The High Court · 2025

the sake of convenience and clarity, the parties herein are referred to as they were arrayed before the trial Court.

3. To avoid confusion, the pleadings in O.S.No.22O4 of 2Ol2 and the result thereon is discussed in the first instance.

4. The case of the plaintiff before the trial Court is that the father of defendant late Ali Ahmed had entered into an agreement of sale in respect of the property bearing old Municipal No.634 (new Municipal No.21-1-1098 19lLOlIl), situated at Rikabgunj, Pathergatti, Hyderabad, sdpr:asuring 375 Sq.yards under an agreement of sale dated 23.02.2OO1, having received the entire sale 2 ETD,J CCCA No.94_2019 consideration of Rs.8,OO,OOO/- on the said date. It is lurther submittecl by the plaintiff that the father of the defendant late Ali Ahmed has also entered into an agreement of salc on 2g.o..2oo0 in respect of suit schedule property and that hc fired a suit in .O.S.No.436O ot tggg on the file of X Additional Chief Judgc, Cir5r civil courr, Hyderabad, but due to the sudden demise of Ari Ahmed, the said suit was dismissed as abated. Further, Ari Ahmed had agreecl to cxecute and register the sale deed in favour of the plaintiff as and r.r'hen demanded and has arso aLgreed to take possession rrom the tenants who are occupyi.g thc suit schedure property and has authorized the plaintiff ic initiate the eviction proceedings against the tenants before the Rent controiler and the same was initiated by the praintiff. Further the praintiff has submittecr that even on his repeated requests to execute and register the sale deed, the defendant has been avoiriing the same on one pretext or the other. It is his furthercase that he has spent huge amounts for initiating legar proceedings against the tenants, inspite of thc same the defendant failed to execute the registered sale deed :rnd the eviction proceedings were dismissed for want of jurisdiction. It is his further case that timc is not ilre essence of contract under the agreement of sare entered into between himself and the father of the defendant, therefore, the plaintiff has issued a legal notice on 08. 10.2o12 asking the defendant to execute the sale .r/ -t 3 ETD,J CCCA No.94 2019 deed but he has been avoiding and the notice sent by the plaintiff was returned as addressee left. Therefore, the plaintiff has filed the suit for specific performance.

5. The defendant stood ex parte.

6. The plaintiff got examined himself as pwl and got marked Exs.AL to A7, wherein he liled the agreement of sale, valuation certificate, office copy of legal notice, its postal cover and receipt and also certified copy of link documents with English Translation. 7 - Since, there was no rebuttal evidence, it was held by the trial court that the plaintiff could prove his case through the documents submitted by him and hence, the suit was decreed in his favour.

