Mandal Revenue Officer vs Mohd. Yaseen
2023 Latest Caselaw 2865 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

               SECOND APPEAL No.1533 of 2004

JUDGMENT:

This appeal is filed against the Judgment and decree

dated 20.10.2003 in A.S.No.398 of 2001 passed by the learned

II - Additional Chief Judge, City Civil Court, Hyderabad, in

which the Judgment and decree dated 08.09.1997 in

O.S.No.3766 of 1992 passed by the learned V - Assistant Judge,

City Civil Court, was confirmed.

2. The suit in O.S.No.3766 of 1992 was filed by the

respondent/plaintiff for perpetual injunction restraining the

appellant/defendant from interfering with the peaceful

possession and enjoyment of the suit schedule property i.e.,

Dargah and Grave yard admeasuring 9364 Sq.yrds situated at

opposite of D.B.R.Mills, Tankbund, Hyderabad. The trial Court

after considering the arguments of both sides decreed the suit.

Aggrieved by the said Judgment, defendant therein preferred an

appeal before the first appellate Court and the same was

dismissed by confirming the Judgment of the trial Court.

Aggrieved by the concurrent findings of both the Courts,

defendant preferred the present second appeal.

3. The learned Counsel for the appellant/defendant mainly

contended as follows:

"(i) Whether the lower appellate Court is justified in not looking into the documents filed in I.A.No.2317 of 2003 in A.S.No.398 of 2001 while ordering the said I.A on 17.09.2003 that "Counter filed. Heard. In the circumstances of the plea of the petitioner, petition is allowed as documents will be considered on merits."?

(ii) Whether the lower appellate Court is justified in not at all making any discussion with regard to the issues framed by the trial Court?"

4. The parties herein are referred as plaintiff and defendant

as arrayed in the trial Court for the sake of convenience.

5. The plaintiff in the suit stated that he was the Mutawalli

of grave yard and Dargah Sarogro Mohiddin Shah Sofi situated

at Tankbund, Hyderabad and he was looking after its affairs

from the date of appointment of his Mutawaliship as per the

resolution passed by the Andra Pradesh Wakf Board vide file

No.175/77 dated 01.10.1977. When the grandfather of the

plaintiff was acting as Mutawalli, some persons tried to interfere

with the peaceful possession of the said Dargah, as such his

grandfather filed a suit in O.S.No.258 of 1967 and the same was

decreed on 28.09.1974. After the appointment of the plaintiff as

Mutawalli, when the municipal corporation tried to lay a road in

the year 1978, he filed O.S.No.31 of 1979 and it was decreed in

his favour. Again in the year 1984, one Ramaswamy and

Mohd.Iftekar tried to encroach on a portion of the suit schedule

property, as such he filed another suit in O.S.No.650 of 1984

and the same was decreed in his favour on 11.07.1989. He filed

another suit in O.S.No.3143 of 1990 against the Deputy

Collector, Hyderabad and same was also decreed in his favour.

The suit schedule property was a Wakf property and the same

was published in Gazette of Andhra Pradesh State dated

09.10.1952 and also on 27.06.1985. There was no dispute

regarding the boundaries or area or Mutawalliship, but the

defendant without any right or interest harassing the plaintiff

with a malafide intention, as such plaintiff got issued legal

notice under Section 80 of the C.P.C and the same was received

by the defendant on 10.06.1992, but he has not given any reply

and the defendant tried to dispossess him by force on

27.06.1992, as such he filed suit for injunction before the trial

Court.

6. In the written statement filed by the defendant, it was

stated that the land in T.S.No.7, 8, 9/1 and 10, Ward No.76,

block - B of Bakaram Village was a Government land. A small

piece of land in T.S.No.7 of Ward No.76, block - B of Bakaram

Village measuring 0-7-08 Sq.mtrs was an old grave yard land as

recorded in Town Survey Land Register. When a dispute arose

between one Satyanarayana, who tried to grab the Government

land in Sy.No.T.S.No.8, 9/1 with the plaintiff, who had already

grabbed the Government land in T.S.No.8, the case was brought

to the Court of Special Executive Magistrate, Hyderabad, who

passed orders under Section 145 of Cr.P.C and it was noticed

that plaintiff was a land grabber and trying to grab the

Government land, as such action was initiated to file case under

Land Grabbing Act. During enquiry, it was revealed that

plaintiff who was in occupation of the land in T.S.No.7, Ward

No.76, Block - B, which was a grave yard had encroached upon

the Government land in T.S.No.8 abutting the grave yard. When

action was initiated to evict the land grabber, plaintiff

approached the Court by filing the suit. Plaintiff was a land

grabber and he was in possession of the grave yard in T.S.No.7,

Ward No.76, Block - B of Bakaram Village, which was a small

piece of land situated at the North-West corner of Government

land in T.S.No.8 admeasuring 1-52-96 Sq.mtrs. Taking

advantage of the proximity of the Government land to the grave

yard, he encroached upon the Government land in T.S.No.8.

The defendant further stated that as he was the custodian of

the Government land, it was the bounden duty to safeguard the

Government land, accordingly steps were taken to evict him and

plaintiff was trying to mislead the Court by misrepresenting the

facts without any title to the suit property and thus requested

the Court to dismiss the suit.

