THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.510 of 2010 Dated:- 28th June, 2010 Between:-
Shareefa Begum …Petitioner AND Ayesha Begum and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.510 of 2010 ORDER:-
Aggrieved by the order dated 18.12.2009 passed in E.A.No.85 of 2000 in E.P.No.32 of 2000 in R.C.No.158 of 2000 by the I Additional Rent Controller, City Small Causes Court at Hyderabad, the petitioner filed this Civil Revision Petition praying this Court to set aside the same.
2. The petition schedule property comprising of premises bearing Municipal No.22-6-151 situated at Machili Kaman, Eooche-e- Naseem, Hyderabad, originally belongs to one late Haji Mohd. Hussain. The petitioner herein – Smt.Shareefa Begum, wife of late Mahmood Khan and her two sisters, namely, Smt.Ayesha Begum (hereinafter referred to as ‘R1’) and Smt.Zainab Begum became owners of the property after the death of their father. All the sisters appear to have mutually entered into a Memorandum of Understanding (MoU) on 27.11.1987. As per the terms in MoU, R1 appears to have been allotted the petition schedule property, i.e., portion No.2 bearing premises No.22-6-149 to 151 consisting of three mulgies and the back open land. The petitioner has been allotted portion No.1 bearing premises No.22-6-145 to 148 comprising of four mulgies. Portion bearing premises No.22-6-152 and 153 consisting of two multies, kitchen and one RCC doube storied building has been allotted to Smt.Zainad Begum. R-1 filed a suit in O.S.No.5848 of 1987 for declaration and possession over the property bearing premises No.22- 6-149 to 151 and the said suit has been decreed by the decree and judgment dated 17.06.1988 by the IXth Assistant Judge, City Civil Courts, Hyderabad declaring that R-1 is the sole owner and possessor of the suit schedule property therein bearing premises No. No.22-6- 149 to 151 consisting of three mulgies and the back open land. It is not in dispute that no appeal has been filed against the said judgment and decree dated 17.06.1998. It appears that respondents 2 to 5 are the tenants of the petition schedule property. Earlier, they have filed R.C.No.610 of 1997 for deposit of rents and made the petitioner herein as a party to the proceedings. It is not in dispute that one Mohd.Osman was original tenant who is the husband of R-2 and father of R-3 to R-5 herein. R-1, who is no more and being represented by her LRs – R-6 to R-16, filed R.C.No.158 of 2000 before the I Additional Rent Controller, Hyderabad and sought a direction under Rule 23(7) of the A.P.Buildings (Lease, Rent & Eviction) Control Rules, 1961, to respondents 2 to 5 to deliver the vacant possession of the petition schedule premises to her for carrying out necessary repairs within a period of three months from the date of delivery of possession of the petition schedule property to her and she has agreed to re-induct the respondents (tenants) in the petition schedule property, immediately after the expiry of the stipulated period of three months. As per the said terms of compromise, orders have been passed in R.C.No.158 of 2000.
Thereafter, after completion of the building, as the possession has not been delivered to the respondents herein (tenants) as per the orders dated 19.06.2000 passed in R.C.No.158 of 2000, the tenants filed E.P.No.32 of 2000 for delivery of the possession of the petition schedule property. Now, the petitioner filed E.A.no.85 of 2000 claiming that she is the owner and possessor of the mulgies situated in premises bearing No.22-6-151 being in the portion of premises bearing No.22-6-145 to 153 and that the petition schedule property fell to her share and that respondents 1 to 5, i.e., her sister - Smt.Ayesha Begum and the tenants, with an ulterior motive, joined together and filed R.C.No.158 of 2000 suppressing the true and material facts and fraudulently entered into a compromise without impleading her and her sister as parties to those proceedings. It is also her case that she came to know about the alleged proceedings only on 22.07.2000 and then filed this revision petition.
Respondents 2 to 5 herein filed counter and denied the averments made by the revision petitioner and further averred that their father – Mohd.Osman has been a tenant for more than fifty years and after his death in the year 1995, they continued as tenants in the petition schedule premises and that as the landlords had been refusing to receive the rents, they filed R.C.No.610 of 1997 and that it was allowed and since then, they were depositing the agreed rent in the Court and that thereafter, they filed O.S.No.55 of 1999 for mandatory injunction and also I.A.No.971 of 1999 for interim injunction and that the said application has been allowed and that C.M.A.No.52 of 2000 passed against the said order has been dismissed by the Chief Judge, City Civil Courts, Hyderabad. It is also their case that R-1 filed R.C.No.158 of 2000 contending that she is absolute and exclusive owner of the suit schedule property by virtue of decree dated 17.06.1988 obtained in O.S.No.5848 of 1997 and thereafter, they have entered into an agreement and as per the agreement and as per the orders passed in R.C.No.158 of 2000, they evicted the premises and that now, the legal representatives of R-1 refused to re-deliver the possession and, therefore, they had filed the Execution Petition and now with a view to deprive their rights, the revision petitioner has started a fresh round of litigation by filing the present revision.
