Telangana High Court

Takur Kamal Singh, vs The Municipal Corporation, on 22 April, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

       THE HONOURABLE DR.JUSTICE G. RADHA RANI

                      SECOND APPEAL No.146 of 2015


JUDGMENT:

This Second Appeal is filed by the appellant - plaintiff represented by his

legal representatives aggrieved by the judgment and decree dated 16.09.2011

passed in A.S.No.36 of 2008 by the learned Special Sessions Judge for SC / ST

Cases - cum - VII Additional District Judge at Warangal confirming the

judgment and decree dated 13.02.2008 passed in O.S.No.75 of 2001 by the

learned Principal Senior Civil Judge at Warangal.

2. The parties are hereinafter referred as plaintiff and defendants as referred

in the trial court.

3. The brief facts of the case that led to filing of the second appeal are: The

plaintiff filed a suit seeking to declare the endorsement of the office of the

Warangal Municipal Corporation dated 03.03.1997 as null and void and to

restrain the defendants from interfering with his possession of the suit schedule

property, an open plot measuring 1366.66 square yards, out of Survey

No.66/B/2 situated at Lashkar Singaram Village, Hanumakonda Mandal,

Warangal District.

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4. The contention of the plaintiff was that he along with his father and his

elder brother were absolute owners of Ac.5-18 guntas of land in Survey

No.66/B/1 and 66/B/2 of Revenue Village, Lashkar Singaram situated at

Hanumakonda, now in the vicinity of Kakatiya University Campus,

Vidyaranyapuri. The same was the patta land of his father late Sri T.Ganesh

Singh. The plaintiff and his elder brother (Sri T.Kousal Singh) were enjoying

the said land as coparceners for decades. On 31.03.1975, after the death of their

father, the plaintiff and his brother enjoyed the property as exclusive owners. In

the year 1981, the plaintiff and his brother Kousal Singh sold an extent of

Ac.4-00 guntas of land out of Ac.5-18 guntas to Ekasila Housing Co-operative

Society Limited (defendant No.3). The plaintiff and his brother executed an

agreement in favor of defendant No.3 by earmarking the area sold to it after

getting it measured and demarcated and also delivered possession thereof. The

plaintiff and his brother retained for themselves, the remaining part of the land

i.e.Ac.1-18 guntas. Subsequently, they effected partition in the year 1983 by

metes and bounds, in which the suit schedule property apart from other

properties fell to the share of the plaintiff. The plaintiff had plotted out his

remaining land and sold out various plots to third persons, who in turn got

constructed the houses. The plaintiff had retained the suit schedule property for

his personal use. None of the defendants or any third parties had any right over

it. In the month of April, 1993, the plaintiff constructed a basement encircling

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the suit schedule property with an intention to raise a compound wall over it to

avoid encroachment from third parties. In the month of April, 1996, he

approached the Municipal Corporation, Warangal i.e. defendant No.1 with an

application for grant of permission to construct the compound wall. The

defendant No.1 on receipt of above application kept it pending for a pretty long

time and rejected it on 27.11.1996 with an endorsement that the suit schedule

property was shown as open land meant for public propose in the layout

No.273/1982. The plaintiff submitted that he had nothing to do with the so

called layout No.273/1982. He neither applied for sanction of lay out nor paid

any layout fee or charges. He or his brother never submitted any layout in

Ac.1-18 guntas of land including the suit schedule property. As such, the layout

No.273/1982 was not binding on him. Without the plaintiff duly executing and

registering an instrument of transfer in favor of defendant No.1 accompanied by

delivery of possession, the land of private persons could not be owned by

defendant No.1.

4.1. He further submitted that he made an application on 16.02.1996 along

with plan to the defendant No.1 seeking permission for construction. The

defendant No.1 kept the same pending for nine months and gave a vague

endorsement on 27.11.1996 stating that the suit schedule property was open

land left by the plaintiff along with some other technical objections. Under the

Municipal Corporation Act, it was deemed that if the Corporation failed to

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consider or reject the application within 30 days, it was deemed that permission

was granted. As such, the defendant No.1 had no right whatsoever to give such

endorsement at a belated stage. The officials of defendants 1 and 2 were trying

to interfere with his possession in the suit schedule property by removing the

existing basement and fencing raised by the plaintiff, claiming it to be their

property. The defendant No.3 and residents residing in the colony were

instigating defendants 1 and 2 by making false representations stating that the

suit schedule property belonged to defendant No.1. The defendants 1 and 2

without ascertaining from the records, whether any layout was sanctioned at the

instance of the plaintiff in respect of the suit schedule property were interfering

with the possession and enjoyment of the plaintiff. It had become a day to day

problem to the plaintiff to protect his property from the hands of defendants 1 to

3, as such filed the suit.

