Telangana High Court
Gottimukkala Kishan Rao Since Died Per ... vs Katakam Ananthamma, on 8 January, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
APPEAL SUIT No.362 of 2012
JUDGMENT:
This Appeal Suit is filed by the appellants who were the plaintiffs
aggrieved by the judgment and decree dated 27.02.2012 in O.S.No.1273 of
2004 passed by the VII Additional Senior Civil Judge, Rangareddy District at
L.B.Nagar.
2. The appellants - plaintiffs filed the suit for declaration and recovery of
possession of the suit schedule plot bearing No.22-1/3 admeasuring 750 square
yards in Survey No.121 and 122 situated at Kukatpally Village, Rajendra Nagar
Taluk, Rangareddy District.
3. The case of the plaintiffs in brief was that the plaintiff No.1 was the
father of plaintiffs 2 and 3. The plaintiff No.1 - Gottimukkala Kishan Rao and
his three brothers Gottimukkala Ramarao @ Ramulu, Gottimukkala Bheem
Rao, Gottimukkala Dharma Rao constituted a Hindu undivided joint family.
They were owners of joint family agricultural lands totally admeasuring Ac.32-
35gts. in Survey Nos.117 to 127, 127 paike, 128 and 129 situated at Kukatpally
Village, Rajendra Nagar Taluk, Rangareddy District. There was oral partition
amongst the brothers in the year 1980. In the said partition, lands admeasuring
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Ac.8-10gts. were allotted to the share of the 1st plaintiff in Survey Nos.121, 122,
123, 127 paike, 128 and 129. The extents of land covered by individual survey
Nos. were as follows:
S. Survey Nos. Extent of land (in acres)
No.
1. 121 Ac.2-07gts.
2. 122 Ac.2-39gts.
3. 123 Ac.1-27gts.
4. 127 / paike Ac.0-23gts.
5. 128 Ac.0-12gts.
6. 129 Ac.0-22gts.
4. The plaintiffs declared their lands before the Urban Land Ceiling (for
short "ULC") Authorities and they were declared as surplus holders to an extent
of 32,386.58 square meters by the Special Officer and Competent Authority,
ULC by order dated 13.10.1981. The said order was set aside by the High
Court in Writ Petition No.8792 of 1994 vide order dated 14.12.1994. The
Government of Andhra Pradesh filed Writ Appeal No.579 of 2000 with a
condone delay petition challenging the order in W.P.No.8792 of 1994 and the
condone delay petition was dismissed vide order dated 18.08.2003 confirming
the order in Writ Petition. The 1st plaintiff filed O.S.No.31 of 1980 before the
District Munsif, West and South against the father of the 2nd defendant for
rectification of entries in pahanies pursuant to partition in the family and the suit
was decreed vide judgment dated 10.04.1980. The father of the 2nd defendant
admitted ownership of the 1st plaintiff over the lands allotted to his share in his
written statement in O.S.No.31 of 1980. The 1st plaintiff and his brothers have
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sold the entire extent of Ac.32-35gts. since 1984 or 1985 by converting the
same into residential plots excepting few plots. There was no document to
evidence that the land allotted to each of the brothers was demarcated by metes
and bounds. Though, there was no clear demarcation, the identification of lands
allotted to each brother was not difficult as specific lands with survey numbers
were allotted to the sharers. In respect of Survey Nos.122, 123 and 128, the
entire extent of land belonging to the joint family fell to the share of the 1st
plaintiff and there was no dispute with regard to enjoyment and sale of plots in
those survey numbers. But in respect of Survey Nos.121, 122 and 127 paike
and 129, the brothers of the 1st plaintiff were also given shares. When the
layouts were made, the 1st plaintiff and his brothers with the help of community
elders came to an understanding that plots earmarked towards the share of each
brother shall not be sold by others. However, now and then, disputes arose
among the 4 sharers and their family members in respect of ownership over
some plots in common survey numbers, where the sharers were allotted lands.
4.1. The plaintiffs further submitted that the defendant No.2 was the son of
Ramulu, the eldest brother of the 1st plaintiff. The defendant No.2 who was
inimical to the plaintiffs sold the suit schedule plot to the 1st defendant without
any title and entitlement for unlawful gain. The suit schedule plot would fall in
Survey Nos.121 and 122. But the 2nd defendant executed the sale deed dated
15.06.1985 showing that the same was in Survey No.120. The southern
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boundary of suit schedule plot in the sale deed dated 15.06.1985 was shown as
100 feet road, which was the road laid out by Kukatpally Municipality about 15
years back. The 2nd defendant and his joint family members were never allotted
any share in the lands abutting the 100 feet road. The father of the 2nd defendant
Sri G.Ramarao @ Ramulu was allotted his share of Ac.9-00gts. only in two
Survey Nos. i.e. 120 and 121. The lands in Survey No.120 were not abutting
the 100 feet road. It was thus clear that the 2nd defendant was not having any
right, claim or interest over the suit schedule plot. By showing a wrong survey
number, the 2nd defendant sold the suit schedule plot to the 1st defendant.
Excepting the suit plot, all the surrounding plots belonged to the plaintiffs,
which would reveal that the 2nd defendant was not the owner of the suit plot.
Another circumstance to show that the suit plot was not allotted to the 2nd
defendant's father was Land Acquisition Proceedings in file No. J/33/19/1971,
where under lands of the 1st plaintiff and his brothers' were acquired by the
Government for laying the pipeline along the now existing 100 feet road, which
would show that there was no land in Survey No.120 abutting the road. The
survey numbers of lands along the road were 121, 122, 123 and 124 but not 120.
The same would falsify the claim of the 1st defendant as to the title to the suit
plot. The sale deed dated 15.06.1985 was null and void and would not convey
any title to the 1st defendant.