8. In pursuance of the decree, a sale deed was executed through the process of court in favour of the plaintiff. Following which, E.P.No.o4 of 2016 was filed seeking detivery of possession. During the pendency of the E.P, the claim petitioner i.e. Alladin charities and zakat wakf rep. by its Managing Trustee Mr.Habib Alladin, has liled E.A.No.94 of 2016. 9- The averments of claim petitioner in brief are that the suit is filed based on falsely created documents, over the property which 1 ETD,J CCCA No.94-2019 4 isanotifiedandregisteredWakfpropertybelongingtoAlladin CharitiesandZakatwakf.Itisfurtheraverredthatitisacollusive suitbetweentkreplaintiffi.e.decreehoiderandthedefendant,and thatisthereasollthedefendantremainedexparteandafter obtaining ex parte decree, the E.P. is being pursued to recover possession.Il,isthecaseoftheclaimpetitionerthatalongwith AlladinChariticsand'ZakatWakf,therearetwoothersistertrusts namelyMeccaMadinaAlladinWakfandAiladinCharitiesWakf, registereduncierseparatetrustdeedandallthethreetrustsare differententitiesandthatthepropertiesofalltheirbovethree trustsarecotrtiguoustoeachotherandthattheMeccaMadina AlladinWaktisspreadoveranextentof85ls.T2Sq.yards,the extentofAllztdinCharitiesand'ZakatWakfis3151.5lSq'yards andthatAllactinCharitiesWakfisadmeasuringl03l.TTandthat in all a vast (:xtent of 12,6gg Sq.yards is in the possession of three trustsandthatallthethreetrustsarenotifiedasregisteredWakf propertiesaSpertheA.P.Gazette.Itishiscasethatthefatherof thedefendarrthadnotitleorrightoverthepropertytoenterinto aluagreementofsalewiththeptaintiffandthatthestoryofhis purchasingl.romthedefendantisinventedforthepurposeofthis case.ItishiscasethattheAlladinCharitiesand,ZakatWakf situatedatRikabgunj,Pathergatti,Hyderabadanditisregistered andnotificdinA.P.GazetteNo.6-A,datedog.02.1989atpage93, -/l ./J ) 5 ETD,J CCCA No.94_2019 S1.No.2373 and that there is a shopping complex covering the total area of 12,699 acres. It is his further case that M.C.H.Ward No.21 Block No.21-l-1O98/1 to 8 at Raikabgunj belongs to Alladin Charities and Zakat Trust and that the tenants are in possession of the shops therein and are paying rents to it. It is his case that the claimant trust is in existence since 1976. He further averred that in the year 2OO0, four persons namely Hamid Ali, M.A.Kareem, Md.Rawoof and Md.Vilayath Quadri have created false and fabricated documents with an intend to grab the waqf property and had illegally occupied an extent of 536.027 Sq.yards belonging to Alladin Charities and Zakat Wakf and also that the said flour persons have raised construction fraudulently by obtaining permission of MCH presenting fabricated title documents and further managed and got assigned MCH Nos.21-1-1O98 19, 2l-I- 1098/10 and 2l-l-1o98111, which is part and parcel of the total extent belonging to Alladin Charities and.Zakat Waqf. [t is further averred that the said land grabbers have also floated a bogus trust in the name of Faizan-e-Al-Hussain. When the said fact was brought to the notice of A.P.Wakf Board, the Chief Executive Officer exercising his powers under Section 54(3) of the Wakf Act had conducted an enquiry and after thorough enquiry, has given a report that they have falsely obtained the municipal numbers on \ \ Wakf property belonging to Alladin Charities and Zakat Wakf t \ 6 ETD,J CCCA No.94-2019 -*. by fabricating the gift settlement deeds to grab the extent. The CEO vide orders in File No.6llJ2lsntc/Hyd/98, datecl 15.05.2000, have directed the eviction of the encroachers. Aggrieved by the said orders, the above four persons i.e. alleged encroachers have filed WP No.9434 of 2000 before the Hon'ble High Court and the said writ petition was allorved quashing the orders of CEO Wakf Board. Against the said orders, Writ Appeal No.983 & 1109 of 2OOL were filed, 'uvhich were allowed by the High Court setting aside the orrlers of the Single Judge. Against the said orders, the matter was carried to Hon'ble Supreme Court vide the SLP (Civil) No.236l-2362 0l 2002 which was dismissed on 15.02 .2002. After loosing the case at Supreme court, the above saicl four persons have filed a. suit in O.S.No.59 of 2OO2 before the A.P.Wakf Tribunal, Hyderabad and after a thorough contest, the said suit for declaration \vas dismissed with an observation that Hamid Ali and others have no right or title over the property and had upheld the Wakf Board Proceedings dated 15.05.2000. Agairrst the said orders, a revision was filed, which was also dismissed by the High Court. Thuts, the judgment and decree in O.S.No.S9 of 2OO2 became finzri and binding on the parties and thereafter, the suit schedule property continued to be in possession of Alladin Charities an<l Zakat Wakf. I i, ) 7 ETD,J CCCA No.94_2019