5. During the pendency of the suit, the defendant No.4 was also impleaded

as per the orders in I.A.No.2412 of 1998 dated 12.11.1998.

6. The defendant No.1 filed written statement contending that the suit land

was an open place left for public purpose as set out in the layout plan 273/1982.

The plaintiff was neither the owner of the suit land nor he was in possession of

the suit land. The suit land was purchased by the defendant No.3 Society and

the Society in turn obtained the said layout for Ac.5-18 guntas. The Defendant

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No.1 further contended that the plaintiff suppressed the true facts that the

plaintiff and his brother Kousal Singh executed a document dated 20.01.1982 in

favor of defendant No.3. On the basis of the document dated 20.01.1982, the

defendant No.3 Society made the land measuring Ac.5-18 guntas into 48 house

plots leaving the remaining land towards roads and public open place as shown

in the layout 273/1982. The plaintiff's contention that the suit land fell to his

share in the partition was false.

6.1. He further contended that it was impracticable for the plaintiff to hold

1366.66 square yards of land while admitting to have sold some plots. The

plaintiff did not show how and when the alleged Ac.0-29 guntas of land was

plotted independently and whether the plaintiff had obtained any layout for his

land. The plaintiff and his brother Kousal Singh were liable for penal

consequences for having not filed their declaration as required under the said

law. He further contended that the suit land was kept at the disposal of the

Municipal Authorities by operation of law. The said land was developed as

park and the plaintiff was never in possession of the suit land and prayed to

dismiss the suit.

7. The defendant No.2 also filed written statement contending that the

schedule property was shown as an open land in the approved layout

No.273/1982 and it was developed as park and the same was under the effective

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control of defendant No.1 and reiterated the contents of the written statement of

defendant No.1.

8. The defendants 3 and 4 filed memos adopting the written statement filed

by defendant No.1.

9. Basing on the said pleadings, the trial court framed the issues as follows:

i) Whether the plaintiff is absolute owner and possessor of the suit schedule property?

ii) Whether the endorsement of defendant No.1 dated 03.03.1997 can be declared as null and void by way of declaration?

iii) Whether the plaintiff is entitled for grant of permanent injunction against the defendants over the suit schedule property as prayed for?

iv) To what relief?

10. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A9 on

his behalf. On behalf of the defendants, the Town Planning Supervisor from the

office of defendant No.1 was examined as DW.1 and Exs.B1 to B5 were

marked.

11. On considering the oral and documentary evidence on record, the trial

court observed that though the plaintiff contended that he and his brother sold

only Ac.4-00 acres of land to defendant No.3 Society and retained Ac.1-18

guntas of land, but not filed the said agreement executed in favor of defendant

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No.3 Society and had not filed any document to show that they were in

possession of Ac.1-18gts. of land and the plaintiff failed to show that he was the

owner of the plaint schedule property measuring 1366.66 square yards and that

he was entitled to make construction in the said land. Then only, he would be

entitled to get permission after considering the plans if any enclosed by him, but

did not file any such plan. Exs.A1 to A9 were not showing the possession of

the plaintiff over the suit schedule property as on the date of filing the suit and

failed to state the extent of land that fell to his share and to his brother's share or

the plots sold by him. He failed to show that he was in possession of the

property shown in the schedule within the specified boundaries and dismissed

the suit filed by the plaintiff. The trial court also observed that the burden of

proof would lie on the plaintiff to prove the said facts.

12. Aggrieved by the said dismissal of the suit, the plaintiff preferred

A.S.No.36 of 2008. A.S.No.36 of 2008 was heard by the Special Sessions

Judge for SC / ST Cases - cum - VII Additional District Judge, Warangal and

vide judgment and decree dated 16.09.2011 dismissed the appeal confirming the

judgment of the learned Principal Senior Civil Judge, Warangal dated

13.02.2008.

