Hafiz Khan.)
71. In this view of the matter, I hold that item No.2 of the plaint
schedule property is the property of Smt. Qamarunissa Begum and
that neither 5th defendant nor 1st defendant have acquired title thereto
by adverse possession.
72. It is true that the plaintiff has filed the suit alleging that
defendant nos.1 to 4 were tenants of both items under Smt.
Qamarunissa Begum but since the defendants later pleaded that she is
not the owner and Syed Ahmed Hussain is the owner, she contended
that their possession had become illegal and as trespassers from
27.11.1978. She contended that defendant nos.1 and 5 are brother and
sister and they both had colluded and brought into existence Ex.A.18
dt.04.01.1968 and the possession of defendant no.5 is also illegal and
she is also a trespasser since 21.08.1978.
73. I hold that the Respondent no.s17-20, the legal representatives
of deceased 2nd respondent/2nd plaintiff are entitled to a decree for
possession of both items on the basis of title acquired by 1st plaintiff
under Ex.A.16 dt.06.08.1981 release deed and that the
appellants/defendants are trespassers who had failed to prove
acquisition of title to both items either by adverse possession or
otherwise. I also hold that Ex.A18=B14 Sale deed executed by 1st
defendant in favour of 5th defendant is null and void and does not bind
the respondents 17-20/1st plaintiff or 2nd plaintiff.
74. For all the foregoing reasons, I therefore do not find any merit
in both the appeals and the same are accordingly dismissed with costs.
_________________________________
JUSTICE M.S.RAMACHANDRA RAO
Date : 02-07-2014
(i) declare that she is the absolute owner of these
properties;
(ii) for recovery of possession thereof from the
appellants/defendants;
(iii) for past mesne profits of Rs.3,600/-
against the person and properties of defendant Nos.1 to 5;
(iv) for future mesne profits from 21.08.1981 onwards till date of recovery of
possession for these properties at the rate of Rs.100/- per month;
(v) to declare the sale deed Ex.B.14 executed by defendant no.1 in favour
of his sister defendant no.5 as illegal, null and void and not binding on
her; and
(vi) costs.
The said suit was filed on 20.08.1981.=
since the suit was filed on 20.08.1981, it was filed
within three years from the date of knowledge i.e., within three years
from 21.08.1978 when IA.No.991 of 1978 was filed and so the suit is
not barred by time even if Article 59, which deals with limitation for
seeking cancellation of an instrument, is attracted.=
The 1st plaintiff further contended that since her brother Syed
Ahmed Hussain had died during the lifetime of their mother Smt.
Qamarunissa Begum, defendant nos.6 to 9 would not get any share in
these properties as per the personal law of the parties; only 1st plaintiff
and her four sisters Hafeezunissa Begum, Kareemunissa Begum,
Ayesha Begum and Hazeera Begum would inherit these properties
equally having 1/5th share therein; in OS.No.934 of 1971, the 1st
plaintiff had contended that her sisters had on 01.11.1971 orally gifted
in her favour their 4/5th share; =
in OS.No.934 of 1971, the court delivered a judgment
Ex.A.14 dismissing the suit; the court no doubt gave a finding that
Smt. Qamarunissa Begum was the absolute owner of the properties,
but took the view that the oral gift dt.01.11.1971 in favour of the 1st
plaintiff by her four sisters was not established and the 1st plaintiff
cannot be said to be the absolute owner of these houses and at best she
is the owner of only her share of 1/5th;=
Therefore I hold that the plaintiffs have established that Smt.
Qamarunissa Begum is the owner of item No.1 house. After her death
under Ex.A16 dt.6.8.1981, there is relinquishment by sisters of 1st
plaintiff of their 4/5th share therein in her favour. Since Syed Ahmad
Hussain had died during the life time of Smt. Qamarunissa Begum,
his legal heirs would not get any share as per Muslim personal law
In Mohd. Mohammad Ali v. Jagadish Kalita it was held:
(SCC p. 277, para 20)=
20. By reason of the Limitation Act, 1963 the legal
position as was obtaining under the old Act underwent a
change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his
title and it would no longer be necessary for him to prove,
unlike in a suit governed by Articles 142 and 144 of the
Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it
would be for the defendant so to prove if he wants to defeat
the plaintiffs claim to establish his title by adverse
possession.
(See also P.T. Munichikkanna Reddy v. Revamma, Binapani
Paul v. Pratima Ghosh, Kamakshi Builders v. Ambedkar
Educational Society and Bakhtiyar Hussain v. Hafiz Khan.)
71. In this view of the matter, I hold that item No.2 of the plaint
schedule property is the property of Smt. Qamarunissa Begum and
that neither 5th defendant nor 1st defendant have acquired title thereto
by adverse possession.
72. It is true that the plaintiff has filed the suit alleging that
defendant nos.1 to 4 were tenants of both items under Smt.
Qamarunissa Begum but since the defendants later pleaded that she is
not the owner and Syed Ahmed Hussain is the owner, she contended
that their possession had become illegal and as trespassers from
27.11.1978. She contended that defendant nos.1 and 5 are brother and
sister and they both had colluded and brought into existence Ex.A.18
dt.04.01.1968 and the possession of defendant no.5 is also illegal and
she is also a trespasser since 21.08.1978.
73. I hold that the Respondent no.s17-20, the legal representatives
of deceased 2nd respondent/2nd plaintiff are entitled to a decree for
possession of both items on the basis of title acquired by 1st plaintiff
under Ex.A.16 dt.06.08.1981 release deed and that the
appellants/defendants are trespassers who had failed to prove
acquisition of title to both items either by adverse possession or
otherwise. I also hold that Ex.A18=B14 Sale deed executed by 1st
defendant in favour of 5th defendant is null and void and does not bind
the respondents 17-20/1st plaintiff or 2nd plaintiff.
74. For all the foregoing reasons, I therefore do not find any merit
in both the appeals and the same are accordingly dismissed with costs.
2014-July - Part - http://judis.nic.in/judis_andhra/filename=11588
THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO
CCCA.Nos.48 of 2000 and batch
02-07-2014
Smt. Siddiquinissa Begum,Died per LRs petitioners and
othersAppellants/Defendant No.5
Smt. Shamsunnissa Begum (died)Per LRs and othersRespondents/Defendants
Counsel for the Appellants:Smt. Manjari S. Ganu
For M. Papareddy
^Counsel for Respondent
Nos.17 to 20 :Sri K. Govind
<GIST:
>HEAD NOTE:
? Cases referred
1. (2004) 1 SCC 551
2. (2006) 5 S.C.C. 353
3. (2001) 5 S.C.C. 375
4. (2007) 14 S.C.C. 183
THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
CCCA.Nos.48 and 50 of 2000
The Court made the following : [order follows]
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
CCCA.Nos.48 and 50 of 2000
COMMON JUDGMENT :
These two appeals arise out of the same suit OS.No.901 of 1981
decided by a judgment and decree dt.31.12.1999 by the IV Senior
Civil Judge, City Civil Court, Hyderabad and therefore they are being
disposed of by this common judgment.
