Telangana High Court
M.A. Majeed vs M.Narasimha Chary on 5 June, 2023
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
C.C.C.A.No.185 of 2018
This appeal is filed by the appellant - defendant No.6 aggrieved by the
decree and judgment dated 28.03.2018 in O.S.No.35 of 2007 on the file of
the XXVI Additional Chief Judge, City Civil Court, Hyderabad.
2. The parties are herein after referred as arrayed before the trial court.
3. The suit was filed by the plaintiff seeking for declaration that the
plaintiff was the absolute owner of plaint "A" and "B" Schedule Properties
and for delivery of possession of the schedule properties from the defendants.
The defendant No.1 was the mother and defendant No.2 was the sister of the
plaintiff and the defendants 3 and 4 were the brothers of the plaintiff. The
defendant Nos.5 to 8 were tenants in possession of the property.
3.1. The contention of the plaintiff was that he was the owner and possessor
of the suit "A" and "B" Schedule Properties and he acquired the same by
virtue of will deeds executed by his paternal aunts. The plaint "A" Schedule
Property was bequeathed to him by his paternal aunt Smt. Eshwaramma
under Will deed dated 07.07.1980. The plaint "B" Schedule Property
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belonged to Smt. M. Kanakamma, who was his another paternal aunt and she
bequeathed the property by executing a Will deed dated 02.01.1979. Both
the said paternal aunts of the plaintiff were issueless. Smt.Kanakamma died
on 04.02.1979 and Smt.Eshwaramma died on 15.08.1980. The plaints A & B
Schedule Properties were adjacent to each other and were in possession of the
tenants. The defendant Nos. 5 and 6 were inducted by the plaintiff and
Smt.M.Kanakamma and the defendants 7 and 8 were inducted by defendant
No.2 who was collecting the rents from them on the instructions of the
plaintiff.
3.2. The plaintiff further submitted that the defendants 1 to 4 entered into an
agreement with defendant No.9 for sale of the suit schedule properties and
defendant Nos. 1 to 4 colluded with defendant No.9 and filed false cases in
order to grab the suit schedule properties. The plaintiff was paying property
tax to the Municipal Authorities. In the year 1997, the plaintiff filed Rent
Control Cases against the defendants 5 and 6 under R.C.No.205 of 1997 and
206 of 1997 before the First ARC, City Civil Court, Hyderabad and the same
were dismissed after due contest against which the plaintiff preferred appeals
in R.A.No.362 of 1999 and R.A.No.363 of 1999 and the same were also
dismissed for default. The earlier tenant Abdul Khader expired and his
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nephew by name M.A.Majeed who was the defendant No.6 was carrying on
business.
3.3. He further submitted that the defendant No.2 along with defendants 1, 3
and 4 mischievously and deliberately was trying to defeat the legitimate right
of the plaintiff. As such, the plaintiff filed a suit for injunction against the
defendant No.2 vide O.S.No.1011 of 1995 before the VII Judge, City Civil
Court, Hyderabad and obtained interim orders against her but due to the
intervention of elders, he had not pressed the said suit.
3.4. He further submitted that the agreement entered by the defendants 1 to 4
with defendant No.9 was void ab initio and was not enforceable since
defendant Nos.1 to 4 were not owners of the schedule properties and they had
no title over the schedule properties. The alleged agreement was a fabricated
document and the same would not bind him. The plaintiff was entitled for
declaration that he was the owner of the schedule properties and for recovery
of possession of the same from the defendants 2 to 7 and 9 to 11.
4. The defendants 5 and 6 filed joint written statement stating that they did
not know whether the plaintiff was the owner of the schedule properties by
virtue of Will deeds but admitted that they were in possession of two mulgies
as tenants of the defendant No.2. They further contended that the defendant
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No.5 and one Abdul Khader were the tenants of late Kanakamma, who was
the original owner of the suit schedule properties including the mulgies in
possession of the defendants and that they executed the rental deeds in her
favour. After her death in 1979, her brother collected rents from defendant
No.5. The brother of Kanakamma also died in the year 1992 and thereafter
defendant No.2 was collecting rents from them by issuing receipts. Abdul
Khader died in the year 2003. After his death, his nephew defendant No.6
was running the business in the said mulgi under the same tenancy by paying
rents regularly to the defendant No.2 and they were not concerned with the
disputes with the plaintiff and the defendants 1 to 4 therein.
