Telangana High Court
Y.Anthi Reddy vs Mrs. Nafees Khan on 28 April, 2022
Author: A.Rajasheker Reddy
Bench: A.Rajasheker Reddy
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P.Nos. 1500, 1508, 1607 and 1654 of 2021
COMMON ORDER
The respondents 1 to 5 in all the revisions are the plaintiffs. They filed O.S.No.422 of 2019 on the file of XV Additional District and Sessions Judge, - cum - Additional Family Judge, Ranga Reddy District at Kukatpally, seeking declaration and permanent injunction in respect of the suit schedule property.
2. Defendant Nos.3, 1 and 4 filed I.A.Nos.42 of 2019, 646 of 2020 and 676 of 2020 respectively in O.S.No.422 of 2019 under Order 7, Rule 11 read with Section 151 CPC seeking for rejection of the plaint on the ground that the suit is barred by law; that it does not contain the relief of possession; that it is hit by non-joinder of parties; that the orders passed by the Supreme Court in Civil Appeal Nos.4731-4732/2010 dated 21.03.2017 are violated; and the partition deed dated 20.07.2016 and deed of settlement dated 21.07.2016 are not registered.
3. The plaintiffs by filing counter affidavits resisted the claim of the above stated defendants.
4. The trial court vide common order dated 04.09.2021 dismissed the applications with costs.
5. Assailing the same, the defendant Nos.1 and 3 filed CRP.Nos.1607 and 1654 of 2021.
6. Pending the suit, the plaintiffs and defendants 8 and 9 entered into compromise and filed I.A.No.259 of 2021 in O.S.No.422 of 2019 for 2 recording of compromise. The trial court, vide order dated 04.09.2021 allowed the application subject to condition that since defendants 1 to 7, have not signed the compromise petition, the compromise decree will not be binding on them and that they are at liberty to ventilate their grievance even in respect of the terms and conditions referred to the compromise decree.
7. Assailing the order dated 04.09.2021, the defendant No.3 filed CRP.No.1500 of 2021 and the defendant No.1 filed CRP.No.1508 of 2021.
8. Since all the revisions are connected and arise out of the same suit in O.S.No.422 of 2019 on the file of XV Additional District and Sessions Judge, - cum - Additional Family Judge, Ranga Reddy District at Kukatpally, and the parties are common, they are heard together and are being disposed of by this common order.
9. For the sake of convenience, the parties will be referred to as per their array in the original suit.
10. In the plaint, the case of the plaintiffs is that they are the legal heirs of late Shareefunnisa Begum, who is the 6th defendant in O.S.No. 42 of 1962 on the file of City Civil Court, Hyderabad, filed for partition of matruka properties left behind by late Nawab Mohd Nawaz Jung. By virtue of the preliminary decree dated 24.11.1970 passed in the said suit, item No.6 in the plaint B Schedule property fell to the share of Mr. Hasan Ali Khan (D-3), Smt. Shareefunnisa Begum (D-6) and other sharers, and they were given constructive possession by the Advocate Commissioner vide his reported and panchanama dated 28.11.1993, and in the said report it is noted that various third parties are in possession on the strength of various 3 instruments executed during the pendency of the preliminary decree proceedings.
