The High Court · 2025

Order

This revision petition is hled by the petitioner against the order dated 06.08 2021 in E.A No 56 of 2O13 in E P No 24 of 2013 in R.C.No.214 of 2013 passed by the II Additional Rent Controller, City Small Causes Court, Hyderabad'

2. E.A.No.56 of 2Ol3 in E.P.No.24 of 2O13 in R C No 214 of 2Ol3 is filed by the respondent No l herein who is the claim p"titio.r.., under Section 23 (71 of Telangana State Buildings (Lease, Rent and Eviction) Control, Act, 1960 (for short'Act' 196O') and Rules 1961 r/rv. 151 of Code of Civil Procedure' claiming that Mirza Mahmood Ali Baig, the vendor of Respondent No. 1, is the owner of a house on part r>f plot No' 205, survey No.15, 2i, and. 22, bearing Municipal No 19-4- 281 I G /2O5, measuring 55 square yards, situatecl at Mustafa Nagar, Ansari Road, Hyderabad. Mirza Mahmood A1i Baig allegedly offered to sell the property to the claim petitioner for Rs.6,75,O00/-. The claim petitioner paid Rs 3,50,000/- as advance money, which was acknowledged by Mirza Mahmood Ali Baig. As per their agreement, dated O2.O2 2}ll, Mirza 2 Mahmood Ali Baig was supposed to execute a proper saie deed in favor of the claim petitioner or his nominees. However, Mirza Mahmood Ali Baig postponcd execution of sale deed for over two years, despite repeated reminders and personal representations. The claim petitioner issued a legal notice on LO.O7.2Ol3, calling upon Mirza Mahmood Ali Baig to execute the sale deed within 10 days, but received a vague reply notice on 22.O7.2013.

3. It is further staLed that the claim petitioner suspected that Mirza Mahmood Ali Baig was trying to transfer the property to a third party. He obtained a certihed copy of a registered Agreement of Sale-cum-General Power of Attorney, which revealed that Mirza Mahmood Ali Baig had cxecuted the agreement in favor of Respondent No.1, Mohd. Zaheer Ahmed, without the claim petitioner's consent. Hence, the claim petitioner filed O.S.No. 1375 of 2013 before the Hon'ble VII- Senior Civii Judge, City Civil Court, Hyderabad, seeking specihc performance of contract and cancellation of the registered Agreement of Sale-cum-General Power of Attorney. The claim petitioner also alleged that respondent No.1 obtained an ex parte order by misrepresenting facts to the 3 G Court. The claim petitioner prayed the Court to allow his claim petition until the disposal of E.P.No.24 of 2013.

4. The respondenl No.1/decree holder hlcd counter admitting that Mirza Mahmood Ali Baig was the original owner, whereas the subject property was sold to him on

02.O1.2013 through registered agreement of sale-cum-General Power of Attorney after receiving the entire sale consideration and denied that Mirza Mahmood A1i Baig has agree<l to sell the property to claim petitioner and executed an agreerment of sale on O2.O2.2OI1. The respondent No. 1 submitted that the claim petitioner's agreement of sale, daLed 02.O2.2O11, is false and fabricated. The respondent No.l's vendor denied the agrecment through a reply notice on 22.07 .2013, and refused to deliver possession to the claim petitioner.

5. At the time of purchasing the property, the respondent No. 1 stated that there were two tenan[s, Shaik Fareeduddin and Haji, who occupied the premises. The re spondent No. 1 claimed to have obtained attornment of tenancy from both tenants through his counsel on 08.05.2013, and that his vendor also got issued attornment of tenancy lctter to both the tenants on 28.O3.2013. The respondent No.1 alleged that the f l I I I i I 4 claim petitioner fabricated the agreement of sale and falsely claimed that it was executed by his vendor. The claim petitioner had also hled a suit for specihc performance and cancellation of the original document, a registered Agreement of Sale cum General Power of Attorney, against himself and his vendor.

