The High Court · 2025

...AppellanUPlaintiff AND Baggali Shyam Sunder, Sio Ashaiah, aged about. 39 yrs, Occ: Coolie R/o 1 1-01-1567, Chandrashekhar Colony, Nizamabad. ...Respondents/Defendants lA NO: 1 OF 2021 Petition under Order XXXIX Rule 1& 2 R/w Sectron 151 of CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to issue ad-interim injunction restraining the Respondent/Defendant from making any type of construction encroaching into the suit schedule property. SCHEDULE OF PROPERTY: The tin Shed roofed house with open place bearing No.- 1 1-1-1 565 extent 1 00 Sq.yds lies in tin shed roofed plinth area 250 Sq.fts lie is ward No. 11 Block No.1 1 situated at Chandrashekar Colony, Nizamabad Bounded as Follows.- EAST.- House of Shyam. WEST.- House of Narsavva. NORTH.- House of Venkamma. SOUTH.- 20"ft Wide Road Counsel for the Appellants :Sri T V Kalyan Singh Counsel for the Respondent : Sri N Srushman Reddy The Court delivered the following: Judgment THE HONOURABLE SRIJUSTICE N. TUKARAMJI SECOND APPEAL No.90 OF 2021 JDUGEMENT:

1. Heard Sri T.V.Kalyan Singh, learned counsel for the appellant and Sri N. Srushman Reddy, learned counsel for the respondent.

2. This appeal is directed against the Judgment and Decree dated 19.02.2021 in A.S No.31 of 2018 passed by the Vlll Additional District Judge at Nizamabad, whereby, the Judgment dated 28.1 1.2017 in O S.No.192 of 2009 passed by the Senior Civil Judge, Nizamabad has been confirmed.

3. The appellanVplaintiff filed suit vide O.S No.192 of 2009 seeking declaration of title and perpetual injunction against the defendant in regard to tin roofed shed with open place bearing No.11-1-1565 in an extent of 100 sq.yds., situated at Ward No.1'l , Block No.1, Chandrashekar Colony, Nizamabad (hereinafter 'the subject property'). After due trial, the trial Court dismissed the suit, whereupon, the plaintiff preferred an appeal vide A.S.No.31 of

2018. The Appellate Court on reassessment confirmed the conclusions drawn by the trial Court. Thus, this Second Appeal. l

4. Learned counsel for the appellanVplaintiff would submit that originally the subject property was purchased by the husband of plaintiff from its title holder in '1993 under un-registered Agreement of sale dated 11.11.19931Ex.A14. Thereafter, he executed a Gift Settlement Deed vide document No.6937 of 2008' dated 28.1 1.2OOBtEx.A2 in her favour and also executed registered Rectification Deed vide document No.4682 of 2009, dated 04.08.2009/Ex.A3. Basing on these documents, plaintiff is in possession and enjoyment of the subject property. The defendant, having no manner of right or interest over the subject property' interfering with the possession of plaintiff. Thus, filed the suit He further submits that the Trial Court in its judgment while deciding the issue observed that as per the defendant, the land of 50 sq.yds. was purchased from the husband of plaintiff, which is an admission as to the title of the plaintiff's husband, as such, the trial Court ought to have granted declaration decree' Both the Trial and Appellate Courts without proper appreciation of the admissions in the pleadings and documents erroneously concluded/dismissed the suit. Hence, prayed for interference.

5. Learned counsel for the respondent pleaded that the Trial and Appellate Courts properly considered the evidence and . properly held that the plaintiffs husband had no title to convey \ a under Gift Deed, therefore, dismissal of the suit is perfecfly justified' Additionally pleaded that in view of the un-registered Agreement of sale/Ex.A14, defendant entered possession over the part of the schedule property and paying tax, which is evident under Tax receipts/Ex.814. Thus, no tenable ground is made out in Second Appeal.

6. I have perused the materials on record.

7. ln the rivar contentions, the aspect arises for determination is whether the trial and Appellate Courts had properly contemplated the facts and law in determining the suit claim?

8. The admitted case of the plaintiff is that her husband purchased the subject property under an unregistered Agreement of sale dated 1.1 .11.1993tEx.A14, basing on which, he executed registered Gift Setilement Deed/Ex.A2, later a Rectification Deed/Ex.A4 in her favour.

9. lt is setfled legal position that the burden always lies on the plaintiff to estabrish the suit craim and rapse or fairure on the part of the defendant in proving his case is of no avail. Thus, the plaintiff,s case has to be examined on its own strength. The foundation of plaintiff's tifle is resting on un-registered Agreement of sale , ( i j I .l dated 'l 1.11.'1993/Ex.A14. lt is statutory provision that title cannot be conveyed under Agreement of sale or any unstamped and unregistered conveyance deed. Therefore, in other words, transfer of title shall qualify the essentials of stamp duty and registration as per law, ln the present case, the plaintiff's predecessor in interest had not perfected his title but executed registered Gift Settlement Deed/Ex.A2 and Rectification Deed/Ex.A3 in favour of the plaintiff. There cannot be other view that, no one can transfer a better title what he has. This situation will not get better even if defendant admits title of plaintiff's husband. Further, this position will equally effects the defendant claimed title/interest over the property.

10. For the foresaid reasons, this Court is of the considered view that the Trial and Appellate Courts were proper in considering the pleadings and materials on record in holding that the plaintiff failed to establish the suit claim. ln the absence of any impropriety or illegality, the impugned Judgment deserves affirmation and in effect, this Second Appeal is liable to be and is accordingly dismissed. No order as to costs. As a seq uel, miscellaneous petiti ons if any, stands closed SAI- U. CUNORA SEKHAR DEPUTY REGIST //TRUE COPY// RAO RAR SECTION OF FICER The Vlll Additional District Judge' Nizamabad The Senior Civil Judge, Nizamabad o""l-C i" sir i V Kivan Sinsh Advocate [oPUc]^' o;; CC to sri N Srushman R6aov' Advocate toPUCl Two CD CoPies | ! rt,-'ia!#+E !- \ \ To,

1. 2 3 w *. HIGH COURT DATED:0210112025 JUDGMENT SA.No.90 of 2021 t he S 14,/ L4 o o 10 rEE 2025 * Dt. :iP^TCt\ gg o .h .) j-vd 9.7O ir It. 97".!i" t (,

4. ) -1 ,.J '-,/ DISMISSING THE SECOND APPEAL WITHOUT COSTS