Telangana High Court
Mohd Khaja Kaleem Uddin vs Mohd Khaja Fakruddin on 29 November, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CCCA No.78 of 2001
and
Tr.CCCA No.163 of 2016
COMMON JUDGMENT:
These two appeal suits are arising out of common judgment dated 19.02.2001 in OS No.914 of 1994 and OS No.1458 of 1997 on the file of the learned V Senior Civil Judge, City Civil Court at Hyderabad.
2. The suit in OS No.914 of 1994 was filed by the plaintiff therein for declaration of title in respect of property bearing No.17-3-676 with mulgies 1 to 4 and for recovery of possession of a portion of the premises under tenancy of the defendant with two mulgies i.e., house No.17-3-676/3 and 4 and also for damages for unauthorized use of property by the defendant. Whereas OS No.1458 of 1997 was originally filed before the IX Assistant Judge, City Civil Court, Hyderabad, vide OS No.3042 of 1992 for injunction by the same plaintiff against the same defendant restraining the defendant from inducting third parties into the suit premises. Accordingly, this suit was transferred to Page 2 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 the Court of the learned V Senior Civil Judge, City Civil Court at Hyderabad, renumbered and tried together with the comprehensive suit in OS No.914 of 1994 by leading evidence only in OS No.914 of 1994.
3. Both the suits were decreed as per the common judgment and decree dated 19.02.2001 declaring that the plaintiff as the owner of the entire suit premises bearing No.17-3-676 along with mulgies 1 to 4, Bada Bazar, outside Yaktpura, Hyderabad and he is entitled to recover the possession in respect of house No.17-3-676/3 and 4 two mulgies. It is further declared that the plaintiff is also entitled for recovery of arrears of rent from July 1991 to June 1994. The defendant was directed to deliver the vacant possession of house No.17-3-676/3 and 4 with two mulgies. Whereas, the counter claim filed by the defendant was dismissed and perpetual injunction was granted restraining the defendant as prayed for.
4. Feeling aggrieved by the above said common judgment and decree in OS No.914 of 1994 and OS No.1458 of 1997, the unsuccessful defendant therein has Page 3 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 filed these CCCA No.78 of 2001 against the judgment and decree in OS No.914 of 1994 and Tr.CCCA No.163 of 2016 against the judgment and decree in OS No.1458 of 1997. Pleadings in OS Nos.914 of 1994 and 1458 of 1997:
5. The plaintiff has filed the original suit in OS No.914 of 1994 for declaration that he is the owner of suit schedule property along with the mulgies and for recovery of possession of a portion of the premises under the tenancy of defendant with two mulgies i.e., house No.17-3- 676/3 and 4 and also for damages alleging that he is the absolute owner of the suit schedule property. He let out a portion and two mulgies to the defendant. Originally, it was an open plot allotted to Smt. Jahangir Bee by the Municipal Corporation of Hyderabad (for short 'M.C.H.') as per the proceedings No.3037/EE/TC1/82, dated 11.03.1982, Circle-I, as compensation in lieu of acquisition of her house in the road widening at Yakatpura, Hyderabad. Smt. Jahangir Bee has surrendered her pucca house to the M.C.H. and received compensation of Rs.80,000/-, additionally the Municipal Corporation has Page 4 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 also allotted an open plot of 138 square yards. Thereupon, late Jahangir Bee has given the said open plot and some amount of cash to the plaintiff, accordingly, he has built a house along with four mulgies and the very same house number was assigned. A paper notification was also issued by M.C.H. on 12.11.1982. At the time of giving open plot Smt. Jahangir Bee has requested the plaintiff to provide a portion for her residence. Accordingly, the plaintiff gave a portion of his house to Smt. Jahangir Bee on a monthly amount of Rs.100/-. Later, she died on 30.10.1987 and before her death, she has requested to allow the defendant to reside in a portion of the house on payment of monthly rent. Accordingly, the plaintiff allowed the defendant to reside in a portion of his house. But after the death of Smt. Jahangir Bee, the defendant has obtained two mulgies on a monthly rent of Rs.2,00/- each. Thus in all, the defendant used to pay Rs.500/- per month to the plaintiff and obtaining the receipts. However, from January 1987 onwards, the defendant stopped payment of rents and he is a willful defaulter.
