Dismissed

Md.Eleyas and Another. v. Janab Mohammed Nooruddin and 2 Others.

Telangana HC14 Dec 2012SA/61/1999

Case brief

AI extract

What is this about?

Appeal dismissed. The Court held that the trial court was justified in decreeing the perpetual injunction suit as the plaintiff established possession via a sale certificate and delivery receipt. The defendants failed to prove the agency or ownership of the property against the plaintiff.

What did the court decide?

Second Appeal No.61 of 1999 is dismissed. No costs.

Md.Eleyas and Another. Vs Janab Mohammed Nooruddin and 2 Others. — Partition | Telangana HC (2012)

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HON’BLE SRI JUSTICE K.G. SHANKAR

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Second Appeal No.61 of 1999

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Date: 14.12.2012

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Between:

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1. Janab Mohammed Eleyas,

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s/o. late Shaik Meeran (died) per LRs appellants 3 & 4

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2. Janab Mohammed Ibrahim

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3. Md. Ismail Fostered

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4. Md. Salma Banu fostered. .. Appellants/ Defendants

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AND

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1. Janab Mohammed Nooruddin

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2. E. Krishna Reddy

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3. E. Syamala .. Respondents/

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Plaintiffs

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HON’BLE SRI JUSTICE K.G. SHANKAR

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Second Appeal No.61 of 1999

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JUDGMENT:

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This appeal was initially laid by the defendants 1 and 2 in the suit in O.S.No.886 of 1991 on the file of the III Additional District Munsif, Visakhapatnam. The first defendant subsequently died. His legal representatives were brought on record as appellants 3 and 4 herein. Defendants 3 and 4 are arrayed as respondents 2 and 3 while the plaintiff figured as the first respondent in this appeal.

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2. The plaintiff sought for a perpetual injunction in respect of 1457 square yards of vacant site together with a hut in Survey No.44/P, situate at Muslim Thatichetlapalem, Visakhapatnam. The trial Court decreed the suit with costs. Aggrieved by the same, defendants 1 to 4 preferred the appeal in A.S.No.68 of 1994 before the II Additional District Judge, Visakhapatnam. The learned Judge dismissed the appeal. Hence, the present appeal by the defendants.

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3. The trial Court and the appellate Court held that the plaintiff has been in possession of the plaint schedule

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property. Incidentally, both the Courts held that the plaintiff is the owner of the plaint schedule property. The substantial question of law that arises for consideration is whether the burden of proof lies on the defendants or the plaintiff to show their respective possessions.

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4. The parties are muslims. The father of the plaintiff and the father of the first defendant were said to be friends and were said to be in business jointly. The father of the first defendant filed Small Cause Suit No.756 of 1927 on the file of the District Munsif, Visakhapatnam. The suit was decreed. The father of the first defendant as the decree holder brought the plaint schedule property for sale in execution of the proceedings in E.P.No.508 of 1931. In the auction, the father of the plaintiff became the highest bidder. Sale certificate was issued by the Execution Court in favour of the father of the plaintiff. The first defendant, however, contends that it is the father of the first defendant, who purchased the property in the name of the father of the plaintiff. The sale consideration was Rs.60/-. On 22.05.1935, the plaint schedule property was delivered to the father of the plaintiff in E.P.No.508 of 1931, vide Ex.B.7-delivery receipt. That the father of the first defendant filed a small cause suit, that he obtained the decree and that he brought the plaint schedule property to sell, are not in dispute. However, albeit the sale certificate was issued by

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the Execution Court in favour of the father of the plaintiff and although the delivery receipt shows that the possession was handed over to the father of the plaintiff, the first defendant contended that it is his father who was the owner of the property and the father of the plaintiff was only a benami. The main controversy revolves round this question.