Revision petitioner has been examined herself as P.W.1 and P.Ws.2 and 3 have been examined and Exs.A-1 to A-5 have been marked on behalf of the revision petitioner. On behalf of the respondents, R-1 has been examined, Exs.B.1 to B.8 have been marked. Since the claim petition has been dismissed, the claim petitioner filed this revision challenging the said order.
Sri B.Vijaysen Reddy, learned counsel for the revision petitioner submits that though the suit in O.S.No.5848 of 1997 has been decreed by the IXth Assistant Judge, City Civil Courts, Hyderabad, but R-1 did not file Execution Petition and no property has been delivered to her as per the said decree. Since the decree has not been executed and since R1 had not taken over the possession of the property, R-1 will not get any right over the property and mere declaration of her title is not sufficient to claim right over the property. His main submission is that this point has not been appreciated by the lower Court. It is also his submission that earlier, the tenants filed petition under Section 8 of the Act for depositing of rents and at that time, they made themselves and made the revision petitioner as a party to those proceedings. It is also his submission that now R-1 and her Legal Representatives have been claiming exclusive rights over the property which is the joint property of all the sisters and if the Execution Petition is executed, the revision petitioner will be put to irreparable loss.
Per contra, Mr.Kishore Rai, representing the respondents (tenants) submits that the tenants have not been evicted as per the terms of compromise and as per the orders of the Court in R.C.No.158 of 2000 and it is obligatory on the part of respondent No.1 and her Legal Representatives to put the tenants into possession of the property. It is also his submission that it is the first respondent who had demolished the building and made new construction and it is not the case of revision petitioner that she has re-constructed the building and that only to deprive the rights of the tenants and to see that property is not redelivered to the tenants as per the orders passed in R.C.No.158 of 2000, this claim petition has been introduced to prolong the litigation and deprive the rights of the tenants. It is also his
submission that the decree passed in O.S.No.5848 of 1997 basing upon the mutual agreement and when it is so, the question of filing of Execution Petition or delivering the property to R-1 does not arise. It is also his submission that the revision petitioner herein has sold her property to third parties and this also shows that the parties have acted upon the decree passed in O.S.No.5848 of 1997 on the file of the IXth Assistant Judge, City Civil Courts, Hyderabad, and once the parties have acted upon the decree and alienated the properties on the basis of the said decree, now it cannot be said that R-1 is not in possession of the property on the date of filing of R.C.No.158 of 1997.
I have considered the above rival contentions. The only point that arises for consideration is whether there are any grounds to interfere with the impugned order.
As seen from the records, it is clear that R-1 filed O.S.No.5848 of 1997 on the file of the IXth Assistant Judge, City Civil Courts, Hyderabad, and that the said suit had been decreed on 17.06.1988 and that the petition schedule property has been allotted to her as per the said decree and it appears that the said decree, though an ex parte decree, is based on the mutual agreement entered into by the parties on 27.11.1987. It has to be seen that the revision petitioner has not disputed the execution of mutual agreement dated 27.11.1987 by which, the petition schedule property appears to have been allotted to R-1. Be that as it is, now it is not in dispute that R-1 filed R.C.No.158 of 2000 and in that petition, compromise has been reported to the Court and basing on the said compromise, orders have been passed by the I Additional Rent Controller, Hyderabad, and in pursuance of the said orders, the tenants, i.e., R-2 to R-5 had delivered the possession of the property enabling the landlady – Smt.Ayesha Begum – R1 to re-construct the building. Admittedly, now the building has been reconstructed. After re-construction, admittedly, possession has not been delivered to the tenants and, therefore, the tenants filed E.P.No.32 of 2000. As seen from the contents of the sale deed dated 14.12.1994 said to have been executed by the revision petitioner, it is clear that the parties have acted in terms of mutual agreement dated 27.11.1987 and as per the decree in O.S.No.5848 of 1987 referred supra, the question of filing an Execution Petition for execution of decree obtained in that suit does not arise. In view of the clear allotment of properties as per the mutual agreement and decree in O.S.No.5848 of 1987, it is clear that the points raised by the learned counsel for the petitioner have no force.
In the circumstances, I do not see any valid and legal grounds to interfere with impugned judgment. The Civil Revision Petition has no merits and is accordingly dismissed without any order as to costs.
JUSTICE B.CHANDRA KUMAR June 28, 2010 Bvv