THE HONOURABLE JUSTICE G. SRI DEVI
I.A.No.2 of 2021 in/and C.C.C.A.No. 22 of 1999
JUDGMENT:-
1. This is a First Appeal preferred by the Plaintiff No.2
challenging the Judgment and Decree dated 10.11.1998 passed in
O.S.No.609 of 1981 on the file of the V-Senior Civil Judge, City
Civil Court, Hyderabad, thereby dismissing the Suit for Declaration
of Title and Injunction.
2. Heard learned Senior Counsel, Sri.M.Surendar Rao,
appearing for Sri.M.Sharath Kumar, learned Counsel for the
Appellants; learned Advocate General appearing for Respondent
Nos.1 and 2/Defendants and Sri.Ashok Kumar Agarwal, learned
Counsel for Respondent No.4. The matter was heard on several
occasions and while reserving for Judgment, the parties were
directed to file their written submissions. The Appellants and the
Respondent No.1 and 2 have filed their written submissions which
are taken on record.
3. The appellant/plaintiff No.2 and respondent No.3/plaintiff
No.1 (M/s.Bhayanagar Studio Pvt. Ltd.) filed O.S.No.609 of 1981
against Respondent No.1 and 2/Defendant No.1 and 2 i.e., the
State of Andhra Pradesh through Revenue Secretary (now
Telangana: cause-title amended) and the Collector, Hyderabad
District, seeking to declare that the Plaintiffs are the absolute
owners and possessors of the suit land admeasuring Ac.2-10 gts.
forming part of Survey No.129/56 as detailed in the schedule and
plan annexed and to prohibit the Defendants/Government not to
interfere with and cause obstruction in the construction work over
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the suit land and enjoyment and possession of the suit land as
detailed and described in the schedule.
The Case of the Appellants/Plaintiffs is as follows:
4. The plaintiffs are the partners along with another partner
Smt.B.Saroja Devi, carrying on business under the name and style
of 'Bhagyanagar Studio' with its office at Road No.14, Banjara
Hills, Hyderabad. The certificate of Registration of the firm is
marked as Ex.A7. The Land in Sy.No.129/56 and Sy.No.129/73
are situated at Banjara Hills, Hyderabad adjoining each other
which is a private land and not Government land as contended by
the Government/Defendants. The land admeasuring Ac.8-12 gts.
(sic. Ac.3-12 Gts) in Sy.No.129/56 of Thathi Khana, originally
situated within the boundaries of Shaikpet Village, now within the
limits of Municipal Corporation, Hyderabad, was purchased by
Late Raja Dharam Karan from the Original Owner Syed Riaz
Ahmed through a Registered Sale Deed bearing Document No.1525
at pages 114, 115 in Book No.1 Volume V dated 27th Ardibehisht,
1355 Fasli corresponding to 27.03.1945 which was marked as
Ex.A1 written in Urdu language and its translated copy is marked
as Ex.A2. (The defendants got marked the same Sale Deed as
Ex.B6 and translated copy as Ex.B7). The plaintiff No.2 purchased
a portion of the said land admeasuring Ac.2-10 gts. from the heirs
of Late Raja Dharam Karan by way of a Registered Sale Deed
bearing Document no.1640 of 1964 in Book I dated 03.09.1964
which was marked as Ex.A3 and the plan annexed to this Sale
Deed was marked as Ex.A4. The property covered under the
aforesaid registered document is the suit schedule property. The
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plaintiffs further averred that the land in Sy.No.129/73
admeasuring about Ac.11-10 gts. situated at Thatti Khana Sivar
Shaikpet, Tq. West Hyderabad District, was purchased by Rani
Jayanthi Devi wife of Raja Dharam Karan as per Registered Sale
Deed dated 5th Shahariwar 1353 F corresponding to 10.07.1944
from one Rustomji Pistanji Moosa and Adesher Rustomji Moosa.
The plan of this Sale Deed of the year 1944 was marked as Ex.
A19. The partner of plaintiff No.1 i.e., Smt.B.Saroja Devi (wife of
the brother of plaintiff No.2) purchased a portion of the said land
i.e., Ac.5-38 gts. in Sy.No.129/73 by way of a Registered Sale Deed
Document no.1642 of 1964 dated 03.09.1964 which is marked as
Ex. A5 and the plan annexed to this Sale Deed is marked as Ex.
A6. The lands purchased by plaintiff No.2 in Sy.No.129/56 is
situated adjacent to the land purchased by his sister-in-law in
Sy.No.129/73, both have purchased on the same day i.e., on
03.09.1964 and since then are in peaceful possession and
enjoyment of their respective lands as absolute owners. It was also
averred that, without prejudice to the above contentions, they are
in continuous undisputed possession and enjoyment beyond the
statutory period, adverse to the interest and to the knowledge of
one and all. They have become absolute owners in respect of the
suit land, by adverse possession and by virtue of title. The
defendants/Government at this stage are trying to interfere with
their possession under the plea that the land being Government
land and are obstructing in fencing and raising compound wall and
structures on the suit land causing irreparable loss and damage.
The defendants/Government is claiming the suit land as part of
S.No.403 of Shaikpet Village and are not allowing the plaintiff to
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carry on the construction. The plaintiffs started construction over a
portion of land admeasuring about 3000 Sq. yards after obtaining
necessary permission from the Municipal Corporation and also
obtained Interim Injunction in I.A.No.594 of 1981 in O.S.No.61 of
1981 against the Government/defendants. The
Government/defendants got the Injunction Order suspended on
19.05.1981 till further orders and no notice was served upon the
plaintiffs or their Counsel and unauthorizedly, without any right,
the Government/defendants demolished the compound wall raised
by plaintiff No.2. There is every apprehension of the
defendant/Government forcefully occupying portion of the suit
land and change the present position making it impossible to
plaintiffs to retain the possession. The Government through
defendant No.2, sent a notice to the plaintiffs that the land lying in
between Sy.No.129/56 and Sy.No.129/73 is proposed for
assignment as House sites to the weaker sections. There is no
land between Sy.Nos.129/73 and 129/56 belonging to the
Government. Due to misdescription and wrong location and wrong
claim, certain correspondences seem to have taken place, basing
on which the question of allotting the Suit Land to the weaker
sections does not at all arise. After going through the record, a
detailed reply was sent to defendant No.2 with the title deeds and
plan in response to the Notice of the Government. Thereafter, the
Government kept quiet. As the Government was again obstructing,
as such the plaintiffs got issued statutory notice dated 30.04.1980
to the defendants and as there was no reply, they filed the present
suit on 23.06.1981.
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5. The Special Grade Deputy Collector filed a Written
Statement on 19.09.1981 on behalf of defendant No.1 and 2. It is
contended that the Suit is filed only by plaintiff Nos.1 and 2 alone
and the third partner Saroja Devi has not been included as
plaintiff, who, as per the plaint averments, had purchased the land
bearing Sy.No.129/73 of Shaikpet Village, as such the Suit is bad
for Non-Joinder of proper and necessary party. The plaintiffs have
mentioned about partnership but they have not chosen to indicate
whether there exists any co-ownership of the land in between the
partners of the plaintiff firm. The plaintiff Nos.1 and 2 as partners
of the firm, cannot sue the Government without their co-ownership
of the land. The total area of Sy.No.129/56 is Ac.8-12 gts. and not
Ac.3-12 gts. The Sy.No.129/56 still stands in the name of one Riaz
Ahmed and the defendants have no knowledge whether Raja
Dharam Karan had purchased it. The defendants have no
knowledge if there are any records to show the purchase of the
portion of the said land admeasuring Ac.2-10 gts. by the plaintiff
No.2 from the heirs of Late Raja Dharam Karan and also no record
as to in which portion out of Ac.8-12 gts, the plaintiffs purchased.
The names of heirs of late Raja Dharam Karan have also not been
mentioned. These averments are denied for want of knowledge. The
land in Sy.No.129/73 is admeasuring Ac.11-10 gts. but in the
name of Rani Jayanti Devi Ac.8-10 gts. in Sy.No.129/73/A, in the
name of Leela Devi Ac.1-00 gts. in Sy.No.129/73/B, in the name of
Rama Devi Ac. 1-00 gts. in Sy.No.129/73/C and in the name of
Dr.Sheela Devi Ac.1-00 gts. in Sy.No.129/73/D. As such it is
denied that the entire area was held by Rani Jayanthi Devi. The
defendants are not aware of the purchase of Ac.5-38 Gts. on
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03.09.1964 by Saroja Devi as such denied for want of knowledge.
The plaintiffs have suppressed the fact from the Court that in
between land in Sy.No.129/56 and Sy.No.129/73 of Shaikpet
Village purported to have been purchased by plaintiff No.2 and
Saroja Devi, a portion of land bearing Sy.No.403 of Shaikpet Village
which is classified as Government Paramboke land is situated. It is
totally false to state that the alleged suit land admeasuring Ac.2-10
gts. is part and parcel of land bearing Sy.No.129/56 whereas it is
actually a Government land owned and possessed by the
Government and its Sy.No.403. The plaintiffs themselves in the
year 1976 and 1978 have admitted that a piece of land
admeasuring Ac.2.00 is lying in between Sy.No.129/56 and
Sy.No.129/73 belongs to the Government and in fact requested for
allotment of the said land for extension of studios, at the market
rate. The suit land is part and parcel of Sy.No.403 of Shaikpet
Village which is classified as Government Paramboke land
measuring Ac.2.967-28 gts. As per plaint averments in para 2,
Saroja Devi purchased Ac.5-38 gts. in Sy.No.129/73 and plaintiff
No.2 purchased Ac.2-10 gts. in Sy.No.129/56 i.e., totally
admeasuring Ac.8-08 gts. but whereas as per plaint averments at
para 4, the plaintiff No.1 is in possession of about Ac.7.00 and
plaintiff No.2 is in possession of 3000 Sq.Yds which is retained for
himself i.e., total admeasuring Ac.7-16 gts. 64 Sq.Yds. This shows
as to whether the actual extent of their land is Ac.8-08 gts. or Ac.7-
16 gts. 64 Sq.Yds. The allegation of adverse possession is totally
denied. The plaintiffs with an intention to grab a portion of
valuable Government land bearing Sy.No.403 situated in between
the patta lands of Sy.No.129/56 and Sy.No.129/73, had been
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attempting to encroach upon the Government land and as such
they were prevented from doing so. The ex parte Injunction Orders
obtained by the plaintiffs in O.S.No.61 of 1981 on the file of the
Vacation Civil Judge, City Civil Court, Hyderabad which were
contested and the Court ordered suspension of the ex parte
injunction until further orders with a direction that the plaintiff
should not interfere in the possession of the defendants and the
defendants also should not interfere in the possession of the
plaintiffs. The plaintiffs have failed therein and filed the present
suit for the same relief and as such present suit is bad in law.
Obtaining permission from Municipal Corporation regarding
construction does not convey any right, interest or title to the
plaintiffs. The attempt of unauthorized constructions by the
plaintiffs on the portion of the Government land bearing Sy.No.403
situated in between Sy.No.129/56 and Sy.No.129/73 was
prevented and not on the patta lands of the plaintiffs. The
plaintiffs have applied to the defendant for allotment of suit land
which is a Government land on market value and subsequently
with an intention to grab the Government land represented that
the said land is part of their already purchased land and that these
pleas were not accepted. Letter was issued for production of
documents to examine the genuineness of documents which does
not amount to admission of his claim over the suit land which is a
Government land. In fact in L.Dis.No.F1/12332/78 dated
24.11.1978, the request for allotment was rejected and intimated
to the General Manager of plaintiff no.1. No Notice U/s.80 of C.P.C.
was issued by the plaintiffs. As per Section 14 of the A.P. Land
Encroachment Act, 1905, the Civil Court has no jurisdiction to
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adjudicate the suit of a Government land. Hence, prayed for
dismissal of the suit.
6. The Suit was made over to VI-Additional Judge, City Civil
Court, Hyderabad. The following issues were framed:
i. Whether the plaintiffs are owners and possessors of
the suit land?
ii. Whether the suit land is a Government land and part
of S.No.403 as contended by the defendant
Government?
iii. Whether the suit is not maintainable under law?
iv. Whether the Section 80 CPC notice is not served?
v. Whether the suit is bad for non-joinder of parties/
vi. To what relief?
7. The plaintiffs got examined Pw-1 and 2 and got marked
Exs.A1 to A17. The defendants got examined DW-1 and got marked
Exs.B1 to B6. After trial, the Suit was dismissed by Judgment and
Decree dated 24.09.1982.
8. Aggrieved by the Judgment and Decree in O.S.No.609 of
1981 dated 24.09.1982, the plaintiffs preferred a First Appeal vide
C.C.C.A.No.44 of 1983 before this Court.
9. By Judgment dated 26.06.1995, this Court allowed the
Appeal and the Judgment and Decree dated 24.09.1982 was set
aside and the matter was remanded back to the trial Court for
fresh disposal. While remanding the matter, this Court also framed
the issues to be dealt with.
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10. As per the Judgment of this Court, dated 26.06.1995,
the suit was restored to file and the following issues were framed
by the trial Court for fresh disposal:
i. Whether the plaintiffs proved the identity of the suit
schedule property and also the correctness of the
plaint schedule?
ii. Whether the plaintiffs proved their title to the suit
schedule property?
iii. Whether the plaintiffs proved their possession to the
suit property on the date of the suit?
iv. Whether the suit is bad for mis-joinder or non-joinder
of parties?
v. Whether the suit is not maintainable in law?
vi. To what relief?
11. The plaintiffs got examined PW-1 to PW-5 and got
marked Exs.A1 to A19. The defendants got examined DW-1 and
DW-2 and got marked Exs.B1 to B7.
12. By Judgment and Decree dated 10.11.1998, the trial
Court dismissed the Suit. Hence the present Appeal.
13. The plaintiff No.2 i.e., B.Ranga Swamy preferred the
present First Appeal vide C.C.C.A.No.22 of 1999 under section 96
of C.P.C. He arrayed the plaintiff No.1 as respondent No.3 as the
plaintiff No.1 company was defunct by that time.
14. By Order, dated 15.02.1999 in C.M.P.No.3033 of 1999,
an Interim Injunction was granted in favour of the
appellant/plaintiff No.2 and against the respondent No.1 and
2/defendant No.1 and 2/Government from interfering with the
appellant's possession. The said interim Orders are subsisting as
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on date and no Counter or Vacate stay application has been filed
by the respondents/Government.
15. Pending Appeal, two Interlocutory Applications vide
C.P.M.Nos.17530 and 17531 of 2000 were filed to implead
Sri.A.R.K.Raju (now respondent No.4) and to direct him not to
make any further constructions over a portion of the suit schedule
land. The defendants/Government, during the pendency of the
earlier first appeal and stay being operative, allotted, 298 Sq.Yards
which forms part of the suit schedule property to the respondent
No.4. He claims that when he was prevented from making
construction, he filed O.S.No.4403 of 1999 seeking permanent
injunction against the appellant No.1/plaintiff No.2 herein and
others and obtained Interim Injunction in I.A.No.796 of 1999 on
24.01.2000. Against the said orders dated 24.01.2000, the
appellant No.1/plaintiff No.2 filed C.M.A.No.145 of 2000 which was
also dismissed by order dated 30.06.2000. Thereafter, the
appellant No.1/plaintiff No.2 preferred C.R.P.No.3432 of 2000
before this Court against the order dated 30.06.2000 which was
also dismissed by order dated 27.09.2000 but it was observed by
this Court that the appellant No.1/plaintiff No.2 herein can pursue
the present Appeal i.e., C.C.C.A.No.22 of 1999 as an application
seeking impleadment of one A.R.K. Raju, which was already
pending as on that date in the Appeal. It was also clarified that the
said A.R.K. Raju cannot take benefit on any constructions made if
any, in the event he loses his claim. By a common order dated
13.10.2000, the implead application was allowed thereby
impleading the said A.R.K.Raju as respondent No.4 in the present
Appeal.
