IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.739 of 1998 BETWEEN Smt. Ganga Bai. …APPELLANT AND Osman-bin-Saleh …RESPONDENTS Counsel for the Appellants: MR. S. BALCHAND Counsel for the Respondents: MR. NAZIR AHMED KHAN MR. V.V. ANIL KUMAR The Court made the following: - JUDGMENT: This appeal is by the plaintiff in O.S.No.222 of 1973 on the file of the VII Assistant Judge, City Civil Court, Hyderabad. The said suit, for possession with respect to the suit schedule property therein, filed by the appellant was decreed under judgment and decree of the said Court dated 13.12.1993 and on appeal there against at the instance of the first defendant and legal representatives of the fourth defendant before the lower appellate Court, has been reversed under the impugned judgment and decree in A.S.No.34 of 1994 dated 18.06.1998. 2. The facts of the case show a very chequered litigation reaching this Court in the present second appeal for the second time. (a) The genesis of the litigation starts with the death of the father of the first defendant viz. Ali Bin Saleh on 01.02.1952. The first defendant thereafter, on 05.02.1952, executed a registered usufructory mortgage in faovur of one D. Anjaiah covering an extent of 238 sq. yards in H.No.17-2- 521 to 524 (evidenced by Exs.A3, A4, A5, A6) and Ex.A10 is the plan accompanying the registered mortgage in which the portion marked ABCD, which is the subject matter of the mortgage, is separately marked as Ex.A9. The said mortgagee – D. Anjaiah was indebted to one Balram Singh, who filed O.S.No.174 of 1958 before the I Additional Judge, City Civil Court, Hyderabad for recovery of amount and obtained a decree against Anjaiah. The said decree holder filed E.P.No.63 of 1964 to sell the mortagagee’s right of redemption. The said right was purchased by one D. Nagender, who is the son of D. Anjaiah, in execution proceedings in a public auction dated 15.02.1965 and was granted sale certificate – Ex.A7 dated 24.11.1967. (b) Meanwhile, on 22.07.1968, one Smt. Ayesha Begum, the widow of Ali Bin Saleh and mother of the first defendant, filed a suit for partition being O.S.No.188 of 1968 with respect to the house bearing No.14- 2-210 to 212 admeasuring 250 sq. yards at Shah Inayat Gunj, Hyderabad. On 23.07.1968, the said D. Nagender and other heirs of D. Anjaiah, mortgagee, sold the suit schedule property in favour of the plaintiff/appellant under Exs.A1 and A2. After coming to know of the said suit for partition wherein the plaintiff therein i.e. Smt. Ayesha Begum was claiming the suit schedule property herein and the suit schedule property in the said suit as one and the same, the appellant/plaintiff filed an application for impleadment on 03.11.1969 – Ex.B4 but the same was dismissed on 24.11.1969. Thereafter, on 15.05.1970, the appellant/plaintiff claimed that she was dispossessed forcibly and filed the present suit for possession. Meanwhile, the partition suit filed by Smt. Ayesha Begum was continued by her legal representatives after the death of Smt. Ayesha Begum on 02.04.1969 and by judgment and decree dated 22.02.1975 the said suit was dismissed and the appeal A.S.No.168 of 1976 filed by the legal representatives was also dismissed on 06.11.1978. The legal representatives thereafter filed S.A.No.469 of 1979 and the same was partly allowed to the extent of 1/8th share of Smt. Ayesha Begum and the rest of the claim was dismissed. 3. On the brief facts, as aforesaid, the primary question which fell for consideration in the present suit was with regard to the validity of the sale of the suit schedule property in favour of the appellant under Exs.A1 and A2, as the defendants allege the same to be hit by lis pendens in view of the fact that the said sale was on the next day after Smt. Ayesha Begum had filed the suit for partition. The other question, which also arose, is the validity of usufructory mortgage executed by the first defendant herein in favour of D. Anjaiah, as Smt. Ayesha Begum and other heirs of Ali Bin Saleh claimed that the first defendant was not the sole owner to execute the said mortgage. The third question is with regard to the validity of the sale certificate – Ex.A7 granted to D. Nagender son of D. Anjaiah. Apart from these questions, the effect and binding nature of the decision in the partition suit filed by Smt. Ayesha Begum in O.S.No.188 of 1968, as modified by this Court in S.A.No.469 of 1979 – Ex.B15 vis-à-vis the appellant herein also falls for consideration. 4. In this second appeal, Mr. S. Balchand, learned counsel for the appellant, has taken the Court through the dates and events, which are briefly described above and the oral and documentary evidence on record and contends that the first defendant executed a registered mortgage only with respect to part of the property bearing No.17-2-521 to 524 and his father, Ali Bin Saleh, had substantial properties and it is not as if that the first defendant had no legal authority or competence to execute the said mortgage. He also pointed out that all the proceedings relating to mortgage as well as the sale of right of redemption under Ex.A7 sale certificate in favour of D. Nagender were questioned by Smt. Ayesha Begum and the legal representatives of Ali Bin Saleh but all such claims and objections were rejected. He further submits that the partition suit filed by Smt. Ayesha Begum shows different house numbers than the suit schedule herein and the identity of the suit schedule property is clearly established by Ex.A9, the portion marked ABCD in the registered plan – Ex.A10 accompanying the mortgage deed. He further submits that neither the plaintiff/appellant was a party to the said partition suit nor her application for impleadment was allowed and as such, the findings in the said suit including the judgment of this Court in S.A.No.469 of 1979 (Ex.B15) does not bind the appellant/plaintiff. 