Smt. K.Anasuya vs The District Collector,
2024 Latest Caselaw 3005 Tel

Telangana High Court

Smt. K.Anasuya vs The District Collector, on 31 July, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

THE HONOURABLE Dr.JUSTICE G. RADHA RANI

               SECOND APPEAL No.886 of 2010

JUDGMENT:

This Second Appeal is filed by the plaintiff aggrieved by the

concurrent findings of the judgment and decree dated 31.03.2010 passed

by the XI Additional Chief Judge (FTC), City Civil Court, Hyderabad in

A.S.No.182 of 2008 and the judgment and decree dated 15.04.2008

passed by the I Additional Rent Controller-cum-XIII Junior Civil Judge,

City Civil Court, Hyderabad in O.S.No.4711 of 2003.

2. The suit was filed by the plaintiff seeking the relief of declaration

that she was the absolute owner and possessor of the suit schedule

property and for consequential injunction restraining the defendants and

their men from interfering with her possession. The contention of the

plaintiff was that she was the absolute owner and possessor of the house

bearing No.10-1-601/18 admeasuring 49 Sq. yards, Shyam Rao Nagar,

Chintal Basthi, Khairatabad, Hyderabad. Originally, the said property

belonged to her father-in-law Sri Kurumaiah and after his death, it was

devolved upon her husband and by virtue of the registered gift deed dated

20.06.1995 executed by her husband, she became the owner of the suit

schedule property. Before execution of the said gift deed, the local Dr.GRR,J sa_886_2010

people interfered with the possession of the husband of the plaintiff, for

which he filed O.S.No.1591 of 1994, which was decreed in his favour.

Thereafter, the plaintiff applied for permission to the MCH for

construction of a building with ground and upstairs. The third defendant

permitted the plaintiff to construct only the ground floor vide File

No.601/18. However, the local people contended that the plaint schedule

property belonged to Bhajana mandali and tried to interfere with the

possession of the plaintiff, for which again the plaintiff filed

O.S.No.1421 of 1997 against the local people and the said suit was

decreed on 19.06.2000 observing that the plaint schedule property

belonged to the plaintiff and it did not belong to Bhajana mandali. The

local people preferred an appeal vide A.S.No.286 of 2001 and the same

was also dismissed on 04.02.2003. Thereafter, the plaintiff by

communicating the said orders of the Court to defendant No.3, removed

the old structures over the suit schedule property for making new

construction. At that juncture, the local people formed a society in the

name of the defendant No.5 i.e., Durga Bhavani Mahila Mandali and

again obstructed the plaintiff in proceeding with the constructions.

Hence, the plaintiff filed E.P.No.132 of 2003. At the instance of the

defendant No.4, the defendants 1 to 4 were denying the title of the

plaintiff over the plaint schedule property. When the plaintiff sought for Dr.GRR,J sa_886_2010

renewal of the permission, defendant No.2 illegally claimed that the part

of the schedule property belonged to Bhajana mandali by his letter dated

29.05.2003 and also a letter dated 25.06.2003 by defendant No.1 and the

defendants 1 to 4 were thereby denying the title of the plaintiff over the

schedule property. When the plaintiff filed W.P.No.13523 of 2003, the

defendant No.1 also filed counter denying the title of the plaintiff over

the schedule property. Therefore, the said W.P. was dismissed with a

direction to seek her remedy before the civil court. Hence, the suit for

declaration and consequential injunction.

3. The defendant No.2 filed written statement which was adopted by

defendants 1 and 4.

4. The defendant No.2 contended that the suit land in Town Survey

No.68, Block G, Ward 84 of Khairatabad village to an extent of 15 Sq.

mts. was a government land classified as G temple in Town Survey Land

Register (TSLR). Originally, there was a Bhajana mandir over the said

land and it was utilized for religious purpose of Bhajans by the local

people. The plaintiff encroached the Government land in Town Survey

No.69 to an extent of 27 Sq. mts. which was on the eastern side of the

plaint schedule property. The old structures in Town Survey No.68 were

collapsed due to heavy rains. Taking advantage of the situation and as Dr.GRR,J sa_886_2010

the land was vacant, the plaintiff was making efforts to encroach the said

land. Therefore, the Durga Bhavani Mahila Mandali of the locality

lodged a complaint with defendant No.2 about the illegal acts of the

plaintiff. Then, the defendant inspected the land and warned the plaintiff

not to proceed with any constructions in the said land in Town Survey

No.68 as it was a Government land. The plaintiff grabbed the land

admeasuring 27 Sq. Mts. of land in Town Survey No.69 and erected

structures and enjoying the same without any title and the plaintiff was

now trying to grab the 15 Sq.Mts. of land abutting to Town Survey No.68

which was vacant ground. The defendant was not aware of filing of the

suits by the plaintiff. The said order was not binding on the defendants.

