Dr. Shehla Burney & Ors vs Syed Ali Mossa Raza (Dead) By Lrs.& Ors

2. As asserted by the appellants, the suit land (Original Suit No.164/76) falls under Survey No.129/64. The respondents No.1, 2 and 3 were the original plaintiffs and according to them the suit land falls in Survey No.129/55. The appellants herein are the legal heirs of original defendant No.2. The respondents 4/1 and 4/2 are the legal heirs of original defendant No.1.

Thereupon, Sajid Hassan sold on or about 22.7.1963 the said land to Razia Begum, the predecessor-in-title of original defendant no.1 by a registered sale deed for a total consideration of Rs.6000/-. Razia Begum remained in uninterrupted and peaceful possession of the said property from the date of her purchase. On or about 11.08.1963 Razia Begum obtained house 2 construction loan from the Housing Cooperative Society, Mellapelly Limited and thereafter permission for construction was accorded on or about 18.02.1964 by the Hyderabad Municipal Corporation. The original defendant no.1 was in possession and enjoyment of the property till it was transferred on 20.6.1973 to one Lateef Hassan Burney, the predecessor-in-title of the appellants (original defendant No.2) as the nominee of the defendant no.1 in terms of the rules of the Housing Society. Then, on 4.12.1975, the original suit (O.S.164 of 1976), out of which this proceeding arises, was instituted in the Court of the 4th Additional Judge, City Civil Court, Hyderabad by the plaintiffs against Razia Begum alleging that the plaintiffs' father Saiyed Shah Abdul Khader was the Pattedar and Landlord of land bearing Survey No.129/55 (old), New Survey No.165 admeasuring 3 Acres and 26 guntas situated at Kachcha Tattikhana Sivar village Shaikpet and the then Taluk West, now Hyderabad 3 Urban Taluk. It was also alleged that the patta was transferred in the name of the father of the plaintiffs by Sarafe-e-Khas Mubarak on 25th Azur in 1340 Fasli and the father of the plaintiffs through a registered document Tamleeknama (Settlement Deed) on 10th Aban, in 1347 Fasli which corresponds roughly to the year 1930 transferred the land to his wife Fatima Sogra, the mother of the plaintiffs. It was further alleged that after the aforesaid transfer the said Fatima Sogra, the plaintiffs' mother, remained in continuous and exclusive possession of the same till her death on 24.07.1973. On her death the respondents no.4/1 and 4/2 illegally occupied the suit land. In the said suit Razia Begum, the predecessor-in-title of respondent no.4/1 and 4/2, filed her written statement pleading therein that she is a bone fide purchaser of the suit land by Rs.6000/- after issuing a public notice in the Daily Siyasat on 19.06.1963. No objections were received from 4 anybody and the sale deed was finally registered with the plan on 22.07.1963. It was also pleaded in the written statement that she obtained the necessary permission for construction and obtained a loan from Housing Cooperative Society and had completed the construction till the basement level. No objection was raised by the plaintiffs with the construction and she has perfected her title against the plaintiffs by way of adverse possession. In her written statement she also pleaded that she transferred on 20.6.1973 the property in favour of Lateef Hassan Burney, predecessor-in-title of the appellants.

9. Against the said judgment, the present appellants filed a Letters Patent Appeal before the Division Bench of the High Court. But in view of the judgment of the High Court in S. Shivraja Reddy and ors. v. Raghuraj Reddy and Ors., the Division Bench of the High Court held that after the amendment of Section 100 of the C.P.C., the Letters Patent Appeal filed after 1.7.2002 is not maintainable. The Letters Patent Appeal of the appellant was returned by the High Court and the appellants on 7.9.2002 filed a Special Leave Petition before this Court in which on 27.9.2002 leave was granted and the special leave was converted into this appeal.

18. It is clear that in the amended plaint the prayer is against the defendant, therefore, the prayer is only against defendant no.1 and not against defendant no.2. In a case where prayer is not made against a particular defendant, no relief 13 possibly can be granted against him. Reference in this connection can be made to the provisions of Order VII of the Code of Civil Procedure. In this connection, Order VII, Rule 5 is relevant and is set out below:-

22. The objection of the respondent that such point is taken only before this Court and not at an earlier stage of the proceeding cannot be countenanced since this point goes to the root of the matter and for consideration of this point no further investigation in the facts of the case is necessary. This point actually appears from the admitted records of the case and this point is based on the provisions of the Code of Civil Procedure.

25. Similar views have been expressed by this Court again in Tarinikamal Pandit and others v.

26. In our view this point is sufficient to hold that the judgment of the Hon'ble High Court is not sustainable in law.

28. In view of the aforesaid admitted factual position and the legal questions discussed above, this Court cannot affirm the views taken by the 18 High Court. The judgment of the High Court is set aside and that of the Trial Court is affirmed. The appeal is allowed. There will be no order as to costs.