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6. The plaintiff has filed RC No.572 of 1989 before the Principal Rent Controller, City Civil Court at Hyderabad, seeking eviction of the defendant from the portion of the house under his occupation along with two mulgies and also for payment of arrears of rents. Thereafter, the defendant has also filed RC No.719 of 1989 claiming title over the suit schedule property seeking the relief of eviction of the plaintiff and recovery of arrears of rents from the year 1980 alleging that the plaintiff is a tenant in the suit house and failed to pay the rents. But, both the cases in RC No.572 of 1989 and RC No.719 of 1989 were dismissed by the learned Rent Controller holding that jural relationship is not established. Meanwhile, the plaintiff has filed OS No.3042 of 1992 on the file of the learned IX Assistant Judge, City Civil Court at Hyderabad for perpetual injunction against the defendant restraining him from inducting third parties in the suit premises. Another suit in OS No.914 of 1994 is filed for declaration and recovery of arrears and recovery of possession of property in the possession of defendant. As such, OS No.3042 of 1992 suit for perpetual injunction Page 6 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 was transferred to the learned V Senior Civil Judge and renumbered as OS No.1458 of 1997 and tried along with OS No.914 of 1994.
7. The main averments of the written statement filed by the defendant in both the suits stated above are that he is the owner of suit schedule house along with four mulgies. The suit claim is barred by limitation. False allegations are created. Originally, Smt. Modin Bi was the owner and possessor of the suit house. The plaintiff has filed the suit in OS No.677 of 1971 on the file of the learned II Assistant Judge, City Civil Court at Hyderabad for specific performance against her and the suit was dismissed on 30.01.1980 and the plaintiff has preferred appeal suit in AS No.251 of 1980 on the file of the learned Additional Chief Judge, City Civil Court, Hyderabad and that appeal was also dismissed on 26.02.1981, as such the plaintiff is not the owner of the suit house. The plaintiff's story of allotment of plot by M.C.H. to Smt. Jahangir Bee is a created one, as she died during the life time of Smt. Modin Bee, thereby Smt. Jahangir Bee (mother of the Page 7 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 plaintiff and defendant) investing money either on her behalf or the plaintiff investing money does not arise. The plaintiff has filed Tr.OP No.1431 of 1995, wherein it is alleged that the property was gifted to him by his mother, as such the plaintiff is changing his stand from time to time to suit his convenience. Neither Smt. Jahangir Bee nor the plaintiff are the owners of suit schedule property and the defendant was not a tenant of suit house at any point of time.
8. The real facts are that the plaintiff has obtained a portion of suit house from the defendant in July, 1980 on a rent of Rs.100/- and obtained two mulgies each for Rs.200/- and committed default in payment of rent from February, 1980 onwards. As such, the defendant is making counter claim for recovery of possession and arrears of rents. There is no jural relationship of landlord and tenant between the plaintiff and defendant, false cases foisted against him. The plaintiff did not approach the Court with clean hands. The defendant is not liable to pay any amount towards arrears of rents and he is not liable to Page 8 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 be evicted. The Rent Control Cases filed by both the parties were dismissed by the learned Rent Controller. Before filing these two suits, a legal notice was also issued and it was suitably replied and prayed for dismissal of both the suits and to allow the counter claim made by him. Issues:
9. On the strength of the above pleadings, the trial Court has framed the following issues and on additional issue:
i) Whether the plaintiff is entitled for the relief of declaration of title in respect of the suit schedule property as prayed for?
ii) Whether the plaintiff is entitled for recovery of possession of portion of the suit property as prayed for?
iii) Whether the plaintiff is entitled for arrears of rents?
iv) Whether the plaintiff is entitled for damages as prayed for?
v) Whether the suit is hit by the principles of res-
judicata?
vi) To what relief? Page 9 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 Additional issue:
"whether the defendant's grant mother gifted the suit schedule property in favour of defendant and that he is in possession of the suit land as pleaded by defendant?"
