Allowed

Shaik Khader Hussain Ongole PRAKASAMAND17 v. Rajavari Peerla Chavadi Ongole AND76 Ors.

Telangana HC6 Dec 2010AS/2709/1999

Case brief

AI extract

What is this about?

Two appeals challenging a civil judgment decreeing suit property to an institution owned by Wakf Board. The High Court held that due to procedural irregularities like improper service and ex parte examinations of most defendants, the impugned judgment is set aside and matter remitted for fresh trial.

What did the court decide?

Impugned judgment set aside and matters remitted to Court below for fresh disposal after giving notice and opportunity.

Shaik Khader Hussain Ongole PRAKASAMAND17… — Civil Procedure and Limitation | Telangana HC (2010)

¶1

THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND

¶2

THE HON’BLE SRI JUSTICE V.SURI APPA RAO

¶3

A.S.NOs.2709 OF 1999 AND 196 OF 2009

¶4

COMMON JUDGMENT: {Per the Hon’ble Sri Justice B.Prakash Rao} Since these two appeals arise out of the same judgment, they are taken up together for disposal.

¶5

In A.S.No.2709 of 1999, the appellants are the defendants whereas the first respondent is the plaintiff and the other respondents are the parties who were arrayed as defendants in the Court below. In A.S.No.196 of 2009, the appellant is defendant No.57 and the first respondent is the plaintiff and similarly, the other respondents are the other defendants in the Court below.

¶6

These two appeals arise out of the judgment dated 29.06.1999 passed in O.S.No.63 of 1994 on the file of the Principal Senior Civil Judge, Ongole, decreeing the suit filed by the respondent hereinMuthavalli in respect of the suit schedule property, which originally belong to an institution, Wakf Board known as ‘Rajavari Peerla Chavadi’, where the first respondent-plaintiff sought for relief of recovery of possession in respect of the suit schedule property. The suit schedule property consists of the land admeasuring Acs.35,380.40 square yards situated in Survey No.147 of Ongole, Prakasam District.

¶7

The claim of the first respondent-plaintiff, in short, is to the effect that the suit property belongs to the aforesaid institution. However, all the defendants, who are numbered as defendants 1 to 93, are the purchasers under various sale deeds from 25 persons, who have no right, title or interest or whatsoever nature in respect of the said property. Hence, the claim of the defendants in pursuance of such purchasers is totally without any basis and no title can be conferred. In

¶8

view of the same, the plaintiff is entitled to recovery of title since all these sales are invalid and non est in the eye of law and could not deprive the interest of its rights.

¶9

The said suit was filed on 02.09.1993. Subsequently, as mentioned in paragraph No.2 of the judgment, only defendants 31, 39, 50, 55, 58, 61, 69, 80 and 92 were served with notices and filed written statements. All others have remained ex parte. Separate written statements were filed on behalf of defendants 39 and 69. The claim of those defendants, who appeared and filed written statements, is again in pursuance of the purchases made by them and denying the claim of the plaintiff and also that of the institution.

¶10

The appellant in A.S.No.196 of 2009 states that since he has not been served, he could not appear and he was set ex parte. It has been pointed out that there has been no proper service on the defendants as the addresses as shown are fake. Further, except mentioning that in Ongole, no other details have been given. Therefore, there was no due service of notice and consequently, it resulted in non-appearance of the defendants. Similar is the case of the other defendants. Necessarily, the matters require to be properly contested by providing opportunity to all of them by filing their respective pleadings and also substantiate their claims by adducing necessary evidence, both oral and documentary.

¶11

In spite of such non-appearance of the defendants and their remaining ex parte, the Court below proceeded with the enquiry, where the first respondent-plaintiff was examined as P.W.1 and marked Ex.A1, the proceedings of the A.P. State Wakf Board, Hyderabad, appointing Syed Jalal i.e., P.W.1, as Muthavalli of Plaintiff’s Peerla Chavidi. On behalf of the defendants, D.Ws.1 to 6 were examined and Exs.B1 to B34 were marked. On a consideration

¶12

thereof, the Court below decreed the suit holding that the first respondent-plaintiff is entitled to possession. The claim of those defendants, who contested on the ground of they being bona fide purchasers for value without notice, is also rejected. Hence, the two appeals.

¶13

Having heard the learned counsel on either side and on perusal of the material available on record, the only question that arises for consideration is whether on the facts and circumstances of the case, the claim of the plaintiff is sustainable.

¶14

There is no dispute to the fact that all the defendants herein have purchased different extents from different persons. Admittedly, none of the purchasers made any purchases from the respondentplaintiff, who claims to be Muthavalli. The other objection taken is that the Civil Court has no jurisdiction having regard to the fact of creation of evidence. Further, the first respondent did not take any permission from the Wakf Board as per the provisions of the Wakf Act, 1995. That apart, neither the Wakf Board itself nor the Institution being a party, the suit as has been filed and framed is also maintainable. Since all these areas have not been gone into in proper perspective and further, most of the defendants being remained ex parte, it is felt necessary that the matter has to be properly enquired into by providing opportunity to both the parties, who are seeking respective extents in the suit schedule property. All these questions can as well be addressed at the time of fresh enquiry and the same shall be considered on merits and disposed of on merits in accordance with law. Hence, leaving it open for both the parties to raise all pleas and objections to be considered at final disposal once again, we are of the view that the matter requires reconsideration by fresh trial. The plaintiff can also come out with all the correct addresses of the defendants as shown in the cause title.

¶15

Subject to the above, both the appeals are allowed and the judgment dated 29.06.1999 in O.S.No.63 of 1994 on the file of the Principal Senior Civil Judge, Ongole, is set aside. The matters are remitted back to the Court below for fresh disposal in accordance with law after giving notice and opportunity to both the sides. No costs.

¶16

_________________ (B.PRAKASH RAO, J)

¶17

__________________ (V.SURI APPA RAO, J)

¶18

6^th December 2010 RRB

Shaik Khader Hussain Ongole PRAKASAMAND17 v. Rajavari Peerla Chavadi Ongole AND76 Ors.

Case brief

What is this about?

What did the court decide?

Shaik Khader Hussain Ongole PRAKASAMAND17 v. Rajavari Peerla Chavadi Ongole AND76 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sonteana Jagannadham, Ex-Salesman of Girirajan Co-operative Vs The Industrial Tribunal-Cum-Labour Court

Lakshmi Suri, Vs The Union of India, Rep by its Secretary

G.Sudhakar Rao Vs The Director, Indian Oil Corporation Ltd.

Amara Venkata Laxmamma Vs Rajavari Peerla Chavadi, Ahoor Khana,Gandhi Road,Ongole

State Bank of India Vs Smt. B. Karunamba

M/s. The Golconda Engg. Enterprises Ltd., Vs Mahadev Timber Depot