Abdul Haq vs Zainabunnissa

Anand Byrareddy, J.

Heard the learned counsel for the appellant and the learned Counsel for the respondent.

The appellant was the defendant before the trial court in a suit for declaration and recovery of possession. The respondent, who was the plaintiff, had contended that on 2.2.1976, the plaintiff had purchased the suit schedule property under a registered sale deed from one Syed Abubakar. The plaintiff had also claimed that she was a divorcee when the suit schedule property was given to her by her divorced husband in view of permanent alimony. She had five children by her husband. Therefore, on the advice of elderly persons, the suit schedule property was conveyed in favour of the plaintiff on the funds provided by her husband and there were no male members in the family of the plaintiff and she was living in the suit schedule property along with her father and other family members. She had subsequently raised loans and demolished old structures on the suit schedule property and had constructed a new two-storied building. The records pertaining to the property are all in the name of the plaintiff It is claimed that the property consists of ground floor, first floor and second floor. In the ground floor, there are said to be three shops and in the first floor, two residential tenements and in the second floor, there is said to be a small house with asbestos sheet roofed. The plaintiff is said to be residing in the second floor. The defendant is none other than the brother of the plaintiff and he is in possession of one shop premises in the ground floor and one of the tenements in the first floor of the suit schedule property on free of rent as a licensee.

It transpires that on 11.6.1999 the father of the plaintiff had died and after the death of the father, there was difference of opinion between the plaintiff and the defendant. The defendant, who was occupying the property as aforesaid, was called upon to vacate the premises and since he refused to do so and claimed adverse possession over the suit schedule property and also started laying claims to ownership over the suit schedule property by demanding rents from other tenants of the other portions of the premises. There was acrimony resulting in the parties approaching the police. In that background, the plaintiff was constrained to file a suit. The defendant had entered appearance through counsel and resisted the suit. It was denied that the plaintiff had purchased the property as claimed and that it was provided to her in lieu of maintenance or as permanent alimony. It was contended that the marriage of the plaintiff took place in the year 1974 and the claim that her husband was in a position to provide permanent alimony by way of suit schedule property was denied as the plaintiffs erstwhile husband was working as an Imam, from the date of marriage till the date of dissolution. He was earning a meager sum of money and therefore, he was never in a position to provide even for the purchase of the suit schedule property. It was also denied that the plaintiff had managed to raise loans to demolish the old structure and reconstruct on the suit schedule property. On the other hand, the father of the defendant was working as a constable in the Police Department and he had retired from service in the year 1979 as a Head Constable and it was his income that had provided funds for the purchase of the sites in his name and he had also purchased the suit schedule property in the name of the plaintiff in the year 1976 as the defendant was a minor at that point of time and thereafter he had also demolished the old building and had constructed the suit schedule building though the property continued to stand in the name of the plaintiff It is therefore contended that the property was actually acquired by the father, in which the defendant had a right by inheritance and that it was the father who had raised loans in constructing the building and he had discharged the loans and the building was intended for the use and occupation of both the plaintiff and the defendant. It was also a matter on record that even during the life time of the father, the plaintiff had sought to deny the claim of the defendant and her father and therefore, the father was constrained to lodge a complaint to the Jamath. The fact that the defendant had continued to reside in the premises even as on the date of the suit did indicate that the real intention was that the property ought to be enjoyed by the plaintiff and the defendant and the plaintiff was only seeking to take advantage of the fact that the suit property stood in her name.

On these pleadings the court below has framed the following issues:

"1. Whether the plaintiff proves that she is the owner of the suit schedule properties?

Whether the plaintiff proves that she is entitled for possession of the suit schedule properties?"

The court below has answered the issues in the affirmative and decreed the suit.

It is that which is under challenge in the present appeal.

The present appellant had not raised any counter claim and therefore, the limited scope of the suit was whether the plaintiff could claim as the absolute owner of the suit schedule property. Even though there were pleadings, since the appellant - defendant did not choose to raise a counter claim, the scope of the suit was limited to addressing whether the plaintiff had established title to the suit property. Admittedly, the sale deed in favour of the plaintiff was unconditional and did not indicate any circumstance by which it can be concluded that it was purchased by the father in the name of the plaintiff by virtue of the fact that the defendant was a minor as on the date of the purchase and that it was intended to be enjoyed by the plaintiff as well as the defendant. There was no scope for adjudication on these aspects when there was no counter claim raised by the defendant and could only be addressed as regards the claim of absolute right and title of the plaintiff and that having been found in favour of the plaintiff cannot be faulted.

Though the learned Counsel for the appellant would seek that the matter be referred to the Lok Adalat for an amicable settlement, it is pointed out by the learned Counsel for the respondent Shri R.B. Sadashivappa that the matter had been referred to mediation on an earlier occasion and mediation failed miserably, as the parties were not able to reconcile with their differences and even if it is referred to Lok Adalat, the possibility of settlement is remote as the parties are vehement in their stand and would not be in a position to reconcile with their differences. In any event, if the matter is to be decided in accordance with law, it is evident that the plaintiff has established her title to the property by producing relevant documents. The claim set up by the defendant is not supported by any material evidence nor is there any counter claim raised by the defendant. Hence, in a suit by the plaintiff no relief can be granted to the defendant for the asking.

The appeal is without merit and is dismissed. Since the appellant may have come difficulty in immediately relocating, he is granted three months, from the date of receipt of a copy of this judgment, to quit and deliver vacant possession of the premises failing which, the respondent is at liberty to execute the judgment and decree.