The 15 Sq.Mts. of land in Town Survey No.68 was classified as G

temple, Bhajana mandali. The plaintiff was not entitled to raise any

constructions over and above 15 Sq.Mts. in Town Survey No.68. At the

request of the local people, the defendant wrote a letter to the Additional

Commissioner, Urban Community Development, MCH, Hyderabad to

take up the construction of a community hall in Town Survey No.68 for

conducting Government programs to prevent further encroachments. The

Government was the absolute owner of the suit property. The plaintiff

did not approach the Court with clean hands nor she was in possession of

the property. Therefore, the alleged interference would not arise. The Dr.GRR,J sa_886_2010

suit was not maintainable after the constitution of the Special Court under

the A.P. Land Grabbing (Prohibition) Act. The Court had no jurisdiction

to try the suit and prayed to dismiss the suit.

5. The defendant No.3 remained ex-parte.

6. The defendant No.5 filed written statement contending that

Kurumaiah, the father-in-law of the plaintiff was not the owner of the

property. The property in dispute was House No.10-1-601/17, which had

nothing to do with the property belonging to late Kurumaiah. The suit

property was a community land, described as Bhajana mandali. The

community people were conducting prayer meetings since long. It was

considered as an easy target by the petitioner and filed O.S.No.4711 of

2003 and tried to grab the same by calling it as her own. The gift deed

executed by the husband of the plaintiff was not valid as the donor was

not the owner of the property. The permission given by the MCH had no

bearing to the case. Likewise, the proceedings in O.S.No.1421 of 1997

had also no bearing on the title to the suit property. The local people had

nothing to do with the suits filed by the plaintiff or her husband. The

appeal in A.S.No.286 of 2001 was not relevant to test the title relating to

the schedule property bearing H.No.10-1-601/17. The plaintiff removed

the old structures from the house bearing No.10-1-601/18 and not from Dr.GRR,J sa_886_2010

house bearing No.10-1-601/17. The plaintiff was not entitled for any

declaration and consequential relief of injunction and prayed to dismiss

the suit.

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

i. Whether the plaintiff is entitled for the relief of declaration as prayed for?

ii. Whether the plaintiff is entitled for the relief of injunction as prayed for?

iii. To what relief?

8. The plaintiff examined herself as PW.1 and got marked Exs.A1 to

A16 on her behalf. The defendant No.2, the concerned Mandal Revenue

Officer was examined as DW.1 and got marked Exs.B1 to B3. The

defendant No.5 got examined its authorized representative as DW.2 and

got marked Exs.B4 to B6.

9. On considering the oral and documentary evidence on record, the

trial court dismissed the suit filed by the plaintiff observing that:

"The burden lies upon the plaintiff to establish her title over the suit schedule property. But, except Ex.A3 i.e., gift deed executed by her husband in her favour, no other document was filed by the plaintiff to disclose the extent of the property whether it was Dr.GRR,J sa_886_2010

49 Sq.Yds. or 27 Sq.Yds. of land in Town Survey No.69 as contended by PW.1. O.S.No.1421 of 1997 was filed for an area of 26.6 Sq. Yds., but not for 49 Sq.Yds. There was no authenticated proof that house No.10-1-601/18 admeasures 49 Sq. Yds. As per Ex.B1 the Town Survey Register extract issued by the Tahsildar, at column No.23, it was mentioned as Kurumaiah, son of K.Tirupataiah. As such, the said Kurumaiah was in occupation of the property in Town Survey No.69 to an extent of 27 Sq.Yds. only and not 49 Sq. Yds.. DW.2 also stated that the schedule property was not part and parcel of the land owned by Kurumaiah, the father-in-law of the plaintiff. As per the deposition of DW.2, PW.1 was trying to grab the property of 15 Sq.Mts. of land which was situated in Town Survey No.68 which belonged to Bhajana mandali. So, on a careful perusal of the entire evidence on record, it was evident that PW.1 was not having any right or title over the entire suit schedule property. The permit and sanction plan of MCH would not confer any title to grant the relief of declaration. As Exs.B1 and B2 would disclose that there was only 27 Sq.Yds. which was in occupation of Kurumaiah, so, it was clear that PW.1 did not approach the court with clean hands."

