In these Civil Revision Petitions, the High Court dismissed appeals challenging the dismissal of execution applications. The Court upheld the trial and appellate courts' findings that there was no evidence the claimant was in possession of the property, rejecting his Section 53-A reliance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HONOURABLE SRI JUSTICE P.NAVEEN RAO
C.C.C.A.Nos.332 & 333 of 2019
Date: 12-11-2019
C.C.C.A.No.332 of 2019:
Between:
Syed Zaki Hussain Razvi S/o.Syed Muzaffar Hussain Razvi, Aged 45 yrs, Occu : Business, R/o.Flat No.103, Heritage Apartment, H.No.1-7-382 to 386, Musheerabad, Hyderabad.
…..Appellant/Claim Petitioner
And
The Court made the following:
HONOURABLE SRI JUSTICE P.NAVEEN RAO
C.C.C.A.NOs.332 & 333 OF 2019
COMMON JUDGMENT:
Heard Sri M.R.S.Sreenivas learned counsel for appellants in both the appeals and Sri K.Srinivas, learned counsel for respondents 4 and 5 in both the appeals. Parties herein are referred to as arrayed in E.As.
respectively are filed by claim petitioner. Both E.As, are dismissed by common order.
4.1. According to claim petitioner agreement of sale was executed on 23.12.2009 between him and late Smt Susheela Devi to sell property bearing Municipal H.Nos.3-6-317 and 318, Hyderguda, Hyderabad and considerable amount of sale consideration was already paid. As per the agreement he got the tenant evicted on 10.02.2011 by paying him �.10,00,000/- and entered into possession and he is running the “Swadish Tea and Tiffin Centre”. As legal heirs of Smt Susheela Devi were not honouring the agreement of sale, he filed O.S.No.208 of 2015, to grant decree of specific performance of agreement of sale dated 23.12.2009 pending in the court of XXV Additional Chief Judge, City Civil Court, Hyderabad. He would urge that decree holder is aware that claim petitioner is in possession of the suit schedule property but deliberately was not made a party to the suits and E.P.
4.2. Per contra, according to decree holder in property bearing Municipal H.No.3-6-317 and 318, Hyderguda, Hyderabad comprising of ground and first floor (shops and residential portions), late Smt Susheela Devi has 1/3rd share holding which was accrued to her by virtue of award passed by Lok Adalat on 23.11.2007 in O.S.No.543 of 2006 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. Smt Susheela Devi died on 01.11.2011. After her death in terms of registered will deed bearing document No.158 of 2006 dated 25.09.2006 Smt Sunitha Goel succeeded to the said extent of share in the joint family
property. Smt Sunitha Goel would claim that she succeeded to E.P. schedule property by virtue of registered deed of partition dated 24.08.2012. She denies existence of an Agreement of sale dated 23.12.2009 claimed to have been executed by late Smt Susheela Devi and part payment of sale consideration and that she lodged police complaint in Cr.No.276 of 2016, in Police Station, Narayanaguda. She claimed that judgment debtors were in possession of suit schedule shops as on the date of decree and denies the possessionary assertion of claim petitioner.
4.4. Before the Trial court Judgment debtor No.2 denied receiving any consideration from claim petitioner and handing over possession of suit schedule property to him. According to judgment Debtor No.2 on 04.04.2007 he had settled partnership account with judgment debtor No.1 and therefore, he is nothing to do with the ‘Tea and Tiffins business’ and therefore, question of receiving money by him after that date would not arise and that he is falsely dragged into the controversy.
(a) Though he was vehemently contending that he paid �.10,00,000/- to the tenant, evicted him and entered into possession no evidence in proof of such payment is brought on record. Further, judgment Debtor No.2 denied receipt of said amount ;
(b) Trial Court noticed inconsistent stand of claim petitioner on date of taking possession and nature of business being conducted by him ;
(c) Further, the defendant No.1 instituted O.S.No.1296 of 2012 against Smt Susheela Devi on 30.07.2012 to grant injunction against interference by Defendant in possession and enjoyment of very same suit schedule property and consistently claimed that he is in possession of the suit schedule shops.
schedule property. Accordingly, answered all the three issues against the claim petitioner.
8.1. Placing reliance on several documents marked in his claim petition, learned counsel for appellant submitted that these documents clinchingly establish that he is in possession and enjoyment of the suit schedule properties and that he became the owner.
8.2. Learned counsel for the appellant sought to place reliance on the judgment of the Hon’ble Supreme Court in “Shrimant Shamrao Suryavanshi and another Vs Pralhad Bairoba Suryavanshi (dead) by LRs and others1 ” .
8.3. According to learned counsel, as held by the Supreme Court, Section 53-A of the Transfer of Property Act (for short ‘the Act’) provide protection to a transferee who in part performance of contract had taken possession of property. According to learned counsel all the conditions required under Section 53-A of the Act are complied by the claim petitioner and he was validly kept in possession of the suit schedule property.
9.1. Learned counsel for the decree holders submitted that the claim petitioner was never in possession and in occupation and is making a false claim. Learned counsel further submitted that challenging the judgment rendered by Trial Court he filed A.S.Nos.18 and 19 of 2016 and thereafter S.A.No.929 of 2016. He would therefore submit that the 1st defendant/tenant all along
1 (2002) 2 Supreme Court Cases 676
claimed that he was in possession and he should not be interfered by the plaintiff in the suit.
9.2. He would submit that on detailed consideration of the evidence on record, the first appellate court also affirmed the decision of the trial court. Not satisfied with the concurrent finding of the trial court and the first appellate court, the 1st defendant/tenant filed S.A.No.929 of 2016 and the said second appeal was also dismissed affirming the decision of the trial court and first appellate court. From the pleadings raised in the first appeal and the second appeal, it is clearly evident that all along the tenant was in occupation and was therefore, contesting the decree to evict him from the suit schedule property.
9.3. Learned counsel also filed copy of the report of the Forensic Science Laboratory dated 11.01.2018 in support of his contention that the report justifies the contention of plaintiff all along that the alleged agreement of sale was a forged and fabricated document and based on the said forged and fabricated document a false claim is set up.
possessory claim and to discredit the finding of fact arrived at by the learned trial Judge on assessment of voluminous evidence on record. Merely because there is some correspondence by statutory authorities/police on various aspects of doing business does not clinch the issue in his favour when, as rightly held by learned trial Judge, there is no evidence on possessionary claim.
fabricated agreement of sale document brought into existence forging signatures. Trial Court has also took note of the suit instituted by claim petitioner to grant decree of specific performance.
12.11.2018. It is thus apparent that the 1st defendant was asserting that he is in possession and that he should not be evicted. Thus, no cogent evidence was brought on record to show that the claim petitioner was put in possession in order to grant relief by the Execution Court.
learned counsel for claim petitioner. The trial Court considered all aspects and on detailed assessment of evidence on record came to correct conclusion and does not call for interference.
miscellaneous petitions if any shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO
Date: 12.11.2019 rds/kkm
HONOURABLE SRI JUSTICE P.NAVEEN RAO
C.C.C.A.Nos.332 & 333 of 2019
Date: 11-11-2019
3 issues framed by the court
Whether the claim petitioner is in possession of the suit schedule property to claim protection under Section 53-A of the Transfer of Property Act during execution proceedings.
Whether the lower courts erred in rejecting the claim petitioner's contention that he was in possession and is the absolute owner of the property.
Whether the execution petitions pending against the decree holders are maintainable given the existence of a civil suit regarding specific performance.
Syed Zaki Hussain Razvi
Sunitha Goel
P. Naveen Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