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16. By Order dated 23.10.2008 in C.M.P.No.659 of 2008,
the legal heirs of appellant No.1/plaintiff No.2 were brought on
record as appellant Nos.2 to 9 as the sole appellant died on
17.04.2008.
17. The respondent Nos.1 and 2/Government filed an
Interlocutory Application to expedite the hearing of the present
Appeal which was allowed by Orders dated 23.06.2012.
18. Two daughters and the two sons of eldest daughter, of
appellant No.1/plaintiff No.2, filed an Interlocutory application to
implead them as appellant Nos.10 to 13, since the wife of appellant
No.1 i.e., appellant No.2 died on 27.04.2014 and as legal heirs,
they have substantial right in the suit schedule property. No
Counter was filed and the said application was not opposed as
such C.C.C.A.M.P.No.452 of 2017 was allowed vide separate
orders, thereby impleading the petitioners as appellant Nos.10 to
13.
19. The appellants filed an Interlocutory Application vide
I.A.No.1 of 2021 in the present appeal to permit them to amend the
cause-title in respect of respondent No.1/defendant No.1 as 'The
State of Telangana' instead of 'The State of Andhra Pradesh', in
view of the fact that the erstwhile combined State of Andhra
Pradesh has been bifurcated into the State of Andhra Pradesh and
State of Telangana and the subject property falls within the State
of Telangana. Even the learned Advocate General appearing on
behalf of respondent No.1 and 2/defendants did not object for
allowing the said application and as such this I.A. is allowed vide
separate Orders.
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20. On hearing both sides and perusing the record, the
points that arise for consideration in this appeal are:
i. Whether the appellants/plaintiffs made out and
established a clear case for granting declaration of title
including identity and Possession in respect of the suit
schedule property?
ii. Whether there are any grounds to interfere with the
impugned judgment of the trial Court?
21. The trial Court first dealt with the Issue No.5 as
recasted therein, regarding maintainability of suit and held that
the suit is maintainable. Then the trial Court dealt with Issue No.4
as to whether the suit is bad for mis-joinder or non-joinder of
parties i.e., Saroja Devi and answered this issue also in favour of
the Plaintiffs. The trial Court thereafter took up Issue Nos.1 and 2
together regarding the plaintiffs proving their title and identity of
the suit schedule property. Though a finding was given by the
Court below that the Second plaintiff is the owner of the land in
Sy.No.129/56 by virtue of the undisputed Sale deeds marked as
Exs.A3 to A6, while concluding these issues, it held that the
plaintiffs failed to prove the identity or the correctness of the plaint
schedule property and as such the plaintiffs failed to prove their
title to the suit schedule property. The trial Court based its
findings on the identity of the property merely relying upon Exs.B2,
B4 and B5. The trial Court then dealt with Issue No.3 regarding
possession and held that the plaintiffs failed to prove their
possession over the suit schedule property much less on the date
of Institution of the suit merely as they failed to establish the
identity, correctness of the suit schedule and their title. By
observing so, the trial Court held that as the suit land is proved to
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be the Government land lying in between two survey numbers
129/73 and 129/56, the case of the plaintiffs that they are in
possession cannot be accepted and liable to be brushed aside.
22. On careful examination of the Judgment of the trial
Court as observed above, it is crystal clear that the trial Court
based its findings and reasoning merely upon the Exs.B2, B4 and
B5 produced by the Government/defendants which are sketch
plan of initial survey map, extract of Town Survey as well as Town
Survey Register prepared by the officials of the Government
admittedly after institution of the suit. Much reliance was placed
only on these documents to disbelieve the case of the plaintiffs.
23. Before going into the correctness and legality of the
findings of the trial Court in respect of Exs.B2, B4 and B5, this
Court will first deal with the case of the Plaintiffs since it is settled
law that the burden of proof lies upon the Plaintiff in a suit for
declaration of title and possession. In the matter of Union of India
Vs. Vasavi Cooperative Housing Society Limited and others1,
the Apex Court held as under:
"15. It is trite law that, in a suit for declaration of
title, the burden always lies on the plaintiff to
make out and establish a clear case for granting
such a declaration and the weakness, if any, of
the case set up by the defendants would not be a
ground to grant relief to the plaintiff.
17. At the outset, let us examine the legal position with
regard to whom the burden of proof lies in a suit for
declaration of title and possession. This Court in Moran
Mar Basselios Catholicos v. Thukalan Paulo Avira [AIR
1959 SC 31] observed that: (AIR p. 37, para 20)
1
(2014) 2 SCC 269
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"20. ... in a suit [for declaration] if the plaintiffs are to
succeed they must do so on the strength of their own
title."
18. In Nagar Palika, Jind v. Jagat Singh [(1995) 3 SCC
426] this Court held as under: (SCC p. 427c)
"The onus to prove title to the property in question was
on the plaintiff-respondent. ... In a suit for ejectment
based on title it was incumbent on the part of the court
of appeal first to record a finding on the claim of title to
the suit land made on behalf of the plaintiff. The court
is bound to enquire or investigate that question first
before going into any other question that may arise in a
suit."
19. The legal position, therefore, is clear that the
plaintiff in a suit for declaration of title and
possession could succeed only on the strength of
its own title and that could be done only by
adducing sufficient evidence to discharge the
onus on it, irrespective of the question whether
the defendants have proved their case or not. We
are of the view that even if the title set up by the
defendants is found against (sic them), in the absence
of establishment of the plaintiff's own title, the plaintiff
must be non-suited." (emphasis supplied)
24. The case of the Plaintiffs is that the Plaintiff No.2 is the
owner of the Suit Schedule Property i.e., land admeasuring Ac.2-10
gts. forming part of Survey No.129/56 having purchased the same
through the Registered Sale Deed Ex.A3 and that the suit schedule
property is adjoining to the land admeasuring Ac.5-38 gts. in
Sy.No.129/73 purchased by his brother's wife i.e., B.Saroja Devi
who is also one of the partners in Plaintiff No.1 firm. That both
these properties were purchased on the same day i.e., on
03.09.1964.
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25. To prove the ownership, title and identity, the relevant
evidence placed by the Plaintiffs on record is the oral evidence of
PW.1, PW.4 and PW.5 and Exs.A1 to A11 and A19. Plaintiff No.2
examined himself as P.W.1. To substantiate his contention that he
is the owner of the Suit Schedule Property, he got marked Ex.A3
which is a Registered Sale Deed Document No.1640 of 1964 in
Book I dated 03.09.1964. The said document discloses that the
Plaintiff No.2 purchased Ac.2-10 gts. in Sy.No.129/56 from the
heirs of late Raja Dharam Karan. The boundaries as per the said
Document are:
North : Land and Bungalow of Begum Mehdi Yar Jung
South : Road No.14
East : Vendor's land agreed to be sold to B. Ballaiah
West : Land of Vendor No.6, Sy.No.129/73, agreed to be
sold to B.Saroja Devi
These boundaries tally the boundaries of the Suit Schedule
property as mentioned in the plaint. To further substantiate the
said transaction, the Plaintiffs got examined PW-4 who was one of
the attestor of the Sale Deed. As per the evidence of Pw-4, he has
attested Ex.A3 which bears his signatures. To further substantiate,
the Plaintiffs also got examined PW-5 who was Vendor No.5 in
Ex.A3. He deposed that he along with his family sold the suit land
to the Plaintiff No.2 and they delivered the possession of the said
land to the Plaintiff No.2 as per the boundaries under Ex.A3.
26. To strengthen the case of the Plaintiffs, they got
marked Ex. A1 which is the Sale Deed of the Vendors of Plaintiff
No.2 in respect of Ac. 8-12 gts. (Ac. 3-12 gts.) in Sy.No.129/56 of
Thathi Khana, originally situated within the boundaries of
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Shaikpet Village, now within the limits of Municipal Corporation,
Hyderabad, wherein Raja Dharam Karan had purchased the said
extent from the Original Owner Syed Riaz Ahmed through the
Registered Sale Deed Document No.1525 of pages 114, 115 of Book
No.1 Volume V dated 27th Ardibehisht, 1355 Fasli corresponding to
27.03.1945. The said Ex.A1 is in Urdu language and its translated
copy is marked as Ex.A2.
27. The defendants/Government admits that Syed Riaz
Ahmed was the Owner of land in Sy.No.129/56. In fact, the
defendants/Government also got marked the very same document
as Ex.B6 and its translation copy as Ex.B7 through DW-1 who got
it marked but did not state as to why it was being marked or not
pleaded anything regarding the same. Even before this Court, in
the written submissions, the Respondents/Defendants admitted
that the said Syed Riaz Ahmed was the original owner of Ac.8-12
gts. in Sy.No.129/56.
28. To further substantiate their case, the plaintiffs got
marked Ex.A5 which is the Registered Sale Deed Document
No.1642 of 1964 dated 03.09.1964 in respect of adjoining land i.e.,
Ac. 5-38 gts. in Sy.No.129/73. As per the Schedule of this Sale
Deed, the eastern boundary is shown as land of B.Ranga Swamy
i.e., the original appellant No.1/plaintiff No.2.
29. With regard to the findings rendered by the trial Court
in respect of Ownership is concerned, the relevant paragraphs are
21 to 25. The trial Court, by appreciating the oral and
documentary evidence, came to the conclusion that the plaintiff
No.2 is the Owner of land in Sy.No.129/56 and his sister-in-law
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i.e.,B.Saroja Devi (one of the Partner in Bhagyanagar Studio) is the
owner of land in Sy.No.129/73. The relevant portion is extracted
herewith:
"25.The evidence of Pw-1, the second plaintiff, Pw-4 one of the
attestor, Pw-5 one of the executant of Ex. A-3 sale deed that
the lands in sy. no.129/56 and 129/73 are private Patta
lands is neither disputed nor challenged by the defendants, as
can be seen from the cross examination. The defendants also
neither disputed nor challenged the evidence of above
witnesses about the sales effected under the original of Ex. A-
1 to A-6. Ex.A-8 is retirement deed dt. 12-9-1990 and Ex. A-9
is memorandum of understanding dt.12-9-1990. The above
documents are also not in dispute. Under Ex.A-8 and A-9, the
second plaintiff became again owner of the land in
sy.no.129/56 purchased under Ex. A-3. The above
undisputed and un-challenged evidence of Pw-1, 4 and 5
coupled with recitals of Exs.A1 to A-6 which are not in
dispute, would go to show that the first plaintiff is
owner of the land in sy.no.129/73 and the second
plaintiff is owner of the land in sy.no.129/56 by virtue
of the undisputed sale deeds marked as Ex.A-3 to A-6."
... emphasis supplied
30. After conclusion of the arguments on behalf of the
appellants in the present appeal, respondent No.1 and
2/defendants filed an Interlocutory Application vide I.A.No.2 of
2021 under Order 41 Rule 27 of C.P.C. seeking to receive
additional evidence. A counter-Affidavit was filed by the appellants
and they vehemently opposed the application as misconceived and
having been filed with ulterior motive, that apart they stated that
the documents sought to be introduced, if received, would neither
weaken the case of the appellants/plaintiffs nor strengthen the
case set up by the defendants/respondents. The Appellants and
the Respondents, relied upon several judgments of the Hon'ble
18 GSD, J
ccca_22_1999
Supreme Court of India on this aspect as to what is the principle
laid down by the Hon'ble Supreme Court while considering an
application Under Order 41 Rule 27 of C.P.C. Before proceeding to
look into the documents being sought by the respondents to be
received as evidence, I shall examine the law laid down by the
Hon'ble Supreme Court of India in this regard:
31. In Adil Jamshed Frenchman (Dead) by Lrs Vs.
Sardar Dastur Schools Trust & Others2 the Apex Court held as
under:-
"9. It cannot be denied that the documents sought to be
produced by the tenants are material and if substantiated,
would have a material effect on the case of the landlords of
their bona fide need of the suit premises. If, in fact, the
landlord has entered into negotiations with M/s. Godrej &
Boyce Co. Ltd. for selling or use by them of the property, the
need cannot be said to be genuine. Similarly, a change in the
construction plan may show that the alleged need of the
landlord for the construction may not be genuine. The third
document proposes to demolish the case of availability of the
funds for construction with the landlord. Two of the
documents came into existence after the passing of the
decree by the trial Court . Similarly, the correspondence
entered into by the landlord with a third party could not have
been within the knowledge of the tenant and therefore, the
tenants statement that the documents could not have been
produced before the trial Court , in spite of the exercise
of due diligence, was highly probable. In such
circumstances, the High Court was not justified in interfering
with the discretion exercised by the first appellate court
permitting additional evidence. "
.. emphasis supplied
2
(2005) 2 SCC 476
19 GSD, J
ccca_22_1999
32. In Wadi Vs. Amilal & Others3 the Apex Court
held as under:
"5. Now it is clear that Rule 27 deals with production of
additional evidence in the appellate court. The general
principle incorporated in Sub-rule (1) is that the parties to an
appeal are not entitled to produce additional evidence
(oral or documentary) in the appellate court to cure a
lacuna or fill up a gap in a case. The exceptions to that
principle are enumerated thereunder in Clauses (a). (aa) and
(b). We are concerned here with Clause (b) which is an
enabling provision. It says that if the appellate court requires
any document to be produced or any witness to be examined
to enable it to pronounce judgment, it may allow such
document to be produced or witness to be examined. The
requirement or need is that of the appellate court
bearing in mind that the interest of justice is
paramount. If it feels that pronouncing a judgment in
the absence of such evidence would result in a defective
decision and to pronounce an effective judgment
admission of such evidence is necessary, Clause (b)
enables it to adopt that course. Invocation of Clause (b)
does not depend upon the vigilance or negligence of the parties
for it is not meant for them. It is for the appellant to resort to it
when on a consideration of material on record it feels that
admission of additional evidence is necessary to pronounce a
satisfactory judgment in the case.
...emphasis supplied
33. In K.R. Mohan Reddy v. Net Work Inc.4 the Apex
Court held as under:-
"15. The High Court, in our opinion, failed to apply the
provisions of Order 41 Rule 27 CPC in its correct perspective.
Clauses (a), (aa) and (b) of sub-rule (1) of Rule 27 of Order 41
refer to three different situations. Power of the appellate court
to pass any order thereunder is limited. For exercising its
3
(2015) 1 SCC 677
4
(2007) 14 SCC 257
20 GSD, J
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jurisdiction thereunder, the appellate court must arrive
at a finding that one or the other conditions
enumerated thereunder is satisfied. A good reason must
also be shown as to why the evidence was not produced
in the trial Court ."