Dr.GRR,J sa_886_2010

The trial court, disbelieved the version of the plaintiff that she was the

owner of the entire property admeasuring 49 Sq.yards of land.

10. The trial court further held that:

" ...As the Government or the defendant No.1 were not parties to the suit in O.S.No.1421 of 1997, the findings of the Court in the said suit were not binding on the defendants and the said suit was also filed only seeking the relief of perpetual injunction.As such, the said judgment was not binding upon the defendants."

and dismissed the suit.

11. Aggrieved by the said judgment and decree passed by the I

Additional Chief Judge-cum-XIII Junior Civil Judge, Hyderabad in

O.S.No.4711 of 2003 dated 15.04.2008, the plaintiff preferred an appeal.

The appeal was heard by the XI Additional Chief Judge (FTC), City Civil

Court, Hyderabad. Vide judgment in A.S.No.182 of 2008 dated

31.03.2010, the first appellate Court dismissed the appeal confirming the

judgment and decree passed by the trial court. The first appellate court

held that:

"None of the documents filed by the plaintiff relate to the title of the father-in-law of the plaintiff over the suit house. When the plaintiff was pleading that Dr.GRR,J sa_886_2010

the suit house originally belonged to her father-in- law late Kurumaiah, it was for the plaintiff to show the document of title of suit property, concerning to her father-in-law, but the pleadings were silent about it and no document was filed by the plaintiff to support her contention".

As such, disbelieved that the property originally belonged to her father- in-law.

12. The first appellate court also observed that in the gift deed marked

as Ex.A3, executed by the husband of the plaintiff, there was no mention

of the fact that he inherited the same being the legal heir of his father and

the source of title of his father was also not mentioned in the said

document and there was no reference to the link document of the husband

of the plaintiff in the gift settlement deed Ex.A3. The first appellate

court also noted the inconsistencies in the evidence of the plaintiff-PW.1

with regard to Ex.A4, copy of complaint given by the plaintiff to the

MRO, Khairatabad wherein the plaintiff stated that her father-in-law

Kurumaiah was allotted 75 Sq. Yds. of land and out of the said land, an

extent of 49 Sq.Yds. fell to the share of her husband and her husband

executed a gift deed in respect of 49 Sq. yards, but admitted in her cross-

examination that she did not know how much property was allotted to her

father-in-law and she did not know whether any partition took place Dr.GRR,J sa_886_2010

between her husband and her brother-in-law. The first appellate court

also observed that there were no pleadings in the plaint that 75 Sq.Yds. of

land was allotted to her father-in-law and her husband got 49 Sq.Yds. of

land to his share. The first appellant court, while appreciating the cross-

examination of PW.1, noted that the plaintiff admitted that she did not

know as to how her father-in-law acquired the property from the

Government and that she was not in possession of the original patta or

any other document to show that the Government allotted suit property to

her father-in-law, as such held that the plaintiff was not aware about the

source of title of her father-in-law and that she was not entitled for

declaration of title. The first appellant court while appreciating Ex.A2

the permission accorded by the MCH and the sanction plan for

construction observed that, it was not a document of title and no title

would pass under it and the plaintiff could not claim title under the said

document and held that the plaintiff failed to prove her title over the said

property and as such, was not entitled to the relief of declaration of title

and the consequential relief of injunction and dismissed the appeal,

confirming the judgment and decree of the trial court.