10. The case of the claim petitioner is that the wakf rribunal has already settled the issue that M.c.H.No.2l-l-Logglg, 2r-r- Lo98l10 and 2l-r-Lo98l1l are being tralsely created and that it is shown to be a wakf property. The claim of the plaintiff in this suit that he had purchased the suit schedule land bearing No.21-l- 1o98l9llol11 admeasuring 375 sq.yards from the defendanr is not sustainable. His case is that the schedule mentioned in o.S.No.59 of 2oo2 and in the present suit is one and the same and once it was held as wakf property, the plaintiff is not entitled to any claim and that just under the colour of ex parte decree, the plaintiff u'ants to grab the property. He further averred that the defendant or his father have no right or title over the suit schedule property and thus, they cannot convey any better title in favour of the plaintiff. He further averred that earlier RC No.15g of 2oo2 {iled by the plaintiff herein was dismissed as he failed to establish the jural relationship of landlord and the tenant and that the plaintiff is using the very same suit agreement in the present suit for specific performance and by virtue of the said ex parte decree, he is further trying to evict the tenants of Alladin charities and zakat wakf and takeover the possession of the same. It is averred that having lost on all fronts, Hamid Ali and others have set up another round of litigation by planting proxies in the shape of plaintiff and defendant in o.s.No.2204 of 2ol2 and had obtained \ \ \ 8 ETD,J CCCA No.94-2019 the present decree by suppressing the real facts and by playing fraud on the Court. He claims that the suit schedule property is notified as Wakf property belonging to the claim petitioner and thus, he seeks for dismissal of E.P.No.O4 of 016.

11. The respondent/plaintiff/decree holder in E.A.No.94 in E.P.No.O4 of 2016 has filed counter reiterating his averments in the plaint. He further contended that the claim petitioner claiming that the EP schedule property is part and parcel of wakf property, failed to mention the boundaries and schedule in the claim petition and that the claim petition itself is not maintainable, as there is no cause of action and since the EP is not liled for any erttachment, the claim petition under Order 21 Rule 58 is not ma.intainable. The claim petitioncr has not filed any authorization to show that he is the managing trustee of Alladin Charities and Zakat Wakf and that he is authorized to file the present claim petition. He contended that his vendor i.e. late Ali Ahmed was the absolute owner and possessor of property admeasuring 375 Sq.l,zrrds having purchased the same under a registered sale deed vide document No.69/ 1353 Fasli and in turn, he let out the property under a registered leasc deed. The said property forms a part of TS LR No.5/ 1 and whereas the property claimed by the claim petitioner forms part of 'l'S LR No.S. It is contended by the respondent that .J 9 ETD,i CCCA No.94_2019 the claim petitioner failed to file tt.e gazette notification No.6A, dated 09-o2.1989 page No.93 sr.No.2373. It is further contended by the respondent that neither himself nor his vendors are parties to wP No.9434 of 20oo and wrir appear Nos.9g3 and 11o1 of 2oor and SLP No.236r-2362 of 2oo2 dated rs.o2.2oo2 and, further, he is not a party to o.S.No.s9 of 2oo2 and therefore, the said proceedings are not at all binding on him. He further averred that respondent No.l is claiming property based on a title deed vide document No.69 of 1353 fasli, whereas the claim petitioner claims that Mr.M-A.Hameed and others obtained the property vide gift deed in 1998 and that the suit schedule propertSr was purchased by the father of the respondent No.2 under a registered sale deed around 75 years ago and the suit schedule property in o.S.No.S9 of 2oo2 is no way related to the present suit. It is his case that his vendor had an absolute title over the suit schedule property and thus, has entered into an agreement of sale but since he lailed to execute the same, he got it executed through the court, in pursuance of decree obtained by him in o.s.No.22o4 of 2or2. He further averred that the claim petitioner has filed a petition to implead himserf in the eviction proceedings filed by the respondent No.l before the Rent Controller and the same was dismissed, againpt which cRp rvas filed and the same was also dismissed. subselrently, the claim petitioner has filed EA No.1g of 2009 in I \ 10 ETD,J CCCA No.94 2019 i-\ EP No. L4 ol' 2008 in RC No.182 of 2OO2, which is pending. He further submitted that the eviction petition filed by him was dismissed on the ground that the Rent Controller has no jurisdiction under Section 10(i) of A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 and that the said orders are no way concerned to the present case. He contended that the claim petitioner has no locus standi to obstruct the deliverl'of possession claimed in EP No.04 of 20 16 and that he is acting aL the behest of tenants who are illegally occupying the EP schedule property. It is contended that the boundaries and extent of property has not been mentioned in the claim petition to locate the same to be the EP schedule property. Therefore, he submits that EP schedule propertSr is zt private property purchased under a sale deed with definite boundaries and extent. He therefore, prayed to dismiss the claim petition.

