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2004 DIGILAW 165 (AP)

Mohd Afzal v. Shaik Habeeb

2004-02-11

P.S.NARAYANA

body2004
( 1 ) HEARD Sri. Venkata Reddy representing Sri. S. Niranjan Reddy, the counsel for the appellant and Sri. Muralinarayana Bung the counsel for the respondents-defendants. The unsuccessful plaintiff aggrieved by the judgments and decrees made in O. S. No. 5510 of 1987 dated 19-04-1995 on the file of the VIII Assistant Judge City Civil Court, Hyderabad and A. S. No. 110 of 1995 dated 08-11-1999 on the file of the III Additional Chief Judge. City Civil Court. Hyderabad, had preferred the present second appeal. The following substantial questions of law are raised and are argued by the counsel at length, which are referred to as hereunder. (1. Whether the courts below erred in law in dismissing a suit for injunction simplicator on the ground non-establishment of title? (2. Whether the courts below erred on law in not giving a finding on possession in a suit for injunction and merely dismissing such suits on the ground of failure to establish title? (3. Whether the judgments of the courts below ignore the legal right of a person having possessor rights to obtain an injunction? (4. Whether the courts below correctly interpreted the applicability and requirements of Sec. 38 of Specific Relief Act for dismissing the suit of the appellant? (5. Whether the courts below were correct in law in applying the rigours of Sec. 54 of the Transfer of Property Act for repelling the relief sought for in the suit? (6. Whether the courts below erred in law in dismissing the suit when the defendants did not claim any rights personal to them in the contextual facts of the case? ( 2 ) SRI. Venkata Reddy, the learned counsel representing the appellant had contended that the appellant got this property under a registered agreement, which in fact was never acquired and never vested in any of the respondents who represent the Committee and in this view of the matter the appellants is entitled to maintain his possession and dismissal of the suit for perpetual injunction on the ground that the appellant-plaintiff had filed to establish his title cannot be sustained. The learned counsel also had taken this court though the findings recorded by the court of first instance and also by the appellate court and had pointed out that by virtue of registered agreement in favour of the appellant-plaintiff executed by the true owner, the appellant-plaintiff can maintain his possession since the true owner continued to be true owner of this portion of the property and on the pretext of expressing a doubt, the relief cannot be negatived and in this view of the matter, the courts below had totally erred in refusing the relief of perpetual injunction to the appellant-plaintiff. ( 3 ) ON the contrary the counsel representing the respondents-defendants had contended that a mere agreement though a registered on definitely would not confer any title and such party cannot take shelter even under Sec. 53 (A) of the Transfer of Property Act. 1882, and in this view of the matter, findings in accordance with law had been recorded by both the courts below which need not be disturbed in a second appeal. The learned counsel on facts also had contended that this property is also covered by the property, which had been acquired for the purposes of respondents-defendants. ( 4 ) HEARD the counsel and perused the oral and documentary evidence available on record and the findings recorded by the court of first instance and also the findings recorded by the appellate court as well. The case of the appellant-plaintiff in a nutshell is as hereunder. The plaintiff is the owner of the double storied mulgies covering 14 sq yards in Municipal No. 20-4-1155 and 20-4-1156 at land Bazar, adjacent to Kaman Barkat Dowla, Hyderabad, he purchased the same under two sale deeds dated 1-9-1975 (ground floor) and 6-3-1971 (first floor) from Smt. Qumarunnisa Begum. On the date of purchase of the first floor, lie was a tenant in the ground floor mulgies together with pials. The said Smt. Qumarunnisa Begum got 18 mulgies from her mother under a gift. He entered into an agreement of sale in respect of an arch, as she agreed to sell the same for a consideration of Rs. 5,000/ -. She executed a registered agreement and delivered vacant possession. The plaintiff continued to be in possession of the said pial and arch together with mulgies 20-4-1156 and 1157. He entered into an agreement of sale in respect of an arch, as she agreed to sell the same for a consideration of Rs. 5,000/ -. She executed a registered agreement and delivered vacant possession. The plaintiff continued to be in possession of the said pial and arch together with mulgies 20-4-1156 and 1157. The defendants who are carrying on business on the rear side of the plaintiffs mulgies have no concern with the arch or red market pial. At the instigation of D. 3 they attempt to interfere with his possession and enjoyment of the said arch and pial on 1-12-1987 and 2-12-1987 and the same was resisted by the plaintiff. The plaintiff still apprehends about such unwarranted interference, from the defendants. ( 5 ) THE 3rd respondent filed a written statement and the same was adopted by D1 and D2. The stand taken by the defendants is as hereunder: the sale deed in favour of the plaintiff is created. It is denied that Smt. Qumarunnisa Begum was the owner of he said property. The entire Devdi belonged to Barkat Dowla