The High Court · 2025

Order

This revision petition is filed by thc petitioner against the order dated 06.08.2021 in tr.A.No.65 of 2013 in E P No 25 of 2O13 in R.C.No.215 ol 2013 passed by the II Additional Rent Controller, City Small Causes Court, Hyderabad'

2. E.A.No.65 of 2O13 in E.P.No.2S of 2013 in R C'No'215 of 2O13 is ltled by the respondent No.1 herein u'ho is the claim petitioner, 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 ol Civil Procedure, claiming that Mirza Mahmood AIi Baig, the vendor of respondent No. 1, is the or,r'ncr of a housc on parl of plot No' 2O5, survey No.15, 2 l, and 22, bearing Municipal No' 19-4- 281 I G 12O5, measuring 55 square yards, situated at Mustafa Nagar, Ansari Road, Hyderabad. Mirza Mahmood Ali Baig allegedly offered to sell the properry to the claim pctitioner for Rs.6,75,00O/-. The claim petitioner paid Rs.3,50,OOO/- as advance money, u,hich was acknowledged by Mirzzr Mahmood A1i Baig. As per their agreement, dated 02-02.20L1, Mirza F 2 a Mahmood Ali Baig was supposed to execute a proper sale deed in favor of the claim petitioner or his nominees. However, Mirza Mahmood Ali Baig postponed execution of sale deed for over two years, despite repeated reminders and personal representations. The claim petitioner issued a legal notice on 1O.O7.2OI3, calling upon Mirza Mahmood Ati Baig to execute the sale deed within 1O days, but he received a vague reply notice on 22.O7 .2013.

3. It is lurther stated 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 revealcd that Mirza Mahmood Ali Baig had executed the agreement in favor o[ respondent No.1, Mohd. Zaheer Ahmed, without the claim petitioner's consent. Hence, the claim petitioner hled O.S.No.1375 of 2013 before the Hon'ble VII- Senior Civil 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 a Court. The claim petitioner prayed the Court to allow his claim petition until the disposal of E.P.No.25 of 2013.

4. The respondent No.1/decree holder filed counter admitting lhat Mirza Mahmood AIi Baig was the original owner, whereas the subject propcrty was sold to him on

02.Ol.2Ol3 through registered agreement of sale-cum-General Power of Attorney after receiving thc entire sale consideration and denied that Mirza Mahmood Ali Baig has agrcc<i to sell the property to claim petitioner and executed an agret:ment of sale on O2.O2.2O11. The respondent No.1 submitted that the claim petitioner's agreement of sale, dated 02.O2.2Ol l, is falsc and fabricated. The respondent No.l's vendor clenied the agreement through a reply notice on 22.07 .2013, and relused to deliver possession to the claim petitioner-

5. At the time of purchasing the property, the responden t No.1 stated that Lhere were two tenants, Shaik Fareeduddin and Haji, who occupied the premises. The respondcnt No. 1 claimed to have obtained attornment of tenancy from both tenants through his counsel on 08.05.2013, :rnd that his vendor also got issued attornment of tenancy letter to both the tcnants on 28.03.2013. The respondent No.1 alleged that thc n 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 specific 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. I denied colluding with the judgment debtor and stated that the judgment debtor was not in possession of property since O2.O2.20 11. The respondent No. 1 claimed that r,"'hen the bailiff attempted lo execute the warrant in E.P.No.2S of 2013, the judgment debtor's wife resisted with the support o[ unsocial elements. Further the respondent No.1 pointed out inconsistencies in the claim petitioner's statements, including his claim of residing in the suit schedule propcrty despite stating his address as a different location. The respondent No. 1 alle ged that the claim petitioner created documents and filcd the present claim petition with false statements. It 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 himself as Pw 1 and his soll \{'as examined as Pw.2 and got marked Exs.P' I to P-3 On behalf of respondent No. 1 , Rw. 1 was examined and got markecl trx.R. 1. On behall of the Court, Cw. I was examined and got marked Exs.C.I to C.3. The trial Court came to conclusion that as it is rent control Court, it cannot go into the title o[ property basing on the documents and the evidt:nce prima- facie shows tl-rat the claim petitioner is having documents executed by the original owner and also filed the suit' Aggrieved by the same, the present civil revision perition is hled.