12. Based on the above averments, the trial Court. has framed the following points for consideration "L Whether the claim petitioner is entitled for Il. P. Schedule Property? 2 Whether the claim petition liled by the petitioner trnder Order 21 Rule 58 is maintainable?" / i / .j 11 ETD,J CCCA No.94_2019

13. The claim petitioner hirnself got examined as pwr and Exs.pl to p6 were marked. On behalf of the respondent, no evidence was adduced. 14' Based on the evidence on record, the triar court has dismissed the claim petition. Aggrieved by the said order and decree, the present appeal is filed by the claim petitioner.

15. Heard the submissions of Sri y.srinivas Murthy, rearned senior counsel representing Sri p.venkaiah Naidu, learned counsel for the appellant and Sri Raja Sripathi Rao, rearned senior Counsel representing Sri G.Aditya Goud, learned counsel for respondent No.1.

16. The learned appellant counsel has argued that the trial court ought not to have dismissed the claim petition in spite of the evidence produced by him before the trial court. He argued that the trial court failed to consider the documents produced by him and that the premises bearing Municipal No.21_l_109g /9 to 11 do not exist and that they were created by one Hamid Ali who questioned the order of eviction dated ls.11.2000 passed by the chief Executive officer, wakf Board before the civil court by firing o.s.No.59 of 2oo2, which was dismissed on 0s. Lo.2oo4 holding that the subject matter of the said suit was part of wakf property l \\ 12 ETD,J CCCA No.94_2or9 namely Met:ca Madina Alladin Trust, which was a parent trust of the petitioner wakf. The trial court failed to see that the respondents in the claim petition i.e. the plaintiff and the defendant in the suit have no right, title or interest in the schedule property and that it was a collusive decree obtained by the parties. FIe further argued that the premises bearing No.2l -r-toggll to g are notified in the gazette notification dated 2o.lL2oo3 marked under Ex.P6 and that the suit claim with regard to the municipal Nos.21-l-1098/9 to 11 are created fraudulentr-v as held in o.S.No.59 ol' 2oo2. He further argued that the plaintiff was not tested by cross examination as the defendant has n.t contested the suit, out of collusion. He further argued that the agreement of sale itself is a created document and thus, the trial court ought not to have decreed the suit and when the claim petitioner has put forth the actual thcts before the trial court that the suit schedule property belongs to zakat]n wakf, it ought to have allo,,ved his claim petition by dismissing the Ep No.4 of 2016. He therefore, prayed to set aside the orders passed by the trial court in EA No.94 of 2016. 17 ' The learned respondent counser, on the other hand, has argued that the propergr is a private property having purchased by the vendor vide a registered document and that the praintiff has entered into an agreement of sale with his vendor and when he .J 13 ctvrJ CCCA No.94 2019 died without executing the sale deed, he frled a suit, then through the process of court, a sale deed has been executed in his favour. He has filed all the documents in support of his case, which were examined by the trial court while passing the decree. In pursuance to the decree, he got the sale deed executed through the process of court and subsequently, he liled this Ep No.4 of 2016 for delivery of possession. Therefore, the claim petitioner cannot allege any fraud against him. His contention is that the claim petitioner himself has no right or authorify to lile the present claim petition, as he has not filed any authorization given by the wakf. He further argued that the claim petitioner has not mentioned the boundaries of the suit schedule property and has failed to file the gazette notification. He further argued that he is not a party to o.S.No.59 of 2oo2, wP No.9434 of 2000 and writ appear Nos.9g3 and 11o1 of.2oo1 and SLP No.236t-2362 of 2oo2. He further argued that the suit schedule property is different from that under o.s.No.S9 of 2oo2 and that without any right or interest the claim petitioner was not supposed to interfere in the execution proceedings. In the absence of any document in his favour, the claim petitioner cannot succeed in putting forth his claim and that therefore, the trial court has rightly dismissed the claim petition. The claim petitioner who was examined as pwl has admitted all these facts in his cross examination, that he is not authorized and ) ) t4 ETD,] CCCA No.94-2019 further that Atladin Charities and Zakat Wakf itself is being managed by the wakf Board and that he has not intimated the wakf Board that he filed the claim petition in this suit. He therefore, submitted that the claim petitioner himself has no locus to lile this claim petition and further that the petition under Order 21 Rule 58 of CPC is not at all maintainable, since the present E.P. is filed for recovery of possession and not for attachment. Thus, he prayed to dismiss the claim petition.

