Commissioner of Income Tax-1 vs. Agricultural Market Committee

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NAGESH BHEEMAPAKA CITY CIVIL COURT APPEAL NO: 148 & 186 OF 2011 CITY CIVIL COURT APPEAL No.148: Appeal filed under Section 96 of C.P.C., aggrieved by the Judgment and Decree passed in O.S.No.206 of 1999, dated 04.02.201 'l on the file of the lX Additional Chief Judge, (FTC), City Civil Court, Hyderabad. Between: 1. SANJAY KUMAR BHATI, S/o Ram Vallabh Bhati Business R/o 3-5-141/E/6, King Kothi, Eden Garden Road, 2. Alay Kumar Bhati, S/o Ram Vallabh Bhati Business R/o 3-5-141lE/6, King Kothi, Eden Garden Road. APPELLANTS AND 1. SARANGA KRISHNA MURTHY (Died per LR's RR14 to '17), S/o Laxminarayana, AGED ABOUT 64 yrs., Business H.No. 14-1-363, New Aghapura, Hyderabad. 2. S.Srinivas Rao, S/o Krishna Murthy, Business H.No. 14-'l-363, New Aghapura, Hyderabad. 3. Smt. Zubeda Khatoon, Wo late Khaja Moinuddin, House hold R/o H.NO. 15- 6-215, Begum Bazar, Hyderabad. through GPA Holder Khaja Moinuddin, age 57 years, R/o Flat No.1003, Mount Nasir, Saifabad, Hyderabad. 4. Mrs. Rasheeda Parveen, Wo Khaja Yousufuddin R/o Flat NO.1OO3, Mount Nasir, Saifabad, Hyderabad. 5. Mrs. Qamarunnisa Begum lsince deceased per LRs, Respondents No. 7 to 13 hereinl 6. Khaja Badaruddin, S/o late Nizamuddin, R/o H.No.15-6-215, Begum Bazar, Hyderabad. 7. l(ha1a Nizamuddin, S/o late Khaja Moinuddin, Business R/o H.No.15-6-215, Begum Bazar, Hyderabad. 8. Khaja Naseeruddin, S/o Khaia Nizamuddin, Student R/o H.No.15-6-215, Begum Bazar, Hyderabad.

Counsel forthe Respondents Nos.1,2 &14to17: Sri B. Prakash Reddy FOR S BHOOMA GOUD Counsel forthe Respondents Nos. 3 to 11: SRI PRAMOD SINGH CITY CIVIL COURT APPEAL NO: 186 OF 201 1 : Appeal filed Under Section 96 of C.P.C., against the judgment and decree dated 04.02.201 1 passed in O.S.No. 2 of 1999 on the file of the lX Additional Chief Judge (FTC), City Civil Court, Hyderabad. Between: 1. SARANGA KRISHNA MURTHY (Died per LR's RR3 to 6), S/o. LAte Laxmi Narayana Business R/o. H.No. 14-1-363, New Agapura, Hyderabad 2. S. Srinivas Rao, S/o. S Krishna Murthy R/o. H.No. 14-1-363, New Agapura, Hyderabad 3. Saranga Rama Devi, Wo. Late Saranga Krishna Murthy, Aged about 68 Years, Occ Household, R/o. 14-'l-363, New Agapura, Hyderabad. 4. Saranga Pavan Kumar, S/o. Late Saranga Krishna Murthy, Aged about 42 Years. Occ. Business, R/o. 14-1-363, NewAgapura, Hyderabad. 5. A. Manjula, Wo. A Madhusudhan, Aged about 49 Years, Occ Household, Rlo.5-2-544, Osman Gunj, Risala Abdulla, Nampaily. Hyderabad. 6. Bande Vani, Wo. Bande Srinivas, Aged about 45 Years, Occ Household, R/o. 15-7-512, New Post Office, Begum Bazar, Hyderabad. (Appellanfs No. 3 to 6 are brought on record as legal representative of Appellant No.1 as per Court Order dated 01.07 .2024, vide lA No. 1of 2024) APPELLANTS/PLAI NTIFFS AND 1. SMT ZUBEDA KHATOON, S/o. S Krishna Murthy R/o. H.No. 14-1-363, New Agapura, Hyderabad 2. Mrs. Rasheeda Parveen, W/o Khaja Yousufuddin R/o. H.No. 11-4-169/8, Red Hills, Hyderabad 3. Mrs Qamarunnisa Begum( since, deceased per LRs Respondent Nos. 5 to 11 herein) 4. Khaja Badaruddin, S/o. Late Moinuddin R/o. Flat No.402, Nest Dolphin Appartments, Bazarghat, Hyderabad. 5. Khaja Nizamuddin, S/o. Late Moinuddin Business R/o. Flat No.402, Nest Dolphin Appartments, Bazarghat, Hyderabad. 6. Khaja Naseeruddin, S/o. sri Khaja Nizamuddin Service R/o. Flat No.402, Nest Dolphin Appartments, Bazarghat, Hyderabad.

HON,BLE SRI JUSTICE NAGESH BHEEMAPAI(A Heard Sri K'K' WaghraY' learned counsel for Sri B. Prakash ReddY' learned Senior Counsel apPellants Goud, learned counsel for representing Sri S' Bhooma Sri Pramod Singh' learned ResPondents counsel for ResPondents 3 to 11 in C.C.C.A.No' 148 of 2O11 and Sri B- Prakash ReddY' learned Senior Counsel on behalf of Sri S 12, L4 to 17 and i for aPPellants' Sri K'K' Bhooma Goud' learned counse ts 12 and 13 and S WaghraY, Iearned counsel for ResPonden Pramod Singh' learned counsel for ResPonden C.C.C.A.No' 186 of 2011' 2. Since both the Appeals arise out of the judgment rn o.S.No.206ofLgggonthefileofthelXAdditionalChiefJudge, City Civil Courts at Hyderabad' they are d'isposed of by this commorl judgment' 3. APPellants rl ts 2 to ll in in C.C'C'A'No' l4B of 2oll are ts in C'C'C'A'No' 186 of Defendants 13 and 14 and APPellan 2011 are Plaintiffs in the mentioned suit' 4. The principle points of contentions/ grounds in C.C.C.A. No' 148 of 2O11- are as under: \ \ \\

L I : 2 There is nothing in the language of Section 52 of the Transfer of Property Act to annul the conveyances affected during the pendency of the suit. The purport of Section 52 is to render conveyances affected during the peqdency of the suit sub-servient to the result of the suit. 4.1. Appellants have purchased the entire house property and whereas, the subject matter of the suit is ground floor Mulgi with corresponding first floor rooms. Thus, declaring the sale deeds in favour of the Appellants as void, is untenable and against the spirit of the above provision. 4.2. Section 52 does not operate to extinguish the title of the Appellants herein. It was specilically contended by them that they are the bona fide purchasers of the suit schedule property along with the other properties for value and there was no consensus ad-idem between Respondents 1 and 2 and the other Respondents in so far as the suit contract is concerned. The Agreements filed by Respondents 1 and 2lplaintiffs have been brought into existence by undue influence, coercion, and fraud, and are hit by the provisions of Contract Act. 4.3. When Respondents 1 and 2 (Plaintiffs) suit is dismissed, transfer by Respondents 3 to 1l/Defendants 3 to 11 pendente-lite cannot set aside plaintiffs' rights under the decree. I I I I

