Research › Search › Judgment

Telangana High Court · body

2022 DIGILAW 780 (TS)

Murtuza Ali v. Baquer Ali

2022-12-07

A.VENKATESHWARA REDDY

body2022
JUDGMENT : These two appeal suits are arising out of a common judgment dated 02.01.2013 in O.S.No.237 of 2008 and O.S.No.538 of 2010 on the file of the XIII Additional Chief Judge (Fast Track Court), City Civil Court at Hyderabad. Accordingly, both the appeal suits are disposed of, through this common order. 2. The plaintiff in O.S.No.237 of 2008 has filed the suit for declaration of title, recovery of possession and consequential relief of perpetual injunction. Whereas, the plaintiff in O.S.No.538 of 2010 has filed the suit for cancellation of release deed document No.1640 of 2007, dated 05.11.2007 and for perpetual injunction. 3. Since the parties and the property involved in both the suits are identical, the trial Court has disposed of both the suits together by recording evidence in the lead suit in O.S.No.237 of 2008. The learned judge of the trial Court has decreed the suit in O.S.No.237 of 2008 and dismissed the suit in O.S.No.538 of 2010. Assailing the common judgment and decree, dated 21.01.2013 in OS Nos.237 and 538 of 2010, the defendant in O.S.No.237 of 2008 and the plaintiff in O.S.No.538 of 2010 has filed the present appeal suits in C.C.C.A.Nos.28 and 31 of 2013 respectively. Pleadings: Pleadings in OS No.237 of 2010 : 4 (i). In brief, the case of the plaintiff is that originally the property bearing No.22-7-527 admeasuring 115.50 square yards situated at Kamalyarjung, Mir-Alam Mandi, Hyderabad belongs to the plaintiff’s mother and she settled the same in favour of her three sons through a registered gift settlement deed document No.450 of 1990 dated 29.01.1990. Thereafter, the plaintiff and his two brothers have demolished the existing house and got constructed a new house consisting of ground and two upper floors with municipal No.22-7-527/1. Thereafter, all the three brothers have divided the same among themselves by executing a registered partition document No.1619 of 2007 dated 02.11.2007. As per the partition, the first floor portion A schedule property referred in the partition deed fell to the share of elder brother with existing structures in 1040 square feet including common rights in the stair case from ground floor along with the undivided share of land of 38.50 square yards. The schedule B property referred in the partition deed i.e., ground and second floor fell to the joint share of the plaintiff and the defendant. 4 (ii). The schedule B property referred in the partition deed i.e., ground and second floor fell to the joint share of the plaintiff and the defendant. 4 (ii). The defendant desirous of relinquishing his share in the schedule B property in favour of the plaintiff and executed a registered release deed dated 05.11.2007, vide document No.1640 of 2007, released the ground and second floor portion to the exclusive ownership and possession of the plaintiff for consideration of Rs.7 lakhs. The entire amount was paid by the plaintiff to the defendant and the defendant has handed over the physical possession of ground and second floor of the house bearing No.22-7-527/1 to the exclusive physical possession of the plaintiff. However, the defendant has requested the plaintiff for his stay for about 10 days to perform Muharrum festival in the ground floor. Accordingly, the plaintiff permitted the defendant to stay in the ground floor for 10 days and after 10th day of Muharrum, the plaintiff requested the defendant to vacate the suit schedule property, but the defendant under one pretext or the other avoided to vacate the suit schedule property. Finally, in the presence of witnesses, the defendant executed a signed declaration promising to vacate the suit schedule property within 15 days. 4 (iii). In the meanwhile, the defendant in collusion with the Mohd. Ahmed Ali filed O.S.No.450 of 2008 for perpetual injunction showing the plaintiff herein as second defendant and the sole defendant herein as first defendant in that suit. It is a collusive suit and the notice in IA No.189 of 2008 in OS No.450 of 2008 was not served even though the plaintiff is residing in the said house. The plaintiff came to know about the said suit through the police and has taken steps to contest the matter. As such, the present suit is filed by the plaintiff for declaration of his title, recovery of possession and for consequential injunction. 