2. The appellant in CCCA.No.48 of 2000 is the 5th defendant in
the above suit and the appellants in CCCA.No.50 of 2000 are
defendant nos.11 to 15 in the said suit.
3. Pending appeal, the appellant in CCCA.No.48 of 2000 died and
her legal representatives are impleaded vide Order dt.03.04.2001 in
CMP.No.6410 of 2001.
4. The 2nd appellant in CCCA.No.50 of 2000 also died and
appellant nos.10 to 12 have been impleaded as his legal
representatives vide Order dt.07.09.2001 in CMP.No.16528 of 2001.
5. The 2nd respondent in both the appeals died on 28.02.2011 and
his legal representatives have been impleaded as respondent nos.17 to
20 in both appeals.
6. The subject matter of the above suits are two connected houses
bearing Municipal Nos.19-3-728 (hereinafter referred to as Item no.1
house) and 19-3-731/1 (hereinafter referred to as Item no.2 house)
admeasuring 279 Sq.yds. at Bakshigunj, outside Gazibanda,
Hyderabad.
7. The above suit was filed by 1st respondent/1st plaintiff in both
appeals to (i) declare that she is the absolute owner of these
properties; (ii) for recovery of possession thereof from the
appellants/defendants; (iii) for past mesne profits of Rs.3,600/-
against the person and properties of defendant Nos.1 to 5; (iv) for
future mesne profits from 21.08.1981 onwards till date of recovery of
possession for these properties at the rate of Rs.100/- per month; (v)
to declare the sale deed Ex.B.14 executed by defendant no.1 in favour
of his sister defendant no.5 as illegal, null and void and not binding on
her; and (vi) costs. The said suit was filed on 20.08.1981. Pending
suit she died and her son was impleaded as the 2nd plaintiff.
8. One Smt. Qamarunissa Begum is the wife of Late Syed Akbar
Hussain who died on 27.3.1955. Syed Ahmed Hussain is their son.
They also had five daughters Hafeezunissa Begum, Kareemunissa
Begum, Ayesha Begum, Hazeera Begum and 1st plaintiff Smt.
Shamshunissa Begum. Smt. Qamarunissa Begum died on 30.8.1971.
Syed Ahmed Hussain died on 28.02.1960. Defendant no.6 is the wife
of Syed Ahmed Hussain and defendant nos.7 to 9 are their children.
9. Defendant nos.1 to 4 are the sons of one Syed Basheeruddin
and the 5th defendant is their sister.
THE PLAINT :
10. The 1st plaintiffs case was that her mother Smt. Qamarunissa
Begum purchased item no. 1 house from one Shaik Ahmed through a
sale deed Ex.A.2 dt.14th Ardi Behisht 1350 Fasli (1940) for a sum of
Rs.99/- and item no. 2 from one Mohd. Jahangir through sale deed
Ex.A.5 dt.29th Dai 1352 Fasli (1942) for Rs.30/-; in October, 1944,
Syed Basheeruddin, the father of defendant nos.1 to 4, took both items
on lease on a monthly rent of Rs.8/-; the said Syed Basheeruddin died
in July, 1959; after his death defendant nos.1 to 4 became her tenants
and continued to pay the same rent; after October, 1960 they stopped
paying rent; that Smt. Qamarunissa Begum filed RC.No.251/EV/62
under the provisions of the A.P. Building (Lease, Rent and Eviction)
Control Act, 1960 for their eviction before the Rent Controller,
Hyderabad on the ground of wilful default in payment of rents; that
she also filed SC.No.288 of 1963 for recovery of arrears of rent
Rs.240/- before the Addl. Judge, City Small Causes Court, Hyderabad
against them; defendant nos.1 to 4 compromised the matter with her
in SC.No.288 of 1963; compromise memo Ex.A.9 dt.09.07.1963 was
filed therein wherein they admitted that she was the owner and
landlady, that they were liable to pay Rs.100/- towards arrears of rent
and that they had paid Rs.140/- to her on 08.07.1963 out of Court; on
the basis of the said compromise, a decree dt.15.07.1963 (Ex.A.10)
was passed therein; another compromise Ex.A.11 dt.23.09.1963 was
also filed in RC.No.251/EV/1962 wherein defendant nos.1 to 4
admitted that she was the owner and landlady and they were her
tenants; under that compromise defendant nos.2 to 4 agreed to execute
a fresh rental deed in respect of item No.1 in her favour stating that
they will reside therein as her tenants and defendant no.1 would reside
in item 2 as her tenant for three months and thereafter he would vacate
it; after filing the said compromise, defendant nos.1 to 4 remained
absent and the Rent Controller, Hyderabad passed order of eviction
dt.23.10.1963 in RC.No.251/EV/1960; in view of these two
compromises, defendant nos.1 to 4 have to be treated as her tenants;
thereafter, Smt. Qamarunissa Begum filed on 20.08.1971, a suit for
their eviction before the IVth Assistant Judge, City Civil Court,
Hyderabad, but before it was registered she died on 30.08.1971; the
suit was then transferred to Xth Assistant Judge, City Civil Court,
Hyderabad and numbered as OS.No.934 of 1971 and that the suit was
later continued by the 1st plaintiff.
11. The 1st plaintiff further contended that since her brother Syed
Ahmed Hussain had died during the lifetime of their mother Smt.
