Telangana High Court
R C Chadha vs State Of Telangana on 21 June, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CITY CIVIL COURT APPEAL No.235 OF 2018
JUDGMENT:
This first civil appeal has been preferred by the plaintiff in O.S.No.49 of 2006 on the file of X Additional Chief Judge, City Civil Court, Hyderabad, questioning the correctness of Judgment and Decree dated 17.03.2018 whereunder his suit was partly decree, granting perpetual injunction, but denying the relief of declaration of title. This first appeal has been filed under Section 96 of Code of Civil Procedure (for short 'CPC') on various grounds.
2. Before adverting to the grounds, it is just and necessary to refer the pleadings of both parties before the trial Court and also to see as to how the trial Court came to the conclusion that the appellant herein is not entitled to declaration of title in spite of the fact that a perpetual injunction has been granted, protecting his possession on the suit schedule property.
3. According to the plaint filed by the appellant before the trial Court, he has claimed that he has got 2 absolute ownership and possession on a plot admeasuring 419 sq.yards farm part of layout No.,13/sub/layout/8/86/529 in Sy.No.129/50 (old) with corresponding new No.338 correlated to TSLR No.6, new Sy.No.403 (part) correlated to TSLR No.5/Shaikpet Village, situated at Road No. 12, Banjara Hills, Hyderabad.
4. The appellant has claimed that one Hussain Ali Khan was owner and possessor of Ac.3-24 gts., in Sy.No129/50 which is correlated to TSLR No.6 and he has enjoyed the property till his death which took place in 1956 and after his death, the legal heirs of said Hussain Ali Khan continued possession and enjoyment on the said property. They have filed a suit vide O.S.No.365 of 1985 before I Additional Judge, City Civil Court, Hyderabad, seeking partition of the said property. However, the said suit was ended in compromise and as per the said compromise a final decree was passed on 08.08.1985. According to the said final decree, plotted area ofAc.3-24 gts., in Sy.No.331 was allotted to the parties. Plot No.3 and 3 4 of the plan were allotted to Smt.Shabana Haji and Manjoor Ali Khan respectively.
5. The appellant has further averred that the legal heirs of Hussain Ali Khan have obtained permission from ULC authorities to alienate the property and they along with other heirs of Ali Khan agreed to sell the respective plotted land to one K.Satyanarayana Raju under an agreement of sale dated 31.03.1986 with an agreement to execute a registered sale in his favour or in favour of his nominees. The appellant has also claimed that said Hussain Ali Khan obtained two modified layout sanctioned plans from Municipal Corporation Hyderabad (for short 'MCH'). Therefore, the suit schedule property forms part of final sanctioned layout permit No.131 and subsequently, the GPA holder of the said Satyanarayana Raju and others have sold the suit schedule property in favour of the appellant under a registered sale deed dated 20.09.1986.
6. The appellant has also claimed that the erstwhile Government of Andhra Pradesh and other authorities relaxed the utilization of the open space in the 4 sanctioned layout. Thereby, he could made accretions over the suit land by removing boulders and leveled the property. He could construct a building for two servant quarters within the compound wall and obtained permission from MCH for construction of super structures of ground + two floors.
7. The appellant has further averred in the plaint that when the construction was in progress, the officials of the 1st respondent entered the property and without any notice started demolishing the structures claiming that the suit land forms part of Government land and caused damage to the portion of the property. Therefore, he has filed a writ petition vide W.P.No.3041 of 1998 and obtained stay for preventing the 1st respondent, demolishing the structures. However, before he could communicate the orders, the officials of 1st respondent demolished first and second floor of the property, consequently they caused loss of Rs.3,00,000/- to the appellant. The appellant has further averred that while disposing W.P.No.3041 of 1998, the High Court directed the 2nd respondent to receive the 5 objections with regard to any proceedings that may be initiated by him within sixty (60) days. The appellant has further pleaded in the plaint that the High Court dismissed the review petition filed by respondent No.1 for default ad when respondent No.1 filed a petition for restoration of review petition, but the said petition was disposed off by the High Court with an observation that order dated 19.02.1998 in W.P.No.304 of 1998 will not disentitle the Government from moving petitions for eviction and recovery of possession. The appellant filed an application before the Joint Collector seeking no objection certificate (NOC) for reconstruction of the building, but the said application was forwarded to the 2nd respondent. The 2nd respondent by way of malafied act, issued a show cause notice on 08.01.2004 under A.P.Land Encroachment Act, 1905. The appellant has filed detailed explanation/objections and subsequently the 2nd respondent did not pass any order.
