Telangana High Court
Mohammed Sharfuddin vs State Of Telangana on 18 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.121 of 2024
JUDGMENT:
The Second Appeal is filed against the judgment and decree dated
04.09.2023 in A.S.No.23 of 2019 on the file of the IX Additional Chief
Judge, City Civil Courts at Hyderabad, whereby and where under the
judgment and decree dated 04.06.2018 in O.S.No.1791 of 2011 on the file
of the XX Junior Civil Judge, City Civil Courts, Hyderabad, which is filed
for perpetual injunction, was confirmed.
2. The appellant herein is plaintiff and the respondents are
defendants in the suit. For convenience, the parties hereinafter are
referred to as they were arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal are as
under:
(i) The plaintiff is the absolute owner and possessor of the suit
schedule property. Originally, Sri Rounakh Ali Khan Bahadur executed a
gift deed in favour of Hurmat Ali Khan to an extent of 37 beegas 10
bams, out of an extent of land admeasuring 38 Beegas 10 Bams and
certificate was issued by Maharaja Chandulal and a Chaka Bandi
Certificate was issued by Ramanna Pandit Mukdaddar, Balapur and
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remaining extent of land i.e., 1 beega was gifted to Rajab Ali, s/o. Late
Shaik Madar under the above mentioned gift deed. Rajab Ali had two
sons viz., Shaik Madar and Mohd.Hussain @ Raj Mohd.Shaik Madar. Said
Shaik Madar during his life time of Rajab Ali had purchased to an extent
of land admeasuring 5 beegas 10 bams from Shamsuddin Ali Khan
through a registered sale deed dated 17 Isfandar, 1345 Fasli (1936 AD),
for a sale consideration of Rs.90/-. Thus, Shaik Madar and his father
Rajab Ali are the owners of land to an extent of 6 beegas 10 bams situated
at Kandikal Village, Paragon Balapur, Pisalbanda, Hyderabad. One
Beega is equal to 30 guntas. Hence, 6 beegas of land comes to an extent of
180 guntas. Similarly, 1 bam is equal to 1½ gunta, hence 10 bams comes to
15 guntas; that Shaik Madar predeceased Rajab Ali, as such, the total area
entitled by Rajab Ali and his sons Mohd. Hussain @ Raj Mohd.Shaik
Madar, is 195 guntas or Acs.4.35 guntas.
(ii) That after death of Rajab Ali, his only son Mohd. Hussain
became owner of the property and said Mohd.Hussain had two wives by
name, Mrs. Zohra Bee and Mrs. Qaseem Bee, who died on 28.08.2001.
Mrs. Zohra Bee is the first wife and she does not begot children, as such,
late Mohd Hussain, married Quaseem Bee and got children i.e., plaintiff
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and Miss Khaaja Baig, Khariunnisa Begum, Meherunnisa Begum, Ayesha
Begum, Master Mohd.Raja Bali Moinuddin and Master Raj Mohd.
Basheeruddin.
(iii) A portion of the land admeasuring 11 guntas 44 square yards
was acquired by the Government for establishment of the industries
under the provisions of the Land Acquisition Act; that out of an area
admeasuring 22220 square yards, an area admeasuring 5922 square yards
was acquired for the purpose of Road widening and formation of road
and out of the said area, an area admeasuring of 3298 square yards is an
illegal encroachment by the hut dwellers, who are squatting over the
property, with the help of the Communist Party and as such, the balance
area left with the plaintiff is 13000 square yards, which is the property
entitled to by the predecessor of the plaintiff, namely Mohd. Hussain @
Raj Mohd.Shaik Madar.
(iv) Mrs. Zohra Bee, who is the first wife of Mohd.Hussain, sought
for partition of available area and filed a suit vide O.S.No.117/2006
against the plaintiff and others on the file of IX Additional Chief Judge,
City Civil Courts, Hyderabad, for partition and separate possession of the
property admeasuring 13000 Sq.yards forming part of the municipal
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house bearing No.18-11-161 situated at G.M.Nagar, Pisalbanda, Kandika
and said suit was decreed and final decree was passed on 06.12.2006 and
plaintiff is entitled to the premises bearing H.No.18-14-161/A,
admeasuring 4042 square yards situated at Pisalbanda, i.e., suit schedule
property.
