Surajmal Panwar vs Smt Shiv Pyario Bai on 11 April, 2025

[Cites 12, Cited by 0]

Telangana High Court

Surajmal Panwar vs Smt Shiv Pyario Bai on 11 April, 2025

Bench: G.Radha Rani

       THE HONOURABLE DR.JUSTICE G.RADHA RANI
      CITY CIVL COURT APPEAL Nos.205 and 228 of 2019

COMMON JUDGMENT:

Both these appeals are preferred by the appellants-defendants aggrieved by the judgment and decree dated 28.02.2019 in O.S. No.541 of 2008 passed by the XIV Additional Chief Judge, City Civil Court, Hyderabad.

2. CCCA No.205 of 2019 was filed against the decree passed in favour of the respondent-plaintiff while CCCA No.228 of 2019 was preferred against the dismissal of the counter claim of the appellants- defendants.

3. For the sake of convenience, the parties are hereinafter referred as arrayed before the trial court.

4. O.S.No.541 of 2008 was filed by the respondent-plaintiff seeking to declare her as owner of the property bearing Municipal No.15-7-390, admeasuring 34.66 sq.yds., situated at Begum Bazar, Hyderabad and to direct the defendants to vacate and hand-over vacant possession of the said property. She claimed Rs.1,00,000/- towards past mesne profits and Rs.50,000/- per month for future mesne profits along 2 Dr.GRR,J CCCA Nos.205 & 228 of 2019 with permanent injunction, restraining the defendants or anyone claiming through them from dealing with the suit property.

5. The case of the plaintiff was that her husband late Balkishan Panwar had purchased two mulgies bearing Municipal Nos.15-7-389 and 390 admeasuring 68.99 sq. yds., situated at Begum Bazar, Hyderabad under registered sale deed dated 24.11.1978. The said sale deed was executed by the Court of the I-Senior Civil Judge, City Civil Court, Hyderabad on behalf of the vendor. Thereafter, the husband of the plaintiff got the tenant vacated in occupation and got possession of mulgi bearing No.15-7-389. Insofar as the suit property (Mulgi bearing No.15-7-390), the husband of the plaintiff permitted the defendant No.1, his first cousin for carrying on business under the name and style of "M/s. Chunnilal Ganga Bishan" (Partnership Firm) free of rent as permissive possession. The defendant No.1 was neither the owner nor the tenant of the suit schedule property. No rents were paid by the defendant No.1. The suit premises was in the possession of defendant Nos. 2 to 4. The defendant No.2 was the brother of defendant No.1. The defendant No.3 was the son of defendant No.1. The defendant No.4 was illegally set up by the defendant Nos.1 to 3 for running a pan dabba in part of the suit schedule property. The defendant No.1 had no right to 3 Dr.GRR,J CCCA Nos.205 & 228 of 2019 part with the possession of the suit schedule property in favor of any third person. The inter se transactions between the defendants were illegally void ab-intio and not binding on the plaintiff. She further submitted that her husband died intestate on 12.06.2005 leaving behind him, the plaintiff and her three sons, namely, Shyam Sunder Panwar, Sri Rajender Kumar Panwar and Sri Devkishan Panwar. Thereafter, the sons of the plaintiff, out of love and affection transferred their respective shares in the two mulgies in favour of the plaintiff vide gift settlement deed dated 02.05.2006. Thus, the plaintiff became the absolute owner and possessor of the two mulgies bearing Municipal Nos.15-7-389 and 390 situated at Begum Bazar, Hyderabad. During his lifetime, the husband of the plaintiff had given the above two properties as collateral security and guarantee for the loan obtained by the defendant No.3. The loan taken by the defendant No.3 from M/s.Vijaya Bank, Bank Street, Hyderabad was discharged by the husband of the plaintiff and got released the same from the mortgage.

5.1. During his lifetime, the husband of the plaintiff had let out the mulgi bearing Municipal No.15-7-389 to the tenant and rent was being collected by him. Insofar as the suit schedule property is concerned, the husband of the plaintiff had given the same to the 4 Dr.GRR,J CCCA Nos.205 & 228 of 2019 defendant No.1 being his relative for carrying on business. The said possession was only permissive in nature. As the defendant No.1, without any right had parted with the possession of the schedule property in favour of a third person, the plaintiff and her sons requested the defendants to vacate and hand over the vacant possession of the schedule property. As the defendants had evaded and avoided to vacate and hand over the vacant possession of the suit schedule property, the plaintiff got issued a legal notice dated 03.08.2008 to the defendants calling upon them to vacate and hand-over the vacant possession of the suit schedule property. The defendant Nos.1 to 3, on receipt of the legal notice, got issued a joint reply notice dated 20.08.2008 and the defendant No.4 got issued a separate reply through their counsel. In their reply, the defendant Nos.1 to 3 claimed that the husband of the plaintiff was the owner of mulgi bearing No.15-7-389 only and the defendant Nos.1 and 2 were the owners of the mulgi bearing No.15-7-

390. They denied the nature of possession being permissive. The defendant No.4 claimed that the premises under his occupation, was municipal land and did not form part of the suit property. In view of the denial of right, title and interest of the plaintiff in respect of the suit property, left with no other remedy, the plaintiff filed the suit seeking 5 Dr.GRR,J CCCA Nos.205 & 228 of 2019 the above reliefs of declaration, injunction, mesne profits for use and occupation as damages.

6. The defendant Nos.1 to 3 had initially filed a written statement in November, 2009 and subsequently filed another written statement cum counter claim in the month of October, 2010. They contended that mulgi bearing No.15-7-389 and 15-7-390 were purchased out of the joint family funds i.e. from the funds of Partnership Firm Chunnilal Ganga Bishan. The said Firm was established 60 years ago by their ancestors i.e. late Ramlal Panwar and Sri Ganga Bhishan. Subsequently, the late husband of the plaintiff Sri Balkishan Panwar and defendant No.1 had joined as partners in the said Firm. During the said period, litigation commenced with the vendors of the said premises. Late Balkishan Panwar, husband of the plaintiff, being a practicing Lawyer, was prosecuting the proceedings on behalf of the joint family. However, defendant No.1 was also actively involved in the entire litigation and obtained possession of the property from the Court when the tenant was evicted and the matter was fought up to Hon'ble Supreme Court of India. However, when there was an enquiry by the Income Tax Department in respect of the acquisition of the said property, late Sri Balkishan Panwar had acknowledged in writing specifically that the 6 Dr.GRR,J CCCA Nos.205 & 228 of 2019 total sale consideration was Rs.34,000/- out of which only Rs.6,000/- was paid by him out of his own earnings and the balance of Rs.28,000/- was paid by him by withdrawing the said amount from the Partnership Firm Chunnilal Ganga Bhishan Panwar. In the face of the said clear admission, the allegation by the plaintiff that the property was purchased by late Sri Balkishan Panwar out of his individual earnings and thus, he was the absolute owner of the same was a blatant lie.