J The transfer is, therefore, not vitiated by lis pendence. Section 52 of the Act does not wipe out the transaction altogether. 5.PrinciplegroundsofcontentioninC.C.C.A.No.186 of 2O11 are as under:- TheLowerCourtfailedtoseethatRespondentsl to 11 and 14 (Vendors) failed to comply with the condition of obtaining NOC under IT Act, which was mandatory on the date of the agreement of sale Ex. A3 and filing of suit (i.e.) on 23.O4.1999. 5.1. The Lower court erred in coming to the conclusion that appellants did not show any bona fides on their part to perform their part of the contract, even though by the date of execution of agreement dated 07.O7.L997 (Ex A3) paid a sum of Rs. 15,11,OO0/- from out of the sale consideration of Rs. 24,72,OOO1- and balance amount of Rs'9,6l,OOO/- was deposited to the cred"it of the suit on o2.o8.2OOO uide Ex. A9 much before the commencement of trial' 5.2. The Lower court failed to appreciate the intention of appellants to deposit one share as E.P. was filed by one of the co-owners only and also lost sight of deposit of balance sale consideration of Rs.9,61,OOOl- aggregating to Rs. 24,7_2,000/-by 02.08.20OO itself. rj \ \\

4 ,\: 5.3. The Lower Court failed to see that, assuming without aclmitting, and without prejudice, that contract between the part-ies had come to an end, respondents did not comply rn'ith Clause (4) of Ex. A3, till the date of judgement dated 04.o2.2o 1 i and even till today, that itself establishes that time was never essence of the contract. On the other hand, Respondents 1 to 11 and 14 sold the plaint scheduled property to Respondents 1.2 and 13 during pendency of the suit. 5.4. The Lower Court failed to see that appellants agreed to purchase the plaint scheduled property at Rs.6,OOO/-Sq. ft in 1997 '*,hereas respondents 12 and 13 at Rs.2,Il2/- in september 2005. That itself show the mala fide intention of Respondents 1 to 11 and 14. 5.5. The Lower Court failed to see that after deducting the land lost in road widening, it comes to 198.48 Sq. Ft say 200 sq. ft. and that as per the rate sold to Respondents 12 and 13 @ Rs.2,ll2/- comes to Rs.4,22,4OO and as per the rate agreed to sell to appellants at Rs.6,000/- per Sq. ft. comes to Rs. 12,OO,OO0/-, therefore, the amount paid by appellants on the date of execution of Ex A3 Rs.15,11,OOO/- is more than the amount to which Respondents 1 to 11 and 14 are entitled to. 5.6. The Lower Court had erroneously come to the conciusion that appellants were not willing to perform their part ,/.,

5 of contract and failed to pay the balance sale consideration as per the time stipulated in Exs. A3 and A8 by losing sight of the explanation (i) mentioned under clause 'C' of Section'16 of the Specific Relief Act 1963 which reads as follows. "section 16(c) explanation (i) Where a contract involves the payment of money; it is not essential for the plaintiff to actualll' tender to the defendant or to deposit in court any money except when so directed by the Court;" 5.7. Lo'*,er Court failed to see that Ex. A3 is dated 07.o7.lgg7 and Ex.A8 is dated 26.L2.1gg7 and in the event the time is essence of the agreement, as alleged by Respondents 1 to i 1 and 14, nothing prevented them from complying with Clause 4 of the agreement Ex. A3, non-compliance itself demonstrates that Respondents 1 to 11 and 14 have waived the clause of essence of time, if any, by their own action and conduct. 5.8. The Lower Court erred in granting the relief of Rs. 90,00o/-towards damages in favour of Respondents I to 11 and 14 in view of the claim made by Respondent No. 5, who had come on record aS one of the legal representatives of Respondent No. 3 as the same is barred by limitation. 5.9. The Lower Court erroneously held that Respondents 1 to 11 and L4 are entitled to Rs.2,26,650/- and Rs.9O,OoO/- in the absence of any counter claim and payment of Court fee by them. \ \ \\ \

6 5.10. 'l'he Lo*,er court failed to see that DWr admitted in his eviclence that the.rz have not obtained lncome Tax clearance in 1997. 6' The suit was filed for specifig performance of agreeme nts datcd 24.o4.1992 and 2z.oz.tggr and conseqlrential relief of injunction with a direction to call upon Defendants to execute registered Sale Deed in favour of Plaintiffs in respect of suit Schedule property being ,'All ground floor, mulgi with lands and corresponding first floor rooms land area admeasuring 4s.7 sq. yards or 4L2 sq. ft. forming part of Municipal No. rs-6-22o situated at Begum Bazar, Hyderabad, with definite boundaries. It is the case of plaintiffs that ptaintiff No. 1 is a tena.t of mulgi in the premises bearing Municipar No- 15-6-22o situated in Begum Bazar, Hyderabad admeasuring 45.7 sq yards (equivalent to 412 sq ft). He claims that the above Property was proposed to be sord by Defendants arong with first floor premises. Earlier, Defendant No.l liled oS No. 622 of 19g6 on the lile of tv Additional Judge, city civil court, Hyderabad for eviction of plaintiff No. 1. The said suit was dismissed. Thereagainst, AS No. 126 of 1995 was filed and it was allowed and eviction of plaintiff No.1 was ordered on 2l.rr.1996. challenging the said judgment and decree, plaintiff No.1 filed LPA No.171 of 1996 which endecl in dismissal. The decree ! I I i I

7 holder filed EP No.21 of L997 for eviction of Plaintiff No. 1. while matters stood thus, through mediation, an MOU was entered between the Plaintiffs and Defendants on 27.03.1997 for the sale of the mulgi together with corresponding first floor and the sale consideration was agreed at Rs. 6O00 /- per sq ft. and a sum of Rs. 11,000/- was paid as earnest money. 6.L. The aforesaid MOU dated 27.03.1997 was followed by the agreement dated 24.04.1997 and this agreement rvas also followed by another agreement dated 07 -O7.1997 betr,veen the parties. In this agreement dated 07.O7.1997, all the Defendants are parties and it is mentioned that all of them are having share in the Schedule Propert5r and they will be having an entitlement of t l4th share out of the totai sale consideration of Rs.24,72,000/-. Plaintiffs paid Rs.15,11,000/- out of Rs.24,72,0OO/- and balance sale consideration should be paid on or before 30.08.1997 and in the event of, non-compliance, Plaintiffs are liable to pay penalty of Rs.3O,OOO l- per month to a maximum of three months and Defendants would return the amounts received after deducting 15%o of the sale consideration. It is agreed between the parties that Defendants would obtain Income Tax Clearance Certificate after furnishing of draft sale deed. \ \ \ \

