The High Court · 2025

Judgment

This appeal is hted under Section 96 of. the code of civil Procedure, 1908 by the appellant-plaintiff against the judgment and decree, dated O3.O2.2OO9 passed in O-S.No-82 of 2OO7 on the file of the III Senior Civil Judge, City Civil Court,

Secunderabad, wherein thq suit filed by the plaintiff seeking for declaration that the plaintiff is entitled for recovery of possession of the suit schedule property was dismissed.

2. For the sake of convenience, the parties will be referred to as they were arrayed in the suit as plaintiff and the defendant.

3. The plaintiff filed O.S.No.82 of 2OOT seeking the following reliefs:- (i) declaring that the plaintiff has right to recover possession of the suit schedule property; (ii) directing the defendant and all persons claiming through him to hand over vacant and peaceful possession of the portion of the suit schedule properff; (ii| directing the defendant and all persons claiming through the defendant to pay damages for use and occupation 2 NNR.J cccA_69 2009 of the suit schedule property at Rs.1,0OO/- per month from the date of delivery of vacant possession.

4. Brief facts of the case are that originally tre father of the plaintiff by name N.Rajaiah was tenant of the property bearing Block No.33/J, which belongs to the Municipirl Corporation, Secunderabad Division and his father was allot:ed the subject propert5r and subsequently, he purchased the salne on payment of some amounts and after the death of his fzrther, the said propert5r was transferred in the name of the plaintiff. The defendant, who is the distant relative of the plaintiffls father, was permitted to occupy the western portion of the suit schedule property and the defendant had been continued to occupy even after the death of his father. In the )rear, 2005 the defendant had constructed a house of his own and shifted his residence to the said house and inspite of the same, the defendant neither vacated the premises nor handed over the possession to the plaintiff. As such, the plaintifl'got issued a legal notice, dated 17.12.2006, requesting the defendant to vacate the premises by revoking the permission given to him to stay in the western portion of the house, for which the defendant also got issued a reply notice disputing the claim of t 3 NNR,J cccA_59-,2009 the plaintiff. Therefore, the plaintiff filed the said suit seeking the above reliefs.

5. The sole defendant had filed his written statement contending that the father of the plaintiff and his father are close relatives and that the father of the defendant and father of the plaintiff have jointly approached the Municipal Corporation for allotment of the quarter and as they had cordial relationship, the father of the plaintiff alone had made an application for allotment of the quarter in his name with an understanding that the said quarter would belong to both the families and the father of the defendant was permitted to stay only on the western portion of the quarter. Furdher, there was an understanding that the father of the defendant shall pay half of the amount, which is payable to the Municipal Corporation, to the father of the plaintiff and the said amount was also paid by him. Even after the death of the father of the plaintiff also the defendant had contributed his share in payment of instalments to the Municipal Corporation. Further, the father of the plaintiff gave a written undertaking that half of the suit schedule properly belongs to the father of the defendant and based on the said understanding, a partition wall was also raised separating the quarter into two and as such, the plaintiff 4 N\R..I ccc,\ 69 l00q has no exclusive right over the suit schedule proi)erty and that the plaintiif filed the suit manipulating the records of the Municipal Corporation.

6. Basing on the pleadings of both the part-ies, the trial Court fra.med the following issues:- "1. Whether the plaintiff is entitled to possession of suit schedule property from the defendant?

2. Whether the plaintiff is entitled to mesne prrthts. If so how much?

3. To what reliefl.2"

7. During the course of enquiry, on behalt cf the plaintiff, P.W.l was examined and Exs.Al to A13 were rnarked and on behalf of the defendant, D.Ws.l to 3 were examined but no documents were marked.

8. The learned trial Judge, having gone through the material placed. and considering the contentions of bottL the parties, came to the conclusion that the version of the defen<lant is more probable than the claim made by the plaintiff, as such the plaintiff is not entitled for any relief and finally, <lismissed the suit with costs.