(v) Defendants after due enquiry had issued No Objection
Certificate vide endorsement proceedings No.N1/1192/2010,
dt.20.03.2010 to an extent of 3156 square yards, out of 4042 square yards
for the purpose of obtaining municipal sanction for construction of a
residential building and communicate the same to Commissioner,
GHMC.
(vi) On 11.07.2011, 4th defendant came to the suit schedule property
and made attempts to dispossess the plaintiff from the suit schedule
property and when the plaintiff questioned the illegal acts of the
defendants, the defendants stated that they intend to allot the same for
construction of building; that defendants have no manner of right or title
over the suit schedule property and plaintiff is the absolute owner and
possessor; that plaintiff is entitled for enjoyment of suit schedule property
without any interference from defendants. The defendants, without any
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manner of right, title or interest, are not entitled to interfere over the Suit
Schedule Property. Hence, the suit.
4. Defendant No.4 filed written statement by denying the contents of
the plaint and inter alia contended that suit schedule property falls within
the Abadi land of Kandikal Village and town survey has not been
conducted for the above said land. On verification of Pahani from the
year 1980-81, it appears that there is no Abadi on record, hence, there is
no TSLR for the said land. It is contended that vide G.O.M.S.No.1039
Revenue Department Dated. 13.09.1972, the Government issued certain
clarification with regard to classification of Abadi i.e., Government land.
4.1. According to the said G.O., no occupancy rights of private parties
shall be recognized in the open vacant lands, unless and until there is
valid grant of Government. The MCH and Revenue Departments
working under the respective acts and rules for their permission or
registration will be subject to the confirmation of ownership title by the
Revenue Department, who is custodian of land records since lands fallen
vacant on ground, hence, State of A.P. (Now, TS) is absolute owner and
possessor of the above said Government land and in Abadi land, where
they are already been built upon the name of the occupant may have to
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be recorded as occupant. In case of vacant land in Abadi, no private
occupancy should be recognized unless the parties are able to provide a
valid land from the Government, but the above said land fallen vacant.
Hence, State is absolute owner and possessor, as per the records land is
classified as a Government land, as such, plaintiff or their alleged
predecessor have no right or title over the Government land and the
OS.No.179/2006 is a collusive suit and filed to grab he Government lands
and prayed to dismiss the suit.
5. Defendant Nos.1 to 3 filed adoption memo by adopting the written
statement of defendant no.4.
6. Basing on the above pleadings, the trial Court had framed the
following issues:
(i) Whether the plaintiff is entitled for perpetual injunction as
prayed for ?
(ii) To what relief ?
7. Before the trial Court, on behalf of the plaintiff, PW.1 was
examined and Exs.A1 to A26 were marked. On behalf of the defendants,
DW.1 was examined and Exs.B1 to B12 were marked.
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8. The trial Court, on due consideration of the oral and documentary
evidence placed on record, vide its judgment and decree dated 04.06.2018,
dismissed the suit. The trial Court categorically observed as under:-
(i) The suit is filed for injunction simplicitor. On perusing the pleadings
of the plaint, in para 8 of the plaint, plaintiffs pleads that 11 Guntas, 44
square yards acquired by the Government for establishment of the
industries under the provisions of the land acquisition act and 5922
square yards acquired for purpose of road widening and that 3298
square yards of property encroached by the dwellers; that no document
has filed by the plaintiff that neither the plaintiff nor predecessor in-
title that plaintiff received compensation from the Government
authorities; that as alleged by the plaintiff, 3298 square yards
encroached by the hut dwellers, no sane person will keep silence for
such encroachment of that too 3298 Sq. yards of prime property in
Hyderabad city near Mithani bus Depot. Khasra Pahani i.e., 1954-55
Pahani is the updated revenue record of Hyderabad State. Plaintiff has
not filed any revenue document to show possession over the said
survey numbers of the land. Moreover, this plaintiff and others are
claiming land for the house premises 18-14-161 i.e., 1000 Sq. yards of
land. No such house premises will have 1000 of Sq. yards of land in the
Hyderabad cities; that there is no such document that said house
premises is consisting of area of the suit premises extent. It is for the
plaintiff to prove his own case. O.S.No. 179/2006 is a collusive decree in
which Government is not party; that house premises consisting of
thousands of square yards is also suspicious one; that no ULC
proceedings also filed with regard to the house premises vast extent.
