S PRAKASH RAO Vs. S SHYAM RAO

JUDGEMENT

(1.) This is an appeal filed by the plaintiffs against the judgment and decree of IV Senior Civil Judge, City Civil Court, Hyderabad. The plaintiff filed the suit for declaration and injunction. The declaration sought was that the plaintiffs 1 to 3 were owners of A, B and C schedule properties. Consequent to the declaration they sought injunction that defendants should not interfere with their possession and enjoyment of the suit property. It was claimed that the 1st plaintiff was the absolute owner of A schedule property, second plaintiff was owner of B schedule property and the third plaintiff was owner of C schedule property and they had been in possession and enjoyment of the same from the date of partition dated 25th November, 1971. The defendant is owner of the first floor of the premises of the building. The said property was open land purchased by father of the plaintiffs and defendant. As the parties are brothers their father had purchased the land from one Hanumaiah in 1952 through a registered sale deed and thereafter the father constructed a zinc sheet roof house of 3 rooms and whole of the family that is the plaintiffs, defendant and their parents were living in the said house. Their father wanted to construct a pucca house in place of the old zinc sheet roof house in view of growing family members. Therefore, with the consent of all others he proposed to transfer the said house in the name of the defendant to enable him to obtain house construction loan from the Government as he was a Government servant. The said property was nominally transferred in the name of the defendant for seeking loan for construction of the house. The plaintiffs further contended that they made their own contributions towards the construction of house and construction work commenced in the year 1970. It was completed in the year 1971. The construction was supervised by the plaintiffs, defendant and their father and a double storeyed house was constructed. After completion of the construction the plaintiffs, defendant, their parents and sisters shifted to the new building. The defendant occupied the entire first floor. The plaintiffs, their parents and sisters occupied the ground floor. The plaintiffs further contended that in the presence of well wishers and elder members of their family i.e., Ramaswamy, Danaiah and other family members there was an oral partition and the entire property was divided into four parts and respective shares were given to the parties. The plaintiffs 1 and 2 got schedule A and B properties, 3rd plaintiff was allotted open terrace over the first floor and defendant was allotted the first floor. The settlement was made in the presence of above elders on 25-11-71. Since then both the parties have been separately occupying the allotted portions in the ground floor, 1st floor and the terrace. The plaintiffs and defendant are paying property tax in respect of the said property. They are also paying electricity, water consumption charges. It was further stated that the sale deed executed by their father towards defendant No. 1 was nominal and it was only to enable the defendant to obtain loan for construction. The defendant had issued a notice on 14-10-91 wherein the defendant alleged that the plaintiffs were tenants in the suit property. It is submitted that the defendant had started harassing the plaintiffs, therefore the suit was filed. The defendant filed a written statement and thereafter amended it setting a counter claim for ejectment and recovery of possession. In the written statement/counter claim the defendant claimed that he was owner of the whole house, the plaintiffs were his tenants and he was not aware of any partition. He further contended that his father was in need of money and he was trying to alienate the suit property, their father offered it to all of his sons, nobody except him came forward to purchase and he purchased it with his own money and constructed the house after obtaining permission from the Municipality. He obtained loan of Rs. 21,600/- which was granted to him in four instalments. Out of love and affection he had leased out the property to the plaintiffs. He denied that any amount had been spent by the plaintiffs for the construction of the house. He further alleged that the plaintiffs had purchased other property. The first plaintiff was also working in the Government department and he was asked by the defendant to leave the house after he constructed his house, thereafter the disputes started. He claimed for recovery of possession of A B and C schedule properties. A rejoinder was also filed to the counter claim of the defendant. On the basis of pleadings the following issues have been framed by the trial court;

(2.) Going by the findings on the issues, two important questions arise for disposal of this appeal. The first question is whether the sale deed executed by the father of the parties towards (sic. to) the defendant was a nominal sale deed. The second question is, whether the house was intended to be constructed for all brothers and whether all the brothers had contributed towards its construction.

(3.) Before deciding these two questions a preliminary objection raised by the learned counsel for the appellants has to be decided first. The learned counsel for the appellant submitted that a counter claim cannot be put forth in view of Order 8 Rule 6 of C.P.C. He submits that a counter claim can only be filed in money suits and Rule 6-A is controlled by Rule-6. It will be pertinent to reproduce Rule 6 and 6-A of Order 8 C.P.C. Order 8 Rule 6 Particulars of set-off to be given in written statement.