6.1. The defendant Nos.1 to 3 further submitted that late Sri Ramlal Panwar passed away in 1989 and Sri Ganga Bhishan Panwar passed away in 1991. In view of the death of both the elders in the family, a family arrangement was arrived at in between late Sri Balkishan Panwar on one side and the sons of late Sri Ganga Bhishan Panwar i.e. defendant Nos.1 and 2 and Sri Bhagawandas, the other son of late Sri Ganga Bhishan Panwar on the other side. In pursuance of the said arrangement, mulgi bearing No.15-7-389 fell to the share of late Balkishan Panwar and mulgi bearing No.15-7-390 fell to the share of sons of Sri Ganga Bhishan Panwar i.e. defendant Nos.1 and 2 and Sri Bhagawandasji. Accordingly, since 1991 all along the property was being enjoyed by the defendants as absolute owners thereof. There was no question of any permissive possession or payment of rent. 7

Dr.GRR,J CCCA Nos.205 & 228 of 2019 Unfortunately, in view of faith reposed by the members of the family on each other, registered documents were not obtained evidencing the said arrangement. However, the fact would remain that admittedly, the consideration of acquisition of the property was paid by the Partnership Firm Chunnilal Ganga Bhishan Panwar alone. In fact, Rs.6,000/- which was paid as advance was also reimbursed to late Balkishan Panwar at a later point of time and for all practical purposes, the suit schedule property and adjacent mulgi were treated as joint family property purchased out of the funds of joint family business of Chunnilal Ganga Bhishan Panwar.

6.2. The defendant Nos.1 to 3 further submitted that for all these years, there was never any contrary claim made and as such, no necessity was felt to obtain any document per-se. Unfortunately, such a claim was made for the first time by the plaintiff vide her legal notice dated 03.08.2008. In the said circumstances, the defendants were constrained to seek the relief of declaration as a counter-claim being made on their behalf. The plaintiff filed the present proceedings with a malafide intention to take benefit of the name of Sri Balkishan Panwar alone appearing in the document and prayed to dismiss the suit filed by the plaintiff and to declare the defendant Nos.1 and 2 and their brother 8 Dr.GRR,J CCCA Nos.205 & 228 of 2019 Sir Bhagawandas as absolute owners of the suit schedule property bearing No.15-7-390 admeasuring 34.33 sq. yds., situated at Begum Bazar, Hyderabad.

6.3. In the written statement cum counter claim filed in the month of October, 2010, while reiterating their contentions that the said property was purchased by the joint family, the defendant Nos.1 to 3 contended that the inter se collusive document between three sons of the plaintiff and late Sri Balkishan Panwar was of no consequence and the same would not cloth the plaintiff with absolute rights in respect of mulgies No.15-7-389 and 390, as the original purchase in the name of late Sri Balkishan Panwar was not exclusive acquisition of him, but was an acquisition by the joint family. They also denied that the loan taken by defendant No.2 from Vijaya Bank was discharged by the husband of the plaintiff and contended that there was a Firm under the name and style of "Kundarmal Ramlal" consisting of Sri Balkishan Panwar, Shyam Sunder, Sri Surajmal Panwar and Sri Kamal Kishore. Sri Kamal Kishore had established another Firm in the name of "Laxmi Gardens"

and a loan was obtained from Vijaya Bank. Late Sri Balkishan Panwar and Smt. Shanta Bai, wife of defendant No.1, stood as guarantors and the entire loan amount was paid by the Firm Laxmi Gardens. They 9 Dr.GRR,J CCCA Nos.205 & 228 of 2019 stated that on behalf of the joint family, the mulgi bearing No.15-7-389 was let out to a tenant. However, the rent was not collected by the husband of the plaintiff but, in fact, the defendant No.1 used to collect and pay it to the husband of the plaintiff. As per the arrangement arrived at between the parties, the defendants never made any claim in respect of mulgi No.15-7-389 in view of the arrangement arrived at amongst the members of the joint family. As such after the death of late Sri Balkishan Panwar, the defendants instructed the tenant to pay all the rents directly to the plaintiff. They contended that the defendant No.4 had nothing to do with the suit schedule property. He was having his pan dabba outside the suit schedule property in Government's land.

6.4. Though the defendant Nos.1 to 3 contended in their written statement that the mulgi bearing No.15-7-390 i.e. suit schedule property fell to the share of the sons of late Sri Gangabhishan Panwar i.e. defendant Nos.1 and 2 and Sri Bhagwandasji, the said Bhagawandasji was not included as a party in the counter claim filed by defendant Nos.1 to 3.

7. A separate written statement was filed by defendant No.4 submitting that he had no concern whatsoever with the suit schedule property and it was defendant Nos.1 to 3 alone who were the absolute 10 Dr.GRR,J CCCA Nos.205 & 228 of 2019 owners in possession of the same. The plaintiff had unnecessarily made him as a party to the suit and the suit was liable to be dismissed on the ground of mis-joinder of party. He further submitted that he was carrying on business of pan dabba on the footpath i.e. government land and the said pan dabba was not erected within the suit schedule property and adopted the written statement filed by the defendant Nos.1 to 3.

8. The plaintiff filed a rejoinder to the counter claim of defendant Nos.1 to 3, submitting that the alleged purchases were the self acquired properties of her husband. There was no such joint family as claimed and alleged, and denied that the properties were purchased out of the funds of the Firm Chunnilal Ganga Bishan Panwar. She further submitted that her husband filed O.S .No.596 of 1971 on the file of the I-Additional Chief Judge, City Civil Court, Hyderabad for specific performance of agreement of sale dated 01.08.1970 against Smt. Afsar Naseem Khatoon and another. At the time of institution of the suit itself, one Harikishan was in occupation of the premises bearing No.15- 7-389, Begum Bazar, Hyderabad and Ganga Bhishan was the tenant in the suit premises bearing No.15-7-390, Begum Bazar, Hyderabad. The suit instituted by the husband of the plaintiff was decreed in his favour vide judgment and decree dated 23.08.1976 directing the owner 11 Dr.GRR,J CCCA Nos.205 & 228 of 2019 Smt. Afsar Naseem Khatoon to execute the sale deed in respect of both the premises and directing Sri Harikishan to also join in the execution of the sale deed insofar as it related to mulgi bearing No.15-7-389, Begum Bazar, Hyderabad. Aggrieved by the said judgment and decree dated 23.08.1976 passed in O.S.No.596 of 1971 on the file of the I-Senior Civil Judge, City Civil Court, Hyderabad, the defendants in the said suit preferred an appeal bearing CCCA No.154 of 1976 on the file of the High Court of Andhra Pradesh insofar as it related to the premises bearing No.15-7-389, Begum Bazar, Hyderabad. No appeal was preferred in respect of the suit property. The above appeal was dismissed. Aggrieved by the said dismissal of the appeal, Sri Harikishan preferred Letter Patent Appeal LPA No.67 of 1978, which was also dismissed by the High Court. Aggrieved by the said order of dismissal, Harikishan preferred SLP No.5526 of 1978 before the Hon'ble Apex Court, which was also dismissed vide order dated 13.11.1980. Thus, the judgment and decree passed in O.S. No.596 of 1971 became final and binding on the defendants also.