8. The appellant while claiming that the suit property is a part and parcel of Sy.No.6 and layout 6 No.13/Sub./Layout/8-86/529. Whereas, the Government started claiming that the said property is part of T.S.No.5. While disputing the said contention, the appellant filed the suit for declaration to declare his absolute right over the suit schedule property and also for a perpetual injunction to restrain the respondents/defendants from interfering with his possession.
9. The respondents/defendants have contested the suit, a written statement has been filed by respondent No.2 disputing the title of the appellant over the suit schedule property. The 2nd respondent/defendant No.2 in its elaborate written statement submitted the historical background of Sy.No.404 of Shaikpet village and further contended that the description of the suit schedule property demonstrates the appellant's contention and it proved that the suit schedule property is farm part of Sy.No.403 of Shaikpet which is admittedly a Government land. The respondents are not parties to the suit vide O.S.No.366 of 1985. Therefore, the judgment and decree in the said suit will not bind the respondents/defendants. 7 The alleged compromise decree in the said suit was in respect of plotted area of Ac.3.24 gts., in Sy.No.331 of Shaikpet. But, the land claimed by the appellant falls in T.S.No.5 Block-H Ward No.10 which is correlated to old Sy.No.403 of Shaikpet village which is classified as Government land. Therefore, according to the respondents, the transactions mentioned in the para No.3 of of the plaint about sanction of permission from ULC, obtaining permission for construction etc., is not in respect of property over which the appellant raised structures. But, the said property is a Government land. The respondents have claimed that though the appellant obtained permission from ULC authorities, construction permission from the corporation, the appellant tried to encroach upon the Government property. Therefore, he is not entitled to declaration of title and since the alleged possession is unauthorized, he is not entitled to perpetual injunction, thereby, sought for dismissal of the suit.
10. Based on the above rival contentions, the trial Court has framed the following issues:
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1. Whether the suit schedule property forms part of Sy.No.129/50 (OLD) corresponding to new Sy.No.331 correlated to TSLR No.6?
2. Whether the plaintiff is entitled for declaration of title as prayed for?
3. Whether the plaintiff is entitled for injunction as prayed for?
4. To what relief?
11. During the course of trial PWs 1 to 4 were examined on behalf of the present appellant herein. They have marked Exs.A1 to A37 and Exs.X1, X1A, X1B and X1C. On behalf of the respondents, two (2) witnesses were produced. However, since the respondents could not produce DW1 whose evidence affidavit was filed for cross examination, his evidence was eschewed and one more witness was examined as DW2. Exs.B1 to B5 has been marked.
12. The trial Court having appreciated the pleadings and evidence of both parties, held that the suit schedule property falls under Government land. Therefore, the appellant is not entitled to declaration of title. However, in view of the admissions made by the respondents that the appellant was in possession of the property and in view 9 of the other evidence placed before the trial Court, a perpetual injunction was granted in favour of the appellant, to continue the possession till he is lawfully evicted from the suit schedule property.
13. Being aggrieved by the said Judgment, the appellant has filed the present appeal on the following grounds:
The trial Court failed to appreciate the pleadings and evidence produced by the appellant in a proper way. The approach of the trial Court in refusing the relief of declaration, is erroneous and without considering the evidence produced by the appellant. The trial Court committed an error in identifying the suit schedule property as Government property in spite of the evidence available on record. The finding recorded by the trial Court, as if the appellant did not explain the discrepancy in the area of the plot with that of the area mentioned in title deed marked as Ex.A1 is totally misconception of facts on record. The trial Court failed to appreciate the well settled 10 principles of law that the entries in town survey land register are not conclusive proof of title.
