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2011 DIGILAW 356 (AP)

K. Krishna v. A. N. Paramkusha Bai

2011-04-19

N.R.L.NAGESWARA RAO

body2011
Judgment The first defendant in O.S.No.251 of 1995 on the file of the court of III Additional Assistant Judge, City Civil Court, Hyderabad is the appellant herein. The suit was filed for declaration of title of the plaintiff with regard to suit schedule property and for an injunction not to interfere in any manner with regard to peaceful possession and enjoyment of the property even by execution of the decree dated 07-12-1994 in O.S.No.369 of 1989. The subject matter of the suit is residential premises bearing No.139/L, New Municipal No.7-3-476, situated at Audaiah Nagar, Secunderabad. According to the case of the plaintiff, the suit schedule property was purchased from the second defendant under a registered sale deed dated 09-07-1987 for a valuable consideration on the basis of the Standing Committee resolutions and the plaintiff was already in possession of the suit schedule property and continued to be in possession as a purchaser. The first defendant is a stranger to the family. However, he filed a suit O.S.No.2896 of 1978 claiming that he is the adopted son of late Baganna, who was a tenant in respect of the plaint schedule premises and for mutation and recovery of possession of the property from the plaintiff. The suit was decreed ex parte and in execution of the decree in E.P.94 of 1982 the first defendant took the possession of the suit schedule property and his name was mutated in the municipal records as a tenant. Thereafter the second defendant gave a notice terminating the tenancy of the first defendant on 18-02-1986 ending in the month of March-1986 and it was not received by the first defendant. On 09-05-1986 he voluntarily surrendered the possession of the property to the second defendant and removed all his belongings and the plaintiff was put in possession of the property. The first defendant made illegal attempts to trespass and a complaint was lodged. Subsequently the first defendant filed O.S.No.369 of 1989 on the file of the court of First Assistant Judge, City Civil Court, which was transferred to the 18th Assistant Sessions Judge under Section 6 of the Specific Relief Act,1963 ( for brevity “the Act”) claiming that he was illegally dispossessed from the property and the said suit was decreed on 07-12-1994. As against that the plaintiff filed A.S.No.6 of 1995 and as the appeal is not maintainable it was later withdrawn. As against that the plaintiff filed A.S.No.6 of 1995 and as the appeal is not maintainable it was later withdrawn. The present suit is filed claiming that the plaintiff is the owner of the property and entitled for declaration and injunction as prayed for. The first defendant filed a detailed statement tracing to his relationship with Baganna who was the original allottee of the premises and his filing of the suit O.S.No.2896 of 1978 and mutation of his name as a tenant. He also referred to the consequential proceedings in pursuance of the decree. It was further averred in the counter-affidavit as under:- “While proceedings in E.P.No.64 of 1986 was pending, the second defendant bore grudge against this defendant and got issued a termination notice dt. 18-02-1986 through its Standing Counsel Sri A.M.S. Ranga Chary, terminating the tenancy with the end of the tenancy month ending on 31st March, 1986 or on such other date in the month of March, 1986. In fact the said notice was served on this defendant belatedly on 03-04-1986 by Mr. Lucas, Clerk of rent section, MCH, Secunderabad Division. The said notice died its natural death as it was served on this defendant on 3rd April, 1986, which is infructuous ,this defendant received the said notice dt.18-02-1986,on 03-04-1986and after having gone through the contents therein, this defendant has paid the arrears of rents and the sale price through two banker cheques bearing No. BC/B-0612976, dt. 29-04-1986 and BC/B-0612977 dt. 29-04-1986 and the same have been accepted and acknowledged by the MCH authorities. In spite of this, the MCH/defendant No.2 attempted to dispossess the defendant No.1 herein from the suit premises on 09-05-1986 but was resisted by this defendant and his family members with the help of locality people. Thereafter, this defendant gave a telegram dt. 11-05-1986 and letters, bringing to the knowledge of the Additional Commissioner, MCH, about the illegal activities of Additional Commissioner and his sub-ordinates, which fell on deaf ear. On the other hand, the MCH authorities filed a false and fictitious criminal case against this defendant through market police station, bearing C.C.No. 359/86, but this defendant was acquitted. Having taken it as a challenge and to fulfill their evil desire, the MCH/defendant No.2 herein succeeded in disposing the defendant No.1 and his family members illegally and high- handedly from the suit premises on 23rd June, 1986. Having taken it as a challenge and to fulfill their evil desire, the MCH/defendant No.2 herein succeeded in disposing the defendant No.1 and his family members illegally and high- handedly from the suit premises on 23rd June, 1986. All the remaining allegations made in these paras are denied. In reply to para VII of the plaint, the defendant No.1 submits that, having no other go this defendant filed O.S. No.369/89 on the file of I Asst. Judge, under Section 6 of Specific Relief Act, 1963, within six months from the