8.1. The plaintiff further submitted that in pursuance of the decree passed in O.S. No.596 of 1970, the husband of the plaintiff filed E.P. No.16 of 1978 since the defendants in the said suit did not comply 12 Dr.GRR,J CCCA Nos.205 & 228 of 2019 with the decree. Sri Harikishan who was the defendant No.2 in the said suit filed E.A. No.200 of 1978 seeking review of the draft sale deed filed by the husband of the plaintiff. The said EA No.200 of 1978 was dismissed. Against the said order, he filed CRP No.3475 of 1979 as well as CMA No.366 of 1979 before the High Court of Judicature, Andhra Pradesh. The CMA was dismissed as not maintainable and the CRP was dismissed on merits. Aggrieved by the dismissal of the CMA No.366 of 1979, Harikishan preferred LPA No.115 of 1979 before the High Court of Judicature, Andhra Pradesh, which was dismissed on 15.11.1979. Against the said dismissal, Harikishan preferred SLP No.156 of 1980 before the Hon'ble Supreme Court of India, which was dismissed on 10.01.1980. After the dismissal of the matters before the Hon'ble Apex Court, the warrant of execution was issued in respect of both the premises bearing No.15-7-389 & 390, situated at Begum Bazar, Hyderabad. In pursuance of the warrant of delivery of possession, the premises bearing No.15-7-389 was delivered to the husband of the plaintiff, represented by his brother, defendant No.1 herein. The husband of the plaintiff authorized defendant No.1 to take delivery of premises bearing No.15-7-389.

Dr.GRR,J CCCA Nos.205 & 228 of 2019 8.2. The plaintiff further contended that insofar as the suit premises was concerned, Ganga Bishan was the tenant. The delivery of possession in respect of the suit property was affected by way of attornment of tenancy. The said fact was also evident from the panchanama conducted at the time of execution. The possession was delivered to the husband of the plaintiff in his individual capacity and not in any other capacity. The husband of the plaintiff fought the legal process till Hon'ble Supreme Court of India. The defendant Nos.1 to 3 were not involved in the said litigation as claimed by them. The entire expenditure for the litigation right up to the Hon'ble Apex Court was borne by the husband of the plaintiff from his personal funds. Except the husband of the plaintiff, no other person was owner of the suit schedule property. The suit property was never purchased or acquired for and on behalf of any joint family as claimed by the defendants. The defendant Nos.1 to 3 were making false claim that the suit property was a joint family property. The husband of the plaintiff addressed a letter dated 16.04.1989 to the Municipal Corporation of Hyderabad to mutate his name. She further submitted that Vijaya Bank had instituted a suit against defendant No.2, husband of the plaintiff and another for recovery of loan obtained by defendant No.3 herein. The husband of the 14 Dr.GRR,J CCCA Nos.205 & 228 of 2019 plaintiff was only a guarantor and had given the suit property as collateral security for the loan obtained by defendant No.3. The said suit was decreed vide judgment and decree dated 08.03.2000. Subsequently, the matter was settled with the Bank. The decree of the said bank was also satisfied by the husband of the plaintiff. She further denied that her husband was partner of the Firm as claimed by the defendants. She further submitted that to her knowledge, the defendant No.1 collected rents only in the absence of the husband of the plaintiff on his behalf but not otherwise. The receipts for the rent paid by the tenants were issued by her husband. The defendants had illegally taken separate municipal number for the suit premises without the knowledge and consent of the plaintiff or her husband. The defendant No.4 was falsely claiming that he was carrying on business on footpath on the government land. The said claim was false and created to affect the rights of the plaintiff.

8.3. The plaintiff further submitted that her husband was only a sleeping partner in the Firm Chunnilal Ganga Bishan Panwar by an order of the Bar Council dated 15.10.1979 for a period of three years. She denied the other averments made by the defendants in the counter claim and contended that the counter claim was not maintainable as 15 Dr.GRR,J CCCA Nos.205 & 228 of 2019 Bhagawandas was not a party to the suit and no decree could be passed in favour of a person who was not a party to the suit and the counter claim was liable to be rejected on the said ground.

9. The defendant Nos. 1 to 3 filed a rejoinder to the rejoinder filed by the plaintiff denying the averments made by the plaintiff in her rejoinder.

10. Basing on the above pleadings, the following issues were settled by the trial Court.

i) Whether the plaintiff is entitled to the declaration as prayed for?

ii) Whether the defendant Nos.1 and 2 are entitled to declaration as prayed in the counter claim?

iii) Whether the plaintiff is entitled for the possession of the suit schedule property?

iv) Whether the plaintiff is entitled to past and future mesne profits as prayed for?

v) To what relief?

11. During the course of trial, the third son and GPA holder of the plaintiff was examined as PW.1 and Exs.A1 to A27 were marked on behalf of the plaintiff. On behalf of the defendants, three witnesses were examined. The defendant No.1 was examined as DW.1. The son of the defendant No.4 was examined as DW.2. During the course of 16 Dr.GRR,J CCCA Nos.205 & 228 of 2019 trial, the defendant No.2 died and his legal representatives were brought on record as defendant Nos.5 to 7. Defendant No.5 filed her evidence affidavit as DW.3, but she failed to appear for cross-examination. As such, her evidence was eschewed from consideration. Exs.B1 to B16 were marked on behalf of the defendants.

12. On hearing both the learned counsel representing the parties, the trial court decreed the suit filed by the plaintiff and dismissed the counter claim filed by the defendant Nos.1 to 3. Aggrieved by the said judgment and decree passed by the trial court in O.S. No.541 of 2008, dated 28.02.2019, the defendant Nos.1 and 3 to 7 preferred both these appeals.

13. Heard Sri A.M. Qureshi, learned Senior Counsel representing Sri Sardar Jasbeer Singh, learned counsel on record for the appellants and Sri G. Arun, learned counsel for the respondent.

14. Learned Senior Counsel for the appellants contended that the plaintiff had not entered into the witness box, only the GPA holder was examined on her behalf as PW.1. PW.1 admitted in his cross-

examination that he did not know the contents of GPA and whether he had power to depose. As such, the evidence of PW.1 could not be 17 Dr.GRR,J CCCA Nos.205 & 228 of 2019 accepted. The admitted facts need not be proved. The court below failed to take into consideration that the plaintiff in her rejoinder had admitted that her husband was a sleeping partner in M/s.Chunnilal Ganga Bishan Panwar Partnership Firm. As such, it was evident that there existed a joint family and the joint family has a nucleus. PW.1, son of the plaintiff, admitted the signature of his father on Ex.B3 and also admitted its issuance to the Income Tax Department. Ex.B3 would prove that the husband of the plaintiff withdrew Rs.28,000/- from the account of the joint family partnership Firm to deposit consideration in the Court in order to purchase the suit schedule property. The court below failed to consider the legal principle that the appellants- defendants having proved the existence of a joint family business, the burden was shifted on the plaintiff to prove that it was the self- acquisition of her husband. The court below failed to take into consideration that the suit schedule property was owned by defendant Nos.1 to 3 owing to the oral family arrangement arrived at between the parties after the death of their ancestors and that they remained in possession since 1991 as owners and not as permissive possessors. The plaintiff failed to file any proof to substantiate the plea of permissive possession put forth by her.

