CIVIL APPEAL 83 of 2019 on 29 December 2016

IN T}TE H|GH GOURT FOR THE STATE OF TELANGANAAT HYDER,ABAD

THURSDAY, THE TWENTY FIFTH DAY OF JANUARYTWO THOUSAND AND TWENry FOUR

PRESENT

THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU

CITY CUIL COURT APPEAL NO: 83 OF 2019

.

Appeal filed under Section 96 of C.p.C., aggrieved by the Judgment and decree dated 29-12-2016 passed in o.s.No. gg4 of 2014 on the file of the Gourt of the Xl Additional Chief Judge, City Civil Court, Hyderabad.

Between:

Syed Mohboob Alam, S/o. Late Syed Shah Alam, Age: 58 years, Occ: ServiceAbroad, R/o.8, North Taytor Ave, SC, Mrwalk Ct 06-954, RLp., by his GpA MirAsif Ali Khan, S/o. Mir Shahmath Ali Khan, age: 4g years, Occ: Business,Rl/o.Flat No.304, thlrd floor, Mahboob Maflsion, bearing premises No. 10_4_29,Humayun Nagar, HyderabadAbroad, R/o.8, North Taytor Ave, SC, Mrwalk Ct 06-954, RLp., by his GpA MirAsif Ali Khan, S/o. Mir Shahmath Ali Khan, age: 4g years, Occ: Business,Rl/o.Flat No.304, thlrd floor, Mahboob Maflsion, bearing premises No. 10_4_29,Humayun Nagar, Hyderabad (Mir Asif Ali Khan is permitted as G.p.A. Horder to iepresent the Appeflant asper the court order dated 2611Ot2022. Made in IA.No.2 of ZOtS in CbCnNo.83i2019) ...AppeltanUptaintiffper the court order dated 2611Ot2022. Made in IA.No.2 of ZOtS in CbCnNo.83i2019) ...AppeltanUptaintiff

AND

1Syed_Manzoor Alam, S/o. Late-S-yed_ Shah Alam, Aged about 56 years, Occ:Private Service, Rt/o. H. No. 1 6-B-SigglC, t tew Ual'atiet, Hyderabad _ 36Private Service, Rt/o. H. No. 1 6-B-SigglC, t tew Ual'atiet, Hyderabad _ 36

29!lu:,'9 Household, R/o. Py"^0." {l?},_q/q. H.No.16-8-99^3/q,^ry9U{ ^Lg!g_s.ygd [shah ]Uqtglqe! [Atam, ]Hyderabad [Ased about ]_ [54 ]aO [years, ]nep., by[occ]l."r^OSPn [holder ][(^Doc ][No-869 of.2017) Sri trlona. elrOul ][Nayeem, ][S/d L;ie]M.A.Raheem at 1-3-1029, Hillton lcon, 4th floor, Opp. Courty-ard t arriott,Lower Tank Bund, Hyderabad9!lu:,'9 Household, R/o. Py"^0." {l?},_q/q. H.No.16-8-99^3/q,^ry9U{ ^Lg!g_s.ygd [shah ]Uqtglqe! [Atam, ]Hyderabad [Ased about ]_ [54 ]aO [years, ]nep., by[occ]l."r^OSPn [holder ][(^Doc ][No-869 of.2017) Sri trlona. elrOul ][Nayeem, ][S/d L;ie]M.A.Raheem at 1-3-1029, Hillton lcon, 4th floor, Opp. Courty-ard t arriott,Lower Tank Bund, Hyderabad JM/s. Hilton Projects, having its office at 1-3-1029, Hillton lcon, 4th floor, Opp.Courtyard Marriott, Lower Tank Bund, Hydeiabad, rep by its ManagingPartner Sri Mohd. Abdul Nayeem, S/o. Late M.A.Raheem.(Respondent No.3 is impleaded as per the court order dated 26-1O-2O22 videlA.No.3 of 2019 )Courtyard Marriott, Lower Tank Bund, Hydeiabad, rep by its ManagingPartner Sri Mohd. Abdul Nayeem, S/o. Late M.A.Raheem.(Respondent No.3 is impleaded as per the court order dated 26-1O-2O22 videlA.No.3 of 2019 )

