Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4669 OF 2022
(Arising out of SLP(Civil) No.6898/2021)
The Principal Secretary,
Revenue Department, State of Telangana
& Anr. .…Appellant(s)
Versus
B. Rangaswamy (Dead) By Lrs.
& Ors. ….Respondent(s)
WITH
CIVIL APPEAL NO.4670 OF 2022 @ SLP(C) NO.7610/2021)
J U D G M E N T
A.S. Bopanna,J.
Leave granted.
2 . The Appellants-State of Telangana through its Principal
Secretary as appellant No.1 and District Collector as appellant
No.2 are before this Court in the Appeal bearing No.4669/2022
(arising out of SLP 6898/2021), assailing the judgment dated
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2022.07.11
15:51:17 IST
Reason:
01.04.2021 passed by High Court for the State of Telangana at
Hyderabad in CCCA No.22/1999. The appellant in Appeal No.
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4670/2022 (arising out of SLP No.7610/2021), is also assailing
the same judgment insofar as cancellation of a portion (298
sq.yards) of the suit subject land allotted in his favour. The
consequence of the result of the main appeal will befall on the
appellant in the said appeal, due to which there is no need to
consider the same in detail.
3 . Through the judgment dated 01.04.2021 the High Court
has allowed the appeal and set aside the judgment and decree
dated 10.11.1998 passed by the V Senior Civil Judge, City Civil
Court, Hyderabad in O.S. No.609/1981. Consequently, the suit
has been decreed declaring the respondents in the main appeal
as owners and restraining the appellants herein from interfering
with their possession. The appellant in the connected appeal has
been directed to restore possession to the extent of 298 Sq. yards,
i.e., a portion of the suit schedule property which has been
allotted to him during the pendency of the lis.
4 . The case has a chequered history. The suit filed in 1981
was at the first instance dismissed on 24.09.1982 after detailed
consideration. The respondents herein filed an appeal before the
High Court. The High Court, after consideration, through its
judgment dated 26.06.1995 set aside the judgment passed by
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the Trial Court and remanded the matter to the Trial Court for
fresh determination. It is after such determination the suit was
once again dismissed by the Trial Court on 10.11.1998, which
was carried in appeal and resulted in the impugned judgment,
which is presently assailed herein. The appellants herein were
defendants No.1 and 2 in the suit. The respondents No.1 to 12
herein are the legal representatives of plaintiff No.2 who had
instituted the suit and respondent No.13 was the plaintiff No.1
in the suit. The parties would be referred to as per their rank in
the suit before the Trial Court for the ease of reference,
convenience and clarity.
5. The brief facts leading to the present case are; the plaintiffs
No.1 and 2 along with one Smt. B. Saroja Devi are partners in
the business carried on in the name and style ‘Bhagyanagar
Studio’ which has its office at Road No.14, Banjara Hills,
Hyderabad. The second plaintiff claims to have purchased the
property measuring 2 acres 10 guntas under a registered sale
deed dated 03.09.1964. The property is claimed to be a part of
Survey No.129/56 Banjara Hills, Hyderabad. Smt. B. Saroja
Devi, one of the partners, in the plaintiff No.1 studio claims to
have purchased the property bearing Survey No.129/73 situated
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in Banjara Hills, Hyderabad admeasuring 5 acres 38 guntas,
under a sale deed dated 03.09.1964. The plaintiffs contend that
the said extent of the property situated in Survey No.129/56 and
Survey No.129/73 are adjacent to each other. Being a contiguous
block of land, the plaintiffs undertook the construction of the
studio over the said lands. It is the pleaded case of the plaintiffs
that in such circumstance the plaintiff No.1 is in possession of 7
acres and the plaintiff No.2 is in possession of about 3000 sq.
yards which he retained for himself. The plaintiff asserts that the
said 3000 sq. yards is not government land. It is further averred
in the plaint that the plaintiffs are in continuous possession and
enjoyment beyond the statutory period adverse to the interest
and to the knowledge of one and all. It is therefore alternatively
contended that they have become absolute owners in respect of
the suit land by adverse possession and by virtue of title.