Qamarunissa Begum, defendant nos.6 to 9 would not get any share in
these properties as per the personal law of the parties; only 1st plaintiff
and her four sisters Hafeezunissa Begum, Kareemunissa Begum,
Ayesha Begum and Hazeera Begum would inherit these properties
equally having 1/5th share therein; in OS.No.934 of 1971, the 1st
plaintiff had contended that her sisters had on 01.11.1971 orally gifted
in her favour their 4/5th share; defendant nos.1 to 4 had pleaded in
their written statement in O.S.No.934 of 1971 that Syed Ahmed
Hussain, 1st plaintiffs brother is the owner of these properties, that
they were not tenants of Smt. Qamarunissa Begum and there was no
relationship of landlord and tenant between them; during the
pendency of that suit, 5th defendant filed IA.No.991 of 1978 on
21.08.1978 seeking impleadment alleging that she had purchased item
2 from 1st defendant under a sale deed Ex.B.14 dt.04.01.1968; only
then the 1st plaintiff became aware of the said sale deed; the said IA
was dismissed on 20.09.1978 under Ex.A.13 observing that she did
not have legal interest in the subject matter of the suit and therefore
she is not a necessary party thereto observing that the result of the suit
would not affect her rights and she could seek her remedies
separately; in OS.No.934 of 1971, the court delivered a judgment
Ex.A.14 dismissing the suit; the court no doubt gave a finding that
Smt. Qamarunissa Begum was the absolute owner of the properties,
but took the view that the oral gift dt.01.11.1971 in favour of the 1st
plaintiff by her four sisters was not established and the 1st plaintiff
cannot be said to be the absolute owner of these houses and at best she
is the owner of only her share of 1/5th; the appeal against the said
judgment in AS.No.146 of 1979 was dismissed on 31.01.1981 vide
Ex.A.15 judgment; during the pendency of AS.No.146 of 1979,
defendant nos.2 to 4 filed RC.No.30/DR/80 against defendant nos.6 to
9 on 29.01.1980 before the Principal Rent Controller, Hyderabad
alleging that they were the tenants of defendant nos.6 to 9 in respect
of item 1; on 06.08.1981, the 1st plaintiffs sisters had executed
Ex.A.16 release deed releasing their 4/5th shares in favour of 1st
plaintiff; that from that date, she has become the exclusive owner of
the plaint schedule properties and is entitled to recover possession of
them apart from being entitled to challenge Ex.A18 = B.14 sale deed
dt.04.01.1968 executed in favour of 5th defendant by 1st defendant.
12. The 1st defendant remained ex parte.
WRITTEN STATEMENT OF DEFENDANT NOS.2 TO 4 :
13. Defendant nos.2-4 denied that Smt. Qamarunissa Begum is the
owner of items 1 and 2 and that she purchased them under Exs.A.2
and A.5. They also contended that Ex.A.2 is in the name of a
fictitious person and that in Ex.A.5, the vendor is a fictitious person.
They contended that Ex.A.2 is inadmissible for want of sufficient
stamp duty and registration. They also denied that their father had
obtained both premises under a lease from Smt. Qamarunissa Begum.
They alleged that item no. 1 was obtained by their father on rent more
than 40 years back from the husband of Smt. Qamarunissa Begum by
name Akber Hussain and that on his death, his son Syed Ahmed
Hussain used to collect the rents from their father and that on the
death of their father, the 1st defendant became the tenant of Syed
Ahmed Hussain in respect of item no. 1 and on the death of Syed
Ahmed Hussain, they had become tenants of his legal heirs defendant
nos.6 to 9. They admitted that they filed RC.30/DR/80 before the
Principal Rent Controller, Hyderabad for deposit of rents and it was
allowed on 10.11.1981 after a contest by defendant nos.6 to 9. They
stated that they were constrained to enter into a compromise with Smt.
Qamarunissa Begum in RC.No.251/EV/62 and also in SC.No.288 of
1963 as she had obtained an ex parte order of attachment of their
moveables before judgment in SC.No.288 of 1963. They contended
that after the said compromise, late Smt. Qamarunissa Begum had
informed them that there was a family settlement in which item no.1
had fallen to the share of her son Syed Ahmed Hussain and that rents
be paid to him only; that OS.No.934 of 1971 filed by Smt.
Qamarunissa Begum was dismissed and was confirmed in appeal and
the observations made therein do not bind the defendants; that 1st
plaintiff cannot claim ownership of items nos.1 and 2 under the
release deed Ex.A.16, when item no.1 is the property of Syed Ahmed
Hussain since 1964 onwards; they are not trespassers of item 1; that
they are lawful tenants of defendant nos.6 to 9; and contended that
plaintiff is not the absolute owner of item no.1 and has no locus standi
to file a suit.
WRITTEN STATEMENT OF DEFENDANT NO.5 :
14. The 5th defendant is the sister of defendant nos.1 to 4 and she
claimed to have purchased item no.2 under Ex.A18= B.14 sale deed
dt.04.01.1968 executed by 1st defendant in her favour. She alleged
that the 1st defendant had purchased item 2 from Syed Ahmed Hussain
under Ex.B.35 sale deed dt.09.10.1963 for Rs.30/- and contended that
Smt. Qamarunissa Begum was also a party to it. She contended that
ever since the purchase by her on 04.01.1968, she is in continuous
possession and enjoyment as owner. She also contended that she
perfected her title to item 2 house by prescription of time and
alternatively by adverse possession and that the plaintiff had no right
or interest in the said item. She pleaded that she is not a party to
RC.No.251 of 1962 or OS.No.934 of 1971 and her application to
implead herself in the latter suit was dismissed. She also contended
that plaintiff and late Smt. Qamarunissa Begum did not take steps to
get Ex.A18 sale deed cancelled in spite of lapse of time of more than
twelve years; that the suit is therefore barred by limitation and is liable
to be dismissed.
WRITTEN STATEMENT OF DEFENDANT NOS.6 TO 9 :
15. Defendant nos.6 to 9 however admitted all the facts in the plaint
and stated that they have no claim in both items since Syed Ahmed
Hussain, the husband of 6th defendant and the father of defendant
nos.7 to 9 had died during the lifetime of Smt. Qamarunissa Begum.
They admitted that after the death of Smt. Qamarunissa Begum, her
five daughters became joint owners holding equal shares and that the
plaintiffs four sisters had executed Ex.A.16 release deed
dt.06.08.1981 in favour of the plaintiff and therefore, plaintiff became
the absolute owner of both items. They also contended that 1st
defendant had claimed to have purchased item 2 under Ex.B.35 from
Syed Ahmed Hussain, who had no right in the property and the sale
deed Ex.A18 in favour of 5th defendant is illegal, bogus and baseless.
They alleged that defendant nos.2 to 4 are not their tenants of item 1
and with false pleas, they had filed RC.No.30 of 1980 for deposit of
rents.
ISSUES :
16. The trial court framed the following issues :
1. Whether plaintiff is entitled for declaration that she is the absolute
owner of H.Nos.19-3-728 and 19-3-731/1, Bakshi gunj, outside Gazi
Banda, Hyderabad ?
2. Whether plaintiff is entitled for declaration that the sale deed
dt.4-1-1968 of H.No.19-3-731/1 is illegal, null and void as prayed for ?
3. Whether plaintiff is entitled for possession of H.Nos.19-3-728 and 19-
3-731/1 against D.1 to D.5 as prayed for ?
4. Whether plaintiff is entitled to past and future mesne profits from D.1
to D.5 as claimed ?
5. Whether the suit is barred by the period of limitation ?
6. To what relief is the plaintiff entitled ?
17. Before the trial court, the 2nd plaintiffs sisters son was
examined as PW.1 and another person was examined as PW.2.
Exs.A.1 to A.20 were marked on behalf of plaintiffs. DWs.1 and 2
were examined by defendant nos.2 to 4. They marked Exs.B.1 to
B.38.
THE JUDGMENT OF THE TRIAL COURT :
18. By judgment and decree dt.31.12.1999, the trial court decreed
the suit with costs.