8 6.2. it is the further case of plaintiffs that Defendants suppressed the fact that some portion of Suit schedule property would be acquired by the Municipar Authorities for road widening. since Defendant No. t has no right to initiate proceedings for eviction by firing the suit and initiating Ep No. 2r of 1997 had played fraud. plaintiffs are ready and willing to perform their part of the obligation under agreement dated 07 -o7.1997 and it is the Defendants who are guilty of suppression of road rvidening in Augus t lggr . Though there were r:fforts ,f mediation, the matter could not be settled. Thereby, Plaintiffs issued notice dated og.L2.lgg7 to Defendants stressing upon suppression of fact of road widening and expressed readiness to pay balance amount subject to deduction of the extent of land r,vhich will be affected by land acquisition and plaintiffs havc also made a request in the event of Defendants not agreeing for the same, the sale consideration paid so far to be rr:turned with interest @ 1g% per annum. Defendants issued legal notice dated o3.l2.lggr but served on Plaintilf on l2.l2.lg97 wherein Defendants put plaintiffs to notice to comply with the terms and conditions of agreement dated o7.or.r997 within seven days and pay the balance sale consideration which was suitabry repried by praintiffs. Defendants 'r/ extending issued another notice dated 26.l2.Lgg7

9 the time for payment of balance sale consideration by two weeks and on failure to do so, EP No. 2 t of 1997 could be proceeded in view of the subsequent agreement of sales. Based on the aforesaid contentions, Plaintiffs sought relief of specific performance of agreement dated 07.o7.lgg7 or in the alternative, to refund part of sale consideration paid so also damages of Rs. 7,50,O0O/-. 7 . On behalf of Defendants I to 4, Written Statement was filed wherein it is contended that Plaintiff No' I is a tenant of Suit Schedule Premises and suit for eviction was filed being oS No. 672 of 1986 on the file of IV Senior civil Judge, city civil Court, Hyderabad, however, the said suit was dismissed, thereby an appeal was filed being CCCA No. 126 of 1995 and the same was allowed on 2l.ll.1996, wherein Plaintiff was ordered to be evicted and so also directed to pay mesne profits. Impugning the same, LPA No. 176 of 1996 was filed, however, the same was dismissed on 2O.O2.I997. Thereafter, Plaintiffs put pressure using their political influence on Defendants, thereby they entered into an MOU dated 27.O3.L997 and according to the terms and conditions of MOU, Plaintiffs agreed to pay Rs. 6,OOO l- per sq. ft and agreed to enter into a separate agreement accordingly. on 24.o4.L997, an agreement of sale was entered between the parties wherein Plaintiffs agreed to pay \ \ \ :-..... _..-= '- ' \

l0 the total sale consideration on or before 27.06.199T and on failure to pa)- the said consideration, the agreement stands cancellecl and Defendants vyould be entitled to proceed with Ep No- 2l of r9g7 and deal r,,'ith the property as per their requrrements 8- Plaintiffs filed EA No. 143 of Lggz on 24.06.199T which is three days before the stipulated period for payment of sale consideration. In the said Application, plaintiffs raised pleas with regard to non-executabiiity of eviction decree. As againsr the said conduct, plaintiffs once again approached Defendants and requested them for a final agreement of sale giving a go-by to the agreement of sale dated 24.04.1991 and, the same was obriged by Defendants; accordingly agreement of sale dated 07.or.r9gr was executed between the parties. The terms and conditions of agreement of sale date d or.or.rgg7 stipulates/castes a legal obligation on plaintiffs to pay the sale consideration on or before 30.0g.199g which is mentioned in condition No. 3 and it is arso agreed between the parties that time is the essence of contract. In default of paymint of sale consideration as mentioned supra, plaintiffs are riable to pay damages of Rs. 30,000/- per month for maximum period of three months- Further, if plaintiffs fail to pay the sale consideration even after three months of extension of time i.e.

11 on or before 30.11 .lgg7, the agreement of sale stands cancelled and Defendants after deducting 15% out of part of the sale consideration paid, Defendants would be at tiberty to proceed to deal with the property as per their agreements. The said agreement also mentions that Plaintiffs shall surrender the possession of schedule property in event of non-payment of balance sale consideration. It is also the specific case of Defendants that they are not obligated to obtain any certificate for execution of registered sale deeds, since Plaintiffs failed to perform their part of the obligation as per the terms and conditions of agreement of sale dated 07.07.1997, the said agreement stands cancelled with afflux of time. Plaintiffs are not ready and willing to perform their part of obligation warranting specific performance of the contract. g. In the affidavit fited by Plaintiffs in support of IA No. 75 of 2000, it is admitted that Defendants I to 4 are owners of the property and they are entitled for share of the sale consideration. The said affidavit clearly demonstrates that Plaintiffs are not ready and willing to perform their part of obligation as per the agreement of sale dated 07 -O7 -2997 as they were ready to deposit part of the sale consideration' In view of the default, Defendants issued notice dated 03.12.1997 calling upon Plaintiffs to pay sale consideration ryillF 7 days lr { I I \ \ \ \

12 for which Repl.v was issued on Lg.r2.Lggr. Ho,*,ever, to give a chance: to Plaintiffs to comply with the terms and conditions of agreement of sale, Defendants i to 4 issued another notice dated 26.12.1997, however, praintiffs did not respond to the said notice till the date of filing of suit on 23.o4.lggg which is approximately for a period of one and a half year, thereby the suit is liable to be dismissed. 10. A separate q.ritten statement was {ired by Defendant No. 5 rvherein it is contended that plaintiffs during Ep No. 21 of L997 has brought pressure on Defendants and at the inten'ention of Sri Bandaru Dhattatreya, the then MLA, had entered into an Mou dated 27.o3.rgg7. The said MoU was followed up by the agreement dated 24.o4.Lgg7 and another agreement dated or.or.l9gr. Defendants shared copies of titte deed v'ith Plaintiffs who acknowledged the same. It is further contended that Plaintiffs shall furnish an attested copy of the sale deed to Defendants within ls days from the date of agreement dated 07.o7.lgg7 and admittedly, plaintiffs did not furnish the said attested copy of sale deed, therefore, the necessity of obtaining the income tax clearance certilicate cannot and does not arise and more so, particularly in view of clause No.6 of the agreement. All other factual aspects that are narrated by Defendants 1 to 4 were contended in this written I