Dr.GRR,J CCCA Nos.205 & 228 of 2019 14.1. Learned Senior Counsel further submitted that the court below failed to consider that Ex.B3 itself was sufficient evidence to prove that the suit schedule property and the adjacent mulgi was purchased from the joint family funds or the funds from the partnership business since PW.1 not only admitted the issuance of Ex.B3, but also admitted the contents therein as genuine. The court below failed to note that the husband of the plaintiff was not the absolute owner of the suit schedule property as evident from the cross-examination of PW.1 and Exs.B1 to B3, as such, the gift as executed by the sons of the plaintiff in her favour was of no significance. The reliance placed by the court below on Ex.A27 Memorandum of Understanding was mis-placed as the said document was not signed by all the parties, as deposed by DW.1 during his cross-examination. The court below ought to have dismissed the suit as against defendant No.4 on account of mis-joinder of parties as he was no way concerned either with the plaintiff or defendant Nos.1 to

3. The documents filed by the defendant No.4, Exs.B11 to B16 would prove that he was running his business outside the suit schedule property and was not in possession of any part of the suit schedule property. The plaintiff failed to prove that any part of the suit schedule property was released in favour of defendant No.4 and prayed to allow the appeals by 19 Dr.GRR,J CCCA Nos.205 & 228 of 2019 setting aside the judgment and decree of the trial court in O.S. No.541 of 2008 dated 28.02.2019 and relied upon the judgments of the Hon'ble Apex Court in Vidhyadhar v. Manikrao & Anr. 1, on the aspect that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him was not correct.

14.2. He further relied upon the judgment of the Hon'ble Apex Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd., and others2 on the aspect that the power of attorney holder could not depose in place and instead of principal. He further placed reliance upon the judgment of the Hon'ble Apex Court in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Ors., 3 on the aspect that once initial burden was discharged by the person that the property was a joint Hindu Family and further the properties were acquired out of that nucleus, then the burden would shift to the party alleging self acquisition to establish affirmatively that the property was 1 1999 (3) SCC 573 2 AIR 2005 SC 439 3 AIR 2007 SC 218 20 Dr.GRR,J CCCA Nos.205 & 228 of 2019 acquired without the aid of the joint family property by cogent and necessary evidence.

14.3. He further relied upon the judgment of the Hon'ble Apex Court in Union of India v. Ibrahim Uddin and another 4 on the evidentiary value of admissions and that they can be held as substantive evidence and operate as estoppel in certain circumstances.

15. Learned counsel for the respondent, on the other hand, contended that PW.1 was the son of the plaintiff and one of the executant of Ex.A3 Gift Settlement Deed dated 02.05.2006. He was having personal knowledge of all the facts of the case. The plaintiff was an old lady. Non-examination of the plaintiff was not fatal in view of the documentary and other material evidence available on record. He further contended that the plaintiff was claiming right, title and interest through her husband and children under Exs.A2 and A3. The defendants had not disputed the execution of sale deed in favour of the husband of the plaintiff by the Court in pursuance of the decree passed in the suit under Ex.A2. The properties purchased under Ex.A2 were the self acquired properties of the husband of the plaintiff and not part of any joint family or of the Firm. The husband of the plaintiff got his name 4 2012 (8) SCC 148 21 Dr.GRR,J CCCA Nos.205 & 228 of 2019 mutated under Ex.A21 and Municipal taxes were paid by him during his lifetime and thereafter by the plaintiff and her children. If really, the joint family or Firm had any right in respect of the suit schedule property, they would have got mutated their name in GHMC and paid the Municipal taxes. The Municipal tax receipts were marked as Exs.A6 to A8. No objection was raised by the defendants for the said mutation. The conduct of the defendants would also prove that it was the self acquired property of the husband of the plaintiff.

15.1. Learned counsel for the respondent further submitted that various appeals filed against the judgment and decree in O.S No.596 of 1971 and E.P. No.16 of 1978 in the said suit would clearly prove that the suit property was the self acquired property of the husband of the plaintiff. The husband of the plaintiff late Balkishan Panwar fought the litigation for ten long years up to the Hon'ble Supreme Court. The expenses for the said litigation were borne by him alone. No evidence was produced by the defendant Nos.1 to 3 to show that they have contributed any expenses for the said litigation. The possession of the mulgies was also delivered to the husband of the plaintiff in his individual capacity, but not on behalf of any joint family or Firm. DW.1 also admitted in his cross-examination that late Balkishan Panwar filed 22 Dr.GRR,J CCCA Nos.205 & 228 of 2019 O.S. No.596 of 1971 in his individual capacity. The respondent- plaintiff had filed I.A. No.1 of 2019 In CCCA No.205 of 2019 for receiving the document marked as Ex.A27, agreement dated 04.03.1992 between the defendants inter se which would clearly prove that the suit property was the property owned by the husband of the plaintiff. The defendants had not disputed Ex.A27. It could not be inferred from Ex.B3 that the withdrawal of Rs.28,000/- from the Firm would make the suit schedule property as property of the Firm. DW.1 categorically deposed that the suit schedule property was not the property of the Firm. No proof was filed by the defendants for reimbursing the sum of Rs.6,000/- to the husband of the plaintiff. The trial court rightly interpreted Ex.B3 observing that the defendants did not produce any piece of evidence to show that the suit property was purchased from the joint family funds or from the funds of the Partnership Firm. The findings of the trial court in respect of Ex.B3 were based on evidence. Cogent reasons were given by the trial court for giving such findings. The evidence of PW.1 was misinterpreted. The documentary evidence would prevail over oral evidence of witnesses on either side. No document was filed by the defendants to prove the existence of joint family or any joint family business. There could not be any 23 Dr.GRR,J CCCA Nos.205 & 228 of 2019 presumption of existence of joint family. No evidence with regard to nucleus of the alleged joint family was produced.

15.2. He further submitted that the property was not shown as joint family property in any income tax returns of the defendants or as an asset or property of the Firm. Exs.B8 to B10 proceedings were initiated by defendant Nos.1 to 3 before the Courts in the State of Rajasthan for partition of the alleged joint family properties. However, the suit property was not shown as part of the said proceedings. Admittedly, the said proceedings were instituted during the pendency of the present suit before the trial court. No evidence was adduced by the defendants to prove that there was a settlement or partition. No details of the parties present were given. It was only a vague and created defence for the purpose of the suit and for all the said reasons prayed to dismiss the appeals and to confirm the judgment and decree passed by the trial court. He relied upon the judgments of the Hon'ble Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu Vishweswaraswami and V.P. Temple and another 5 on the aspect that onus to prove title of the property undoubtedly is on the person asserting title to the property. The respondent-plaintiff proved her title, but the appellant- 5 AIR 2003 SCC 4548 24 Dr.GRR,J CCCA Nos.205 & 228 of 2019 defendants, who also filed the counter claim failed to prove their title to the suit schedule property.

