Mohammed Jahangir Saheb Died Per Lrs vs Mohamed Dawood

This Civil Revision Petition is filed against the orders in IA No. 1295 of 2017 in OS No. 480 of 2012, Dated 06.04.2018 on the file of Spl. Sessions Judge for Trial of cases under SCS & STs (POA) Act, 1989-cum-VII Addl. District & Sessions Judge, Ranga Reddy District at L.B. Nagar.

In the said suit plaintiff and defendant No.1 are real brothers and defendant Nos. 2 to 12 are the sons and daughters of the elder brother of the plaintiff namely late Mohammed Kjaja Saheb. During the pendency of the suit plaintiff filed an Interlocutory Application under Order VI Rule 17 CPC for amendment of the plaintiff by inserting Paragragh 8-A and 8-B in the plaint. In the affidavit it is stated that he is also deposing on behalf of plaintiffs 2, 4, 5, 6 and 7. He stated that his father late Moulvi Haji Mohammed Jehangir Saheb filed the suit for partition against the defendants 1 to 12 regarding the suit schedule property bearing Sy.No. 229, admeasuring Ac.8-10 gts situated at Gagan Pahad Village. Defendants 13 and 14 are not necessary parties as no relief is claimed against them. His father passed away on 04.08.2013 and after his death they were brought on record as L.Rs. The defendants in their written statement stated that plaintiffs executed registered release deed vide document No. 1951 of 1983 and released the suit schedule property in his favour and also delivered physical possession. D-1 filed suit for declaration and perpetual injunction. Before commencement of the trial defendants dispossessed the plaintiffs from the suit schedule property in the intervening night of 30th September/1st October, 2017. As such he intended to bring on record and sought amendment and requested the court to permit the same. He filed the said application on 23.07.2017.

In a counter filed by the 1st defendant, he stated that the suit is false, frivolous and vexatious and the interlocutory application is not maintainable. He stated that he has been in joint possession since 1977 and thereafter from 04.04.1083 by virtue of Registered Release Deed he has been in possession and enjoyment of the suit schedule property and property is vested with him and he is absolute and exclusive owner of the same. The suit is filed in the year 2012 but the petitioners are dragging the litigation and an additional issue was framed at the stage of commencing the trial. Though petitioner stated in the plaint that they are in joint possession but contrary to the same they prayed for recovery of possession and now their allegation in the affidavit that they have already prayed for recovery of possession in the plaint as delivery of possession is sought. It clearly shows that they are not in joint possession and to save the Court fee simply stated that they are in joint possession, mutually conflicting prayers cannot be sustained. Moreover, neither the plaintiffs nor the defendants 2 to 4 are in possession, as such the question of dispossessing them on 01.10.2017 does not arise. They have not paid proper Court fee under Section 34 (1) of A.P. Court fee and Suits Valuation Act, 1956. As such the amendment sought for cannot be considered.

The trial Court after considering the arguments of both sides at length dismissed the application against which the C.R.P. is preferred in which the revision petitioners contended that no prejudice will be caused to the respondents if the plaint is amended by adding the additional para No.8a and 8b after paragraph No.8 in the plaint. They filed rejoinder to the written statement denying the execution of release deed in their favour. The trial Court observed that no oral or documentary evidence is placed to prove that they were in joint possession and the respondents herein removed the furniture and fixtures and dispossessed them on the intervening night of 30/01-10-2017 and they will produce the evidence before the trial Court. The trial Court cannot go into the merits of the pleadings at the stage of allowing the amendment petition. Therefore requested the Court to set aside the order.

The trial Court extracted the contention of both sides in the plaint and written statement. Plaintiff No.1 Mohammed Jehangir father of plaintiff Nos. 2 to 7 filed suit against defendant No.1 Mohammed Dawood who is real brother and defendant Nos. 2 to 7 are sons and daughters of elder brother of the plaintiff Late Mohammed Khaja Saheb. Plaintiffs stated that they jointly purchased the suit schedule property in Sy.No. 229, admeasuring Acs.08.10 gts of Gaganpahad Village through a registered sale deed bearing document No. 343 of 1977 and later they constructed poultry sheds and started poultry business but sustained heavy loss in the business and closed the same. Later they converted the suit schedule property into a truck halting station as it is located abutting to the National High Way No.7 and the income derived from it being shared among themselves. Even after demise of elder brother in the year 1982 the suit schedule property is not yet partitioned when he became sick he requested for partition. Plaintiffs stated that on 24.04.2012 a meeting was conducted in the residence of the plaintiff. Plaintiff requested the defendants to make partition and separate possession of the suit schedule property but the defendants 2 to 12 refused to do so. As such plaintiff is claiming 1/4th share.

Defendant No.1 in his written statement admitted joint possession, construction of the poultry farm, sustaining losses and stated that partnership deed was dissolved on 1.11.1981. They requested the defendant No.1 to purchase the suit schedule property and accordingly executed registered release deed on 04.04.1983 vide document No. 1951/1983 in favour of defendant No.1 and possession was delivered along with original sale deed and link documents by receiving considerable amounts and since then the defendant No.1 is in exclusive possession of the suit schedule property. As such the question of partition among the plaintiff, defendants 2 to 12 does not arise. Defendant No.1 filed O.S. No. 718 of 1983 for declaration and perpetual injunction against the plaintiff and defendants 2 to 12 regarding the same property. They filed written statements admitting defendant No.1 is the absolute owner of the property. Therefore the Judgment and Decree passed in O.S. No. 718 of 1983 operates as res judicata and he enclosed the said Judgment. In the main suit D-2, D-3, D-8 to D-12 did not file any counters. In the written statement of D-4 it is contended that plaintiff and defendant No.1 colluded with each other and their father late Mohd. Khaja Saheb paid entire sale consideration on behalf of defendant No.1 exclusively by taking the undue advantage of death of their father on 19.06.1982 they created false documents to usurp their share. The claim of D-1 based on release deed is false and it is not binding on these defendants. The plaintiffs filed rejoinder. Issues were settled, issue No.2 is whether the suit is barred by res judicata in O.S. No. 187 of 1983. In view of judgment and decree in OS No. 187 of 1983 the suit is coming up for trial. The trial Court observed that on perusal of the certified copy of Judgment in O.S. No. 718 of 1983, dated 27.12.1983 he filed the suit for declaration of title in which the defendants admitted the ownership and possession of defendant No.1 and also stated that they executed release deed in his favour and was inserted in the revenue records and also recorded no objection to decree the suit. They have not filed any oral or documentary evidence to show that they are in joint possession of the suit schedule property and D-1 removed furniture and fixtures and dispossessed them on the intervening night of 30/01-10-2017 from the suit schedule property and accordingly stated that they are not entitled for insertion of Paras 8A and 8B in the plaint as claimed by them.

This Court can interfere with the order of the trial Cour in case there is any patent error under revisional jurisdiction as the scope of this Court is limited. In this regard the trial Court after considering the rival contentions dismissed the application by assigning valid reasons. Therefore, this Court finds no merits in the revision. Accordingly, the CRP is dismissed.

In the result, the Civil Revision Petition is dismissed by confirming the orders in IA No. 1295 of 2017 in OS No. 480 of 2012, Dated 06.04.2018 on the file of Spl. Sessions Judge for Trial of cases under SCS & STs (POA) Act, 1989-cum-VII Addl. District & Sessions Judge, Ranga Reddy District at L.B. Nagar.

As a sequel, pending miscellaneous petitions, if any, shall stand dismissed as infructuous. No order as to costs.