19. The trial court held that in OS.No.934 of 1971, the allegations
were similar to those in the present suit and in the judgment Ex.A.14
dt.14.11.1978 therein, the court had held that Smt. Qamarunissa
Begum is the owner of both houses, but the suit was dismissed on the
ground that 1st plaintiff was only holding 1/4th share and she cannot
seek a declaration that she was the absolute owner of the entire
property; that the appeal AS.No.146 of 1979 filed against it was
dismissed on 31.01.1981; thereafter, a registered release deed Ex.A.16
was executed on 06.08.1981 by the sisters of the 1st plaintiff in her
favour and she became an absolute owner of both items; that Ex.A16
was proved by PW.1, the son of one of the executants of Ex.A.16;
consequently, the impediment found in OS.No.931 of 1971 in seeking
declaration in respect of the plaint schedule properties is removed;
that defendant nos.6 to 9 are now sailing with the plaintiffs and
admitting the title of 1st plaintiff under Ex.A.16.
20. It referred to Ex.A.2 under which item no.1 was purchased and
held that one of the attestors of Ex.A.2 is the father in law of 2nd
defendant; although counsel for defendant nos.2 to 4 contended that in
Ex.A.2 there are corrections, this fact was not proved as no persons
relating to it were alive; that Ex.A.2 was executed in 1940 and it was
not questioned in OS.No.934 of 1971 by defendant nos.1 to 4; that it
is an unregistered sale deed, but since the sale consideration is Rs.99/-
i.e., less than Rs.100/-, it is not a compulsorily registerable document;
and is therefore valid since the presumption under Section 90 of the
Evidence Act, 1872 comes into play. It also held that the contention
of the defendant nos.2 to 4 that the translation Ex.A4 is not correct
since corrections in Ex.A2 were not carried out in the translation
Ex.A.4 cannot be countenanced in the absence of filing and marking
the correct English translation according to them.
21. Coming to Ex.A.5 dt.29 Dai 1352 in respect of item no.2, it
held that since sale consideration thereunder was Rs.30/- only, it also
did not require registration. It held that in the compromise Ex.A.8
filed by defendant nos.1 to 4 in SC.No.288 of 1963, they had admitted
that they were tenants of both items 1 and 2 and she was their
landlady and that they owed Rs.240/- in rents to Smt. Qamarunissa
Begum. It also held that in RC.No.251 of 1962 a compromise
Ex.A.11 dt.23.09.1963 was filed admitting Smt. Qamarunissa Begum
is the owner of both items; later defendant nos.2 to 4 had filed
RC.No.52 of 1969 against Smt. Qamarunissa Begum and defendant
nos.6 to 9 contending that they were informed by Smt. Qamarunissa
Begum that there was a family settlement of both items in favour of
her son Syed Ahmed Hussain who had died in 1965 and defendant
nos.6 to 9 are now the landlords of item no.1, but they could not
establish the said family settlement. It noted that in the suit for
partition filed by Smt. Qamarunissa Begum against defendant nos.6 to
9 and others in respect of the Matruka properties of her husband, these
two items were not included and this proves that they are self-
acquired properties of Smt. Qamarunissa Begum as is evident from
Exs.A.2 and A.5 and that inconsistent stands were taken by defendant
nos.1 to 4.
22. It noticed that defendant nos.6 to 9 were now supporting the 1st
plaintiffs stand that Syed Ahmed Hussain was never the owner of the
two items and therefore held that 1st plaintiff established that Smt.
Qamarunissa Begum was the owner of both items; father of defendant
no.s1-4 had taken them on lease from her; and on his death defendant
nos.1 to 4 continued to be the tenants. It held that on the death of 1st
plaintiff, her son the 2nd plaintiff became absolute owner of both
items.
23. It held that there was no mention by defendant nos. 1 to 4 in
OS.No.934 of 1971 that Syed Ahmed Hussain had sold item 2 under
Ex.B.35 unregistered sale deed dt.09.10.1963 in favour of 1st
defendant which was attested by Smt. Qamarunissa Begum and that
the 1st defendant had in turn sold item 2 to the 5th defendant; on
21.08.1978, I.A.No.991 of 1978 was filed under Order I Rule 10 CPC
by 5th defendant to implead herself and it was dismissed on
20.09.1978; only then the 1st plaintiff became aware of the sale deed
Ex.A.18 = Ex.B.14; since the suit was filed on 20.08.1981, it was filed
within three years from the date of knowledge i.e., within three years
from 21.08.1978 when IA.No.991 of 1978 was filed and so the suit is
not barred by time even if Article 59, which deals with limitation for
seeking cancellation of an instrument, is attracted.
24. It held that Ex.A.5, the unregistered sale deed dt.29th Dai 1352
Fasli under which item no. 2 was purchased by Smt. Qamarunissa
Begum was not a registerable document under Section 17 of the
Registration Act, 1908 since the sale consideration was only Rs.40/-
i.e., less than Rs.100/-. It held that 5th defendant did not give evidence
as to the purchase under Ex.B.14 and that her son PW.2 had no
personal knowledge of the transaction under Ex.B.35 and even 1st
defendant, who died in 1990, pending suit had not stated at any point
of time that he had purchased the property from Syed Ahmed Hussain
or that he had sold to 5th defendant and in OS.No.934 of 1971 he had
remained ex parte. It therefore drew adverse inference against 5th
defendant for her failure to depose and substantiate her written
statement averments. It held that Ex.B.35 is a doubtful document
considering the fact that the title of Smt. Qamarunissa Begum was
admitted in RC.No.251 of 1962 and SC.No.288 of 1963 and
considering the recital in Ex.B.35 that the grandmother Ameen Bee of
Syed Ahmed Hussain had sold item no. 2 for Rs.30/- to father of 1st
defendant in 1948, and later after receiving Rs.30/- again, Syed
Ahmed Hussain executed Ex.B.35. It held that these recitals are
contrary to the plea of defendant nos.1 to 5 that there was a family
settlement in favour of Syed Ahmed Hussain for these two items. It
noticed that even in Ex.A18 there is no recital as to how 1st defendant
got the property and there is no reference to Ex.B.35 in Ex.A18. It
therefore held that when Syed Ahmed Hussain had no title, he had no
authority to execute Ex.B.35 in favour of 1st defendant and therefore
1st defendant did not have any authority to sell it to 5th defendant
under Ex.A18. It concluded that Ex.B.35 and A18 are invalid and do
not bind Smt. Qamarunissa Begum, 1st plaintiff or 2nd plaintiff. It held
that Exs.B.18 to B.35, Exs.B.37 to B.38 are tax receipts for item no. 2
from 1963 onwards in the name of 1st defendant; after the death of 1st
defendants father in 1959, the property was in the possession of 1st
defendant and merely because 5th defendant was residing along with
her brother 1st defendant, it could not be considered to be in denial of
title of plaintiff. It held that mere mutation in Revenue Records or
municipal records or payment of tax or water charges or electricity
charges do not confer title on 5th defendant or extinguish the title of
Smt. Qamarunissa Begum. It therefore declared that Ex.A18 sale
deed dt.04.01.1968 in respect of item no.2 is illegal, null and void and
not binding on 1st plaintiff or 2nd plaintiff.
