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