13 Statement. Plaintiffs were never ready to perform their part of contract which led to execution of t'r'o agreements preceding the MoU which itself is a proof that Plaintiffs are dragging the issue on one pretext or another. I 1. In the written statement filed on behalf of Defendants 12 and 13 who claim to be tlrre bonafid.e purchasers of suit schedule property, it is stated, they purchased the property under registered sale deeds being Document No. 1279 of 2005 and L280 0f 2005. Both the sale deeds are dated 05.09.2005. They contend that Plaintiffs have no capacity to perform their part of contract as such are not entitled for any relief in the suit. 12. Basing on the said pleadings, the trial Court framed the following issues: a. whether Plaintiffs are entitled for specific Performance of contract? b. Whether Plaintiffs are ready and willing to perform their part of contract of suit agreement dated 07.O7.1997? c. To what relief? 13. Additional issue was framed on 03.09.2003 after Defendant No. 5 Iiled written Statement which is as under: Whether Defendants are entitled to claim damages as prayed by Defendant No. 5? L4. Another additional issue was framed after Defendants 12 and 13 filed their written statement which is as under \ \ \ \

t4 ir. whether Defendant No. 12 and 13 are bona fid.e purcha.sers Ibr 'aluable consideration having no k.owledge of the litigation? 15. Plai.riffs examined plaintiff No.l as pw- i and got marked Exs. A-l to A-i1. on behalf of Defend.ants 1,2,4 to 11, the husband of Defendant No. 2 was examined as DW-l and Exs. B 1 to 83 r,r,ere marked during the cross-examination of Pw-1. or-r behalf of Defendants 12 and 13, Defendant No. 3 u,as examincd ars DW-2 and got marked Exs. B_4 and B_5. 16. This court in view of the law raid down by rhe Hon'blc Alrex court in R. Kqndaswqmu $ince d.ead) u. TRK saraswathgt is framing the following issue in Appeal No. C.C.C.,q.No. 186 of 2O11 as under: "whether o.S.No.206 of on the file of IX Additional chief .Judge is maintainable and if not what is the result?,,. 17. Relevant portion in R. Kqndasutamg is extracted hereunder: - " 29. A suit for specific performance of a contract for sare, normnll.v, is premised on a written agreement between the contracting parties, signif5,ing a meeting of minds of two persons or more. Terms of the agreement, which are reasonably ascertainable from the written docunrcnt, assume extreme relevance. After all, compliance with other requisites takes the shape of a concluded contract and shourd there be no vitiating factor, the parties are bound thereby 30. The first point that we need to examine is the effect of the two clauses of the Agreement and to appry the law laid down by this court i' Itadha Sundar Dutta (supra) and Bharat Sher Singh Karsia ' 202+ SCC Online sc 3377

15 (supra). The said clauses read as follows: "The Second party will have to pay the balance sale price within four months from today and obtain a sale deed either in his name or in the name of persons nominated by him at his own expense." "There are tenants in the property described below at present. The First Parties agree to vacate the tenants and hand over vacant possession to the Second ParQr at the time of obtaining the sale.". 31. On a bare reading of the aforesaid clauses, we do not hnd that the latter clause destroys the effect of the former clause altogether so much so that it has to be discarded. on the contrary, in this case, both the clauses were such that the same had to be read together and given effect upon ascertaining the intention of the parties as disclosed by the Agreement as a u'hole. The latter clause could not have been read divorced from the former, having regard to the intent of the parties that is discernible. The latter qualified the forrner in the sense that although it was obligatory for the buyer to pay the balance price within 19th May, 2OO5 and "obtain the sale deed", this was on the assumption that the property would be made free of tenants by the sellers by that time. However, the situation therefor did not arise on 19th May, 2005 since the tenant, who vacated the property last, did so sometime on 2nd February, 2006. Going by the latter clause, the buyer had time till lst June, 2OO6 to complete the deal (four months of vacating of the property by all the tenants to enable the sellers to hand over vacant possession to the buyer). In our understanding, the Trial court and the High court were right in concluding that time was not the essence though the Agreement provided that "time mentioned in this agreement shall be of the essence." 32.Wenowturnourattentiontothenextpoint,which should clinch the issue between the parties. It is, whether or not the buyer demonstrated readiness and willingness to perform her part of the contract and even if she did, is she entitled to the discretionary and equitable relief of specific performance on facts and in the circumstances. 33.Fortracingananswer,onewouldnecessarilyhaveto bear in mind sections 1o, 16 and (unamended) section 20 of the Act. Scanning of the evidence on record unmistakably points to the \ \ \ \

16 conclusion that the buyer rvas not readl' and willing to have the terms agreed bv and betu,een the parties to be performed. 34 First, the conduct of the bu_yer does not inspire confidence in 'u'iern of the fact that despite being aw'are in February,2006 of the propert-v having been vacated by all the tenants, she started raising the boge.v of failure of the sellers to share with her the 'encumbrance certi{icate'. Importantly, the Agreement did not record that the sellers rvere under any obligation to share such certificate. Thus, in the absence of such obligation, one has to presume that the bu-yer r,r'as dul-v satisfied with the sellers' title to the property and as such clicl not, consciously, insist on making such obligation a part of the Agreemerrt of sharing of the 'encumbrance certificate' prior to performance of the agreed terms. It is common knowledge that none interestecl in l>u1,ing an expensive property would agree to terms leaving himself/hersell at a potential risk of facing litigation in future. Even in the absence of an express term and if it were accepted that the obligzrtiorr is arr implied requirement of the Agreement, the buyer would have done u'ell ro close the deal if the sellers were taking advantage of the omission in the Agreement, particularly when at the iime she raised such objection the entire money received in advance had been returned b_r' the sellers to her. This is one aspect of the matter. 35. Tiie other aspect is this. From the documents on record, it is clear that there ivas no readiness and willingness on the buyer's part to pzr-y the balance sale consideration and get the sale deed executecl. 'lhe bu-r'er, despite multiple reminders, did not come fonvard for execution of the sale deed. Vide letters dated 11th March,2006,23rd March, 2006, 06th April, 2006, the buyer was given a deadline of 13 (thirteen), 7 (seven) (counted frorn the date of receipt of 'encumbrance certificale') and 5 (f,ive) days respecti',,ely; however, the buyer did not comply r.r,ith an), of these. It is to be noted that the above communications are subsequent to the reply letter dated 24th February, 20o6 b-v the bu5,s1 *,herein she admitted her knowledge of the property having been vacated by the last of the tenants. Hence, the conduct of the buyer in not doing the needful, especially even after the property became free of tenants, demonstrates her reluctance and diffidence to perform the contract. 'l t /

t7 36. Moving further, a perusal of the buyer's cross- examination reveals her admission of not having enough fund in either of her bank accounts to pay the balance sale price. This, in our opinion, is sufficient proof of her financial incapacity to perform her part of the contract. The husband of the buyer could be a wealthy man having sufhcient balance in his bank account but having perused the credit and debit entries, we have significant doubts in respect thereof which we need not dilate here in the absence of him being a party to the proceed.ings. Suffice is to observe, the transactions evident from the bank accounts of the buyer's husband do iittle to impress us that the buyer had demonstrated her financial capacity to make payment of the baiance sale price and close the deal. 3T.Imperativeandinterestingitistonote,thebu.yersought to return the demand draft to the sellers on the last day of its validity. As discussed above, along with letter dated 23rd Fetrruary 2006 of the sellers cancelling the Agreement, they returned the advance amount received from the buyer vide demand dratt dated I tth l"ebruary 2006' This draft was retained by the buyer and returned as late as loth August,2O06videletterofevendate(andnotalongwithanyofher previous letters). However, the demand draft dated 1lth February,2006 being valid only for a period of 6 (sk) months, i'e', 10th August 2006' it has intrigued us as to why the buyer would hold on to the demand draft and not return it earlier if she was genuinely interested in purchasing the property. 38. Such conduct of the buyer, seen cumulatively' does not inspire confidence in granting her the discretionary relief of specific performance. 39. The question posed for an ans'vver is' thus' decided against the buYer. 40. Having held thus, allowing the appeal is the inevitable result. However, before we part, there seems to be a discordant note struck by the decision in A. Kanthamani (supra) white distinguishing I.S. Sikandar (supra), which could create uncertainty and confusion. It is, therefore, considered worthwhile to attempt and clear the same' 41. A comprehensive reading of the two decisions reveals that in a fact scenario where the vendor unliterally cancels an agreement for sale, the vendee who is seeking specific performance of such agreement ought to seek declaratory relief to the effect that the \ \ \ \