...emphasis supplied
34. In Shivajirao Nilangekar Patil v. Mahesh Madhav
Gosavi5 the Apex Court held as under:-
"27. The additional evidence as we have mentioned
hereinbefore consist of certain report in India Today and
certain other magazines and certain affidavits. The basic
principle of admission of additional evidence is that the
person seeking the admission of additional evidence
should be able to establish that with the best efforts
such additional evidence could not have been adduced
at the first instance. Secondly the party affected by the
admission of additional evidence should have an
opportunity to rebut such additional evidence. Thirdly,
that additional evidence was relevant for the
determination of the issue."
...emphasis supplied
35. The following is the most recent observation being
passed by a Full Bench of the Hon'ble Supreme Court in the
matter of H.S. Goutham Vs. Rama Murthy and Anr. Etc.6
"27. Even otherwise, it is required to be noted that as per the
provisions of Order XLI, the appellate court may permit
additional evidence to be produced whether oral or
documentary, if the conditions mentioned in Order XLI
Rule 27 are satisfied after the additional evidence is
permitted to be produced in exercise of powers under
Order XLI Rule 27. Thereafter, the procedure under Order
XLI Rules 28 and 29 is required to be followed. Therefore,
unless and until the procedure under Order XLI Rules 27, 28
5
(1987) 1 SCC 227
6
2021 SCC OnLine SC 87
21 GSD, J
ccca_22_1999
and 29 are followed, the parties to the appeal cannot be
permitted to lead additional evidence and/or the appellate
court is not justified to direct the court from whose decree the
appeal is preferred or any other subordinate court, to take
such evidence and to send it when taken to the Appellate
Court. From the material produced on record, it appears that
the said procedure has not been followed by the High Court
while calling for the report from the learned Principal City Civil
Judge."
...emphasis supplied
36. In view of the above judgments and the principles laid
down by the Hon'ble Supreme Court of India, it can be safely
construed that while dealing with an application under Order 41
Rule 27, the following conditions needs to be taken into
consideration:
i. The documents could not have been produced before the
Trial Court in spite of the exercise of due diligence and best
efforts;
ii. The documents were not within the knowledge of the
applicant;
iii. Parties to the Appeal are not entitled to adduce additional
evidence to cure a lacuna or fill up a gap in the case;
iv. The interest of justice is paramount;
37. The respondent No.1 and 2/defendants failed to show
that in spite of the exercise of due diligence and their best efforts,
the documents could not be produced before the trial Court. In this
regard, the affidavit filed in support of this application is to be
examined. The Deponent of the affidavit is one Tahsildar of
Shaikpet Tahsil. He is neither the representative of the respondent
No.1/defendant No.1, post or pre amendment of cause-title, nor is
22 GSD, J
ccca_22_1999
he the respondent No.2/defendant No.2. The respondent No.1,
State is being represented by the Revenue Secretary, pre-
amendment to the cause-title and after amendment is being
represented by the Principal Secretary, Revenue Department. The
respondent No.2/defendant No.2 is the Collector, Hyderabad
District. The deponent says that he is authorized to depose on their
behalf without filing any such authorization. This discussion is
relevant as the deponent says that these documents which are
sought to be produced as additional evidence were brought to his
knowledge only at the time of preparing final submissions in the
above appeal and the documents have been discovered recently.
On these aspects itself, the application to receive additional
documents as evidence, deserves to be dismissed.
38. The Stand of the defendants before the trial Court was
different. The pleadings in this aspect, in the Written Statement of
the defendants is as under:
"The Sy.No.129/56 still stands patta in the name of
one Sri Riaz Ahmed and the Defendants have no
knowledge whether Raja Dharam Karan had
purchased it. The Defendants have no knowledge if
there are any records to show the purchase of portion of
the said land admeasuring Ac.2-10 gts. By the Plaintiff
No.2 from the heirs of late Raja Dharam Karan."
39. Even during the evidence, the defendants did not
dispute regarding the registered sale deed of the plaintiff No.2 nor
contended the Sale Deed to be fraudulent or fabricated as being
averred for the first time in the written submissions filed by the
Advocate General on behalf of the respondent No.1 and
2/defendant No.1 and 2 (not signed by the parties). A complete
23 GSD, J
ccca_22_1999
change of case set up by the respondents/defendants was
attempted before this Court.
40. By way of the above application, the respondents/
defendants produced three registered sale deeds and some
regularization applications. It is contended by the Advocate
General that the total extent of land i.e., Ac.8-12 gts. in
Sy.No.129/56 held by Raja Dharam Karan and his LRs was
already sold to third parties by virtue of these three sale deeds and,
Secondly, there is a specific and categorical admission of title and
ownership of the Government over the suit land by virtue of the
regularization applications filed by some of the appellants under
G.O.Ms.No.166 dated 16.02.2008 pertaining to land in suit
schedule property.
41. This Court will now examine, whether the documents
being sought to be received as additional evidence, have any
bearing upon the case in any manner. Each document shall be
dealt as under:
i. A registered Sale Deed bearing No. 1874 of 1956 dated
23.08.1956 is filed. As per the contents of this document,
the Sale Deed was executed by one Sole Vendor Raja Ram
Karan, Son of Late Raja Dharam Karan in favour of Miss
Merry Nundi to the extent of Ac.2-16 gts in Sy.No.129/56.
ii. Another Registered Sale Deed bearing No. 3195 of
1961 dated 25.11.1961 is filed. As per the contents of this
document, it was executed by Mrs. Dora Cottle in favour
of Vazir Sultan Tobacco Company Limited to the extent of
Ac.3-16gts in Sy.No.129/56.
iii. Another Registered Sale Deed bearing No. 1641 of
1964 dated 03.09.1964 is filed. As per the contents of this
document, it is executed by the Legal Heirs of Raja
24 GSD, J
ccca_22_1999
Dharam Karan in favour of one B.Ramaswamy to the
extent of Ac.2-10 gts. in Sy.No.129/56.
iv. Some Regularization applications filed by the
Appellants who are the Lrs of the Appellant No.1/Plaintiff
No.2, under G.O.Ms.166 are filed by which they sought
regularization of the suit schedule property in their favour
invoking the scheme introduced by the Government.
42. By producing these three sale deeds, the
respondents/defendants now contend that the total extent of land
in Sy.No.129/56 i.e., Ac.8-12 gts. which was held by Raja Dharam
Karan and his LRs having purchased from Syed Riaz Ahmed, was
already sold to third parties mentioned in these three Sale Deeds
and as such the land could not be again sold to the appellant
No.1/plaintiff No.2 beyond what was available and the plaintiffs
fraudulently did not produce these documents during the trial.
Prima facie, if this is true, then the defendants being the State
Government, under whose custody these documents remain, what
precluded the defendants from producing it before the trial Court
is not answered.
43. According to the learned Counsel for the appellants,
these three sale deeds itself will not support the new plea of the
respondents and on the other hand it would support the case of
the plaintiffs. He submits that appellants have claimed absolute
ownership and possession over suit schedule property by virtue of
the Registered Sale Deed bearing No.1640 dated 03.09.1964, which
was marked as Ex.A3 and its schedule as Ex.A4. On perusal of the
boundaries of the Schedule property mentioned in both the Sale
Deeds i.e., Doct.No. 1640/1964 (A3) and Doct.No. 1641/1964
(produced in additional evidence), it can be seen that the lands in
25 GSD, J
ccca_22_1999
both the sale deeds are not same but different and are in fact
abutting each other. In Doct.No. 1640/1964: Schedule boundary
on the Eastern Side is mentioned as "Vendor's Land agreed to be
sold to B.Balaiah" and in Doct.No. 1641/1964: Schedule boundary
on the Western side is mentioned as "Vendor's land sold to
B.Rangaswamy", therefore, on the basis of this Sale Deed -
Document No. 1641 sought to be brought on record and relied
upon by the respondents/defendants, proves the case of the
appellants that the LRs of Late Raja Dharam Karan had sold land
in Sy.No. 129/56 to Late B.Rangaswamy (ancestor of
appellants/plaintiffs). That apart, one of the Vendors of the
plaintiff No.2 was examined as PW-5 and these averments/new
pleas were not suggested even to PW-5.
44. The second Sale Deed document No.1874 of 1956
dated 23.08.1956 in favour of Merry Nundi is in respect of Ac.2-16
gts. in Sy.No.129/56. The Sale deed of B.Balaiah shows that in its
eastern boundary, there is land of Miss Nandi and not Dorra Cottil.
45. Coming to the Sale Deed bearing No. 3195/1961,
purported to be executed by Mrs.Dora Cottil in favour of Vazir
Sultan Tobacco company limited to the extent of Ac.3-16gts, if
perused, the recitals do not show that the said Mrs.Dora Cottil had
purchased the property either from Riaz Ahmed or Raja Dharam
Karan or LRs of Dharam Karan. The connection of this Sale Deed
with that of the owners of the entire extent in Sy.No.129/56 is not
explained nor could be traced out by perusing the recitals. There is
no explanation coming forth in the Interlocutory Application in this
regard. Interestingly, the Written Submissions filed by the learned
Advocate General, itself establishes that even the respondents are
26 GSD, J
ccca_22_1999
not certain about this sale deed. The relevant portion is extracted
below:
"21. The middle portion of the land in Survey No.129/56 was
acquired by Mrs.Dorra Cottil but despite the sincere efforts,
the Defendant No.1 and 2/Respondent 1 and 2 herein
could not trace the link documents as to whether the
very legal heirs of late Raja Dharam Karan have
conveyed the middle portion measuring Ac. 3-16 gts. .
23............ clingchingly prove the fraud played by the
Plaintiffs as the land purchased by Mrs.Dorra Cottil highly
probablise that the same must have been acquired by the
legal heirs of late Raja Dharam Karan."
46. In so far as the Regularization Applications are
concerned, the appellants do not dispute submission of the said
applications but they submitted that it was made in a hope to put
quietus to the litigation. This Court do not agree with the
submissions of the learned Advocate General that the filing of
Regularization applications itself goes to show that the appellants
admitted the title of the Government. In fact, the said applications
were subject matter of writ petition and Writ Appeal before this
Court. Though the applications were being processed and at final
stage, the proceedings were not being issued as such a
W.P.No.18460 of 2010 was filed before this Court and a detailed
Order was passed on 15.04.2011. It is not out of place to mention
that there is a finding that these applications were made without
prejudice to their rights in CCCA No.22 of 1999 and condition was
stipulated to withdraw the present appeal if lands are regularized.
The Government/respondents also preferred a Writ Appeal which
was dismissed by Order dated 23.07.2014 in W.A.No.117 of 2012.
Subsequently this G.O.Ms.No.166 itself was withdrawn by the
27 GSD, J
ccca_22_1999
Government. The appellants contended that as the
appellants/plaintiffs, as a family, decided to pursue the current
appeal on merits, they did not pursue the Regularization
proceedings. Therefore, mere filing of regularization applications
during the pendency of the current appeal, which were done only
to bring quietus to the litigation, by some of the
appellants/plaintiffs does not amount to admission of the right of
the Government over the suit schedule property, especially when
there is nothing on record placed by the respondents/defendant
No.1 and 2 to show their alleged ownership. Further, a perusal of
these three Sale Deeds along with the boundaries as mentioned in
Ex.A3 concerning the Suit Schedule Property, the following is
established:
i. The boundaries of Ex.A3, Sale Deed of Balaiah
and Sale Deed of Merry Nandi shows that these
lands are abutting each other;
ii. There is no mention of Nala or Government Land
towards the western side in the Sale Deed of
B.Balaiah as claimed by the respondents/
defendants and in fact the boundaries show the
existence of the suit schedule property belonging to
the deceased appellant No.1/plaintiff No.2. These
three Sale deeds do not support the new plea taken
in the appeal by the respondent No.1 and 2 rather
corroborates with the case put forth by the
appellants/plaintiffs. The allegation of fraud and
fabrication of the Sale Deed of the plaintiff was
never pleaded before the trial Court nor in the
affidavit filed in support of the additional evidence
application except merely making a mention in the
written submissions filed by the learned Advocate
General.
28 GSD, J
ccca_22_1999
47. In the pleadings before the trial Court, the
respondents/defendants pleaded no knowledge about the Sale
Deeds of the plaintiff No.2 in respect of the Suit Schedule property
as well as his Vendors and now they sought these documents to be
received which are much prior to the date of the suit itself and not
even subsequent to the judgment. The respondent No.1 and
2/defendants being the State, the said documents were in their
custody all the while. No explanation is forthcoming as to what
precluded them to produce these sale deeds before the trial Court
or for 20 years when the present appeal was pending. In the facts
and circumstances, it can be concluded that the case of the
respondents/defendants was never with regard to the Sale Deeds
but they only relied upon the Town Survey records to dispute the
claim of the plaintiffs and interestingly the learned Advocate
General during the course of arguments has abandoned the claim
of Town Survey. Nothing was argued nor mentioned in written
submissions in respect of their exhibits in respect of the Town
Survey and Initial Survey and this will be dealt separately in the
later part of this judgment.
48. The learned Counsel for the appellants also contended
that the plea taken by the respondents/defendants for the first
time in the appellate stage cannot be taken without a pleading to
this effect. He relied upon the judgments of the Hon'ble Supreme
Court of India.
49. In Trojan & Co. v. Rm. N.N. Nagappa Chettiar7, the
Apex Court observed as under:
7
1953 SCR 789
29 GSD, J
ccca_22_1999
"22. The second question canvassed before the High Court
and also before us was in respect of the Associated Cement
shares. As above-stated, the plaintiff's account was credited
in the sum of Rs 6,762/8 on account of the purchase of these
shares. Plaintiff had pleaded that the transaction was not
authorised by him and that it had been made in contravention
of his instructions. He had claimed compensation on the
ground of breach of instructions, he did not in the alternative
claim on the ground of failure of consideration the amount
credited by the defendants in the promissory note account and
which credit disappeared by reason of the failure of the suit
on the promissory note. At the hearing of the case before Bell,
J. the contention that the purchase was unauthorised was
abandoned by counsel and the same position was adopted
before Clark, J. During cross-examination of the plaintiff, it
was elicited that he either instructed the defendants to
purchase the shares or at any rate ratified the purchase which
the defendants had made on his behalf. It was argued before
the Appellate Bench of the High Court that having pleaded one
thing and having led evidence in support of that thing but later
on having been forced to admit in the witness box that the true
state of things was different the plaintiff had disentitled
himself to relief as regards these shares and he could not be
granted the relief that he had not asked for. The High Court
negatived this contention on the ground that though a claim for
damages in respect of a particular transaction may fail, that
circumstance was no bar to the making of a direction that the
defendants should pay the plaintiff the money actually due in
respect of that particular transaction. It also held that the
plaintiff's claim in respect of this item of Rs 6762/8 was
within limitation. We are unable to uphold the view taken by
the High Court on this point. It is well settled that the
decision of a case cannot be based on grounds outside
the pleadings of the parties and it is the case pleaded
that has to be found.Without an amendment of the plaint
the court was not entitled to grant the relief not asked for and
no prayer was ever made to amend the plaint so as to
incorporate in it an alternative case. The allegations on which
the plaintiff claimed relief in respect of these shares are clear
and emphatic. There was no suggestion made in the plaint or
even when its amendment was sought at one stage that the
30 GSD, J
ccca_22_1999
plaintiff in the alternative was entitled to this amount on the
ground of failure of consideration. That being so, we see no
valid grounds for entertaining the plaintiff's claim as based on
failure of consideration on the case pleaded by him. In
disagreement with the courts below we hold that the plaintiff
was wrongly granted a decree for the sum of Rs 6762/8 in
respect of the Associated Cement shares in this suit. Accounts
settled could only be reopened on proper allegations."