11. While so, Hasan Ali Khan (D-3) and Smt. Sharafunnisa Begum (D-6) along with Masood Ali, legal representative of Ahmed Ali Khan (D-2), entered into agreement of sale dated 25.12.1993 of their respective shares in item No.6 of the B Schedule property with 1. V.Madan Mohan Rao, 2. T.Ravi,
3. Y.Anitha Reddy, 4. K.Sridhar Reddy, 5. V.Radha Krishan and
6. C.V.Krishna Rao, who are defendants 1, 2, 3, 4, 6, 7, and part of the sale consideration was paid to the vendors, and the parties intended for an outer limit of ten years for completing the transaction. Subsequently Mr. Hasan Ali Khan and Smt. Shareffunnisa Begum, by accepting part of further balance consideration, executed unregistered deed of assignment dated 01.10.1998, and it was agreed that balance terms and conditions under the agreement of sale shall continue to be binding on assignees / defendants to perform the same before the execution of sale deed in favour of the Assignors i.e., Hasan Ali and Smt. Shareefunnisa Begum, and it was also agreed that balance of sale consideration shall be paid as per agreement of sale dated 25.12.1993. That in furtherance of the unregistered agreement of sale dated 25.12.1993 and the deed of assignment dated 01.10.1998, Mr. Hsan Ali Khan and Smt. Sharafunnisa Begum along with Masood Ali Khan executed a GPA dated 22.10.1990 in favour of V.Madan Mohan Rao and T.Ravi, to manage the land in an extent of Acs.23.12 gts and prosecute the pending litigation in O.S.No.42 of 1962. The defendants herein got themselves impleaded in the final decree proceedings and paid amounts to Mr. Hasan Ali Khan and Smt. Sharefunnisa Begum on 15.03.1999 towards part payment of balance of sale consideration, and on 02.04.2004, a further amount of Rs.1,00,000/- was paid to Mr. Hasan Ali Khan and 4 Smt. Sharefunnisa Begum, towards part of balance consideration. Thereafter final decree passed on 07.07.2005, which was confirmed by the Apex Court vide order dated 21.03.2017.
12. The further case of the plaintiffs is that along with them, the 5th defendant is also entitled for the share of Mr. Hasan Ali Khan by virtue of the will dated 31.03.2003 bearing document No.26 of 2003.
13. That the plaintiffs were entitled to balance of sale consideration, but the defendants 1 to 7 claiming right and title over the suit schedule property by virtue registered agreement of sale without possession dated 21.7.2016, denied the payment of balance of sale consideration, which the plaintiffs are entitled to as per the agreement of sale dated 25.12.1993 and deeds of assignment dated 1.10.1998. It is also stated that during the pendency of the final decree proceedings, the defendants approached Smt. Shareefunnisa Begum on 3.5.2008, 8.5.2008 and 27.04.2008 and offered enhanced sale consideration in view of delay in completing the transaction.
14. That even after conclusion, the defendants did not come forward to fulfill the obligations under the unregistered agreement of sale dated 25.12.1993, and unregistered deed of assignment dated 1.10.1998.
15. That the defendants got executed an unregistered deed of partition dated 20.07.20016 making Smt. Shareefunnisa Begum and plaintiffs herein as proforma parties, as one part, and the legal heirs of Mr. Masood Ali Khan as another part. On 21.07.2016, an unregistered deed of settlement was executed between Smt. Shareefunnisa Begum and Plaintiffs and defendants 3 and 4 herein as one part, and defendants 8 and 5 9 herein as another part, enhancing the sale consideration to Rs.15 crores. Defendants 8 and 9 herein paid part of consideration of Rs.1.26 crores. Further in the said document, it was mentioned that balance of sale consideration would be paid once clear and marketable title was available with the first part, and at the time of execution of the sale deeds. Further a registered agreement of sale without possession dated 21.07.2016 bearing document No.9351 of 2016 was executed by Smt. Shareefunnisa Begum, plaintiffs No.1 and 5 and defendants 1 to 5 herein in favour of defendants 8 and 9 herein. This document was executed in pursuance of the settlement deed dated 21.07.2016 reiterating the contents thereof with regard to the enhancement of sale consideration of Rs.15 crores and paying of part consideration of Rs.1.26 crores.
16. It is further stated inter alia that as the defendants failed to perform their part of obligation under various documents executed between them, the plaintiffs got issued legal notice published in Deccan Chronicle dated 20.12.2018 revoking / canceling the agreement of sale dated 25.12.1993 and also the deed of assignment dated 1.10.1998, which was replied by the defendants on 22.12.2018 on untenable grounds.
17. That during the pendency of the final decree proceedings, the defendant No.3 went on selling spree, without any manner of right and created third party rights.