13. Aggrieved by the said judgment and decree passed by the learned Special

Judge for SC / ST Cases - cum - VII Additional District Judge, Warangal in

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A.S.No.36 of 2008 dated 16.09.2011, the appellant - plaintiff preferred this

appeal contending that both the courts below went wrong in placing the burden

of proof on the plaintiff and insisting on the principle that the plaintiff who filed

the suit had to establish his own case and should not depend upon the weakness

of the defendant. Both the courts below ought to have considered that non-

production of alleged layout plan No.273/1982 by respondent No.1 raises an

adverse inference against respondent No.1 and allows to draw presumption in

favor of the appellant - plaintiff in view of Section 114 of the Evidence Act.

The trial court misdirected itself in holding that the burden was always on the

plaintiff who filed the suit and ignored that the burden of proof was a pendulum,

which would keep shifting to other side depending upon the facts and

circumstances of the case. Both the courts below failed to take into

consideration that out of Ac.5-18 guntas, only Ac.4-00 guntas was sold to

respondent No.3. When the contention of the respondents was that the entire

land was sold to respondent No.3 and layout was sanctioned for Ac.5-18 guntas,

the burden would be on the said respondents to prove the same by producing a

copy of sanctioned layout, which the respondents failed to do so. Both the

courts below failed to consider that the respondent No.3, who purchased the

plaintiff's Ac.4-00 acres of land did not file its written statement and remained

ex-parte. Even then, both the courts below believed the version of respondent

No.1 that the entire Ac.5-18 guntas of land of the plaintiff was sold to

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respondent No.3, which was grossly unjust and erroneous. The trial court and

the First Appellate Court erroneously held that the suit property forms part of

open land in approved layout No.273/1982, even when the respondent No.1,

who was the custodian of the said layout did not produce the same before the

Courts. Both the courts failed to consider the fact that the ownership and the

title of the plaintiff to Ac.5-18 guntas of land was undisputed. Only the extent

of land sold to respondent No.3 was only disputed by respondent No.1 alone on

the basis of alleged layout Plan No.273/1982. The courts below ought to have

insisted for production of the said layout for proper adjudication of the case.

Both the courts below wrongly held that the plaintiff failed to file any document

to prove his possession over the suit schedule property especially when the

plaintiff filed Ex.A1 to A5 pahanies, which revealed his continuous possession.

14. During the pendency of the appeal, the appellant - plaintiff died and his

legal representatives as appellants 2 to 5 were brought on record as per the

orders in I.A.No.2 of 2020 dated 04.01.2022. The appellant No.5 filed the

General Power of Attorney (for short "GPA") on behalf of other appellants 2, 3

and 4 and argued the case as party-in-person on the proposed substantial

questions of law.

15. The jurisdiction of the High Court to entertain the Second Appeal is

purely on a substantial question of law, not even a question of law or a question

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of fact. It is settled law that the First Appellate Court is the final court on the

question of facts and it is only when a substantial question of law would arise in

a case, the High Court can entertain a regular Second Appeal. If no substantial

questions of law would arise, then the appeal could not be entertained and ought

to be dismissed at the stage of Admission. The Hon'ble Apex Court in Roop

Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs. 1 as relied

upon in C.A.Suleman v. State Bank of Travencore, Alwayee 2, held that:

"7. It is to be reiterated that under Section 100 of the CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC."

16. In Municipal Committee, Hoshiarpur v. Punjab, State Electricity

Board3, the Hon'ble Apex Court held that:

"16. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The Court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal, on failure to do so, the judgment cannot be maintained. The existence of a substantial

2000 3 SCC 708

(2006) 6 SCC 392

(2010) 13 SCC 216

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question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 C.P.C. It is the obligation on the Court to further clear the intent of the Legislature and not to frustrate it by ignoring the same."

17. On considering the submissions of the appellant No.5 - party-in-person

and the probable substantial questions of law raised in the grounds of appeal

except the question on the burden of proof, all other questions raised were

questions on facts. There is no question of law involved in them. With regard

to the burden of proof also, this Court does not find any substantial question of

law involved as both the courts below rightly placed the burden on the plaintiff

to prove his case.

18. On a perusal of the judgment of the first Appellate Court and the

contentions of the learned counsel for the plaintiff before the first Appellate

Court, it came to know that though the plaintiff and his brother succeeded to the

entire land of Ac.5-18 guntas in Survey Nos.66/B/1 and 66/B/2 and they sold

away Ac.4-00 acres of land to the defendant No.3 under an agreement of sale.

But to avoid Urban Land Ceiling proceedings and to get an approved layout, the

plaintiff and his brother executed an agreement in favor of defendant No.3 for

the entire land of Ac.5-18 guntas and stated to have delivered possession. Upon

that only, the defendant No.3 obtained an approved layout plan No.273/1982

under Ex.B5 and the land was divided into 48 plots besides roads and open plots

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shown in the said plan. Those roads and open plots were vested with the

Municipality and the defendant No.1 developed a children's park in the said

open site, which the plaintiff is now claiming.