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4.2. The plaintiffs further submitted that the 2nd defendant and his family
members comprising of his father and 4 brothers were still under joint family
and the joint family status was never severed at any point of time. The 2nd
defendant individually did not have any right to sell as there was no partition
interse among his joint family members. The defendants 1 and 2 in collusion
with the husband of the 1st defendant created fictitious documents in order to
grab the suit schedule plot. The 1st defendant filed O.S.No.289 of 1998 on the
file of the Junior Civil Judge, West and South, Rangareddy District for
perpetual injunction against the plaintiffs herein and the suit was decreed vide
judgment dated 16.08.2004. The 1st defendant was never in possession of the
suit schedule plot. The 2nd defendant neither had title nor possession of the suit
schedule plot and hence the question of delivering the possession to the 1st
defendant would arise. The husband of the 1st defendant was the Commissioner
of Kukuatpally Municipality. By misusing his official position, he created all
fictitious documents to show his alleged possession over the suit property.
Subsequent to the decree, the defendants 1 and 2 entered into the suit schedule
plot and under the guise of decree, were claiming to be absolute owners and
possessors. The plaintiffs were dispossessed by the defendants pursuant to the
decree in O.S.No.289 of 1998. Due to inadvertence, the plaintiffs as defendants
therein in O.S.No.289 of 1998 claimed that the suit plot fell in Survey No.121,
but after several documents pertaining to suit plot were traced to find out the
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actual survey number, it came to light that the suit plot fell in Survey No.121
and 122. The father of the 2nd defendant was not allotted any share in Survey
No.122. In any case, it was consistently pleaded by the plaintiffs that the suit
plot would not form part of Survey No.120. the plaintiffs retained the suit
schedule property for their personal benefits as the plot was abutting the main
road. Excepting the plaintiffs, no other person had got right, claim or interest
over the suit schedule plot. The suit schedule property forms part of layout
developed by the plaintiffs and was in Survey Nos.121 / 122 lands which fell to
the share of the 1st plaintiff. As such, filed the suit seeking the relief to declare
them as absolute owners of the suit schedule property and for recovery of
possession by evicting the 1st defendant.
5. The defendant No.1 filed written statement stating that earlier she filed
O.S.No.289 of 1998 on the file of the Principal Junior Civil Judge, Hyderabad,
West and South, Rangareddy District for perpetual injunction against the
plaintiffs herein as they threatened for forcible dispossession and the said suit
was decreed in her favour vide judgment dated 16.08.2004. She submitted she
purchased the property i.e. H.No.22-1/3 (old) and new House No.22-99/1 totally
admeasuring 750 square yards in Survey No.120 situated at Kukatpally,
Balanagar Mandal, Rangareddy District from Mr.G.Narsing Rao (2nd defendant)
through registered sale deed bearing document No.4175 of 1985 entered in
Book I Volume 862 pages from 429 to 431 dated 15.06.1985 registered at the
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Office of District Registrar, Rangareddy District and since then she was under
actual physical possession and enjoyment of the suit schedule property. The
Kukatpally Municipality assessed the suit schedule property and she was paying
house tax. The electoral card No.98 was also issued to her, which would show
that defendant and her family members were residing in the suit schedule
property. One Mr.Mohd.Tajuddin, who was dealing in land consultancy
business, on 11.05.1997 along with his followers forcibly entered into the
premises of the defendant with an intention to grab the open land existing in the
suit schedule property without having any right, title or interest and tried to
dispossess the plaintiff from the suit property. Then the defendant filed the suit
bearing O.S.No.262 of 1997 before the Principal Junior Civil Judge, Hyderabad,
West and South, Rangareddy District and the said suit was also decreed on
22.09.1997 granting perpetual injunction in favour of the defendant. When
Mr.Tajuddin instigated his followers, Mr.G.Kishan Rao and his son, who were
the defendants in suit bearing No.O.S.No.289 of 1998 and the plaintiffs in the
present suit, and when they forcibly tried to dispossess her, the defendant
approached the Court by filing E.A.No.266 of 1997 in E.P.No.230 of 1997 and
the Court directed the Station House Officer, Kukatpally PS, Rangareddy
District to render police aid for implementing the decree passed in O.S.No.262
of 1997. When the plaintiffs trespassed into the suit schedule property on
15.10.1997 and destroyed 2 sheds existing in the said premises and created
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violence on the failure of the police to assist her in spite of representation dated
16.10.1997, the defendant filed C.C.SR.No.1138 of 1997 dated 17.10.1997
before the Additional Judicial First Class Magistrate, West and South,
Rangareddy District against the plaintiffs herein and the same was referred to
PS Kukatpally for investigation. The plaintiffs 1 to 3, who were politically
influential and financially sound managed the local police. On 26.04.1998
along with their followers, they forcibly entered into the suit premises with an
intention to grab the open land existing in the suit schedule property without
having any right, title or interest over the suit schedule property and tried to
dispossess the defendant from the suit schedule property. As such, the
defendant was compelled to file O.S.No.289 of 1998 against the plaintiffs
herein for perpetual injunction. The said Court granted interim injunction on
06.05.1998 vide I.A.No.787 of 1998 in O.S.No.289 of 1998. On hearing both
sides and perusing the documentary evidence, the said order was made absolute
on 11.02.1999. The above suit was decreed on 16.08.2004. The plaintiffs
herein in their counter affidavit filed in I.A.No.787 of 1998 admitted that in oral
partition in the year 1979-1980, the lands in Survey Nos.121, 122, 123, 127
paike, 128 and 129 in Kukatpally fell to the share of the 1st plaintiff and in the
written statement filed in O.S.No.289 of 1998 stated that the suit property
would form part of Survey No.121. The claim of the plaintiffs was that the suit
property was in Survey No.121. The lands in Survey No.120 did not fall to the
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share of the 1st plaintiff. The 1st plaintiff was not having any right, title and
interest over the property situated in Survey No.120 of Kukatpally Village.