... Respondents/Defendants

Counsel forthe Appellant: Sri K.K. WAGHRAY

Counsel for the Respondent No.2: Sri M. VISHNU VARDHAN REDDY

Counsel for the Respondent No.3: Sri MIRZA NISAR AHMED BAlc The Court delivered the following: JUIIGMENT

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THE HON'BLE [SRI ][JUSTICE ][SAMBASTVARAO ][NAIDU]CITY CIYIL [COURT][ APPEAL][ No.83 OF ][2O19]JUDGMENT:

Being aggrieved by [the ][Judgment ][and ][Decree ][dated]

29.12.2016 in O.S.No.994 [of 2OIl on the hle of ][XI]Additional Chief Judge, [City Civil ][Court, ][Hyderabad,]whereunder his suit was [dismissed ][by ][the ][trial ][Court, ][the]plaintiff in the said suit has [hled ][this l"t ][civil ][appeal ][under]Section 96 of Code of [Civil ][Procedure ][(for ][short ]["CPC") and]sought for setting aside [the ][impugned ][judgment and ][also]prayed for a decree for [partition ][of the suit ][schedule]property and for cancellation [of ][the ][gift ][deed ][in ][favour ][of the]respondent/ defendant.

2. As could be seen from the [record placed ][before ][the]Court, it appears [that ][the ][appellant ][herein ][has ][frled ][the]above referred original [suit ][against ][the ][respondents ][for]partition of house bearing [No.16-8-933/C admeasuring ][444]sq.yards at New Malakpet [Hyderabad ][(hereinafter ][be]referred as suit schedule [property) ][and ][for ][cancellation ][of]grft deeds bearing [document ][Nos.31 ][ll ]l2OOl [and]3ll2/2}Ol. According [to ][the ][plaint ][filed ][by the ][appellant]

ccCA I{o.AS ol2079

before the trial Court, it [was claimed ][that ][one ][Smt. ][Kamar]Sultana was the mother [of ][parties ][to ][the ][suit ][and ][she was]the original purchaser, owner [and ][possessor ][of ][the ][suit]schedule property which [she ][purchased ][under ][registered]document No.2381 of [1961. ][The said Kamar Sultana ][died]intestate on 19.10. 1997 by [Ieaving ][her ][husband ][and ][(3)]children i.e., appellant as [well as the ][respondents']Subsequent to her death, [the husband of Sultana by ][name]Syed Shah Alam also died [leaving ][the ][children ][to ][succeed]the property.

3. The appellalt has claimed [that ][the ][suit ][schedule]property was matruka [property ][of ]his [mother ][and ][the ][same]was initially devolved upon [her ][husband ][ald ][children' But,]in view of the death of [his ][father, ][his ][share ][was ][also]devolved on his children. [Therefore, according ][to ][the]appellant as per the [Islamic ][Law, ][out ][of ][the ][35 ][shares, ][each]son will get 14/35th [share, whereas ][the ][daughter ][will ][get]7 l35tn share. Therefore, [according ][to ][the ][appellant, himself]al.ld his brother i.e., [1"t ][respondent ][are entitled ][to ][14/35m]share each and 2'd defendant [being daughter ][is ][entitled]7/35tr' share. The appellant [has ][also ][claimed ][that ][his]brother i.e., l"t [respondent gifted ][his ][share ][to ][the ][appellart]

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in 2O 1O by way of oral gift [(Hiba) ]in the [presence of]witnesses, thereby he became owner of 28/35tt' [share.]Whereas, 2.d respondent/defendant No.2 has [got ][only]7/35tt' share.