18. With the above averments, the plaintiffs filed the suit for declaration and permanent injunction.
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19. As noted above seeking for rejection of the plaint, the defendants 1, 3 and 4 filed the respective Interlocutory Applications under Order 7, Rule 11 of the CPC.
20. The case of the defendant No.3 is that there is no dispute with regard to passing of the preliminary decree dated 24.11.1970, which has become final, and there is also no dispute with regard to rights under the preliminary decree. That I.A.No.854 of 1984 was filed in the said suit in O.S.No.42 of 1962 for passing of the final decree. Pending final decree proceedings, Mr Masood Ali Khan, who is the legal representative of Mr. Ahmed Ali Khan (D-2), Mr. Hasan Ali Khan (D-3) and Smt. Shareefunnisa Begum (D-6) had executed an agreement of sale dated 25.12.1993 in favour of six persons i.e., defendants 1 to 6 herein.
21. That after execution of the agreement of sale in relation to their respective share, two assignment deeds were executed on 1.10.1998. The first assignment deed was executed on 1.10.1998 by Mr. Hasan Ali Khan, Smt. Shareefunnisa Begum and Mr. Masood Ali Khan (who is the L.r. of defendant No.2) in favour of D-1, D-3 and one M.A.Shareef, who is D-5 herein. The said assignment deed was recognized by the I Senior Civil Judge, City Civil Court in I.A.No.307 of 1999 in I.A.No.854 of 1984 in O.S.No.42 of 1962 dated 22.4.1999. The said orders have become final, and the same was not challenged by the plaintiffs herein.
22. That the second assignment deed was executed by one Mr. Hasan Ali Khan and Smt.Shareefunnisa Begum and Mr. Masood Ali Khan in favaour of Mr. V.Madhan Mohan Rao, Mr. T.Ravi, Y.Anthi Reddy, Mr. K.Sridhar Reddy, Mr. V.Radha KIrishna and Mr. C.V.Krishna Rao. The 7 same is subject matter in I.A.No.308 of 1999 in I.A.No.854 of 1984 in O.S.No.42 of 1962.
23. That final decree was passed on 7.7.2005. The issue in the said suit was whether the sale deed executed by defendant No.1 in O.S.No.42 of 1962 in relation to item No.6 of the B-Schedule property in favour of one Mr. Bala Mallaiah is valid or not. The matter was carried up to Apex Court in Civil Appeal No.4731-4732 of 2010. It is pertinent to mention herein that the appeal was filed by the defendants herein. Mr. Shareefunmnisa Begum was alive during the said period, and she never questioned the agreement of sale, the assignment deeds, the order passed by the court in I.A.Nos.307 and 308 of 1999 in O.S.No.42 of 1962, recognizing the assignment and impleading the defendants Nos.1 to 7 herein as respondents in the final decree. Further the Apex Court in Civil Appeal Nos.4731-4732 of 2010 vide order dated 21.03.2017 held that the rights of the assignees / appellants were also recognized in terms of assignment deed and separate possession was given to them. The said finding was not disputed by Smt. Shareefunnisa Begum, or by any other party. Therefore it is clear that under the final decree dated 7.7.2005, defendants 1 to 7 herein, have been put in possession of the parties.
24. With these averments it is contended that the suit is barred by law of limitation, and that as no relief for possession was sought and the necessary parties were not impleaded, and as filing of the present suit is contrary to the judgment of the Apex Court in Civil Appeal No.4731-4732 of 2010 dated 21.03.2017, rejection of the plaint was sought.
25. As noted above, the trial court dismissed the applications with costs.
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26. Heard Sri C.Raghu and Sri A.Venkatesh learned Senior Counsel appearing for the petitioners/ defendants 1 and 3.
27. Learned Senior counsel appearing for the petitioners / defendants 1, and 3 contends that the suit has to be rejected on the ground of res-judicata because the inter se rights between the defendants 2, 3 and 6 in O.S.No.42 of 1962 and the assignees i.e., defendant 1, to 7 herein have been confirmed by the Hon'ble Supreme Court in Civil Appeals Nos.4731- 47232 of 2010 dated 21.03.2017. As the plaintiffs herein are claiming right from defendant No.2 in O.S.No.42 of 1962, the claim is hit by the principles of res judicata.