15.3. He further relied upon the judgment of the Hon'ble Apex Court in C. Doddanarayana Reddy (Dead) by LRs. and others v. C. Jayarama Reddy (Dead) by LRs., and others 6 on the aspect that when the trial court passed its findings in accordance with the provisions of law and material documents, the same could not be interfered with.

15.4. He further relied upon the judgment of the Hon'ble Apex Court in Government of Goa v. Maria Julieta Dspiza (D)7 wherein, the Hon'ble Apex Court made a clear distinction between the burden of proof and standard of proof. He further relied upon the judgment of the Hon'ble Apex Court in S. Subramanian v. S. Ramasamy 8 on the aspect that though the family members were residing together and some loans might have been taken by the family, that itself could not be inferred that there was a blending of the suit properties into the joint family properties. He further relied upon the judgment of the combined High Court of Telangana and Andhra Pradesh in Koppula Obanna 6 AIR 2020 SC 1912 7 2024 (3) SCC 523 8 2019 (4) ALD 294 (SC) 25 Dr.GRR,J CCCA Nos.205 & 228 of 2019 (died) per LRs. v. Bheemunipadu Abraham (died) and others 9 on the aspect that delivery of possession is no longer an essential ingredient to uphold validity of an immovable property and failure of the plaintiff to take possession would not invalidate the gift.

16. Basing on these contentions of both the learned counsel for the appellants and respondent, the points that arise for consideration in these appeals are:

1. Whether PW.1 is competent to give evidence as Special Power of Attorney (for short "SPA") on behalf of the plaintiff?

2. Whether the suit schedule property was the self acquired property of the husband of the plaintiff or the property of the joint family Firm as claimed by the appellants- defendant Nos.1 to 3?

3. Whether the plaintiff is entitled to the reliefs as claimed by her?

4. Whether the defendants are entitled to be declared as owners of the suit schedule property as prayed by them in their counter claim?

5. Whether the judgment and decree passed by the trial court was in accordance with law and facts of the case or whether the same is liable to be set aside?

6. To what result?

9

2018 (2) ALD 409 26 Dr.GRR,J CCCA Nos.205 & 228 of 2019

17. Point No.1:

Whether PW.1 is competent to give evidence as Special Power of Attorney (for short "SPA") on behalf of the plaintiff?

PW.1 is the third son of the plaintiff by name Devkishan Panwar. He along with his elder brother Rajendra Kumar, were given Special Power of Attorney by the plaintiff. Ex.A1 is the SPA filed by the plaintiff. Ex.A1 would disclose that the plaintiff was a 66 year old woman, she was not well versed with the Court proceedings and that she required assistance to do things. Her sons were also personally acquainted with the facts of the case, as such, gave Power of Attorney to both of her sons Devkishan Panwar and Rajendra Kumar to jointly or individually do and execute any of the acts described by her in the said document on her behalf. In the said acts, she also described in clause 1- C to appear and depose on her behalf in any court of law. The SPA was a notarized document signed by the executant in the presence of two witnesses before the notary on 12.11.2012. As such, PW.1, who was acquainted with the facts of the case, is permitted to depose on behalf of the plaintiff.

Dr.GRR,J CCCA Nos.205 & 228 of 2019

18. The contention of the learned Senior Counsel for the appellants was that the plaintiff had not entered into the witness box. The Power of Attorney holder could not depose in place of the principal and relied upon the judgment of the Hon'ble Apex Court in Vidhyadhar v. Manikrao and another (1 supra) and Janki Vashdeo Bhojwani and Another v. Indusind Bank Limited and Others (2 supra).

19. In Vidhyadhar v. Manikrao and another (1 supra), the Hon'ble Apex Court laid down the principle that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him was not correct. But, as per the facts of said case:

"18. Defendant No. 1 himself was not a party to the transaction of sale between defendant No. 2 and the plaintiff. He himself had no personal knowledge of the terms settled between defendant No. 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, defendant No. 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant No. 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed 28 Dr.GRR,J CCCA Nos.205 & 228 of 2019 on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by defendant No. 2 in his favor. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by defendant No. 2 against defendant No. 1 including redemption of the mortgaged property.

22. ... When the present suit for redemption was filed by the plaintiff, defendant No. 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered into the witness box, defendant No. 2 did not cross examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him, defendant No. 1 alone raised the question of validity of the sale deed in favor of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to defendant No. 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, defendant No. 2 did not, in support of his case, enter into the witness box. Instead, he deputed his brother to appear as a witness in the case. He did enter into the witness box but could not prove that the sale consideration had not been paid to defendant No. 2.

20. On considering the above fact situation, the Hon'ble Apex Court held that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side under Section 114 of the Indian 29 Dr.GRR,J CCCA Nos.205 & 228 of 2019 Evidence Act, 1872, a presumption would arise that the case set up by him was not correct.

21. But here, in the present case, the son of the plaintiff was examined on behalf of the plaintiff and he was cross-examined at length by the defendants on all the aspects. As such, the proposition laid down by the Hon'ble Apex Court would not come in aid to the appellants.

22. In Janki Vashdeo Bhojwani and Another v. Indusind Bank Limited and Others (2 supra), the Hon'ble Apex Court while considering whether a power of attorney holder could depose on behalf of the principal, observed that:

"Order III Rules 1 and 2 of CPC empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in Order III Rules 1 and 2, confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."

Dr.GRR,J CCCA Nos.205 & 228 of 2019

23. In the present case, the attorney holders were authorized to depose on behalf of the principal. They were the sons of the plaintiff and have personal knowledge of all the facts stated by the plaintiff in her plaint. The plaintiff was an old aged woman, a marwadi lady, who was not acquainted with the court proceedings. As such, the sons, who were majors and acquainted with the facts of the case, can depose in place of the plaintiff.

24. As seen from the facts of the case also, no acts were done by the principal except issuing a legal notice, all the acts were done by her deceased husband, which the adult sons were aware of and can depose.

25. As such, this Court does not find any merit in the contention of the learned Senior Counsel for the appellants that PW.1 could not depose in place of or instead of the principal.

26. Accordingly, Point No.1 is answered holding that PW.1 is competent to give evidence on behalf of the plaintiff as SPA holder.

27. Point No.2:

Whether the suit schedule property was the self acquired property of the husband of the plaintiff or the 31 Dr.GRR,J CCCA Nos.205 & 228 of 2019 property of the joint family Firm as claimed by the appellants - defendants 1 to 3?

