Telangana High Court
Mohd Bakar Hussain Died And Another vs K Shyamala Devi And 2 Others on 29 April, 2022
Author: K. Lakshman
Bench: K.Lakshman
HON'BLE SRI JUSTICE K.LAKSHMAN CIVIL REVISION PETITION NOs.201, 251 AND 253 OF 2022 COMMON ORDER:
The petitioners and the respondents in all the above said three revisions are common and the lis is also common, the same are being heard and considered together.
1-a. The petitioners have filed C.R.P.No.201 of 2022 challenging the order dated 20.12.2021 passed in I.A.No.65 of 2021 in O.S.No.232 of 2011 by the Principal Senior Civil Judge at Mancherial.
1-b. The petitioners have filed C.R.P.No.251 of 2022 challenging the order dated 20.12.2021 passed in I.A.No.66 of 2021 in O.S.No.232 of 2011 by the Principal Senior Civil Judge at Mancherial.
1-c. The petitioners have filed C.R.P.No.253 of 2022 challenging the order dated 20.12.2021 passed in I.A.No.98 of 2021 in O.S.No.232 of 2011 by the Principal Senior Civil Judge at Mancherial.
2. Heard Sri P.Sridhar Rao, learned counsel for the petitioners, Sri Vedula Srinivas, learned senior counsel, representing Ms.Vedula Chitralekha, learned counsel for the respondents. Perused the record. 2
FACTS OF THE CASE:-
3. Originally, the 1st petitioner i.e. late Mohd.Bakar Hussain has filed a suit vide O.S.No.232 of 2011 against the respondents seeking declaration of title and perpetual injunction declaring him as owner of suit schedule property i.e. land admeasuring 406 sq.yards in Sy.No.206 situated in Islampura, Mancherial, restraining the respondents and their men etc., from interfering with his peaceful possession over the suit schedule-B property. He died on 15.07.2020. Petitioners Nos.2 to 4 have filed a petition seeking to bring them on record as plaintiffs as legal representatives of the 1st petitioner. The said petition was allowed on 12.02.2021. Thereafter, the petitioner Nos.2 to 4/plaintiff Nos.2 to 4 have filed the following three Interlocutory applications on 05.03.2021 seeking the following reliefs on the following grounds:-
3-a. I.A.No.65 of 2021:- This petition is filed under Order XIII Rule 1(3) read with Section 151 of CPC, to receive certified copies of registered sale deeds bearing document Nos.8869 of 2006 and 8870 of 2006 on the following grounds:-
i. The plaintiffs are claiming that the suit schedule property is in Sy.No.206 situated at Islampura, Mancherial, whereas, 2 3 the defendants are claiming that part of the suit land admeasuring about 189.11 sq.yards along with the shed bearing No.12-275(Old) existing thereon purchased by the respondent No.1 from one Mumthaj Begum under a registered sale deed bearing No.7432 of 2004 dated 31.12.2004 and that the said land is falling in Sy.No.208 but not in 206.
ii. In support of the contention of the petitioners/plaintiffs, they would submit that the entire land of 406 sq.yards including the disputed land was sold to the deceased/plaintiff No.1 by Sri Syed Nahmathullah, and the said Nahmathullah, has also alienated some other pieces of land in Sy.No.206 of the same area which are surrounding house plots of the suit land by executing registered sale deeds bearing document Nos.8869 and 8870 of 2006 to two persons namely Smt. Sabera Begum and Mohd. Abdul Waseem respectively.
iii. The said documents would show that the said Syed Nahmathullah was the owner in respect of the land which 3 4 is part of Sy.No.206 situated at Mancherial village. Therefore, filing of certified copes of the said two documents is essential to prove the claim of the plaintiffs and also to prove that the claim made by the defendants is false and baseless.
iv. The 1st defendant intended to file the said documents but due to Corona, Lockdown and sudden death of the deceased, he could not file the same.
v. 2nd plaintiff is aged person and she is unable to attend the Court which is in second floor of the building and the plaintiff No.4 who is also having knowledge about the said documents may be permitted to examine herself to mark the said documents.
vi. Therefore, for the purpose of filing of the said documents and marking of the same through the plaintiff No.4, they sought to re-open the matter.
3-b. I.A.No.66 of 2021: The petitioners have also filed this petition under Order XVIII Rule 16 read with Section 151 of CPC, to 4 5 permit the plaintiff No.4 to examine herself as P.W.2 and also on behalf of plaintiffs in the said suit to mark the said documents.
