High Court · 2024

Counsel for the Respondent No.3: Sri MIRZA NISAR AHMED BAlc The Court delivered the following: JUIIGMENT c THE HON'BLE SRI JUSTICE SAMBASTVARAO NAIDU CITY CIYIL COURT APPEAL No.83 OF 2O19 JUDGMENT: Being aggrieved by the Judgment and Decree dated 29.12.2016 in O.S.No.994 of 2OIl on the hle of XI Additional Chief Judge, City Civil Court, Hyderabad, whereunder his suit was dismissed by the trial Court, the plaintiff in the said suit has hled this l"t civil appeal under Section 96 of Code of Civil Procedure (for short "CPC") and sought for setting aside the impugned judgment and also prayed for a decree for partition of the suit schedule property and for cancellation of the gift deed in favour of the respondent/ defendant.

2. As could be seen from the record placed before the Court, it appears that the appellant herein has frled the above referred original suit against the respondents for partition of house bearing No.16-8-933/C admeasuring 444 sq.yards at New Malakpet Hyderabad (hereinafter be referred as suit schedule property) and for cancellation of grft deeds bearing document Nos.31 ll l2OOl and 3ll2/2}Ol. According to the plaint filed by the appellant 2 ccCA I{o.AS ol2079 before the trial Court, it was claimed that one Smt. Kamar Sultana was the mother of parties to the suit and she was the original purchaser, owner and possessor of the suit schedule property which she purchased under registered document No.2381 of 1961. The said Kamar Sultana died intestate on 19.10. 1997 by Ieaving her husband and (3) children i.e., appellant as well as the respondents' Subsequent to her death, the husband of Sultana by name Syed Shah Alam also died leaving the children to succeed the property.

3. The appellalt has claimed that the suit schedule property was matruka property of his mother and the same was initially devolved upon her husband ald children' But, in view of the death of his father, his share was also devolved on his children. Therefore, according to the appellant as per the Islamic Law, out of the 35 shares, each son will get 14/35th share, whereas the daughter will get 7 l35tn share. Therefore, according to the appellant, himself al.ld his brother i.e., 1"t respondent are entitled to 14/35m share each and 2'd defendant being daughter is entitled 7/35tr' share. The appellant has also claimed that his brother i.e., l"t respondent gifted his share to the appellart I I a a CCCA I{o.A3 of 2019 in 2O 1O by way of oral gift (Hiba) in the presence of witnesses, thereby he became owner of 28/35tt' share. Whereas, 2.d respondent/defendant No.2 has got only 7/35tt' share.

4. The appellant has also claimed before the trial Court that prior to his frling the suit, he came to know that his sister got registered two gift deeds for the suit propert5r in favour through her father vide document Nos.31lll2OOl and 3112l2OOl on 25. 10.2O01 without any information to her brothers i.e., appellant and l"t respondent. The 2"a respondent based on the said gift deeds, was trying to sell the entire suit schedule property. Therefore he demanded the 2nd responded, to effect partition of the suit schedule property, but she postponed the same. The appellant also averred in the plaint that he came to know from 3rd parties that the 2"d respondent created false and sham document as if there was a oral gift from her father in respect of 181 sq.yards and got the above referred gift deeds on 25.10.2001. The appellant having contended before the trial Court that in view of his residing in USA the 2nd respondent made attempts to transfer the 4 CCCA No.83 of 2Ot9 property to others, thereby, prayed for a decree for partition of the suit schedule property and for allotment of his share. 5. The respondents/defendants remained exparte before .the trial Court. One Wajid Mirza in the capacity of GpA of appellant was exarnined as pWl on behalf of the appellant herein and he has marked Exs.Al to A5. Though there was no contest from the respondents, the triar court having appreciated the preadings of the appelrant, eyidence of pwr and having examined Exs.Al to AS came to the conclusion that the appellant herein is not entailed to seek partition of the suit schedule property, thereby dismissed the suit under the impugned Judgment. 6 Being aggrieved by the said Judgment, the appellant has filed this appear and sought for setting aside the rmpugned Judgment on the following grounds: 7' The trial court ought to have seen that once registered gift deeds were cha_llenged, the burden Iies hea'rily on the 2nd respondent/defendant No.2 to prove the validity of the registered gift deeds. But, in the present suit the 2"d respondent/defendant No.2 remained exparte, there was no rebuttal evidence, thereby the trial Court ought to ( \ 5 CCCA No.83 of 2O19 have accepted the claim of the appellant and ought to have passed a decree in his favour. But, the trial Court committed a mistake by dismissing his suit.

