Counter Affidavit Filed On Behalf Of The Respondents Affidavits Miscellaneous 423 - Legal Draft

Counter affidavit filed on behalf of the respondents

I, .......................... S/o................. Hindu, aged about ........... years, Occupation ........, R/o. ...................... H/o. ............... Mandal, ................ District and now having temporarily come down to Hyderabad, do hereby solemnly and sincerely affirm and state on oath as follows :

(1) That I am the 2^nd respondent herein and the 2^nd respondent in the above Second Appeal and as such I am well acquainted with the facts of the case. I am swearing this affidavit on my behalf and on behalf of the other respondents also who have authorized me to file the same.

(2) That I have read the affidavit filed by the Petitioner/Appellant in support of the above C.M.P. and deny all the averments made therein except that those which are specifically admitted by me hereinafter.

(3) I submit that the order of interim stay granted by this Hon’ble Court on ......... is not sustainable and is liable to be vacated. I further submit that the said order of interim stay is an ineffective order, since there is no positive order of injunction but however under the guise of the said interim stay order, the petitioner is threatening us with forcible dispossession with the assistance of the police. Hence the said interim stay order is liable to be vacated.

(4) I further submit that the mother of the 1^st respondent, myself and the 3^rd respondent jointly purchased the plaint schedule properties from one .......... for valuable consideration under a registered sale deed dated ........ and we are in continuous possession and enjoyment of the same since then with absolute rights. It is submitted that after the death of the mother of the 1^st respondent and our selves have been in continuous interrupted possession to the knowledge of the Petitioner/Appellant/Plaintiff and one and all. It is further submitted that the sale deed dated ............. relied upon by the Petitioner/Appellant/Plaintiff is not binding on us.

(5) I further submit that except the judicial proceedings all the allegations made in Paras 1 to 10 of the affidavit are totally false and incorrect. It is submitted that the Petitioner/Appellant/Plaintiff has been never in possession and even during the pendency of the appeal he has no interim order in his favour.

(6) I also submit that both the Courts below clearly held that the suit itself is barred by Order 2, Rule 2 C.P.C.

(7) I also submit that the suit schedule property originally belonged to one............who had two wives by name one........ and one...... and the said............ had a daughter by name........... The said ........... filed O.S.No........ of ........ on the file of the District Munisf Court,............ against the said ................ and ............. for declaration and partition of her share in the properties of her husband in the lands at .......... During the pendency of the O.S.No......... of ..........., the said ...........died and the said.......... was transposed as 2^nd plaintiff therein, as the sole heir of ............. The plaintiffs in O.S. No......... of ......... did not claim the plaint schedule property therein and intentionally relinquished their claim to it. The plaintiff in O.S.No. ....... of ....... claimed title from one .............. who in turn claimed from the said ........ under registered sale deeds dt. ............. and .......... respectively. Since the said .............. under registered sale deeds dt. .......... and ............ respectively. Since the said.........or her mother........... did not include the suit property in the whole claim in the previous partition suit O.S. No. ........... o f....... against the said........... the subsequent suit O.S. No.......... of ......... on the file of the District Munsif Court, .............. against.......... and her brother........... for declaration of title to house property to .......... and O.S.No........ of ......... on the file of the District Munsif Court, ............. against the same defendants for recovery of possession of movable properties of the said ........... came into being. The said O.S.No......... was transferred as renumbered as O.S.No...... of ....... on the file of the Sub-Court, ........ Both O.S.No. .... of ........... and O.S.No. ........ of 1975 were clubbed together and during the joint trial, and issue was framed under Order 2, Rule 2 C.P.C. and the said subsequent suits were dismissed in view of the previous suit O.S.No.......... of .......... wherein the house and movable properties were forgotten and omitted. Again the said .......... filed another suit in O.S.No. ..... of ......... against the defendants for permanent injunction and the same was dismissed. The causes of action in the previous suits were based on succession from ......... in respect of all suits as between ............ and ......... and the cause of action in the present O.S.No. ...... of ............ was based on the same succession by the purchasers from such said successors-in-title. Since the cause of action in the previous suits and in the present suit are identical, the present suit is barred under Order 2, Rule 2 C.P.C.

(8) I humbly submit that we are in actual possession and enjoyment of the plaint schedule properties and absolutely there is no case to the petitioner/Appellant at all and on the contrary we are having a strong prima facie case in our favour and in the said circumstances our possession has to be protected by vacating the interim stay granted by this Hon’ble Court dt................

Under these circumstances, it is just and necessary in the interst of justice, that this Hon’ble Court may be pleased to vacate the interim stay granted by this Hon’ble Court in C.M.P. No. ......... of ....... in S.A.No. ........... of ........ dt........ and pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case, as otherwise, we will be put to irreparable loss, grave suffering, great hardship, heavy injury and serious loss.

Deponent
Before me
Advocate, Hyderabad

Solemnly affirmed at ................ on                                  
this the .......... of ..... and signed                                         
his name in my presence.