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5. Sri P. Satyanarayana, learned counsel for the defendants (appellants) invited my attention to Ex.B.4. Ex.B.4 is said to be an acknowledgement document dated 06.09.1935 executed by the father of the plaintiff stating all the facts as to how the sale deed and delivery receipt were obtained in his name, albeit the property was purchased by the father of the first defendant. It is also the case of the defendants that the sale certificate, the delivery receipt and other accompanying documents were handed over to the father of the first defendant by the father of the plaintiff at the time of the execution of Ex.B.4.

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6. On the other hand, the plaintiff claims that his father purchased the plaint schedule property and that on his demise the plaintiff succeeded to the property. He further contends that in or about 1965 the sale certificate, the delivery receipt and other documents were found missing and were lost. The plaintiff slyly indicates that the first defendant committed theft of these documents.

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7. The father of the first defendant died in 1972. The father of the plaintiff died in 1976. The suit was laid on 01.10.1991. As already pointed out, this is a suit for bare injunction. However, during the pendency of the trial of the suit, the plaintiff did not enjoy any temporary injunction.

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8. The learned counsel for the defendants admitted that it is the possession, which alone decides the fate of the suit in a suit for bare injunction. He pointed out that as the plaint schedule property is vast and is urban agglomeration, documentary evidence is required to prove the possession.

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9. Ex.B.8 is copy of the proceedings of the Urban Land Ceiling Authority indicating that the property belonged to the father of the first defendant. The father of the first defendant allegedly filed suits against third parties seeking perpetual injunction against them when such third parties were trying to interfere with his possession over the plaint schedule property. Such suits were statedly filed long prior to the present case. He also contended that when neighbours wanted to make constructions in their site, such neighbours obtained written permission from the father of the first defendant to store their building material in the plaint schedule property, through a written permission. All these instances were quoted by the

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learned counsel for the defendants to show the consistent stand of the first defendant that his father was the owner of the plaint schedule property. He also pointed out that it is the father of the first defendant who donated the site to the municipality when the road widening was undertaken by the municipality.

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10. The learned counsel for the first defendant contended that the claim of the plaintiff that he lost the documents in 1965 cannot be accepted, since the plaintiff did not offer any explanation, why he did not take any steps at any point of time to procure copies of the delivery receipt and sale certificate when he realized that he lost those documents. He heavily relied upon Ex.B.4 memorandum dated 06.09.1935 under which the father of the plaintiff allegedly transferred the property in favour of the father of the first defendant. He relied upon the recitals in Ex.B.4 that original documents were delivered to the father of the first defendant through Ex.B.4. He also submitted that as the value of the property was less than Rs.60/- at the time of the purchase, Ex.B.4 did not require compulsory registration or attestation. He also tried to distinguish Ex.B.4 as mere memorandum rather than the original deed. More about Ex.B.4 and its admissibility later.

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11. The learned counsel for the defendants further submitted that the father of the plaintiff was utterly

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disinterested in the property as the property obviously belonged to the father of the first defendant. He submitted that the disinterested attitude of the father of the plaintiff was patent from the fact that the plaintiff and his father never attempted to obtain copies of the sale certificate and delivery receipt although they were lost in 1965. He also pointed out that the plaintiff never submitted urban land ceiling declaration although the extent of the property was as much as 1457 square yards. He finally submitted that although the initial burden is upon the plaintiff to establish its title, the first defendant proved his title and possession and that the suit consequently is liable to be dismissed.

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12. As against the case of the first defendant that his father purchased the plaint schedule property in the name of the father of the plaintiff and that through Ex.B.4, the father of the plaintiff delivered the sale certificate and delivery receipt (Exs.B.5 & 6) to the father of the first defendant, the plaintiff contended that the father of the first defendant used to assist the father of the plaintiff in the fruit business conducted by the father of the plaintiff and that the father of the first defendant stealthily took away Exs.B.5 & 6 and later set up title and possession over the plaint schedule property.

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13. As rightly submitted by the learned counsel for the plaintiff, Ex.B.4 is the crucial document. Ex.B.4 is

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dated 06.09.1935. It was titled as transfer deed of immovable property. As already pointed out, it is an unregistered document.