9. Aggrieved by the said judgment and decree, the present appeal is filed before this Court on the following grounds: / ,. .J 5 NNR,J cccA_69_2009 (i) the learned trial Judge did not consider the fact that the defendant did not discharge his burden of proof to substantiate his contentions. It is also averred that there is ample evidence placed by the plaintiff to show that the suit schedule property was allotted .,c t-he father of the plaintiff by the Municipal Corporation and that it is the plaintiff and his father, who were paying the instalment amount to the Municipal Corporation. (ii) the learned trial Judge without going into the entire material placed on record and without considering the fact that the plaintiff was paying the rents to the Municipal Corporation and subsequently had paid the consideration for transfer of the entire suit schedule property in his favour and such transfer was effected has given findings on surmises and conjectures only on the ground that the father of the defendant and the defendant were allowed to stay in the said house for about 35 years. (iii) the learned trial Judge did not consider the fact that the defendant's occupation in the house is only a permissive occupation and the said permissive occupation would not confer any right or title on the defendant (iv) the learned trial Judge also did not consider the fact that the long standing possession does not confer any hostile title against the plaintiff. (v) It is further averred that inspite of specific and categorical stand of the defendant that the father of the plaintiff gave an undertaking in writing that half of the suit property 6 NNR.J CCC.\ 69 2009 given to the father of the defendant and basecl on the said document the defendant is claiming such righ:s but no such documentary evidence has been placed by the defendant to substanr-iate his contention and therefore, thc learned trial Jlrdge ought to have dranvn an adverse infererrce against the defeirdant to that effect. (vi) the learned trial Judge ought to have seen that the evidence of D.Ws.2 and 3 is only hearsay evidence and ought to have decreed the suit. (vii) the learned trial Judge came to an erroneous conclusion that in view of the long standing possession of both the parties there is some understanding among them and believing the same has dismissed the suit. (viii) the hndings given by the learned trial .Itrdge that the father of the ptaintiff and father of the defenrlant being in occupation of half of the total property over a period of four decades indicates that there was some understanding between the father of the plaintiff and father of the defendant is r,r''ithout any basis and merit and the said finding is liable trl be set aside. (ix) t-he trial Judge ought to have seen that the plea of the plaintiff that the father of the defendant was permitted to be occupied. by the father of the plaintiff on account of their closeness and no rents being collected as it was only a licensee, therefore, the finding of the learned trial Judge that admittedly no rent was paid by the defendant or his father for a portion u,hich is in their occupation for over 40 years is rvithout any merit. Mere admission of P.W.l that a partition wall was / / r- -) 7 Nn'R,J cccA 69 2009 constructed dividing the entire property into two equal half without enabling the trial Court to draw any conclusion that the defendant or his father had any right over the suit schedule property and that the impugned judgment suffers from illegalities and infirmities and prayed this Court to allow the appeal.

10. During pendency of the appeal, as the sole defendant died, his legal representatives were brought on record as respondent Nos.2 to 4 in this appeal. 1 1. Heard Ms.Rama Swetha, learned counsel representing Sri Kowturi Pawan Kumar, learned counsel appearing for the appellant and Sri B.Dananjaya, learned counsel for the respondents. L2. Having heard the submissions made by learned counsel for the parties and having perused the material placed on record, it is seen that the said suit schedule property is allotted to the father of the plaintiff by the Municipal Corporation. Admittedly, the Municipal Corporation, being the owner of the said prop€rry, allotted the same under Sale of Municipal Blocks on Hire Purchase System in favour of the father of the plaintiff, which is not in dispute. It is also not in dispute that the defendant is also in occupation of the portion of the property on 8 NNR,J CC(ri\ 69 2009 f-, western side. Admittedly, as on the date, no sale deed was executed cither in favour of the plaintiff or in favour his father. It is an zidmitted fact that the defendant is in ccctrpation of the western portion in thr. r rat..:s of permissive occupation. Admittedly, there is no rent being paid under the guise that the possession of the defendant being a permissible one. There is no disput-e regarding the understanding, between the father of the plaint.iff and the father of the defendant and basing on the said understanding the father of the defendant was permitted to stay in the said house. It is an admitted fact that, as per Ex.A1, the application ol- the plaintifl"s father was accepted by the Standing Committee of the Municipal Corporation, Secunderabad Division and the father of the plaintiff was allotted thr: suit schedule propert5r. It is also an aclmitted fact that, as per the municipal record, the father of the plaintiff was a tenant and he has to pay l5%o of the cost of the block i.e. Rs.115/- including the premium on the land (but excluding the lease charges) and Rs.2/- towards annual lease rent of the land for the period of 12 months, which was fixed by the Municipal Corporation. The contents of Ex.A1 would clearly show that the said allotment was made in the name of the plaintiffs father. Subsequently, payments rvere made by ,.the plaintiff on 9 NNR.J cccA_69 2009