6. It is averred in the plaint that the defendant/Government
at that stage was trying to interfere with the possession of the
plaintiff over the suit land, contending that the land belonging to
the government was being enclosed with a compound wall and
structures were being raised by the plaintiff. The plaintiff
contended that the land in question is private land and made a
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grievance that the government claiming that the suit land
bearing Survey No.403 Shaikpet Village is situate between the
plaintiffs’ land is not allowing the plaintiff to carry on the
construction. The plaintiffs further reiterating that the suit
schedule land belongs to the plaintiffs have filed the suit seeking
that the plaintiffs be declared as the absolute owners and
possessors of the suit land admeasuring about 2 acres 10
guntas, forming part of Survey No.129 as detailed in the schedule
and plan annexed to the plaint. It was further prayed that the
defendant/Government be prohibited from interfering or causing
obstruction in the construction work, enjoyment and possession
of the suit land.
7. The defendants filed their written statement disputing the
claim of the plaintiffs. Apart from contending that the suit was
bad for non-joinder of proper and necessary party the defendants
also contended that the suit is not maintainable. Insofar as the
averments in the plaint relating to the ownership of the property
bearing Survey No.129/56 and Survey No.129/73, reference was
made to the total extent which was owned by the vendor of the
plaintiff and also the property being sold in portions. In that
regard it was contended that the land situate on the western side
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to the portion purchased by Smt. B. Saroja Devi, there is
government poramboke land bearing Survey No.403.
Considering the total extent and the portions sold, it was
contended that the extent to which the claim is being made is
not situate in Survey No.129/56 but is actually the government
land owned and possessed by the government which bears
Survey No.403 situate between Survey No.129/56 and 129/73.
It is contended that the plaintiffs themselves in the year 1976
and 1978 admitted that the piece of land admeasuring 2 acres is
lying in between Survey No.129/56 and Survey No.129/73,
which belongs to the government and the plaintiffs applied and
requested the government for allotment of the said land for
extension of their studio. In fact, they sought allotment at the
market rate. The defendants denied that the suit schedule
property is a part of land bearing Survey No.129/56. With
reference to the various measurements stated in the plaint
wherein it is contended that 7 acres is with plaintiff No.1 and
plaintiff No.2 is in possession of 3,000 square yards, it is pointed
out by the defendant, which if added, would be 7 acres 16 guntas
and 64 square yards, though the purchase of 5.38 acres in
Survey No.129/73 and 2 acres 10 guntas in Survey No.129/56
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as claimed would actually add up to 8 acres 18 guntas. That by
itself would indicate that the plaintiffs are not clear about the
measurement and the identification of the property.
8.
In that light it was further contended in the written
statement that the plaintiffs with an intention to grab a portion
of the valuable government land bearing Survey No.403 which is
situate between the Patta land of Survey No.129/56 and Survey
No.129/73 have made an attempt in that regard but were
prevented from doing so. It is also contended that the civil court
had no jurisdiction under Section 14 of the A.P. Land
Encroachment Act 1905. With all the above noted contentions
the defendants sought dismissal of the suit.
9. Based on the rival pleadings, the trial court framed six
issues for its consideration. Though at the first instance the suit
was considered based on such issues, the judgment passed by
the trial court was set aside by the High Court and the matter
was remitted to the trial court for fresh consideration. At that
point, the issues were recast, which read as hereunder:-
“1. Whether the plaintiffs proved the identity of the suit
schedule property and also correctness of the plaint
schedule?
2. Whether the plaintiffs proved their title to the suit
schedule property?
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3. Whether the plaintiffs proved their possession to the
suit schedule property on the date of suit?
4. Whether the suit is bad for misjoinder or non-
joinder of parties?