4. The appellant has also claimed before the trial [Court]that prior to his frling the suit, he came to know that [his]sister got registered two gift deeds for the suit [propert5r ][in]her favour through her father vide [document]Nos.31lll2OOl and 3112l2OOl on 25. 10.2O01 without [any]information to her brothers i.e., appellant and l"trespondent. The 2"a respondent based on the said [gift]deeds, was trying to sell the entire suit schedule [property.]Therefore he demanded the 2nd responded, to [effect]partition of the suit schedule property, but she [postponed]the same. The appellant also averred in the [plaint ]that [he]came to know from 3rd parties that the 2"d [respondent]created false and sham document as if there [was ][a ]oral [gift]from her father in respect of 181 sq.yards and [got ][the ][above]referred gift deeds on 25.10.2001. The appellant havingcontended before the trial Court that in view of his residingin USA the 2nd respondent made attempts to transfer the \

property to others, thereby, prayed for a decree for partition of the suit schedule property and for allotment of his share.

5. The respondents/defendants remained exparte before.the trial Court. One Wajid Mirza in the capacity of GpA ofappellant was exarnined as pWl on behalf of the appellantherein and he has marked Exs.Al to A5. Though there wasno contest from the respondents, the triar court havingappreciated the preadings of the appelrant, eyidence of pwrand having examined Exs.Al to AS came to the conclusionthat the appellant herein is not entailed to seek partition ofthe suit schedule property, thereby dismissed the suitunder the impugned Judgment.

Being aggrieved by the said Judgment, the appellant has filed this appear and sought for setting aside thermpugned Judgment on the following grounds:

7' The trial court ought to trial court ought to court ought to ought to to have seen that onceseen that oncethat onceonceregistered gift deeds were cha_llenged, the burden Iieshea'rily on the 2nd respondent/defendant No.2 to prove thevalidity of the registered gift deeds. But, in the present suitthe 2"d respondent/defendant No.2 remained exparte, therewas no rebuttal evidence, thereby the trial Court ought to The trial court ought to trial court ought to court ought to ought to to have seen that onceseen that oncethat onceonce (

have accepted the claim of [the appellant ][and ][ought ][to ][have]

passed a decree in his favour. But, the [trial ][Court]committed a mistake by dismissing [his ][suit.]

8. The appellant has claimed that [the ]trial [Court did ][not]give any cogent and [justifiable ]reasons for dismissing [his]suit and failed to appreciate that the [registered ][gift ][deeds]which were marked as Exs.Al and' A2 [were created ][and ][the]donor i.e., his father had no title to [execute ][such gift ][deed.]Therefore, the appellant Nos.land 2 [are non-est ][and ][illegal]documents which will not bind the appellant. [But, ][the ][trial]Court misdirected itself and did not [dealt ][with ][the ][question]and simply dismissed the suit on the [ground ][that ][the]appellant did not adduce any [evidence to ][establish ][his ][right]over the property. The trial Court [failed to ][note ][that ][there ][is]no challenge to the oral and documentar5r [evidence]produced by the appellant herein. Therefore, his suit [ought]not to have been dismissed by the [trial ][Court, ][thereby ][he]sought for setting aside the [impugned ][Judgment ][and]prayed for his Decree in his favour.

This appeal has been hled by appeal has been hled by has been hled by been hled by hled by by [[the ][unsuccessful]][[unsuccessful]]

9. This appeal has been hled by appeal has been hled by has been hled by been hled by hled by by [[the ][unsuccessful]][[unsuccessful]]plaintiff in O.S.No.994 of 2Ol4 when his suit that [was filed]

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CCCA No.A3 of 2019

against his brother ard sister for partition was dismissed by the trial Court. The defendants in the said suit are shownas respondent Nos.l and 2 in the present appea.l. However,during the course of time the 3.a party namely M/s.HiltonProjects through its managing partner, filed a petition videI.A.No.1 of 2023 under Order I Rule lO CpC with a prayerto implead the said developer as respondent No.3 in theappeal. The said petition was allowed as the counsel for theappellant herein reported no objection.

10. In view of the above stated circumstances, the following points arose for consideration:

1. Wlether the trial Court utas wrong in di.smissing thesuit, in spite of the fact that thesuit, in spite of the fact that therespondent/ defendants remained exparte?