Evidence and findings of the trial Court:
10. As stated supra, the evidence was adduced in the lead case in OS No.914 of 1994 on behalf of the plaintiff. He himself got examined as PW.1 and also examined Syed Abbas Hussain as PW.2 and got marked Exs.A.1 to A.17. Thereafter on behalf of the defendant, he himself got examined as DW.1, his brother is examined as DW.3 and his uncle is examined as DW.2 and Exs.B.1 to 5 documents were marked. The learned V Senior Civil Judge, City Civil Court, Hyderabad, on appreciation of the evidence available on record decreed both the suits declaring that the plaintiff is the owner of entire suit schedule house along with four mulgies and entitled for recovery of possession, of a portion of the house along with two mulgies in the possession of defendant and the defendant was directed to deliver the vacant possession Page 10 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 within two months thereof and to pay the arrears of rents. Whereas, the counter claim made by the defendant was dismissed and a perpetual injunction was granted against the defendant restraining him from inducting any third parties into the suit house and the plaintiff was directed to move separate application for damages/mesne profits.
11. Heard the learned counsel on both sides. The submissions made on either side have received due consideration of this Court.
12. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendant as arrayed in the original suit.
13. In the light of the rival contentions and the oral and documentary evidence available on record, the following points would arise for consideration:
i) Whether the plaintiff is entitled for declaration of title and recovery of possession, arrears of rents/mesne profits as prayed for?;Page 11 of 27
AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016
ii) Whether the plaintiff is also entitled for perpetual injunction restraining the defendant from inducting any third party into the portion of suit house in his possession?
iii) Whether the defendant is entitled for the relief of declaration, recovery of possession as per his counter claim?
iv) Whether the common judgment and decree impugned dated 19.02.2001 in OS Nos.914 of 1994 and 1458 of 1997 is sustainable?
Point Nos.(i) to (iv):
14. Since all the points are inter-related, to avoid repetition and for the sake of brevity, it is proposed to answer all the points together as under:
15. The admitted or undisputed facts of both the cases are that the plaintiff and defendant are the real brothers. Smt. Jahangir Bee is their mother and Smt. Modin Bee is their grandmother. The plaintiff has filed OS No.677 of 1971 against Smt. Modin Bee for specific performance of agreement and that the suit was dismissed. Thereupon, he has filed appeal AS No.251 of 1980, it was Page 12 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 also dismissed by the learned Additional Chief Judge, City Civil Court, Hyderabad and the matter has attained finality, as no second appeal is preferred. The plaintiff has filed RC No.572 of 1989 against the defendant for eviction and recovery of rents, thereafter, the defendant has filed RC No.719 of 1989 claiming the very same relief. However, both the Rent Control Cases were dismissed by the learned Rent Controller holding that the jural relationship of landlord and tenant is not established in both the cases. Thereafter, the plaintiff has filed OS No.3042 of 1992 on the file of the learned IX Assistant Sessions Judge, City Civil Court, Hyderabad for injunction restraining the defendant from inducting any third parties into the suit premises. Again in the year 1994 the plaintiff filed a comprehensive suit in OS No.914 of 1994 for declaration of title and recovery of possession, arrears etc., against the plaintiff, wherein the defendant has set up a rival claim for title and recovery of possession by way of counter claim. Subsequently, that suit in OS No.3042 of 1992 was also transferred to the Court of V Senior Civil Judge, City Civil Court, Hyderabad and renumbered as OS No.1458 of 1997. Page 13 of 27
AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 Both the suits were tried together by leading evidence in OS No.914 of 1994.
16. The learned counsel for the appellant/ defendant strenuously contends that the findings recorded in RC No.572 of 1989 and 719 of 1989 operate as res judicata as far as the jural relationship of landlord and tenant is concerned and that the plaintiff has suppressed the material fact of filing OS No.677 of 1971 and dismissal of the said suit confirming the same in AS No.251 of 1980 and he did not approach the Court with clean hands, not entitled for the relief of declaration of title and relied on the principles laid in the following decisions:
i) Dr. G.H. Grant Vs. State of Bihar1;
ii) Mohammed Abdul Qadeer Vs. Mohammed
Abdul Salam & others2 (Orders of a learned single Judge of this Court in Civil Revision Petition No.7021 of 2018, dated19.06.2019);
iii) Ramesh Gakwad and others Vs. Lalitha Srikrish and others3;
iv) K. Arumuga Velaiah Vs. P.R. Ramasamy and another4; and 1 AIR 1965 SC 237 2 Manu/TL/05512019 3 2022 (2) ALD 727 (TS)(DB) 4 2022 (2) ALD 1 (SC) Page 14 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016
v) Durga Bai Vs. Ayyub Begum5 (Orders of another learned single Judge of this Court in Civil Revision Petition No.1266 of 2019 dated 08.06.2020).