28. That orders passed confirming the assignments in I.A.No.307 and 308 of 1999 have been confirmed by the trial court wherein O.S.No.42 of 1962 was pending, and some of the defendants therein i.e., D-2, D-3 and D-6 have challenged the same and the said order has become final and the final decree was passed in I.A.No.854 of 1984 dated 7.7.2005. Therefore, the present suit is hit by the principles of res judicata.
29. It is further submitted that in view of crystallizing rights of the parties up to Apex Court, the conduct of defendants 8 and 9 entering into compromise with the plaintiffs, affecting the rights of other defendants, is nothing but collusion, and hence, they cannot be permitted to enter into compromise
30. In support of the above submissions, the learned Senior Counsel appearing for the petitioners / defendants 1 and 3 relied on the judgments 9 reported in SUCHA SINGH SODHI vs. BALDEV RAJ1, LIVERPOOL & LONDON vs. M.V.SEA SUCCESS2, JAYWANTRAJ vs. H.CHOSKI3, PUSHPA DEVI vs. RAJENDER SINGH4 and SR SOMASUNDARAM vs. S.KUMARA SWAMY5.
31. Heard Sri Sunil B.Ganu, and Sri K.K.Waghray learned counsel for the respondents / plaintiffs. And Sri Rakesh Sanghi, learned counsel for the proposed respondent No.14.
32. Learned counsel for the respondents/plaintiffs supporting the impugned order, sought to dismiss the revisions, and they also relied on the judgments reported in LIVERPOOL & LONDON vs. M.V.SEA SUCCESS (2 supra), P.V.GURU RAJ REDDY vs. P.NEERADHA REDDY6, SHAUKATHUSSAIN MOHAMMED PATEL vs. KHATUBEN MOHMMEDBHAI POLARA7, POPAT AND KOTECHA PROPERTY vs. STATE BANK OF INDIA STAFF ASSOCIATION8, KASANI NARSIMHULU vs. SATHAGOWNI SRINIVAS GOUD9, M.A.E. KUMAR KRISHNA VARMA vs. SRI RAMOJI RAO10, MURUGAN vs. KESAVA GOUNDER11, DAHIBEN vs. ARVINDBHAI KALYANJI BHANUSALI (GARJA) DEAD BY LRS. AND ORS.12, SURAJ LAMP AND INDUSTRIES PVT. LTD. v. STATE OF HARYANA13, VIDHYADHAR vs. MANIKRAO14 , MST RUKHAM BAI vs. LALA LAKSHMINARAYAN15, 1 (2018)6 SCC 733 2 (2004)9 SCC 512 3 (1997)10 SCC 193 4 (2006)5 SCC 566 5 (2021) Law Suits (SC)345 6 (2015)8 SCC 331 7 (2019)10 SCC 226 8 (2005)7 SCC 510 9 2004(2) ALD 149 10 2008(6) ALD 630 11 2019 SCC OnLine SC 270 12 (2020)7 SCC 366 13 (2012)1 SCC 656 14 (1999)3 SCC 573 10 CHHOTANBEN& ANR. Vs. KKIRITBHAI JALKRUSHNABHAI TAKKAR & ORS.16, AAA LANDMARK PRIVATE LTD. vs. RAKESH SARIN & ORS. 17 ARNAB KUMAR SARKAR vs. REBA MUKHERJEE18, UNION OF INDIA vs. DHANWANTI DEVI19, DIRECTOR OF SETTLEMENTS, A.P. & ORS. Vs. M.R. APPARAO & ANR.20, DINESH JAIN & ORS. v. JITENDRA PANDYA & ORS.21, M/S DURGA MATHA BUILDING CONSTRUCTION COOP. HOUSING SOCIETY LTD. vs. SADA YELLAIAH22 and K.BHASKARAM & ANR. vs. MOHAMMAD MOULANA (DIED) & ORS23.