and arch etc. , were acquired by the government for the purpose of development of Macca Masjid, under the control of Endowments Department. This fact was known to the plaintiff, but filed a false suit in O. S. No. 846 of 1976 on the file of II Additional Judge, City Civil Court, Hyderabad and the same was dismissed on merits. In the said suit, the plaintiff was put on notice, that the entire property of Barkat Dowla including the arch was acquired by the Government. The alleged agreement of sale was brought out in collusion with an intention to create some documents to grab the property; and by impersonating her, he has fabricated the document: and that D. 3 clone is in possession of the arch and let out the same D. 2. When the plaintiff tried to construct a pial, the same was removed by the MCH. The plaintiff under the guise of an ex-parte order of injunction, fixed a dabba towards the road attached to the arch. The Kaman is known as Masjid Kamman opening towards north and never known as Kaman Barket Dowla. The arch and the pial are not the parts of mulgi Nos. 20-4-1156. The plaintiff is not in possession of the said property. The Kaman is known as Masjid Kamman opening towards north and never known as Kaman Barket Dowla. The arch and the pial are not the parts of mulgi Nos. 20-4-1156. The plaintiff is not in possession of the said property. The MCH authorities took immediate steps and removed the unauthorized and illegal constructions, which the plaintiff started. The Endowments Department is the controlling authority of the Macca Masjid. Hence, the said department is the owner of the arch. The plaint with the a malafide intention impleaded D. 1 and D. 2 as parties to the proceedings. ( 6 ) ON the strength of the pleadings of the respective parties, the court of first instance framed the following issues: 1. Whether the plaintiff is entitled for the perpetual injunction as prayed for? 2. To what relief? ( 7 ) ON the side of the plaintiff, plaintiff himself was examined as PW1 and got examined PW2 and Ext. A1 to Ex. A32 were marked on plaintiff side. The 2nd defendant was examined as DW1 and then the Superintendent of Macca Masjid was examined as DW2 and Ex. B1 were marked. On consideration of the oral and documentary evidence placed before the court of first instance findings in detail had been record. Appreciating both oral and documentary evidence, the court of first instance dismissed the suit without costs. Aggrieved by the said judgment and decree, the unsuccessful plaintiff preferred A. S. No. 110 of 1995 on the file of the III Additional Chief Judge. City Civil Court. Hyderabad, and the learned Judge having framed the points for consideration at Para 8 and proceeded to discuss with appreciation of both oral and documentary evidence and also the findings recorded by the court of first instance commencing from Para-9 to Para-22 and ultimately at Para-23 observing that the court of first instance had arrived at a correct conclusion dismissed the suit with costs at Para-24. Aggrieved by the same, the present second appeal is preferred. ( 8 ) CLEAR findings had been recorded by both the courts below relating to the claim of the respondents-defendants to 4450 square yards of land acquired for the sake of Macca Masjid and the road underneath the arch to the effect that it is a public road and nobody can claim over the said arch. ( 8 ) CLEAR findings had been recorded by both the courts below relating to the claim of the respondents-defendants to 4450 square yards of land acquired for the sake of Macca Masjid and the road underneath the arch to the effect that it is a public road and nobody can claim over the said arch. No doubt there is some controversy relating to the aspect whether the property covered by the agreement also would fall within the property, which is being claimed by the respondents-defendants by virtue of acquisition. This is no doubt a question of fact and concurrent findings had been recorded by the both the courts below. Hence. I am not inclined to disturb the said findings. In fact, both oral and documentary evidence available on record had been discussed in detail by both the courts below and the said factual findings need not be repeated again. Even otherwise, the appellate-plaintiff had approached the court praying for a positive relief of perpetual injunction on the strength of a registered agreement and there is no controversy at all that no title deed as such came into existence. It is no doubt true that the relief of declaration of title was not prayed for. But a positive relief on the strength of an agreement was prayed for. It is needless to say that a party praying for a positive relief approaching court as plaintiff cannot take shelter under section 53 (a) of the Transfer of Property Act, 1882, though the same can be used as a shield to ward off possessing being disturbed findings had been recorded by the appellate court on this aspect at Para-13 to Para 19 of the judgment. The other crucial aspects also had been elaborately discussed at Para-15, 16,17 and 18 of the said judgment. ( 9 ) ON a careful appreciation of all the facts and circumstances and also on a scrutiny of the findings recorded by both the courts below, this court is thoroughly satisfied that there are no substantial questions of law involved in the present second appeal to be decided and hence, it is needless to say that the second appeal is bound to fail and accordingly the same shall stand dismissed. No costs.