18 cancellation is bad and not binding on the vendee. This is because an agreerrent. u,hich has been cancelled, u,ould be rendered non-existent in the ev,:s of la'uv and such a non-existent agreement could not possibly be enforced before a court of larv. Both the decisions cited above are unanirnous in their approvar of such regal principle. However, as clarified in Kanthamani (supra), it is imperative that.,an issue be framed w'ith res;>ect to maintainability of the suit on such ground, before the court ol fi.st instance, as it is only when a finding on the issue of maintainabilitl is re^dered by trial court that the same can be examined by the first or/and second appellate court. In other words, if maintai,zrbilitr r,r,ere not an issue beflore the trial court or the appellate colrrt, a suit cannot be dismissed as not maintainable. This is n.hat Kanthain-larri (supra) holds. 42. The aforesaid two viervs of this Court, expressed by coordinate trenches, demand deference. However, it is noticed that this court in lianthamani (supra) had notbeen addressed on the effect of non existen.e of- :r jurisdictional fact (the existence whereof would clothe the trial court r'ith junsdiction to try a suit and consider granting relieQ, i.e., what *'ould be its effect on the right to relief claimed by the plaintiff in a suit for specific performance of contract. 43. In Shrisht Dharvan (Smt) v. Shaw Bros.2g, an interesti,g rliscussion on jurisdictional fact' is found in the concurring opinion ol'l{on'ble R. M. sahai, J. (as His tordship then was}. It reads: "l(). r** what, then, is an error in respect otjurisdictional fact? A jurisdictior^l lact is one on existence or non-existence of which depends assumpli()rr ,r rcfusal to assume jurisdiction by a court, tribunal or an authorir-.. In BlzLck s Legal Dictionary ir is explained as a fact which must exist before a cou. c., properly assume jurisdiction of a particular case. Mistake ol fact in r.el^ti,n to jurisdiction is arn error of jurisdictional fact. No statutory authorit' .r tribunal can assume jurisdiction in respect of subject matter which the statutc does not confer on it and if by deciding .i.o..or.ly-the fact on which jurisdiction dcpends the court or tribunal exerc-ises the juiisaiction then the order is vitiatt:d. Error of jurisdictionai fact renders the ordir ultra vires and bad (wade, Administrative [-aw. In Raza Textiles [(1973) 1 scc 63aiilwas held that a courtor tribtrnal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrorrglv. ***" (emphasis supplied) 44. Borrowing wisdom from the aforesaid passage, our deduction is this. An issue of maintainability of a suit strikes at the roor . or ilre proceedin_g-s initiated by filing of the praint as per requirement.s of order vII Rule r, cpc. If a Iuit is barrld by law, ihe trial c'urt has absolutgry no ,jurisdiction to entertain and try it. tII

t9 However, even though a given case might not attract the bar envisaged by section 9, CPC, it is obligatory for a trial court seized of a suit to inquire and ascertain whether the jurisdictional fact does, in fact, exist to enable it (the tnal (1992) 1 SCC 534 court) to proceed to trial and consider granting relief to the plaintiff as claimed. No higher court, much less the Supreme Court, should feel constrained to interfere with a decree granting relief on the specious ground that the parties rvere not put specifically on notice in respect of a particular line of attack/defence on which success/failure of the suit depends, more particularly an issue touching the authority of the trial court to grant relief if the jurisdictional fact' imperative for granting relief had not been satisfied. It is fundamental, as held in Shrisht Dhawan (supra), that assumption of jurisdiction/refusal to assume jurisdiction would depend on existence of the jurisdictional fact. Irrespective of whether the parties have raised the contention, it is for the trial court to satisfy itself that adequate evidence has been led and ail facts including the jurisdictional fact stand proved for relief to be granted and the suit to succeed. This is a duty the trial court has to discharge in its pursuit for rendering substantive justice to the parties, irrespective of whether any party to the lis has raised or not. If the jurisdictional fact does not exist, at the time of settling the issues, notice of the parties must be invited to the trial court's prima facie opinion of non-existent jurisdictional fact touching its jurisdiction. However, failure to determine the jurisdictional fact, or erroneously determining it leading to conferment of jurisdiction, would amount to wrongful assumption of jurisdiction and the resultant order liable to be branded as ultra vires and bad. 45. Should the trial court not satis$r itself that the jurisdictional fact for grant of relief does exist, nothing prevents the court higher in the hierarchy from so satisfying itself. tt is true that the point of maintainability of a suit has to looked only through the prism of section 9, CPC, and the court can rule on such point either upon framing of an issue or even prior thereto if Order VII Rule 11 (d) thereof is applicable. In a fit and proper case, notwithstanding omission of the trial court to frame an issue touching jurisdictional fact, the higher court would be justified in pronouncing its verdict upon application of the test laid down in Shrisht Dhawan (supra). 46. In this case, even though no issue as to maintainabitity of the suit had been framed in course of proceedings before the Trial Court, there was an issue as to whether the Agreement is true, valid and enforceable which was answered against the sellers. Obviously, owing to dismissal of the suit, the sellers did not appeal. Nevertheless, having regard to our findings on the point as to whether the buyer was 'ready and willing', we do not see the necessity of proceeding with any further discussion jurisdictional fact here. \ \ \ \

20 47. However, we clarify that any failure or omission on the part of the trial court to frame an issue on maintainability of a suit touching jurisdictional fact by itself cannot trim the powers of the higher court to examine rvhether the jurisdictional fact did exist for gfant of relief as claimecl, provided no new facts u'ere required to be pleaded and no neh- evidence led. CONCLUSION 48. For the foregoing reasons, the appeals merit success and the same are allowed. We set aside the first appellate judgment and decree of the High Court and restore that of the Trial Court with the result thar the suit instituted by the buyer shall stand dismissed. 49. It is made clear that the buyer shall be entitled to return of th<: advance sum of Rs.25 lakh b1' the sellers. If not already returned, the sellers shall take steps in this behalf within a month from date. If the buler has made an,y deposit pursuant to any order of court, the same shall also be returned to her u'ith accrued interest, if any. 18. Whether the law laid down by the Honble Apex Court is appiicable for adjudication of the present appeals?. 19. To answer this question, crucial documents that fall for consideration are Ex.A3, A5 to A9. Last of the Agreement enterecl between the parties is Agreement dated O7.O7.I997 marked as Ex.A3. The terms and conditions of this Agreement are not in dispute. Clause No.3 of the Agreement stipulates that Plaintiffs shall pay the sale consideration on or before 3O.O8. t997 by way of demand draft. As per Clause No.4 of Ex-A3 in the event of non-payment of baiance sale consideration by Plaintiffs as per the terms of Agreement the same stands cancelled after the penalty period of three months and Defendants shall refund the sale consideration paid by Plaintiffs ,/',/l I