The contention of the plaintiff was that the suit schedule property was the self-acquired property of her husband. As per her contention, the I Additional Chief Judge, City Civil Court, Hyderabad, had executed the sale deed marked under Ex.A2 in favor of her husband in pursuance of the decree passed in O.S.No.596 of 1971 on his file. Ex.A2 - registered sale deed also would disclose that the purchaser Sri Balkishan Panwar, who was also an advocate by profession, had filed the suit O.S.No.596 of 1971 against his seller Smt.Afsar Naseem Khatoon and Sri Harikishan, the subsequent purchaser from the original vendor for specific performance of agreement of sale dated 01.08.1971 in respect of mulgies bearing Municipal Nos.15-7-389 and 15-7-390 situated at Begum Bazar, Hyderabad and the said suit was decreed in favor of the purchaser Sri Balkishan Panwar (the husband of the plaintiff), and a direction was given to the vendor to execute a sale deed in favor of the purchaser and to deliver vacant and peaceful possession of the property to the purchaser and the subsequent purchaser is also directed to join in the execution of the sale deed. As they failed to execute the sale deed, the sale deed was executed by the Court on their behalf, as per the 32 Dr.GRR,J CCCA Nos.205 & 228 of 2019 decree passed in O.S.No.596 of 1971. The defendants had not disputed the execution of the sale deed in favor of the husband of the plaintiff. However, the claim of the defendants was that the properties covered by Ex.A2 were purchased by Balkishan Panwar on behalf of the joint family and / or Partnership Firm. As such, the point for consideration now is whether the properties purchased under Ex.A2 were the self- acquired properties of the husband of the plaintiff or part of any joint family property or that of the Partnership Firm, as claimed by defendants 1 to 3.

28. The contention of the defendants was that out of the total sale consideration of Rs.34,000/-, for which both the properties 15-7- 389 and 15-7-390 were purchased by the husband of the plaintiff from Smt.Afsar Naseem Khatoon, Rs.6,000/- was paid by Sri Balkishan Panwar out of his own earnings and the balance of Rs.28,000/- was paid by him by withdrawing the said amount from the Partnership Firm of Chunnilal Ganga Bishan Panwar and Sri Balkishan Panwar himself admitted the same before the Income Tax authorities in the letter addressed by him to the Income Tax Department in respect of acquisition of the said property and relied upon Ex.B3, letter addressed 33 Dr.GRR,J CCCA Nos.205 & 228 of 2019 by Sri Balkishan Panwar to the Assistant Commissioner of Income Tax, dated 12.06.1979.

29. In Ex.B3 letter, Sri Balkishan Panwar stated that the property bearing Municipal Nos.15-7-389 & 15-7-390 situated at Begum Bazar, Hyderabad was owned by Smt.Afsar Naseem Khatoon and she agreed to sell the said properties to him for a consideration of Rs.34,000/- and an agreement of sale dated 01.08.1971 was executed by Smt.Afsar Naseem Khatoon in his favor. But, subsequently, she sold one of the two mulgies bearing Municipal No.15-7-389 to one Harikishan, S/o.ShivNarayan contrary to the terms of the agreement of sale and refused to sell the said property to him. As such, he filed a civil suit vide O.S.No.596 of 1971 on the file of the learned I Additional Chief Judge, City Civil Court, Hyderabad against both Smt.Afsar Naseem Khatoon and Harikishan for specific performance of agreement of sale. The suit after hot contest was decreed in his favor on 23.08.1976.

30. He further stated about the appeals filed against the said suit by Smt.Afsar Naseem Khatoon and Harikishan, Letter Patent Appeals against the judgment in C.C.C.A.No.154 of 1976 and the SLPs filed before the Hon'ble Apex Court and about the dismissal of the 34 Dr.GRR,J CCCA Nos.205 & 228 of 2019 same, the EP filed by him for execution of the decree as they failed to obey the decree and in the EP also, the matter had gone up to the Hon'ble Apex Court.

31. With regard to the consideration aspect, which was material to decide this issue, he stated that "Out of the sale consideration of Rs.34,000/-, Rs.6,000/- was paid to Smt.Afsar Naseem Khatoon on 01.08.1971 in cash on the date of agreement itself. Later on, I was directed to deposit the balance sale consideration of Rs.28,000/- in Court under the decree, which I did. The amount of Rs.28,000/- was withdrawn by me from Firm of M/s.Chunnilal Ganga Bishan Panwar, Begum Bazar, Hyderabad, in which I am a sleeping partner and deposited the same in Court. The amount of Rs.6,000/- paid earlier at the time of agreement, was my earnings from my profession."

32. The plaintiff admitted in her rejoinder that Sri Balkishan Panwar was a sleeping partner in M/s.Chunnilal Ganga Bishan Panwar Firm, but denied that he prosecuted the legal proceedings on behalf of the joint family.

Dr.GRR,J CCCA Nos.205 & 228 of 2019

33. In the light of the above contentions, when the recitals of Ex.A2 were seen, they would not disclose that Sri Balkishan Panwar admitted about purchase of the suit property on behalf of any joint family. The agreement of sale was executed by him in his individual capacity and the suit O.S.No.596 of 1971 was also filed by him in his individual capacity. The sale deed was also executed in the name of Balkishan Panwar in his individual capacity, but not in the name of any Firm. The various appeals filed against the judgment and decree in O.S.No.596 of 1971 and E.P.No.16 of 1978 in the said suit would also show that Balkishan Panwar fought the litigation in his individual capacity for more than a decade and went up to the Hon'ble Apex Court twice. No evidence was produced by the defendants 1 to 3 to show that they have contributed any expenses for the said litigation.

34. The defendant No.1 examined as DW.1 also admitted in his cross-examination that late Balkishan Panwar filed O.S.No.596 of 1971 on the file of the learned I Additional Chief Judge, City Civil Court, Hyderabad for specific performance against Smt.Afsar Naseem Khatoon and another in his individual capacity. The said admission made by DW.1 himself would prove that the suit property was the self-acquired property of Balkishan Panwar. No document was filed by the 36 Dr.GRR,J CCCA Nos.205 & 228 of 2019 defendants to show that the suit property was claimed as an asset of the Firm in any of the Income Tax Returns filed by the Firm. DW.1 admitted that he was a Chartered Accountant by profession. He admitted in his cross-examination that "M/s.Chunnilal Ganga Bishan Panwar Firm" was constituted 80 years back. One Sri Ramlal Panwar, the father of Balkishan Panwar and Sri Ganga Bishan, the father of defendants 1 and 2, were partners at the time of constitution of the Firm. After that, he along with Balkishan Panwar joined the Firm as partners, but stated that he did not know in which year, they joined the Firm. He stated that there was no Managing Partner, but the Firm was registered, but he could not say in which year it was registered. He stated that he was not having the partnership deed or did not know where it was. He further stated that the Firm was existing till 1989 till Ramlalji was alive and after his demise, the Firm was dissolved. He also stated that there was no written deed of dissolution of Firm. He admitted that Ramlalji was an individual Income Tax assessee. He was also an individual Income Tax assessee for the past 25 years. Though, he was a Chartered Accountant by profession since 38 years, and stated that he was a partner of the Firm, admitted that he never looked after the accounts of 37 Dr.GRR,J CCCA Nos.205 & 228 of 2019 the Firm and did not have the records of the said Firm. He stated that he did not know whether his brothers were Income Tax assessees or not.

35. Thus, his evidence would disclose that though he was a Chartered Accountant by profession since more than 38 years and stated that he was a partner of the said Firm of M/s.Chunnilal Ganga Bishan Panwar but he never looked after the accounts of the Firm and was not in possession of the partnership deed or the deed of its dissolution or any records of the said Firm. He could not say who was the Managing Partner of the Firm or the shares of each partners, what was the business of the Firm, its assets and liabilities or any Income Tax Returns were filed by the Firm.