5. The defendant has filed written statement denying the plaint averments alleging that initially the property belonged to their mother and she has executed a gift deed in favour of plaintiff, defendant and their brother and they have demolished the existing structure, built a new house with ground + two floors, first floor was allotted to their brother-Sri Abbas Ali. Whereas, ground and second floors were in joint possession of the plaintiff and defendant. Whereas, ground and second floors were in joint possession of the plaintiff and defendant. The defendant never released or relinquished his share in favour of the plaintiff at any point of time. The market value of the suit schedule property was Rs.14 lakhs, but a fabricated release deed was obtained only for a nominal amount of Rs.7 lakhs. The plaintiff obtained signatures of the defendant by compulsion and pressure without even payment of that amount of Rs.7 lakhs. The defendant never vacated the suit schedule property - ground floor at any time. All false allegations are made. The defendant also lodged a complaint before the police concerned. As the plaintiff is trying to dispossess him illegally, the defendant has also inducted a tenant in the portion of his house, as such considering the conduct of the plaintiff, the said tenant has filed the original suit in O.S.No.450 of 2008 on the file of the learned VIII Junior Civil Judge at Hyderabad and obtained ex parte injunction. Though the plaintiff contested the suit, the interim injunction was made absolute. Pleadings in OS No.538 of 2010: 6. The defendant in OS No.237 of 2008 is the plaintiff in OS No.538 of 2010. The relationship between the parties is admitted. It is alleged by the plaintiff that in the partition, ground and second floor portions fell to the share of the plaintiff and defendant and the first floor portion was allotted to the share of their elder brother and that all the parties were in exclusive possession and enjoyment of the suit schedule property. Subsequent to the partition dated 02.11.2007, the plaintiff and defendant became the joint owners and possessors of the ground and second floor. But the defendant has forcibly obtained relinquishment deed on 05.11.2007 without payment of any consideration and only an amount of Rs.1,50,000/-was only paid, remaining amount of Rs.5,50,000/- was not paid. When the plaintiff has demanded for the balance amount of Rs.5,50,000/-, the defendant has been avoiding for payment under one pretext or the other. Hence, the present suit for cancellation of the alleged release deed dated 05.11.2007 declaring the same as null and void and not binding on the plaintiff. 7. The defendant has filed detailed written statement admitting the relationship between the parties, ownership of suit schedule property originally with their mother, who has gifted the same to her all three sons. Hence, the present suit for cancellation of the alleged release deed dated 05.11.2007 declaring the same as null and void and not binding on the plaintiff. 7. The defendant has filed detailed written statement admitting the relationship between the parties, ownership of suit schedule property originally with their mother, who has gifted the same to her all three sons. It is further stated that he has paid an amount of Rs.7 lakhs to the plaintiff for release or relinquishment of his share in the suit schedule property - ground and second floor portions in favour of the defendant and accordingly the plaintiff has vacated the suit schedule property on 11.01.2008. However, after vacating the same, the plaintiff has requested the defendant to allow him to stay for about 10 days till completion of Muharrum. The defendant has accepted the request of the plaintiff. In the meanwhile, taking advantage of the situation, the plaintiff has got filed OS No.450 of 2008, through one of his friend creating litigation claiming that he is a tenant and both the defendants therein were trying to dispossess. Issues: 8. Basing on the above pleadings, the following issues were settled by the trial Court in O.S.Nos.237 of 2008 and 538 of 2010 : 8 (a). Issues in O.S.No.237 of 2010 : (i) Whether the plaintiff is entitled for the relief of declaration as absolute owner of the suit schedule property? (ii) Whether the plaintiff is entitled for possession of the suit schedule property? (iii) Whether the claim of defendant is nonest in Law after execution of Release Deed of the suit schedule property in favour of plaintiff? (iv) Whether the plaintiff is entitled for the relief of perpetual injunction against defendant as prayed for? (v) To what relief? 