date of his dispossession. The said suit was later made over to XI Asst. Judge and finally to XVIII Asst. Judge, City Civil Court, Secunderabad. The said suit was hotly contested by all the parties to the suit including the plaintiff and second defendant herein and ultimately decreed in favour of the plaintiff therein who is the defendant No.1 herein, on 7th December, 1994, directing the defendants No.1 to 6 therein to deliver the vacant possession of the suit property to the defendant No.1 herein within two months from the date of the decree. Aggrieved by the said judgement and decree, the plaintiff herein who is the defendant No.5 in O.S. No. 369/89 and defendant No.6 in the above suit, both have preferred an appeal in A.S. 6/95 and obtained interim stay from Hon’ble Additional Chief Judge, Secunderabad. Because of the stay this defendant could not execute the decree. Since the appeal is not maintainable under Section 6(3) of Specific Relief Act, the same was returned on a memo filed by the appellant therein. As the plaintiff could not succeed in the appeal, tried to circumvent the law laid down under Section 6 of Specific Relief Act and filed this false declaration suit to deprive me of the fruits of decree lawfully obtained against the plaintiff and defendant No.2, which this defendant is entitled to enforce.” It was further averred that the plaintiff has not come to the court with clean hands. The decree in O.S.No.369 of 1989 is valid and binding and therefore the suit is liable to be dismissed. The second defendant filed a written statement admitting that the property was sold to the plaintiff on 09-07-1987 under a valid sale transaction and possession was delivered and she became absolute owner of the property. The decree in O.S.No.369 of 1989 is valid and binding and therefore the suit is liable to be dismissed. The second defendant filed a written statement admitting that the property was sold to the plaintiff on 09-07-1987 under a valid sale transaction and possession was delivered and she became absolute owner of the property. As the first defendant failed to pay the rents the tenancy was terminated and notice was issued, but it was avoided. The first defendant has voluntarily surrendered possession of the property and thereafter filed the suit O.S.No.369 of 1989. The property was transferred in the name of the plaintiff and the earlier litigation is irrelevant for the purpose of this suit. Therefore, the second defendant pleaded for dismissal of the suit. On the basis of the pleadings, the following issues have been framed for trial:- 1. Whether the plaintiff is entitled for declaration that she is the absolute owner of the suit schedule property as prayed for? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. Whether the earlier proceedings in connection with the suit schedule property would be binding on the plaintiff as contended by first defendant? 4. Whether the suit is bad for non-issuance of notice under Section 685 of M.C.H.Act as contended by second defendant? 5. To what relief? On behalf of the plaintiff, PW.1 was examined and marked Exs.A-1 to A-16. On behalf of the defendant DW.1 was examined and marked Exs.B-1 to B-40. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiff and aggrieved by the said judgment the present appeal is filed by the first defendant. During the pendency of appeal, the appellant has filed three applications i.e., CCCA MP Nos.124, 125 and 126 of 2011. CCCA MP 126 of 2011 is filed to amend the written statement as counter-claim that the sale deed dated 09-07-1987 executed by the Additional Commissioner, M.C.H, is not valid and the suit for declaration is not maintainable as it only relates to super-structure. CCCA MP.125 of 2011 was filed to amend the issues on the basis of the allegations that the sale being not valid. CCCA MP.124 of 2011 was filed to direct the second defendant to produce certain documents for the purpose of decision in the suit. CCCA MP.125 of 2011 was filed to amend the issues on the basis of the allegations that the sale being not valid. CCCA MP.124 of 2011 was filed to direct the second defendant to produce certain documents for the purpose of decision in the suit. In all these applications, the counsel for the plaintiff filed counter-affidavits opposing the same and contending that the relief of counter-claim and the challenge to the sale transaction is barred by time. There are no grounds to re-cast the issues or to summon the documents. The points that arise for consideration are:- 1. Whether the plaintiff is the absolute owner of the property and entitled for the declaration and injunction granted by the lower court? 2. Whether the proposed amendment as a counter-claim is maintainable and the other applications are maintainable? 