8. Heard Sri R.A.Achuthanand, learned counsel for the petitioner and Sn Mohd. Muzaffar, learned coutrsel for respondent No. 1. g. The contention of learned counsel for t}-re petitioner herein is that the trial Court failed to exercise its jurisdiction as required. According to Ruie 23(7\ of the Tclangana Buildings, Rent, and Eviction Control Rules, 1961, when an application is filed, the Court should consider objections from )l !i I 6 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. Unrler Rulc 25 of the Act, 196O, the Rent Controller should be satished that the resistance or obstruction caused by any person other than the one against whom the eviction order was passed is without sufficient cause. The pendency of civil proceedings in O.S. No. 1375 of 2013, Iiled by respondent No. 1, does not prevent the Court from adjudicating the pending dispute. The court below failed to consider that the alleged agreement of sale dated O2.O2.2O11, is not properly stamped. Under Rule 47-A of lhe 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 (2) (v) of the Amendment Act, agreement of sale is a compulsorily registerable document. The Court cannot rely upon the said document under Section 53-A of the Transfer of Property Act. The Court below committed irregularity by not 7 considering the documentary evidence on record and there is no question of title sofar, as the case between the petitioner and decree holder is concerned, it is the case of respondent No.l that petitioner has entered into an agreement c'f sale under Ex.P.2 in respect of the said property by delivering possession and said agreement of sale does not conler any right, title or interest in the property' 1O. Learned counsel furthcr contended that the llrovision of Rule 23 (7) of the Act, 1960 deals with the proviso that the obstruction should bc without any just cause Tht: Court has to decide whether the third party is in possession of the property by holding a summary enquiry in the matter' whereas, in the present case the Court has not exercised the powers properly and the juclgment cited deals with declaration of title and there is no dispute, sofar as the title in respect of the property is concerned. In support of his contentions' learned counsel reliecl on the judgments in Ghoushia Bee Vs Rajan Bee and another 1 , P.C'Mathew Vs Annamma Mathew2, Sushil Kumar Mandanlal Ganediwal Vs Vijay L 1994 ALI 1 97 r 2013 SCC online KER 14902 1 I r) Kumar Mandanlal Ganediwal and others 3 and K.Shiva Prasad Vs C.Sree Ramulu and anothera.

11. Learned counsel further contended that the trial Court failed to consider the evidence of Pw.2 who is said to be the alleged witness. There are discrepancies in the evidence of hvs. 1 and 2 which was ignored by the Court below, 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. Further, 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.2 which 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 to C.3. The evidence of Cw. 1 shows that the schedule property was kept under lock and key and nobody is residing in it. The trial Court without application of mind, allowed the 3 2019 SCC online Bom 142 4 2002 ANWR 2 659 . .,.r.r*tt!axt:-' 9 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 petition and according to him, thc agreement of sale dated O2.O2.2O11 was executed between the vendor of petitioner and respondent No.1 and the schedule of property under Ex.P.2 clearly shows that the house part of Plot No.2O5 rn Sy.Nos.15, 21 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-examination, that the non-judicial stamp paper was purchased by ve ndor of claim petitioner and the details are issued by the concerned SRO Charminar in reply to the Right to Information Act. The bailiff had visited the tr.P.Schedu1e property on 21.1 1.2013, but could not executc the warrant as there was resistance by a Muslim woman and she stopped them from entering into the house. As such, bailiff returned without executing the warrant. Again when the bailiff went to the E.P.Schedule property, it was under lock and key. As such, warrant could not be executed. It is further stated that the vendor of 1 10 (l petitioner purchased the suit schedule propcrtSz under registered agreement of sale from one Samad Quadri and the schedule of property in the above said unregistered document is the western part of Plot No.2O5, in Sy.No. 15, 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 lGl2O5, first floor, Mustafa Nagar, and petitioner did not take any steps to get mutated in his name which clearly shows the collusive nature of vendor of petitioner and petitioner, misrepresented the Court by hling R.C.No.215 of 2O13 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 Court below and prayed to dismiss this revision petition.

13. Considering the submissions made by both the counsel and the material on record, the contcntion of learned counscl for the petitioner is that the claim petitioner is not in independent possession of the property, he never obstructed the bailiff when he went to execute the warrant The bailiffs evidence clearly shows that the wife of judgment debtor came v 11 out from the house and she clearly stated that her husband is Mohd. Haji. When the bailiff showed the u,arrant, she stated that her husband was not rn house and stopped him from entering into the house and the bailiff returled to the Court u,ithout executing the warrant. On 2a.0g.2o I 5 the bailiff along with the decree holder visited the E.p.scheclule 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 first floor in the presence of two witnesses. At that time, the petition schedule property was under lock and ke1. and he obtained the signatures of the decree holdcr and the witnesses on the warrallt :rnd returne d the same to the Court as un-executed. In the cross_ examination, Cw. I, admitted that when he visited the E.P.Schedulc property to execute the warrant, the door was closed, he knocked thc door and one women carne out o[ the house and stated that her husband,s name is Mohd. Haji, who was not present in the house at that time. The decree holder accompanied him to the E.p.Schedule propertv on the date of execution of warrant under Ex.C.1. The claim pctitioner also cross-examined Cw. 1 wherein he stated that the clecree holder has not shon,n his identity card to identify that he is Mohd. { i i t2 Zalreer Ahmed when he wcnt for execution of warrants under Exs.C.l ar.d C.2. He further stated that the Municipal Number of the tr. P. Schedule property as per the warrant under Exs.C. 1 and C.2 is l9-4-2a1 lC 12O5, 'that he did not verify any identity 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 file pctition under Rule 23 (7) of the Act.