33. Heard the respective counsel appearing for the parties who made submissions at length, and perused the material available on record and also judgments relied on by the learned counsel.
34. As contended by the learned counsel appearing for the revision petitioners / defendants 1, 3 and 4, as per Order 7, Rule 11 CPC, if the plaint, as a whole, does not disclose any cause of action, and that it is barred by law of limitation, or on any of the grounds mentioned in the said provision, the plaint can be rejected.
35. A perusal of the averments, which are already extracted above, goes to show that the plaintiffs are mainly relying on the unregistered agreement of sale dated 25.12.1993 and the deeds of assignment dated 01.10.1998 and the subsequently agreements alleged to have been entered into between the parties, which are spanning up to the year of 2018 and 15 AIR 1960 SC 535 16 AIR 2018 SC 2447 17 C.R.No.7457 of 2017 dated 6.11.2017 passed by the High Court of Punjabh and Haryana 18 AIR 2007 Cal. 79 19 (1996)6 SCC 44 20 (2002)4 SCC 638 21 MANU/RH/0147/2018 22 AIR 2010 AP 231 23 AIR 2005 AP 524 11 their grievance is non-payment of sale consideration as agreed under the said agreements.
36. On the other hand, the case of the contesting defendants in the present Interlocutory Applications is that the agreement of sale dated 25.12.1993 and the deeds of assignment dated 01.10.1998 were recognized by the I Senior Civil Judge, City Civil Court in I.A.Nos.307 and 309 of 1999 in I.A.No.854 of 1984 in O.S.No.42 of 1962 dated 22.04.1999 and the present defendants in the suit have carried the matter to Apex Court in Civil Appeal No.4731-4732 of 2010 and the said appeals were during the life time of Smt. Shareefunnisa Begum, through whom the present plaintiffs are tracing title and possession, and that when the said predecessor in title of the plaintiff has never questioned the agreement of sale and they have become final by virtue of the judgment of the Apex Court dated 21.03.2017 wherein it is categorically observed in paragraph No.5 that "rights of the assignees / appellants were also recognized in terms of assignment deed and separate possession was given to them." it is not open to the plaintiffs to question the agreement of sale, and the deeds of assignment, executed during the year 1993 and 1998, and hence suit is hit by not only law of limitation but also res judicata, and further chain of events is only ingeniously created to save the law of limitation and hence the plaint has to be rejected.
37. In this regard it is necessary to look into the law laid down by Apex in the decision reported in RAPTAKOS BRETT & Co. Ld. V. GANESH PROPERTY24 wherein it was held that the question whether the plaint disclosed a cause of action or not, should be determined on the basis of 24 (1998)7 SCC 584 12 averments made in the plaint and nothing else. In an other decision reported in ROOP LAL v. GILL25, the Apex Court held that for determining whether the plant discloses the cause of action or not, averments in the plaint alone are relevant and material.
38. The Apex Court in the decision reported in LIVERPOOL AND LONDS S.P. AND I. ASSN. LTD. V. V.SEA SUCCESS (2 supra), held as under:
"Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statue the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is not ground for striking it out. The purported failure of the pleadings to disclose a cause of action is district from the absence of full particulars.
It may be true that Order 7 Rule 11(a) although authorizes the Court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining relief in the suit."
39. Further the Apex Court in an other decision reported in MADHAV PRASAD AGGARWAL v. AXIS BANK LTD.,26 while considering the issue whether the suit can be continued against some of the defendants, held that such a course is not open to the court and held that plaint can either be rejected as a whole or not all. The Apex court further held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. It also held that in certain terms that if the plaint survives 25 (1982)3 SCC 487 26 (2019)7 SCC 158 13 against certain defendant(s) and / or properties, Order 7, Rule 11(d) CPC will have no application at all and the suit as a whole must then proceed to trial.