I 2l after deducting l5o/o from the said amount and thereafter, Defendants are entitled to deal with the suit schedule property aS per their requirements. In view of the above Clauses, it needs to be seen as to whether plaintiffs have made payments in time and if not, what are the consequences? Another aspect that falls for consideration is whether Ex.A3 was. cancelled by efflux of time or terminated by the Defendants?. 20. Clause No.3 of Ex.A3, in clear terms, demonstrates that in the event of non-payment of sale consideration on or before 30.08. 1997, Stands cancelled, however, Clause No.4 grants extension of time to plaintiffs to pay the balance sale consideration for three more months from 30.08.1997, on penalty of Rs.3O,O00/- per month. Thus, the submission of Defendants that Ex.A3 stands cancelled on 30.O8.t997 in view of the default by Plaintiffs for the reason that Plaintiffs are entitled to pay the balance sale consideration with penalty up to three months beyond 3O.O8. L997. 21. Defendants issued legal notice uide Dx.AS calling upon Plaintiffs to pay balance sale consideration within 7 days from the date of receipt of notice, failing which Defendants will be dealing with the property as per their requirements. Though there is no specific cancellation of Ex.A3 in Ex.AS, the intention of Defendants is quiet clear that Ex.A3 is cancelled in the event \ \ \\ \

22 of non-payment of balance sale consideration withio 7 days from the date of receipt of Bx.AS and Defendants will be dealing with the property as per their requirements. Respond.ing to Ex.AS, Plaintiffs issued reply uide Dx.A6 wherein Plaintiffs in categorical terms expressed their mind that after deducting the area which is the subject of land, Plaintiffs are ready and willing to purchase the property and pay sale consideration proportionately arnd if Defendants are "villing for the said proposal, they shall refund the sale consideration paid. 22 That apart, Plaintiffs uide Ex.A7 have put Defendants to notice that the terms and conditions of Ex.A3 are not binding on them. Ex.AS rvas issued on behalf.of Defendants granting extension of time of two weeks to Plaintiffs for making payment of balance sale consideration, failing which Defendants will be dealing with the property as per their requirements. 23. It is apparent from the pleadings and evidence on record that Plaintiffs have not paid sale consideration as per the terms and conditions of Ex.A3., thereby Defendants have cancelled Ex.A3, but the intention of Defendants is quite evident from the contents of Ex.A7. Plaintiffs uide E.x. A6 demanded refund of money in the event of Defendants not willing to their proposal for reduction of sale consideration in view of the propobed land acquisition of part of the propert5r. Thus, the / : I

23 intention of Plaintiffs is for refund of money and for specific performance of Ex.A3, for getting the sale deed registered aS mentioned in Ex.A3. 24. The documentary evidence coupled with oral evidence clearly demonstrates that Defendants cancelled Ex.A3 by issuing legal notice uide Ex.AS. However, Plaintiffs have not sought any relief to declare cancellation of Ex.A3 as null and void. 25. In the light of the law laid dor't'n in R.Kandasu,clmg (supra), the suit Iiled by plaintiffs has to fail as there is no challenge to cancellation of Ex.A3 by Defendants uid.e Dx.AS and in view of the assertion made by. Plaintiffs uide Ex.A7 disowning the Agreement Ex.A3. Plaintiffs having contended that the terms and conditions of Ex.A3 are not binding on them, cannot turn around and seek specific performance of Ex.A3. That apart, the trial Court dealt with Issue No.1 extensively considering pleadings, documentary and oral evidence of the parties. The trial Court had disbelieved the contention of Defendants that MOU dated 27.O3.t997 was obtained under force by observing that in the event of MoU dated 27.o3.L997 was obtained under force, there would not be any subsequent agreement dated 24.O4.L997 and so "1_"o: + {, x i!' ,iJ ,J. \ \

24 Agreement dated 07.o7.1997, thereby disbelieved the version of Defendants that MOU dated 27.O3.lggT is obtained by force. 26. It is admitted by PW1 that during the course of Ep No.21 of 1997, PWl entered into an agreement with Defendant No. 1 and a rough sketch was shown to him, which is marked as Ex. B- 1 and the topography of Suit Schedule properties was also accepted and admitted. The only contention of pwl was that since Defendant did not cleliver possession of the f-rrst floor to him in terms of agreement of sale, he did not deliver possession of Southern side last room in the ground floor. The trial court had held that thc question of delivery of possession of the first floor pursuant to terms and conditions of agreement of sale does not notarize as Plaintiffs admittedly did not pay the entire sale consideration as directed by the court. This court uide order dated 22.o8.2oo0 found fault with pw1. There is no quarrel with regard to the exhibits marked on behalf of both the parties and the terms and conditions are also not in dispute thereby this court is not venturing into reference of the said exhibits. There is a specific contention that has been raised during the trial by PWI that there were negotiations about their proposal to delete the land proposed to be acquired for road widening by reducing balance sale concentration of Rs. 2,72,00O/- and to pay only Rs. Z,OO,OOO/- but Defendants

ti 25 have refused such proposal. But the trial Court held that Plaintiffs did not produce any evidence to show that such mediations were held between the parties, and except oral testimony of PW 1, no other evidence was retained to prove the said plea, which was taken for the first time in the evidence. The trial Court also observed that if really there \ rere negotiations for deletion of the land proposed to be acquired for road widening, delinitely Plaintiffs would have given notice or would have sent a letter to Defendants, putting forth such proposals. Absolutely, there is no evidence to support the contentions of Plaintiffs on the said aspect. 27. PW- 1 in his cross-examination tried to justify their stand for not paying balance consideration as per Ex- A3 stating that Defendants did not obtain Income tax clearance certificate. Apart from this, other grounds r rere also taken for non-payment of money. During the course of cross examination, it was accepted by PWl that as per Clause 11 of Ex A3, furnishing of attested sale deed should be made by Plaintiffs to Defendants and admittedly, no such attested draft sale deed was forwarded to Defendants enabling them obtain necessary certihcates from the income tax department, thereby there is no default on the part of Defendants and rather there is no requirement in obtaining IT Clearance certificate. The Trial Court had given .-.--..,---.-...-l .1 \ l\i \ i'; it