8 (b). Issues in O.S.No.538 of 2010: (i) Whether the plaintiff is entitled for cancellation of release deed as prayed for? (ii) Whether the plaintiff is entitled for perpetual injunction as prayed for? (iii) Whether there is no cause of action to file the suit? (iv) To what relief? Evidence and findings of the trial Court: 9. During trial, both the suits were clubbed and the evidence was only recorded in the lead suit in OS No.237 of 2008. On behalf of the plaintiff therein, PW.1 is examined and another witness, who is their elder brother, is examined as PW.2. Exs.A.1 to A.12 documents were marked. Evidence and findings of the trial Court: 9. During trial, both the suits were clubbed and the evidence was only recorded in the lead suit in OS No.237 of 2008. On behalf of the plaintiff therein, PW.1 is examined and another witness, who is their elder brother, is examined as PW.2. Exs.A.1 to A.12 documents were marked. Thereafter, the defendant in OS No.237 of 2008 (who is the plaintiff in OS No.538 of 2010, himself got examined as DW.1). In his evidence Exs.B.1 to B.8 documents were recorded and he has also examined independent witness-DW.2. The trial Court on careful appreciation of the entire oral and documentary evidence available on record decreed the suit in OS No.237 of 2008, whereas the suit in OS No.538 of 2010 was dismissed. Feeling aggrieved by the impugned common judgment and decree in both the suits in OS No.237 of 2008 and OS No.538 of 2010, the appellant herein has filed both the appeal suits. 10. Heard learned counsel for the appellant and the respondent. The submissions made on either side have received due consideration of this Court. 11. Since the evidence was only recorded in OS No.237 of 2008, a comprehensive suit for declaration and recovery of possession, the parties are referred to as plaintiff and defendant as arrayed in OS No.237 of 2008. 12. In the light of the rival contentions and the evidence as available on record, the following points would arise for consideration : (i) Whether the plaintiff in O.S.No.237 of 2008 is entitled for declaration of title and recovery of possession as prayed for? (ii) Whether the impugned common judgment and decree dated 02.01.2013 in OS No.237 of 2008 and in OS No.538 of 2010 is sustainable? (iii) To what relief? Point Nos.(i) to (iii): 13. The admitted or undisputed facts are that the plaintiff, defendant and their elder brother-Abbas Ali are the real brothers being the sons of late Smt. Najma Begum, who was the real owner of the property bearing No.22-7-527 admeasuring 115.50 square yards at Kamalyarjung, Mir-Alam Mandi, Hyerabad and she has gifted the said property in favour of her three sons, through the registered gift deed dated 29.01.1990, vide document No.450 of 1990. It is also admitted fact that the existing structures in the said plot was dismantled by them and constructed a three-storied building with municipal No.22-7-527/1. It is also admitted fact that the existing structures in the said plot was dismantled by them and constructed a three-storied building with municipal No.22-7-527/1. Thereafter, the plaintiff and his two brothers have divided the house among themselves by executing a registered partition deed, vide document No.1619 of 2007, dated 02.11.2007. In the said partition, first floor portion, which is mentioned as schedule-A property, was allotted to the elder brother of the plaintiff and defendant, whereas the ground and second floor portion referred to as B-schedule property fell to the joint share of the plaintiff and defendant. 14. It is the specific case of the plaintiff that after partition, among his brothers, the defendant has volunteered to execute a relinquishment deed, as such a relinquishment deed document No.1640 of 2007, dated 05.11.2007 was executed by the defendant in favour of the plaintiff for a valuable consideration of Rs.7 lakhs relinquishing his rights in favour of the plaintiff in respect of his 50% share in the ground and second floor of the suit schedule property and the possession was also delivered to him. However, the defendant has requested that he may be permitted to stay for 10 days in the ground floor of the house till completion of Muharrum, as such the plaintiff has permitted him, but after 10 days, the defendant failed to vacate the same, got filed the suit in OS No.450 of 2008, through one Mohd. Ahmed Ali stating that he is inducted as tenant and the plaintiff herein is interfering with his possession. The suit summons in that suit was not served. An ex parte temporary injunction was obtained. It is a collusive suit between the defendant herein and the plaintiff in OS No.450 of 2008, as such prayed for declaration of title, recovery of possession and for consequential injunction. 