17. I have perused the principles laid in the above decisions. There cannot be any dispute about the proposition of law laid down in the above decisions.
18. On behalf of the plaintiff, he himself got examined as PW.1. In his evidence, in the chief examination reiterated the plaint averments and also stated that his mother has got the suit property from M.C.H. in lieu of old house bearing No.17-3-676 and compensation of Rs.80,386/- was also paid. In the open site, he has constructed the suit house consisting of residential house of four rooms, corridors, kitchen, toilets and four mulgies with the permission of M.C.H. and the municipal authorities have assessed the tax and assigned the very old house numbers. He further stated that after the death of his mother, the entire suit schedule property was in his possession and the defendant has asked him to 5 2020 (6) ALD 447 (TS) Page 15 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 give the suit house for rent and accordingly he has given a portion of suit house for Rs.100/- per month and two mulgies @ Rs.200/- per month rent together, total amount of Rs.500/- per month the defendant has paid the rent for about four or five months. Thereafter, stopped payment of rents, he has got issued Ex.A.6-legal notice, for which the defendant has issued Ex.A.7 reply notice claiming title and refusing to pay the rents, then he has filed RC No.572 of 1989, again the defendant has filed RC No.719 of 1989. Both the Rent Controller Cases were dismissed. Thereafter, he has filed OS No.1458 of 1997 for injunction and OS No.914 of 1994 for declaration. PW.1 further stated that he has filed OS No.677 of 1971, it was dismissed and filed AS No.251 of 1980 which was also dismissed.
19. In the cross-examination, PW.1 admitted that he filed that suit in OS No.677 of 1971 in respect of house bearing No.17-3-676, Yakatpura, Hyderabad and it was dismissed and aggrieved by the same, he has filed AS No.251 of 1980 and the appeal suit was also dismissed on Page 16 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 26.02.1981. He admitted that he has no rent receipts to show that the defendant has paid rents to him at any point of time. He denied the suggestion that late Modin Bee has gifted the entire suit schedule property in favour of defendant and that he is only a tenant in a portion of suit house paying monthly rent of Rs.500/- to the defendant. PW.1 admitted that the suit property was not purchased by him, though it is averred in the plaint that it is his self- acquired property, explained that it was given to him by his mother and the municipal authorities have assigned old number when MCH has demolished and constructed in the year 1986.
20. PW.2 is an independent witness, who stated that the plaintiff is his childhood friend, schoolmate and he came to the Court to give evidence at his request and that he does not know since how long the defendant is residing in the suit house and he does not know whether the defendant is residing in the suit house either as owner or as a tenant. Thus, such evidence of PW.2 is not at all Page 17 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 helpful to the plaintiff to establish either his ownership or the nature of possession of the defendant.
21. The defendant himself got examined as DW.1. In his entire evidence in the chief examination only reiterated the plaint averments. In the cross-examination, this witness stated that he has filed record to show that Modin Bee has 400 square yards of land consisting of a house and she received Rs.80,000/- as compensation, explained that the said compensation amount was received by Smt. Jahangir Bee. Whereas, 160 square yards of land was given to Modin Bee. Further explained that Jahangir Bee by misrepresenting the facts has obtained 138 square yards of land and compensation of Rs.80,000/-. He has also explained that he constructed a house in 138 square yards of land, which was assessed by M.C.H. in the year 1986, but he has not filed any proof to that effect. He denied the suggestion that he has set up a false counter claim. This witness has explained that he has paid property tax to the suit schedule property on 18.02.1991 for Rs.875/- and also paid charges for electricity Page 18 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 connection as in Exs.B.3 and B.4 and the property tax receipt as in Ex.B.5. He denied the suggestion that he paid the property tax only as a tenant.
22. DW.2 is the maternal uncle of the plaintiff and defendant being the brother of their mother and son of late Smt. Modin Bee. This witness stated that Smt. Modin Bi died in the year 1990 and the defendant is the owner of the suit house. The plaintiff is a tenant in the portion of the house. Late Modin Bee has gifted the suit house to the defendant. The witness stated that the demolition of the old house has taken place in 1975 and after one year i.e., in the year 1976 new house was constructed.