...emphasis supplied
50. In Ram Sarup Gupta v. Bishun Narain Inter
College8 the Apex Court held as under:-
"6. The question which falls for consideration is
whether the respondents in their written statement
have raised the necessary pleading that the licence
was irrevocable as contemplated by Section 60(b) of the
Act and, if so, is there any evidence on record to
support that plea. It is well settled that in the
absence of pleading, evidence, if any, produced by
the parties cannot be considered. It is also
equally settled that no party should be permitted
to travel beyond its pleading and that all
necessary and material facts should be pleaded
by the party in support of the case set up by it.
The object and purpose of pleading is to enable
the adversary party to know the case it has to
meet. In order to have a fair trialit is imperative
that the party should settle the essential material
facts so that other party may not be taken by
surprise. The pleadings however should receive a
liberal construction; no pedantic approach should be
adopted to defeat justice on hair-splitting technicalities.
Sometimes, pleadings are expressed in words which
may not expressly make out a case in accordance with
strict interpretation of law. In such a case it is the duty
of the court to ascertain the substance of the pleadings
to determine the question. It is not desirable to place
8
(1987) 2 SCC 555
31 GSD, J
ccca_22_1999
undue emphasis on form, instead the substance of the
pleadings should be considered. Whenever the question
about lack of pleading is raised the enquiry should not
be so much about the form of the pleadings; instead the
court must find out whether in substance the parties
knew the case and the issues upon which they went to
trial. Once it is found that in spite of deficiency in the
pleadings parties knew the case and they proceeded to
trial on those issues by producing evidence in that
event it would not be open to a party to raise the
question of absence of pleadings in appeal. In
Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735 :
(1966) 2 SCR 286, 291] a Constitution Bench of this
Court considering this question observed:
"If a plea is not specifically made and yet it is covered
by an issue by implication, and the parties knew that
the said plea was involved in the trial, then the mere
fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from
relying upon it if it is satisfactorily proved by evidence.
The general rule no doubt is that the relief should be
founded on pleadings made by the parties. But where
the substantial matters relating to the title of both
parties to the suit are touched, though indirectly or even
obscurely in the issues, and evidence has been led
about them, then the argument that a particular matter
was not expressly taken in the pleadings would be
purely formal and technical and cannot succeed in
every case. What the court has to consider in dealing
with such an objection is: did the parties know that the
matter in question was involved in the trial, and did
they lead evidence about it? If it appears that the
parties did not know that the matter was in issue at the
trialand one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly would be a
different matter. To allow one party to rely upon a
matter in respect of which the other party did not lead
evidence and has had no opportunity to lead evidence,
would introduce considerations of prejudice, and in
32 GSD, J
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doing justice to one party, the court cannot do injustice
to another."
...emphasis supplied
51. The learned Counsel for the Appellants further
contended that, though these documents sought to be brought on
record as additional evidence, it will not harm the case of the
appellants/plaintiffs, still, no amount of proof can substitute
pleadings which are the foundation of the claim of a litigating
party. He relied upon the following judgments to substantiate his
contention:
52. In Kashi Nath v. Jaganath9 the Apex Court held as
under:-
"17. From the judgments of the trial Court , first
appellate court and the High Court it is clear that there
was no consistency so far as the claim regarding the
adoption is concerned, particularly as to who and at
what point of time it was made. The High Court has
taken great pains to extract the relevant variations to
indicate as to how it cut at the very root of the plaintiff's
claim. As noted by the Privy Council in Siddik Mohd.
Shah v. Saran [AIR 1930 PC 57 (1)] and Trojan and Co. v.
Rm. N.N. Nagappa Chetiar [AIR 1953 SC 235] when the
evidence is not in line with the pleadings and is at
variance with it and as in this case, in virtual self-
contradiction, adverse inference has to be drawn
and the evidence cannot be looked into or relied
upon. Additionally, as rightly submitted, the conclusion
whether there was adoption is essentially one of fact
merely depending upon pure appreciation of the evidence
on record. This position has been stated in several
decisions of this Court e.g. Rajendra Kumar v. Kalyan
[(2000) 8 SCC 99] and Raushan Devi v. Ramji Sah
[(2002) 10 SCC 205]. Consequently, no exception could
be taken to the well-merited findings concurrently
9
(2003) 8 SCC 740
33 GSD, J
ccca_22_1999
recorded by the courts below, with which the High Court
also rightly declined to interfere on the facts and
circumstances of this case."
...emphasis supplied
53. In Abubakar Abdul Inamdar v. Harun Abdul
Inamdar10 the Apex Court held as under:-
"5. With regard to the plea of adverse possession, the
appellant having been successful in the two courts below and
not in the High Court, one has to turn to the pleadings of the
appellant in his written statement. There he has pleaded a
duration of his having remained in exclusive possession of the
house, but nowhere has he pleaded a single overt act on the
basis of which it could be inferred or ascertained that from a
particular point of time his possession became hostile and
notorious to the complete exclusion of other heirs, and his
being in possession openly and hostilely. It is true that
some evidence, basically of Municipal register entries,
were inducted to prove the point but no amount of proof
can substitute pleadings which are the foundation of
the claim of a litigating party. The High Court caught the
appellant right at that point and drawing inference from the
evidence produced on record, concluded that correct principles
relating to the plea of adverse possession were not applied by
the courts below. The finding, as it appears to us, was rightly
reversed by the High Court requiring no interference at our
end."
...emphasis supplied
54. In Bondar Singh v. Nihal Singh11 the Apex Court
held as under:-
"7. As regards the plea of sub-tenancy (shikmi) argued on
behalf of the defendants by their learned counsel, first we
may note that this plea was never taken in the written
statement the way it has been put forth now. The written
statement is totally vague and lacking in material particulars
10
(1995) 5 SCC 612
11
(2003) 4 SCC 161
34 GSD, J
ccca_22_1999
on this aspect. There is nothing to support this plea except
some alleged revenue entries. It is settled law that in the
absence of a plea no amount of evidence led in relation
thereto can be looked into. Therefore, in the absence of a
clear plea regarding sub-tenancy (shikmi), the defendants
cannot be allowed to build up a case of sub-tenancy (shikmi).
Had the defendants taken such a plea it would have found
place as an issue in the suit. We have perused the issues
framed in the suit. There is no issue on the point."
...emphasis supplied
55. In Vinod Kumar Arora v. Surjit Kaur12 reported in,
it was held by the Hon'ble Supreme Court that:
"11. However, when the appellant entered the witness
box, he gave up the case set out in the written
statement and propounded a different case that the hall
had been taken on lease only for non-residential
purposes. The perceptible manner in which the
appellant had shifted his defence has escaped the
notice and consideration of the statutory authorities.
Both the authorities have failed to bear in mind
that the pleadings of the parties form the
foundation of their case and it is not open to
them to give up the case set out in the pleadings
and propound a new and different case..."
...emphasis supplied
56. Even otherwise, as seen above, these documents are of
no relevancy or support the case set up by the
respondents/defendants at the appellate stage which was not
pleaded before the trial Court and even if received in additional
evidence, it would not in any way effect the case of the
appellants/plaintiffs. There are no sufficient reasons also put forth
for exercising due diligence or knowledge or best efforts put in by
12
(1987) 3 SCC 711
35 GSD, J
ccca_22_1999
the respondents/defendants for not producing these documents
before the trial Court as already stated earlier, these Sale Deeds
are dated prior to the filing of suit itself and were in the custody of
the respondent No1/defendant No.1 being the State Government,
as such I.A.No.2 of 2021 is liable to be dismissed.
57. Further, though the issue of Non-joinder of parties and
the issue regarding maintainability of the suit were dealt in detail
by the trial Court and concluded in favour of the plaintiffs, the
learned Advocate General vehemently contended that the suit is
bad in law for non-joinder of necessary parties.
58. According to the learned Advocate General, the
appellant No.1/plaintiff No.2 was admitted as one of the partners
in the partnership firm 'Bhagyanagar Studios' on 25.06.1976 and
his contribution of 8000 Sq. yds towards his share capital into the
stock of the firm towards capital and his retirement on 12.09.1990
absolutely establishes by his own evidence that he is no more the
owner as on the date of the suit and therefore in the absence of
impleading the partnership firm, in whose favour alone cause of
action, if any, can be said to arise as such the suit is liable to be
rejected. The learned Advocate General relied upon the following
case laws:
59. In Col. Kalyan singh thr. his Lr Vs.Wimpy
International Ltd. and ors.13 the Apex Court observed as under:-
"28. The defendants are correct in asserting that the
plaintiff cannot take advantage of two contradictory
pleas. On the one hand, he could not have, consistent
13
2016 SCC OnLine Del 555
36 GSD, J
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with his plea of being a victim of fraud, claims sole
ownership without impleading other members of the
dissolved firm. The documents produced along with
the suit clearly reveal that the firm Freezo
Freezing Co owned the suit property. The decisions
of this Court in Tarachand and Shankar Housing
(supra) and of the Orissa High Court in Afsar Hussain
(supra) are authorities to say that since a firm is not
a legal entity, but a compendium term denoting
all partners, a suit to enforce its rights should
have to be instituted in the name and on behalf of
the firm. In the present case, this was concededly not
the position; the suit was filed by the plaintiff alone, as
if he was the owner of the property- clearly he was not,
at the time its assets were made over to the
defendants. Order 30 Rule 1 applied; the form of the
suit itself was defective; the plaintiff could not lay claim
to the title to the suit property, assuming his argument
to be correct. On this count, the learned Single Judge's
judgment, in this court's opinion, is unexceptionable."
...emphasis supplied
60. In Tarachand Vs. Hulkar Mal and Others14 the
Apex Court held as under:-
"12. The suit filed by Holkar Mal was for rendition of
accounts to him to the exclusion of Tara Chand
as he claimed to be the exclusive owner of the
property. The evidence led by him shows, and
indeed it is admitted by him that the property
belonged to a partnership firm. In our opinion, the
suit as filed was, therefore, not competent. Apart from
the fact that evidence contrary to the pleadings could
not be led or taken, in our opinion, the very basis of the
suit stands contradicted. In fact it is contradicted by
Holkar Mal himself. If the property belonged to the
partnership then Bhani Ram Gupta and Kirpa Ram
were liable to render account to partnership or to a
nominee of the partnership, at least that is how the
14
AIR 1979 Del 160
37 GSD, J
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claim should have been made. Holkar Mal could not
himself claim accounts nor could he be allowed to blow
hot and cold.
14. Order 30, rule 1 Civil Procedure Code permits that
any two or more persons laiming to be partners and
carrying on business may sue in the name of the firm of
which such persons were partners at the time of the
accruing of the cause of action. Alternatively, all the
partners have to bring the suit as plaintiffs. Holkar Mal
pleaded sole ownership and purchase by his own
money but stated in the witness box that the
property belong to the firm was purchased by the
money provided by the firm. His suit was thus liable
to be dismissed for two reasons. First, that he had
failed to prove the case, as pleaded. Secondly, it
transpired in evidence that not he but the partnership
firm was the owner of the property. Rendering of
account by Bhani Ram Gupta and Kirpa Ram to Holkar
Mal would not have absolved them qua the other
partners if the property belonged to the partnership
firm. Holkar Mal could not be allowed to put the
defendants in that position."
...emphasis supplied
61. In Afsar Hussain & Another Vs. Trilokchand
Premchand15 the Apex Court held as under:-
"13. The plaintiffs in this case are two partners, but
they do not describe themselves as partners and have
made no reference to the firm of four partners carrying
on mainly business at Jeypore in the name and style of
Kesarichand Umedmal. Though they were two separate
persons, the verification in the plaint has been by one
partner on behalf of Trilokchand Premchand as if that
was a firm. The normal procedure for partners is to file
suits in the name of the firm when they want to enforce
any right accrued to them as partners. The use of the
name of the firm in any such case is merely a collective
15
(1974) SCC OnLine Ori 55
38 GSD, J
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way of naming the individuals who are members of the
partnership. Order XXX of the Code of Civil Procedure
in relation to suits of partnership provides that it is
permissible to partners to bring suits against third
parties in the name of the firm and it is not necessary
that the name of every partner should be mentioned as
a party to the suit if the business of the firm is carried
on in India.
14. In such a case a suit may be filed in the name of
the firm even after the dissolution provided that the
cause of action arises before dissolution of partnership
and the fact that one of the partners has died before
the institution of the suit or even during its pendency
does not affect the right. But it is incumbent upon all
the partners to join in a suit upon a contract. If a suit is
brought by some of them only, it is liable to be
dismissed as was held by a Bench of the Oudh High
Court in Behari Lal v. Ram Chandra, AIR 1942 Oudh
335. The suit in this case as laid is, therefore, not
maintainable in law and the plaintiffs were not entitled
to have the benefit of the registration of the firm at
Jeypore in the name and style of Kesarichand
Umedmal. As already pointed put, the plaintiffs wanted
to pass as a firm by the name and style of Trilokchand
Premchand."
62. All the aforesaid judgments are not applicable to the
facts of the present case, as the suit schedule property was neither
purchased by a partnership firm nor from the money of the
partnership firm. In these judgments, the property in question was
purchased in the name of the partnership firm which is not in the
present case at hand. It is the specific case of the appellants that
appellant No.1/plaintiff No.2 had purchased the suit schedule
property by virtue of the registered sale deed and out of his own
funds much prior to the constitution of the partnership firm itself.
The learned Counsel for the appellants contended that the
39 GSD, J
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partnership firm has no rights over the properties belonging to its
partners as such the firm need not be a party to the suit. The trial
Court has dealt this issue in Issue No.4. The pleadings of
respondent No.1 and 2/defendants before the trial Court including
the evidence would go to show that they disputed non-joinder of
one of the partner B.Saroja Devi in the suit as one of the Plaintiffs
and thereby claimed the suit is liable to be rejected. Therefore, the
trial Court while considering the issue, observed that as it is the
specific case of the plaintiffs that the plaintiff No.2 alone is the
owner of the Suit Schedule Property by virtue of Registered Sale
Deed marked as Ex.A3 and by the subsequent events claiming
exclusive rights on his retirement from the partnership firm, as
such it was held that the suit is maintainable and not liable to be
rejected for non-joinder of parties.
63. The learned Counsel for the appellants further
contended that the respondent No.1 and 2/defendants have not
filed any Cross-Objections to the findings arrived by the Trial Court
invoking Order 41 Rule 22 of the C.P.C., as such they are estopped
from raising these issues again before this Court.
64. As rightly submitted by the learned Senior Counsel for
the appellants, the contention of the learned Advocate General fails
on both these counts because of the reason that no cross-
objections have been filed by the defendants invoking Order 41
Rule 22 of C.P.C. and that the partnership firm was not the
purchaser of the suit schedule property and it was purchased by
appellant No.1/plaintiff No.2 in his individual capacity and not as
the partner of the firm.
