THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.3124 of 2011 Date: .12.2011 Between: Mohammed Munawar, Yousufguda, Hyderabad, and 5 others … Petitioners AND G. Chenna Reddy, Erragadda, Hyderabad, and 8 others … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.3124 of 2011 ORDER: The revision petitioners are third parties to O.S.No.220 of 2007 and E.P.No.4 of 2007 on the ﬁle of the II Additional Rent Controller, Hyderabad. The ﬁrst respondent is the decree holder. The respondents 2 to 9 are proposed judgment debtors in E.P.No.4 of 2007. The impugned order dated 15.07.2011 is a direction to the bailiﬀ to deliver possession of the E.P. schedule property to the decree holder by evicting judgment debtors or any other person or persons in occupation of the premises on behalf of the judgment debtors. The claim of the third parties through the present revision is resisted by the decree holder. No one appeared on behalf of the proposed judgment debtors. 2. At the outset, I may refer to the E.P. schedule. The E.P. schedule is plot Nos.18A and 19A admeasuring 600 square yards in Survey Nos.128/2 and 128/3, Sreeram Nagar, Yousufguda, Hyderabad. The eastern abuttal of the schedule property is plot Nos.18 and 19. The premises allegedly bears municipal door No. 8-3-167/B/19/A/A, Sreeram Nagar, Yousufguda, Hyderabad. The plot Numbers, Survey Numbers and the Municipal Numbers are relevant for the purpose of determination of the present revision. 3. The ﬁrst respondent, who is the decree holder, ﬁled O.S.No.220 of 2007 on the ﬁle of the II Additional Rent Controller, Hyderabad against the second respondent by name Mohd. Osman. It was a suit for the eviction of the second respondent. Subsequently, the second respondent died and his wife and children came on record as defendants 2 to 8. They are respondents 3 to 9. It is relevant to notice that respondents 3 to 9 are described to be the residents of municipal premises No. 8-3-167/B/4/1, Sreeram Nagar, Yousufguda, Hyderabad. Inter alia, it is the case of the petitioners (who are six in number) that the petitioners are the titleholder of the E.P. schedule property and that while they have been in occupation of the premises, the ﬁrst respondent, in connivance with Mohd. Osman laid the suit against the Osman as if Mohd. Osman was the tenant of the premises and that the petitioners were inducted into the premises by Mohd. Osman. The petitioners contend that the second respondent as well as respondents 3 to 9 are impostors inasmuch as the claim of the ﬁrst respondent is that the second respondent and his legal representatives in respondents 3 to 9 are the tenants of the ﬁrst respondent. It is contended by the petitioners that the ﬁrst respondent-decree holder seeks to evict the owners by obtaining a decree against an illusory tenant and that the ﬁrst respondent has been trying to defeat the legal rights of the petitioners. 4. Sri K.V. Bhanu Prasad, learned counsel for the petitioners explained various factors, which show that the petitioners are the owners. W.P.No.28882 of 2009 is a writ petition ﬁled by the petitioners 3 and 4 herein. They claimed to be owners of premises bearing No.8-3-167/B/4, Jayantinagar, Sreeram Nagar, Yousufgunda. The Greater Hyderabad Municipal Corporation (GHMC, for short) issued a notice under Section 461, Hyderabad Municipal Corporation Act, 1955 (HMC Act, for short) directing petitioners 3 and 4 herein to produce the sanctioned plan along with title deeds. The petitioners claimed that they have complied with the notice. 5. On 07.01.2009, GHMC issued a notice to the petitioners 3 and 4 asking them to show cause why constructions made in violation of the permits and the Rules in respect of premises door No.8-3- 167/B/19/A/A, Sreeram Nagar, Yousfugda, Hyderabad should not be demolished. This is not the premises claimed to be owned by the petitioners. The petitioners procured a certiﬁcate from the Deputy Commissioner, GHMC that there is no premises bearing No.8-3-167/B/19/A/A. The High Court disposed of W.P.Nos.28882 of 2009 holding that there is discrepancy between the door number of the premises owned by the petitioners as claimed by the petitioners and as claimed by the GHMC and that GHMC shall ﬁrst verify and ascertain the details as to the door number of the premises in respect of which action is proposed. The court granted permission to GHMC to proceed by issuing notice u/s.636 HMC Act thereafter. It is the contention of the learned counsel for the petitioners that the GHMC which is in connivance with the decree holder deliberately gave wrong description of the property to create confusion so as to grab the property. It is contended by the learned counsel for the petitioners that obviously the stand of the petitioners that they owned premises bearing No. 8-3-167/B/4 and not premises bearding door No. 8-3-167/B/19/A/A is patent from the stand of the petitioners in WP No.28882 of 2009. 