6. The respondent No.1 denied colluding with the judgment debtor and stated that the judgment debtor was not in possession of properly since O2.O2.20 1 1 . The respondent No.1 claimed that when the bailiff attempted to execute the warrant in E.P.No.24 of 2Oi3, the judgment debtor's wife resisted with the support of unsocial elcments. Further the respondent No. 1 pointed out inconsistencies in the claim petitioner's statements, including his claim of residing in the suit schedule property despite stating his address as a different location. The respondent No.1 alleged that the claim petitioner created documents and filed the present claim petition with false statements. [t is also stated that the claim petitioner was not in possession of the property and was not the owner. The respondent No. 1 prayed for the claim petition to be dismissed. 5 ,

7. After going through the said contentions, the trial Court allowed the claim petition. In the said application, the claim petitioner examined himsetf as Pw. I and his son lvas examined as Pw.2 and got marked Exs.P. 1 to P T On behalf of respondent No.l Rw. 1 was examined and Ex R l was marked. On bchalf of the Court, Cw.l was examined and got marked Exs.C.1 and C.2. The trial Court came to conclusion that as it is rent control Court, it cannot go into the title of property basing on the documents and the evidence prima facie shows that the claim petitioner is having docume nts executed by the original owner and also filed the suit' Aggricved by the same, the present civil revision petition is filed.

8. Heard Sri R.A.Achuthanand, learned counsel for the petitioner and Sri Mohd. Muza-ffar, iearned counsel for respondent No.1. g. The contention of learned counsel for the petitioner herein is that the trial Court failed to exercise its jurisdiction as required. According to Rule 23(7\ ot the Telangana Buildings, Rent, and Eviction Control Rules, 1961, rvhen an application is filed, the Court should consider objectitlns lrom / I I l t l I I i I I I I 6 r) any person other than the one against whom the eviction order was passed. The Court may conduct a summary inquiry to determine the validity of objections. He further contended that the Court below failed to exercise its powers under Rule 23(71 by not conducting a summary inquiry. Under Rule 25 of the Act, 196O, the Rent Controller should be satished that the resistance or obstruction caused by any pcrson other than the one against whom the eviction order was passed is without sufficrent cause. The pendency of civil proceedings in O.S.No. 1375 of 2013, filcd by respondent No. 1, does not prevent the Court from adjudicating the pending dispute. The court below farled to consider that the alleged agreement of sale dated O2.O2.2O|1, is not propcrly stamped. Under Rule 47-A of the Stamp Act, an agreement of sale with possession requires payment of duty as if it were a conveyance and should be registered under Section 17(1)(a) of the Registration Act. Since it is neither properly stamped nor registered, the agreement is inadmissible in evidence. He further contended that as per Section 17 (21 (v) of the Amendment Act, agreement of sale is a compulsorily registerable document. The Court cannot rely upon the said document under Section 54-A of the Transfer of Property Act. The trial Court 7 ''i committed irregularity by not considering the documentary evidence on record and there is no question of title sofar, as the case bctween the petitioner and decree holder is concerned, it is the case of respondent No.l that petitioner has entered into zrn agreement of sale under Ex.P.7 in respect of the said property by delivering possession and said agreement of salc does not confer any right, title or interest in the property.

10. Learncd counsel fuither contended that the provision of Rule 23 (7) of the Act, 196O deals with the proviso that the obstruction should be without any just cause. The Court has to decide u,hether the third parQr is in possession of the property by holding a summary enquiry in the matter, whereas, in the present case the Court has not exerr:ised the powers propcrly trnd the judgment cited deals with declaration of title and there is no dispute, sofar as the title in respect of the property is conccrned. In support of his contentions, learned counsel relied on the judgments in Ghoushia Bee Vs Rajan Bee and another 1 , P.C.Mathew Vs Annamma Mathew 2, Sushil Kumar Mandanlal Ganediwal Vs Vijay | 1994 AL't I 97 , 2013 SCC onhne KER 149O2 -I 8 Kumar Mandanlal Ganediwal and others 3 and K.Shiva Prasad Vs C.Sree Ramulu and anothera

11. Learned counsel further contended that thc trial Court failed to consider the evidence of Pw.2 who is said to be the alteged witness. There are discrepancies in the evidence of Pws.l and 2 which was ignored by the trial Court, whereas Pw.2 admitted that he has neither seen the title deed of the schedule property nor asked from the petitioner. In fact Pw.2 is not the witness to the signature of petitioner and he also admitted that he cannot identify the signature of the witness. The cause title itself shows that Pw.2 is not residing in the schedule property and Rw. t has categorically stated that he did not execute the document under Ex.P.7 has not been proved in evidence to show that respondent No.1 is in possession of the property. The bailiff was examined as Cw. 1 and he was shown the warrants which were marked as Exs.C.1 and C.2. In the cross-examination, Cw. 1 categorically stated that Razia Begum came out of the house stating that her husband name is Mohd.Haji who is none other than the Judgment debtor which clearly demonstrates that the 3 2019 SCC online Bom 142 4 2002 ANWR 2 659 9 ,'l resistance is through the Judgment debtor. The trial Court without application of mind, allowed the petition. As such, prayed this Court to allow this revision by setting aside the impugned order.