40 GSD, J
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65. The learned Advocate General by relying upon the
Judgment of the Hon'ble Supreme Court of India in the matter of
Neelantan & Others Vs. Mallika Begum16, contended that the
burden of proving the identity of the suit schedule property is
completely upon the Plaintiff. This Court fully agrees with the legal
position enunciated by the learned Advocate General. It is the duty
of the appellants/plaintiffs to prove the identification of the suit
land and if they have discharged their burden, then to disprove the
case of the plaintiffs, the defendants can demolish the case of the
plaintiffs by producing cogent evidence. In the light of the aforesaid
legal proposition, it has to be examined if the plaintiffs have
discharged their initial burden in proving the identity of the suit
schedule land. On the other hand, to disprove the case of the
plaintiffs, respondent No.1 and 2/defendants have relied
vehemently and their total case was based upon the Exs.B2, B4
and B5 in respect of the identification of the suit schedule
property.
66. As discussed above, the trial Court came to the
conclusion that plaintiff No.2 is the owner and proved his title in
respect of the Suit Schedule Property. After coming to such a
conclusion, the Trial Court has taken a tangent approach without
reference to the pleadings, as to whether any land belonging to the
Government is existing in between the land in Sy.No.129/73 and
129/56. For doing so, the trial Court solely relied upon the
documents marked on behalf of the defendants by wrongly
appreciating and misreading the documents got marked on behalf
16
(2002) 2 SCC 440
41 GSD, J
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of the Plaintiffs. The trial Court relied upon the Exs.B1, B2, B4,
B5, A2 corresponding to B7, and A19 and came to the conclusion
that the plaintiffs failed to prove that the suit schedule property is
part and parcel of Sy.No.129/56.
67. The trial Court totally relied upon the documents
marked by the defendants/Government i.e., Exs.B2, B4 and B5 to
come to a conclusion against the plaintiffs that a piece of Ac.2-16
gts. which is in Sy.No.403 belonging to the Government, is lying in
between Sy.No.129/73 and 129/56. The trial Court also concluded
that this piece of land was bearing initial survey No.151/1 and
after revision, it was bearing Sy.No.403 and after Town Survey, it
was assigned with T.S.No.17.
68. This Court has perused all the aforesaid Exhibits filed
by the respondents/defendants. The trial Court gave a wrong
finding in respect of Ex.A19. The findings of the trial Court in
respect of Exs.B2, B4 and B5 are not accompanied with sound
reasoning, cogent evidence and moreover pleadings by the
defendants and also failed to note the discrepancies in these
Exhibits visible to the naked eye.
69. It is the specific case of the plaintiffs that the western
boundary of the land in Sy.No.129/56 purchased by the plaintiff
No.2, is the land in Sy.No.129/73 purchased by Smt.B.Saroja Devi.
These Sale Deeds are marked as Exs.A3 to A6. There are no
pleadings of the defendants that the boundaries mentioned in
these Exhibits are incorrect. No court can make out a new case
which is not pleaded in favour of a party to the suit and according
to this Court, the trial Court ventured upon making out a new
42 GSD, J
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case, by relying the documents marked on behalf of the plaintiffs,
though nothing was pleaded by the defendants either in their
written statement or depositions or based upon the suggestions
given to the plaintiff witnesses.
70. Before going into the documents marked on behalf of
the plaintiffs to establish the identity of the suit land and as the
trial Court has negated the case of the plaintiffs by relying upon
the documents marked by the defendants as stated supra, this
Court is examining the documents marked by the defendants for
averring that the suit land is not in Sy.No.129/56 and is in
Sy.No.403.
71. The defendants/Government resisted the case of the
plaintiffs on the ground that the land in Sy.No.129/73 and 129/56
are not contiguous but they are intervened/separated by the
Government land bearing Sy.No.403 corresponding to T.S.No.17.
To substantiate their claim, they got marked Exs.B2, B4 and B5.
These Exhibits were not confronted to plaintiff No.2 who was
examined as PW-2. The relevant portion of deposition of the PW-1
is as follows:
"......The contention of the government that
sy.No.129/73 and sy.No:12/56 are not adjacent to
each other, and in between there is Sy.No.403
that belongs to the government is not correct.
Sy.No.403 is a revision survey number, which was
not implemented as serious irregularities were
notified in the revision survey. Sy.No.403 was
wrongly correlated to suit land which in fact
bears Sy.No. 129/56."
...emphasis supplied
72. He further stated as under:
43 GSD, J
ccca_22_1999
"I was not given notice by the town survey. The
town survey records wrongly prepared behind my
back the suit land correlated as T.S.No.17 & 22
corresponding to sy.No.403 falling in between
sy.No.129/56 and 129/73. As per the initial
survey records the sy.No.129/56 and 129/73 are
adjacent lands. Initial sy.no. of Shaikpet village
in the custody of government and in spite of my
request they have not supplied the copy to me of
said village plan of Shaikpet. At no point of time
the defendant owned and possessed any land in
between Sy.No. 129/56 and 129/73 as claimed by
them."
73. P.W.1 further stated in the Cross examination as
under:
"I am told that sy.No.403 is carved out in revision
survey only and that very revision survey is not
implemented by the Government. I have seen initial
Sy.No. plan available with the government and as
per the said survey plan, land in sy.No.129/56 &
129/73 are adjoining lands. I applied for survey
authorities for supply of the said initial survey
plans but they refused to supply the same on the
ground that the initial survey plan of Shaikpet
village is missing and not available with the
department."
"I know the boundaries of sy.No.129/73 & 129/56.
The Sy.No.129/56 is bounded by North: land of
Bungalow of Begum Mehdi jung, South: Road
No.14, East: Sy.No.129/56, West: Sy.No.129/73."
74. The defendants did not cross examine P.W1, what has
been stated by him as above. There is no suggestion that the
Sy.No.403 is not a revision survey number. There is no suggestion
regarding implementation or non-implementation of revision
survey. There is no cross examination with respect to initial survey
44 GSD, J
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and the availability of records relating to initial survey. There is no
suggestion regarding issue of notice at the time of Town Survey.
75. The defendants got examined DW-1 and DW-2. DW.1
is an M.R.O, Golconda and holding additional charge of Shaikpet
Mandal since 03.12.1997. The relevant statements of these
witnesses in respect of Exs.B2, B4 and B5 are extracted
hereunder:
"..........................Ex.B2 is sketch showing the suit land.....
Ex.B4 is the Town Survey Record of measurement which
shows the Sy.No.129/73 and 129/56 are separated by the
Sy.No.403 which is Govt. Land. Ex.B5 is the Extract of Town
Survey Register. Town Survey No.17 Block 'D' in ward No.10
is correlate to part of Sy.No.403, in column No.10 of Ex.B5 is
shown that the land belongs to SarkariKancha and it is shown
in coloum no.17 that the extent of the land is 9616 Sq.mts.
equivalent of Ac.2.16 gts. In coloumn No.20 of Ex.B5 is shown
that the name of the present enjoyer is Govt............."
76. When DW.1 was put to Cross-examination, he made
many variations in respect of these Exhibits. The relevant portion
of the cross-examination is extracted hereunder:
"..........................I did not conduct any survey of the suit
Sy.No.403 during the period of my incharge but I inspected the
suit land which is part and parcel of Sy.No.403. Witness adds:
Sy.No.403 is a Govt. Land. As per Town Survey Record the
suit land is Govt. Land but I have no personal
knowledge.
The initial survey of Shaikpet Village was conducted in
the year 1916. Supplementary Shetwar of the said
village was issued in the year 1920. Revision Survey
was conducted in the year 1942 but not implemented
due to various reasons. The Town Survey of Shaikpet
Village was commenced in the year 1965 and completed
by 1970. It was published in the Hyderabad Dist. Gazette
No.41. I am not aware whether the records pertaining to initial
45 GSD, J
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survey are available in our office, but they are available in
Survey and Settlement Dept. The Suit Sy.No.403 is a
revision Sy.Number. Sy.No.129/1 is the correlated initial
Sy.Number of the suit land. I did not produce any such
records to prove the above said correlation. ...............
..................... It is true as per ex.B5 the survey no. of
suit land is TS.No.17, correlated to 151/1, 129/108 and
part of revision Sy.No.403.
To my knowledge no notices were served on the
adjoining land holders at the time of town survey of suit
land., since it is in possession of Govt.Sy.No.151/1
corelating TSNo.17 is initial survey number. I cannot
say whether Sy.No.129/108 refers to initial Sy.No. or
Revision Sy.No.Witness adds: The Sy.No.129/108 is non
existing. Except the records produced and marked, we
have no other records to establish that Sy.No.151/1 is a
Govt. Land.
.......Abutting the suit schedule land there is a road on
Southern Side. I do not know whether there is private
land beyond the said road on southern side. It is true
abutting East and West of suit property, there is Pvt.
Land. It is true the northern boundary also is a private
land. It is true in Sy.No.129/73, abutting west of the
suit schedule property, first plaintiff is in
existence.......... The Govt. is claiming the suit schedule
property as part of Sy.No.403 which is the Govt. Land. The
entire extent of Sy.No.403 is Ac.3079.37 Gts.
It is true in Ex.B2 the total extent of T.S. number 17is not
furnished. It is true in Ex.B3 also there is no mention of total
extent of land in T.S.No.17.............."
...emphasis supplied
77. DW.2 is a Mandal Surveyor of Shaikpet since
November, 1996. The relevant statements of DW.2 in respect of
Exs.B2, B4 and B5 are extracted hereunder:
"...............As per the records the initial survey of Shaikpet
Village was conducted in 1326 Fasli corresponding to the year
1916. The revision survey of said village was conducted
46 GSD, J
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in 1349 fasli corresponding to the year 1939AD. Town
Survey of the said village was conducted from 1965 to
1971. In all the above 3 surveys the suit schedule land is
described as the Govt. Land.
The total extent of the Govt. Land in Sy.No.403 Shaikpet
Village is Ac.3079.28 Gts."
...emphasis supplied
78. When DW-2 was put to Cross-examination, he made
many variations in respect of these Exhibits. The portion of the
Cross-Examination is extracted hereunder:
".....................Ex.B2 is the initial survey map which
reveals the existence of the Govt. land in between
Sy.No.129/73 and 129/56. It is not true to suggest that
Ex.B2 is only sketch map prepared by our Dept. but not
the initial survey map.Witness adds: Ex.B2 is the
extract of initial survey map. Our Dept. is having initial
Sy.Map of Shaikpet Village. We can produce the original
initial Survey map of Shaikpet Village. It is not true to
suggest that initial survey map is not available with our
Dept. The revision survey was not implemented on
revenue since though announced. I cannot say the
reason. It is not true to suggest that since irregularities
were committed in revision survey, it was not
implemented."
..emphasis supplied
79. After going through the testimony of the Dw-1 and 2,
this Court examined the Exs.B2, B4 and B5. The following
discrepancies are found in these Exhibits juxtapose the evidence of
DW-1 and DW-2:
i. According to DW-1 and DW-2 the initial survey was
conducted in the year 1916, revision survey was conducted in
1942 and Town Survey was conducted and completed between
1965-1970. Interestingly, DW-1 and DW-2 gives different
numbers in these 3 purported surveys as follows:
47 GSD, J
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SURVEY SURVEY SURVEY AS PER AS PER Ex.B4 AS PER
NUMBER AS NUMBER AS Ex.B2 Ex.B5
PER DW-1 PER DW-2
INITIAL 129/1 at one
place, 151/1
at another
place and 151/1,
151/1 and
129/108 in - 151/1 129/108 is
129/108
another place. tampered as
Also says 403/108
129/108 is
non-existent
REVISION 403 403 403 403 part
TOWN 17 17/1 - 17 17
SURVEY
ii. Dw-1 deposed that Ex.B2 is a sketch showing the suit land
whereas Dw-2 in his cross-examination firstly said Ex.B2 is the
initial survey map but in another breath admitted that Ex.B2 is
the extract of initial survey map;
iii. On examining Ex.B2, it reflects the signature of the Deputy
Director, Survey & LRS (Urban) with date as 22.07.1982. It is
also mentioned as 'Extract of Village Map" "extract prepared
by". It also contained numerous Survey numbers which
according to the Dw-1 and Dw-2 are initial and revision survey
numbers i.e., below 403 a line is drawn and mentioned as
151/1, below 129/73 a line is drawn and mentioned as 152
and below 129/56 a line is drawn and mentioned as 164. If this
is the true extract of the Original initial survey map of 1916,
then the existence of Sy.No.403 is not at all possible as the
same is a revision survey number which according to the
defendants was conducted in 1942. Therefore, this Court holds
that Ex.B2 is sketch prepared by the Defendants purported to
have been prepared by looking into the Original Initial Survey
Map of Shaikpet Village which is admittedly prepared after
institution of the suit and as both the purported initial survey
numbers and revision survey numbers are mentioned in
addition to the mention of date and 'prepared by' note and
hence this document cannot be believed unless the Original is
produced. This Court will examine about the production of
Originals later;
48 GSD, J
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iv. According to DW-1, Ex.B4 is the Town Survey record of
measurement which shows that Sy.No.129/73 and 129/56 are
separated by Sy.No.403. In his cross-examination, he admits
that Ex.B4 does not contain T.S. Number and total extent of
T.S.No.17 also is not mentioned.
v. On examining Ex.B4, it discloses that it is a Town Survey
map of T.S.No.16, 17, 19, 20/1, 20/3, 21/1, 22/1, 22/2 and
22/3. It further reveals that it is compared with the original and
prepared on 13.07.1981 and 14.07.1981 as the signatures of
the Spl. Director of Survey, Traverse Party, Hyderabad is
accompanied with the date. Even in this document, below 152 a
line is drawn and mentioned as 129/73. Below 164 a line is
drawn and mentioned as 129/56. Below 165 a line is drawn
and mentioned as 129/55. Now coming to the survey number
151/1 (corresponding mentioned as 17), a line is drawn and the
numbers are tampered and it is clearly visible that 129/108 is
tampered and written as 403/108.
vi. According to DW-1, Ex.B5 is the extract of Town Survey
register. He makes inconsistent statements in his cross-
examination that 129/1 correlates to Sy.No.403, then
Sy.No.151/1 correlates to Sy.No.403 and interestingly he also
adds 129/108 is non-existent;
vii. On examining Ex.B5, it discloses that it is prepared and
compared with the original on 14.07.1981 i.e., after the
institution of the suit. It further reveals that the column
number 11 to 13 are missing. The T.S.No.17 correlates to
151/1, 129/108 and 403/part mentioned as Government land.
80. Pointing out the discrepancies as mentioned supra, it
has to be seen as to what stand did the Plaintiffs have taken in
respect of these Exs.B2, B4 and B5 and whether the Plaintiffs have
satisfied the test envisaged for drawing an adverse inference under
Section 114 of the Indian Evidence Act.
49 GSD, J
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81. Before going into the merits of this issue, it would be
convenient to examine the legal position of drawing adverse
inference under Section 114 illustration (g) of the Indian Evidence
Act. Section 114 (g) of the Indian Evidence Act is extracted
hereunder:
"114. Court may presume existence of certain facts. --The
Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common
course of natural events, human conduct and public and
private business, in their relation to the facts of the particular
case.
Illustrations
The Court may presume--
......
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
......"