25. It further held that the denial of title in respect of item no. 1 by
defendant nos.2 to 4 was for the first time in the counter Ex.B.13 filed
on 13.07.1966 in OP.No.1330 of 1966; OS.No.934 of 1971 was filed
within five years thereof by Smt. Qamarunissa Begum; as regards
item no. 2 only in IA.No.991 of 1978 in OS.No.934 of 1971 on
21.08.1978, 5th defendant had denied the title of Smt. Qamarunissa
Begum; the proceedings in OS.No.934 of 1971 terminated on
20-08-1981; and within one year thereof the present suit was filed for
declaration on the basis of title under Section 65 of Limitation Act,
1963 with respect to item no. 1 and within three years in respect of
item no.2 i.e., within twelve years as per Article 65 of the Limitation
Act, 1963; and therefore, the suit is not barred by limitation.
26. It therefore held that the plaintiffs are entitled to possession of
both items as against defendant nos.1 to 5 and also past mesne profits
at the rate of Rs.100/- per month and future mesne profits at the rate of
Rs.100/- per month with interest at 12% per annum on past mesne
profits of Rs.3,600/- from date of suit till decree , and at 6% till
realisation against defendant nos.2 to 5.
27. Aggrieved thereby CCCA.No.48 of 2000 is filed by 5th
defendant and CCCA.No.50 of 2000 is filed by defendant nos.2 to 4
and 11 to 15.
28. Heard Smt. Manjari S. Ganu, counsel for the appellants in both
appeals and Sri K. Govind for respondent no.2 and his legal
representatives 17-20. Both counsel submitted elaborate arguments
and also cited several judgments of this court and the Supreme Court.
To the extent these are relevant, they will be referred to in this
judgment.
29. I will first consider whether the plaintiffs should have initiated
a proceeding for eviction under the provisions of the AP Buildings
(Lease, Rent and Eviction) Control Act, 1960 against the defendant
Nos.1 to 5 and whether the present suit is not maintainable on the said
count?
30. Counsel for the appellants contended that there was an
observation in OS.No.934 of 1971 that Smt. Qamarunissa Begum
could not claim vacant possession of both suit houses in a civil court
and should proceed under the A.P. Buildings (Lease, Rent and
Eviction) Control Act, 1960 since defendant nos.1 to 4 were her
tenants and therefore, the suit for eviction of defendant nos.1 to 4 is
not maintainable.
31. The Counsel for the respondents contended that there is no such
finding and that even if there is such a finding, since there is a denial
of title by defendant nos.1 to 4 in respect of both items, even a Rent
Controller would ultimately refer the matter to the civil court to
decide the issue of title considering the denial to be bona fide, and it
would be pointless for the plaintiffs to first file a case under the said
Act and then after the Rent Controller refused to entertain it on the
ground of denial of title, to then approach the civil court.
32. I agree with the contention of the counsel for the respondents.
The observations in OS.No.934 of 1971 on this point are as under :
Issue 4 : In view of the finding given in issue No.3, it can be
straight away said that the plaintiff is not entitled to claim vacant
possession of the entire suit houses. Apart from that it is the
common case of both parties that the suit houses were constructed
much prior to the commencement of the rent control Act. The
learned counsel for the defendants 6 to 8 contended that the
plaintiff cannot seek the relief of vacant possession through the civil
court as the defendant are entitled to be protected under the Rent
Control Act being the tenants of the suit houses. There is no dispute
on the fact that the defendants No.5 to 8 are the tenants of the suit
houses having been in possession since past several years. In view
of the reason given above the plaintiff is not entitled to vacant
possession of the suit houses. The issue is therefore held in the
negative.
33. Under Issue no.3 in OS.No.934 of 1971, it was held that Smt.
Qamarunissa Begum had failed to prove that she was the absolute
owner of the plaint schedule property by virtue of the oral gift from
her sisters. This is the main reason why she was held not entitled to
claim relief of vacant possession of both houses. The above passage
in OS.No.934 of 1971 does not indicate that the court in that case had
accepted the plea of defendant nos.1 to 4 that the buildings are
covered by the Rent Control Act and on that count the civil suit is not
maintainable. It merely recorded the submission without giving any
finding thereon.
34. Even assuming for the sake of argument without conceding
that it held so, since even a Rent Controller would not proceed with an
eviction petition under the said Act [see Section 10 (2) (vi) of the Act]
if there is a bona fide denial of title (assuming in favour of the
appellant that the denial is bonafide), and would direct the parties to
approach civil court on that issue, it would be futile to non-suit the
plaintiffs on that count since they have approached the civil court for
declaration of their title and for recovery of possession.
35. In any event in the present suit the plea of defendant no.s 2-4 is
that Syed Ahmed Hussain is the owner of item no.1 and 5th defendant
had pleaded that she is the owner of item no.2 and not that they are
tenants of 1st plaintiff or her mother. They did not plead that
observations in O.S.No.934 of 1971 oust the jurisdiction of the civil
court. Defendant no.s 2 to 4 in fact pleaded that observations in
O.S.No.934 of 1971 are not binding on them. The 5th defendant
pleaded that she is not a party to O.S.No.934 of 1971 and her attempt
to get impleaded therein ended in failure.
36. If the plea raised by defendants that observations judgement in
O.S.No.934 of 1971 operates as res judicata is to be entertained,
pleadings therein have to filed and specific plea of res judicata is to
be raised, issues have to framed and decided as held in
V. Rajeshwari v. T.C. Saravanabava . In that case the Supreme
Court held:
12. The plea of res judicata is founded on proof of certain facts
and then by applying the law to the facts so found. It is, therefore,
necessary that the foundation for the plea must be laid in the
pleadings and then an issue must be framed and tried. A plea not
properly raised in the pleadings or in issues at the stage of the trial,
would not be permitted to be raised for the first time at the stage of
appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour
Hari Mahato (AIR 1936 PC 258), Medapati Surayya v. Tondapu
Bala Gangadhara Ramakrishna Reddi (AIR 1948 PC 3) and
Katragadda China Anjaneyulu v. Kattaragadda China Ramayya
(AIR 1965 AP 177)].
13. Not only the plea has to be taken, it has to be substantiated by
producing the copies of the pleadings, issues and judgment in the
previous case. Maybe, in a given case only copy of judgment in
previous suit is filed in proof of plea of res judicata and the
judgment contains exhaustive or in requisite details the statement of
pleadings and the issues which may be taken as enough proof.