5. The defendant No.9 filed written statement contending that the
defendants 7 and 8 were not necessary and proper parties since they were not
in possession of the suit property. The plaintiff filed the suit in collusion
with defendants 1 to 4 who entered into an Agreement of Sale with him on
02.08.1996 under which they sold the suit schedule properties to him and
since defendants 1 to 4 failed to execute the Sale Deed, he filed O.S.No.427
of 1998 before the IX Senior Civil Judge, City Civil Court, Hyderabad and
the said suit was decreed in his favour on 30.11.2004. After disposal of the
said suit, the defendants 1 and 2 filed A.S.No.654 of 2005 and the plaintiff
filed a petition vide I.A.No.2712 of 2006 for impleading himself as a party to
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the said appeal. The said petition was dismissed on 04.01.2007. Again the
plaintiff filed a claim petition in E.P.No.8 of 2005 which was filed by the
defendant for execution of decree in O.S.No.427 of 1998 and having failed to
secure any orders in his favor, the plaintiff filed the present suit with false
averments. He further contended that the plaintiff fabricated the alleged Will
Deed, said to have been executed by the deceased Kanakamma and
Eshwaramma to grab the suit properties. The major part of Schedule "B"
property was taken over by the Municipality in Road Widening and it was
not of 64 Sq.yards as of now. He further stated that there were only two (02)
tenants in the occupation of "B" Schedule Property and he was in continuous
possession of the residential portion of the schedule property from the date of
Agreement dated 02.08.1996 and the suit was dismissed as not pressed
against the defendant No.8.
6. The trial court framed the issues as follows:
i) Whether the plaintiff is entitled for declaration that he is the owner
of the suit schedule property?
ii) Whether the plaintiff had no cause of action to file the suit?
iii) To What relief?
The said issues were re-casted as follows:
a) Whether the plaintiff is entitled for declaration of his title over the
suit schedule property?
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b) Whether the plaintiff is entitled for recovery of possession of plaint
schedule property as prayed for?
c) To what relief?
7. During the course of trial, the plaintiff examined himself as PW.1 and
got marked Exs.A1 to A28. All the defendants remained ex-parte.
8. On considering the oral and documentary evidence on record, as none of
the defendants choose to cross-examine PW.1 and considering the evidence
of PW.1 and the documents marked under Exs.A1 to A28, the trial court
decreed the suit declaring the plaintiff as the owner of the plaint "A" and "B"
Schedule Properties and directed the defendants 2 to 7 and 9 to 11 to
handover the vacant possession of the plaint "A" and "B" Schedule Properties
to the plaintiff within two (02) months from the date of judgment and decree
dated 28.03.2018.
9. Aggrieved by the said judgment and decree, the defendant No.6
preferred this appeal contending that the lower court while decreeing the suit
directed the defendants 2 to 7 and 9 to 11 to handover the vacant possession
of the plaint "A" and "B" Schedule Properties to the plaintiff within two
months. The appellant was a tenant and formal party in the suit for
declaration of title, but he would be deprived of his right of tenancy and
possession by virtue of the impugned judgment and decree as the same would
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lead to his eviction from the mulgi in his possession. Even though, there was
no such particular prayer in the plaint, the relief granted was beyond the
scope of the actual prayer of the original suit. The same was illegal. The
trial court erred in granting decree against the appellant to handover the
possession which would tantamount to eviction from the subject mulgi which
was the subject matter before Rent Controller. The trial court erred in grating
decree against the appellant without there being any case of the plaintiff that
there was any default of the rental amount or the case of personal need or
necessity of the plaintiff for eviction. The trial court erred in not considering
the fact that Rent Control Case (R.C.No.206 of 1997) filed by the plaintiff
was dismissed and also Rent Appeal filed against the same was also
dismissed due to default by the plaintiff and the said orders became final and
were in favour of the appellant. The suit schedule mulgi was the only source
of income to the appellant. He was conducting business since several years
and his whole family was dependant on the same. The said eviction from the
mulgi would cause deprivation of his right to life and survival. The trial
court ought to have dismissed the suit against the appellant - defendant No.6
as he was a tenant and not claimed ownership over the said properties and
prayed to allow the appeal by setting aside the judgment and decree passed in
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O.S.No37 of 2007 dated 28.03.2017 on the file of the XXVII Additional
Chief Judge, City Civil Court, Hyderabad.