23. DW.3 is another brother of plaintiff and defendant. He gave his evidence in support of defendant's case stating that their grandmother, Modin Bee has gifted the suit property to the defendant in the year 1979 and at that time, he along with DW.2 were present and that the plaintiff was residing in a portion of the suit house as a tenant paying Rs.500/- per month rent. In the cross- examination, this witness stated that the suit property was Page 19 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 gifted by Smt. Modin Bee in favour of the defendant in the year 1979 and it was taken away by the municipal authorities for road widening in the year 1986 and he does not know whether compensation was paid or additional land was allotted. However, stated that compensation of Rs.80,000/- was paid, but he does not know whether it was paid to Jahangir Bee or not, but the land was given on the name of defendant.
24. On careful appreciation of the evidence of DWs.1 to 3 discussed above, DW.2 is the maternal uncle of plaintiff and defendant, whereas DW.3 is another brother of the plaintiff and defendant. As per the evidence of DW.3, late Modin Bee has gifted the suit schedule property to the defendant in the year 1979 and that it was taken away by the municipal authorities in road widening in 1986, which was never the case of the defendant. Again DW.2 has stated that the demolition of the old house has taken place in the year 1975 and new construction was taken place in the year 1976 and this witness has not spoken through about any such oral gift by late Modin Bee in favour of Page 20 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 defendant. Thus, there is no consistency in the evidence of DWs.1 to 3, and this evidence is not supported by the pleadings in the written statement and all the three witnesses have given quite inconsistent statements in their evidence and such evidence cannot be believed.
25. The plaintiff has filed the original suit in OS No.914 of 1994 for declaration of title and recovery of possession. Whereas, OS No.1458 of 1997 for perpetual injunction. The relief of declaration is a discretionary remedy. In a suit for declaration of title and recovery of possession, the plaintiff has to stand or fall on his own legs, he cannot depend on the weakness or otherwise of the claim made by the defendant. The plaintiff has to approach the Court with clean hands. But in the case on hand, the plaintiff has suppressed the fact that earlier he has filed OS No.67 of 1971 against his grandmother Modin Bee for specific performance of agreement of sale and that suit was dismissed and thereafter, he has filed AS No.251 of 1980 and it was also dismissed on 26.02.1981. Thus, the material fact as to earlier litigation was suppressed by the Page 21 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 plaintiff. It is only in respect of the very same suit schedule property.
26. The plaintiff has filed the original suit claiming that he is the absolute owner of the suit schedule property, but in his evidence as PW.1 categorically admitted that he has not purchased the suit schedule property, though he has mentioned it as self-acquired property. But, it is mentioned by him as PW.1 that his mother has given the same to him. Be it stated that in one breath, he claims it as his self-acquired property and in the next breath he is claiming that his mother gave it to him. The source of title of his mother in respect of suit schedule property is also not satisfactorily explained. The evidence on record to show that originally Smt. Modin Bee, grandmother of the parties being the mother of their mother was the owner of suit schedule property. Though it is stated that after demolition of the original house bearing No.17-3-676, for the newly constructed house the very same house number was assigned, there is no such satisfactory evidence on record to that effect except oral evidence of PW.1. It is also Page 22 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 an undisputed fact that Modin Bee, grandmother of plaintiff and defendant died after their mother, as such the documents Exs.A.1 to A.5 does not inspire any confidence to hold that it is the Jahangir Bee, who was the absolute owner of the suit schedule property or that late Modin Bee has given it either to Jahangir Bee or to the defendant.
27. In such circumstances, it appears after the death of late Jahangir Bee, both the plaintiff and defendant have filed Rent Control Cases against each other, after exchange of notices as in Ex.A.6 and A.7, but the learned Principal Rent Controller has dismissed both the Rent Control Cases as per he orders in Ex.A.15 holding that the jural relationship of landlord and tenant is not established. The oral evidence of PW.1 and the averments in the plaint are quite inconsistent and contradictory with each other. Though the plaintiff has pleaded that he is the absolute owner of suit schedule property, in his evidence it is clearly stated that he has not purchased the same and he has only explained that the suit house was given to him by his mother, the source of title of his mother is not explained. Page 23 of 27
AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 Similarly, the nature of transfer by his mother to him is also not explained and no valid document is executed and filed to show that the mother of the plaintiff has given the suit schedule property to the plaintiff and it is never the case of the plaintiff that his mother has given the suit house as an oral hiba (oral gift), as per Muslim Law. Coming to the evidence of PW.2, he is only a childhood friend of the plaintiff and he does not know anything about the suit schedule property, nature of the possession of plaintiff or the defendant in the suit schedule property and his evidence is not helpful to the plaintiff in any way.