18. Based on the above rival submissions, this Court frames the following poinl-s for consideration 1) 2l Whether the EP schedule property belongs to the claim petitioner? If so, whether EP No.O4 of 2016 is liable to be dismissed? Whether the claim petition filed by the petitioner under Order 21 Rule 58 of CPC is maintair-rable? 3) Whether the order and decree of trial court is sustainable in law and under the facts? 4l To what relieP

19. POINT NO.l: a) The case of the claim petitioner is that the petition schedule property belongs to Alladin Charities and Zakat Wakf and that the respondent No.2 has no title or interest to convey the same in favour of respondent No.1 and that they played fraud on the Court I {r} 15 ETD,J CCCA No.94 2019 and obtained a collusive decree and therefore, Ep No.o4 of 2016 filed for delivery of possession needs to be dismissed. b) In support of his claim, he got himself examined as pwl and relied upon Exs.Pl to p6. Ex.p2 is the copy of the orders in writ Petition No.9434 of 2o00, which was filed against the proceedings of wakf Board in File No.61 /J2/sntc/Hyd,/98, dated 15.0s.20o0, setting aside the orders of wakf Board. Then, Ex.pl is the copy of judgment in w.A.No.983 of 2ool and 1109 of 2ool, dated 18.10.2001 which shows that the writ appeal filed against the orders passed in w.P. was allowed confirming the orders of wakf board and further directed the parties to approach wakf Tribunal in case if they are aggrieved. Ex.ps is the certified copy of the orders in RC No.158 of 2oo2 showing that they were filed by the plaintiff in the present suit which was dismissed. E)8.p4 is the certified copy of orders in RC No.17r of 2oo2 which is also liled by the decree holder herein and the same was dismissed. Ex.ps is the judgment in o.s.No.59 of 2oo2 wherein the suit schedule properties in the said suit were held to be the wakf property. Ex.P6 is the A.P.Gazette No.47, dated 20.1L 2003. c) PWl during the course of his cross examination has admitted that he has not filed any document to show that he is the managing trustee of the claim petitioner and that he has not filed \ t6 ETD,J CCCA No.94_2019 i any document to show that he is authorized by the trust to file the present claim. He has also not filed the trust deed. d) The contention of the respondent's counsel in this regard is that the trust deed itself is not liled to show that he is a managing lrustee and further, he has not filed any authorization to show that he is authorized to file the present claim, so he has no locus to lile the claim petition. c) The contention of the claim petitioner is that he has Iiled Ex.P6 the gazette notification, wherein the propert.ies of wakf are notified and thus that itself authenticates him to flle the present claim petit.ion. 0 A perusal of Ex.P6, the gazette reveals that the Municipal Nos.2l-1-1098/1 to 8, are included as wakf properties and the name of wakif, father's name residence and occupation is disclosed as Noor Mohd. Alladin, Iqbal Alladin and Habeeb Alladin. Thus, the said properties are mentioned as wakf properties in the gazette, therefore, one of the trustees would be authorized to do any act on behall of the Trust. However, it is borne out by record that the claim petitioner has not filed any trust deed or any authorization issued by the trust. It is pertinent to note that the suit schedule property be,ars municipal Nos.21-1-109g /9 t6 1l but the claim t/ :.::::..:,:;ffI t4i L7 ETD,J CCCA No.94 2019 petitioner contends that the property belongs to their wakf. It is elicited from PW1/the claim petitioner that Alladin charities and zakat Trust is taken over by the wakf board and it is under the direct control of wakf Board. Further, it is elicited from him that he has not intimated the wakf Board about filing the present petition. Though Pwl stated that their trustees unanimously passed a resolution authorizing him to lile the claim petition he has not filed the said resolution and further has admitted that there is no specific resolution to file the claim petition. once it is under the direct control of wakf Board, the managing trustees would not have any locus to file the claim petition. g) Though the claim petitioner contends that he is claiming the property admeasuring 3151 sq.yards basing upon a Farman and an authenticated copy of plan to an extent of 3l5l sq.yards annexed to Farman, the said Farman and the plan are also not filed in the court. PW1 has admitted that he has not specilically mentioned about the boundaries of 375 sq.yards claimed by him in the claim petition but he is still disputing the Ep schedule boundaries. It is