36. Though the defendants 1 to 3 stated in their written statement / counter claim that the Firm had reimbursed the sum of Rs.6,000/- to Balkishan Panwar, no document was filed by them to show that they have reimbursed the said amount. No documents were filed by them to show that the suit schedule property and its neighboring mulgi were the properties of the Firm. The reply given by the Balkishan Panwar to the Income Tax Authorities marked under Ex.B3 also would disclose that he purchased the property in his individual capacity, but not for or on behalf of the Firm. The withdrawal of Rs.28,000/- from 38 Dr.GRR,J CCCA Nos.205 & 228 of 2019 the Firm by one of the sleeping partners of the Firm would not make the property purchased with the said money to be considered as property of the Firm. No presumption can be drawn that the consideration was paid on behalf of the Firm, particularly when DW.1 categorically admitted in his cross-examination that the suit property was not the property of the Firm. DW.1 admitted in his cross-examination that the name of late Balkishan Panwar continued in the municipal records for both the premises till his demise and subsequently in the name of the plaintiff. Exs.A6 to A8 receipts would disclose that the municipal tax was paid by Balkishan Panwar and after his death, by the plaintiff. At no point of time since the purchase of property under Ex.A2 in the year 1976, the defendants ever declared it as part of any joint family property or that of the Firm. They have not declared it as an asset or property of the Firm. Ex.B3 would not disclose that the property was purchased on behalf of the joint family or Firm.

37. Even with regard to the contention of the defendants with regard to the joint family, the father of Balkishan Panwar by name Ramlal Panwar and the father of DWs.1 and 2 by name Ganga Bishan Panwar, were brothers. But no evidence was adduced to show that they resided together or did any business in common. 39

Dr.GRR,J CCCA Nos.205 & 228 of 2019

38. The defendant No.2 is the own brother of defendant No.1. On his death, the defendants 5 to 7 were impleaded as his legal heirs. DW.1 in his cross-examination stated that defendant No.2 was his younger brother and the defendant No.3 was his son. The defendants 5 to 7 were the legal heirs of the deceased defendant No.2, but stated that he did not know whether the defendant No.2 died testate or intestate. He stated that they were four brothers and two sisters namely Babulal Panwar, Surajmal Panwar (defendant No.1), Bhagirath Panwar (defendant No.2) and Bhagwandas Panwar, Ramkumari Bai and Rajkumari Bai. His eldest brother Babulal Panwar expired in the year 1987 at Hyderabad. His youngest brother Bhagwandas Panwar was residing in Rajasthan for the past 7 to 8 years. He did not know the age of his younger brother. All the brothers were living separately after demise of their father. He did not know the source of income of his brother Bhagwandas Panwar. His eldest brother Babulal Panwar had his own business, but he could not give the details of the same. He stated that he did not know what the second defendant was doing. He was not aware of his activities including the source of his income. The defendant No.2 was residing at Shahniyat Gunj in a rented house. He was residing at Chudi Bazar in his self-acquired property. He stated that 40 Dr.GRR,J CCCA Nos.205 & 228 of 2019 his father and all the four brothers constituted a joint family. The said joint family was still in existence, but the joint family has no business concern. The joint family was not an Income Tax assessee.

39. Thus, the evidence of DW.1 would disclose that he and his own brothers themselves were residing separately at different places and were doing separate businesses. One of his brothers was residing in Rajasthan and the other one though residing in Hyderabad i.e. defendant No.2, he was not aware of the businesses of his brothers or their source of income. His evidence is not useful to believe that there was a joint family existing between his father and his elder paternal uncle and that they did any business in common or that the joint family was having any income and that with the nucleus of the said income, the suit schedule property and its neighboring mulgi were purchased.

40. Learned Senior Counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Others (3 supra) on the aspect that there was no presumption that a property standing in the name of a member of joint family was a Joint Hindu Family property, but on the evidence if it was established that the property was Joint Hindu Family Property and the other properties were acquired out 41 Dr.GRR,J CCCA Nos.205 & 228 of 2019 of that nucleus, if the said initial burden was discharged by the person, who claims Joint Hindu Family, then the burden would shift to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by adducing cogent and necessary evidence.

41. But in the present case, the defendants failed to prove that the Joint Hindu Family was in existence and the Joint Hindu Family was having any properties and from out of the nucleus of the said properties, the suit schedule property was purchased.

42. In Surendra Kumar v. Phoolchand (Dead) through LRs. And another10, the Hon'ble Apex Court held that:

"It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint, has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family." 10

(1996) 2 SCR 15(SC) 42 Dr.GRR,J CCCA Nos.205 & 228 of 2019

43. Thus, there is no presumption that even though a family was living in joint, the property possessed by each individual member is a joint family property. The burden lies upon the person, who claims that it was a joint family property, to prove that the joint family possessed joint property, which would form sufficient nucleus from which the property in question may have been acquired. But the defendants failed to prove about the existence of a joint family or that the joint family was having any property and with the said nucleus, the suit schedule property was purchased by the husband of the plaintiff - Balkishan Panwar.

44. The other contention of defendants 1 to 3 was that after the death of Ramlal Panwar in 1989 and Ganga Bishan Panwar in 1991, there was a family arrangement between Sri Balkishan Panwar on one side and sons of Sri Ganga Bishan Panwar i.e. defendants 1 and 2 and Sri Baghwandas Panwar, the other sons of late Sri Ganga Bishan Panwar on the other side and in pursuance of the said arrangement, mulgi bearing No.15-7-389 fell to the share of late Sri Balkishan Panwar and mulgi bearing No.15-7-390 fell to the share of sons of late Sri Ganga Bishan Panwar i.e. defendants 1 and 2 and Sri Bhagwandas Panwar. But, to prove the said contention, no evidence was adduced by 43 Dr.GRR,J CCCA Nos.205 & 228 of 2019 the defendants to show that there was any family arrangement. Whether the said arrangement was oral or in writing also was not stated by the defendants. If it was an oral arrangement, before whom it was made, when it was made and what were the other properties that were distributed between the parties in the said family arrangement, was not stated by defendants 1 to 3.

45. As per Section 17 of the Indian Registration Act, 1908, any transfer of immovable property can be affected only by a registered document. Admittedly, no such document was filed by the defendants.

46. On the other hand, the plaintiff had filed Ex.A27, an agreement dated 04.03.1992 executed between D1, D2 and his other brother Bhagwandas Panwar, wherein they stated that late Sri Ganga Bishan Panwar, their father, was carrying on business under the name and style of M/s.Chunnilal Ganga Bishan Panwar in the premises bearing No.15-7-390 situated at Begum Bazar, Hyderabad (the suit schedule property herein) along with the second and third parties i.e. defendant No.2 and Bhagwandas Panwar. The second party started business in wholesale in wheat products in the rear portion bearing Municipal No.15-7-390/1 under the name and style of M/s.Bhagirath Bhagawandas Panwar. Sri Ganga Bishan Panwar died on 09.04.1991. 44

Dr.GRR,J CCCA Nos.205 & 228 of 2019 After the death of Sri Ganga Bishan Panwar, on verification of accounts, as it was found that both the Firms were indebted to various creditors and sustained losses in the businesses, they entered into a mutual agreement to separate their businesses without any interference of each other. In the said agreement at clause No.8, they admitted that "late Sri Ganga Bishanji was carrying on business in the mulgies along with second and third parties therein as tenant till his death. Now, in future, if the mulgies are purchased from their owner one Balkishan Panwar either out of the joint funds of the parties therein or by the funds of any one or two of the parties therein under the above agreement, the mulgies would be the joint properties of all the three parties therein and their mother Smt.Narayani Bai and the widow of their deceased elder brother Sri Babulal Panwar.