28. On overall consideration of the entire oral and documentary evidence adduced by the parties coupled with the conduct of plaintiff in suppression of the material facts as to the filing of oral suit in OS No.677 of 1971 and dismissal of the same and confirmation in AS No.251 of 1980 is fatal to the case of the plaintiff. The plaintiff has not filed any documentary evidence in support of his claim, such as sale deed or gift deed in respect of the suit schedule property either executed by his grandmother or Page 24 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 mother, there is no plea of oral gift throughout his pleadings and evidence. The plaintiff did not approach the Court with clean hands and who failed to establish his title in respect of suit property. As such, in my considered opinion, the learned Judge of the trial Court failed to appreciate the oral and documentary evidence available on record in correct lines, there are infirmities in the findings recorded by the Court below and the judgment and decree liable to be set aside (Union of India and others Vs. Vasavi Cooperative Housing Society and others6).
29. Similarly, the defendant has set up a counter claim in respect of suit schedule property alleging that his grandmother-late Modin Bee has gifted the suit schedule property to him in the year 1979/1980. Whereas, none of witnesses DWs.2 & 3 have supported this case. DW.2 being his maternal uncle did not spell out in his entire evidence about the oral gift, whereas DW.3-brother of defendant and plaintiff has narrated all together a different story stating in the year 1975, the suit house was orally 6 (2014) 2 SCC 269 Page 25 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 gifted by late Modin Bee in favour of the defendant and in the year 1976 it was acquired and demolished which was never the case of the defendant or the plaintiff. In such circumstances, the counter claim set up by the defendant in respect of suit schedule property stating that he is the absolute owner and that he let out a portion of the same to the plaintiff has no force and it cannot be believed.
30. Thus, for all the reasons stated above, I hold that the trial Court has erred in relying upon the evidence of PWs.1 & 2 and the contents of Exs.A.1 to A.17. The plaintiff has failed to establish his title, ownership in respect of the suit schedule property. The plaintiff has also failed to establish the jural relationship of landlord and tenant with the defendant and the tenancy that exists between the parties and is entitled for recovery of arrears of rent. Equally, the defendant having set up a counter claim in respect of suit schedule property failed to establish the same. The evidence of adduced on behalf of defendant is not at all convincing and reliable to hold that there was an oral gift of suit schedule property either in the year 1975 or Page 26 of 27 AVR,J CCCA No.78 of 2001 and Tr.CCCA No.163 of 2016 in the year 1979 or the defendant allowing the plaintiff to stay in the suit schedule house as a tenant. Thus, the rival claim set up by the defendant for the suit schedule property is also not established.
31. Therefore, in the facts and circumstances of the case and for all the reasons stated above, the point Nos.(i) and (ii) are answered against the plaintiff holding that the plaintiff has failed to establish his title, ownership over the suit schedule property and he is not entitled either for recovery of possession from the defendant or for recovery of possession of a portion of suit house or for recovery of loss from the defendant. Similarly, the defendant has failed to establish the rival claim set up by him in respect of the suit property as owner and also failed to establish that the plaintiff was allowed to stay in a portion of the suit house as tenant and the point No.(iii) is answered against the defendant. Accordingly, in view of the findings and point Nos.(i) to (iii), the point No.(iv) is answered holding that the judgment impugned is not sustainable and liable to be set aside.
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32. In the result, both the appeal suits are allowed by setting aside the impugned common judgment dated 19.02.2001 in OS No.914 of 1994 and OS No.1458 of 1997 on the file of the learned V Senior Civil Judge, City Civil Court at Hyderabad. Consequently, OS No.914 of 1994 and OS No.1458 of 1997 shall stand dismissed. However, in the circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending in these appeal suits, shall stand closed.
_________________________________ A. VENKATESHWARA REDDY, J.
Date: 29.11.2022 Isn