10. Heard the learned counsel for the appellant and the learned counsel for
the respondent No.1 - Plaintiff. Respondent No.2, respondent Nos.6 to 9
were shown as formal and not necessary parties. There is no representation for respondents 3 to 5 and 10 and 11
11. The learned counsel for the appellant contended that no specific relief for eviction of tenants was sought by the respondent No.1 - plaintiff, no notice under Section 106 of Transfer of Property Act (for short "TP" Act) was given to the tenants, no proper procedure was followed to vacate the tenant and prayed to allow the appeal by setting aside the order of eviction against the appellant.
12. The learned counsel for the respondent No.1 - plaintiff submitted that the respondent was now ready to give notice to the tenants as required under TP Act and prayed to dispose of the appeal accordingly.
13. Now the only point for consideration in this Appeal is:
Whether a direction can be given by the civil court to evict the tenant in a suit for declaration without following the prescribed procedure as laid down under Transfer of Property Act?9
Dr.GRR,J CCCA No.185 of 2018
14. Admittedly, the appellant - defendant No.6 is a tenant in one of the schedule premises and he was only a formal party in a suit for declaration of title filed by the plaintiff against the defendant Nos.1 to 4 and 9 to 11. Though, the defendant No.6 filed his written statement, he did not choose to contest the matter nor participated in the trial. The judgment of the trial court also would disclose that the issues were recasted subsequently and one of the issues re-casted was that whether the plaintiff is entitled to recovery of plaint schedule property as prayed for?
15. The Hon'ble Apex Court in Sushil Kumar Mehta vs Govind Ram Bohra1 after exhaustively dealing with the various judgments held that:
"A decree passed by a civil court in rent matter, the jurisdiction of which was barred, having been passed by a court lacking inherent jurisdiction to entertain the suit for ejectment was a nullity and the judgment debtors successfully could object to the execution of the said decree being a nullity."
16. The Hon'ble Apex Court in Sarwan Kumar & Ors. vs Madan Lal Aggarwal2 held that:
"...The Controller under the Act was the only competent forum for claims of ejectment on fulfillment of the conditions enumerated in the Rent Act. That the civil court 1 (1990) 1 SCC 193 2 AIR 2003 SC 1475 10 Dr.GRR,J CCCA No.185 of 2018 was divested of jurisdiction to take cognizance and pass a decree for ejectment of the tenant. The objection was overruled by the executing court and further the revision filed by the tenant was dismissed by the High Court.
Simultaneously, he also filed a writ petition under Article 227 which was also dismissed. Against the dismissal of the writ petition under Article 227 the appeal was filed in this Court. It may be mentioned that a issue regarding the jurisdiction of the civil court to try a suit for ejectment was framed and decided in favour of the landlord in the civil suit. Tenant had also been divested of the possession in execution of the decree passed by the civil court. This Court after exhaustively referring to the number of previous judgments of this court held that to a building let out and governed under the Rent Act the only competent authority to pass the decree for ejectment was the Rent Controller constituted under the Rent Act and the civil court lacked the inherent jurisdiction to take cognizance of the cause and pass a decree of ejectment therein. It was further held that objection to the execution of the decree being a nullity having been passed by a court lacking inherent jurisdiction could be raised in execution proceedings and the finding recorded in decree that the civil court had the jurisdiction would not operate as res judicata. It was held:
"Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party.."11
Dr.GRR,J CCCA No.185 of 2018
17. Thus any dispute with regard to the eviction of the tenant has to be filed before the Rent Controller after following the procedure under Section 106 of the Transfer of Property Act for evicting the tenant.
18. As both the learned counsel are agreeing to follow the procedure for eviction of tenant as required under the Transfer of Property Act, it is considered fit to dismiss the appeal confirming the decree and judgment dated 28.03.2018 in O.S.No.35 of 2007 passed by the XXVI Additional Chief Judge, City Civil Court, Hyderabad, however directing the respondent No.1- plaintiff not to insist the appellant-defendant No.6 for delivery of possession without following the procedure prescribed under law.
19. In the result, the City Civil Court Appeal is dismissed confirming the decree and judgment dated 28.03.2018 in O.S.No.35 of 2007 passed by the XXVI Additional Chief Judge, City Civil Court, Hyderabad, however, directing the respondent No.1-plaintiff not to evict the appellant-defendant No.6 without following the procedure prescribed under law. No costs.
Miscellaneous Applications, pending if any, shall stand closed.
_____________________
Dr. G. RADHA RANI, J
June , 2023
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