Hence, it was clear that the plaintiffs and the father of the vendor of the
defendant partitioned their ancestral properties in the year 1979-1980, whereas
the sale deed was executed and registered in favour of the defendant on
15.06.1985. The defendant got into possession through the above registered
sale deed and since then she was in actual physical possession and enjoyment of
the suit schedule property and she was paying property tax. It was also having
electricity connection and she was paying charges regularly.
5.1. She further submitted that the plaintiffs in their written statement in
O.S.No.289 of 1998 also stated that the sale deed executed by Mr.G.Narsing
Rao in favour of her would not convey valid title and ownership, as the said
Narsing Rao was living in joint family and was not having any exclusive right
and claimed that the sale deed executed by him was null and void. The
plaintiffs also admitted that they were residing nearby the suit schedule
property, but having knowledge of the fact about executing the sale deed by
G.Narsing Rao in her favour, the plaintiffs never challenged the title of the said
Narsing Rao nor had taken any legal steps for dispossessing her from the suit
schedule property. No one would keep quiet if their property was sold by others
and third parties were residing in the said property. The plaintiffs never
disputed regarding the possession of the defendant. The plaintiffs had not filed
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any documentary evidence showing that the property was in Survey No.121. In
fact, the suit schedule property was in Survey No.120 and the same was
mentioned in the registered sale deed bearing document No.4175 of 1985.
5.2. She further submitted that the 1st plaintiff filed O.S.No.31 of 1980 before
the Munsif Magistrate, West and South, Hyderabad against one Mr.Ramulu,
who was his brother and father of the vendor of the defendant with regard to
rectification of entries in Column No.11 in respect of the lands in Survey
Nos.121, 122, 123, 127/p, 128 and 129. The said G.Ramulu filed written
statement admitting about the oral partition and allotment of lands in the above
survey numbers to the plaintiffs therein and the said suit was decreeḍ. It would
also clearly establish that the defendants in O.S.No.289 of 1998, who were the
plaintiffs in this suit were not having any right over the properties in Survey
No.120. The lands in Survey No.121 were declared as surplus lands and were
acquired by Government and possession was also taken on 17.01.1984. As
such, the question of executing and registering sale deed in regard to the lands
or properties in Survey No.121 would not arise. The fact that the plaintiffs
herein got knowledge about the sale of the subject property in favour of the
defendant was also established by judgment dated 16.08.2004, wherein it was
observed that the defendants therein who were the plaintiffs herein were having
knowledge about the sale in the year 1985 itself, as seen from their written
statement. The plaintiffs herein claimed that the suit schedule property was in
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Survey No.121 in O.S.No.289 of 1998 and were now claiming that the same
was in Survey Nos.121 and 122. Hence, it would clearly establish that the
plaintiffs were unaware in which survey number the suit schedule property was
existing.
5.3. The defendant No.1 further contended that the suit was not filed within
limitation. The statement of the plaintiffs with regard to limitation was
absolutely false. There was no question of dispossession of the plaintiffs by
defendant No.1 under the guise of the judgment and decree dated 16.08.2004 of
O.S.No.289 of 1998. The defendant was in actual possession and enjoyment of
the suit schedule property since the date of purchase and the same was also
established by granting interim injunction orders in favour of the defendant by
the Principal Junior Civil Judge, Hyderabad, West and South, Rangareddy
District. The judgment dated 16.08.2004 in O.S.No.289 of 1998 had also
become final as no appeal was preferred. The plaintiffs were not having any
locus standi to question the title of Mr.G.Narsing Rao to the suit house in
transferring the same in favour of the defendant No.1. If at all, only the family
members from among the joint family of Mr.G.Narsing Rao might question the
said sale and prayed to dismiss the suit.
6. The defendant No.2 filed written statement contending that the plaintiffs
had no manner of right and title in respect of the suit schedule property to seek
any relief much less relief of declaration and for recovery of possession in as
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much as no title was vested in the plaintiffs to claim the said relief. He further
submitted that the 1st plaintiff and his 3 brothers G.Ramarao @ G.Ramulu,
G.Bheem Rao and G.Dharma Rao constituted a joint family and they were joint
owners of agricultural lands totally admeasuring Ac.32-35gts. in Survey
Nos.117 to 127, 127 paike, 128 and 129 situated at Kukatpally Village,
Rajendra Nagar Taluk, Balanagar Mandal, Rangareddy District. There was a
partition among the brothers in the year 1980 and all the brothers had their
shares in the joint family property. He was not aware whether the plaintiffs had
declared their lands before the Urban Land Ceiling Authorities and they were
declared as surplus land holders and about filing of Writ Petition by the
plaintiffs against the orders of the ULC and the Government of Andhra Pradesh
preferring Writ Appeal with condone delay petition and that the same was
dismissed. He further contended that the contention of the plaintiff with regard
to ULC was irrelevant and it would no way help the case of the plaintiffs. He
admitted that the 1st plaintiff filed O.S.No.31 of 1980 seeking for rectification of
records and the said suit was decreed vide judgment dated 10.04.1980. He
further submitted that the 1st plaintiff and his brothers converted their lands into
plots by preparing a layout plan and shared the plots and sold away the plots to
various purchasers from time to time. Accordingly, the suit schedule plot came
to the share of the 2nd defendant family, who sold away to the 1st defendant. He
further submitted that the 1st plaintiff and his sons sold away entire plots which
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came to their share long back. Several persons purchased the plots and
constructed houses. The entire area was covered by buildings, apartments and
new colonies have come up in Survey Nos.117 to 127, 127 paike, 128 and 129.
Therefore, it was difficult to identify which plot was located in which survey
number. In the said circumstances, the 1st plaintiff was trying to take advantage
of the situation. He admitted that there was an understanding between the 1st
plaintiff and his brothers that plots allotted to each brother should not be sold by
others. In fact, there were no disputes among the brothers except the dispute
created by the plaintiffs in respect of suit schedule property. The suit schedule
property was allotted to the 2nd defendant's family and therefore the plaintiffs
should not have any claim in respect of the suit schedule property. He admitted
that his father Mr.G.Ramarao @ Ramulu was allotted an extent of Ac.9-00gts.
in two survey numbers i.e.120 and 121, but denied that the lands in Survey
No.120 were not abutting the 100 feet road.