(ii) Plaintiff nor their predecessor in-title are not having any valid
documents to prove the title over the 11 guntas and 44 Sq. yards of
land; that by taking advantage of house no.18-14-161, plaintiff is
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claiming thousands of square yards of land; that basing on the collusive
decree, they managed the Revenue Department and got the NOC and
same was also again cancelled on the complaint of the CPI(M) party;
that NOC was issued only for 3156 Sq. yards; that really plaintiff and
others are the owner of the property and keeping silence by them for
encroachment of the hut dwellers to an extent of 3298 square yards is
also gives suspicion about their claim of possession and title; that no
assessment and property TIN Number is not filed by the plaintiff and
the premises number existence is also doubtful as no assessment by
GHMC or MCH.
(iii) From the pleadings of the plaintiff and documents, though she
claims title and possession, but failed to prove except her possession
admitted by DW.1 by raising constructions i.e., temporary
constructions; that if really plaintiff and her predecessor in-title have
possession there will be Pakka Buildings and there will be no
encroachment by the hut dwellers and they will also compensated by
the Government when their land subject to acquisition. Plaintiff filed
the documents about the issuance of notice by the acquisition officer,
but no document has filed that land was acquired; that defendant no.4
followed the due process of law for eviction of the plaintiff.
9. Aggrieved by the judgment and decree dated 04.06.2018, the
plaintiff filed A.S.No.23 of 2023 on the file of the IX Additional Chief
Judge, CCC, Hyderabad. The first Appellate Court on re-appreciation of
the evidence and the material available on record vide judgment and
decree dated 04.09.2023, confirmed the judgment and decree of the trial
Court. The first Appellate Court observed as under:
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(i) Though the plaintiff contended several things in the plaint before
the Trial Court that the land of 11 guntas and 44 square yards
acquired by the Government for establishing institutions and open
land of 5922 square yards acquired for road widening and
formation of road, they did not file the proceedings of LAO and
granting of compensation for acquiring of the land; that the area of
3298 square yards is encroached illegally by hut dwellers with the
help of communist party, plaintiff did not place any material before
the trial Court as to what is the action taken by then or what action
has been initiated by them against the alleged encroacher to recover
the said land from the hands of the encroachers; that though
plaintiff has filed the present suit for 3083 Sq.yards of land in
premises No.18-14-161/C at Pisalbanda, Kandikal, she did not file
any certificate issued by municipality to show that beside house
number there is such a wide extent of land; and that though the
plaintiff filed electricity bills and land tax receipt, the said receipts
are not showing any extent of the total land in the name of the
plaintiff.
(ii) Admittedly, subject property is in the centre of Hyderabad city
near to Madina bus depot; that the plaintiff also does not appear to
have filed any ULC proceedings before the trial Court to show that
she is holding a vast extent of land in the Hyderabad Urban Area
and there is no ULC clearance in favour of the plaintiff for holding
such a vast extent of land in the Urban area. Admittedly, no
compensation is paid to the plaintiff or their predecessors for the
land which is acquired which is established from contents of legal
notice under Ex.A5; that admittedly, the plaintiff did not file the
result of Land Acquisition proceedings before the trial Court; that as
per Ex.B4, the NOC granted in favour of plaintiff herein and others
are kept in abeyance and in Ex.B5, the NOC issued in favour of
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plaintiff was cancelled on 18.06.2012 and directions were given to
Collector to resume their land basing upon which the plaintiff
issued Exs.B5 and B6 for re-assumption of land; that defendant No.4
had issued a notice for eviction on 04.02.2013 and panchanama was
also conducted on 18.02.2013 and it appears that the RDO also
confirmed the orders passed by Tahsildar, Bandlaguda; that the
eviction orders were confirmed by Joint Collector and it is clearly
implicit that the present suit is filed only to stop the Government
officials from proceedings against the plaintiff as per due process of
law.