26 clear finding that even before execution of Ex. A3 Agreement dated 07.O7.1997, Plaintiff No. 2 received required documents relating to titlc and ownership of f)efendants over suit property, thereby, disbelieved the contention that Defendants had not furnished required documents so as to enable Plaintiffs to pay the sale consideration. DWl admitted that Defendants paid Rs. 15,11,000/- towards part of the sale consideration and deposited Rs.9 lacs towards balance sale consideration as per the direction of this Court. From the cross examination of DW1, no signi{icant points were elicited to show that Plaintiffs are ready and willing to pay the balance sale consideration for getting the sale deed in their favour. The conduat of Plaintiffs and the evidence led during the course of trial clearly evidences that Plaintiffs without any reasonablc ground or cxplanation, have nol- paid balance of consideration within the agreed period uide Exs. A'3 and A8, as such, the conduct of Plaintiffs does not demonstrate the ready and willingness to pay the sale consideration as agreed under Exs. A3 and A8 holding that the trial Court had decided Issue No. 1 against Plaintiffs and in view of Issue No. 1 that was settled against Plaintiffs, Issue No.2 being a consequential issue was answered in favour of Defendants and against Plaintiffs. Likewise, the trial Court has decided additional issue dated 03.09.2003 in favour of !

27 Defendants and against Plaintiff. The consequential issue was answered supporting Defendants and against plaintiffs. While deciding the additional issue dated 03.09.2003, the trial Court had held that as per Clause (4) of Ex. A3, Defendants are entitled to recover Rs. 30,000/- per month towards Penalty for three months from 30.08. L997. Since Plaintiffs have committed default in paying balance sale consideration and continued the said default till 30.11 .1997, Defendants are entitled for damages at Rs.30,000/- per month from 30.08.1997 to 3O.i1.1997. However, since there is no agrcement of penalty beyond the period dated 30.11 .1997, no decree can be passed in favour of Defendants, and accordingly, rejected the claim of Defendants for payment of penalty till the date of decree. Holding the above, the trial Court had decided the additional issue in favour of Defendants and against Plaintiffs. 28. Another additional issue framed on 03.03.2006, the trial court had held in favour of Plaintiff and declared the registered sale deeds Exs.B4 and 85 as void, and while deciding the said issue had discussed the evidence in detail and so also the conduct of the parties. It is held by the trial Court that said two sale deeds are hit by the doctrine of lis pendence and Section 52 pf Transfer of Property Act. Though the aforesaid sale deeds are hit by the said doctrine, the sale transactions cannot : I I I \ i I \ 'l:::

28 be declared as null and void for the reason that there is no legal bar for the parties to purchase properties which are the subject matter of a lis and when the matters are sub judice. It is settled law that propert5r which is the subject matter of a pending litigation, purchaser is bound by the result of the said legal proceedings. In the instant case, Defendants 12 and 13 have purchased the properties uide Exs.84 and 85 pending Iitigzrtion/suit proceedings and are bound by the decree of the suit. Since the claim of Plaintiffs for specific performance is rejected, the claim of Defendants 12 and 13 is allowed and accordingly, C.C.C.A.No. 148 of 2OIl is allorved and the judgment and decree of the trial Court in O.S.No.2O6 of 1999 on the file of the IX Additional Chief Judge, City Civil Court at Hyderabad decreeing that 'the sale deed dated 05.09.05 bearing document No. 1280 of 2OO5 in favour of Defendant No.12 and l3 is declared void', is set aside. 29. The trail Court while passing the impugned judgment had taken notice of the fact that Plaintiffs though prayed for tu,o alternative reliefs namely relief of refund of Rs. 15, 1 1,000/-(Rupees Fifteen Lakh Eleven Thousand Only) along with damages of Rs.7,50,0OO l- (Rupees Seven Lakh Fifty Thousand Only) and consequential relief of iermanent injunction restraining Defendant No.1 from executing the i

29 Decree in E.P. No. 2l of 1997 (Old) and E.P. No. 9 of 2OO4 (New), framed no issues. Thereafter, two additional issues were framed which are as under: 1) Whether the Plaintiffs are entitled for alternative relief of refund of Rs. 1 5, I 1 ,0OO / - (Rupees Fifteen Lakh Eleven Thousand Only) along with damages of Rs.7,5O,000/-(Rupees Seven Lakh Fifty Thousand Only) and 2) Whether the Plaintiffs are entitled for consequential relief permanent injunction restraining Defendant No. I from executing EP No, 21 of 1997 (Old) and EP No 9 of 2OO4 (Nerv) on the file of this court?. 30. The trail Court '*,hile deciding the additional issue No.l supra, in-view of the admission made by DW-l that Defendants received Rs. 15, I l,OOO/ - (Rupees Fifteen [,akh Eleven Thousand Only) towards part of sale consideration under the subject agreement of sale are entitled to deduct 15% out of the same and shall refund the balance amount to plaintiffs, in view of Clause No. 4 of Ex.A3 and had accordingly, ansrvered the said Additional Issue, in favour of Plaintiffs. The said conclusion of the trail Court is correct and this Court is not inclined to disturb the same. As a consequence of deciding the main Issue No.1 against Plaintiffs, are not entitled for consequential perrnanent injunction and trial Court had rightly decided the said additional Issue dated O4.O2.2OL| against Plaintiffs. 31. The trail Court while deciding Issue No.3 had committed an error in declaring the Sale Deeds being Exs. 84 I I ) ) \ + L

i0 and 85 as void, though is ccrrect in dismissing the claim of specific performance and granting the reliefs to Plaintiffs for refund of amount of Rs.12,84,350/- (Rupees Twelve Lakh Eight_r,-t-6ur Thousand Three Hundred and Fifty Only). Once it is helcl that Plaintiffs are not entitled for specif-rc performance, it should not have held that Exs.B4 and 85 are void. When the claim of Plaintiffs for specific performance is rejected and refund of the amounts is ordered, as a consequence, the rights of Defendants 12 and 13 stand legally-r,alidated more so for the reason that there is no claim of whatsoever in nature on the said salc deeds by Defendants I to 4 or any person/s claiming through thern. Thereby, the judgment and decree to the extent of cieciaring Exs.B4 and Ex.B5 are void is set aside.' 32. In vier,v of the above discussion, C.C.C.A.No.148 of 2OlI is allou,ed and C.C.C.A.No. 186 of 2oll is dismissed. No costs. 33. Consequently, the any shall stand closed. miscellaneous Applications, if ,2 !'; SD/.K.SRINIVASA RAO JOINT REGISTRAR o I //TRUE GOPY/ SECTION OFFICER To, 1. The tX Additionar chief Judge (FTC), city civir court, Hyderabad. 2. One CC to SRt S BHOOMA GOUD Advocate IOPUCI 3. One CC to SRt. K K WAGHRAy Advocate [OpUC] 4. one cc to sRr. vrNAy SHEKAR GUNNALA Advocate lopucl 5. One CC to SRt. PRAMOD STNGH Advocate tOpUCI _-,6-, fwq C_p_.C-qpieg 4$-