6.1. The defendant No.2 further submitted that the 1st defendant filed
O.S.No.289 of 1998 on the file of the Junior Civil Judge, West and South,
Rangareddy District and the suit was decreed vide judgment dated 16.08.2004
in favour of the 1st defendant. He submitted that the defendant No.2 was in
continuous possession and enjoyment of the suit schedule property until it was
sold to 1st defendant who continued to be in possession since the date of
purchase. The plaintiffs who claimed that the suit schedule property would fall
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in Survey No.121, now could not claim that it would fall in Survey Nos.121 and
122. The 2nd defendant's family also had got a share in Survey No.121, but
denied that the suit schedule property would not form part of Survey No.120.
6.2. The defendant No.2 further stated that the plaintiffs themselves were not
sure about the location of the suit schedule property and were changing their
version from time to time in respect of the location of the suit schedule
property. He further submitted that once the lands were converted into plots
and the above numbers being contiguous to each other, the plaintiffs could not
say that the suit plot was situated in Survey Nos.121 and 122. He also
contended that the suit was barred by limitation, as the plaintiffs were well
aware that the suit schedule plot was sold to 1st defendant by 2nd defendant ever
since 1985. He further submitted that the 2nd defendant constructed a house in
and over the suit schedule property and obtained Door No.22-1/3 with open
space totally admeasuring 750 square yards situated at Kukatpally Village,
Balanagar Mandal, Rangareddy District and sold to 1st defendant under
registered sale deed dated 15.06.1985 and subsequently the Municipal
Authorities assigned new H.No.22-99/1 in place of old H.No.22-1/3. The
Kukatpally Municipality assessed the property tax and the 1st defendant was
paying the same. The house was having electricity connection and 1st defendant
was paying electricity bills to the APSEB. The suit schedule property was in
the possession of defendant No.1. Earlier, the defendant No.1 filed O.S.No.262
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of 1997 before the Junior Civil Judge, Hyderabad (Deccan and South) against
Md.Tajuddin and the said suit was decreed in favour of defendant No.1 in
respect of suit schedule property. The defendant No.1 was an old aged woman
and taking advantage of the old age of 1st defendant, the plaintiffs were trying to
interfere with the peaceful possession and enjoyment of 1st defendant in and
over the schedule property and prayed to dismiss the suit.
7. Basing on the said pleadings, the trial court framed the issues as follows:
i. Whether the suit schedule property is situated in Survey No.120 or 121?
ii. Whether the plaintiffs are having right, title and interest over the plaint
schedule property?
iii. Whether the 2nd defendant is having any right to sell the plaint schedule
property to 1st defendant under registered sale deed dated 15.06.1985?
iv. Whether the 1st defendant acquired good title in respect of the plaint
schedule property under registered sale deed dated 15.06.1985 executed by
defendant No.2?
v. Whether the registered sale deed dated 15.06.1985 is null and void?
vi. Whether the plaintiffs are entitled for declaration and recovery of possession
in respect of the plaint schedule property as prayed for?
vii. Whether there is cause of action to file the suit?
viii. Whether the suit is barred by limitation?
ix. Whether the suit is properly valued for the purpose of Court Fees?
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x. To what relief?
The trial court also framed two additional issues as follows:
Additional Issue No.1: Whether the suit schedule plot has fallen to the share of
father of 2nd defendant?
Additional Issue No.2: Whether the 2nd defendant is absolute owner and
possessor of the suit schedule property?
8. The plaintiff No.3 was examined as PW.1 and Exs.A1 to A12 were
marked on behalf of the plaintiffs. The defendant No.1 was examined as DW.1
Exs.B1 to B41 were marked on her behalf. The defendant No.2 was examined
as DW.2.
9. On considering the oral and documentary evidence on record, the learned
VII Additional Senior Civil Judge, Rangareddy District dismissed the suit
observing that the plaintiffs failed to prove the location of the property whether
the suit plot was in Survey No.120 or 121 and that the plaintiffs failed to prove
that they were having right, title and interest over the suit property and were not
entitled for declaration of right and recovery of possession over the suit
schedule property. The trial court also observed that the suit was barred by
limitation since the plaintiffs had knowledge about the cloud against their title
since 1985 and the suit was filed 19 years later.
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10. Aggrieved by the said dismissal of the suit, the plaintiffs preferred this
appeal contending that the courts below failed to appreciate that the suit
schedule land formed part of Survey Nos.121 and 122 of Kukatpally Village,
Balanagar Mandal, Rangareddy District and it was illegally sold by the 2nd
respondent in favour of the 1st respondent by mentioning it as being part of
Survey No.120. The court below ought to have seen that the burden of proof
regarding allotment of suit schedule plot towards the share of the father of the
2nd defendant was on the 2nd respondent since it was claimed by him that the suit
plot fell to his father's share in the family partition. The court below ought to
have seen that the dispute actually was as to whether the 2nd respondent sold the
property which was allotted to him or the property belonging to the appellants.