(iii) The conduct of the plaintiff in filing a suit for simplicitor
injunction without any merits against the Government with an
intention to prevent them from taking steps to evict the plaintiff as
per due process of law is totally objectionable and when the plaintiff
has no right or title over the suit land and when the plaintiff was
admittedly found in illegal possession of the Government lands;
that when government has directed the defendant No.4 to reassume
the land from the plaintiff, plaintiff filed the present suit before the
trial Court for simplicitor injunction and suit is dragged upto 7
years before the trial Court. It appears that the sole intention of the
plaintiff was to prevent the defendants, under the guise of filing the
present suit before the trial Court; that it is well settled proposition
that one cannot seek injunction against true owner and since the suit
lands being classified as abadi lands are in obviously Government
lands and the title of abadi lands being vested in Government, the
Government has every right to proceed against the encroachers of
Government lands and under the guise of filing an injunction suit,
an encroachers over the lands of Government cannot be permitted
to withhold the possession of government lands without any-right
or title and cannot be permitted to illegally deprive the fruits of
benefits of possession over the such lands.
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10. Having observed as above, the first appellate Court held that the
trial Court had meticulously discussed the oral and documentary
evidence placed on record and thoroughly appreciated the factual aspects
of the case and came to a right conclusion and accordingly, dismissed the
appeal, confirming the judgment of the trial Court.
11. Heard Mr. Arvind Kumar Agarwal, learned counsel for the
appellant. Perused the record.
12. The learned counsel for the appellant vehemently argued that the
trial Court decreed the suit without proper appreciation of the evidence
and the first Appellate Court also committed an error in confirming the
judgment and decree passed by the trial Court. Further, he contended
that the first Appellate Court erred in not framing the issues for
consideration while adjudicating the first appeal.
13. In Santosh Hazari vs. Purushottam Tiwari 1, the Hon'ble
Apex Court held as under:
"15. ... The appellate court has jurisdiction to reverse or affirm the
findings of the trial court. First appeal is a valuable right of the
parties and unless restricted by law, the whole case is therein open
for rehearing both on questions of fact and law. The judgment of the
appellate court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all the issues
(2001) 3 SCC 179
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arising along with the contentions put forth, and pressed by the
parties for decision of the appellate court. The task of an appellate
court affirming the findings of the trial court is an easier one. The
appellate court agreeing with the view of the trial court need not
restate the effect of the evidence or reiterate the reasons given by the
trial court; expression of general agreement with reasons given by
the court, decision of which is under appeal, would ordinarily
suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967
SC 1124] ). We would, however, like to sound a note of caution.
Expression of general agreement with the findings recorded in the
judgment under appeal should not be a device or camouflage
adopted by the appellate court for shirking the duty cast on it. While
writing a judgment of reversal the appellate court must remain
conscious of two principles. Firstly, the findings of fact based on
conflicting evidence arrived at by the trial court must weigh with the
appellate court, more so when the findings are based on oral
evidence recorded by the same Presiding Judge who authors the
judgment. This certainly does not mean that when an appeal lies on
facts, the appellate court is not competent to reverse a finding of fact
arrived at by the trial Judge. As a matter of law if the appraisal of the
evidence by the trial Court suffers from a material irregularity or is
based on inadmissible evidence or on conjectures and surmises, the
appellate court is entitled to interfere with the finding of fact. (See
Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] )
The rule is -- and it is nothing more than a rule of practice -- that
when there is conflict of oral evidence of the parties on any matter in
issue and the decision hinges upon the credibility of witnesses, then
unless there is some special feature about the evidence of a
particular witness which has escaped the trial Judge's notice or there
is a sufficient balance of improbability to displace his opinion as to
where the credibility lie, the appellate court should not interfere
with the finding of the trial Judge on a question of fact. (See Sarju
Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [1950 SCC 714
: AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the
appellate court must come into close quarters with the reasoning
assigned by the trial court and then assign its own reasons for
arriving at a different finding. This would satisfy the court hearing a
further appeal that the first appellate court had discharged the duty
expected of it......"
14. The above view has been followed by a three-Judge Bench decision
of this Court in Madhukar v. Sangram [(2001) 4 SCC 756], wherein, it was
reiterated that sitting as a Court of first appeal, it is the duty of the High
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Court to deal with all the issues and the evidence led by the parties before
recording its findings.
15. In Shasidhar and others vs. Aswini Uma Mathad and another2;,
the Hon'ble Apex Court at paragraph-11 had referred to judgment passed
in Kurian Chacko v. Varkey Ouseph 3, wherein it was held that duty is
casts upon the first Appellate Court to decide the first appeal in
accordance with Section 96 of CPC and further referred to the observation
made in the said judgment, which is reproduced as under:
"11. ......