7. Plaintiff was examined as P.W.1 and marked Exs.A1 to

A14. Ex.A4 was the certified copy of the Map showing the

Dargah and grave yard of Hazarath Mohuddin Shah, Ex.A9 was

the certified copy of the A.P. Gazette dated 27.06.1985 and

Ex.A10 was the certified copy of the Muntaquab No.968 issued

by the Endowment department. As per the documents, suit

schedule property was the Wakf property and the same was

recorded in the Wakf Board records and it was also published in

the Endowment records on 09.10.1952 and 1985. Ex.A9 reveals

the extent of Dargah and the grave yard, on page No.2 the name

of the Mutawalli was disclosed as Mohd.Madar (died) and at

present Mohd.Yaseen grandson of Mohd.Madar succeeded the

office of the Mutawalli by way of Will deed. The properties

covered under Exs.A1 to A9 are one and the same and the

litigation was started in the year 1977 from the grandfather of

the plaintiff. As per Ex.A3, plaintiff filed a suit in O.S.No.3143 of

1990 against the Deputy Collector, Hyderabad and the same

was decreed in his favour. Even under Ex.A10, the certified copy

of the Muntaquab was issued by the Secretary of the

Government, in column No.2 the name of Mohd.Madar was

disclosed and in column No.11 Mohd.Yaseen was mentioned

after the death of his grandfather Mohd.Madar and the land

revenue area in survey number was mentioned as 'Nil'. Even if it

is assumed that the suit schedule property belongs to revenue

department in column No.10 of Ex.A10, it should have been

shown as government land, but it was shown as revenue area -

'Nil', as such defendant has no right to question that the suit

property belongs to the Government land. As per Ex.A13,

plaintiff proved that he was in possession of the suit property

and the amendment was made vide resolution No.211 dated

01.12.1977 by A.P.Wakf Board and the entire area was surveyed

and notification was also issued by the A.P.Waqf Board in the

gazette. As per Ex.A10, property belongs to Wakf Board and

plaintiff was in possession of the suit property after the death of

his grandfather. Defendant contended that the suit property to

an extent of 157 Sq.mtrs was adjacent to T.S.No.8, which was a

government land and plaintiff grabbed the suit property and

thus requested the Court to dismiss the suit.

8. D.W.1 in his evidence stated that there was a grave yard

in T.S.No.7 in R.S.No.50 and 160, presently located in ward

No.76, block - B of Bakaram village, but there was no Dargah in

that area. It was the Government land and plaintiff has no right

to file the suit, but he stated that he had no knowledge of

O.S.No.3143 of 1990 and he also stated that there was no

record available in the office regarding the gazette publication

and legal notices said to have been given by the plaintiff are not

available in the record and also stated that he did not know

whether plaintiff filed the suit against the Deputy Collector and

whether the suit property and the property in O.S.No.3143 of

1990 is one and the same. He further admitted that till today

they have not issued any land grabbing proceedings pertaining

to the suit property. He had not filed any document to show

that the land adjacent to the grave yard in T.S.No.8 was a

Government land.

9. Mere pleadings in the written statement are not

admissible, unless it is proved by way of documentary evidence.

It was also stated that legal notice issued under Ex.A1 was

acknowledged by M.R.O, Musheerabad. Ex.A9 reveals the rule

of succession to the office as Mutawalli vide resolution No.212 of

1977 dated 01.12.1977. In view of the A.P Gazette notification

under Ex.A2, the suit property was covered under A.P Wakf

properties and hence the argument of the defendant that

plaintiff encroached the Government land is incorrect.

Defendant failed to prove that the suit property is a Government

land and thus the question of encroachment of the Government

land does not arise. As the defendant has not initiated any land

grabbing proceedings till today, he cannot dispossess the

plaintiff without due process of law. If at all, the suit schedule

property is a Government land, he should have initiated land

grabbing proceedings, but he failed to do so. Defendant

admitted that the suit Dargah and grave yard is admeasuring

708 Sq.mtrs in T.S.No.7 and thus the possession of the plaintiff

is proved and title is also proved and accordingly perpetual

injunction was granted in favour of the plaintiff. Aggrieved by

the said Judgment, defendant preferred an appeal and the first

appellate Court considering the documents filed by the plaintiff

in the suit, confirmed the Judgment of the trial Court. Even

then the defendant preferred the present second appeal, but he

has not filed any document on his behalf either before the trial

Court or before the appellate Court.

10. The learned Counsel for the appellant/defendant

requested the Court to grant an opportunity to initiate

proceedings under Land Grabbing Act. Though the M.R.O,

Musheerabad, intended to initiate proceedings under the Land

Grabbing Act during the pendency of the suit in the year 1992,

he had not initiated the same. So also, even during the

pendency of the appeal, he has not initiated any land grabbing

proceedings. Therefore, now opportunity cannot be granted to

him at this stage. In fact, the grandfather of the plaintiff and

also the plaintiff filed several suits before various forums and all

the suits were decreed in their favour and the suit schedule

property was declared as Waqf property in Gazette notifications.

Though the defendant contended that plaintiff encroached part

of land in T.S.No.8, which is a Government land, he has not

initiated any proceedings under Land Grabbing Act and he has

not filed even a scrap of paper to substantiate his version. Both

the trial Court and the first appellate Court considering the oral

and documentary evidence of plaintiff, rightly decreed the suit

in favour of the plaintiff. Even then the matter was carried to

the second appeal only with an intention to harass the plaintiff

in the suit. Therefore, this Court finds that there are no merits

in the second appeal and is liable to be dismissed with costs.

11. In the result, the second appeal is dismissed with costs,

confirming the Judgment and decree passed by the first

appellate Court dated 20.10.2003 in A.S.No.398 of 2001 and

also the Judgment and decree passed by the trial Court dated

08.09.1997 in O.S.No.3766 of 1992.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATE: 04.10.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

SECOND APPEAL No.1533 of 2004

DATE: 04.10.2023

TRI