P.S. Narayana, J.
1. The appellant Iqbal Begum-the plaintiff in O.S.No. 436 of 1987 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, had originally instituted a suit for perpetual injunction O.S.No. 119 of 1986 on 26-5-1986 on the file of the Vacation Court which was transferred to the III Assistant Judge, City Civil Court, Hyderabad and enumbered as O.S.No. 1737 of 1986 and further transferred to the II Senior Civil Judge, City Civil Court, Hyderabad and numbered as O.S.No. 436 of 1987. The said suit for perpetual injunction was dismissed by the learned Judge leaving open the question of title to be agitated by the parties, in other words, the question of title was left undecided in the said suit. Aggrieved by the said judgment and decree, the unsuccessful As can be seen from the nature of evidence which had been let in by parties and also the voluminous documentary evidence, this Court is thoroughly satisfied that instead of driving the parties to yet another litigation, it would be just and proper to permit the parties to amend the plaintiff preferred A.S.No. 401 of 2000 on the file of XIII Additional Chief Judge, City Civil Court, Hyderabad and the same was transferred to this Court to be heard along with CC.CA.No. 106 of 1996 and C.C.C.A. No. 126 of 1996, the appeals preferred as against the order made in a final decree proceeding. Inasmuch as C.C.C.A. No. 106 of 1996 is not being prosecuted, the same had been dismissed for default today, but, however, C.C.C.A. No. 126 of 1996 was heard at length. The appellant in C.C.C.A. No. 126 of 1996 who came on record in the final decree proceeding in O.S. No. 59 of 1960, in LA. No. 292 of 1995 and in I.A.No. 160 of 1983 is the defendant in O.S. No. 436 of 1987. One G. Yadagiri filed C.M.P. No. 14506 of 1999 in CCCA. No. 126 of 1996 under Order 1 Rule 10 read with Section 151 CPC to be impleaded as party on the ground that he purchased the property from Gousia Begum, the first defendant in the suit, after the preliminary decree was passed in O.S.No. 59 of 1960 but, however with the permission of the Court. In the light of the facts and circumstances, the said C.M.P. No. 14506 of 1999 in C.CC.A.No. 126 of 1996 is hereby ordered.
2. Submissions of Sri Mahmood Ali.
Sri Mahmood AH, the learned Counsel representing the contesting respondents in CCCA. No. 126 of 1996 and also the appellant in transfer CCCA.No. 44 of 2002 made the following submissions.
3. The learned Counsel would maintain that it is unfortunate that the property which is said to have been purchased by Yadagiri instead of being allotted to the share of Gousia Begum had been allotted to the share of Iqbal Begum. The learned Counsel also would submit that in the light of the stand taken by the purchaser Yadagiri, the allotment of property to Iqbal Begum may not be just as her rights would be prejudiced. The Counsel also explained that there are certain problems with certain of the tenants in occupation of certain portions. The learned Counsel had also explained the other difficulties involved in the matter. While further elaborating his submissions, the Counsel would maintain that even if Iqbal Begum had filed a suit for perpetual injunction simplicitor, the question of title may have to be incidentally gone into, but, however, this question was left open virtually driving the parties to yet another litigation. The learned Counsel also would submit that in view of the fact that ample documentary evidence had been placed before the Court, it would be just and proper even to decide the question of title even if the suit is for mere injunction. The Counsel however, would maintain that in view of the fact that certain legal complications may crop up, it would be just and proper to permit the plaintiff in O.S.No. 436 of 1987 referred to supra, the appellant in CC.CA.No. 44 of 2002 to amend the plaint suitably and to further agitate the matter.