8. The appellant has claimed that the trial Court did not give any cogent and justifiable reasons for dismissing his suit and failed to appreciate that the registered gift deeds which were marked as Exs.Al and' A2 were created and the donor i.e., his father had no title to execute such gift deed. Therefore, the appellant Nos.land 2 are non-est and illegal documents which will not bind the appellant. But, the trial Court misdirected itself and did not dealt with the question and simply dismissed the suit on the ground that the appellant did not adduce any evidence to establish his right over the property. The trial Court failed to note that there is no challenge to the oral and documentar5r evidence produced by the appellant herein. Therefore, his suit ought not to have been dismissed by the trial Court, thereby he sought for setting aside the impugned Judgment and prayed for his Decree in his favour.

9. This appeal has been hled by the unsuccessful plaintiff in O.S.No.994 of 2Ol4 when his suit that was filed 6 CCCA No.A3 of 2019 against his brother ard sister for partition was dismissed by the trial Court. The defendants in the said suit are shown as respondent Nos.l and 2 in the present appea.l. However, during the course of time the 3.a party namely M/s.Hilton Projects through its managing partner, filed a petition vide I.A.No.1 of 2023 under Order I Rule lO CpC with a prayer to implead the said developer as respondent No.3 in the appeal. The said petition was allowed as the counsel for the appellant herein reported no objection.

10. In view of the above stated circumstances, the following points arose for consideration:

1. Wlether the trial Court utas wrong in di.smissing the that the suit, in spite of respondent/ defendants remained exparte? the fact

2. WhetLrer the trial Court faited to appreciate the contentions of th.e appeilant properlg and dismissed his suid if so, u_thether the appellant is entitled to preliminary decree for partttion as praged for? 1 I . As could be seen from the averments made in the plaint and as per the evidence of pWl, the appellant has claimed that the suit schedule property was originally \ A 7 CCCA No.83 of 2079 r purchased by his mother, and in view of her death' he and his siblings i.e., respondent Nos'1 and 2 have succeeded the property and in view of oral gift said to have been made by his brother i.e., respondent No'1, he has got 28/35tt' share and respondent No.2 his sister has got 7135rr share in the suit schedule property. The appellant himself made averments in the plaint that his father has executed two registered gift deeds in respect of suit schedule property in favour of respondent No.2. The copies of said registered gift deeds are marked as Exs.Al to A2' As per the said gift deeds, it is stated that the mother of the appellant as well as respondent Nos.1 and 2 who purchased the property has gifted the entire propert5r in favour of her husband i'e' ' fatlrer of the appellant herein and she died on 19'10'1997' It is also stated in the gift deeds that the father of the appellant has acquired absolute title over the suit schedule property by virtue of oral gift (Hiba) said to have been given by his wife and being absolute owner of the property' he has executed two registered gift settlement deeds in favour of his daughter i.e., respondent No 2' As per the said gift deeds, the father of appellant herein gifted the entire property to respondent No.2, and respondent No'2 in tt'rrn 8 CCCA No.8O of 2OI9 handed over the Property to 3.d respondent who was impleaded to the appeal for development.

12. The appellant who has filed the suit by showing his brother and sister did not state aaything about the development agreement between respondent No.2 and 3. He may claim that he is not aware of the said agreement. The appellant did not attend the trial Court, but examined pWl in support of his claim on the basis of GpA. 13. The respondent Nos.l and 2 who are none other than the brother and sister remained expa_rte. The appellant did not place any material to believe the alleged oral gift said to have been executed by respondent No. 1 in his favour. As per the gift deeds executed by the father of the parties vide Exs.Al and A2, it shows that the father of the appellant has claimed absolute right by virtue of an orar gift from his wife i.e., mother of the appellant herein.

14. As per the contentions of the 3.a partSr, who was impleaded to the appeal, they have obtained deveropment agreement in respect of the suit schedule propert5r, and constructed flats in the property. As per the material placed by respondent No.3, it appears that respondent No.3 has I I -i 9 CCCA No.83 oJ 2019 constructed multi stored building. But, the appellant did not show the 3'd respondent or subsequent purchasers of the flats as parties to the suit. Even though the appellant claimed that he was away from the country, he has hled suit and in support of the suit he has examined his GpA holder as PW I and curiously the sister who said to have denied the partition and who made attempt to dispose of the propert5r, remained silent without raising any dispute about the claim raised by the plaintiff. In view of the entire record, it is clear that the 2"d respondent based on Exs.Al to A2 has entered into development agreement with the 3.d respondent, and the 3.d respondent must have disposed the flats to 3rd parties. The appellant without adding these important parties to the suit simply frled the suit for partition. If the claim is allowed, definitely it will case prejudice to the rights of 3d parties as well as the 3.d respondent-developer. The appellant was not able to substantiate his claim that the properties still available for partition. There is no evidence to believe that there was no such oral gift by mother of the appellant herein in favour of her husband. The appellant who himself hled suit with a plea that his younger brother gifted his share of l4/35tr, \ I I 10 oCCA No,a3 of 2O19 under oral gift cannot dispute the contentions and averments in Exs.Al and A2 through which the 2nd respondent got the property from her father. Therefore, the trial Court having considered all these aspects, rightly dismissed the suit and there are no merits to set aside the Judgment of the trial Court or to pass a decree effecting partition in favour of the appellant and his siblings. The suit liled by the appellant without adding the developer and subsequent purchasers of the property, is bad for non_ joinder of necessar5z parties, on that ground also the suit is liable to be dismissed. Thereby, the appeal deserves to be dismissed. 15 In the result, the appeal is dismissed. No costs. As a sequel, pending Miscellaneous Applications, anY, shall stand closed. \ //TRUE COPY// Sd/. K. SRINIVASA RAO JOINT REGISTRAR To, d SECTION OFFICER