3. To what relief? POINTS:- In this particular case, the court is not concerned with the earlier litigation with regard to filing of the suit by the appellant about his status as son of Baganna and also the other reliefs claimed by him. The suit rests only on the fact whether the plaintiff has become owner of the property and a valid title has been conveyed by the second defendant or not. Incidentally, it is also to be considered whether there was illegal dispossession of the first defendant from the premises and whether he shall be allowed to get restoration of the possession of the suit schedule property. The learned counsel for the appellant strenuously contends that the sale deed executed in favour of the plaintiff is not valid inasmuch as the Assistant Commissioner who executed the sale is not competent and as per Rule 8 of the Municipal Corporation of Hyderabad (Acquisition and disposal of immovable property) Rules,1970, there should be a wide publication and in this case there is no such publication and therefore the sale is not valid. Before considering this contention, it is necessary for this court as to whether the appellant can be allowed to plead the validity of the sale deed or not. Evidently, the sale deed was executed on 09-07-1987 and it is also not in dispute that the second defendant is the owner of the property and the status of the appellant is only a tenant. The right of the second defendant to alienate the property cannot be disputed by anybody. Evidently, the sale deed was executed on 09-07-1987 and it is also not in dispute that the second defendant is the owner of the property and the status of the appellant is only a tenant. The right of the second defendant to alienate the property cannot be disputed by anybody. Whenever a government property is alienated generally it will be given as a lease or an outright sale. If there are any super-structures they will be sold and thereby the original ownership of the land can be retained by the Corporation. In this case, the recitals in Ex.A-1 clearly shows that there was a separate lease deed for the land and what was sold under Ex.A-1 is the structures for the beneficial enjoyment of the plaintiff. Evidently, after the expiry of the said lease the plaintiff cannot claim any rights in the property and in fact it is a transaction between the plaintiff and the second defendant which are admitted and proved and the first defendant has no right to challenge the same. However, whenever a person wants to challenge an alienation is being not valid, the suit should be filed within three (3) years from the date of knowledge if not from the date of execution of the sale deed. It is not in dispute that during the pendency of the earlier suit O.S.No.369 of 1989 the very plea of the plaintiff herein was that the sale deed was executed in her favour under Ex.A-1. In fact the appellant herein was also questioned in that suit and also in the present suit. When he was cross examined as to whether he has chosen to challenge the said sale transaction, but for the reasons best known to the appellant he never intended to challenge the sale and on the other hand he pursued the suit O.S.No.369 of 1989 only on the ground of possession and dispossession and in fact no remote title was also set up in himself questioning the sale transaction. Therefore, having kept quite for several years at this stage to seek as a counter-claim challenging the sale deed in a suit filed by the plaintiff does not arise and it is hopelessly barred by time apart from the fact that the relief of amendment under Order VI Rule 17 CPC cannot be availed by the appellant who knowingly and negligently or intentionally failed to challenge the sale transaction. Consequently, the sale under Ex.A-1 has to be held as valid and the plaintiff is the owner of the property. If any disputes are there, it is a matter between the plaintiff and the second defendant. The only right of the appellant is as to whether he is a tenant entitled to be continued in possession of the property and as to whether there was any dispossession unlawfully. When once the title of the plaintiff is admitted and proved and in fact in pursuance of the decree in O.S.369 of 1989 the appellant did not get possession of the property and an injunction was granted and this court has held that the plaintiff will be entitled for the relief of injunction from dispossession in AAO 1293 of 1995 decided on 09-12-1999 and that order being a final order even at the interlocutory stage it operates against the appellant herein. The above judgment was also reported in 2002(2) ALT 341. It was specifically held by this court that even if a decree under Section 6 of the Act is passed in a suit under Section 6(4) of the Act, the title holder can protect the possession. Therefore, it is quite clear that the plaintiff will be entitled for both the reliefs of declaration and injunction. Further more, even to get a relief under Section 6 of the Act it has to be proved that the person in possession was dispossessed unlawfully. According to the case of the second defendant, the appellant has committed default in payment of the rents and consequently the quit notice was issued. According to the case of the second defendant the said quit notice was avoided but however from the own admissions of the appellant in his earlier suit and several documents he came to know about that notice on 03-04-1986 from one Lukas who is an employee in the Corporation. The said notice evidently shows that the appellant was in arrears from 1982 towards payment of rent. The said notice evidently shows that the appellant was in arrears from 1982 towards payment of rent. The contention that the notice has become invalid because of the service after the termination date as 31-03-1986 is palpably incorrect. When the notice of termination is given, it gives cause of action to file a suit for eviction and it shows the intention of the land lord. Having received the notice on 03-04-1986, the appellant has not chosen to give any reply that he was not a defaulter and that the termination of the tenancy is illegal. He did not file any suit challenging termination and for injunction. On the other