3-c. I.A.No.66 of 2021:- With the above said contentions, the plaintiffs also filed this petition under Section 151 of Cr.P.C. to re-open the case to examine the plaintiff No.4 as P.W.2 for marking of the documents by receiving the said documents.
3-d. The defendants have resisted all the said three applications on the following grounds:-
i. Neither the plaintiffs nor their vendor Syed Nahmathullah got any right in and around the suit schedule property as the alleged land is not existing in the so called Sy.No.206 of Mancherial town. ii. The suit schedule property specifically bounded is in existence and situated in Sy.No.208 of Mancherial shivar.
iii. The defendant No.1 has purchased the residential house bearing No.12-275(Old), 12-522 (new) including built up area 189.11 sq.yards in Sy.No.208 5 6 of Mancherial village from Muntaj Begum under registered sale deed of the year 2004 and took possession of the same.
iv. They got mutation, obtained electricity connection and also paying house tax etc. v. The Plaintiffs and their vendor created fraudulent and bogus sale deeds to an extent of 406 sq.yards in Sy.No.206 covering the suit schedule property and to grab the land admeasuring 189.11 sq.yards in Sy.No.208 of Mancherial held by the defendant No.1 with an ulterior motive.
vi. The Mandal Surveyor of Mancherial had issued sketch map showing that the open land in Sy.No.208, the 1st defendant is in possession. The plaintiffs have filed the said applications to drag on the matter at a belated stage.
4. The Court below vide separate orders dated 20.12.2021 dismissed all the three applications on the following grounds:- 6 7
i. Prior to the death of the plaintiff No.1, he got himself examined as P.W.1, in spite of adducing further evidence, he voluntarily reported for closure of his evidence. Therefore, on the said submissions made by the 1st plaintiff, the Court below has closed the plaintiff's side evidence long back.
ii. The plaintiff No.1 had filed a memo on 22.02.2018 seeking permission to lead further evidence (rebuttal) after completion of the evidence of the defendants. He had also filed a petition under Order XIV Rule 5 read with Section 151 of C.P.C. on 03.03.2018 to frame additional issues vide I.A.No.236 of 2018. The Court below had also permitted him to adduce further evidence after completion of the defendants side evidence as prayed in the memo dated 22.02.2018 and also allowed I.A.No.236 of 2018 by framing additional issues.
iii. Aggrieved by the same, the defendants have filed two revisions vide C.R.P.No.4096 and 4097 of 2018. 7 8
This Court vide common order dated 11.09.2018 allowed both the revisions and set aside both the orders.
iv. Plaintiff No.1 had also filed I.A.No.444 of 2019 for re-opening of the suit for the purpose of receiving documents and to introduce further evidence and the same was dismissed on 18.12.2019.
v. The suit is of the year 2011. The evidence of both sides was also completed long ago and in view of the dismissal of I.A.No.444 of 2019, the Court below held that the present three petitions filed seeking the very same reliefs are not maintainable and cannot be permitted.
5. Sri P.Sridhar Rao, learned counsel would submit that the 1st plaintiff, husband and father of plaintiff Nos.2 to 5 respectively died on 15.07.2020. A petition to bring his legal representatives of the deceased 1st plaintiff on record filed by them was allowed. On 05.03.2021, the petitioners herein have filed the present applications. There is no delay on their part. The plaintiff No.1 died due to Carona and it was a sudden 8 9 death. The suit is for declaration and perpetual injunction and it is a comprehensive suit. The plaintiffs are claiming that the suit schedule property is in Sy.No.206 whereas, the respondents are claiming that the same is in Sy.No.208. In a comprehensive suit, the burden lies on the plaintiff to prove their claim. Therefore, to prove the same, the petitioners herein have filed the above said three applications viz: to reopen, to receive documents and to permit to adduce evidence. No prejudice would be caused to the defendants. Opportunity will be given to them to cross-examine. The Court below, without considering the said aspects, dismissed the applications filed by the petitioners.
