Research › Search › Judgment

Telangana High Court · body

2024 DIGILAW 100 (TS)

Tahseen Yousuf v. Khatija Begum

2024-02-21

K.SUJANA

body2024
ORDER: (K. Sujana, J.) The present revision petition is filed by the revision petitioner/appellant/respondent No.1/defendant No.1, being aggrieved by the order dated 22.09.2022 in C.M.A.No.112 of 2018 on the file of the II Additional Chief Judge, City Civil Court, at Hyderabad, confirming the order dated 09.08.2018 passed in I.A.No.172 of 2017 in O.S.No.1434 of 2017 on the file of the XIX Junior Civil Judge, City Civil Court, at Hyderabad. 2. Heard Sri S.Ganesh, learned counsel for revision petitioners, and Sri A.Najeeb Khan, learned counsel for respondents. 3. The primary contention of the revision petitioners is that the orders of the Courts below are based on assumptions and presumptions and are contrary to law, weight of evidence and probabilities of the case. It is contended that the trial Court failed to appreciate the fact that the petitioner entered into an Agreement of Sale with respondent No.1 in the year 1989 and paid the entire sale consideration and has been enjoying the possession over the suit schedule property and the respondent No.1 has not denied execution of said Agreement of Sale and receiving the sale consideration of the same. Further, the trial Court ought to have seen that the plaintiffs failed to establish the prima facie case, balance of inconvenience and irreparable loss. 4. O.S.No.1434 of 2017 was filed seeking perpetual injunction over the suit schedule property. In the said suit, plaintiffs filed I.A.No.172 of 2017 under Order XXXIX Rules 1 and 2 of Civil Procedure Code (for short ‘CPC’) praying to grant ad-interim injunction restraining respondent No.1 and her husband, GPA and Power of Attorney holders, associates, henchmen, labourers, agents, servants or any other supporters from interfering or dispossessing them from the suit schedule property. 5. For the sake of convenience, the parties herein are referred to as arrayed in I.A.No.172 of 2017. The brief facts of the case are that originally, late Afzal Rasool Khan, who was husband of petitioner No.1 and father of petitioner Nos.2 to 6 was the absolute owner and possessor of the suit schedule property having been allotted the same under the allotment letter dated 10.09.1982 from respondent No.2 – Co-operative Housing Society (for short ‘respondent No.2 – Society’). On 16.10.1988 Afzal Rasool died leaving behind the petitioners and his daughters as his legal heirs and successors. 6. On 16.10.1988 Afzal Rasool died leaving behind the petitioners and his daughters as his legal heirs and successors. 6. Thereafter, the petitioners and daughters of late Afzal Rasool filed O.S.No.985 of 2011 on the file of XIX Junior Civil Judge, City Civil Court, Hyderabad, praying to declare them as legal heirs of late Afzal Rasool, the same was decreed on 30.08.2011 as a result of which they are in peaceful possession and enjoyment of the suit schedule property without any interruption. The respondent No.2 – Society used to send notices to petitioners for conducting the General Body meeting in the name of late Afzal Rasool Khan. The petitioners made representations to respondent No.2 – Society stating that the original allotment letter dated 10.09.1982 was misplaced and requested the respondent No.2 – Society to furnish a certified copy or an attested copy of the same. 7. That apart, the petitioners also made representations to respondent No.2 – Society on 19.10.2011, 30.06.2014 and 14.09.2014 for grant of certificate and permission to raise the constructions, the same was acknowledged by respondent No.2 – Society but they failed to take any action. In the meantime, when the petitioners are in peaceful possession and enjoyment of the suit schedule property without any interruption, the respondent No.1 has fraudulently created the documents and tried to interfere with the peaceful possession of the petitioners. As such, prayed to grant the relief of ad-interim injunction restraining respondent No.1 and her husband, GPA and Power of Attorney holders, associates, henchmen, labourers, agents, servants or any other supporters from interfering or dispossessing them from the suit schedule property. 8. In the said petition, a counter was filed by respondents denying all the averments made in the petition and admitting that Afzal Rasool - husband of petitioner No.1 and father of petitioner Nos.2 to 6 was allotted plot admeasuring 280 square yards, described as Plot NO.13 in Survey No.182, 183/1 and part of Survey No.142, Khajabagh Colony, Saidabad, Hyderabad, by respondent No.2 – Society. It is also admitted that Afzal Rasool died on 16.10.1988 leaving his wife i.e., petitioner No.1 and other petitioners i.e., his legal heirs. It is contended that the said Afzal Rasool has orally gifted the said property in favour of respondent No.1. It is also admitted that Afzal Rasool died on 16.10.1988 leaving his wife i.e., petitioner No.1 and other petitioners i.e., his legal heirs. It is contended that the said Afzal Rasool has orally gifted the said property in favour of respondent No.1. Further, it is stated that the judgment and decree dated 30.08.2011 passed in O.S.No.985 of 2011 on the file of the XIX Junior Civil Judge, City Civil Court, Hyderabad, does not bind on respondent No.1 as she is not a party to the said proceedings, as such, the petitioners have no right to raise any question against her possession and enjoyment over the suit schedule property. Therefore, prayed to dismiss I.A.No.172 of 2017 in O.S.No.1434 of 2017. 