hand, subsequently on 29-04-1986 he attempted to send the arrears of rent and sale price for the premises which was refused by the second defendant evidently because there was termination of the tenancy. Therefore, the appellant cannot say that he was recognized as a tenant continuously and that the notice of termination is not valid. He has not filed any suit for specific performance for conveyance of title to the property by paying the money. Therefore, this conduct of the appellant also shows that he was not speaking the truth and on the other hand he was going on making allegations against the standing counsel of the Corporation and others. According to the case of the second defendant, the appellant is said to have voluntarily surrendered the premises on 09-05-1986 and a letter is said to have been given which was marked in O.S.No.369 of 1989. In fact in that suit also the appellant did not claim that he is a person entitled to be in possession as a tenant and that the termination is not valid. The judgment in O.S.No.369 of 1989 is marked as Ex.A-3. In fact it was the continuous claim of the appellant that he was made to sign on blank papers and that there was no dispossession. In the earlier suit also there was no prayer to declare that the proceedings of the second defendant in terminating the tenancy as invalid. Two theories were pleaded before the court in O.S.No.369 of 1989 by the appellant. One was that on 09-05-1986 the police accompanied by the officials of the second defendant came and threatened to dispossess but according to the second defendant on that day there was voluntary surrender by the appellant. Two theories were pleaded before the court in O.S.No.369 of 1989 by the appellant. One was that on 09-05-1986 the police accompanied by the officials of the second defendant came and threatened to dispossess but according to the second defendant on that day there was voluntary surrender by the appellant. Subsequently, it is not in dispute that a police complaint was given about trespass into the premises on 12-05-1986. Secondly, according to the appellant he was again dispossessed on 23-06-1986 and the plaintiff in the suit was put in possession of the property. In fact the findings of the court in O.S.No.369 of 1989 under Ex.A-3 are relevant. In that suit the court took pains to hold that the termination of tenancy was not valid though it was not a ground of relief prayed. However, the court in para.14 of the judgment under Ex.A-3 clearly held as follows:- “there is dearth of evidence as to when exactly between 09-05-1986 and 23-06-1986, the plaintiff re-entered the schedule premises. However, in view of Exs.D-1, D-2 and D3 and Ex.A-34, it can easily be inferred that after 09-05-1986 the plaintiff again occupied the schedule premises. That is why DW.1 in the cross examination stated that the plaintiff was dispossessed of the schedule house on 23-06-1986.” Therefore, the fact remains that the court was also inclined to accept that on 09-05-1986 there was a dispossession, even if forcible. At that stage only, the right of the appellant to institute the suit for possession under Section 6 of the Specific Relief Act is open but when subsequently when he has reoccupied the premises, thereby he is trespasser and the relief under Section 6 of the Act cannot be granted since his possession thereafter cannot be considered to be lawful by itself and legal as he has entered into premises forcibly without challenging the earlier eviction on 09-05-1986. It is also useful to extract the finding of the court in Ex.A-3 as under:- “Para.15. In view of the discussion detailed above, what emanates is that the plaintiff was forcibly dispossessed on 09-05-1986 and that the plaintiff subsequently reentered into the premises and thereafter on 23-06-1986 he was dispossessed again and that there was no voluntary surrender of possession by the plaintiff. In view of the discussion detailed above, what emanates is that the plaintiff was forcibly dispossessed on 09-05-1986 and that the plaintiff subsequently reentered into the premises and thereafter on 23-06-1986 he was dispossessed again and that there was no voluntary surrender of possession by the plaintiff. I, therefore, hold that the plaintiff did not voluntarily surrendered the premises to D-1 to D-4 either on 09-05-1986 or on 23-06-1986.” This finding is sufficient to hold that the right of the appellant to seek protection under Section 6 of the Act is not open. The surrender cannot be questioned subsequently when after dispossession he has reentered into the premises evidently without consent of the landlord and by force. It is further to be mentioned that the suit was to be filed within six (6) months from the date of dispossession. Though the suit was filed in November-1986 but for the reasons best known to the appellant he did not pursue for numbering of the suit and it was numbered three (3) years later. This also clearly goes to show that the appellant is interested in taking a chance litigation rather than bonafidely pursing the remedies and a person if really interested to be put back in possession of the property and if the surrender was not voluntary, would not have behaved in such a manner. The relief under Section 6 of the Act is a summary relief intended for the protection of the persons who have juridical possession and entitled to some rights. No doubt a tenant even after the termination of tenancy cannot be evicted forcibly. But when once even if a forcible