12. The learned counsel for respondent No.1 denied the averments of the petition and according to him, the agreement of sale dated 02.O2.2O11 was executed between the vendor of petitioner and respondent No.1 and the schedule of property under Ex.P.7 clearly shows that the house part ol Plot No.205 in Sy.Nos. 15, 2l and 22 admeasuring 55 Sq yards situated at Mustafa Nagar, was delivered to respondent No.1 and the schedule property was under construction and the same was admitted by respondent No.1 in his cross-examina tion and the non-judicial stamp paper was purchased by vendor of claim petitioner and the del.ails are issued by the concerned SRO Charminar in rcply to the Right to Information Act. The bailiff had visited the E.P.Schedule property on 21.11.2013, but could not execute the warranL as there was resistauce by a Muslim woman and she stopped them from entcring into the house. As such, bailiff returned without cxecuting the warrant. Again when the bailiff went to the E.P.Schedule 10 o property, it was under lock and key. As such, warrant could not be executed. It is further stated that t]le vendor of petitioner purchased the suit schedule property under registered agreement of sale from one Samad Quadri and the schedule of properly in the above said unregistered document is the western part of Plot No.205, in Sy.No.l5, 2l and 22 situated at Mustafa Nagar, but in GHMC mutation and tax record, the name of vendor of petitioner is reflected against the details of house No.L9-4-281 lG/2O5, first floor, Mustafa Nagar, and petitioner did not take any steps to get mutated in his namc which clearly shows the collusive nature of vendor of petitioner and petitioner, misrepresented the Court by hling R-C.No.214 of 2OI3 claiming to be the tenant being willful defaulter but the petitioner himself admitted in cross- examination that he do not know who is residing in the suit schedule property. As such, there is no illegality in the order of trial Court and prayed to dismiss this revision petition.

13. Considering the submissions made by both the counsel and the material on record, the contention of learned counsel for the petitioner is that the claim petitioner is not in independent possession of the propert5r, he never obstructed 11 the bailiff when he went to execute the warrant. The bailifl's evidence clearly shows that thc wife of judgment clebtor came out from thc house and she clearly stated that her husband is Mohd. Haji. When the bailiff showed the warrant, she stated that her husband was not in house and stopped him from entering into the house and the bailiff returned to the Court without executing the warrant. On 28.08.2015 the bailiff along with the decree holder visited the E.P.schedule property as he was given delivery warrant issued by the Nazzarath Section of the Court. The decree holder has shown the E.P.schedule property in the hrst floor in the presence of two witnesses. At that time, the execution petition scheclule was under lock ancl key and he obtained the signatures of the decree holder and the witnesses on the warrant and returned the same [o Lhe Court as un execuled. In the cross- examination Cw. 1 , admitted that when he visited the E.P.Schedule propert), to execute the warrant, the door was closed, he knocked the door and one woman came out of the house and stated that her husband's name is Mohd. Haji, who was not present in the house at that trme. The decree holder accompanied him to the E.P.Schedule property on the date of execution of warrant under Ex.C. 1. The claim petitioner also I 72 {) cross-examined Cw. 1 wherein he stated that the decree holder has not shown his identity card to identify that he is Mohd. Zaheer Ahmed r,r,hen he went for execution of warrants under trxs.C.1 and C.2. He further submitted that the Municipal Number of the E.P.Schedule property as per the warrant under Exs.C.1 and C.2 is 19-4-281 lC/2O5, and that he did not verify any idcntity card of that women to identify her as Razia Begum which clearly shows that the claim petitioner is not in possession of the suit schedule property. As such, he cannot hle petition under Rule 23 (7\ of the Act.