82. In the matter of Ramrati Kuer v. Dwarika Prasad Singh17, it was held by the Hon'ble Supreme Court of India that:
"9. Fourthly, it is urged that the respondents did not produce any accounts even though their case was that accounts were maintained and that Basekhi Singh used to give maintenance allowance to the widows who were messing separately. It is urged that adverse inference should be drawn from the fact accounts were not produced by the respondents and that if they had been produced that would have shown payment not of maintenance allowance but of half share of the income to the widows by virtue of their right to the property. It is true that Dwarika Prasad Singh said that his father used to keep accounts. But no attempt was made on behalf of the appellant to ask the court to order Dwarika Prasad Singh to produce the accounts. An adverse inference could only have been drawn against the plaintiffs-respondents if the 17 (1967) 1 SCR 153 50 GSD, J ccca_22_1999 appellant had asked the court to order them to produce accounts and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the court, and in the circumstances no adverse inference could be drawn from the non-production of accounts. But it is urged that even so the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance by Basekhi Singh. Even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to widows may not be acceptable; but no adverse inference can be drawn (in the absence of any prayer by the appellant that accounts be produced) that if they had been produced they would have shown that income was divided half and half in accordance with the title claimed by the appellant."
...emphasis supplied
83. In the matter of Gopal Krishnaji Ketkar v. Mohamed Haji Latif18, it was held by the Apex Court that:
"5. .................But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from Plot No. 134 was dealt with. Mr Gokhale, however, argued that it was no part of the appellant's duty to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of Plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw 18 (1968) 3 SCR 862 51 GSD, J ccca_22_1999 light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manickavasaka Pandara [44 IA 98, at p 103] Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough -- they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
This passage was cited with approval by this Court in a recent decision-- Biltu Ram v. Jainandan Prasad [ Civil Appeal No. 941 of 1965 decided on April 15, 1968]. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desraj Ranjit Singh [42 IA 202, at p. 206] : "But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents."
But Shah, J., speaking for the Court, stated: "The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with Illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority."
52 GSD, J
ccca_22_1999
84. In the matter of Indira Kaur v. Sheo Lal Kapoor19, , it was held by the Hon'ble Supreme Court that:
"9. The High Court also committed the same error of drawing an adverse inference against the plaintiff for not producing the passbook in disregard of the fact that neither the defendant had called upon him to do so nor had the court ordered him to do so at his instance or on its own. The relevant passage from the judgment of the High Court may be quoted in this context:
"The court noticed that the plaintiff had stated that the amount had been deposited in the bank. There was no passbook of the bank to show that the plaintiff had the aforesaid amount in 1977."
Thus all the three courts have committed a serious error in drawing an adverse inference against the plaintiff which it was impermissible in view of the law declared by this Court in Ramrati Kuer v. Dwarika Prasad Singh [AIR 1967 SC 1134, 1137 : (1967) 1 SCR 153] ."
...emphasis supplied
85. In the matter of Mussauddin Ahmed v. State of Assam20 it was held by the Hon'ble Supreme Court as under:
"11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji Latif [AIR 1968 SC 1413] )."
86. In the matter of Ravi Yashwant Bhoir v. Collector21, at page 437, it was held by the Hon'ble Supreme Court that:19
(1988) 2 SCC 488 20 (2009) 14 SCC 541 53 GSD, J ccca_22_1999 "72. Thus, to ascertain as to whether in order to give an opportunity to the appellant to meet the alleged new grounds, the competent authority had adjourned the case, this Court while reserving the judgment vide order dated 13-2-2012, asked the learned Standing Counsel for the State, Shri Mike Prakash Desai to produce the original record before this Court within a period of two weeks. For the reasons best known to the State Authorities neither the record has been produced before us, nor has any application been filed to extend the time to produce the same.
73. In fact, this Court has been deprived of seeing the original record and to examine the grievance of the appellant. We express our grave concern and shock at the way the State Authorities have treated the highest court of the land. In such a fact situation, the Court has no option except to draw the adverse inference against the State."
87. In the matter of Union of India v. Ibrahim Uddin22, at page 161, it was held by the Hon'ble Supreme Court as under:
"Presumption under Section 114 Illustration (g) of the Evidence Act
12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. [Vide Murugesam Pillai v. Manickavasaka Pandara [(1916-17) 44 IA 98 : AIR 1917 PC 6] , Hiralal v. Badkulal [AIR 1953 SC 225] , A. Raghavamma v. A. Chenchamma [AIR 1964 SC 136] , Union of India v. Mahadeolal Prabhu Dayal [AIR 1965 SC 1755] , Gopal Krishnaji Ketkar v. Mohd. Haji Latif [AIR 1968 SC 1413] , BHEL v. State of U.P. [(2003) 6 SCC 528 : 2004 SCC (L&S) 506 : AIR 2003 SC 3024] , Mussauddin Ahmed v. State of Assam [(2009) 14 SCC 541 : (2010) 1 SCC (Cri) 1445 : AIR 21 (2012) 4 SCC 407 22 (2012) 8 SCC 148 54 GSD, J ccca_22_1999 2010 SC 3813] and Khatri Hotels (P) Ltd. v. Union of India [(2011) 9 SCC 126 : (2011) 4 SCC (Civ) 484] .] xxxxxxxxxx
24. Thus, in view of the above, the law on the issue can be summarised to the effect that the issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents, etc. as is required under Order 11 CPC. Conduct and diligence of the other party is also of paramount importance. Presumption of adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and the other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary."
88. The plaintiffs have disputed these documents i.e., Ex.B2, B4 and B5 as fabricated and created for the purpose of this suit. The DW-1 and DW-2 were suggested during their cross-
examination about the same. But mere suggestion is not sufficient to dispute the copies of the documents. In the present case, the Dw-1 admitted that the records pertaining to initial survey are available in Survey and Settlement Department. The Mandal Surveyor examined as DW-2 admitted that his department (Survey and Settlement & Land Records) is having initial survey map of 55 GSD, J ccca_22_1999 Shaikpet Village. He further denied the suggestion that the initial survey map is not available with his department.
89. The plaintiffs further filed an Interlocutory Application before the trial Court seeking direction to be issued to the Defendants/Government to produce the Original of Initial survey and revision survey records pertaining to Shaikpet Village covered by Exs.B2, B4 and B5. The said Application was rejected by the trial Court as it felt that no purpose would be served in calling for the original survey records. Being aggrieved, the plaintiffs filed C.R.P.No.2781 of 1998 before this Court. By Order dated 04.08.1998, another Co-ordinate Bench of this Court allowed the C.R.P to the extent of causing production of the original survey map to verify whether Ex.B2 tallies with the original initial survey map. The operative portion is extracted hereunder:
"As the question whether Ex.B2 is a true extract of the original "initial survey map" of Shaikpet Village is put in issue in the cross-examination of Dw.2 and Dw.2 stated that the original survey map can be produced, the trial Court should have allowed the application for the limited purpose of causing production of the original initial survey map. The learned counsel for the petitioners is right in submitting that the application was made in view of the statement of Dw.2. When there is doubt on the question whether Ex.B2 is a true extract from the original, in order to obviate further controversy and to put the matters beyond doubt, the original survey map should have been called for. The failure to do so, in my view, amounts to material irregularity in excise of jurisdiction which may occasion injustice. I therefore, allow the C.R.P. to the limited extent of causing the production of original survey map by DW.2 or any other witness of the defendants. After verifying whether Ex.B2 tallies with the original initial survey map, the original document shall be returned to the defendants. However, a xerox copy of the original map may be kept on record. As regards the summoning of other initial survey and 56 GSD, J ccca_22_1999 revised survey records, the request is omnibus in nature and the learned counsel's submission that such request is a sequel to the deposition of DW.2, cannot be accepted. If at all, the petitioners should have taken steps much earlier to call for the survey records. I am allowing the initial survey map alone to be produced for the reason that the correctness of Ex.B2-- whether it is a true extract or not, is in dispute. Otherwise, there is no need to direct production of survey records at this distance of time. With the above direction and observations, the C.R.P. is disposed of. The original map shall be produced on the next date of hearing."
90. In spite of the Orders of this Court, the defendants/ Government did not comply and failed to produce the original initial survey map by filing a memo stating that the original initial survey map is not available and therefore they could not file the same.
91. The trial Court instead of drawing adverse inference under section 114 illustration (g) of the Indian Evidence Act, concluded that the Government/defendant was not having custody of the same and are not deliberately withholding from producing the same. The trial Court further wrongly relied upon the statement of D.W.2 by observing that the admission of DW-2 is only a slip of tongue without knowing factual position and without verification.
92. In this context, it is observed that DW-1 in his cross examination on 11.06.1998, deposed that the records pertaining to initial survey are available in the Survey and Settlement Department. DW-2 in his cross-examination on 01.07.1998 i.e., after 20 days, deposed and in fact, added that his department is having initial survey map of Shaikpet village which can be produced. The best evidence which is in their possession which 57 GSD, J ccca_22_1999 could have thrown light on the facts at issue were intentionally withheld by the defendants/Government obviously with an ulterior motive, as apparent on the face of the record.
93. These factual aspects, juxtaposing the fact that the Exs.B2, B4 and B5 were prepared on 13.07.1981 and 14.07.1981 i.e., after initiation of the present suit prima facie shows that the trial Court committed a manifest error by not drawing an adverse inference against the defendants for non-production of the originals of Exs.B2, B4 and B5 in addition to the above discrepancies in these Exhibits and findings rendered supra and having regard to the same, this Court holds that these Exhibits cannot be looked into to support the case of the defendants. The learned Advocate General was totally silent upon these aspects and in fact, the written submission filed by the learned Advocate General is also silent on these Exhibits.
94. In furtherance of the above observations, it is also observed that the defendants/Government did not produce any document to prove their Title to the Suit Schedule Property. Apart from Ex. B2, B4 and B5, the Dw-1 and Dw-2 admitted that they do not have any other document to prove the title of the Government over the suit schedule property. It is settled law that Town Survey Land records are not conclusive proof of Title as held by the Hon'ble Supreme Court of India in the matter of State of A.P. v. Hyderabad Potteries (P) Ltd.23 at page 386:
"26. The sole basis of the appellant to claim the land was on the strength of entries made in survey records showing that 23 (2010) 5 SCC 382 58 GSD, J ccca_22_1999 the schedule property was surveyed as TS No. 4/2, Ward No. 66 of Bakaram Village having an area of 19,214 sq m showing it as a gap area i.e. unsurveyed area as per the old survey records and as such it could only be declared to be government land as has been recorded in Column 20 of TSLR. Apart from the said revenue record and issuance of gazette notification as mentioned hereinabove, no other material document was filed by the appellant to show that the said land belonged only to the Government. It is trite that entry in the revenue record alone may not be sufficient as conclusive proof of title nor can be relied on for proof of establishing the title as such.
xxxxx
28. Considering the evidence of other two witnesses; PW 2 and PW 3, the Special Court recorded a categorical finding that they had admitted that at the time of conducting the survey in the year 1965-1971 and making of entries in TSLR, no notice was ever served on the respondentsand further admitted that it appears that all through the possession of the land continued with the respondentsonly. PW 2 also admitted about grant of municipal number to its owner i.e. Respondent
1.
29. In the light of the same, the majority members of the Special Court came to the conclusion that certain entries in TSLR may not be sufficient proof of possession of the appellant State as owner thereof. Copy of the TSLR has been filed showing the details thereof. In Column 20 "G" is mentioned meaning thereby the Government, but in Column 23 which is remarks column, the possession of Respondent 1, Hyderabad Potteries Pvt. Ltd. is clearly shown which is in consonance with the stand taken by the respondents. It is also pertinent to mention here that "G" was encircled raising doubts about it and then in Column 23 name of Respondent 1 is clearly stated."
95. The trial Court came to a wrong conclusion in so far as drawing presumption U/s.114 (e) of the Evidence Act that official acts were done properly and bonafidely. The basis for coming to such a conclusion, according to the trial Court was that the 59 GSD, J ccca_22_1999 plaintiffs in spite of having knowledge about the Town Survey, did not file any suit as provided U/s. 14 of the A.P. Survey and Boundaries Act, 1923. The trial Court was factually incorrect. There is a categorical admission of DW-1 and DW-2 that no notice was issued (nor marked), as contemplated in the A.P. Survey and Boundaries Act, 1923, to the plaintiffs or to the owners of the adjoining private lands when the alleged survey was conducted and the plaintiffs attained knowledge only when the Government started claiming the suit land to be in Sy.No.403 that too orally through some local officers. On the contrary, the Town Survey records i.e., Exs. B4 and B5 suffers with material irregularities and cannot be looked into as held by this Court in the aforesaid paragraphs. Had the defendants produced originals of the Ex. B2, B4 and B5 in addition to the issuance of Notice for the purported survey, then trial Court could have been right in drawing such a presumption.
96. This Court is conscious of the fact that the Suit for Declaration of Title cannot be decreed on the weakness of the defendants but the plaintiffs can succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it. As already held in the above paragraphs, which was also observed by the trial Court that the plaintiff No.2 is the owner of land in Sy.No.129/56, on the basis of which, it has to be examined whether the plaintiffs discharged their burden on proving the identification of the suit schedule property.
97. The learned Advocate General further argued that the trial Court relied upon the Exs.B1 and B3 and came to a 60 GSD, J ccca_22_1999 conclusion that the language and tenor of Ex.B1 and B3 would go to show that the plaintiffs are admitting that the piece of land to the extent of Ac.2.00 gts. is lying between the lands in Sy.No.129/56 and 129/73, belongs to the Government. Ex.B3 alone is sufficient to understand the context on which Ex.B1 letter was addressed by the brother of the plaintiff No.2. To examine this issue, all the related communications connected to Ex. B1 are to be read conjointly. The chronology of communications are as follows:
i. 23.05.1976 - EX. B3: One Mr.B.Ramaswamy, who is the brother of Plaintiff No.2, addressed a Letter dated 23.05.1976 to the Collector, Hyderabad (Defendant no.2), on the Letterhead of Plaintiff No.1 firm. The contents of this Letter, are:
"We have the pleasure to submit that we are going ahead with the construction of our studios in Sy.Nos. 1) 129/73 of Ac.5-38 Gts Road No.14 Banjara Hills, 2)
129/56 of Ac.2-10 Gts, Road No.14
Banjara Hills.
The above S.Nos. are purchased and are duly registered in the name of our partners Smt.B.Saroja Devi and Sri.B.Rangaswamy respectively. They are adjoining plots as far as our knowledge goes and as per related registered documents. Copy of registered plan is also enclosed for your information.
We now understand from the Patwari of Shaikpet Village and the Revenue Inspector that there is a piece of land of 2 Ac. in between our above said 2 Sy.No.s and 61 GSD, J ccca_22_1999 that the 2 Ac. is under proposal for allotment for construction of houses for weaker section.
If this were to be a fact and in case it is allotted to weaker section and if their dwellings were to come up in the centre of the area of our studios, it will be detrimental to development and progress of our film studios.
In view of the above, we request you to consider and allot the said piece of land of 2 Ac. to us, for the extension purpose of our studio activities and we shall have no objection to pay a reasonable approved value for the allotted piece of land. We also request you in the meanwhile to stop the proceedings relating to the allotment of the said 2 Ac. to the weaker section, if any. Requesting for you early attention and action in the matter."