5. The learned counsel points out the procedural impropriety on the part of the lower appellate Court as set out in para 21 of the grounds of appeal together with ground No.2 raised in support of this appeal and contends that the lower appellate Court has never heard the appeal on merits, which is substantiated by the proceedings of the lower appellate Court dated 20.11.1997 where it has recorded that the appeal is taken as heard, though not actually heard and thereafter, the judgment was reserved. He submits that the subsequent dates mentioned in the proceedings relate to suo motu reopening of the appeal but no notice thereof was given to the parties and as such, the appeal in reality was never heard by the lower appellate court and the judgment was delivered after long delay with a note appended to the judgment explaining the reasons for the delay. He further submits that under Order 41 Rules 12 to 21 of the Code of Civil Procedure, 1908, as the first appellate Court being a final Court of fact, the impugned judgment is vitiated as it is rendered without hearing the parties. 6. Mr. V.V. Anil Kumar and Mr. Nazir Ahmed Khan, learned counsel for the contesting respondents 2 to 4 and 5 to 8 respectively, on the contrary, contend that the first defendant had no title to execute the mortgage to the exclusion of all other legal heirs of Ali Bin Saleh. They also contend that the plaintiff/appellant is a purchaser pendentelite and in any case, had no equities and there is no evidence in support of her claim for dispossession, as alleged. It is contended that the extent of the property as mentioned by the plaintiff in her document has serious discrepancy and contend that the judgment in the partition suit and ultimately rendered by this Court under Ex.B15 is res judicata. It is also contended that mere suit for possession without seeking declaration is not maintainable and the plaintiff failed to prove her entitlement primarily on the ground that she herself has not entered the witness box whereas the plaintiff’s husband alone has been examined on her behalf. They support the judgment of the lower appellate court by claiming that the lower appellate Court has rightly relied upon Ex.B15 judgment of this Court. 7. In reply, the learned counsel for the appellant contends that a suit for possession is clearly maintainable under Section 5 of the Specific Relief Act and that the plaintiff’s husband was competent to depose on her behalf under Section 120 of the Evidence Act. 8. I have considered the submissions aforesaid in view of grounds 1, 2 and 4, which have been formulated as substantial questions of law while admitting this appeal. The said grounds are as follows: 1. The judgment and decree of the First Appellate Court is not based on facts on record. 2. The First Appellate Court had, in fact, heard the matter long back but did not deliver the judgment. On 3.11.97, the appellants in the First Appeal were directed to submit Written Arguments by 5.11.97. Ultimately the matter was reserved for judgment on 20.11.97 and judgment is now delivered on 18.6.98. At the end of the judgment, curiously, the first appellate Court observed that the arguments were concluded on 6.4.98 etc. It is submitted that no notice of reopening of the Appeal was ever served nor matter was heard again. The First Appellate Court has totally forgotten the scope of the dispute and the arguments advanced and belatedly delivered the judgment, resulting in mis-carriage of justice. 4. The First Appellate Court has erred in thinking that suit for possession is not maintainable without declaration of title. 9. Both the learned counsel have relied upon decisions of the Supreme Court as well as this Court in support of their respective contentions but, however, it would not be necessary to refer to them and burden this judgment, as this appeal can be decided on two principal questions, which escaped the attention of the lower appellate Court. 10. The first aspect deals with the procedural impropriety amounting to failure of the lower appellate Court, as a final Court of fact, to adhere to the procedural requirement under Order 41 Rules 12 to 21 CPC. I have verified the proceeding sheet of the lower appellate Court particularly, from 13.10.1997 onwards, which shows that from 13.10.1997 to 17.11.1997, seven adjournments were granted to the appellant (respondent herein), who reported not ready with the appeal. From 20.11.1997 to 18.06.1998 the proceeding sheet records as follows: 20-11-1997: Both sides are not at all evincing any interest in advancing arguments. The prayer for adjournment is turned down. There is enough material to proceed on with the matter on merits. Hence this Court takes it as heard. Judgment reserved. At this stage the counsel for the Respondent comes and argues the matter. 