1. The Xl Additionat Chief Judge, City Civit Court, Hyderabad 2. One CC to Sri K.K. WAGHRAY, Advocate {OpUCl 3. One CC to Sri M. VTSHNU VARDHAN REDDY, Advocate [OpUCl 4. One CC to Sri MTRZA NTSAR AHMED BA|G, Advocate [OpUC] 5. Two CD Copies b HIGH COURT DATED:2510112024 JUDGMENT CCCA.No.83 of 2019 -tE , , , I I 1rE S TA 16 ( ( 21 illfifl 2[$ t-. )i"n- ( ') DISMISSING THE CITY CIVIL GOURT APPEAL WITHOUT COSTS :.9 @w

7._v q IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY, THE TWENTY FIFTH DAY OF JANUARY TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU CITY ClVlL COURT APPEAL NO: 83 OF 2019 Between: Syed Mohboob Alam, S/o. Late Syred Shah Alam, Age:58 years' Occ: Service Abroad, Rl/o.8, North Taylor Ave, SC, Norwalk Ct 06854, Rep., by his GPA Mir Asif Ali Khan, S/o. Mir Shahmath Ali Khan, age: 48 years, Occ: Business, Rl/o.Flat No.304, third floor, Mahboob Mansion, bearing premises No. 10-4-29' Humayun Nagar, Hyderabad (Mir Asif Ali Khan is permitted as G.P.A. Holder to represent the Appellant as per the court order dated mlfil2022. Made in lA.No.2 of 2019 in CCCA No 83/2019) ...AppellanuPlaifltiff AND '1. Sved Manzoor Alam, S/o. Late Syed Shah Alam, Aged about 56 years' Occ: Piivate Service, Rl/o. H.No.16-&993/C, New Malakpet, Hyderabad - 36

2. Ghousia Syeda Khan,, D/o. Late Syed Shah Alam, Aged about 5-4- y-ears, Occ Household, R/o. H.No.16-8-993/C, |lew Malakpet, Hyderabad - 36 Rep., by her DGPA holder (Doc. No.869 of 2017) Sri Mohd. Abdul Nayeem, S/o. Late M.A.Raheem at 1-3-1029, Hilltofl lcon, 4th floor, Opp. Courtyard Marriott, Lower Tank Bund, Hyderabad

3. Mls. Hilton Proiects, having its office at 1'3-1029, Hillton lcon, 4th floor' Opp. Courtyard Maniott, Lower Tank Bund, Hyderabad, rep by its Managing Partner Sri Mohd. Abdul Nayeem, S/o. Late M.A.Raheem. (Respondent No.3 is impleaded as per the court order dated 26-1O-2022 vide lA.No.3 of 2019 ) Appeal filed under Sec{ion 96 of C.P.C., aggrieved by the Judgment and decree dated 29-12'2016 passed in O.S.No. 994 ot 2014 on tte file of the Court of the Xl Additional Chief Judge, City Civil Court, Hyderabad. ... ResPondirnts/Defendants t oRDER : This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of Sri K K WAGHRAY' for the Appellant and of Sri M. VISHNU VARDHAN REDDY, Advocate for Respondent No' 2' And of Sri MIRZA NISAR AHMED BAIG, Advocate for Respondent No' 3 This Court doth Judgment and decree as follows:- 1-. That the City Civil Court Appeal be and hereby is dismissed; and 2. That there shall be no order as to costs Sd/- K. SRINIVASA RAO JOINT REGTSTRAR //TRUE COPY// q, SECTION OFFICER To, The Xl Additional Chief Judge, City Civil Court, Hyderabad

1. 2. Two CD CoPies PSR s \ I A1!, t.;. t E1r i- ,- HIGH COURT DATED:251O112024 DECREE CCGA.No.83 of 2019 DISMISSING THE CITY CIVIL GOURT APPEAL WITHOUT COSTS @PP €o q-i t I