14. Therefore, the finding recorded by the trial Court as if the suit schedule property is Government land and it forms part of ESLR No.5 is an erroneous conclusion. The finding of the trial Court that appellant did not file any objection to the report of Deputy Director, Survey Land Records, is totally without application of mind. The trial Court without verifying the entire report, but based on a portion of the survey report came to an incorrect conclusion. The trial Court failed to consider Ex.A33- layout, which relates to the suit schedule property clearly shows that suit plot forms part and parcel of layout, marked as Ex.A33 and there is an admission by PW3. But, the trial Court field to appreciate the fact that a portion of the report vide Ex.X1 filed by PW3 clearly shows that the schedule property falls in plot No.9. Therefore, came a wrong conclusion and dismissed the suit without proper appreciation of the other documents. The appellant has claimed that the respondents are no way connected with 11 the suit schedule property. He has got absolute right over the suit land. Therefore, sought for setting aside the portion of the impugned Judgment, whereunder the trial Court refused to grant declaration of title and prayed for the said relief.
15. Heard both parties.
16. Now the following points arose for consideration:
1. Whether the trial Court failed to appreciate the pleadings and evidence adduced by the parties in a proper way, thereby came to wrong conclusion?
2. Whether the appellant/plaintiff was able to prove his title on the suit property? If so, whether the findings of the trial Court are liable to be set aside?
3. Whether the Judgment of the trial Court is sustainable?
17. The appellant has filed the suit before the trial Court seeking declaration of his title and also for perpetual injunction on the ground that he has purchased the property from a rightful owner. Since the suit was filed for perpetual injunction and also for declaration, it is for the appellant herein to prove the valid title of the vendor over the suit schedule property and also the purchase. In order 12 to prove these aspects, the appellant wanted to rely on Exs.A1 to A37. Whereas, the respondents/defendants have claimed that the vendor of the appellant herein had no valid title over the property and the suit schedule property was in fact a Government land, thereby, the appellant cannot be declared as owner of the suit schedule property. However, the trial Court having found that the appellant herein could not prove his title and title of the vendor, held that the appellant was found to be in possession of the suit schedule property, thereby, granted a perpetual injunction.
18. Neither there is any cross appeal, nor there is any separate appeal filed by the respondents/defendants questioning the said finding i.e., finding about the possession of the appellant over the property, thereby, it has become final. However, according to the documents produced by the parties to the suit, it is apparent that the suit schedule property as claimed by the appellant was not in the said survey number and as per the contention of the appellant, it is the Government land.
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19. In order to support his claim, the appellant has filed pahanies for the land in survey No.129/50 and as per Ex.A36 Hasan Ali Khan was shown as pattedar and possessor of the land. The respondents/defendants disputed the location of land in survey No.129/50. According to the evidence of PW3 who conducted survey and as per Exs.X1, X1a and X1c and also as per Ex.A37 land in respect of TSLR No.6 i.e., old survey No.129/50 corresponding to new survey No.331. As per Ex.X1 survey report, dated 15.12.2007 the land covered by TSLR No.6 corresponding to Sy.No.331. Therefore, according to PW3, the schedule land was in TS No.5 correlating to Sy.No.403. It was also his evidence that it is not tallying to the boundary of Sy.No.129/50. According to the evidence of PW3 under the documents referred above plot No.9 i.e., suit property is covered by TSLR No.5 which is admittedly a Government land. It was also elicited from PW3 that he has obtained the measurements of the layout. As rightly observed by the trial Court, no malafidies can be attributed to PW3 as he is from an independent body and he 14 completed the survey as per the procedure. Nothing was elicited from PW3 to show that he was speaking falsehood to support the contentions of the respondent.
20. The record produced by both parties and the evidence referred above clearly indicates that the property that was purchased by appellant/plaintiff is in TSLR No.5 and it also appears that the vendor of the appellant having encroached the Government land, alienated the same to the appellant. Therefore, the appellant was not able to prove the valid title of his vendor, thereby he cannot claim a better title than what his vendor had over the property. However, there is evidence before the Court to accept that the appellant was in possession of the property which is evident from the payment of property tax which was accepted by the concerned Government department. Therefore, the appellant was rightly held to be entitled to have a perpetual injunction. But, in the absence of any acceptable evidence, which would show the valid title of his vendor, no declaration can be granted in favour of the appellant. As such, the trial Court rightly dismissed that 15 particular relief. Therefore, there are no grounds to interfere with the finding of the trial Court and the appeals is liable to be dismissed.
21. In the result, the appeal is dismissed. No costs. Pending miscellaneous applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVARAO NAIDU Date:21.06.2024 PSSK