19. It also came to light that the plaintiff had earlier filed O.S.No.554 of 1993

in respect of 1000 square yards of the property for the house plot in Survey

Nos.66/B/1 and 66/B/2 in respect of the same suit schedule property as filed in

the present appeal for injunction against defendant No.4 and the said suit was

dismissed holding that he was not in possession of the property. The plaintiff

preferred an appeal against the judgment and decree in O.S.No.554 of 1993 vide

A.S.No.74 of 2001 and the same was also dismissed on merits on 18.05.2004.

The defendants filed the copy of the judgment and decree in O.S.No.554 of

1993, which were marked as Exs.B1 and B2 and the copy of the judgment and

decree in A.S.No.74 of 2001 which were marked as Exs.B3 and B4. But

however, as the said suit and appeal were filed only against defendant No.4 and

the extent of land was also shown as only 1000 square yards and the relief

sought for by the plaintiff was only for permanent injunction in the said suit and

appeal, it was not considered as res judicata by the courts below.

20. But the mischief played by the plaintiff is evident. The present suit is

also not filed by the plaintiff seeking declaration of title over the suit schedule

property, but filed only to declare the endorsement issued by the Municipal

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Corporation, Warangal as null and void. He was seeking a declaration that he

was the owner and possessor of the suit schedule property on the pretext of

seeking the endorsement of defendant No.1 dated 03.03.1997 as null and void to

avoid payment of the necessary fee and producing the requied documents of

Urban Land Ceiling proceedings. The plaintiff and his brother entered into an

agreement in favor of defendant No.3 for the entire land of Ac.5-18 guntas. The

defendant No.3 obtained a layout plan No.273/1982 under Ex.B5. The plaintiff

stated to have sold some of the plots to third parties. But, did not file the sale

deeds of the plots sold to the third parties or the agreement between them and

defendant No.3 or the agreement with regard to the sale of Ac.4-00 acres of land

to defendant No.3. By suppressing all these facts, the plaintiff filed the suit by

filing only the pahanies marked under Exs.A1 to A5 to show that they were in

possession of the property.

21. The contention of the plaintiff - appellant No.5 was that the approved

layout was not filed by defendant No.1 and the document marked under Ex.B5

was only a proposed layout plan and that the plaintiff was not a party to Ex.B5

plan, as such the same was not binding upon him. The trial court on this aspect

observed that Ex.B5 cannot be denied on the ground that it was only a proposed

layout in the absence of any plan submitted by the plaintiff showing the

existence of plot Nos.51, 52, 53 and 54, the plan submitted by defendant No.1

marked under Ex.B5 has to be accepted.

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22. The First Appellate Court also observed that:

"19. It is the main contention of the advocate for the plaintiff that the plaintiff is not a party to Ex.B5 layout plan and he never applied for such plan, so it is not binding on him, whereas it is the contention of the learned advocate for the defendants that though the plaintiff and his brother sold Ac.4-00 guntas of land to defendant No.3 society that in order to avoid further complications of obtaining the clearance from the Urban Land Ceiling Authority and obtaining layout plan that there was an agreement entered between defendant No.3 on one hand and the plaintiff and his brother on the other hand in respect of left out Ac.1-18 guntas of land to obtain layout plan along with Ac.4-00 guntas of land to be obtained by defendant No.3 and those both parties entered into an agreement on 20.01.1982 in pursuance of the earlier agreement of sale dated 10.05.1981and on 17.05.1981 that the possession of the total extent of Ac.5-18 guntas delivered possession in favor of defendant No.3 to enable it to take further steps necessary to obtain due permission, sanction of layout and allotment of lots to its individual members as per rules both for Ac.4-00 guntas of land purchased by it and also for the Ac.1-18 guntas of land of the plaintiff and his brother, so in pursuance of it only that the defendant No.3 obtained layout plan from the first defendant under layout plan No.273/1982 for the entire extent of Ac.5-18 guntas as shown in Ex.B5. The learned advocate for the plaintiff contended that the said agreement is not registered; as such it is inadmissible one. As per the then existing Law, the agreements need not require any registration. Subsequently only as per Section 17(g) of the Registration Act that an agreement also to be registered and it came into force from 01.04.1999, and it is only a prospective one. In this case either of the parties has not chosen to file the said agreement nor got marked the same. As seen from the record of the lower court that the plaintiff himself filed the Xerox copy of the agreement dated 20.01.1982 entered between himself and defendant No.3, it is not marked being Xerox copy. It is the plaintiff who can