47. Thus, they admitted in the said agreement that Balkishan Panwar, the husband of the plaintiff was the owner of the mulgi bearing No.15-7-390 and Late Sri Ganga Bishan Panwar was carrying on business in the said mulgi along with his two sons as tenants and in future if the mulgies were purchased from the owner out of the joint funds of the parties therein, it would be the joint property of all the three brothers along with their mother and widow of their elder brother. 45

Dr.GRR,J CCCA Nos.205 & 228 of 2019 When the defendants 1 to 3 were admitting the suit schedule property as the individual property of Balkishan Panwar and recognizing him as owner, their contention that it was a joint family property or the property of the Firm, would not hold any merit. This document marked under Ex.A27 when confronted to DW.1 during his cross-examination, he admitted the same and its contents in his deposition on 28.04.2016.

48. The other aspect stated by the plaintiff was that during his lifetime, the husband of the plaintiff had given the two properties 15-7- 389 and 15-7-390 situated at Begum Bazar, Hyderabad, as collateral security and guarantee for the loan obtained by defendant No.3 and as the defendant No.3 failed to discharge the said loan taken from M/s.Vijaya Bank, Bank Street, Hyderabad, the bank had filed a suit vide O.S.No.1391 of 1993 and the said loan was discharged by the husband of the plaintiff and got released the property from the mortgage.

49. The plaintiff got marked Ex.A20, the certified copy of the judgment in O.S.No.1391 of 1993 delivered by the learned VII Senior Civil Judge, City Civil Court, Hyderabad. Though the defendant No.3, shown as defendant No.1 in the said suit filed a written statement, the defendant No.3 never claimed that the mortgaged property therein was a joint family property or it was the property of the Firm. The husband of 46 Dr.GRR,J CCCA Nos.205 & 228 of 2019 the plaintiff shown as defendant No.2 therein also had not mortgaged the said property on behalf of any Firm. The same would also prove that the suit property was the self-acquired property of the husband of the plaintiff and he had given it as a security for the loan obtained by defendant No.3, the son of defendant No.1, Kamal Kishore Panwar.

50. Further, the defendants 1 to 3 had filed Exs.B8 to B10, the proceedings initiated by them in the State of Rajasthan for partition of the joint family properties. However, the suit property was not part of the said proceedings. Admittedly, the said proceedings were instituted during the pendency of the present suit before the trial court. The same would also disclose that the suit property was the self-acquired property of the husband of the plaintiff. If all it was a joint family property, the defendants 1 to 3 would have claimed partition of the said property also. They had not stated about any settlement between the joint family with regard to the said property also in the said suit. As such, the defendants failed to prove that the suit schedule property was a joint family property or that it was property of the Partnership Firm, as claimed by them.

Dr.GRR,J CCCA Nos.205 & 228 of 2019

51. Point No.3:

Whether the plaintiff is entitled to the reliefs as claimed by her?

As the suit is filed by the plaintiff claiming the relief of declaration of title and recovery of possession along with past and future mesne profits and able to establish that the suit schedule property was the self-acquired property of her husband, she is entitled to the reliefs, as claimed by her.

52. Point No.4:

Whether the defendants are entitled to be declared as owners of the suit schedule property as prayed by them in their counter claim?

As the defendants also filed a counter claim seeking declaration that they were owners of the suit schedule property by raising a contention that the same was purchased out of the joint family funds or by the Partnership Firm and failed to prove the same by adducing cogent and reliable evidence, they are not entitled to be declared as owners of the suit schedule property, as prayed by them in their counter claim. They have also not joined their other brother Bhagwandas Panwar along with them in the counter claim. They have filed two written statements. 48

Dr.GRR,J CCCA Nos.205 & 228 of 2019 They have filed the first written statement seeking the relief declaring the defendants 1 and 2 along with their brother Sri Bhagawan Das Panwar, as owners of the suit schedule property bearing mulgi No.15-7- 390 at Begum Bazar, Hyderabad, but in the second written statement filed by them, they have asked only for the relief to declare defendants 1 and 2 alone as absolute owners of the suit schedule property bearing mulgi No.15-7-390 situated at Begum Bazar, Hyderabad. These different prayers would disclose that they were not certain as to who were entitled to be declared as owners of the property.

53. As the first written statement also included the counter claim, the second written statement - cum - counter claim was not maintainable. As Sri Bhagwandas Panwar was not a party to the suit, the declaration sought on his behalf also is not maintainable. In view of the discussion made in point No.2, as the defendants failed to prove that the suit schedule property was purchased out of the joint family nucleus or by the Partnership Firm, they are not entitled to be declared as owners of the suit schedule property, as prayed by them in their counter claim.

54. As per the judgment of the Hon'ble Apex Court in Maria Margarida Sequeira Fernandes and Others v. Erasmo Jack De 49 Dr.GRR,J CCCA Nos.205 & 228 of 2019 Sequeira (Dead) through LRs. 11 also wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. The person averring a right to continue in possession shall, as far as possible, give detailed particulars and specific pleadings along with documents to support his claim to establish his possession.

55. The plaintiff had produced Ex.A2 in proof of the title of her husband and filed Ex.A3, the gift deeds executed by her sons in her favor to show that she was the absolute owner of the suit schedule property. The defendants 1 to 4, who were in possession of the suit schedule property, failed to establish their title and their right to be continued in possession. They never disputed the claim of the plaintiff when she got mutated the property in her name after the demise of her husband or that they never made any efforts to get the property mutated in their name to prove their claim that the property fell to their share after the family settlement.

2012 (5) SCC 370 50 Dr.GRR,J CCCA Nos.205 & 228 of 2019

56. In view of the same, the defendants were not entitled to the relief of counter claim, as claimed by them.

57. Point No.5:

Whether the judgment and decree passed by the trial court was in accordance with law and facts of the case or whether the same is liable to be set aside?

This Court does not find any illegality or infirmity in the judgment of the trial court to set aside the same. The trial court on considering the evidence of the witnesses and the documents in detail, passed a reasoned order, as such, the same is liable to be confirmed.

58. Point No.6:

To what result?

In the result both the CCCAs are dismissed confirming the judgment dated 28.02.2019 passed in O.S.No.541 of 2008 by the learned IV Additional Chief Judge, City Civil Court, Hyderabad. No order as to costs.

As a sequel, miscellaneous applications pending in these appeals, if any, shall stand closed.

____________________ Dr. G.RADHA RANI, J Date: 11th April, 2025 KTL/NSK

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