9. Considering the submissions made and on going through the material placed on record, it is noted that after hearing both sides, the trial Court has allowed I.A.No.172 of 2017 in O.S.No.1434 of 2017 vide order dated 09.08.2018 and granted temporary injunction in favour of petitioners and restraining the respondent No.1, her husband, GPA and Power of Attorney holders, associates, henchmen, labourers, agents, servants or any other supporters from interfering or dispossessing them from the suit schedule property. Challenging the said order, the respondent No.1 filed C.M.A.No.112 of 2018 whereunder, the Appellate Court has confirmed the order dated 09.08.2018 made in I.A.No.172 of 2017 in O.S.No.1434 of 2017 vide its order dated 22.09.2022. 10. As seen from the record, in I.A.No.172 of 2017 on behalf of petitioners, Exs.P1 to Ex.P23 were marked. - Ex.P1 shows that late Afzal Rasool who is husband of petitioner No.1 and father of petitioner Nos.2 to 6 died on 16.10.1988. - Ex.P2 is certified copy of judgment in O.S.No.985 of 2011 dated 30.08.2011 whereunder, the petitioners were declared as legal heirs of late Afzal Rasool. - Ex.P3 is certified copy of decree in O.S.No.985 of 2011. - Ex.P4 is notice dated 12.03.2009 sent to petitioners by respondent No.2 – Society whereunder, the suit schedule property was allotted to late Afzal Rasool and informing about the Annual General Body meeting of the Society. - Ex.P5 is the search made by National Food Security Department of Consumer Affairs Food and Civil Supporters, whereunder, the house number of petitioner No.1 is shown as 17-01-391/M/13, Plot No.13, Khajabagh Colony, Saidabad, Hyderabad. - Ex.P6 is the copy of Aadhar Card of petitioner No.2 showing the same address. - Ex.P5 is the search made by National Food Security Department of Consumer Affairs Food and Civil Supporters, whereunder, the house number of petitioner No.1 is shown as 17-01-391/M/13, Plot No.13, Khajabagh Colony, Saidabad, Hyderabad. - Ex.P6 is the copy of Aadhar Card of petitioner No.2 showing the same address. - Ex.P7 is Election Card of petitioner No.2 showing the same address. - Ex.P8 is the letter dated 30.05.2014 addressed by petitioner No.2 to respondent No.2 – Society requesting to permit him to construct house over the plot allotted to his father late Afzal Rasool. - Ex.P9 is the letter dated 14.09.2014 addressed by petitioner No.2 to Secretary of respondent No.2 – Society requesting to furnish certified copy of documents pertaining to late Afzal Rasool. - Ex.P10 is similar letter to that of Ex.P9. - Ex.P11 is letter dated 23.01.2017 addressed by petitioner No.2 to AE of Electricity Department for consideration of electricity meter in respect of suit schedule property. - Ex.P12 is letter dated 24.03.2017 addressed by petitioner No.2 to Commissioner of Police complaining against respondent No.1 with regard to trespassing over the suit schedule property. - Ex.P13 is F.I.R., in Cr.No.134/2017. - Ex.P14 is the attested copy of complaint filed by petitioner No.2 against respondent No.1 and one another. - Ex.P15 is complaint dated 30.09.2016 addressed to Inspector of Police by petitioner No.2 against respondent No.1 and one another. - Ex.P16 is letter dated 20.02.2017 addressed by petitioner No.2 to the AE of Electricity Department, for removal of electricity meter. - Ex.P17 is letter dated 25.02.2017 addressed by AD of Electricity Department to petitioner No.1, furnishing information under RTI Act. - Ex.P18 are photos along with CD of the suit schedule property. - Ex.P19 is letter dated 26.10.2017 addressed by AE of Electricity Department. - Ex.P20 is information furnished by the GHMC Authority with regard to allotment of suit schedule property. - Ex.P21 is complaint dated 30.09.2016 alleging interference of respondent No.1 over the suit schedule property. - Ex.P22 is certified copy of Crl.Petition No.6935 of 2017 filed by respondent No.1 against petitioners. - Ex.P23 is certified copy of order in Crl.Petition No.6935 of 2017 under which notice was ordered to petitioners. 11. On behalf of respondents in I.A.No.172 of 2017 Ex.R1 was marked which is a photo-stat copy of alleged Agreement of Sale dated 10.04.1989. The said Agreement of Sale is an unregistered document. 12. - Ex.P23 is certified copy of order in Crl.Petition No.6935 of 2017 under which notice was ordered to petitioners. 11. On behalf of respondents in I.A.No.172 of 2017 Ex.R1 was marked which is a photo-stat copy of alleged Agreement of Sale dated 10.04.1989. The said Agreement of Sale is an unregistered document. 12. Perusal of Exs.P1 to P23 marked by the petitioners before the trial Court would reveal that they are in possession and enjoyment of the suit schedule property, whereas, Ex.R1 which is marked by respondent No.1, is an unregistered Agreement of Sale. In an application filed seeking interim injunction, the Court has to see the prima facie case balance of convenience and irreparable injury. In the present case, the Court prima facie concludes that the documents filed by the petitioners prove their possession over the schedule property and on the other hand, the respondents have not filed any document to prove their possession over the schedule property, therefore, the trial Court granted injunction in favour of the petitioners and the Appellate Court confirmed the same. 13. In view thereof, this Court is of the opinion that there is no illegality committed by the trial Court in allowing I.A.No.172 of 2017 in O.S.No.1434 of 2017 vide order dated 09.08.2018 and the Appellate Court has rightly confirmed the same vide order dated 22.09.2022 in C.M.A.No.112 of 2018. Therefore, there are no merits in this revision petition and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. However, it is left open for the petitioner herein to prove her contentions during the course of trial. There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, shall stand closed.