6. Whereas, Sri Vedula Srinivas, learned Senior Counsel representing the respondents/defendants would submit that the petitioners have filed the above said three petitions at a belated stage. There is no challenge to the order dated 18.12.2019 in I.A.No.444 of 2019. They are trying to drag on the proceedings. The contentions of the petitioners herein are not falling within the parameters of Order VIII Rule 1(3), Order XVIII Rule 16 of C.P.C. Therefore, the Court below rightly dismissed all the three applications. He has also placed reliance on the judgments of the Combined High Court of Andhra Pradesh at Hyderabad, in Nalini Narain Vs. Prabhavathi Reddy Ravi @ Ravi 9 10 Prabhavathi1, and the judgment of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Managing Director, APSRTC, Hyderabad2.
7. In view of the above said rival contentions, the undisputed facts are that the plaintiff No.1 had filed the above said suit vide O.S.No.232 of 2011 against the respondents/defendants for declaration of title and for perpetual injunction. He died on 15.07.2020. The plaintiff Nos.2 to 4 have filed an application seeking to bring them as legal representatives of the plaintiff on record and the same was allowed on 12.02.2021. They have filed the present three applications on 05.03.2021.
8. In the impugned order itself, it is specifically mentioned that the plaintiff No.1 had filed a memo on 22.02.2018 seeking permission to lead further evidence (rebuttal) after completion of the evidence of the defendants. Though it was a memo, the Court below has permitted him to lead further evidence. He has also filed an application vide I.A.No.236 of 2018 seeking to frame additional issues and the same was allowed. Both the orders passed on memo dated 22.02.2018 in 1 2011(6) ALD 145 2 2017 4 ALD 733 10 11 I.A.No.236 of 2018 were challenged by the defendants by way of filing two revisions vide CRP Nos. 4096 and 4097 of 2018. This Court vide common order dated 11.09.2018 set aside the said two orders on the ground that in a suit for declaration of title, the plaintiffs have to succeed only on their strength by producing sufficient evidence both oral and documentary. They cannot stand on the weaknesses of the defendants. It is also not in dispute that the plaintiff No.1 has filed I.A.No.444 of 2019 seeking to re-open the suit for the same purpose and the same was dismissed by the Court below on 18.12.2019. The plaintiff No.1 had not challenged the said order. However, he died on 15.07.2020 and it was a sudden death. Thereafter, the plaintiff Nos.2 to 4 came on record on 12.02.2021 and they have filed the above said applications on 05.03.2021 with the above said contentions.
9. It is relevant to note that as per Order XVIII Rule 1(A)(3) of Cr.P.C., a document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
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10. As discussed supra, the petitioners herein have specifically mentioned the reasons for non-filing of the said documents and also the relevancy of the said documents.
11. Order XVIII Rule 16 of CPC deals with the power to examine witnesses and it says that where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witnesses such witness in manner hereinbefore provided.
12. Therefore, under the said proviso, the Court is having power to examine the witnesses. The plaintiff No.4 has specifically pleaded with regard to the relevancy of the documents and that she is having knowledge of the documents and the facts of the present case. Her mother i.e. plaintiff No.2 is aged person and she cannot come to the Court which is in the second floor of the building. Therefore, with the said submissions, sought to examine herself as P.W.2. 12 13
13. It is relevant to note that in Varuganti Narayana Rao Vs. Bodla3 the Combined High Court of Andhra Pradesh at Hyderabad, had an occasion to deal with the object behind the amendments made to the Code of Civil Procedure by virtue of Act 46 of 1999 with effect from 01.07.2002 and categorically held that unless the reasons assigned by the defendant disclose sufficient cause for his failure to produce the documents within the time stipulated in Rule 1-A of Order VIII C.P.C., the Court shall not permit the defendants later. The Court also observed in the said case with regard to the absence of any pleadings that despite due diligence the documents could not be traced out and that the defendants did not state as to when the documents were traced out. The principles laid down in the judgments cited by the learned counsel for the respondents are squarely applicable to the facts and circumstances of the case. It is also settled principle of law that unless the order impugned suffers from jurisdictional error or patent perversity, the power of judicial review under Article 227 of the Constitution of India cannot be pressed into service. Therefore, this Court has absolutely no scintilla of hesitation nor any shadow of doubt to hold that the order under 3 2011 (6) ALD 142 13 14 challenge does not warrant any interference by this Court under Article 227 of the Constitution of India.
14. Referring to the said principle, the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, in Managing Director, APSRTC (supra) reiterated the said principle.