13. Aggrieved by the said judgment passed by the learned XI

Additional Chief Judge (FTC), City Civil Court, Hyderabad, the plaintiff Dr.GRR,J sa_886_2010

preferred this Second Appeal raising the following substantial questions

of law:

a) Whether both the Courts below have not erred in dismissing the claim of the appellant for declaration of title in respect of total property of H. No. 10-1-

601/18, though the respondents themselves have admitted the ownership of the appellant to the extent of 27 Sq. meters of the suit house bearing No. 10-1- 601/18 in their pleadings and also during the course of enquiry in I.A. No. 879/2003.

b) Whether both the Courts below have not erred in not accepting the admission of the respondent during the course of enquiry in I.A.No. 879/2003 to the effect that the appellant is only owner to an extent of 27 Sq. Meters of H. No. 10-1-601/18 and the respondents themselves have identified the disputed area of issue in the trial in O.S. No. 4711/2003 only to the extent of open area situated towards western side of the suit house admeasuring 15 Sq. Meters. However, both the courts below have erroneously rejected the claim of the appellant even to the extent of 27 Sq. Meters of the suit house.

c) Whether the Lower Appellate Court have not erred in dismissing the Second Appeal without taking into consideration the understanding between the parties Dr.GRR,J sa_886_2010

during the course of enquiry in IA.No. 879/2003 to the effect that the respondents themselves have identified disputed area only to the extent of 15 Sq. Meters of the suit house. However, the Lower Appellate Court erroneously dismissed the appeal.

d) Whether both the courts below have not erred in totally ignoring the settled principle of law that the admitted facts need not be proved during the course of the trial. In the instant case, though the respondents admitted the ownership of the appellant to an extent of 27 Sq. Meters in the suit house and disputed the title of the appellant only to the extent of open area which is situated towards western side of the suit house admeasuring 15 Sq. Meters, both the courts below erroneously dismissed the suit in respect of entire extent of the suit house.

e) Whether the Courts below have not erred in ignoring the findings recorded by the X Junior Civil Judge, in O.S. No.1421/1997 and confirmed by the XII Additional Chief Judge, Hyderabad with regard to title of the appellant in respect of suit house particularly when there is an issue in O.S. No. 1421/1997 to the effect that whether H.No. 10-1- 601/18 is the house belonging to the appellant or it is the property belonging to the Bajana mandali as claimed by the 5th respondent herein and after examining as many as four locally residing people Dr.GRR,J sa_886_2010

claiming that the suit house is the property of Bajana mandali, the Trial Court and Lower Appellate Court in O.S. No. 1421/1997 have recorded a categorical finding that no part of H. No. 10-1-601/18 is belonging to any Bajana mandali and even in the present suit the Ist and 2nd respondents have not at all produced any kind of evidence to show that any part of the suit house is belonging to any Bajana mandali.

f) Whether both the courts below have not erred in not accepting the findings recorded in O.S. No. 1421/1997 as res-judicata to the claim of the respondents in O.S. No. 4711/2003 to the effect that the part of suit house is belonging to a Bajana mandali, since there is a finding in O.S. No. 1421/1997 no part of suit house is belonging to any Bajana mandali.

14. The second appeal was admitted on 03.11.2010 on the above

substantial questions of law raised in the grounds of appeal.

15. Heard the learned counsel for the appellant and the learned

Government Pleader for Arbitration.

16. Learned counsel for the appellant contended that the respondents

themselves admitted the ownership of the appellant to an extent of 27 Sq.

meters of the suit house bearing No.10-1-601/18 in their pleadings and Dr.GRR,J sa_886_2010

also during the course of enquiry in I.A.No.879 of 2003. Both the courts

below erred in rejecting the claim of the appellant to an extent of 27 Sq.

meters of the suit house. The courts below without taking into

consideration the understanding between the parties during the course of

enquiry in I.A.No.879 of 2003 erroneously dismissed the suit and the

appeal. Admitted facts need not be proved. Though the respondents

admitted the ownership of the appellant to an extent of 27 Sq. Mts. in the

suit house and disputed the title of the appellant only to the extent of

open area which was situated towards western side of the suit house

ad-measuring 15 Sq. Meters, both the courts below erroneously

dismissed the suit in respect of entire extent of the suit house and relied

upon the judgment of the Hon'ble Apex Court in Rajendra Tiwary Vs.

Basudeo Prasad and Anr. 1on the aspect that:

"Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted."