elicited from pwl that in o.s.No.S9 of 2oo2 Hamid Ali and others did not refer to any old municipal number of premises No.21-l-1o98/9 to 1l and that the ctecree hclder in the pre\ent suit is referring to the old municipal numbers as 634 of Ep II 18 ETD,J CCCA No.94_2019 schedule property. He stated that the said municipal number is fabricated but he failed to lile any document in support of the same. On the other hand, he has admitted that as on date the municipal Nos.21-1-1098/9 to 11 still exists in the municipal record. Admittedly as per Ex.P6 there is no municipal Nos.21-1- lOgSlg to l1 in the list of wakf properties. Though PWI contends that he has lodged a complaint in respect of municipal Nos. 21-1- lO98l9 to l1 against the said trust before the MCH, the said copy is also not filecl. The record discloses that the decree holder or his vendors arc not parties to the proceedings in Exs.Pl, P2 and P5. tt is further elicitcd from PW1 that the municipal Nos.2i-1-1098 l9 to 1l is not allocated to Alladin Charities and Zakat Wakf and the same was claimed by Hamid Ali and others in O.S.No.59 of 2OO2. This admission nullifies his case. h) It is the contention of the claim petitioner that the eviction proceedings initiated by the respondent herein in R.C.Nos.158 of 2OO2 and 1'71 of 2OO2 were dismissed by the trial Court as the respondents are not the owners of the property. But the claim petitioner as PW t has admitted that the eviction proceedings were dismissed for r,vant of jurisdiction. Exs.P3 and P4 further reveal that the saicl fact. { / rFt L9 ETD,J CCCA No.94 2019 i) PW1 has not filed any proof to show that EP schedule property is part of the trust property except for liling Ex.P6 and the municipal Nos.21-1-1O98 /9 to 11 are not covered in Ex.P6. In Ex.P6 there are seven mulgies without municipal numbers. PWI stated that seven mulgies and new construction shopping complex were included under Wakf properties but he has not filed any Wakf survey commission report in support of his statement. It is borne out by record that the decree holder and his vendor were claiming ownership under document No.69 of 1353 fasli, even during the eviction proceedings and other proceedings initiated by the decree holder and it is the same property over which delivery of possession is claimed in the present execution petition. The said sale deed document No.69 of 1353 fasli is not challenged by the claim petitioner. This particular document conveys title in favour of the vendor of the decree holder herein and further the agreement o[ sale dated 23.OL.2OO1 between the decree holder and his vendor is also not challenged. The clairn petitioner could not put forth any evidence to hold that the property belongs to the claim petitioner. j) Both the learned counsel relied upon a decision of Andhra Pradesh High Court in Dr.M.Pqraathi t. Penumatcha Satganaragdna Rajul, wherein it was held that "in a giuen case, if ' zor: layALD 608 (DB) 20 ETD,J CCCA No.94_2019 the plaintiff is able to establish a semblance of title, though not so perfect a orre, he can succeed if what is proued by him is relatiuely superior to that of the defendant. Howeuer, the proof of the title, euen if not to the leuel of perfection, must be the one uthich is acceptablet in law. If this fest is applied to the facts of appellants case, it ernerges that the appellants failed to proue their title, since no witnetss, except one of them u)as examined and seueral discreparu:ies pointed out and admitted by tLe sole witness, remain unexplairuzd". k) It is the contention of the appellant counsel that the plaintiff/decrec holder in this suit has no semblance of title to hold that it is rclatively superior to that'of defendant and thus, he is not entitled to recovery of possession and thus, his execution petition has to be dismissed. While the contention of the respondent counsel is that the claim petitioner claims that he is the owner of the property but has not filed any documents to prove his title. 1) Applying the above decision to the facts of the present case, the resporrdent/decree holder has a sale deed in his favour executed through process of Court in pursuance to the decree obtained by him, while the claim petitioner got examined himself as a witness, he could not produce any document to prove that the suit pchedulc property belongs to Alladin charities and zakat 't 2L ETD,J CCCA No.94 2019 wakf. Thus, in the absence of any proof of title in his favour, the claim petitioner cannot succeed in claiming the suit schedule property. Hence, he cannot seek dismissal of Ep No.4 of 2oL6. Point No.1 is answered accordingly.