15. In support of his case, the plaintiff himself got examined as PW.1, filed his evidence affidavit in lieu of chief examination reiterating the plaint averments. In his evidence, Exs.A.1 to A.12 documents were marked. Ex.A.1 is certified copy of gift settlement deed document No.450 of 1990 and Ex.A.2 is certified copy of partition deed document No.1618 of 1987. These two documents are not in dispute. In his evidence, Exs.A.1 to A.12 documents were marked. Ex.A.1 is certified copy of gift settlement deed document No.450 of 1990 and Ex.A.2 is certified copy of partition deed document No.1618 of 1987. These two documents are not in dispute. Ex.A.3 is the original release deed said to have been executed by the defendant on 05.11.2007 in favour of the plaintiff, vide document No.1640 of 2007 along with plan, receipt and other annexures. Ex.A.4 is the original declaration given by the defendant before the witnesses promising to vacate the suit schedule premises – ground floor. Exs.A.3 and A.4 are seriously disputed by the defendant stating that the documents were not executed by him in favour of the plaintiff and that the value of the property relinquished is more than Rs.14 lakhs, a nominal document without paying the sale consideration was obtained and it is not binding on him. Accordingly, the defendant has filed OS No.538 of 2010 for cancellation of Ex.A.3-release deed. 16. PW.1 is cross-examined at length. He has explained that an amount of Rs.1,50,000/- was paid through cheques and the remaining amount of Rs.5,50,000/- was paid in cash, accordingly on 05.11.2007 release deed was executed and that after preparing the same it was presented for registration. He has obtained receipt for Rs.7 lakhs, it is attested by PW.2 and another witness. Though this witness is cross-examined at length, nothing worth mentioning is elicited to disbelieve the execution of Exs.A.3 and A.4 and the receipt annexed to Ex.A.3 for an amount of Rs.7 lakhs. 17. PW.2 is an independent witness, he is one of the attestors to the said receipt annexed to Ex.A.3. He has supported the plaintiff’s claim as to payment of consideration of Rs.7 lakhs to the defendant, delivery of vacant possession of the portion of defendant and the defendant acknowledging the receipt of Rs.7 lakhs. In the cross-examination, PW.2 stated that the defendant executed the release deed by receiving the consideration of Rs.7 lakhs for his business necessities and he has cordial relationship with the defendant also and denied all other suggestions given to him. 18. In support of his case, on behalf of the defendant, he himself got examined as DW.1, filed his evidence affidavit in lieu of the chief examination. Exs.B.1 to B.8 documents are marked. 18. In support of his case, on behalf of the defendant, he himself got examined as DW.1, filed his evidence affidavit in lieu of the chief examination. Exs.B.1 to B.8 documents are marked. In the cross-examination, DW.1 has admitted that he did not mention in his evidence affidavit that he was residing in a portion of the ground floor and the tenant was residing in another portion of the ground floor. He has admitted that Ex.A.3 contains his signatures and thumb impressions and also admitted that PW.2-Abbas Ali is his elder brother and that he is having cordial relationship with him. DW.1 has clearly mentioned that he did not mention in the written statement that the balance amount of Rs.5,50,000/- was not taken to the Sub-Registrar’s Office by the plaintiff and he promised to pay the same after returning from the Sub-Registrar’s Office and also not mentioned in the written statement that the plaintiff failed to pay the balance sale consideration stating that the persons, who promised him to provide the loan, demanded to mortgage the property with possession. He admitted that he did not mention in the written statement that the plaintiff assured that he is not demanding the possession of the suit property and that shortly he will arrange money towards balance sale consideration and denied all other suggestions given to him. He has further stated that he has no right on the