4. Submissions of Sri Balchand.
Sri Balchand, learned Counsel representing the appellant in CC.CA.No. 126 of 1996 would maintain that instead of deciding the objections raised by Shri Vishamodh Gowbhuj Samaj in the final decree proceeding, leaving such questions open at the instance of Iqbal Begum, cannot be sustained. The learned Counsel had taken this Court through the findings which had been recorded by the learned Judge in I.A. No. 160 of 1983 and I.A.No. 292 of 1995 in O.S. No. 59 of 1960. The learned Counsel also would submit that the very identity of property of one of the items in the preliminary decree and the final decree and also the property actually in possession of the appellant in CCCA.No. 126 of 1996 had been in serious doubt. These are different and distinct properties. The Counsel also would maintain that in the light of the clear findings recorded by the learned Judge in the suit filed by Iqbal Begum for perpetual injunction, no purpose would be served in permitting the plaintiff-Iqbal Begum to prosecute the said litigation and it may be just and proper if liberty is given to her to file yet another suit praying for appropriate reliefs. No doubt, the learned Counsel also made certain submissions touching the merits and demerits of the matter and would comment the way in which the final decree proceeding had been dealt with despite the fact serious objections had been raised by the Samaj in question, in this regard.
5. Submissions of Sri Bitchaiah.
Sri Bitchaiah, the learned Counsel representing Yadagiri, the party who had been impleaded in C.M.P.No. 14506 of 1999 by this Court would maintain that his father later Sattaiah purchased 4-4-435, 436, 437 and 438 consisting of country tiled roof situated at Cheelabanda, Sultan Bazar, Hyderabad from Gousia Begum and Abdul Rehman and Yousuf Bee. The learned Counsel also would submit that these properties were sold with the permission of this Court in C.M.P.No. 5421 of 1965 in CCA. Sr.No. 36500 of 1964 dated 23-6-1965 to enable the vendors to meet the expenses for drafting of the partition decree as that suit was filed in forma pauperis. The learned Counsel would maintain that in the light of the clear language in Section 52 of the Transfer of Property Act 1882, inasmuch as the property was purchased under the authority of the Court, the same was protected under Section 52 of the aforesaid Act and hence during the final decree proceeding the allotment of this property purchased with the permission of the Court to yet another sharer definitely cannot be sustained. The learned Counsel also made certain submissions relating to the final decree proceeding and prayed that equities are to be worked out in relation thereto.
6. Heard the Counsel on record and perused the oral and documentary evidence available on record.
7. In the light of the rival contentions which had been advanced by the Counsel on record, the following points arise for consideration in these appeals.
(i) Whether the judgment and decree made in O.S. No. 436 of 1987 on the file of II Senior Civil Judge, City Civil Court, Hyderabad to be disturbed in anyway or to be confirmed in the facts and circumstances of the case ?
(ii) Whether the findings recorded in LA. No. 292 of 1995 and I.A. No. 160 of 1983 in O.S. No. 59 of 1960 by the II Additional Judge, City Civil Court, Hyderabad while making final decree proceeding to be confirmed or to be disturbed in anyway in the facts and circumstances of the case ?
(iii) If so, to what relief the parties would be entitled to ?
8. As already referred to supra M/s. Shri Vishamodh Gowbhuj Samaj, the defendant in O.S. No. 436 of 1987 who came on record in the final decree proceeding as a party claiming that the property in their possession is one of the items and when an attempt was made to disturb their possession, they filed an application to come on record in the said proceeding. No doubt, the stand taken by the appellant in C.C.C.A. No. 126 of 1996 had not been adjudicated on merits in LA. No. 292 of 1995 and LA. No. 160 of 1983 in O.S. No. 59 of 1960 aforesaid. The said question was left open and for remaining items, the final decree was passed in the light of the findings, which had been recorded in the said applications, but for the fact that at present one Yadagiri now came on record agitating that the equities are to be worked out, the order impugned in C.C.C.A. No. 126 of 1996 could have been confirmed. But, however, in view of the fact that it is brought to the notice of this Court that instead of allotting the item purchased to the shares of vendors, the said item, it appears had been allotted to the share of Iqbal Begum. Exactly this is the question in controversy now. No doubt submissions had been made at length by Sri Mahmood AH and in view of the fact that Iqbal Begum is facing some problems with the tenants, it would not be just and proper to disturb the final proceeding in toto. Keeping in view the submissions made by the learned Counsel representing Iqbal Begum, it is made clear that in the light of the stand taken by Yadagiri inasmuch as such a sale having been effected with the permission of the Court, and the same is being protected by virtue of Section 52 of the Transfer of Property Act, 1882, equity may have to be worked out in relation to the said item.