03.01 .2006 remitting the outstanding balance of Rs.7,6331 - for transfer and registration of the suit schedule property in his name, which is exhibitect by Ex.A2. Further, to show that the plaintiff was exercising the rights ovcr the said property as a transferee another receipt i.e. Ex.A3 was also placed before this Court. So also, Ex.A4, which shows the payment of Rs.7,633/-. After the death of the father of the plaintiff, the subject property was transferred in the name of the plaintiff as one of the family members of the deceased-allottee on 25.02.2006, much prior to filing of the present suit and payment of Rs.Soo/- towards water sewerage charges and electricity charges being paid by the plaintiff and even as on this date, it stands in the name of the father of the plaintiff.

13. Learned counsel for the appellant has reiterated the contentions mentioned in the grounds of appeal.

14. Learned counsel for the respondents has contended that when there is a dispute regarding the ownership and without there being any relief for declaration of title, the plaintiff is not entitled to the relief of recovery of possession. Learned counsel further contended that, as there is no sale deed in favour of the plaintiff, the plaintiff has no title over the suit schedule property 10 NNR.J CCCA_(r9_2009 (1 and no claim was made by the plaintiff for der:laration of title and sinr:e there is a denial on the part of the clefendant about the ou'nership in respect of the western portir>n, which is in occupation of the defendani, ti:e learned trial Jtrdge has rightly dismissed the suit

15. As there is no dispute regarding the fact that the father of the plaintilf \,vas allotted the suit schedule property and subsequently it was transferred to the plaintiff, the only issue that ariscs lor consideration before this Court is "Whether the plaintiff is entitled for recovery of possession of the same, if so, to what relieP"

16. POINT:- Admittedly, as on date both the plaintiff and the father of the plaintiff are the allottees and there was a proposal for transfer of the subject property under Sale of Municipal Blocks on Hire Purchase System and pursuant to the same, the amount was paid by the piaintiff to the Municipal corporation. There is no dispute regarding the claim of the plaintiff that the subject property was allotted to his father and after his death, the same was transferred in his name and the father of the plaintiff had permitted the defendant to stay in the said house. / 1l NNR,J CCCA 69 2OO9

17. The main contention of the defendant is that the father of the plaintiff and the father of the defendant are close relatives and the father of the defendant had also contributed his share in payment of instalments to the irtlunicipal Corporation and even after the death of the defendant's father, the defendant had also contributed half share in payment of the instalment amount. Admittedly, no piece of paper was f-rled by the defendant to substantiate his contention that he had shared the amount of rent or the sale consideration i.e., instalment amounts

18. Another ground which is raised by the learned counsel for the defendant is that there was a dispute between the father of the plaintiff and father of the defendant about 35 years prior to filing of the suit and a partition wall was raised between two portions demarcating the separate portions of 28 square yards. It is also contended that 28 square yards of land is vested in the name of his father and that he has contributed half of the expenses for getting death certificates and to get the property transferred in the name of the plaintiff during 2OO2-2OO3.