second floor portion of the said building and he is claiming the same. 19. DW.2 is one of the attesting witnesses of Ex.A.3 release deed. He has filed his evidence affidavit alleging that an amount of Rs.1,50,000/- through demand draft was paid and the balance amount of Rs.5,50,000/- was not paid by the plaintiff to the defendant. However, in the cross-examination, the witness stated that he does not know the contents of Ex.A.3 and he does not know whether the payment of Rs.1,50,000/- was made through demand draft and Rs.5,50,000/- by way of cash as mentioned in the receipt annexed to Ex.A.3 and denied all other suggestions given to him. 20. Be it stated that initially in the written statement filed by the defendant, he has totally denied the execution of Ex.A.3-release deed stating that it was forcibly obtained without paying the sale consideration and he never relinquished his right in respect of the suit schedule property – ground floor. 20. Be it stated that initially in the written statement filed by the defendant, he has totally denied the execution of Ex.A.3-release deed stating that it was forcibly obtained without paying the sale consideration and he never relinquished his right in respect of the suit schedule property – ground floor. Whereas, by filing the suit in OS No.538 of 2010 he has improved his version stating that only an amount of Rs.1,50,000/- through demand draft was received and the balance amount of Rs.5,50,000/- was not paid to him. Thus, there is no specific denial of plaint averments in the written statement as required under Order-VIII Rule 5 of CPC and there is lot of improvement in the stand taken by DW.1 right from the pleadings in the written statement in OS No.237 of 2008 and in the plaint in OS No.538 of 2010 and in his evidence as DW.1 and there is no consistency in his stand. Absolutely, the evidence of DW.1 and DW.2 is not at all convincing and reliable to believe that the plaintiff has forcibly obtained Ex.A.3 release deed without payment of consideration as mentioned in Ex.A.3. 21. The plaintiff having filed Ex.A.3 in original along with receipt executed by the defendant for an amount of Rs.7 lakhs, has also examined PW.2, who is the elder brother of the plaintiff and defendant as one of the attestors, for acknowledgement of the receipt of said amount. In the receipt annexed to Ex.A.3, it is categorically mentioned that DW.1 has received an amount of Rs.7 lakhs i.e., Rs.5,50,000/- through cheque bearing No.604262, dated 05.11.2007 and a sum of Rs.5,50,000/- by way of cash towards consideration of the release deed. In the recitals of Ex.A.3 also, in the third page it is mentioned in clear terms that the defendant has received an amount of Rs.1,50,000/- through the demand draft No.604242, dated 05.11.2007, Rs.5,50,000/- was received by way of cash and accordingly admitted and acknowledged the receipt of entire amount, released his claim, right and interest in respect of the portion of suit schedule property in favour of the plaintiff and handed over the vacant and physical possession of the same to the plaintiff to the extent of his joint share in the suit schedule property. 22. 22. In a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and weakness, if any of the case set up by the defendants would not be a ground to grant relief to the plaintiff. Therefore, the plaintiff could success only as the strength of his title by adducing sufficient evidence to discharge his onus, irrespective of the question whether the defendant has proved his case or not (Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others, (2014) 2 SCC 269 ). 23. Section 91 of the Indian Evidence Act, 1872 embodies “best evidence rule” declaring doctrine of substantive law. This Section relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the “best evidence rule”. Wherever the written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose, collateral evidence (Roop Kumar Vs. Mohan Thedani, AIR 2003 SC 2418 ). 