Section 52 of the Act aforesaid reads :
Section 52 : Transfer of property pending suit relating thereto :-During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose.
Explanation :-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
It would be just and proper to adjust equities and this Court is not inclined to disturb the other allotments but however, it is made clear that in the light of the submissions made by Sri Mahmood Ali while making final decree proceeding the claim of the party impleaded herein Yadagiri to be taken into consideration and to work out equities without disturbing the final decree proceeding already made except to the limited extent aforesaid if possible. It is no doubt true that when the properties of Iqbal Begum, which had been already allotted including the properties which are being claimed by Yadagiri, certain adjustments are to be made. However, the grievance ventilated by Sri Mahmood AH relating to the disputes if any of Iqbal Begum with certain of the tenants may have to be kept in mind while working out these equities. Except making these observations in this regard, nothing more can be done at this stage.
9. Be that as it may, this Court is now concerned with yet another suit filed by Iqbal Begum O.S. No. 436 of 1987 for the relief of perpetual injunction simplicitor as against the defendant therein-the appellant in C.C.C.A. No. 126 of 1996. On the strength of the elaborate pleadings having settled the issues, the learned Judge recorded the evidence of PWs. 1 and 2, Smt. Iqbal Begum and I. Satya Prasada Rao, Commissioner appointed in O.S. No. 59 of 1960 and DW. 1 Madhu Mohan Das. Exs.A.1 to A.39 and Exs.B.1 to B.46 were marked. As can be seen from the respective pleadings of the parties and the evidence which had been let in by the parties, almost all the aspects had been considered. However, the learned Judge at Para 39 observed as hereunder.
The contention of the Counsel for the plaintiff that the title can be incidentally gone into in case of this nature cannot be accepted, as the present suit is only for bare injunction and the plaintiff miserably failed to establish her possession by the date of filing of the suit. Any attempt in that regard is a futile exercise as the plaintiff failed to establish her possession. Therefore, the title of the plaintiff is not gone into incidentally also. The suit is liable to be dismissed on the simple ground that the plaintiff has miserably failed to establish that she was in possession of the suit schedule property by the date of filing of the suit. Accordingly, these two issues are answered in favour of the defendant and against the plaintiff.
10. Now, the question is in the light of the observations made by the learned Judge at Para 39 referred to supra whether Iqbal Begum the plaintiff to be driven to file yet another suit or liberty can be given to her to prosecute the selfsame litigation.
11. As can be seen from the nature of evidence which had been let in by parties and also the voluminous documentary evidence, this Court is thoroughly satisfied that instead of driving the parties to yet another litigation, it would be just and proper to permit the parties to amend the pleadings suitably and agitate their rights in the selfsame suit. This would be just and proper to avoid further litigations and also to minimize the litigations between the parties. In view of the same, liberty is given to the plaintiff in the said suit to suitably amend the pleadings if she is so advised and it is needless to say that the defendant in the said suit-the appellant in the C.C.C.A. No. 126 of 1996 also may put in the additional pleadings if so advised resisting the claim of Iqbal Begum and it is needless to say that the question of title relating to the property in question also may have to be gone into in the selfsame suit, in the light of the amended pleadings of the respective parties as may be advised by the respective Counsel in this regard.
12. In the light of the findings recorded supra, the judgment and decree in O.S. No. 436 of 1987 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad are hereby set aside and the matter is remanded for the purpose referred to supra, the common order impugned in C.C.C.A. No. 126 of 1996, I.A. No. 292 of 1995 and I.A. No. 160 of 1983 in O.S. No. 59 of 1960 also is hereby set-aside to the limited extent specified supra and the matter is remanded in the light of the findings recorded above. The learned Judge to pass appropriate orders in the matters referred to supra. Accordingly, the appeals are allowed to the extent indicated above. It is made clear that inasmuch as liberty is being given to Iqbal Begum to suitably amend the pleadings relating to the question of title as well in the suit for injunction filed by her. It is needless to say that the said question need not be in any way agitated in the final decree proceeding so far as it relates to Shri Vishamodh Gowbhuj Samaj in I.A. No. 292 of 1995 and I.A. No. 160 of 1983 in O.S. No. 59 of 1960 referred to supra. No order as to costs.