16.1. He further relied upon the judgment of the High Court of Andhra

Pradesh in B.Venkata Ramana & Ors. Vs. A. Balaramudu & Ors.2

AIR 2002 SC 136

S.A.No.535 of 1977 dated 28.06.1978 Dr.GRR,J sa_886_2010

wherein it was held that where the plaintiff establishes a portion of his

claim, though not in its entirety, he is entitled to the relief to the extent he

has been able to prove.

16.2. Learned counsel for the appellant further contended that the

plaintiff was also conferred her right over the suit schedule property by

way of long standing possession. It was once considered that no

declaration of title can be sought by the plaintiff on the basis of adverse

possession and adverse possession can be used only as a shield by the

defendant and not as a sword by the plaintiff, but as per the Full Bench

judgment of the Hon'ble Apex Court in Ravinder Kaur Grewal and

others; Radhakrishna Reddy (died) through legal representatives v.

Manjit Kaur and others; G.Ayyavoo and others 3, the decision in

Gurudwara Saheb v. Gram Panchayat Village Sirthala 4 was

overruled. Now, the plaintiff could also take the plea of acquisition of

title by adverse possession and there was no bar under the Limitation Act

to sue on the aforesaid basis in case of infringement of rights of the

plaintiff.

17. Learned Government Pleader for Arbitration, on the other hand,

contended that no plea of adverse possession was taken by the plaintiff in

2019 LawSuit(SC)1434

2014 (1) SCC 669 Dr.GRR,J sa_886_2010

the plaint. The plaintiff had no right to take such a plea in the second

appeal. The plaintiff had filed suit for declaration of title for an extent of

49 sq. yards, as such, it was incumbent upon her to prove her right over

the said property in its entirety. The orders in I.A had no bearing on the

suit. They were valid only till the main case was disposed of. No link

document was filed by the respondent/plaintiff to the gift deed through

which she was claiming right over the suit schedule property. Both the

courts below had considered all the aspects and passed concurrent

findings in dismissing the suit filed by the plaintiff. The first appellate

court independently dealt with the issues uninfluenced by the findings of

the trial court. No substantial questions of law were arising in this matter

and prayed to dismiss the appeal.

18. The general rule is that the High Court will not interfere with the

concurrent findings of the courts below. But, it is not an absolute rule.

Some of the well-recognized exceptions are where: (i) the courts below

have ignored material evidence or acted on no evidence; (ii)

the courts have drawn wrong inferences from proved facts by applying

the law erroneously; or (iii) the courts have wrongly casted the burden of

proof.

Dr.GRR,J sa_886_2010

19. Where a point of law has not been pleaded or is found to be arising

between the parties in the absence of any factual foundation, a litigant

should not be allowed to raise that question as a substantial question of

law in the second appeal. The mere appreciation of the facts, the

documentary evidence or the meaning of entries and the contents of the

documents cannot be held to be raising a substantial question of law. But

where it is found that the first appellate court has assumed jurisdiction

which did not vest in it, the same can be adjudicated in the second appeal

treating it as a substantial question of law. Where the first appellate court

is shown to have exercised its discretion in a judicial manner, it cannot be

termed to be an error either of law or of procedure requiring interference

in second appeal.

20. In the background of the settled principles with regard to the

substantial questions law, the matter has to be looked into. Though

around six questions were raised by the appellant in the grounds of

appeal which were admitted by this Court, all these can be reduced to the

following two questions:

1. Whether the understanding between the learned counsel for the petitioner and the learned AGP representing respondents 1, 2 and 4 before the trial court in I.A.No.879 of 2003 in O.S.No.4711 Dr.GRR,J sa_886_2010

of 2003, permitting the petitioner to proceed with construction by leaving an extent of 15 Sq. Mts from the petition schedule property in Town Survey No.68 will have a bearing on the disposal of the suit?

2. Whether the findings recorded in O.S.No.1421 of 2007 would act as res-judicata to the claim of the respondents in O.S.No.4711 of 2003?