2. An appellate court is the final court of fact ordinarily and
therefore a litigant is entitled to a full and fair and independent
consideration of the evidence at the appellate stage. Anything less
than this is unjust to him and I have no doubt that in the present case
the learned Subordinate Judge has fallen far short of what is expected
of him as an appellate court."
15.1. At paragraph-16, the Hon'ble Apex Court had referred to judgment
of Hon'ble Apex Court in B.V.Nagesh v. H.V.Sreenivasa Murthy 4, wherein
it was observed as under:
"3. How the regular first appeal is to be disposed of by the
appellate court/High Court has been considered by this
(2015) 11 SCC 269 [2015 (2) ALD 182 (SC]
(2001) 3 SCC 179
(2010) 13 SCC 530: (2010)4 SCC (Civ) 809
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Court in various decisions. Order 41 CPC deals with appeals
from original decrees. Among the various rules, Rule 31
mandates that the judgment of the appellate court shall
state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the
relief to which the appellant is entitled."
15.2. Ultimately, at paragraph 21, the Hon'ble Apex Court held as under:
"21. Being the first appellate court, it was, therefore, the duty
of the High Court to decide the first appeal keeping in view the
scope and powers conferred on it under Section 96 read with
Order 41 Rule 31 of the Code mentioned above. It was
unfortunately not done, thereby, causing prejudice to the
appellants whose valuable right to prosecute the first appeal
on facts and law was adversely affected which, in turn,
deprived them of a hearing in the appeal in accordance with
law."
16. The principal contention raised by the appellant herein is that the
first Appellate Court did not consider the material on record in proper
perspective and had not framed points for determination and further, the
grounds raised and submissions made on behalf of the appellant have not
been referred to by the first Appellate Court. It is further contended that
the duty cast upon the first Appellate Court to formulate the points for
determination, undertake full, fair and independent consideration of
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evidence and record reasons for its decision. The first Appellate Court
being final Court on facts, shall undertake independent analysis of
evidence, pleadings and record reasons for its conclusion.
17. Perusal of the judgment and decree dated 04.09.2023 would show
that the first Appellate Court had framed three issues, which read as
under:
i) Whether the judgment and decree passed by learned XX
Junior Civil Judge, City Civil Court, Hyderabad, in
O.S.No.1791 of 2011 dated 04.06.2018 is suffering with any
lacunae, error or miscarriage of justice ?
ii) Whether the judgment of the trial Court requires any
interference by this Court either by way of correction,
modification or set aside the judgment and decree on
appreciation of oral and documentary evidence ?
iii) To what relief ?
18. The first appellate Court, being the final Court on facts, has to
independently re-appreciate the evidence and has to record its findings
on the specific points/issues framed by it. However, perusal of the
judgment and decree dated 04.09.2023 would reveal that the first
Appellate Court failed to frame proper points/issues, which arise for
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consideration basing on the pleadings. Further, it is also evident that first
Appellate Court has not undertaken independent evaluation of the
evidence i.e., both oral and documentary evidence placed on record and
thus, failed to apply its mind before coming to the conclusions.
19. It is evident from the impugned judgment and decree that the first
Appellate Court failed to discuss the grounds raised by the appellant and
record its findings. Further, the first appellate Court had also not referred
to the submissions made on behalf of the appellant.
20. In the present case, the first Appellate Court did not frame/state
points for determination, which is mandatory under Order XLI Rule 31 of
CPC. Further, the first Appellate Court being the final Court on facts, did
not undertake the exercise of detailed analysis of the evidence as well as
findings of the trial Court, contrary to Order XLI Rule 31 of CPC.
21. In the light of the law laid down by the Hon'ble Apex Court, in
catena decisions, in considered opinion of this Court the first Appellate
Court failed to exercise its power under Order XLI Rule 31 of CPC in
proper perspective and had failed to formulate proper points/issues for
consideration and undertake full, fair and independent analysis of
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evidence. Therefore, the impugned judgment and decree dated 04.09.2023
passed by the first Appellate Court is liable to be set aside and
accordingly, set aside.
22. In the result, the Second Appeal is disposed of and the matter is
remanded back to the first Appellate Court for fresh adjudication with a
direction to strictly follow the Order XLI Rule 31 of CPC and pass a
reasoned order, duly taking into consideration the evidence, material
placed on record in accordance with law. There shall be no order as to
costs.
Pending miscellaneous applications, if any, shall stand closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 18.03.2024
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