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HIGH COURT DATED i2810812025 JUDGMENT CCCA.No.148 & 186 OF 24fi ALLOWING THE APPEAL 148 OF aOLL & DISMTSSING THE APPEAL 186 OF 2OII 1 :r; s HE 1 t) 1 2 * 0ttl tfl?s

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NAGESH BHEEMAPAKA CITY CIVIL COURT APPEAL NO: 148 & 186 OF 2011 CITY CIVIL COURT APPEAL No.l48: Between: 1. SANJAY KUMAR BHATI, S/o Ram Vallabh Bhati Business Rlo 3-5-'l41lEl6, King Kothi, Eden Garden Road, 2 Aiay Kumar Bhati, S/o Ram Vallabh Bhati Business R/o 3-5-14 li E/6, King Kothi, Eden Garden Road, APPELLANTS/DEFENOANTS Nos.12 & 13 AND l SARANGA KRISHNA MURTHY (Died per LR's RR14 to'17), S/o Laxminarayana, AGED ABOUT 64 yrs., Business H.No. 14-1-363, New Aghapura, Hyderabad. 2. S.Srinivas Rao, S/o Krishna Murthy, Business H.No. 14-1-363, New Aghapura, Hyderabad. 3. Smt. Zubeda Khatoon, Wo late Khaja Moinuddin, House hold R/o H.NO. 15- 6-215, Begum Bazar, Hyderabad. through GPA Holder Khaja Moinuddin, age 57 years, R/o Flat No.1003, Mount Nasir, Saifabad, Hyderabad. 4. Mrs. Rasheeda Parveen, Wo Khaja Yousufuddin, R/o Flat NO.1003, Mount Nasir, Saifabad, Hyderabad. 5. Mrs. Qamarunnisa Begum lsince deceased per LRs, Respondents No. 7 to 13 hereinl 6. Khaja Badaruddin, S/o late Nizamuddin R/o H.No.15-6-215, Begum Bazar, Hyderabad. 7. Khda Nizamuddin, S/o late Khaja Moinuddin, Business PJo H.No.15-6-215, Begum Bazar, Hyderabad. 8. Khaja Naseeruddin, S/o Khaja Nizamuddin, Student R/o H.No.'15-6-215, Begum Bazar, Hyderabad. 9. Rubina, D/o Khaia Nizamuddin, Student R/o H.No.15-6-215, Begum Bazar, Hyderabad. 10. Khaja Nadeemuddin, S/o Khaja Nizamuddin, Student R/o H.No.15-6-215, Begum Bazar, Hyderabad.

(Appellant's No. 3 to 6 are brought on record as legal representative of Appeuant No.1 as per Court orderdateo or.o7.ioz?lrioEln 1116. i.iil)+l AND APPELLANTS/PLAINTIFFS 1. sMT ZUBEDA KHATOON, s/o. s Krishna Murthy R/o. H.No. 14-1-363, New Agapura, Hyderabad 2. Mrs. Rasheeda parveen, wo Khaja yousufuddin R/o. H.No. 11_4_16gtB, Red 3. Mrs Qamarunnisa Begum (since, deceased per LRs Respondent Nos. 5 to 11 herein) 4. Khaja Badaruddin, s/o. Late Moinuddin R/o. Ftat No.402, Nest Dolphin Appartments, Bazarghat, Hyderabid. 5. Khaja Nizamuddin, s/o. [ate Moinuddin Business R/o. Flat No.402, Nest Dolphin Appartments, Bazarghat, HyOera-OaO. --- ' " " 6' Khaja.Naseeru!-dln, S/o. sri Khaja.Nizamuddin Service R/o. Flat No.402, Nest Dolphin Appartments, Bazarghai, ftyOeraO;4. --'''* 7. Rubina, D/o. sri Khaja Nizamuddin student R/o. Flat No.402, Nest Dolphin Appartments, Bazar!hat, Hyderabad. 8. Khaja Nadeemuddin, S/o. s1 Khajq Nizamuddin Business R/o. Flat No.402, Nest Dotphin Appartments, Bazar!hat, HVOLTiOaO. -" " 9. !^ftaja Naveedudidn, s/o. sri Khaja Nizamuddin R/o. Flat No.402, Nest DolphinAppartments, Bazarghai, HVOiiaOJO. -- ' '" 11.Zeba; D/o. sri Khaja Nizamuddin student R/o. Flat No.402, Nest Dolphin Appartments, Bazbrg hat, Hyderabid. 11.Adnan, s/o. Sri Khala.Nirrrqg.oin aged 12yrs.,occ: student, Beinq Minor rep., by Father i e., Sri [r,gj..rrtizamriooin nio. Frit rrrb.+oi, iGri6;ydhi;'"' Appartments, Bazarghat, HyOeraOiO. 12 Shri.sanj.qy Kginir Bhati, s/o. Ram Vailab Bhati Business R/o. H.No. 3-5- 141lElO, King Koti, Eden Garden noaO, ftyd;;b;J-"'" 13. shri.Ajay.Kumar Bhgt!, s/o. Ram vailab Bhati Business R/o. H.No. 3-5- 141tEt6, King Koti, Eden Garden noiO, tiyOeriOiO'--- 14-Khaja.Yousufuddin, s/o. Late Khaja Moinuddin R/o. H.No. 11-4_16gt}, Red Hills, Hyderabada RESPONDENTS/DEFENDANTS Appeal filed under Section g6 of c.p.c., against the judgment and decree dated 04.02.2011 passed in O.S.No. 2 of 1999 on the file of the lX Additionat Chief Judge (FTC), City Civit Court, Hyderabad

ORDER: These appeals coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Petition and upon hearing the arguments of Sri K.K. Waghray, Advocate for the Appellants and Sri. B. Prakash Reddy, Sr. Counsel representing Sri S. Bhooma Goud, for Respondents No.12. 14 to t7 and Sri Pramod Singh, Advocate for Respondent Nos. 3 to 11 in CCC.A.No.148 of 2011 and, Sri B.Prakash Reddy, Sr. Counsel representing Sri S. Bhooma Goud, Advocater for appellants and Sri K.K. Waghray' for Respondents 12 &.13 and Sri Pramod Singh fbr Respondents 2 Lo I I in CCC.A. No.186 of 201t. That this Court doth Order and Decree as fbllows 1 . That the CCC.A.No. t 48 of 201 1 is be and hereby allowed and CCC.A.No.186 of 2011 is be hereby dismissed. 2. That, the Judgement and decree to the extent of declaring Exs.B4 and 85 are void is set set aside. 3. That there shallbe no order as to costs. SD/.K.SRINIVASA RAO JOINT //TRUE COPY// SECTION OFFICER To 1. The IX Additional Chief Judge (FTC), Citv Civil Court, Hyderabad. 2. Two CD Copies ASR/PSL

HIGH COURT DATED:2810812025 DECREE CCCA.No.148 & 186 OF 2011 ALLOWING THE APPEAL 148 OF 2011 & DTSMISSING THE APPEAL 186 OF 2O1I t&Ya'