21. Substantial Questions of Law No.1:-

The contention of the learned counsel for the appellant was that at

the time of arguments in I.A.No.879 of 2003 in O.S.No.4711 of 2003, the

learned AGP representing the respondent Nos.1, 2 and 4 therein and the

learned counsel for the petitioner/plaintiff came to an understanding that

the petitioner/plaintiff could be permitted to proceed with construction in

an extent of 27 sq.yards of land by leaving an extent of 15 sq.Mtrs from

the petition schedule property which was in T.S.No.68, which was a

government land classified as G-temple, Bajana mandali. Learned

counsel for petitioner/plaintiff undertook that the petitioner would not

raise any construction over an extent of 15 Sq.Mtrs out of the petition

schedule property in T.S.No.68, for which learned AGP reported no

objection and the same was recorded in the orders in I.A.No.879 of 2003 Dr.GRR,J sa_886_2010

in O.S.No.4711 of 2003 dated 28.10.2003, as such, he was restricting his

claim for the 27 Sq.Mtrs and prayed to confirm the same.

22. On a perusal of the record, though the learned counsel for the

appellant contended that the respondents admitted the ownership of the

appellant to an extent of 27 Sq.Mtrs where in the House bearing No.10-1-

601/18 was constructed in T.S.No.69, the written statement filed by the

defendant No.2, which was adopted by the defendant Nos.1 and 4 would

disclose that they contended that the plaintiff encroached the government

land in T.S.No.69 to an extent of 27 Sq.Mtrs and that she grabbed the

said land admeasuring 27 Sq.Mtrs in T.S.No.69 and constructed

structures and enjoying the same without any title and was now trying to

grab 15 Sq.Mtrs of land in T.S.No.68, which was a vacant ground

abutting to T.S.No.69. Thus, no admission was made by the defendant

Nos.1, 2 and 4 with regard to the title of the plaintiff pertaining to 27

Sq.Mtrs of the house bearing No.10-1-601/18 in T.S.No.69. Learned

AGP has no authority to make any concessions or to enter into any

understanding with the learned counsel for the petitioner. The said

understanding or the no objection reported by the learned AGP for

raising any constructions in an extent of 27 Sq.Mtrs by the

appellant/plaintiff would have no bearing on the case. When the Dr.GRR,J sa_886_2010

appellant/plaintiff had filed the suit seeking for declaration for an extent

of 49 Sq.Yards, she had to prove her title for the entire extent of suit

schedule property. As she failed to prove her entitlement over the said

extent of the suit schedule property admeasuring 49 Sq.Yards, the suit

was rightly dismissed by the trial court. The first appellate court re-

appreciated the evidence and documents filed by both the parties and

gave a reasonable finding on these aspects. The first appellate court

considered that in the complaint given by the plaintiff to the M.R.O.,

Khairatabad, marked under Ex.A4, it was stated that her father-in-law,

late Kurumaiah was allotted 75 Sq.yards of land and out of the said area

an extent of 49 Sq.Yards had fallen to the share of her husband. The first

appellate court observed that no document was filed to show the said

extent of land allotted to the father-in-law of the plaintiff by the plaintiff

and there was no pleading taken by the plaintiff with regard to the

allotment of 75 Sq.Yards of land to her father-in-law by the government.

The first appellate court also considered the cross examination of the

plaintiff, who was examined as P.W1, wherein she admitted that she did

not know how much property was allotted to her father-in-law or whether

any partition took place between her husband and her brother-in-law,

observed that the said contentions raised in Ex.A4 could not be accepted.

Both the courts below had also considered that the plaintiff failed to file Dr.GRR,J sa_886_2010

any document of title to the suit property concerning to her father-in-law

and there were also no pleadings on the said aspect and no link document

was filed to the gift deed marked under Ex.A3 executed by the husband

of the plaintiff in her favour. The first appellate court also observed the

contradictions in the pleadings to the contents of the document marked

under Ex.A3 wherein the donor had mentioned that he was the absolute

owner and possessor of part of the property i.e., House bearing No.10-1-

601/18 admeasuring 49 Sq. yards, Shyam Rao Nagar, Chintal Basthi,

Khairatabad, Hyderabad. But there is no mention with regard to the fact

that he inherited the same from his father as his legal heir and that it was

not mentioned as to how his father got the property. Considering all

these aspects both the courts below dismissed the suit filed by the

appellant/plaintiff.