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14. Sri P. Satyanarayana, learned counsel for the defendants contended that the value of the property at the time of Ex.B.4 was Rs.60/- and that in view of Section 17 of the Indian Registration Act, there was no need for the registration of a document evidencing transfer of immovable property if the value of the property is less than Rs.100/-. He contended that Ex.B.4, therefore, is valid and cannot be rejected on the ground that it is an unregistered document. I am afraid that while Section 17 of the Registration Act contemplates that transfer of immovable property worth over Rs.100/- is compulsorily registerable through a registered instrument, it is not as though if the value of the immovable property is less than Rs.100/-, there is no need to register such a transfer document. If the value of the immovable property transferred is less than Rs.100/-, the transfer can be effected without any written instrument. However, once the transfer is reduced into a written instrument whether the value involved is over Rs.100/- or less than Rs.100/-, such an instrument is compulsorily registerable. However, the learned counsel for the plaintiff did not object Ex.B.4 on the count that it is an unregistered document and that it could not be looked into. I, therefore, do not go into the question of the legal

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maintainability of Ex.B.4.

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15. The learned counsel for the plaintiff, however, attacked Ex.B.4 contending that it is not true. As already pointed out, Ex.B.4 was executed on a non-judicial stamp paper. While the date of the execution is 06.09.1935, the date on which the stamp was purchased is 22.01.1938. The learned counsel for the plaintiff highlighted this aspect and pointed out that assuming that Ex.B.4 could otherwise confer title, Ex.B.4 is not true. There are as many as three attestors for Ex.B.4. None of them was examined by the defendants. It is true that a document could not have been executed in 1935 upon a stamp paper, which was purchased in 1938.

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The learned counsel for the defendants submitted that the date of purchase of the stamp paper was 22.01.1935 and not 22.01.1938. I am not able to agree with this contention of the learned counsel for the defendants. Indeed, the year of purchase is not very clear but a careful examination of Ex.B.4 shows that the stamp paper on which Ex.B.4 was executed was purchased on 22.01.1935. Added to it, the defendants did not choose to examine any attestor or the scribe of Ex.B.4.

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16. Ex.B.6 is the certified copy of the delivery warrant. It purportedly bears the signature of the father of the plaintiff. The signature of the father of the plaintiff in Ex.B.6 substantially agrees with the signature of the father

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of the plaintiff as in Ex.B.4. This aspect is very curious. Ex.B.4 is the original transfer deed, whereas Ex.B.6 is a certified copy. It is for the defendants to explain how the signature of the father of the plaintiff in Ex.B.4 could agree with the signature in the certified copy of Ex.B.6. Added to it, Ex.B.6 did not contain the signature of the vendee at the bottom of the document. The signature on Ex.B.6 was incorporated on the overleaf. At any rate, Ex.B.6 shows that the property was delivered to the father of the plaintiff but not to the father of the first defendant. The trial Court as well as the Appellate Court are perfectly justified in disbelieving Ex.B.4 on the ground that no one proved the execution of Ex.B.4. I do not see any reason to differ from the view taken by the trial Court and the Appellate Court regarding the authenticity of Ex.B.4.

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17. The first defendant himself admitted the possession of the plaintiff. The very basis of the case of the first defendant is the earlier possession of the plaintiff over the plaint schedule property through Ex.B.6 delivery receipt. The first defendant contends that his father took possession of the plaint schedule property, through Ex.B.4. When Ex.B.4 is not proved, the first defendant failed to prove his possession. Consequently, the case of the plaintiff that he has been in possession of the plaint schedule property inheriting the same from his father remained unshaken.