2. WhetLrer the trial Court faited to appreciate thecontentions of th.e appeilant properlg and dismissedhis suid if so, u_thether the appellant is entitled tocontentions of th.e appeilant properlg and dismissedhis suid if so, u_thether the appellant is entitled topreliminary decree for partttion as praged for?for partttion as praged for?

1 I . As could be seen from the averments made in theplaint and as per the evidence of pWl, the appellant hasclaimed that the suit schedule property was originallyplaint and as per the evidence of pWl, the appellant hasclaimed that the suit schedule property was originally A

his [mother, ][and ][in ][view of ][her ][death' he ][and]purchased by his siblings [i.e., respondent ][Nos'1 ][and ][2 ][have ][succeeded ][the]in [view ][of ][oral ][gift ][said ][to ][have been made by]property and his brother [i.e., respondent No'1, ][he ][has got ][28/35tt' ][share]and respondent [No.2 ][his ][sister has ][got ][7135rr ][share ][in ][the]suit schedule [property. ][The ][appellant ][himself ][made]averments in [the plaint that ][his ][father ][has ][executed ][two]registered gift [deeds ][in ][respect ][of ][suit ][schedule ][property in]favour of respondent [No.2. ][The ][copies ][of said ][registered ][gift]deeds are marked [as ][Exs.Al ][to ][A2' ][As ][per ][the ][said ][gift]deeds, it is stated [that ][the ][mother of ][the ][appellant ][as well]as respondent [Nos.1 ][and ][2 ][who purchased the property ][has]'gifted the entire [propert5r ][in ][favour ][of her ][husband ][i'e' ]fatlrer of the appellant [herein and ][she died ][on ][19'10'1997']It is also stated [in ][the ][gift ][deeds ][that ][the ][father ][of ][the]has [acquired absolute ][title ][over ][the ][suit ][schedule]appellant virtue [of oral ][gift ][(Hiba) ][said ][to ][have been ][given]property by by his wife and [being ][absolute ][owner of the ][property' ][he ][has]executed two [registered ][gift ][settlement ][deeds ][in ][favour ][of]his daughter [i.e., ][respondent ][No ][2' ][As ][per ][the ][said ][gift]deeds, the father [of ][appellant ][herein gifted ][the ][entire]property to respondent [No.2, ][and ][respondent ][No'2 ][in ][tt'rrn]

handed over the Property to 3.d respondent who wasimpleaded to the appeal for development.

12. The appellant who has filed the suit by showing his brother and sister did not state aaything about thedevelopment agreement between respondent No.2 and 3. Hemay claim that he is not aware of the said agreement. Theappellant did not attend the trial Court, but examined pWlin support of his claim on the basis of GpA.

13. The respondent Nos.l and 2 who are none other thanthe brother and sister remained expa_rte. The appellant didnot place any material to believe the alleged oral gift said tohave been executed by respondent No. 1 in his favour. Asper the gift deeds executed by the father of the parties videExs.Al and A2, it shows that the father of the appellant hasclaimed absolute right by virtue of an orar gift from his wifei.e., mother of the appellant herein.

14. As per the contentions of the 3.a partSr, who wasimpleaded to the appeal, they have obtained deveropmentagreement in respect of the suit schedule propert5r, andconstructed flats in the property. As per the material placedby respondent No.3, it appears that respondent No.3 has I