10-3-1998: Suo moto reopened and posted to 18/3 for hearing (for clarification). 18-3-98: (Re-opened) BNR adjourned to 2/3. 26-3-98: BNR adjourned to 6/4 as a last chance. 6-4-98: Heard. Judgment reserved. 18-6-98: Notice affixed on Court Notice Board. Judgment pronounced. (V.S.O) in the open court. 11. It is evident that on 20.11.1997 when the judgment was reserved both sides were not heard and it was taken to have heard and after that the respondent’s (appellant herein) counsel therein appears to have made submissions. It is ununderstandable as to why the lower appellate Court has taken the appeal as heard, even though the appellant was not evincing interest. It was open to the lower appellate Court to dismiss the appeal in default rather than taking it as heard. Thereafter the proceedings do not show that any notice of suo motu reopening or further hearing was issued to both sides and again on 06.04.1998 proceedings show that ‘Heard. Judgment reserved’. In the absence of notice of reopening, which is specifically alleged by the appellant, it is difficult to expect that both sides have advanced arguments before the lower appellate Court. Even otherwise, the note appended to the judgment of the lower appellate Court, which is extracted hereunder, explains the delay in pronouncing the judgment. Explanation for delay in pronouncing the judgment: Though arguments were concluded on 6-4-1998, the Judgment could not be pronounced within one month as this Court has been engaged in disposal of other old and urgent matters. However, the points urged by the rival Advocates have been noted and as such, all of them have been covered in the discussion. In other words, all the facts and points urged by the rival parties have been remembered well and as such, no prejudice has been caused to the parties by the marginal delay. 12. The aforesaid proceedings, therefore, leave no option but to conclude that the parties were not heard by the lower appellate Court on the appeal and as such, the appeal came to be decided on merits without the benefit of hearing the parties. It is, no doubt, true that the record of the Court being sacrosanct, mere contentions of the appellant would not be sufficient to displace the authenticity attached thereto and thus, even going by the proceedings recorded by the lower appellate Court, as noted above, the appeal was taken as heard on 20.11.1997 and reserved and thereafter, when it was suo motu reopened there appears to be no notice to either of the parties on reopening of the appeal to enable them to address the arguments. 13. I am, therefore, not satisfied with the manner in which the lower appellate Court has disposed of substantial appeal by reversing the decree granted in favour of the appellant for possession. 14. The second aspect, on merits, which is required to be taken into consideration, is with regard to one of findings of the lower appellate Court based upon Ex.B15 judgment rendered by this Court in S.A.No.469 of 1979 and as to whether a mere suit for possession is maintainable. The impugned judgment shows that the lower appellate Court has extensively relied upon and has based its judgment on the said judgment – Ex.B15, without taking into consideration that the appellant herein was not a party to the said suit or appeal. There is no discussion on that aspect about the binding nature of the said judgment on the appellant. Further, the lower appellate Court has concluded that mere suit for possession is not maintainable without seeking declaration, which is prima facie opposed to Section 5 of the Specific Relief Act. The decree granted in favour of the appellant herein was thus reversed by the lower appellate Court on the above findings without dealing with the sustainability of the said grounds. 15. In my view, therefore, the impugned judgment of the lower appellate Court, thus, suffers from substantial error of law as well as the procedure and is against procedural fairness as a final Court of fact and as such, the impugned judgment is not only procedurally defective but is also unsustainable as the substantial questions 2 and 4 deserves to be answered in favour of the appellant. However, since the entitlement of both parties to fair adjudication by a final Court of fact has suffered in the present case, I deem it appropriate to set aside the impugned judgment and remit the appeal A.S.No.34 of 1994 to the lower appellate Court for fresh disposal on merits. The lower appellate Court shall notify and hear all the parties and shall decide the appeal afresh in accordance with law, uninfluenced by any of the observations made hereinabove. Since the appeal arises out of a suit instituted in the year 1973 the lower appellate Court shall endeavour to dispose of the appeal afresh within a period of four (4) months from the date of receipt of a copy of this judgment. The second appeal is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J April 30, 2011 DSK