6. However, despite directions through WP No.28882/3009, it would appear that GHMC again issued notices to the petitioners. The ﬁrst petitioner ﬁled WP No.12857 of 2010 questioning the notice. The second petitioner laid WP No.12859 of 2010. The petitioners 3 and 4 laid WP No.12860 of 2010. The petitioners 5 and 6 laid WP No.12861 of 2010. A common question arose in all petitions. All the petitioners challenged the respective notices issued to them by GHMC on 28.05.2010 directing them to remove the alleged illegal constructions within 24 hours. The GHMC reported before the Court that GHMC is ready to determine the identity of the property before proceeding with u/s.636 of the HMC Act. An interim order was passed in these writ petitions according opportunity to the petitioners to ﬁle additional representations and directing GHMC to consider the representations to determine the identity of the disputed properties. The petitioners contend that after disposal of WP No.12857 of 2010 and batch, GHMC issued notices on 23.11.2010 u/s.636 of the HMC Act to the petitioners. A reasoned order was passed in these notices. In the notices, it was recorded that the petitioners made constructions in the premises bearing door No. 8-3-167/B/4/1. It was recorded that premises bearing municipal No.8-3-167/B/19/A/A did not exist. It was also recorded that the ﬁrst petitioner applied for mutation in respect of premises bearing door No. 8-3-167/B/4 and that this premises, however, should merge with premises bearing door Nos.8-3- 167/B/6, 167/B/16, 167/B/1/7 by way of conversion of the same into a residential premises. 7. Considering that there was discrepancy in the description of the premises, petitioners 3 and 4 ﬁled the third writ petition in WP No.29542 of 2010. The ﬁfth petitioner ﬁled WP No.29543 of 2010. One Syed Zaheer Ahmed ﬁled WP No.29544 of 2010. In these three writ petitions, interim orders were passed on 25.11.2010 restraining GHMC from proceeding with the notice u/s.636 of the HMC Act issued on 23.11.2010. These three Writ Petitions are presently pending. This is the long drawn legal chronicle of the present cases. It may, however, be pointed out that the plaintiﬀ/decree holder/ﬁrst respondent (herein) sought for the eviction of the tenants therein. 8. The decree holder sought for breaking open of the lock of the premises in the process of the execution of E.P.No.4 of 2011. The petitioners contend that they are in possession of the petition schedule premises and that if the ﬁrst respondent seeks to execute the decree against the petitioners, he may invoke Order 21 Rule 97 CPC claiming that the petitioners are obstructers and proceed with the case, so much so, the petitioners can set forth their defence. The basis of the claim of the petitioners is that the petitioners purchased premises bearing door No.8-3-167/B/4, Jayantinagar, Yousufguda, Hdyerabad, from the second respondent himself during his life time in July 20011 and that they are the owners of the premises over which the ﬁrst respondent is seeking to execute the decree. 9. Sri M.V. Hanumantha Rao, learned counsel for the decree holder submitted that various writ petitions have nothing to do with the scheduled premises. He is correct in the sense the petitioners claim title to the premises bearing No.8-3-167/B/4, whereas the premises over which the decree holder seeks to execute the decree are plot Nos.18A and 19A admeasuring 600 square yards in all in Survey Nos.128/2 and 128/3, Sreeram Nagar, Yousufguda, Hyderabad. He refers to the sale deeds executed by the second respondent and pointed out that the second respondent did not whisper in the sale deeds as to how he acquired title to the property sold by him to the petitioners. He also submitted that the petitioners are not in possession of the link documents i.e., the title deeds of the vendor of the second respondent to prima facie establish that the second respondent was the titleholder of the disputed property. 10. He referred to the sale deeds relied upon by the petitioners and contended that the total extent of the property would be 1092 square yards according to the petitioners, whereas the decree holder is seeking execution in respect of 600 square yards in plot Nos.18A and 19A. Admittedly, encumbrance certiﬁcate in respect of either the premises over which execution is sought or the premises in respect of which the petitioners claim title has not been ﬁled. The learned counsel for the decree holder made an uncharitable submission that the EP schedule property is situate in Yousufguda, while the petitioners are claiming title in respect of the property situate in Jayantinagar. It may be seen that in WP No.28882 of 2009 itself, the petitioners contended that premises bearing door No.8-3-167/B/4 is situate in Jayantinagar, Sreeram Nagar, Yousufguda, Hdyerabad. Thus, the petitioners indeed claim that their property is situate in Yousufguda and in the sub-area of Sreeram Nagar and in the sub-sub- area of Jayantinagar. I am afraid that the decree holder cannot contend that the premises claimed by the petitioners is not situate in the locality of the EP schedule premises. 11. It is the contention of the learned counsel for the decree holder that the petitioners are set up by the second respondent and that the second respondent in fact set up an alleged tenant. The alleged tenant ﬁled a claim petition. The claim petition ﬁled by one Shaik Ameer Ali was rejected. The learned counsel for the second respondent submitted that the encumbrance certiﬁcate in respect of plot Nos.18, 19, 18A and 19A do not show the name of the petitioners. I am afraid that the petitioners do not claim that the premises claimed by them are in Plot Nos.18, 19, 18A or 19A. Their speciﬁc case is that the premises bears municipal door No. 8-3-167/B/4. The encumbrance certiﬁcate referred to by the learned counsel for the ﬁrst respondent/decree holder, therefore, has no relevance. 