constructed multi stored building. But, the appellant didnot show the 3'd respondent or subsequent purchasers ofnot show the 3'd respondent or subsequent purchasers ofthe flats as parties to the suit. Even though the appellantclaimed that he was away from the country, he has hledsuit and in support of the suit he has examined his GpAsuit and in support of the suit he has examined his GpAholder as PW I and curiously the sister who said to havedenied the partition and who made attempt to dispose ofthe propert5r, remained silent without raising any disputeabout the claim raised by the plaintiff. In view of the entirerecord, it is clear that the 2"d respondent based on Exs.Aldenied the partition and who made attempt to dispose ofthe propert5r, remained silent without raising any disputeabout the claim raised by the plaintiff. In view of the entirerecord, it is clear that the 2"d respondent based on Exs.Alto A2 has entered into development agreement with the 3.drespondent, and the 3.d respondent must have disposed theflats to 3rd parties. The appellant without adding theseimportant parties to the suit simply frled the suit forrespondent, and the 3.d respondent must have disposed theflats to 3rd parties. The appellant without adding theseimportant parties to the suit simply frled the suit forpartition. If the claim is allowed, definitely it will caseprejudice to the rights of 3d parties as well as the 3.dprejudice to the rights of 3d parties as well as the 3.drespondent-developer. The appellant was not able tosubstantiate his claim that the properties still available forpartition. There is no evidence to believe that there was nopartition. There is no evidence to believe that there was nosuch oral gift by mother of the appellant herein in favour ofher husband. The appellant who himself hled suit with aplea that his younger brother gifted his share of l4/35tr,her husband. The appellant who himself hled suit with aplea that his younger brother gifted his share of l4/35tr, II

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oCCA No,a3 of 2O19

under oral gift cannot dispute the contentions andaverments in Exs.Al and A2 through which the 2ndrespondent got the property from her father. Therefore, thetrial Court having considered all these aspects, rightlydismissed the suit and there are no merits to set aside theJudgment of the trial Court or to pass a decree effectingpartition in favour of the appellant and his siblings. Thesuit liled trial Court having considered all these aspects, rightlydismissed the suit and there are no merits to set aside theJudgment of the trial Court or to pass a decree effectingpartition in favour of the appellant and his siblings. Thesuit liled by the appellant without adding the developer andsubsequent purchasers of the property, is bad for non_joinder of necessar5z parties, on that ground also the suit isliable to be dismissed. Thereby, the appeal deserves to bedismissed.subsequent purchasers of the property, is bad for non_joinder of necessar5z parties, on that ground also the suit isliable to be dismissed. Thereby, the appeal deserves to bedismissed.

In the result, the appeal is dismissed. No costs.

As a sequel, pending Miscellaneous Applications,anY, shall stand closed.

if

Sd/. K. SRINIVASA RAOJOINT REGISTRAR

//TRUE COPY//

d

SECTION OFFICER

To,

Conclusion

1. The Xl Additionat Chief Judge, City Civit Court, Hyderabad

2. One CC to Sri K.K. WAGHRAY, Advocate {OpUCl{OpUCl

3. One CC to Sri M. VTSHNU VARDHAN REDDY, Advocate [OpUCl

4. One CC to Sri MTRZA NTSAR AHMED BA|G, Advocate [OpUC]

5. Two CD Copies

HIGH COURTDATED:2510112024

JUDGMENT

CCCA.No.83 of 2019

I[1rE ][S ][TA ][16]((21 [illfifl ][2[$]t-.)i"n- [( ][')]

DISMISSING THE CITY CIVIL GOURT APPEALWITHOUT COSTS

:.[REDACTED]

-tE,,,I

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD

THURSDAY, THE TWENTY FIFTH DAY OF JANUARY

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE SAMBASIVARAO [NAIDU]

CITY ClVlL COURT APPEAL NO: [83 ]OF [2019]

Between:

Syed Mohboob Alam, S/o. [Late ][Syred ][Shah Alam, ][Age:58 ][years' ][Occ: ][Service]Abroad, Rl/o.8, North Taylor Ave, [SC, Norwalk ][Ct ][06854, ][Rep., by ][his ][GPA Mir]Asif Ali Khan, S/o. Mir Shahmath Ali Khan, [age: ][48 ][years, Occ: ][Business,]Rl/o.Flat No.304, third floor, Mahboob [Mansion, bearing ][premises No. ][10-4-29']Humayun Nagar, Hyderabad (Mir Asif Ali Khan is permitted as G.P.A. Holder to [represent the ][Appellant ][as]per the court order dated mlfil2022. Made in lA.No.2 [of 2019 in CCCA]No 83/2019) per the court order dated mlfil2022. Made in lA.No.2 [of 2019 in CCCA]No 83/2019)