...emphasis supplied ii. 29.03.1976: EX. A10: The Notifications issued by the erstwhile Government of Andhra Pradesh were published in the Andhra Pradesh Gazette No.22 dated 03.06.1976. The relevant G.O. to this case published in the said Gazette is G.O.Ms.No.160, Health, Housing and Municipal Administration (Municipal Administration) dated 29.03.1976. As per this G.O., the said Department published the variation in the Development plan for the cities of Hyderabad and Secunderabad, by notifying the Construction of Bhagyanagar Studio (Plaintiff No.1), a commercial unit in a residential area. In the Schedule, the Eastern Boundary is mentioned as Sri.B.Rangaswamy's land (Plaintiff No.2).
iii. 15.06.1978- EX. B1: After two years from the letter Ex.B3, the said Sri.B.Ramaswamy, who is the brother 62 GSD, J ccca_22_1999 of Plaintiff No.2, addressed another Letter dated 15.06.1978 to the Collector, Hyderabad (Defendant no.2), on the Letterhead of Plaintiff No.1 firm. The copy of the earlier letter dated 23.05.1976 was also enclosed and referred in the contents of the present letter. The said letter is extracted hereunder:
"Ref: Our letter dated 23-5-76 I am to enclose herewith a copy of our letter cited in which we have requested that a piece of land measuring Ac.2.00 lying in between S.Nos.129/56 and 129/73 of Shaikpet village road No.14 Banjara Hills may be allotted to M/S.Bhagyanagar Studios for the extension of our studio activities. So far we have not received any reply.
Our studios have started functioning and the work is in good progress. We want to extend the activities of the studios further. For this purpose, we require the piece of land referred above. In the circumstances we request that expedition's action may be taken to allot the above piece of land to us at an early date."
iv. 08.01.1979 - EX. A12: The Collector, Hyderabad (Defendant No.2) addressed a letter to the managing Director of Bhagyanagar Studios to furnish the copies of the documents in respect of Sy.No.129/73 and 129/56 to examine the case.
v. 14.02.1979- EX. A13: In reply to the Ex. A12 letter, the said Sri.B.Ramaswamy, addressed another Letter dated 15.06.1978 to the Collector, Hyderabad (Defendant no.2), on the Letterhead of firm. There is a reference of the Letter of the Collector dated 08.01.1979 as well. The Collector sought for the ownership and link documents of the Plaintiff No.2. The Sale deeds of Plaintiff No.2, B.Saroja Devi and 63 GSD, J ccca_22_1999 their Vendors in Sy.No.129/73 and 129/56 were submitted through this Letter. There is a categorical mention that both these lands are adjoining each other. The copy is extracted hereunder:
"Ref: 1. Our letter dated 12th Dec. 78
2. Your Letter No.C/899/78 dated 8-4-79 With reference to your letter cited, we enclose herewith copies of the following documents relating to the purchase of S.No.129/73 by Smt. B.Saroja Devi and S.No.129/56 by Sri B.Rangaswamy from their previous owners :
1. Sale deed No.413 of 6th Shahrewar 1353 F relating to the sale of S.No. 129/73 by Sri Rustomji Pisthanjií, the original pattadar to Rani Jayanthi Devi w/o Raja Dharankaran with plan copy
2. Sale deed No.1642 of 1964 dated 4-9-64 relating to sale of S.No.129/73 by Rani Jayanthi Devi w/o Late Raja Dharam Karan to Smt.B.Saroja Devi, with plan copy.
3. Sale deed No.1640 of 1964 dated 4-9-64 relating to sale of S.No.129/56 - 2 Ac. and 10 gts. by Sri Raja Ram Karan and five other owners and heirs of Raja Dharam Karan to Sri B.Rangaswamy.
It may be seen from the sale deed item No.1 and the plan attached that S.No.129/73 was a patta land and it was purchased from the pattadar in the year 1944 i.e. on 6th Shahrewar 1353 F, 35 years ago by Rani Jayanthi Devi who in her turn sold it to Smt. B.Saroja Devi the present owner in 1964.
64 GSD, J ccca_22_1999 Similarly, it may be seen from document No.3 that S.No.129/56 was also a patta land and late Raja Dharam Karan purchased it from the pattadar Sri Riaz Ahmed through a registered sale deed dated 24th Ardibehesht 1355 F. After the death of Raja Dharam Karan, his heirs became the owners and Sri B.
Rangaswamy purchased the said land from them in 1964. We have applied for copy of the sale deed through which the said piece of land was originally purchased from the pattadar Sri Riaz Ahmed by late Raja Dharam Karan: furnish copy of the sale deed together with plans We will soon furnish as they are received from the sub-registrar's office.
The above facts go to show that both S.No.129/73 and S.No.129/56 which adjoin each other are private lands and the question of any Government land lying in between them does not arise.
Necessary declarations have been filed on 18- 11-76 in the office of the special officer Competent Authority Urban Land Ceiling by M/s. Bhagyanagar Studios in respect of S.No.129/73. Government have also issued orders in G.O.Ms.NO.1259/72 Revenue (UC) Department dated 25-11-76 exempting it from the provisions of the Urban Land (Ceiling & Regulations) Act 1976.
Sri B.Rangaswamy, the owner S.No.129/56 has also filed necessary declarations on 15-9- 76 before the Competent Authority Urban Land Ceiling in respect of the said piece of land."
...emphasis supplied 65 GSD, J ccca_22_1999 vi. 06.05.1979- EX. A14: A letter was addressed from the office of the Collector (Defendant no.2) to the Plaintiff No.1, with a request to stop the fencing work immediately and maintain Status Quo until further orders.
vii. 10.08.1979-EX. A15: The office of the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad addressed a Memo to the Plaintiff No.1 to come to their office urgently to furnish some particulars of the case in reference to the Letter Ex. A12.
98. A perusal of the above communications i.e., Exs.B3, A10, B1, A12 to A15, it is crystal clear that the trial Court came to a wrong conclusion by relying only upon Ex. B1 and concluding that the plaintiffs admitted that there is piece of land between the Sy.No.129/73 and 129/56. Though the plaintiff No.2 disowned the issuance of Ex. B1 on the ground that it is not binding on him as it was not addressed by him even if the said Ex.B1 is binding on him, the said letter is of no help to the Defendants. Ex.B3 was neither written by the plaintiff No.2 nor the signatory of Ex.B3 was a party to the suit. Therefore, it cannot be construed as admissions by the plaintiffs. The said Ex.B1 Letter was addressed in continuation of Ex. B3 and thereafter a detailed letter Ex. A13 was also addressed on behalf of plaintiff No.1, in reply to the Letter of defendant No.2 marked as Ex.A12, wherein defendant No.2 wanted the documents for examining the case. The Ex.B3, which is the initial communication, clearly stipulates that according to the signatory therein, both these lands are adjoining. The signatory therein stated that they understand from the Patwari and Revenue Inspector that there is a piece of land in between their lands. They 66 GSD, J ccca_22_1999 further said if the said statement of Patwari and Revenue Inspector is to be a fact, then they sought for allotment. This cannot be construed as an admission as held by the trial Court .
99. The learned Counsel for the appellants contended that the averments mentioned in these letters do not constitute any admission. He further contended that an admission has to be clear, unambiguous and conclusive. He relied upon the following judgments:
i. In Chikkam Koreswara Rao v. Chikkam Subba Rao24, it was held by the Hon'ble Supreme Court that:
"3. It is clear from the judgment of the High Court that but for the aforementioned statement of the appellant, the High Court would not have disturbed the finding of the trial Court as regards the properties covered by Ex.B-6. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. There is no difference in the nature of the acquisitions made under Exs. B-2 to B-5 and B-7 and that made under Ex. B-6. They were all made during the life time of Reddinaidu."
...emphasis supplied ii. In Nagubai Ammal v. B. Shama Rao25, the Hon'ble Supreme Court held as under :
"16. An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must 24 (1970) 1 SCC 558 25 AIR 1956 SC 593 67 GSD, J ccca_22_1999 depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. In the present case, there is no question of estoppel, as the title of Dr Nanjunda Rao arose under a purchase which was long prior to the admissions made in 1932 and in the subsequent years. It is argued for the appellants that these admissions at the least shifted the burden on to the plaintiff of proving that the proceedings were not collusive, and that as he gave no evidence worth the name that these statements were made under a mistake or for a purpose and were, in fact, not true, full effect must be given to them. Reliance was placed on the well-known observations of Baron Parke in Slatterie v. Pooley [(1840) M & W 664, 669 : 151 ER 579, 581] that "what a party himself admits to be true may reasonably be presumed to be so", and on the decision in Rani Chandra Kunwar v.
Chaudhri Narpat Singh: Rani Chandra Kunwar v.
Rajah Makund Singh [(1906-07) 34 IA 27] where this statement of the law was adopted. No exception can be taken to this proposition. But before it can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. It has been already pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in 0. S. No. 100 of 1919-20 were fraudulent and not collusive in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive."
...emphasis supplied 68 GSD, J ccca_22_1999 iii. In Sita Ram Bhau Patil v. Ramchandra Nago Patil26 the Hon'ble Supreme Court held as under:
"18. The third infirmity with regard to this admission is whether this is a clear and unequivocal admission. The High Court said that "a certified copy of the deposition was placed on record on July 9, 1973, on which day against it does not appear that the contents of the deposition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross-examine the witness". The contents of the alleged admission to which reference has been made are not unambiguous and cannot be accepted as an admission. The contents are that he was not receiving any rent and the land was fallow. Therefore, the High Court was right in rejecting the contentions advanced by the appellants that there was any admission and in setting aside the decision of the Revenue Tribunal."
...emphasis supplied
100. Even the learned Advocate General relied upon a judgment of the Apex Court in the matter of Avadh Kishore Das V. Ram Gopal And Others27 wherein it was held that:
"24. Further, what is more important, in cross- examination, the defendant was confronted with this declaration in the Will. He unreservedly admitted that what was stated in the Will, was correct. It is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to the wrong: but they do raise an estoppel and shift the burden of proof on to the person making them or his representative-in-interest. Unless shown or explained to 26 (1977) 2 SCC 49 27 (1979) 4 SCC 790 69 GSD, J ccca_22_1999 be wrong, they are an efficacious proof of the facts admitted. Here, the defendant, far from explaining the admission or declaration made by the deceased Mahant, under whom he (defendant) claims, has affirmed it, that the entire property in suit is the absolute property of the God, Thakurji as a juristic person. It is, therefore, too late in the day for the defendant to wriggle out of the same. It cannot be said that the defendant had inadvertently affirmed the correctness of the admission/declaration made in the aforesaid Will by the deceased Mahant. It was a conscious admission. The defendant himself repeatedly admitted this position with regard to the ownership of the land being exclusively of the idol, Thakurji Maharaj, in the applications filed for receiving annuity under the provisions of the U.P Zamindari Abolition and Land Reforms Act, 1952, which was granted to the idol, in respect of the Trust property."
101. This judgment is not applicable to the present case at hand. Therefore, in view of the principles laid down in the aforesaid judgments cited by the appellants, this Court holds that there was no admission by the plaintiffs especially by plaintiff No.2/PW-2 much less a clear and unambiguous admission. The trial Court further was not right in discarding the Ex. A10. Defendant No.1 is the Government, it does not make any difference which Department is representing the defendant No.1. The defendant No.1 itself gave a Notification wherein the boundary adjoining the Sy.No.129/73 is shown as Land of the plaintiff No.2. Moreover, the defendants No.1 and 2 kept the issue pending with them for about 3 years after the communication that the plaintiffs are making constructions. If the Government really had any claim over the suit land, they ought to have immediately taken action by responding 70 GSD, J ccca_22_1999 to the letters and taking a stand that the land belongs to the Government.
102. The Government/defendants claims that there is a land admeasuring Ac.2-00 gts. in between Sy.No.129/73 and 129/56 and they claim that the said land falls in Sy.no.403. They dispute the identity of the suit schedule property adjoining Sy.No.129/73. As held by this Court in the aforesaid paragraphs, adverse inference is drawn against the defendants for not producing the best evidence available with them i.e., the Originals of Exs.B2, B4 and B5. To prove the identification of the suit land, the plaintiffs got marked Exs.A4, A6, A10, A11 and A19. These Exhibits are being dealt as under:
i. EX. A4: The plaintiffs got marked Ex. A4 i.e., the Plan annexed to the Ex. A3 i.e., the Registered Sale Deed Document No.1640 of 1964 of Book I dated 03.09.1964 through which the plaintiff No.2 purchased the Suit Schedule property. As per this Ex., the western boundary is mentioned as land in Sy.No.129/73.
ii. EX. A6: The plaintiffs got marked Ex. A6 i.e., the Plan annexed to the Ex. A5 i.e., the Registered Sale Deed Document no.1642 of 1964 dated 03.09.1964 through which the partner of plaintiff No.1 i.e., Smt.B.Saroja Devi purchased a portion of the land admeasuring Ac. 5-38 gts. in Sy.No.129/73. As per this Exhibit, the eastern boundary is mentioned as Vendor's land in Sy.No.129/56.
iii. EX. A10: The plaintiffs got marked Ex. A10 which is Andhra Pradesh Gazette No.22 dated 03.06.1976 wherein the Notifications issued by the erstwhile Government of Andhra Pradesh were published. The relevant G.O. to this case published in the said 71 GSD, J ccca_22_1999 Gazette is G.O.Ms.No.160, Health, Housing and Municipal Administration (Municipal Administration) dated 29.03.1976. As per this G.O., the said Department published the variation in the Development plan for the cities of Hyderabad and Secunderabad, by notifying the Construction of Bhagyanagar Studio, a commercial unit in a residential area. In the Schedule, the Eastern Boundary is mentioned as Sri.B.Rangaswamy's land (plaintiff No.2).
iv. EX. A11: The plaintiffs got marked Ex. A11 which is a proposed plan of the Bhagyanagar Studio in Sy.No.129/73. The Eastern boundary is shown as Neighbour's Land B.Rangaswamy.
v. EX. A19: The plaintiffs got marked Ex. A19 which a plan having endorsement of the District Registrar, Hyderabad and Joint Sub-Registrar, DRO, Hyderabad both dated 16.06.1981. This is the Plan annexed to the Registered Sale Deed dated 5th Shahariwar 1353 Fasli corresponding to 10.07.1944 through which Rani Jayanti Devi wife of Raja Dharam Karan, purchased Ac.1-10 gts. in Sy.No.129/73 from Rustomji Pistanji Moosa and Adesher Rustomji Moosa. The Eastern boundary of this property, in Sy.No.129/73 admeasuring Ac.11-10 gts., is written in Urdu and translated in English as Land belongs to Riaz Ahmed. The trial Court was factually wrong in noting that the eastern boundary is not the land in Sy.No.129/56 but it is public road and after the land covered by public road, there is land of Riaz Ahmed. Even according to the defendants, the original owner of the land in Sy.No.129/56 was Syed Riaz Ahmed. The trial Court wrongly observed that the Public Road is the eastern boundary of Sy.No.129/73 which is factually incorrect and is towards the Northern side of the land of the said Syed Riaz Ahmed.