12. The learned counsel for the decree holder referred to the alleged rental agreement between the second respondent and the claim petitioner Shaik Ameer Ali. The rental agreement did not contain the signature of the tenant. At any rate, the petitioners are not claiming through this alleged tenant, Shaik Ameer Ali. The claim of the petitioners is that they purchased the property from the second respondent. The rental agreement between the second respondent and his alleged tenant, therefore, has no relevance. 13. The learned counsel for the decree holder is correct in contending that the decree holder is entitled to evict any person inducted by the tenant when the decree is passed against the tenant. However, it is not the case of the petitioners that they are the tenants of the decree holder or the second respondent. Their claim title to the property. 14. Inter alia, the decree holder contends that when he has established his title to the property, the petitioners cannot resist the execution of the decree. I regret to agree with the contention of the learned counsel for the decree holder that the decree holder established his title to the property. Curiously, it is not even clear as to the exact description of the property in respect of which the execution is sought. The petitioners are claiming title to the premises bearing door No. 8-3-167/B/4. The decree holder is claiming title to plot Nos.18A and 19A in Survey Nos.128/2 and 128/3. Are these properties one and the same? What is the identity of these properties? This is in fact the real controversy. I am afraid that the decree holder cannot execute the decree till the decree holder ﬁrst localises the land and obtains clariﬁcation that plot Nos.18A and 19A are not covered by premises No.8-3-167/B/4. If it is found that the premises referred to is within the described plot numbers, the very suit by the plaintiﬀ would be misconceived, as the second respondent lost title to the property by selling the same to the petitioners in 2007. Hence, the need for the localisation of the EP schedule property and its co-relation to municipal numbers, if any. 15. The learned counsel for the decree holder pointed out that when the claim petition laid by the petitioners was dismissed by the execution Court, the petitioners slept over the same till warrant was issued in E.P.No.4 of 2007, through the impugned orders. The learned counsel for the decree holder laid emphasis on the point that GHMC clearly indicated that premises bearing door No.8-3- 167/B/19/A/A does not exist. It is not these premises over which the petitioners are claiming title. The declaration of GHMC that the above- described premises do not exist is of no consequence. If it is the case of the decree holder that premises bearing door No.8-3-167/B/4, as claimed by the petitioners also does not exist, it will not be diﬃcult for the decree holder to obtain a certiﬁcate that such a premises does not exist, so much so, the claim of the petitioners would automatically stand negated. 16. The learned counsel for the decree holder proceeded on the assumption that the decree holder established his title to the petition schedule premises. It may be noticed that the decree holder ﬁled O.S.No.220 of 2007 seeking for the eviction of the second respondent from the premises in plot Nos.18A and 19A in Survey Nos.128/2 and 128/3 in Sreeram Nagar, Yousufgunda, Hyderabad, admeasuring 600 square yards. He never gave the door number or premises number. When the petitioners contend that the decree holder is executing the decree against the premises under their occupation, the decree holder shall establish that the premises do not bear municipal No.8-3- 167/B/4, lest it should become necessary for the decree holder to implead the petitioners as the persons in occupation of the premises. Viewed in any angle, the ﬁrst respondent decree holder has to clinchingly make out his case that the execution is taken out over the premises, which is not owned and possessed by the petitioners. I, therefore, consider that the decree holder shall ﬁrst establish the clear identity of the disputed premises. Then, he shall make out that the petitioners are not in possession of the same. On the other hand, if the petitioners are found to be in possession of the property over which execution is sought, the decree holder must invoke Order XXI Rule 97 CPC before trying to execute the decree against the petitioner. I do not certainly wish to declare that the petitioners have established their prima facie title to the petition schedule premises. This is largely because there is any amount of confusion and uncertainty regarding the identity of the premises covered by O.S.No.220 of 2007. 17. Accordingly, the Civil Revision Petition is disposed of setting aside the impugned order dated 15.07.2011. The second respondent-decree holder must establish the identity of the property over which execution is sought before executing the same and in the process, he should co-relate plot Nos.18A and 19A in Survey Nos.128/2 and 128/3 and premises bearing No.8-3-167/B/4. If the decree holder establishes that plot Nos.18A and 19A are distinct from the premises No.8-3-167/B/4, he may proceed with the execution of the decree in O.S.No.220 of 2007. If it is found that the two premises are one and the same, the decree holder should ﬁrst invoke Order XXI Rule 97 CPC against the petitioners, who are squatting over the property and execute the decree only after disposal of such an application by them. There shall, however, be no order as to costs. _________________ K.G. SHANKAR, J Date: .12.2011 Isn