...AppellanuPlaifltiff

AND

'1. Sved Manzoor Alam, S/o. Late Syed Shah Alam, Aged about 56 years' Occ:Piivate Service, Rl/o. H.No.16-&993/C, [New ][Malakpet, Hyderabad ][- ][36]Piivate Service, Rl/o. H.No.16-&993/C, [New ][Malakpet, Hyderabad ][- ][36]

2. Ghousia Syeda Khan,, [D/o. ]Late [Syed Shah ][Alam, ][Aged about ][5-4- ][y-ears, ][Occ]Household, R/o. H.No.16-8-993/C, |lew [Malakpet, Hyderabad - 36 Rep., ][by]her DGPA holder [(Doc. ][No.869 of 2017) ][Sri ][Mohd. ][Abdul Nayeem, ][S/o. Late]M.A.Raheem at 1-3-1029, Hilltofl [lcon, 4th floor, ][Opp. ][Courtyard Marriott,]Lower Tank Bund, HyderabadHousehold, R/o. H.No.16-8-993/C, |lew [Malakpet, Hyderabad - 36 Rep., ][by]her DGPA holder [(Doc. ][No.869 of 2017) ][Sri ][Mohd. ][Abdul Nayeem, ][S/o. Late]M.A.Raheem at 1-3-1029, Hilltofl [lcon, 4th floor, ][Opp. ][Courtyard Marriott,]Lower Tank Bund, Hyderabad

3. Mls. Hilton Proiects, [having its office ][at ][1'3-1029, ][Hillton lcon, 4th ][floor' ][Opp.]Courtyard Maniott, Lower [Tank Bund, Hyderabad, rep by ][its ][Managing]Partner Sri Mohd. Abdul [Nayeem, S/o. ][Late ][M.A.Raheem.](Respondent No.3 is impleaded as [per ]the court order dated [26-1O-2022 ][vide]lA.No.3 of 2019 )Courtyard Maniott, Lower [Tank Bund, Hyderabad, rep by ][its ][Managing]Partner Sri Mohd. Abdul [Nayeem, S/o. ][Late ][M.A.Raheem.](Respondent No.3 is impleaded as [per ]the court order dated [26-1O-2022 ][vide]lA.No.3 of 2019 )

... ResPondirnts/Defendants

Appeal filed under Sec{ion 96 of C.P.C., aggrieved [by ][the ][Judgment ][and]decree dated 29-12'2016 [passed ][in ][O.S.No. ][994 ][ot ][2014 on ][tte ][file of the Court ][of]the Xl Additional Chief [Judge, City Civil ][Court, ][Hyderabad.]

oRDER : [This appeal coming on ][for ][hearing ][and ][upon perusing the ][grounds ][of]the [Judgment ][and ][Decree ][of the ][Lower ][Court ][and ][the ][material ][papers ][in]appeal, the case [and ][upon hearing ][the ][arguments ][of ][Sri K ][K ][WAGHRAY' for the Appellant]and of Sri [M. ][VISHNU VARDHAN REDDY, Advocate for Respondent ][No' 2' ][And ][of]Sri MIRZA NISAR [AHMED BAIG, Advocate ][for ][Respondent No' ][3]

This Court [doth Judgment ][and decree ][as ][follows:-]

1-. That the [City Civil ][Court Appeal ][be and ][hereby ][is ][dismissed; ][and]

2. That there [shall be ][no ][order ][as ][to ][costs]

Sd/- K. SRINIVASA [RAO]JOINT REGTSTRAR

//TRUE COPY//

q,

SECTION OFFICER

To,

1. The Xl Additional [Chief ][Judge, City Civil ][Court, ][Hyderabad]

2. Two CD [CoPies]

PSRs

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E1ri- ,-

A1!,t.;.

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HIGH COURTDATED:251O112024

DECREE

CCGA.No.83 of 2019

DISMISSING THE CITY CIVIL GOURT APPEALWITHOUT COSTS

@PP€o q-i