20. POINT NO.2: a) The contention of the learned counsel for respondent No-1/decree holder is that the craim petition is not maintainable under order 21 Rule 58 of cpc as the present Ep is filed seeking delivery of possession and that the question involved would fall under order 21 Rule 9z of cpc. In support of his contention, he relied upon a decision of the Hon'ble supreme court in Jini Dhanrajgir u. shibu Matheu?, wherein it was held that ,,the prouisions contained in Ru/es 97 to 106 order 21 CpC und.er the sub-heading "resistance to deliuery o/posses sion to d.ecree-hold.er or purchaser" haue been held by this court to be a complete cod.e in itself in Brahmd"eo chaud.hary u. Rishikesh prasad" Jabutal [(1gg7) 3 scc 6941 as well as in a decision of recent origin in Asgar u. Mohan varma ft202ai 16 scc 2301. In the latter d.ecision, it has been noted. that Rules 97 to 103 order 21 prouide the sole remedg to both the parties to a suit as uell as to a stranger to the d.ecree put to executioru". He further relied upon a decision of the Hon,ble '1zoz:;!o Supreme Court Cases 76 \I 22 ETD,J CCCA No.94_2019 Supreme Court in Bangalore Development Authority v. N.Nanjappa3, wherein it was held that all questions including question relating to the igh| title, interest in suit property arising between parties to a proceeding on an application under O 21 R 97 or R 99 CPC, and releuant to adjudication of said application, must be determined by Court dealing with application i.e. exeanting court and. not by ct separate suit. b) It is pertinent to refer to Order 21 Rule 58 and 97 of CPC in this regard: "58. Adjudication of claims to or objections to attachment of property.-( 1) Where ein,v- claim is preferred to, or any objection is made to the atta,:hmcnt ol, any propert-y attached in execution of a clecree on the ground t.hat such propert_v is not liable to such attachment, the Court shall procee<l to adjudicate upon the claim or objection in accordance with the provistlns herein containcd : Provided that no such, claim or objection shall be entertained- (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) wherr: the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising betrveen the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall bc determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordancc rvith such determination,- (a) atlorv the claim or objection and release the property lrom attachment either u'holl1, or to such cxtent as it thinks fit; or (b) disalkrw thc claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any pcrson; or (d) pass s;uch ordcr as in the circumstances of the case it deems fit. (4) Whcrr: any claim or objection has been adjudicated upon under this rule, orrl:r made thereon shall havc the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Whert: a claim or an objection is preferred and the Court, under the proviso to sllb-.r1. (l), refuses to cntertain it, the party against whom such order is made may institute a suit to establish the right which he claims to 3 (20{21 1,8 Supreme Court Cases 156 lFtt 23 ETD,J CCCA No.94 2019 the property in dispute; but, subject to the result of such-suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.

97. Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for the possession of immovable propert5r or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (l), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. " c) Thus, it is clear from the above provisions that if any claim is made to attachment of any property, attached in execution of a decree on the ground that such property is not liable to attachment, then, the court can adjudicate the same under order 2l Rule 58. While, when there is a resistance to delivery of possession to a decree holder or the purchaser of any such property sold in execution of a decree, then the application shall lie under Order 21 Rule 97 of CPC. d) In the present case, the Execution Petition is filed seeking delivery of possession as the sale deed is already executed and the claim petitioner is resisting the delivery of possession. Thus, the application ought to have been made under order 21 Rule 9z of CPC. e) The respondent's counsel further relied upon a decision of Andhra Pradesh High court in Rq.ho;tunnisa a. Md.saber Ati ETD,J CCCA No.94 2019 Khana, rvherein it was herd that ,,the petitioner wrongry inuoked. both Rule 58 (pre-possessron stage) and. Rure 97 (remouar of resistance in the course of exeantion). since she admitted. not betng in posses sion, her petition under Rure 5g was inappricabre.,, 0 In the light of the above cited decision and also in view of the statutory position under order 2 r Rule sg of cpc, the present claim petition is not maintainabre for the relief claimed by the petitioner. Point No.2 is answered accordingly.