It was not in dispute that originally the suit survey number and other adjoining
lands were joint family lands and there was partition between the 1st appellant
and the father of the 2nd respondent and other two brothers. The court below
failed to see that the appellants reasonably discharged their burden by proving
that the suit schedule plot formed part of Survey No.120 as per Ex.A6 - Land
Acquisition Proceedings. As per Ex.A6 - Land Acquisition Proceedings, lands
in Survey Nos.121, 122, 123 and 124 were acquired for laying water pipeline,
which according to the appellants was along 100 feet wide road. So, there was
no land in Survey No.120 abutting the 100 feet wide road. No rebuttal evidence
was adduced by the respondents to prove that the suit plot forms part of Survey
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No.120. The court below failed to see that all the other plots surrounding suit
schedule plot were sold by the appellants which circumstance would prove that
the appellants were also owners of the suit plot. The court below erred in giving
a finding that Ex.A5 judgment would operate as res judicata. The suit under
Ex.A5 judgment was a bare injunction suit and the instant suit was a
comprehensive suit for declaration and recovery of possession, as such principle
of res judicata was not applicable. The court below held that the appellants -
plaintiffs did not prove their title to the suit schedule plot, but the dispute
essentially was with regard to showing wrong survey number and thereby
selling the plot of the appellants by the 2nd respondent illegally and without any
right. The finding of the lower court that the appellants were changing their
pleadings before different courts was perverse and was totally immaterial to the
issues involved in the suit and prayed to set aside the judgment and decree dated
27.02.2012 in O.S.No.1273 of 2004 passed by the VII Additional Senior Civil
Judge, Rangareddy District at L.B.Nagar.
11. Heard Sri Vivek Jain, learned counsel for the appellants and
Sri O.Manoher Reddy, learned Senior Counsel representing Sri C.Subodh, the
counsel on record for respondent No.1.
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12. Learned counsel for the appellants contended that the main issue between
the parties was with regard to the location of the property, whether it would fall
in Survey No.120 or 121. The appellants discharged the burden by filing the
Land Acquisition Proceedings marked under Ex.A6, which would disclose that
there was no land abutting the road in Survey No.120. The trial court
committed an error in observing that no steps were taken to localize the suit
schedule plot to find out as to in which survey number the schedule property
was located. An application was filed for appointment of an advocate
commissioner vide I.A.No.2481 of 2010 in O.S.No.1273 of 2004 but the said
application was dismissed by the trial court vide order dated 14.12.2010. The
appellants preferred a revision against the said order. The Civil Revision
Petition was also dismissed vide C.R.P.No.1009 of 2011 dated 24.11.2011. As
such, the steps taken by the appellants - plaintiffs were not materialized.
Though, PW.1 stated that there was a written partition deed, the same was not
correct. It was an oral partition between the father of the plaintiffs 2 and 3 and
his brothers i.e. the father of defendant No.2 and others. In the written
statement filed by the father of defendant No.2 in O.S.No.31 of 1980 filed by
plaintiff No.1 for rectification of entries in the pahani, the father of defendant
No.2 admitted the ownership of plaintiff No.1. The father of defendant No.2
was not allotted any plot in Survey No.121, inspite of it, defendant No.2 sold
the property to defendant No.1 showing it as in Survey No.120. As per the sale
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deed executed by defendant No.2 in favor of defendant No.1, the southern
boundary of the suit schedule plot was shown as 100 feet wide road. The
Government under Land Acquisition Act acquired land for laying water
pipelines abutting the 100 feet road. No land was allotted to the father of
defendant No.2 in the partition abutting the 100 feet wide road; as such no land
was acquired by the Government in Survey No.120. The appellants - plaintiffs
were having land in Survey No.121 abutting the 100 feet wide road, as such
their lands were acquired by the Government vide proceedings marked under
Ex.A6. All the surrounding lands to the suit schedule property belonged to the
appellants - plaintiffs. The trial court committed an error in considering that the
judgment in a bare injunction suit would operate as res judicata in a suit for
declaration of title and for recovery of possession, which was a comprehensive
suit and prayed to allow the appeal.
13. The learned counsel for the respondents on the other hand contended that
defendant No.1 filed O.S.No.289 of 1998 seeking injunction against the
appellants herein and the said suit was decreed in favor of defendant No.1. The
said judgment and decree became final as no appeal was preferred by the
appellants i.e. the defendants therein. The defendants therein subsequently filed
the present suit. As per the admitted case of the appellants - plaintiffs, the
defendant No.2's family was also having a right in the suit schedule property. It
was not the case of the plaintiffs that defendant No.2 was not having any right.
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Their case was that it was a joint family property and the suit schedule property
fell to their share. The burden would lie on the plaintiffs to show that there was
a partition and the extent of share fallen to each sharers and that the suit
schedule property was within the share allotted to them. But no witness was
examined to prove before whom the partition took place. PW.1 admitted in his
cross-examination that there was a written document evidencing partition, but
the same had not seen the light of the day. The defendant No.2, the vendor of
defendant No.1 disputed the title of the plaintiff over the suit schedule property.
But except PW.1, no other witness was examined to show that the appellants -
plaintiffs had exclusive right over the suit schedule property. In Writ Appeal
filed against the order in Writ Petition No.8792 of 1994, the appellants admitted
before the Court that they sold away the entire property and that rights of third
parties had intervened as plots were sold, but in the present case they were
contending that they retained certain extent of the property in Survey No.121
abutting the road including the suit schedule property, which would show the
conduct of the appellants - plaintiffs. The statement recorded before the Court
would amount to judicial admission. In the injunction suit filed by defendant
No.1 vide O.S.No.289 of 1998, an issue was framed and answered with regard
to the title of defendant No.1, the same would operate as res judicata. The
defendant No.1 was claiming right through a registered sale deed purchased
from one of the co-sharers i.e. defendant No.2 and was exercising her right over
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the suit schedule property to the knowledge of the plaintiffs. She was asserting
an independent right since 1985. The period of limitation to file a suit for
declaration of title under Article 58 of Limitation Act, 1963 was three years
from the date of cause of action. No suit was filed by the appellants for
cancellation of sale deed executed by defendant No.2 in favor of defendant No.1
and allowed defendant No.1 having full knowledge about the purchase of the
suit schedule property from defendant No.2. She also perfected her title by way
of adverse possession. The present suit was not filed even within 12 years from
1985 as required under Article 65 of Limitation Act. The suit was filed in the
year 1998. The plaintiffs failed to prove their title by adducing cogent evidence
and failed to discharge their burden under Section 102 of the Indian Evidence
Act and prayed to dismiss the appeal.