14. That apart, the plea, depending on the facts of a given case, is
capable of being waived, if not properly raised at an appropriate
stage and in an appropriate manner. The party adversely affected
by the plea of res judicata may proceed on an assumption that his
opponent had waived the plea by his failure to raise the same.
Reference may be had to Pritam Kaur v. State of Pepsu (AIR 1963
Punj 9)and Rajani Kumar Mitra v. Ajmaddin Bhuiya (AIR 1929 Cal
163)and we find ourselves in agreement with the view taken therein
on this point.(emphasis supplied)
37. Since it was not raised in pleadings in this suit and pleadings in
O.S.No.934 of 1971 are not filed, no issue was framed and decided,
the defendants are not entitled to raise it and are deemed to have
waived it. Therefore this contention of counsel for appellants is
rejected.
38. I will now consider whether the plaintiffs have established
that Smt. Qamarunissa Begum is the owner of item No.1 house?
39. In the present suit, defendant nos.2 to 4 have only pleaded that
the title to item no.1 is with Syed Ahmed Hussain, the son of Smt.
Qamarunissa Begum and have not pleaded any title in themselves as
far as this item is concerned. They have also not pleaded any
acquisition of title by way of adverse possession for this item.
40. Defendant nos.6 to 9, the wife and children of Syed Ahmed
Hussain have admitted the title of Smt. Qamarunissa Begum as well
as the title of the plaintiffs under the registered Relinquishment Deed
Ex.A.16 executed in the 1st plaintiffs favour by her sisters. Once
defendant nos.6 to 9 have accepted the plaintiffs case about the title
of Smt. Qamarunissa Begum to item no.1, it is not open to defendant
nos.2 to 4 to plead the alleged title of Syed Ahmed Hussain or of
defendant nos.6 to 9 and oppose the suit on the said ground.
41. Moreover, the title of Smt. Qamarunissa Begum to item no.1
was acquired under Ex.A.2 sale deed dt.14th Arthi Behest 1350 Fasli,
a document more than thirty years old and therefore under Section 90
of the Evidence Act, 1872, it has to be presumed to be genuine.
Admittedly, the consideration mentioned in Ex.A2 was Rs.99/- i.e.,
less than Rs.100/- thus making Ex.A.2, a document which did not
require registration under Section 17 of the Registration Act, 1908.
42. Although it is contended by counsel for the appellants that
there were certain interpolations in Ex.A.2, and that its translation
Ex.A.4 did not reflect the corrections made in it, since the correct
translation in English of Ex.A.2 Urdu document was not filed by the
appellants, the court below rightly held that this plea of interpolations
would not affect the passage of title to Smt. Qamarunissa Begum. It is
important to note that the appellants/defendants had not examined any
person having knowledge of Urdu language to explain the contents of
Ex.A1. It is settled law corrections made in a document prior to its
execution do not invalidate it. Assuming there are corrections in
Ex.A1 unless it is established by appellants that they were made prior
to its execution, the said corrections do not invalidate it. They cannot
be termed as interpolations which term suggests that something was
added in a document after its execution.
43. It is not disputed that she had filed SC.No.288 of 1963 against
defendant nos.1 to 4 and also RC.No.251 of 1962 for their eviction
and in both these proceedings Ex.A.8 compromise dt.09.07.1963 and
Ex.A.11 compromise dt.23.09.1963 were filed by defendant nos.1 to 4
admitting her claim and their status as tenants and their liability to pay
as arrears of rent to her. This conduct of defendant nos.1 to 4 shows
that they admitted that she is the land lady and that they are her
tenants.
44. Their explanation in the written statement that they had entered
into the compromise in these proceedings since she had obtained an ex
parte order of attachment of their moveables before judgment, does
not render the compromise invalid on any count since obtaining such
orders through the process of law to recover payment of amounts
cannot be said to amount to coercion in the eye of law.
45. In the counter affidavit filed by the defendant nos.2 to 4 in
O.P.1330/EV/1966 filed by her for their eviction, for the first time
they pleaded that Syed Akbar Hussain, her husband was the owner of
this item and after his death, the son Syed Ahmad Hussain used to
collect rents and that they were informed by her that there was a
family settlement under which her son became its owner.
46. The defendant Nos.2 to 4 have also failed to establish that Syed
Akbar Hussain was the original owner. Admittedly O.S.185 of 1970
was filed by Smt.Qamarunnissa Begum for partition of matruka
property of her husband Syed Akbar Hussain, but this item was not
included as his property in that suit. This indicates that item no.1 is
not the property of Syed Akbar Hussain.
47. Although the defendant nos.2 to 4 pleaded about a family
settlement under which both items are said to have fallen to the share
of Syed Ahmed Hussain, both DWs.1 and 2 stated that they had no
personal knowledge about the alleged family settlement and therefore
the trial court in my opinion rightly disbelieved the said plea. Thus the
defendant Nos.2 to 4 have failed to establish that Syed Ahmad
Hussain became the owner of item No.1 under a family settlement.
48. Therefore I hold that the plaintiffs have established that Smt.
Qamarunissa Begum is the owner of item No.1 house. After her death
under Ex.A16 dt.6.8.1981, there is relinquishment by sisters of 1st
plaintiff of their 4/5th share therein in her favour. Since Syed Ahmad
Hussain had died during the life time of Smt. Qamarunissa Begum,
his legal heirs would not get any share as per Muslim personal law.
Even though in O.S.No.934 of 1971, relief of recovery of possession
was denied to 1st plaintiff on ground that oral release in her favour is
not proved, once there is a registered release deed Ex.A.16, the
judgment in O.S.No.934 of 1971 would not come in the way of grant
of relief to 1st plaintiff or to her son after her death in respect of this
item.
49. Since the defendant Nos.2 to 4 have denied the title of Smt.
Qamarunissa Begum and pleaded that defendant Nos.6 to 9 are the
owners of item No.1 house and have failed to establish it, they are
held to be trespassers having no right to continue therein and are
entitled to be evicted therefrom forthwith.
50. I will now consider whether Smt. Qamarunissa Begum had
title to item No.2 house? and whether the 5th defendant is to be held
to be its owner either on account of purchase by her under the sale
deed Ex.A-18 dt.04-01-1968 executed in her favour by 1st defendant or
on the ground that she had acquired title by adverse possession?