40. It is to be seen that if the plaint discloses a cause of action based on the averments made in the plaint, the suit cannot be rejected on the ground of possible defense. The Apex Court held that at this stage, it is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact and that based on allegations if cause of action is shown, the suit can be entertained.
41. A perusal of the impugned common order herein goes to show that the trial court passed an elaborate order and in an enthusiasm, has also made certain observations, which are in the nature of findings. Such observations without undergoing the process of trial, would influence the final adjudication, which needs to be deprecated. However, while recording such findings, the trial court has not appreciated the case set up by the contesting defendants. However, since it is not the stage to go into those aspects, this court is restraining itself from making any observation, which are required to be considered only during trial, based on material evidence.
42. It is settled law that the law of limitation is a mixed question of law and fact, and no finding at the threshold can be recorded and further the contesting defendants herein have also raised the issue of res judicata, which also needs to be considered by the trial court.
43. As per the facts noted above, as the plaint disclosed cause of action, the same needs to be entertained and as per the law laid down by the Apex Court in the citations referred to supra, the defence set up by the defendants 1, 3 and 4, cannot be gone into at this stage. 14
44. Hence, this court is not inclined to interfere with the impugned order of the trial court in dismissing the applications filed by the defendants 1, 3 and 4. However, having regard to the facts and circumstances of the case, imposing of costs cannot be sustained.
45. Coming to the order passed in I.A.No.259 of 2021 in O.S.No.422 of 2019 dated 04.09.2021 it could be seen that the trial court has protected the interest of defendants 1 to 7. However for better appreciating the operative portion is extracted as under:
"12. In the result, the petition is allowed without costs subject to the following conditions:
(a) As the defendant Nos.1 to 7 have not signed the compromise deed, obviously they would not be bound by the terms of the compromise and the interest of the said defendants, if any, in the subject property shall not be affected in any manner;
(b) The allowing of this petition shall not bind the defendants 1 to 7 and they are at liberty to ventilate their grievance even with respect to the terms and conditions referred to in the compromise deed, in case, they affect their rights and contentions in the suit;
(c) The contentions raised on behalf of defendant No.3 and other defendants can also be put forth during the trial for consideration and the recordings of the compromise shall be subject to the result of the suit."
46. In view of the above conditions, the interest of defendants 1 to 7 is protected, and hence I do not find any reason to interfere with the impugned order of the trial court in recording compromise, and the revisions filed in this regard, are liable to be rejected.
47. With regard to implead petition, it is noticed that one Mr. Syed Nusrath Hussain, who claims to be the defendant No.48 in the final decree dated 7.7.2005 passed in I.A.No.854 of 1984 in O.S.No.42 of 1962 by the court of I Senior Civil Judge, City Civil court, Hyderbad, filed the Interlocutory Applications in these revisions for impleading as proposed 15 respondent No.14. Counter affidavits have also been filed denying the claim of the proposed respondent. In the affidavit filed in support of the implead application it is stated that he filed implead application seeking to implead him as defendant No.10 in O.S.No.422 of 2019. As the said application is filed before the trial court, and the same is pending consideration, this court is not inclined to pass any order, and it is open for the trial court to pass appropriate orders in accordance with law after giving opportunity to both the parties.
48. For the foregoing reasons, this court is not inclined to interfere with the impugned common order passed by the trial court, and subject to above observations, the same is confirmed, and the revisions are dismissed. However, the order of the trial court in imposing costs is set aside.
49. The case has a checkered history since 1993 during which year agreement of sale was entered into, and the matter was also carried up to Apex Court, and the many of the parties are senior citizens. Therefore, having regard to the facts and circumstances of the case, the trial court shall make every endeavor to dispose of the suit in accordance with law and after giving opportunity to all the parties, as expeditiously as possible, preferably within a period of eight months from the date of receipt of a copy of this order, without being influenced by any observation made either in this order or in the impugned common order.
50. Interlocutory Applications pending, if any, shall stand closed. No order as to costs.
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A.RAJASHEKER REDDY,J DATE:28--04--2022 AVS