24. In the instant case, the plaintiff by examining himself as PW.1, filing the original of Ex.A.3 and examination of attestor of receipt annexed to Ex.A.3 as PW.2, who is their elder brother, is able to establish the execution of release deed as in Ex.A.3 and passing of consideration of Rs.7 lakhs from the plaintiff to the defendant. In such circumstances, the loose oral evidence of DW.1 and DW.2 is not sufficient to discredit the evidence of PWs.1 & 2 and to contradict the contents of Ex.A.3. In such circumstances, the loose oral evidence of DW.1 and DW.2 is not sufficient to discredit the evidence of PWs.1 & 2 and to contradict the contents of Ex.A.3. Though DW.2 is examined to show that the defendant has not received consideration as mentioned in Ex.A.3, this witness has categorically stated that he does not know the contents of Ex.A.3 and that he has simply signed on it, further stated that he does not know whether the defendant has received Rs.7 lakhs or not towards consideration for the release deed. Whereas, there is no consistency in the pleadings of the defendant as stated above and he is changing his stand from time to time, therefore, such evidence of DWs.1 and 2 is not helpful to the defendant in any way to prove his case. Therefore, with the oral and documentary evidence adduced as discussed above, the plaintiff is able to discharge the onus and able to establish the recitals of Ex.A.3 and receipt of consideration by the defendant including delivery of possession. 25. The plaintiff has filed the present suit for declaration of title and recovery of possession stating that considering the request of defendant, he has allowed the defendant to stay for a period of 10 days for celebration of Muharrum, but the defendant with a dishonest intention filed the suit in OS No.450 of 2008, but the suit summons and notice were not served upon him. This evidence of PWs.1 & 2 coupled with the contents of Ex.A.3 are sufficient to hold that the plaintiff in a suit for declaration filed by him is able to make out and establish his case for granting such relief of declaration of title and recovery of possession. With the oral and documentary evidence adduced on behalf of the plaintiff, he is able to establish the source of title in respect of the suit schedule property and relinquishment of the share of defendant in his favour under Ex.A.3 for valuable consideration. It is also established by the plaintiff that he has allowed the defendant to stay for some time in the suit house for celebration of Muharrum, but the defendant with a dishonest intention got filed the suit in OS No.450 of 2008 for injunction and also filed the suit in OS No.538 of 2010 for declaration that Ex.A.3 is not binding. 26. 26. Therefore, for all the reasons stated above, the oral and documentary evidence adduced on behalf of the plaintiff appears to be cogent and reliable, and the plaintiff is able to establish the execution of Exs.A.3-release deed by the defendant including the receipt of sale consideration of Rs.7 lakhs and delivery of possession of suit property by the defendant and in favour of plaintiff. Whereas, there is no consistency in the pleadings on behalf of defendant and the evidence adduced, it does not inspire any confidence, not creditworthy, the defendant has changed his stand from time to time right from the pleadings in the written statement in OS No.237 of 2008 and in the plaint in OS No.538 of 2010 and in his evidence in the chief examination. Such loose, inconsistent evidence is not sufficient to discredit the evidence of PWs.1 and 2 and disprove the contents of Ex.A.3 and the receipt annexed thereto. 27. Accordingly, in that view of the matter, I am of the considered opinion that the trial Court has rightly relied upon the oral evidence of PWs.1 & 2 and contents of Exs.A.1 to A.12 and held that the plaintiff is entitled for declaration of title and recovery of possession of the suit schedule property and also entitled for consequential injunction. As such, the trial Court has rightly directed the defendant to hand over the vacant possession of the property in favour of the plaintiff by 31.03.2013, I do not find any infirmity in the findings or appreciation of evidence by the trial Court. Thus, all the points are answered in favour of the plaintiff and against the defendant holding that the plaintiff is entitled for declaration of title and recovery of possession and consequential injunction order. The judgment and decree impugned does not warrant any interference by this Court and it is sustained. 28. In the result, both the appeal suits i.e., CCCA No.28 of 2013 and CCCA No.31 of 2013 filed assailing the judgment and decree in OS No.237 of 2008 and O.S.No.538 of 2010 are dismissed confirming the impugned common judgment and decree dated 02.01.2013 in its entirety. However, in the circumstances of the case, there shall be no order as to costs. As a sequel, miscellaneous applications, if any pending in these appeals, shall stand closed.