51. The 1st plaintiff had contended that item No.2 house was
purchased under an unregistered sale deed Ex.A-5 dt.29th Dai 1352
Fasli for Rs.30/- by Smt. Qamarunissa Begum from Mohd. Jahangir
and that it was also leased by her to Syed Basheeruddin, the father of
defendant Nos.1 to 4. She alleged that in S.C.No.288/2 of 1963 and
R.C.No.251/EV/62, defendant Nos.1 to 4 had admitted that they were
tenants of this item as well as item No.1. It is not disputed that in
O.S.No.934 of 1971 filed by Smt. Qamarunissa Begum / the 1st
plaintiff herein in 1971, they had sought eviction of defendant Nos.1
to 4 from item No.2 also apart from item No.1 and in that suit also the
same plea of acquisition of title by Smt. Qamarunissa Begum under
Ex.A-5 sale deed was pleaded. The 1st defendant herein, who was 5th
defendant therein, remained ex parte.
52. On 21-08-1978, I.A.No.991 of 1978 in O.S.No.934 of 1971
was filed by 5th defendant to implead herself in the said suit pleading
that she had purchased item No.2 house from her brother, the 1st
defendant, under Ex.A-18 sale deed dt.04-01-1968. In that
application she also pleaded that her brother had obtained an
unregistered sale deed from Syed Ahmad Hussain, the son of Smt.
Qamarunissa Begum but did not mention the date of this document.
The said I.A. was dismissed on 20-09-1978 by the X Assistant Judge,
City Civil Court, Hyderabad leaving it open to the 5th defendant to
work out her rights in separate proceedings.
53. The plaintiff No.1 contends that she came to know about this
claim of 5th defendant only after I.A.No.991 of 1978 was filed on
21-08-1978 and that since she filed this present suit on 20-08-1981,
the suit has to be held to be within time since it is filed within three
years from the date of knowledge of Ex.A-18 in I.A.991 of 1978.
54. The 5th defendant on the other hand contends that the sale deed
under which the 1st defendant purchased item No.2 from 1st defendant
is Ex.B-35 dt.09-10-1963 and subsequent thereto the 1st defendant had
sold to her under Ex.A-18 sale deed dt.04-01-1968; therefore
limitation is to be counted from 09-10-1963/04-01-1968 and not from
21-08-1978. It is the contention of the 5th defendant that under Article
59 of the Limitation Act, 1963, a suit to cancel a sale deed should be
filed within three years when the facts entitling the plaintiff to have it
cancelled first become known to him/her and that the present suit filed
on 21-08-1981 to cancel the sale deed dt.04-01-1968 is hopelessly
barred by time. In the alternative, it is contended that assuming that
Syed Ahmad Hussain had no title to the property, possession under
Ex.B-35 sale deed dt.09-10-1963 of the 1st defendant and under
Ex.A-18 sale deed dt.04-01-1968 of the 5th defendant is adverse and
since the period of 12 years expired by 08-10-1975 itself (counting
from 9.10.1963), the suit is barred by limitation even if Article 65 of
the Limitation Act, 1963 is attracted.
55. Through PW.1, the 1st plaintiff marked Ex.A-5 unregistered
sale deed dt.29th dai 1352 Fasli under which Smt. Qamarunissa
Begum purchased item No.2 house. This is a document more than 30
years old and therefore the presumption under Section 90 of the
Evidence Act, 1872 is attracted and it has to be presumed to be
genuine and valid.
56. Admittedly the claim of Smt. Qamarunissa Begum that she is
the landlord and the defendant Nos.1 to 4 were her tenants was
admitted in Ex.A-8 compromise filed by defendant Nos.1 to 4 in
S.C.No.288/2 of 1963 as well as in R.C.No.251/EV/1962 in respect of
this item as well. The 1st plaintiff has alleged that on 23-10-1963, a
decree for eviction was passed against 1st defendant and other
defendants in R.C.No.251/EV/1962. This has not been denied by the
1st defendant herein since he remained ex parte. If he really purchased
this item from Syed Ahmad Hussain on 09-10-1963, he ought to have
resisted the eviction on the said ground. Admittedly he did not do so.
57. Moreover in O.S.No.934 of 1971 filed by Smt. Qamarunissa
Begum against 1st defendant and other defendants (except 5th
defendant) on 08-09-1971 also the 1st defendant had remained ex
parte and did not plead that he had purchased this item from Syed
Ahmad Hussain. For the first time a plea of this nature that there was
an unregistered sale by Syed Ahmad Hussain in favour of 1st
defendant was raised in I.A.No.991 of 1978 filed on 21-08-1978 in
O.S.No.934 of 1971. In fact the date of this transaction is not
mentioned therein as can be seen from Ex.A-12, the affidavit in the
said I.A. The defendant Nos.6 to 9, who are the wife and children of
Syed Ahmad Hussain, have filed written statement admitting that Smt.
Qamarunissa Begum is the owner of this item and that Syed Ahmad
Hussain had no right therein.
58. The contents of Ex.B-35 indicate that this item belonged to
Smt. Ameer Bee, the paternal grandmother of Syed Ahmad Hussain
and that she had sold this to 1st defendant in 1948 itself and that again
by taking further sum of Rs.50/-, Syed Ahmad Hussain had sold it to
1st defendant. This does not support the case of 5th defendant since it
is not the case of the 5th defendant or 1st defendant that Smt. Ameer
Bee was the owner of this item at all at any point of time.
59. More importantly in Ex.A18=B14 sale deed executed in favour
of 5th defendant, the 1st defendant makes no reference to Ex.B.35. The
silence of 1st defendant about Ex.B-35 in R.C.No.251/EV/1962 or in
O.S.No.934 of 1971 coupled with the stand now taken by defendant
Nos.6 to 9, throw serious doubts on the genuineness of Ex.B-35. For
the first time it had come into light on 21-08-1978, 15 years after it
was executed. It appears to have been brought into existence as an
afterthought to buttress the claim of 5th defendant.
60. This item was admittedly not included in O.S. 185 of 1970
filed by Smt.Qamarunnissa Begum for partition of matruka property
of her husband Syed Akbar Hussain. This also indicates that item no.2
is not the property of Syed Akbar Hussain or Syed Ahmad Hussain
and is her absolute property.
61. In the light of this evidence, I reject the plea of defendants that
Syed Ahmad Hussain was the owner of item No.2 and that he had sold
it to 1st defendant under Ex.B-35.
62. Assuming for the sake of argument without conceding that
Syed Ahmad Hussain did execute Ex.B.35 in favour of
1st defendant, since Syed Ahmad Hussain was not the owner of item
No.2 house, he could not have conveyed any title to the
1st defendant under Ex.B-35. Therefore Ex.B-35 is void.
63. Since 1st defendant did not get any right, title or interest in item
no.2 from Syed Ahmad Hussain, the 1st defendant could not have
conveyed any right, title or interest in item No.2 house to 5th
defendant under Ex.A-18=B.14 sale deed dt.04-01-1968. Therefore
even Ex.A-18 is void.