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produce the said document or at least he can summon the original from defendant No.3, but no such steps are taken. The defendant No.3 who adopted the written statement filed by defendant No.1 it also clearly reiterates all the averments that in view of the understanding an agreement entered between plaintiff and his brother with defendant No.3 to obtain the layout plan for entire extent of Ac.5-18 guntas, and accordingly it was obtained. The mere fact that Ex.B5 only a copy approved layout plan of the 3rd defendant which does not contain the names of the plaintiff or his brother and it does not contain the signatures of some of the authorities, its genuineness cannot be denied as it emitting from a public office. Since the plaintiff who entered into agreement with defendant No.3 in order to obtain layout plan for the entire Ac.5-18 guntas of land that the layout plan under Ex.B5 will automatically binding on him, inspite of the either of the parties failed to produce the agreement entered between the plaintiff and defendant No.3 in respect of obtaining layout plan for the entire land. As the plaintiff made an admission at the time of giving evidence in respect of the said understanding entered into between himself and defendant No.3 and it is evident from the Ex.B1 certified copy of judgment in O.S.No.554 of 1993 at Para No.10 of Page No.7 it is observed by the learned Junior Civil Judge "However, he has also clearly mentioned that the Society had to apply for the sanctioned layout as per the request of plaintiff and his brother for the entire Ac.5-18 guntas. Therefore, it is very clear that the plaintiff and his brother had given an agreement in favor of the Society to obtain a sanctioned layout for the entire extent of Ac.5-18 guntas which is inclusive of the Ac.1-18 guntas that is in their possession and ownership." The said agreement copy also marked as Ex.X9 in O.S.No.554 of 1993 and in Para No.13 of Ex.B1, it is also further observed that "As per the admission made by PW.1 (who is none other than the plaintiff herein) to the effect that he sold his plots as per the layout under Ex.B1 (which is nothing but Ex.B5 plan herein), it is clear that there is a sanctioned layout plan since the year 1982, but the plaintiff kept quiet even without

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giving any notice to the Municipal Corporation".

PW.1 in this case in cross-examination at Page 11, he admitted as follows: It is true in the agreement executed in favor of defendant No.3 on 20.01.1983 (Sic., 20/01/1982) there is mention to the effect the entire land belonging to us was sold to defendant No.3. The witness adds that though there is mention about the word "entire land" in the agreement dated 20.01.1983 executed in favor of defendant No.3 only part of land was delivered to defendant No.3 and the remaining portion of land is in his possession (in possession of present witness) and in the possession of his brother. He further deposed at Page 6 - "It is true I sold away some plots out of the said land through registered sale deed." In view of the said evidence of PW.1, it goes to show that he entered into agreement with defendant No.3 dated 20.01.1982 in order to obtain approved layout plan for the entire property of Ac.5-18 guntas, so the Ex.B5 was issued in the name of defendant No.3 for the entire land. Now the plaintiff cannot take advantage that his name is not mentioned in the Ex.B5 that he is not a party to the said approved layout plan and cannot contend that it is not binding on him, when his evidence in the earlier suit O.S.No.554 of 1993 and the admission made by him that he entered into an agreement with defendant No.3 dated 20.01.1982 in respect of obtaining layout plan for the entire property, though the Ex.B5 was obtained in the name of defendant No.3 that it will automatically bind on the plaintiff also, even though the said agreement is not filed and got marked by either of the parties. It is well settled law that the admitted facts need not be proved once again as per Section 58 of the Indian Evidence Act, so the Ex.B5 also automatically binding on the plaintiff.

23. The other contentions raised by the appellant No.5 as party-in-person are

also answered by the First Appellate Court in its judgment. This Court on

considering all these aspects does not find any substantial questions of law

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arising in this matter for entertaining the Second Appeal. As all the questions of

facts raised by the appellant are answered by the courts below and the Second

Appeal is not a third Court for trial on facts and re-appreciation of evidence is

not justified and there is no perversity in the judgments of the courts below and

the judgments are not based on "no evidence or inadmissible evidence", this

Court does not find any necessity to interfere with the judgments and decrees of

the courts below to set aside the same.

24. In the result, the Second Appeal is dismissed confirming the judgments