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103. The trial Court discarded all these Exhibits basically on the misreading of Ex.A19. The trial Court held that in view of Ex.A19, B6 and A1, no sanctity can be attached to the recitals about the western boundary in Ex.A3 and eastern boundary in Ex.A5 since it appears that the second plaintiff and his brother's wife who purchased the property on 03.09.1964, got the recitals by way of enclosing a piece of land to the extent of Ac.2.16 gts. belonging to the Government. This finding of the trial Court is based on wrong noting of the actual facts as held hereinabove in respect of Ex.A19, which deserves to be set aside. Now coming to the recitals in Ex. A1 corresponding to Ex.B6, relying upon which the trial Court concluded that the western boundary of Sy.No.129/56 is Government Paramboke land and not Sy.No.129/73. This finding of the trial Court is not based upon any evidence on record. Ex. A1 is the Registered Sale Deed Document No.1525 of pages 114, 115 of Book No.1 Volume V dated 27th Ardibehisht, 1355 Fasli corresponding to 27.03.1945 which is in Urdu language and its translated copy is marked as Ex. A2. Through this Sale Deed, the predecessor of the Vendors of plaintiff No.2 i.e., late Raja Dharam Karan purchased an extent of land of Ac. 8-12 gts., wherein the suit schedule property also forms part of the same, from the Original Owner Syed Riaz Ahmed. The defendants through DW-1 got marked Ex.B6 Urdu Sale Deed and its translation as Ex.B7. According to DW-1, he wrongly deposed that Ex.B6 is the certified copy of sale deed dated 17.08.1982 he did not state anything as to why this document is being marked. This document corresponds to Exs.A1 and A2 but the date 17.08.1982 is the date of Endorsement of Joint Sub-
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Registrar, Hyderabad, who issued the certified copy on the said date. As per Ex.A2, the western boundary is mentioned as Nala and whereas in Ex.B7 filed by DW-1, it is mentioned as Government Nala. There is no pleading in this regard by the defendants nor DW-1 and DW-2 stated anything about the Exs.B6 and B7, they did not base their claim on this ground to state that as it is mentioned as Nala, it is a Government Paramboke Land. Though Exs.A1 and A2 corresponds to Exs.B6 and B7, it is mentioned in the translated copy Ex.A2 as Ac.3-10 gts. but the defendants do not dispute that the total extent of land in Sy.No.129/56 is only Ac.3.10 gts., but not Ac.8-12 gts. and as such it can be safely concluded that it was only a typographical mistake.
104. The contention of the learned Advocate General that Nala having abutting private land vests with the State under section 24 of the Telangana Revenue Act, 1317 Fasli cannot be accepted. There is no pleading of the respondents/defendants that the suit schedule property has Nala which is a Government land. There is no mention about Nala in section 24 of the said Act.On the contrary, though adverse inference is drawn by this Court for non- production of the Originals of Ex.B2, B4 and B5, it is relevant to note that in Ex.B5, in column 22, it is mentioned as "ఖా సల్ ం" (Khali Sthalam) which means 'vacant space' and at 23 column it is mentioned as 'Government Khali Sthalam' i.e., Government Vacant space. Therefore, even according to the Defendants there is no Nala and even if it was, the said Nala cannot be construed as Government Poramboke Land. There is no basis for such an 74 GSD, J ccca_22_1999 inference or definition imputed to the mentioning of the word 'Nala', as per general understanding, 'Nala' can mean anything through which water passes.
105. The defendants in their written statement have stated that Sy.No.403 is totally admeasuring Ac.2.967-28 gts. DW-1 in his cross-examination, stated that the entire extent of Sy.No.403 is Ac.3079.37 gts. and Dw-2 in his Chief-examination, deposed that the total extent of Sy.No.403 is Ac.3079.28 gts. The Dw-1, in his cross-examination, admitted that the Suit Schedule land is a vacant land the southern side of the suit schedule land is road, towards the eastern, western and northern sides, there are private lands. He further admitted that in Sy.No.129/73 which is abutting to the west of the suit schedule property, the first plaintiff is in existence. Therefore, there are categorical admissions of the DW-1 in respect of identification of the suit schedule property. Moreover, the pleadings and evidence of the defendants and DWs.1 and 2 that the suit land forms part of Sy.No.403 which according to them is more than Ac.3000.00 was demolished by the own admission of DW-1 that all the boundaries are private lands and western boundary is Sy.No.129/73. For all the above reasons, this Court holds that the plaintiffs have proved the identification of the suit schedule property.
106. Now coming to the issue regarding possession over the suit schedule property. The trial Court came to the conclusion that plaintiffs miserably failed to establish the identity, correctness of the suit schedule land and their title, their case that they are in possession of the suit schedule land, which is proved to be land of the Government lying in between two survey numbers 129/73 and 75 GSD, J ccca_22_1999 129/56, cannot be accepted and liable to be brushed aside. This Court does not agree with the findings of the trial Court. The trial Court wrongly held that as there were disputes between the plaintiffs and Government from 1976 about the identity and possession and even assuming that the plaintiffs are in possession and enjoyment of the suit schedule land continuously and uninterruptedly hostile to the interest of the Government since 1964 till the date of institution of the suit in the year 1981, they cannot claim any title by way of adverse possession since the said possession is short of statutory period of 30 years to acquire title by way of adverse possession against the Government. As already held by this Court, for the reasons recorded in the aforesaid paragraphs, the plaintiffs have proved the ownership, title and identity of the suit schedule property, through oral and documentary evidence. Thus, in view of the abundant documentary evidence relied upon by the appellants/plaintiffs proving their title over the suit schedule land, the learned trial Court without adverting to the same, has wrongly dealt with the issue of adverse possession, which is bad in law and is also against the weight of evidence on record.
107. The learned Advocate General contended that there is no prayer for recovery of possession in the suit and in support of his contention, he relied upon the judgments in the matter of Vinay Krishna Vs. Keshav Chandra And Another28 and Ram Saran and Another V. Smt Ganga Devi29. These judgments are applicable only if it is conclusively established that the plaintiff is 28 (1973) 2 SCC 60 29 (1973) 2 SCC 60 76 GSD, J ccca_22_1999 not in the possession. In the present case at hand, neither the trial Court dealt with this aspect in its correct perspective nor the respondents/defendants have established that they are in exclusive possession of the suit schedule property. To prove the possession over the suit schedule property, the plaintiffs have adduced evidence and the same is observed hereunder:
i. The plaintiffs in their Plaint contended that they are in possession of the Suit Schedule property from the date of the purchase i.e., from 03.09.1964;
ii. Their Vendors were in possession of the suit schedule property which forms part of larger extent in Sy.No.129/56 since the date of their purchase through registered sale deed i.e., 27th Ardibehisht, 1355 Fasli corresponding to 27.03.1945.
iii. The Plaintiffs, without prejudice to their contentions, also took an alternative plea of adverse possession;
iv. PW-1 who is plaintiff No.2, in his evidence also stated that he is in possession from the date of the purchase i.e., 03.09.1964 onwards and also built compound wall. During his cross-examination, on behalf of the defendants, it was suggested to him that as he constructed the compound wall around the suit schedule property illegally, therefore got demolished the same which was categorically denied by him. Further, in the cross-examination, he also deposed that, he has personal knowledge about his vendors being in possession of the suit land prior to the date of the purchase;
v. The plaintiffs further got examined Pw-2 who is a resident of the vicinity of the suit schedule property. He deposed that the plaintiff No.2 is in possession of the suit schedule property since the time he attained 77 GSD, J ccca_22_1999 the age of discretion. He was examined on 20.03.1997 and his age is mentioned as 40 years. During his cross-examination, he stated that the distance between his house and the suit schedule property is 100 meters. He denied the suggestions given to him that the plaintiff No.2 is not the owner and possessor of the suit schedule property;
vi. The plaintiffs further got examined Pw-3 who stated to be the watchman of the suit schedule property from the year 1950 onwards appointed by the plaintiff's vendors and after the purchase by the plaintiff No.2, he continued to be the watchman. In his cross- examination, he admitted that he did not pass any receipts nor any agreement for being the watchman; vii. The defendants in their written statement merely denied that the plaintiffs are in possession. They claimed to have demolished the compound wall constructed by the plaintiffs in an attempt of unauthorized constructions. The defendants apart from mere denial, did not state anything to show that they are in possession of the suit schedule property being claimed by them to be in Sy.No.403 which according to them is vast extent of Ac.2.967-28 gts;
viii. DW-1 deposed that the plaintiffs constructed a
compound wall in the year 1981 which was
demolished by the Government in the year 1981 after issuing notices and conducting panchanama. Neither the copy of the notice is marked nor the panchanama to that effect. During his cross-examination, he admitted that as per records no notice was issued before demolition of the compound wall constructed by the plaintiffs nor he was present personally during demolition of the compound wall. He further admitted that the Suit Schedule land is a vacant land, the southern side of the suit schedule land is road, towards the eastern, western and northern sides, 78 GSD, J ccca_22_1999 there are private lands. He further admitted that in Sy.No.129/73 which is abutting to the west of the suit schedule property, the first plaintiff is in existence; ix. Apart from the above, as observed in the above paragraphs regarding the communication between the partnership firm and the defendants, it can be seen that Ex.B3 was issued by the firm to the defendant No.2 on 23.05.1976 mentioning that they are making constructions in the suit schedule property and abutting land in Sy.No.129/73 and the defendants/Government did not take any action. Only on 06.05.1979, the defendant No.2 got issued Ex. A14 requesting the firm to stop the fencing work and maintain status quo until further orders. This goes to show that the plaintiffs were in possession; x. That apart, it can be seen from the record that this Court granted Interim Injunction restraining the Respondents/Defendants No.1 and 2 herein from interfering with the possession of the appellant/plaintiff No.2 in respect of the suit schedule property by Order dated 15.02.1999 in C.M.P.No.3033 of 1999, which is still subsisting as on date and no Counter or Vacate Stay Application have been filed by the respondents/Government as such the conduct of the respondent/Government also shows that they are not in possession of the suit schedule property; xi. Demolition of compound wall goes to show that there was a compound wall existing and also goes to show the possession of the Plaintiffs. There is nothing on record to show that the defendants have initiated any proceedings by which possession was taken over by respondent Nos.1 and 2/Defendants. Therefore, it can be safely concluded that the defendants have attempted to take forceful possession by demolishing the boundary wall.
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108. In view of the aforesaid reasons, this Court holds that the plaintiffs have proved their possession over the suit schedule property.
109. According to the plaintiffs, during the earlier round of first appeal, i.e., C.C.C.A.No.44 of 1983, this Court granted interim Orders in C.M.P.No.14539 of 1992 dated 23.09.1992 directing the Government/defendants not to change the character of the suit schedule property. In violation of the said Orders, the defendant/Government, has allotted, 298 Sq.Yards to the respondent No.4 which forms part of the Suit Schedule Property. The appellant/plaintiff No.2 came to know about the alleged illegal allotment only when respondent No.4 interfered with their possession after the dismissal of the suit on 10.11.1998.
110. The respondent No.4 filed O.S.No.4403 of 1999 seeking permanent injunction against the plaintiff No.2 herein and other brothers and obtained Interim Injunction in I.A.No.796 of 1999 on 24.01.2000. Thereafter, the appellant No.1/plaintiff No.2 preferred C.R.P.No.3432 of 2000 before this Court which was dismissed by order dated 27.09.2000. While dismissing, this Court observed that the appellant No.1/plaintiff No.2 can pursue the present Appeal i.e., C.C.C.A.No.22 of 1999 as an application seeking impleadment of A.R.K. Raju (respondent No.4) which was already filed and pending as on that date. It was also clarified that lis pendent allottee, A.R.K. Raju, cannot take the benefit of any constructions made, in the event he loses.
111. From these facts, it can be construed that during the pendency of the litigation and existing Interim Orders, respondent 80 GSD, J ccca_22_1999 No.1/defendant No.1/State allotted 298 Sq.yards which forms part of the suit schedule property, to the Respondent No.4. The Counsel for the appellants argued that the Doctrine of lis pendens applies to the said allotment. The Counsel for the respondent No.4 admits that he does not claim any independent title. Section 52 of the Transfer of property Act, 1882, reads as under:
"52. Transfer of property pending suit relating thereto.-- During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable 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. 7[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.]"
112. The learned Counsel for the appellants relied upon the Judgment of the Hon'ble Supreme Court in the matter of Guruswamy Nadar v. P. Lakshmi Ammal30 it was held that:
"10. The principle of lis pendens is still settled principle of law. In this connection, the Full Bench of the 30 (2008) 5 SCC 796 81 GSD, J ccca_22_1999 Allahabad High Court in Ram Peary [AIR 1978 All 318] has considered the scope of Section 52 of the Transfer of Property Act. The Full Bench has referred to a decision in Bellamy v. Sabine [(1857) 44 ER 842] (ER at p. 847) wherein it was observed as under: (Ram Peary case [AIR 1978 All 318] , AIR p. 319, para 4) "4. ...'It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.
Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end.' "12. The Full Bench of the Allahabad High Court further referred to the work of Story on Equity, 3rd Edn., (Para
406) which expounded the doctrine of lis pendens in the terms as follows: (Ram Peary case [AIR 1978 All 318] , AIR p. 319, para 6)
6. ... Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may 82 GSD, J ccca_22_1999 operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annul the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."
...emphasis supplied
113. It can be inferred that respondent No.4 interfered with the possession of the appellants only after the dismissal of the suit. The appeal was filed in time and interim injunction was existing. Admittedly, respondent No.4 knew about the pendency of the present litigation. There is no genuineness nor the transaction is bona fide and knowing fully well, he accepted the allotment in the year 1992 and started making constructions only in the year 1998- 99 after result of the suit. It can be construed that he was waiting for the result in the suit so that he can interfere in order to further cause loss and hardship to the Plaintiffs who are before the Courts awaiting justice from about half century. The interest of the appellants who have approached the Courts and waiting for justice from last almost 41 years, has to be given superiority which would be paramount in the interest of justice. Also, this Court as stated above, made it clear that the Respondent No.4 shall not take any benefit in case he loses the litigation. Respondent Nos.1 and 2/Defendants ought not to have made such an allotment pending litigation. This Court condemns the conduct of the Government in allotting a piece of land pending litigation and existing interim orders which is nothing but an abuse of the process of law.
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114. The Hon'ble Supreme Court of India in the matter of Padmawati v. Harijan Sewak Sangh31, has observed as under:
"17. The faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make the wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years' long litigation. Despite the settled legal positions, the obvious wrongdoers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the courts."
...emphasis supplied
115. In the light of the observations made by the Hon'ble Supreme Court, the respondents are also liable to pay mesne profits and damages to the appellants for causing loss and damage for these several years by allotting the extent of 298 Sq.yds which forms part of the suit schedule property to respondent No.4 illegally.
116. Having regard to the aforesaid legal propositions and in the facts and circumstances of the present case as reflected from the material available on record, as the appellants have clearly established the ownership, title and possession of the plaintiff No.2 beyond all probabilities and the respondents/defendants having failed to establish their case as 31 (2012) 6 SCC 460 84 GSD, J ccca_22_1999 setup by them to dislodge the appellants nor they produced any cogent evidence to show that the respondents/defendants are the owners and possessors of the suit schedule property.
117. In the result, the Appeal is allowed with costs payable by the respondents/defendant Nos.1 and 2 and the Judgment and decree dated 10.11.1998 in O.S.No.609 of 1981 passed by the V Senior Civil Judge, City Civil Court, Hyderabad is set aside. The respondents are restrained from interfering with the possession of the appellants over the suit schedule property in any manner whatsoever. The lis pendent allottee i.e., respondent No.4 shall restore possession of the said extent of 298 Sq. Yds. forming part of the suit schedule property to the appellants within three months from the date of this judgment. Liberty is also granted to the appellants to seek damages and mesne profits from the lis pendent allottee i.e., respondent No.4.
118. I.A.No.2 of 2021 filed by respondents/defendant Nos.1 and 2 is dismissed.
Consequently, miscellaneous petitions pending if any shall stand closed.
_____________________ JUSTICE G.SRI DEVI 01.04.2021 Gsn/gkv