21. POINT NO.3: a) It is contended by the claim petitioner that wrong quoting of a legal provision does not disentitle him from claiming any rerief. b) It is held in this regard that the case has been discussed on its merits under point No.1 ancr reasoned finding is given under point No' 1 that the claim petitioner is not entitled to hold that the petition schedure properties berong to the claim petitioner and further he cannot seek dismissar of Ep No.04 of 2016. Therefore on merits of the case also, the craim petition deserves to be dismissed. c) In view of the reasoned findings arrived at point Nos.l and.2 it is held that the order passed by the trial courl. are found to be 4 2008 SCC Online Ap 1026 't 25 ETD,J CCCA No.94 2019 well reasoned and hence, they are held to be sustainable in law and under the facts and circumstances of the case. Point No.3 is answered accordingly.

22. POINT NO.4: ln the result, the appeal is dismissed upholding the order, dated 29.01.2019 passed in E.A.No.94 of 2016 in E.P.No.4 of 2016 in O.S.No.2204 of 2AL2 bv the learned VII Senior Civil Judge, City Civil Court at Hyderabad. No costs. Miscellaneous Applications, if any, pending in this appeal shall stand closed. SD/. A.V.S.PRASAD DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER One fair Copy to the Hon'ble Smt. JUSTICE TIRUMALA DEVI EADA To,

1. The Vll Senior Civil Judge, City Civil Court, Hyderabad. (with records if any) 2. One CC to SRl. P VENKAIAH NAIDU Advocate [OPUC] 3. One CC to SRl. G. ADITYA GOUD Advocate IOPUC] 4. Two CD Copies

5. 11 LR Copies

6. The Under Secretary, Union of lndia Ministry of law, Justice and Company Affairs, New Delhi

7. The Secretary Telangana Advocates Association, Library, High Court Buildings Hyderabad +y HIGH COURT C DATED :11tOT t2O2S rJ .:.) t * S 01 [[i ts6 * ,:1'' ) JUDGMENT CCCA.No.94 of 201g I I I J , i ; DISMISSING THE APPEAL 1f 1\ 11 I t I I i i* t t { , ; 'l i I I u iI l: i. l. I i I I I ! i I i ) ! IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTTCE TTRUMALA DEVI Ees* - COURT APPEAL NO: ctTY ctvrl 94 0F 2019 Between: ALLADIN cHARlrlES AND ZAKAT WAKF, No.72, Alradin Buirding, s.D. Road, Secunderabad. Represented by its Managing Trustee tMr.- Habib Alladin, S/o Late Dost [t/ohammed Alladin, Aged 74 years, Occ- Business, Rio Road No.12, Banjara Hills, Hyderabad. APPELLANT/CLAI M PETITION ER AND

1. MOHAMMED SALEEM @ MOHAMIUED.WAJ|D ALt, s/o Late Mohd. Ari, aged 52years, Occ- Business, R/o 19-2-241121A, Ali Bagh, Kalapathar. Misriganj, Hyderabad. RESPON DENT No. 1 /JDR/PLAINTI FF 2. Hasan Ahmed,, s/o Late Ali Ahmed, aged about 45 years, occ- Business, R/o H. No.20-5 -250, Qazipura, Hyderabad. RESPON DENT No.2/JDR/DEFENDANT Appeal filed under section 96 of c.P.c., aggrieved by the Judgment and decree dated 29.1.2019 passed in E.A. No.94 of 2016 in E.P. No.4 of 2016 in O.S. No. 2204 of 2012 on the file of the court of Vll Senior Civil Judge, City Civil Court, Hyderabad, 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 Petition and upon hearing the arguments of Sri Y. Srinivas Murthy, Sr. Counsel for the Appellant and of Sri Raja Sripathi Rao, Sr. Counsel for the Respondent No.1. . '1 ' . {€. r+.* This court doth order and decree as follows:

1. That this Court while dismissing the appeal, confirmed all the averments of the lower court.

2. That there shall be no order as costs. SD/. A.V.S.PRASAD TY REGISTRAR CTION OFFICER //TRUE COPY// To,

1. The Vll Senior Civil Judge, City Civil Court, Hyderabad 2. Two CD Copies. PSL 4y HIGH COURT DATED i1110712025 DECREE CCCA.No.94 of 2019 DISMISSING THE APPEAL $ Vb