dispossession has taken place the recourse to Section.6 opens at that time. In case the person has not availed the remedy at that time and on the other hand resorts to forcible reoccupation of the property, then he does not have any juridical possession and possession is only that of as a trespasser and a subsequent dispossession will not give the benefit of recourse to Section 6 of the Act. In fact in this case, there is absolutely no need for the municipal authorities to fabricate voluntary surrender letter about handing over of the possession and also the factum of noting down the articles in the premises. In fact in this case, there is absolutely no need for the municipal authorities to fabricate voluntary surrender letter about handing over of the possession and also the factum of noting down the articles in the premises. Merely because the appellant could allege that the signatory is in his favour unless mala fides are shown against the second defendant the voluntary surrender which was never questioned cannot be doubted. Merely because the Corporation people have taken police force it does not mean that it is an excess when once the vacation of the premises is voluntary. It is useful to refer to a decision reported in Neyveli Lignite Corporation Ltd., and others Vs. K.S.Narayana Iyer(AIR 1965 MADRAS 122) whereunder certain observations in a case of this similar nature with regard to eviction and the right of dispossession were considered. It is useful to refer the observations in paras.19 and 21 of the judgment as under:- “19. In other words a wrong-doer by committing an act of trespass one day, and not for example, on the following day maintain a possessory action if immediately after he began to squat on the property he had been turned out. This kind of possession is not a juridical possession but mere trespass. 21. As we said the section postulates the existence in the plaintiff on the date of eviction, at least possessory title. That means that he should have juridical possession and should not be a mere trespasser squatting on the property. Juridical possession, in one (although it might not depend on the legal title to possess as in the case of an owner), is actual possession with an intention of maintaining himself in possession……………… There are however certain admitted facts in the case, which render it unnecessary for us to send the case back for a further heading. We can assume for the purpose of the present case that the officers of the Corporation entered upon the property without the consent of the tenant. But when they took over possession what was his attitude? Did he intend to hold on to the property? Obviously not. Realising perhaps that he had no title to the property he appears to have contented himself with a claim for damages for the way in which things were done. But when they took over possession what was his attitude? Did he intend to hold on to the property? Obviously not. Realising perhaps that he had no title to the property he appears to have contented himself with a claim for damages for the way in which things were done. The notice issued to the Corporation on his behalf on 21-4-1962 long prior to the institution of the suit under S. 9 of the Specific Relief Act, and also his subsequent conduct in removing his articles even after the institution of the suit without even trying to obtain an order for injunction or other appropriate relief against the Corporation shows unmistakably that he had no intention of maintaining his possession of the property. It is true that he had filed a suit on the second of May 1962, for restoration of possession, but coming as it does after his claim for damages for loss of profits for 8 future months, it can only be regarded as a mere proceeding intended to lease the Corporation rather than vindicate a genuine desire to have the property and to hold on to his possession. There is really no evidence in the case apart from the institution of the suit, that he had any intention of maintaining his possession. The respondent has thus failed to show that he was in juridical possession of the property at the time when he was actually dispossessed. He was apathetic. In one sense it can even be said that though he did not consent to give up possession he was not unwilling, if the owner were to take it. He cannot therefore complain of dispossession and claim relief under Sec. 9 of the Specific relief Act, as there was no dispossession of a person intending to hold on to possession.” Further more evidently from 1982 to 1986 the rents were not paid and it was only after termination of tenancy the rents were paid and not accepted and there was no subsisting tenancy and he was only a tenant by sufferance and attitude to occupy the public properties without paying the rents cannot be appreciated and equities will not be in favour of the wrong doer. For all the above reasons, none of the contentions raised by the appellant survives for consideration and the relief for amendment or recasting of the issues does not arise and production of the documents has also needed. The judgment relied on by the counsel for the appellant reported in Ramchandra Dagdu Sonavane Vs. Vithu Hira Mahar(2009 (TLS) 49861) has no application to the facts of this case. Therefore, the appeal as well as CCCA MP Nos.124 to 126 of 2011 are deserves to be dismissed. Accordingly, the points are answered. In the result, the Appeal as well as CCCA MP Nos.124 to 126 of 2011 are dismissed with costs.