23. As such, this court considers that the understanding between the

learned counsel for the petitioner and the learned AGP representing

respondent Nos.1, 2 and 4 before the trial court in I.A.No.879 of 2003 in

O.S.No.4711 of 2003 permitting the petitioner/plaintiff to proceed with

the construction by leaving an extent of 15 Sq.Mtrs in T.S.No.68 is not

having any bearing on the disposal of the suit and this question is

answered accordingly.

Dr.GRR,J sa_886_2010

24. Substantial Questions of Law No.2:-

The other contention raised by the learned counsel for the

appellant/plaintiff was that plaintiff earlier filed O.S.No.1421 of 1997

against the local people and the said suit was decreed on 19.06.2000

observing that the plaint schedule property belonged to the plaintiff and

that it did not belong to Bajana mandali and the appeal filed against it

vide A.S.No.286 of 2001 was also dismissed on 04.02.2003, as such, the

findings in the said suit would act as resjudicata to the claim of

respondents in O.S.No.4711 of 2003. The plaintiff filed the certified

copy of judgment and decree in A.S.No.286 of 2001 dated 04.02.2003 as

Exs.A14 and A15. A perusal of the same would disclose that the said

suit was filed by the husband of PW.1 for perpetual injunction against

third parties and the suit schedule property was also not shown as 49

Sq.Yards. The respondents herein were not shown as parties to the said

suit.

25. Section 11 of C.P.C which incorporates the principle of

resjudicata states that:

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court Dr.GRR,J sa_886_2010

competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court".

26. As per the above principle when a matter has been decided

between two parties in a suit or proceeding the said decision is final. But

for the application of the said principle, the matter in the former suit must

be directly and substantially in issue in the subsequent suit and both the

suits must be between the same parties and the court which decided the

former suit must be a competent court and the matter should have been

decided on merits and a final decision should have been made. But the

parties in the present suit and in the former suit were not one and the

same. The reliefs claimed were also distinct and different and the extent

of suit schedule property was also not one and the same.

27. The earlier suit is filed by the husband of the plaintiff against some

third parties seeking the relief of perpetual injunction and the present suit

is filed by the plaintiff against the government and respondent No.5

seeking the relief of declaration of title and for consequential injunction.

The suit schedule property is shown as 49 Sq.yards in the present suit,

which was not the same in the earlier suit. The trial court as well as the

first appellate court also considered these aspects and observed that the

finding of the court in O.S.No.1421 of 1997 was not at all binding on the Dr.GRR,J sa_886_2010

defendants. The first appellate court also observed that while considering

the relief of perpetual injunction, the court need not go and decide the

title over the suit property. In the said situation the suit for perpetual

injunction might have been decreed, but when the plaintiff in the instant

case failed to prove her title over the suit schedule property as pleaded in

the plaint, it was difficult to accept the said contention of the learned

counsel on behalf of the plaintiff in the present suit for declaration of

title. This Court agrees with the observations of the courts below and

considers that the findings recorded in O.S.No.1421 of 2007 would not

act as resjudicata in O.S.No.4711 of 2003. The substantial question of

law No.2 is answered accordingly.

28. With regard to the other contention taken by the learned counsel

for the appellant about the long standing possession and the plea of

adverse possession, it is rightly contended by learned Government

Pleader that there is no plea of adverse possession taken by the plaintiff

in the present case. He further contended that the plea of adverse

possession and the claim of the plaintiff based on her title were mutually

inconsistent. When there are no pleadings and evidence with regard to

adverse possession, the same cannot be raised by the learned counsel for Dr.GRR,J sa_886_2010

the appellant/plaintiff at the stage of the second appeal and the same need

not be considered. As such, the second appeal is liable to be dismissed.

29. Accordingly, the Second Appeal is dismissed confirming the

judgment and decree dated 31.03.2010 passed by the XI Additional Chief

Judge (FTC), City Civil Court, Hyderabad in A.S.No.182 of 2008 and the

judgment and decree dated 15.04.2008 passed by the I Additional Rent

Controller-cum-XIII Junior Civil Judge, City Civil Court, Hyderabad in

O.S.No.4711 of 2003. No costs.

Pending miscellaneous applications, if any, shall stand closed.

_____________________ Dr.G. RADHA RANI, J Date: 31.07.2024 ss/dsv