14. Further the judgment relied on by the petitioner in Ghoushia Bee's pertains to failure to cross-examine the witness on the relevant aspects and the failure is liable to be taken as acceptance of those aspects by the opposite side. In Sushil Kumar Mandanlal Ganediwal's case the Hon'ble Supreme Court, observed that the burden could not be said to be discharged by merely producing certihed copy of the bailiff report r.,r,ritten on the reverse of the summons, but the bailiff has to be examined to prove existence of the fact of service of summons on the petitione r. The Judgment in K.Shiva Prasad's case, deals w'ith sub-rule (7) of Rule 23 of the Rules, 13 aims at meeting a situation where the execution of order of eviction is resisted or obstructed by a person other than the person against whom an order of eviction was passed. In such a situation two courses are contemplated lrnder Rule 23(71. lf the Rent Controller is satisfied Lhat the resistance or obstruction was without any just cause and that such resistance or obstruction still continues the Rent Controller shall issue a warrant to evict such person by force. On the other hald if the Rent Controller is satished that lhe resistance or obstruction was occasioned by a person claiming in good faith to be in possession of the building the execution shall be disallowed against such person. The specific reference to possession of the building makes it clear that the resistance or obstruction to the execution of order of eviction sha1l be by a person in possession of the building who is other than a person against whom the order of eviction was passed. In other words Rule 23(7) attracts to the case wherr: a person, other than the person against whom order of cviction was passed, is in possession of the petition schedule premises and causes resistance or obstruction to the executron o[ the order of eviction. A person u.ho is not in possession of the premises in question cannot maintain a petition under Ruie 23 (7) 1 i 14 o merely on the ground that the landlord ought to have made him a parry to the eviclion petition.

15. On thc other hand, learned counsel for the respondents would submit that firling of suit for specific performance of agreement of sale by the claim petitioner itself shows that the original owner sold the property to claim petitioner arrd it is the original owner who had played fraud. The evidence of Cw. 1 shows that thc claim petitioner is not in possession of the property. When there is clear dispute with regard to E.P.Schedule property, the trial Court cannot issue warrant of eviction without deciding the rights of claim petitioner. As such, there is no illegality in the order of trial Court and there are no merits in this petition and prayed to dismiss this revision petition.

16. Now, the issue that is to be decided is whether the claim petitioner hled petition under Rule 23 (71 of the Act, 1960 that he is in possession of the E.P.Schedule property. According to the petitioner, claim petitioner is not in possession of the tr.P.Schedule property, though he had fiied document under Ex.P.7, wherein he had entered into agreement of sale with the original owner, the claim petitioner mentioned his address 15 I l in the chief affidavit that he is a resident of 19-4-)79 / Al6&7, Nawab Sahab Kunta, Jahanuma, Hyderabad, whercas the suit schedule property is premises No. 19-4-281 / G /2O5, ltrst Floor, Mustafa Nagar, Ansari Road, Hyderabad. The admission of ciaim petitioner shows that he is not in possessiotr of the suit schedule property. Further, the evidcnce of bailiff clearly shows that one Razia Begum was in possession and her husband is Mohd. Hazt and eviction suit is filed against him. The evidence of Cw. 1 along with the admission ol claim petitioner shou,s that he mentioned his addrcss and filed claim petition under Rule 23 (7) of thc Act. The claim petitioner is not in possession of the property and in view of the judgment in K. Shiva Prasad's case wherein in paragraph No.6, it is clearly observed that a person who is not in possession of the premises in question cannol mainlain a petition under Rule 23 (7) of the Act, for specilic pcrlbrmance \ \ of agreement of sale merely on lhe ground that thc landlord ought to have made him a party to the cviction petition. The Rent Control Court cannot decide title of the suit schedule property when petition filed under Rule 23 (7). Petitioner must be in possession of the property and he has to be a third party to the eviction suit hled by the landlord. In the present l 16 6 case, though the claim petitioner is a third party to the eviction suit, he is not in possession of the suit schedule property. Further, the respondent No.1 herein claimed to be the agreement holder with the original owner of property and he already filed suit for specific performance of contract and he can work out his remedies in the said suit. Therefore, petition under Rule 23 (7) is not maintainable. As such, the order of the trial Court is Iiable to be set aside.

77. Accordingly, the Civil Revision Petrtion is allowed setting aside the order dated 06.O8.2021 passed in E.A.No.56 of 20i3 in E.P.No.24 of 2013 in R.C.No.214 of 2013 passed by the II- Additional Rent Controller, City Small Causes Court, Hyderabad. No costs. Miscellaneous petitions, pending, if any, shall stand closed. ,TRUE COPY// SD/- MOHD. ISMAIL DEPUTY REGISTRAR SECTION OFFICER To,

1. 2. 4 DL/gh The ll Additional Rent controller. city small causes court' Hyderabad' One CC to Sri. R A Achuthanand, Advocate [OPUC] One CC to Sri Mohd Muzaffar, Advocate [OPUC] Two CD CoPies W HIGH COURT DATED:26/03/2025 ORDER CRP.No.1711 ot2021 (' 2 o 30 APf, 20[ '.\{.?..: -t i.,,) C^T1., ALLOWING C.R.P. ( q 0