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18. The father of the first defendant was the decree holder in the small cause suit. It is he who brought the plaint schedule property to sale. It, therefore, is for the first defendant to explain why the father of the first defendant himself did not purchase the plaint schedule property and why he set up the father of the plaintiff as benamidar. One of the fundamental principles of benami transaction is to lift the veil and examine why the benmai transaction was entered into. No explanation whatsoever is forthcoming from the plaintiff why the father of the first defendant had to purchase the plaint schedule property in the name of the father of the plaintiff rather than in his own name. I am afraid that the plea of the benami transaction cannot be accepted where the first defendant failed to prove the motive for such a benami transaction.

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19. I may also refer to various contentions set forth by the first defendant to prove Ex.B.4. The plaintiff denied that Ex.B.4 contained the signature of his father. To prove the signature of the father of the plaintiff, the first defendant introduced Ex.B.6. For the reasons already set out, Ex.B.6 could not have contained the original signature of the father of the plaintiff.

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20. Added to it, it is the case of the plaintiff that his father used to sign in English only, whereas Exs.B.4 and B.6 contained the signature of the father of the plaintiff in

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Telugu. The plaintiff produced Exs.A.2 to A.5, all of which bear the signature of the father of the plaintiff in English. Viewed in any angle, Ex.B.4 is not proved.

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21. The plaintiff also placed reliance upon Ex.B.8 to show that Urban Land Ceiling Authority recognized the title of the father of the first defendant over the plaint schedule property. As rightly pointed out by the learned counsel for the plaintiff, Ex.B.8 is not urban land ceiling proceedings with finality. Ex.B.8 is a show cause notice. As correctly submitted by the learned counsel for the plaintiff, mere show cause notice by Urban Land Ceiling Authorities does not establish the possession of the father of the first defendant over the plaint schedule property. 22. Ex.B.3 is also pressed into service by the first defendant to prove his possession. It is issued by PW.2 issued to the first defendant requesting permission to store building material in the premises. PW.2, however, deposed that he executed Ex.B.3 at the request of the first defendant. Ex.B.3 certainly cannot establish the possession of the father of the first defendant over the plaint schedule property. As pointed out by the learned counsel for the plaintiff, the first defendant relied upon Exs.B.3, B.4 and B.8 only to prove his possession. None of these documents clinchingly establishes the possession of the first defendant.

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23. As pointed out by the learned counsel for the defendants, it is the plaintiff who laid the suit for perpetual injunction. Consequently, it is the plaintiff who should prove his possession. However, where the claim of the defendants is that the father of the first defendant acquired possession through the father of the plaintiff, the possession of the plaintiff and his father are automatically established.

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24. The learned counsel for the first defendant inter alia contended that the possession of the defendants is made out and that assuming that the father of the first defendant is a mere encroacher, the possession of the first defendant cannot be disturbed without due process of law. For the reasons already set out, the first defendant failed to prove his possession over the plaint schedule property. The claim of the first defendant that the plaintiff is not taking steps to procure copies of the sale certificate and delivery receipt shows that the plaintiff admitted the title and possession of the father of the first defendant over the plaint schedule property.

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I cannot draw such a presumption merely because the plaintiff did not take any steps to procure certified copies of the sale certificate and delivery receipt.

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25. As correctly submitted by the learned counsel for the first defendant, it is a simple suit for injunction. Consequently, the Court need not go into the question of

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title. The plaintiff established his possession and the possession of his father through the sale certificate and delivery receipt. The first defendant failed to establish that the purchase of the property by the father of the plaintiff was on behalf of the father of the first defendant and failed to prove that the father of the first defendant was the owner of the property. Consequently, the trial Court was perfectly justified in decreeing the suit for perpetual injunction. The Appellate Court is equally justified in dismissing the appeal. The plaintiff established his case while the defendants failed to prove their case.

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26. The second appeal consequently is found to be not meritorious and is accordingly dismissed. No costs.

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_________________ K.G. SHANKAR, J

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Date: 14.12.2012 Isn

Md.Eleyas and Another. v. Janab Mohammed Nooruddin and 2 Others.

Case brief

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Md.Eleyas and Another. v. Janab Mohammed Nooruddin and 2 Others.

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