64. It is settled law that Article 59 of the Limitation Act, 1963,
which prescribes period of limitation for filing a suit to cancel a
document, applies only to voidable transactions and not to void
transactions. In Prem Singh and others Vs. Birbal and others , the
Supreme Court held that Article 59 would be attracted where a
document is prima facie valid but where coercion, undue influence,
misappropriation or fraud are asserted by the plaintiff which require to
be proved; and that when a document is void ab initio, a decree for
setting aside the same would not be necessary as the same is non-est
in the eye of law, as it would be a nullity. Therefore the contention of
the 5th defendant that the present suit is bared by limitation with
reference to Article 59 of the Limitation Act, 1963 is liable to be
rejected. Since Ex.A18 is void, there was no necessity for 1st plaintiff
to seek relief of declaration that it is void. Merely because such prayer
is made, Art.59 cannot be said to be attracted.
65. Coming to the contention of the 5th defendant that she had
perfected title to this item by way of adverse possession and that
adverse possession should be counted from the date when Ex.B-35
unregistered sale deed was allegedly executed by Syed Ahmad
Hussain in favour of 1st defendant i.e. 09-10-1963 is concerned, for
the first time sale by Syed Ahmad Husain in favour of 1st defendant
fact was stated only in I.A.No.991 of 1978 in O.S.No.934 of 1971
filed by 5th defendant. Therefore 09-10-1963 cannot be taken as the
date from which commencement of adverse possession is to be
counted. In my opinion, only 21-08-1978, the date when I.A.No.991
of 1978 was filed, could be taken as the date for commencement of
adverse possession.
66. Even if 09-10-1963 is taken as the date of commencement of
adverse possession in favour of 1st defendant as against
Smt.Qamarunissa Begum, admittedly suit O.S.No.934 of 1971 for
recovery of possession as against 1st defendant had been filed on
08-09-1971 by her. The moment such a suit is filed, the running of
time for acquiring title by adverse possession gets arrested. In Babu
Khan Vs. Nazim Khan , the Supreme Court has held that in view of
Article 65 of the Limitation Act, 1963, for bringing a suit for
possession of immovable property, the period of limitation is 12 years
when the possession of a defendant becomes adverse to the plaintiff
and that once a suit for recovery of possession is instituted against a
defendant in adverse possession, his adverse possession does not
continue thereafter. It held that the running of time for acquiring title
by adverse possession gets arrested.
67. Admittedly the O.S.934 of 1971 was dismissed on 14-11-1978
and A.S.No.146 of 1979 filed against the judgment in O.S.No.934 of
1971 was dismissed on 31-01-1981. Thus from 08-09-1971 till
31-01-1981, the running of time for acquisition of title by adverse
possession stood arrested.
68. The present suit was admittedly filed on 20-08-1981 by 1st
plaintiff for recovery of possession of item No.2 as against 5th
defendant. Therefore, if the period from 08-09-1971 till
31-01-1981 is excluded, even if the period of adverse possession is
counted from 09-10-1963, the period of 12 years prescribed under
Article 65 of the Limitation Act, 1963, is not exhausted. So there is no
merit in the plea of acquisition of title by adverse possession of 1st
defendant raised by 5th defendant.
69. The 5th defendant is not entitled to count the period of limitation
for the purpose of adverse possession from 04-01-1968, the date when
Ex.B-14/A-18 sale deed was executed in her favour by 1st defendant
and she has to necessarily count it from 09-10-1963 when Ex.B-35
was allegedly executed in favour of 1st defendant by Syed Ahmad
Hussain, who had no title to item No.2. This is because even
according to her only after acquisition of title to item No.2 under
Ex.B-35 from Syed Ahmad Hussain, the 1st defendant had executed
Ex.B-14/Ex.A-18 in her favour.
70. I also reject the contention of the counsel for the appellants that
the plaintiffs ought to have filed the suit within 12 years from the date
of their dispossession and that because they have not done so, the suit
is liable to be dismissed as barred by limitation. Such a contention
would have had some basis under the Limitation Act, 1908 but after
the coming into force of the Limitation Act, 1963, such a plea is
impermissible. In C. Natrajan v. Ashim Bai , the Supreme Court
explained the change of law brought about by Parliament in the
Limitation Act, 1963 from the pre-existing law under the Limitation
Act, 1908. It held:
16. The law of limitation relating to the suit for possession has
undergone a drastic change. In terms of Articles 142 and 144 of the
Limitation Act, 1908, it was obligatory on the part of the plaintiff to
aver and plead that he not only has title over the property but also has
been in possession of the same for a period of more than 12 years.
However, if the plaintiff has filed the suit claiming title over the suit
property in terms of Articles 64 and 65 of the Limitation Act, 1963,
burden would be on the defendant to prove that he has acquired title
by adverse possession.
17. In Mohd. Mohammad Ali v. Jagadish Kalita it was held:
(SCC p. 277, para 20)
20. By reason of the Limitation Act, 1963 the legal
position as was obtaining under the old Act underwent a
change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his
title and it would no longer be necessary for him to prove,
unlike in a suit governed by Articles 142 and 144 of the
Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it
would be for the defendant so to prove if he wants to defeat
the plaintiffs claim to establish his title by adverse
possession.
(See also P.T. Munichikkanna Reddy v. Revamma, Binapani
Paul v. Pratima Ghosh, Kamakshi Builders v. Ambedkar
Educational Society and Bakhtiyar Hussain v. Hafiz Khan.)
71. In this view of the matter, I hold that item No.2 of the plaint
schedule property is the property of Smt. Qamarunissa Begum and
that neither 5th defendant nor 1st defendant have acquired title thereto
by adverse possession.
72. It is true that the plaintiff has filed the suit alleging that
defendant nos.1 to 4 were tenants of both items under Smt.
Qamarunissa Begum but since the defendants later pleaded that she is
not the owner and Syed Ahmed Hussain is the owner, she contended
that their possession had become illegal and as trespassers from
27.11.1978. She contended that defendant nos.1 and 5 are brother and
sister and they both had colluded and brought into existence Ex.A.18
dt.04.01.1968 and the possession of defendant no.5 is also illegal and
she is also a trespasser since 21.08.1978.
73. I hold that the Respondent no.s17-20, the legal representatives
of deceased 2nd respondent/2nd plaintiff are entitled to a decree for
possession of both items on the basis of title acquired by 1st plaintiff
under Ex.A.16 dt.06.08.1981 release deed and that the
appellants/defendants are trespassers who had failed to prove
acquisition of title to both items either by adverse possession or
otherwise. I also hold that Ex.A18=B14 Sale deed executed by 1st
defendant in favour of 5th defendant is null and void and does not bind
the respondents 17-20/1st plaintiff or 2nd plaintiff.
74. For all the foregoing reasons, I therefore do not find any merit
in both the appeals and the same are accordingly dismissed with costs.
_________________________________
JUSTICE M.S.RAMACHANDRA RAO
Date : 02-07-2014
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