19. Admittedly, when there was a dispute about 35 years back between the parties and a partition wall was raised t2 NNR,J CCCA 69 2OO9 t\ between the portions, nothing has been placed by the defendant to show that he had contributed half of the instalments to the Municipal Corporatic.n to get the property transferred in the narne of the plaintiff. The dcfendant ought to have made an appropriate application or raise the dispute in respect of allotment in the name of the father of the plaintiff or transfer the lease hold rights/hire purchase rights over the subject property in favour of the plaintiff. There is nothing on record to show that the defendant made any such attempls to place the objections before the Municipal Corporation about the transfer of the property in favour of the plaintiff when there was a dispute much prior io 2002-2003 and about 30 1,sar. back a partition wall was also raised between the portions. There is no explanation submitted by the deflendant to that effect.

20. As seen from the record, admittedly, the ent.ire property was allottr:d to the father of the plaintiff and he had exercised his exclusive rights over the same. It is also evident from the record that the defendant said to have purchased the property at Kanajiguda in the year 2OO5 and the family of the defendant has been shifted and residing in the said house. Admittedly, the defendant is not residing in the suit schedule property even it is also evident from the reply submitted by the defendant to / t3 NNR,J cccA_69_2009 the legal notice issued by the plaintiff, that there is nothing illegal about the sons of the defendant staying late hours in the house as they are working in shifts. As contended by the plaintiff that, for all practical purposes, the defendant has shifted his house and the same is also evident from the cross examination of D.Ws.2 and 3.

21. No doubt, learned counsel for the defendant has contended that the case of the plaintiff would be on the preponderance of probabilities and he contended that the long standing possession of the defendant in the said quarter would probabalise that there was an understanding between the parties. Admittedly, there is no single piece of paper hled by the defendant to show that there was such understanding between the parties and that the defendant is also entitled for half of the share in the property. 22- Even on perusal of the evidence of DWs.l to 3, it did not inspire any confidence to accept the contentions of the defendant to support the same. Admittedly, the defendant is in possession of half share of the property and nothing has been placed to show that there was an understanding between the parties. The findings given by the rearned trial Judge are based \ \ t4 NNR,J cccA_69_2009 s" on the assumptions and presumptions without any basis and, therefort:, this Court is of the opinion that ttre learned trial Judge ought not to have dismissed the suit nrerely on the ground that the piaintiff has ke1;t siient for all these days and allowed the defendant to stay in the house for th-e last 30 years and also allowed him to construct a partition wall- If really there is a dispute, he ought to have asked th,: defendant to vacate the suit schedule property at the earliest pcint of time'

23. No doubt, construction of the partition vrall was being made ancl the status of the defendant in the prernises is only a permissive occupation and except the right of permissive occupation, there is nothing on record to show that he has any right over the property as against the plaintiff. In the absence of any such evidence, mere silence on the part of the plaintiff cannot be a ground to reject the claim of the plaintiff and as such this Court is of the opinion that the plaintif is entitled to the relief of recovery of possession basing on thr: right of the plaintiff over the suit schedule property' :

24. In view of the aforesaid circumstances and reasons, this Court is of the opinion that the appellant has rnade out the 2 l5 NNR.J cccA_69 2009 grounds to interfere with the findings given by the learned trial Judge and it is a fit case to allow the appeal.