15. As stated above, in the case on hand, the petitioners herein have specifically stated the reasons for non-filing of the documents within the stipulated time as mentioned in Rule 1(A) of Order VIII of CPC. At the cost of repetition, it is relevant to note that originally the plaintiff No.1 filed the above said suit and he died on 15.07.2020. The plaintiff Nos.2 to 4 came on record only on 12.02.2021 and they have filed the present application on 05.03.2021 with specific pleadings and by giving specific reasons. As stated above, the plaintiffs are claiming that the suit schedule property is in Sy.No.206 of Mancherial village, whereas, the defendants are claiming the same is in Sy.No.208 of the said village. According to the plaintiffs, their vendor i.e. Syed Nahmuthullah, had sold some other pieces of land in the same Sy.No.206 which are surrounded house plots of the said land by way of 14 15 registered sale deed document Nos.8869 and 8870 of 2006 in favour of Smt. Sabera Begum and Mohd. Abdul Waseem respectively.
16. According to the pleadings, the said Syed Nahmathullah, their vendor was the absolute owner of the land in Sy.No.206 of Mancherial Village. Therefore, to prove their claim, they want to file certified copies of the said two documents.
17. As stated above, the suit is for declaration of title and perpetual injunction. It is a comprehensive suit. The burden lies on the plaintiff to make out and establish a case for granting such declaration. The plaintiffs cannot depend upon the weaknesses of the defendants. It is also relevant to note that this Court vide impugned order dated 11.09.2018 passed in CRP Nos.4096 and 4097 of 2018 held that the burden lies on the plaintiff to prove and establish their case and they cannot depend on the weaknesses of the defendants. Therefore, the case on hand squarely falls within the said parameters. They want to establish that the suit schedule property falls in Sy.No.206 of Mancherial village. Therefore, no prejudice would be caused to the defendants. They will be given an opportunity to cross-examine P.W.2 and they can avail it to disprove the contention of the plaintiffs.
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18. Perusal of the docket proceedings in the said suit would reveal that the same was adjourned from time to time due to various reasons. This Court cannot find fault with the parties. The matter was carried to this court twice by way of filing three revisions. The Court below has also committed procedural irregularities by permitting the 1st plaintiff to lead evidence basing on the strength of a memo dated 23.08.2018. One of the additional issues i.e. whether the part of the suit land covered in Sy.No.208 of Mancherial village as contended by the defendants is set aside by this Court in the common order.
19. Therefore burden lies on the plaintiffs to prove the claim and establish their case. No prejudice will be caused to the defendants. The said aspects were considered by the Court below in the impugned orders. Therefore, all the three orders dated 20.12.2021 passed in I.ANos.65, 66 and 98 of 2021 are liable to be set aside.
20. As discussed supra, the petitioners herein have filed the above said suit and therefore, the contention of the defendants that they have filed the above said applications to drag on the proceedings cannot be believed since it is the suit filed by the petitioners/plaintiffs. 16 17
21. It is also relevant to note that the order dated 18.12.2019 in I.A.No.444 of 2019 is an interlocutory order. Principle of res judicata is not applicable. The said principle was also held by the then Andhra Pradesh High Court, in Zeenathunnisa Vs. Md.Abbas4. Therefore, the contention of the learned senior counsel that the petitioners herein have not challenged the said order dated 18.12.2019 in I.A.No.444 of 2019, has filed the present three applications with the same relief etc., is unsustainable.
22. In the result, these three Civil Revision Petitions are allowed. The orders dated 20.12.2021 impugned herein passed in I.A.No.65 of 2021, I.A.No.66 of 2021 and I.A.No.98 of 2021 in O.S.No.232 of 2011 by the Principal Senior Civil Judge at Mancherial are set aside. The said Interlocutory Applications are allowed. The learned Judge shall receive the certified copies of the sale deeds bearing document Nos.8869 and 8870 of 2006, reopen the case and permit the 4th plaintiff to adduce evidence as P.W.2, also permit the defendants to cross-examine the P.W.2. As discussed supra, the suit is of the year 2011, the learned Judge shall dispose of the said suit in accordance with law within three 4 1996(1) ALT 270 17 18 months from the date of receipt of a copy of this order. Both the plaintiffs 2 to 4 and the defendants shall cooperate with the trial Court in disposal of the said suit without asking for adjournments on flimsy grounds. If any of the parties fail to cooperate with the trial Court in disposal of the said suit in accordance with law, liberty is granted to the Court below to take steps in accordance with law. There is no order as to costs.
23. As a sequel, miscellaneous petitions, if any, pending shall stand dismissed.
_________________ K. LAKSHMAN, J Date:29.04.2022.
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