14. The learned counsel for the appellants contended that the period of
litigation in O.S.No.289 of 1998 shall be excluded for calculating the limitation.
The burden of proof would lie on both the parties when there was no division of
properties by metes and bounds. The defendant No.2 also failed to prove the
extent of lands that fell to the share of his father in the partition or that the
adjoining lands were sold by them.
15. In the light of the rival contentions of both the learned counsel, the points
that arise for determination in this appeal are:
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i) Whether the appellants - plaintiffs proved their entitlement over the suit schedule property
and were entitled for the relief of declaration and recovery of possession?
ii) Whether judgment of the Court in an injunction suit deciding the title would act as res
judicata in a suit for declaration of title?
iii) Whether the suit was filed within the period of limitation?
iv) To what relief?
P O I N T No.1:
Whether the appellants - plaintiffs proved their entitlement over the suit
schedule property and were entitled for the relief of declaration and
recovery of possession?
16. As the plaintiffs filed the suit for declaration of title and recovery of
possession, burden would lie upon them to establish a clear case for granting
such relief. The Hon'ble Apex Court in Union of India and Others v. Vasavi
Co-operative Housing Society Limited and Others 1, held that:
"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. The Hon'ble Apex Court in Jagdish Prasad Patel (Dead) through LRs.
and Another v. Shivnath and Others 2, had succinctly summarized the law on
burden of proof in a suit for declaration of title as follows:
(2014) 2 SCC 269
(2019) 6 SCC 82
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"44. In a suit for declaration for title and
possession, the plaintiffs-respondents could
succeed only on the strength of their own title
and not on the weakness of the case of the
defendants- appellants. The burden is on the
plaintiffs-respondents to establish their title to
the suit properties to show that they are entitled
for a decree for declaration. The plaintiffs-
respondents have neither produced the title
document i.e. patta-lease which the plaintiffs-
respondents are relying upon nor proved their
right by adducing any other evidence. As noted
above, the revenue entries relied on by them are
also held to be not genuine. In any event,
revenue entries for few Khataunis are not proof
of title; but are mere statements for revenue
purpose. They cannot confer any right or title on
the party relying on them for proving their title."
18. The plaintiffs are claiming their right over the suit schedule property
contending that they acquired the same by way of partition. Though the
plaintiff No.1 admitted in his cross-examination that there was a written
partition deed executed before the elders, he admitted that the said document
was not filed before the Court. The learned counsel for the appellants -
plaintiffs contended that the said admission was not correct. The plaintiffs had
neither pleaded that there was a written document evidencing the partition in
their plaint nor stated as such in the evidence affidavit of PW.1 and stated that it
was only an oral partition amongst the father of the plaintiffs 2 and 3 with his
brothers in the year 1980.
19. PW.1 further pleaded and stated in his evidence that his father acquired
the land to an extent of Ac.8-10gts. in partition in Survey Nos.121, 122, 123,
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127, 128 and 129 of Kukatpally Village. He had not stated as to his father
having any land in Survey No.120. The suit schedule property as per the sale
deed executed by defendant No.2 in favor of defendant No.1 was in Survey
No.120. The contention of the appellants - plaintiffs was that the suit schedule
property was located in Survey No.121 / 122, but not part of Survey No.120 and
it was wrongly sold by defendant No.2 in favor of defendant No.1 showing its
location as in Survey No.120. PW.1 admitted in his cross-examination that
there was no common layout for the lands in Survey Nos.117 to 120 and 120 to
129 of Kukatpally Village. No legally approved layout was filed by the
appellants - plaintiffs to identify the location of the plots. PW.1 stated in his
cross-examination that they laid the land into plots on a rough layout which was
prepared by them after giving the plot numbers and the said layout was not
approved by the Gram Panchayat. He further admitted that the copy of the said
layout was also not filed before the Court. His further admissions in his cross-
examination would disclose that he did not know how many plots were laid out
of the land that fell to the share of his father and he could not say as to the
number of plots got by his paternal uncles out of the land that fell to their shares
and admitted that they had not pleaded about the number of plots that fell to
their share and number of plots sold by them and retained by them. He also
admitted that after the plots were laid, roads were formed in Survey Nos.121,
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122, 123, 127, 128 and 129. He also admitted that no survey record was filed to
show that the suit schedule plot was comprised in Survey Nos.121 and 122.
20. The plaintiffs were relying only upon a notice issued by the Land
Acquisition Officer while acquiring the land for laying a pipeline to contend
that Survey No.120 was not abutting the road, as such, the Land Acquisition
Officer had not acquired the land in Survey No.120. But, he admitted that
notice under Ex.A6 was issued to all the brothers of his father and the land was
converted into plots and the sale of the plots was commenced in 1980. The
notice under Ex.A6 was issued in the year 1987, by that time the roads were not
formed. On such evidence of PW.1, the trial court held that it was clear from
his evidence that it was the imagination of the plaintiffs which could not be
called as evidence under law to call a piece of land as a particular numbered
plot in survey number and non-filing of layout prepared by the plaintiffs would
give raise to an adverse inference against the case of the plaintiffs. No
document of title was produced by the plaintiffs to prove their right over the
suit schedule property. Admittedly, the property in Survey Nos.117 to 127, 128
and 129 belonged to the joint family and no document was filed by the
appellants - plaintiffs to show that the land allotted to each of the brothers was
demarcated by metes and bounds. When it is the case of the plaintiffs that the
suit schedule property belonged to them, the burden would lie upon them to
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prove their title over the suit schedule property, but the plaintiffs failed to
discharge the said burden.