25. Accordingly, the appeal is allorved and the judgment and decree, dated O3.()2.2009 passed in O.S.No.82 of 2OOT by the learned III Senior Civil Judge, City Civil Court, Secunderabad are hereby set aside. The suit is decreed in favour of the plaintiff declaring that he has right over the suit schedule property and the defendant is directed to hand over the vacant and peaceful possession .of the western portion of the suit schedule property to the plaintiff within a period of three (03) months from the date of receipt of a copy of this judgment. For the purpose of claiming damages for use and occupation of the premises, the plaintiff may take appropriate steps to file an appropriate application before the III Senior Civil Judge, City Civil Court, Secunderabad. Miscellaneous petitions, if aily, pending shall stand close_d, Therq qhall be no ordeS ai te cqqlS, SD/. R.KARTHIKEYAN JOINT REGISTRAR G SECTION OFFICER //TRUE COPY// To,

1. The lll Senior Civil Judge, City Civil Court, Secunderabad.(with records, if any)

2. One CC to Sri Kowturu pavan Kumar Advocate IOPUC] 3. One CC to Sri B. Dananjaya, Advocate tOpUCI 4. Two CD Copies ,W, VHiPSL HIGH COURT DATED: 08/09/2025 p I H!: li' \ JUDGMENT+DECREE CCCA.No.69 of 2009 * ALLOWING CCCA WITHOUT COSTS IN THE HIGH COURT FOR THE STATE OF TELANGANA ( \\ \c\ $ AT HYDERABAD MONDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA CITY CIVIL COURT APPEAL NO: 69 OF 2009 Between: N. Yadaiah, S/o. Late N.Rajaiah, Aged 63 years, Occ: Pensioner R/o. 33iJ, Municipal No. 2-4-579, Ramgopalpet, Secunderabad. ...APPELLANT/PLAI NTIFF AND

1. S.Satyanarayana Yadav S/o. Late Sri Augaiah, Aged 47 years, Occ: Retired IDL Employee R/o. H.No.. Block No. 33/J, Municipal No. 2-4-579, Ramgopalpet, Secunderabad. (Died per LR's R- 2to 4)

2. S.Sridhar, S/o. Late S.Satyanarayana Yadav, Aged. Major, Occ. Not known 3. S.Srikanth, S/o. Late S.Satyanarayana Yadav, Aged. Major, Occ. Not known 4. S.Dayanad, S/o. Late S.Satyanarayana Yadav, Aged. Major, Occ. Not known RR - 2 to 4 R/o.H.No.30-749, Shiva Nagar, Kanajiguda, Lalbazar, Secunderabad. ...RESPONDENTS No's. 2to 4 Respondent No's. 2 to 4 are brought on record as LR's of deceased Sole Respondent as per Court Order dated 09.01.2025, vide lA.No. 3 ol 2024 in CCCA No. 69 of 2009. Appeal filed under section 96 of CPC against the Judgment and Decree dated 03-02-2009 in O.S.No. 82 of 2007 on the file of the Court of the lll Senior Civil Judge, City Civil Court, Secunderabad. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Court below and the material papers in the case and upon hearing the arguments of Ms. Rama Swetha representing Sri Kowturu Pawan Kumar, Advocate for the appellant and sri B. Dananjaya, Advocate for the Respondents. This Court doth Order and Decree as follows:

1. That the Appeal be and hereby is allowed and the.,udgment and decree, dated 03.02.2009 passed in O.S.No. 82of 2OO7 by the learned lll SeniorCivil Judge, City Civil Court, Secunderabad are hereby set as;ide;

2. That the suit is decreed in favour of the plaintiff declaring that he has right over the suit schedule property and the defendant is directed to hand over the vacant and peaceful possession of the western portiorr of the suit schedule property to the plaintiff within a period of three (03) months from the date of receipt of a copy of this judgment;

3. That the purpose of claiming damages for use and occupation of the premises, the plaintiff may take appropriate steps to fite and appropriate application before the lll Senior Civil Judge, City Civil C:ourt, Secunderabad;

4. That there shall be no order as to costs in this appeal. SD/. R.KARTHIKEYAN .IOINT REGISTRAR G SECTION OFFICER //TRUE COPY/ To,

1. The lll Senior Civil Judge, City Civil Court, Secunderabad 2. Two CD Copies VH/PSL 4[r r' I HIGH COURT DATED: 08/09/2025 DECREE CCCA.No.69 of 2009 ALLOWING CCCA WITHOUT COSTS 1n