THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Civil Miscellaneous Appeal No.389 of 2014 Between:
Dated 19th June, 2014 Smt.Ameena Yamin Qureshi And Smt.Gowhar @ Gouhar Begum and others …Appellant …Respondents Counsel for the appellant: Sri M.Adam Counsel for the respondents: ----
The Court made the following:
JUDGMENT:
This civil miscellaneous appeal arises out of order, dated 20.01.2014, in I.A.No.157 of 2013, in O.S.No.271 of 2013, on the file of the learned VII Additional Senior Civil Judge, City Civil Court, Hyderabad.
Notices sent to respondent Nos.1 to 3 have been returned unserved. Though served, respondent No.4 has not entered appearance.
I have heard Sri Manda Adam, learned counsel for the appellant, and perused the record.
The appellant filed the above-mentioned suit for declaration of title and for recovery of possession of house bearing H.No.16-2-51/1, consisting of one mulgi, one room, one hall, kitchen and WC with open space admeasuring 55 sq.yards situated at Akberbagh, Malakpet, Hyderabad. It is her pleaded case that respondent No.1 is the wife of the appellant’s husband’s brother i.e., the appellant and respondent No.1 are co-sisters. She further pleaded that during his life time, husband of respondent No.1 and respondent No.1 herself gifted the suit schedule property to the appellant orally on 02.06.2006 and that later, they have executed a memorandum of gift deed on 04.06.2006 by delivering possession of the suit schedule property on the same day and that the appellant has accordingly become the absolute owner of the property w.e.f., 04.06.2006.
Along with the suit, the appellant filed I.A.No.157 of 2013 for temporary injunction restraining the respondents from alienating, transferring or selling the suit schedule property. Respondent No.4 filed a counter affidavit which was duly adopted by respondent Nos.1 to 3. It is stated in the counter affidavit that respondent No.1 and her husband have gifted the suit schedule property, that the alleged memorandum of gift deed, dated 04.06.2006, is a forged and fabricated document created by the appellant with an intention to grab the suit schedule property, that respondent No.1 gifted the suit schedule property along with her other properties to respondent Nos.2 and 3 through gift settlement deed, dated 23.08.2006, and that respondent No.1 as care taker of respondent Nos.2 and 3 executed an agreement for development-cum-power of attorney of the suit schedule property and got constructed apartments over the suit schedule property and also other properties. It is further stated that respondent Nos.2 and 3 have already sold away five flats out of eight flats to others and kept the remaining flats for their use and enjoyment.
No oral evidence was let in by either party. On behalf of the appellant, Exs.P1 to P7 were marked and on behalf of the respondents, Exs.R1 to R10 were marked.
Upon considering the pleadings and documentary evidence, the lower Court has dismissed the application filed by the appellant for injunction. Feeling aggrieved by the said order, the appellant filed this appeal.
A perusal of the record would show that except Ex.P1, alleged memorandum of gift, no other document has been filed by the appellant to prove her possession and enjoyment of the suit schedule property. As observed by the lower Court, the respondents have established prima facie case through Ex.R2, certified copy of gift settlement deed, dated 23.08.2006, executed by respondent No.1 in favour of respondent Nos.2 and 3.
In my opinion, the lower Court has correctly appreciated the documentary evidence in coming to the conclusion that the appellant has failed to establish prima facie case. Having carefully examined the reasons assigned by the lower Court and the material on record, I do not find any reason to differ with the findings of the lower Court. Therefore, the appeal must fail. It is, however, made clear that any alienations that may be made by the respondents shall be subject to the result of the suit.
Subject to the above observation, the CMA is dismissed.
As a sequel to dismissal of the CMA, C.M.A.M.P.No.449 of 2014 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 19th June, 2014
VGB