21. The petition filed by them to appoint an advocate commissioner to
identify whether the suit schedule plot was located in Survey No.120 or not was
dismissed by the trial court and the revision preferred against it was also
dismissed by this Court observing that it was highly impracticable to identify
the suit schedule property and to demarcate the same with reference to each
survey number as there were houses and multistoried buildings erected in the
said lands. As it was not practicable to conduct any local investigation on the
spot, the petition filed for the said purpose was dismissed.
22. The defendant No.2 sold the property to defendant No.1 vide registered
sale deed dated 15.06.1985. PW.1 admitted in his cross-examination that the
distance between the suit schedule property and his house was about 12 KMs
and they were residing for the past 10 years in and around the suit schedule
property only. He admitted that except the suit schedule property, they had no
other plots in Survey No.121 and admitted that no document was filed to prove
that they were in possession and enjoyment of the suit schedule property. He
stated that there was no house in the suit schedule property. But the contention
of the defendant No.1 was that she purchased the suit schedule property along
with a house bearing No.22-1/3 from 2nd defendant S/o. Ramulu through
registered sale deed and it was assigned a new number bearing No.22-99/1 and
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the Kukatpally Municipality assessed the suit schedule property and she was
paying house tax and an electoral card was also issued to her, which would
show that she and her family members were residing in the said property. She
contended that when one Mr.Md.Tajuddin interfered with her possession, she
filed O.S.No.262 of 1997 against him for perpetual injunction and the said suit
was decreed in her favor on 22.09.1997 and the appellants were instigated by
Mr.Tajuddin and when they also tried to interfere with her possession, she filed
O.S.No.289 of 1998 and the said suit was also decreed in her favor on
16.08.2004. The appellants - plaintiffs in their written statement in O.S.No.289
of 1998 stated that the sale deed executed by Sri G.Narsing Rao (defendant
No.2) in favor of defendant No.1 would not convey valid title and ownership
and the said sale deed was null and void. As such, the appellants - plaintiffs
were aware of the sale deed executed by 2nd defendant in favor of 1st defendant
by that date itself and were aware of the title and possession of defendant No.1,
but had not taken any legal steps for dispossessing her from the suit schedule
property. As rightly contended by the 1st defendant in her written statement, no
one would keep quiet if their property was sold by others and third parties were
residing in the said property. It was the 1st defendant who filed the suit for
perpetual injunction, but not the appellants - plaintiffs. Having knowledge
about the title and possession of 1st defendant also, no steps were taken by the
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appellants - plaintiffs for challenging the title of 1st defendant immediately and
waited for a period of more than 19 years for filing the present suit.
23. No document was filed by the appellants - plaintiffs to show that the suit
schedule plot would fall in Survey Nos.121 and 122. The only reasoning given
by the appellants - plaintiffs to assume that the suit plots would fall in Survey
Nos.121 and 122 was that it was abutting the road, whereas there was no road
abutting the land that fell to the share of 2nd defendant and his family. PW.1 in
his cross-examination stated that the partition took place in the year 1980 and
the plots were sold in the year 1984 and 1985 and the 100 feet road was formed
15 years prior to the date of filing of the suit in the year 2004. As such, the trial
court rightly observed that if we go back 15 years from the year 2004, it would
come to 1989, but as per Ex.A7, the sale deed executed by 2nd defendant in
favor of 1st defendant in the year 1985, there was a road. Thus, the contention
of the plaintiffs with regard to the road was totally false.
24. The other reasoning given by the appellants - plaintiffs to show that the
suit plot belonged to them was that all the plots surrounding the suit schedule
plot were surrounded by their plots. But, no documents were filed by the
plaintiffs showing that the surrounding plots belonged to them. The trial court
observing the boundaries of the suit schedule plot held that as per the plaint
schedule, there were roads on south and east side and northern and western
boundaries were shown as houses of neighbors. Thus, the property surrounded
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by the suit plot were not the properties of the plaintiffs and the contention raised
by the plaintiffs in the said regard had no legs to stand. No evidence was
adduced by the plaintiffs to believe contrary to such observation. The Land
Acquisition Proceedings filed by the appellants - plaintiffs marked under Ex.A6
would only show that the Government had acquired Ac.2-05gts. of land in
respect of Survey Nos.121, 122, 123 and 124 and Survey No.120 was not
included in it, as it was not abutting the road. The name of the father of 2nd
defendant (G.Ramulu) was shown as a claimant to an extent of Ac.0-04gts. in
Survey No.121 and the name of plaintiff No.1 G.Kishan Rao was shown as
claimant to an extent of Ac.0-02gts. in Survey No.124. These proceedings
would not disclose that the appellants - plaintiffs were having any land in
Survey No121 or that the father of 2nd defendant was not having any land
abutting the road in Survey No.120.
25. Thus, these proceedings were no way material to decide the suit for
declaration of title with regard to the suit schedule property. No positive
evidence was adduced by the appellants - plaintiffs to show that the suit
schedule property belonged to them. As such, this Court holds that the
appellants - plaintiffs failed to prove their entitlement over the suit schedule
property and as such were not entitled for the relief of declaration and recovery
of possession.
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P O I N T No.2:
Whether judgment of the Court in an injunction suit deciding the title
would act as res judicata in a suit for declaration of title?
26. The contention of the learned counsel for the appellants - plaintiffs was
that the trial court erred in giving a finding that Ex.A5 judgment in a bare
injunction suit operates as a res judicata in the comprehensive suit for
declaration and recovery of possession.