14. Furthe r, the judgment relied on by the petitioner in Ghoushia Bee's case 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 certified copy o[ the bailift report written on the reverse of the summons, but the bailiff has to be examined to prove existence of the fact of service of sr-rmmons on the petitioner. The Judgment in K'Shiva Prasad's case, deals with sub-rule (7) of Rule 23 of the Rules, aims at meeting a situation where the execution of order of eviction is resisted or obstructed by a person other than the 13 person against whom an order of eviction \/as passed. In such a situation two courses are contemplated under Rule 23(7\. It the Rent Controller is satisfied that the resistance or obstruction u,as 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 hand if the Rent Controller is satisfied that the resistance or obstruction was occasioned by a person claiming in good faith to be in possession of thc building the execution shall be disallou.ed against such person. The specific reference to possession of the building makes it clear that the resistance or obstruction to the cxecution of order of eviction shall be by a person i.n 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 casc whcre a pcrson, 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 execution o[ the order of eviction. A person who is not in possession of the premises in question cannot maintain a petition under Rule 23 (7) merely on the ground that the landlord ought to have made him a party to the eviction petition. 1 l I I I I I I I 1 14 (i'

15. On the other hand, learned counsel for the respondents would submit that hling of suit for specihc performance of agreement of sale by the claim petitioner itself shows that the original owner sold the property to claim petitioner and it is the original owner r.t ho had played fraud. The evidence of Cw. 1 shows that the 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 warrart 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 mcrits in this petition and prayed to dismiss this revision petition.

16. Now, the issue that is to be decided is whether the claim petitioner filed pctition 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 E.P.Schedule property, though he had hled document under F,x.P.2, wherein he had entered into agreement of sale with the originai owner, the claim pelitioner mentioned his address in the chief aflrdavit that he is a resident of 19-4-279 /A16&7, Nawab Sahab Kunta, Jahanuma, Hyderabad, whereas the suit 15 schedule property is premises No.19-4-281/Gl2O5' hrst Floor, Mustafa Nagar, Ansari Road, Hyderabad. The admission of claim petitioncr shows that he is not in possession of lhe suit schedule property. Further, the evidence of bziiliff clearly shows that one Razia Begum was in possession and her husband is Mohd. Hazi and eviction suit is hled against hirn' The evidence of Cw. 1 along with the admission of claim petitioner shows that he mentioned his address ar-rd hled claim petition under Rule 23 (71 of the Act- The claim petitioner is not in possession of the property and in vicw 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 cannot malntain a petition undcr Rule 23 (71 of the Act, for specihc perfr;rmance of agreement of sale merely on the ground that the landlord ought to have made him a party to the eviction petition. The Rent Control Court cannot decide titte of the suit schedule property ',r,hen petition fi1ed under Rule 23 (7). Petitioner must be in possession of the property and he has to be a third parff to the eviction suit filed by the landlord. In the present case, though the claim petitioner is a third party to the eviction suit, he is not in possession of the suit scheduie \ 16 o property. Further, thc respondent No. t herein claimed to be the agrcement holder with the original owner of property and he already hled suit for specific performance of contract and he can work out his remedies in the said suit. Therefore, petition under Rule 23 (71 ts not maintainable. As such, the order of the trial Court is liable to tre set aside.

17. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 06.Oa.2O2l passed in E.A.No.65 of 2O13 i i I in tr.P.No.25 of 2013 in R.C.No.215 of 2013 passcd by the II- Additional Rent Controller, City Small Causes Court, Hyderabad. No costs. Miscellaneous petitions, pending, if any, shall stand closed. //TRUE COPY// SD/. A.V.S. PRASAD EPUTY REGISTRAR SECTION OFFICER To,

1. 2. 3. 4. Kam/g The ll Additional Rent Controller, City Small Causes Court, Hyderabad One CC to Sri R.A. Achuthanand, Advocate [OPUCI One CC to Sri Mohd. Muzaffat, Advocate [OPUC] Two CD Copies h W HIGH COURT DATED:26103t2025 ORDER CRP.No.1729 of 2021 ,.i r rr': i f.4 I c, ',...,..i .-,-' 30 AP f,?tm (-\ l\ \l 'o, \..1 'rr,.- \:.-" '.jjTCY\ ALLOWING THE CIVIL REVISION PETITION t \