27. As per the written statement filed by 1st defendant, she filed the suit for
perpetual injunction against the appellants - plaintiffs herein vide O.S.No.289
of 1998 on the file of the Principal Junior Civil Judge, Hyderabad (West and
South), Rangareddy District and the said suit was decreed in her favor vide
judgment dated 16.08.2004. The copy of the judgment in O.S.No.289 of 1998
was marked as Ex.A5 by the appellants - plaintiffs themselves. In a suit for
injunction, the title of the parties would only incidentally be gone through by
the Court. The appellants - plaintiffs who were the defendants in the said case
contended that the suit property forms part of Survey No.121 and that they were
owners and were in possession of the said property and got marked the decree,
written statement and plaint in O.S.No.31 of 1980 as Exs.B1 to B3. The trial
court after going through the said documents observed that the 1st defendant (the
plaintiff herein) got an extent of Ac.2-07gts. in Survey No.121 in the partition
among the brothers. However, no evidence was placed before the Court to
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show that the suit property forms part of Survey No.121. The trial court also
observed that the plaintiffs purchased the house property with Municipal
No.22-1/3, which was now changed as 22-99/1 and filed the receipts issued by
the Kukatpally Municipality and the electricity bills marked as Exs.A2 to A4 to
show that she was in occupation of the suit house. When the defendants
claimed that the suit house forms part of Survey No.121, they have to prove that
that the said house was constructed subsequent to partition, but it was not
proved. The alternative plea taken by the defendants (the appellants - plaintiffs
herein) that Sri G.Narsing Rao (defendant No.2 herein) do not have independent
title to the suit house to transfer the same in favor of the plaintiff as he was
living in the joint family headed by his father was also not accepted by the
Court observing that the defendants were having no locus standi to question the
sale affected by Sri G.Narsing Rao as only the family members from among the
joint family of G.Narsing Rao has only right to question the said sale. These
observations are also applicable to this case.
28. No issue was framed by the trial court with regard to the title of the
property. But, however, the learned Principal Junior Civil Judge, Hyderabad
(West and South), Rangareddy District observed that the evidence available on
record would come to show that the plaintiffs had title over the suit property and
the defendants failed to prove that the suit schedule property forms part of
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Survey No.121 and that the presumption would follow that she was in
possession of the same.
29. The Hon'ble Apex Court in Sajjadanashin Sayed MD.B.E.EDR.
(Dead) by LRs. v. Musa Dadabhai Ummer and Others 3 held that once in a
suit for injunction, title is in issue and decided, the said finding of title will
operate as res judicata in a subsequent suit, where title is in issue. It was held
therein that:
"Where title to property is the basis of the right
of possession, a decision on the question of
possession is res judicata on the question of title
to the extent that adjudication of title was
essential to the judgment; but where the question
of the right to possession was the only issue
actually or necessarily involved, the judgment is
not conclusive on the question of ownership or
title."
It was further held that, to put it briefly, if
"In an earlier suit for injunction, there is
incidental finding on the title, the same will not
be binding in a later suit or proceedings where
title is directly in question unless it is established
that it was necessary in the earlier suit to decide
the question of title for granting or refusing the
injunction and that the relief for injunction was
found or based on the finding of the title."
30. As per the facts of this case, no issue was framed with regard to the title
in the earlier injunction suit and the Court had only incidentally given a finding
on the title. As such, the same was not binding in the later suit where title is
(2000) 3 SCC 350
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directly in question. However, the learned VII Additional Senior Civil Judge,
Rangareddy District had extensively gone through the entitlement of the
appellants - plaintiffs over the suit schedule property as the said suit was filed
for declaration of title and recovery of possession and gave its findings on
appreciating the oral and documentary evidence on record and had not
disentitled the claim of the plaintiffs only on the ground that the earlier
judgment with regard to the suit for injunction operates as res judicata in the
present suit, though an observation was made in the said regard. This Court is
of the opinion that the judgment of the trial court in an injunction suit wherein
title was decided incidentally would not act as res judicata in the present suit for
declaration.
P O I N T No.3:
Whether the suit was filed within the period of limitation?
31. The contention of the defendants 1 and 2 in their written statements was
that the suit was not filed within the period of limitation, as the plaintiffs had
knowledge about the cloud against their title since 1985. The defendant No.1
contended in her written statement that the 2nd plaintiff G.Bhaskar Rao was
examined in O.S.No.289 of 1998 and deposed in his chief-examination that he
knew Mr.Tajuddin (against whom the defendant filed O.S.No.262 of 1997 for
perpetual injunction, which was decreed in her favor) and stated that he was a
land broker who mediated between defendants 1 and 2 for purchase of the suit
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schedule property. As such, it was clear that the 2nd plaintiff knew about the
transaction between the defendant No.1 and defendant No.2, but had not taken
any action to stop the said transaction. The said G.Bhaskar Rao was examined
as DW.1 in the said case and the 3rd plaintiff G.Ranga Rao was examined as
DW.2 in the said case. It was also contended that DW.2 in his cross-
examination in O.S.No.289 of 1998 admitted that they had not questioned the
title of the vendor of the plaintiff (G.Narsing Rao) who executed Ex.A1 and
DW.1 in his cross-examination also admitted that all the plaintiffs who were
defendants in O.S.No.289 of 1998 were residing nearby the suit schedule
property since the time of their ancestors. The defendant No.1 was examined as
DW.1 and also stated as such in her evidence affidavit, but there is no cross-
examination denying the said facts. Thus the appellants - plaintiffs were having
knowledge about 2nd defendant executing the sale deed in favor of 1st defendant
and 1st defendant residing in the property.
32. As per Article 58 of the Second Schedule to the Limitation Act, the suit
for declaration of title should be filed within three years when the right to sue
first accrues. As the appellants - plaintiffs had filed the suit 19 years later after
executing the sale deed by 2nd defendant in favor of 1st defendant, the suit was
barred by limitation. This Court does not find any illegality in the judgment of
the trial court in dismissing the suit filed by the appellants - plaintiffs and any
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perversity in the judgment of the trial court in appreciation of oral and
documentary evidence on record.
P O I N T No.4:
To what relief?
33. In the result, the Appeal Suit is dismissed confirming the judgment and
decree of the court below in O.S.No.1273 of 2004 passed by the VII Additional
Senior Civil Judge, Rangareddy District at L.B.Nagar.
No order as costs.
As a sequel, miscellaneous applications pending in this appeal if any,
shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 08th January, 2024
Nsk.