5. Whether the suit is not maintainable in law?
6. To what relief?”
10. A perusal of the issues framed would indicate that the
burden had been cast on the plaintiffs to prove not just the title
to the suit schedule property but also the identity of the property
and the correctness of the plaint schedule. The plaintiffs
examined PW-1 to PW-5 as their witness and got marked the
documents at Exhibits A-1 to A-19. The defendants on their
behalf examined DW-1 and DW-2 and got marked the documents
at Exhibits B-1 to B-7. The trial court on analysing the evidence
has arrived at its conclusion that insofar as the identity and
ownership which was required to be proved under issues 1 and
2, the plaintiffs failed to prove that the suit schedule property
admeasuring 2 acres 10 guntas is part and parcel of Survey
No.129/56. In that view, since the identity and correctness of the
suit schedule property was not proved, the said issues were held
against the plaintiffs in addition to the other findings and the
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suit was dismissed. The High Court while considering the appeal,
though had reappreciated the evidence, has essentially found
fault with the defendants in not producing the original of the
documents which were produced and marked. In that light,
drawing an adverse inference against the defendants, arrived at
a conclusion that the Trial Court had wrongly held that there was
land belonging to the government wedged between the property
bearing Survey No.129/73 and Survey No.129/56. The High
Court set aside the judgment of the trial court and decreed the
suit. It is in that view, the defendants claiming to be aggrieved
are before this Court in this appeal.
11. We have heard Mr. C.S. Vaidyanathan and Mr. K.
Radhakrishnan, learned senior counsel on behalf of the
appellants No.1 and 2 (defendants) respectively and Mr. V. Giri,
learned senior counsel on behalf of the respondents (plaintiffs)
and perused the appeals papers.
12. The learned senior counsel for the defendants, for the
first time, in this appeal, sought to contend that the suit is
barred by time as it was filed beyond the period of limitation
provided in law. To support his contention that the issue of
limitation can be raised even at this stage, the learned senior
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counsel has relied on Management of the State Bank of
Hyderabad vs. Vasudev Anant Bhide AIR 1970 SC 196 and
Town Municipal Council, Athani vs. Presiding Officer,
Labour Court, Hubli
AIR 1969 SC 1335. Alternatively, the
case in Banarasi Das vs. K. Kanshi Ram AIR 1963 SC 1165
is relied to contend that even if limitation is not a pure
question of law but was a mixed question of fact and law, it is
open for the appellate court to frame an issue and remit it to
the Trial Court to render a finding on the same. Having noted
the decisions rendered in the background of the facts arising
therein, though there can be no cavil regarding the proposition
of law enunciated therein, the said decisions cannot be
considered in the abstract without reference to the facts
arising herein.
13. In the instant case, though the issues relating to survey
and re-survey of the land had arisen keeping in view the
identity of the property being the question, the fact remains
that the suit is not predicated on that basis to qualify to be a
suit under Section 14 of the Andhra Pradesh and Boundaries
Act, 1923 to invoke the limitation period of two years provided
therein. On the other hand, the suit is one for declaration of
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title and identity of the property, claiming it to be located
within the boundaries of a particular survey number. In that
view, as rightly contended by the learned senior counsel for
the plaintiffs, the period of limitation as provided in Article 58
of the Limitation Act, 1963, which provides the period of three
years from the date when the right to sue first accrues to
obtain declaration is applicable. On this aspect, the learned
senior counsel for the plaintiffs has also relied on Daya Singh
& Anr. vs. Gurdev Singh (dead) by Lrs. & Ors. (2010) 2
SCC 194 and MST Rukhmabai vs. Lala Laxminarayan &
Ors. AIR 1960 SC 335 to fortify his contention that the period
of limitation in the instant case is to be computed from the
date when the cause of action arose. The learned senior
counsel for the defendant contends, even if that be the
position, the letter dated 23.05.1976 was written by Sri. B.
Ramaswamy when he was aware of the claim of the defendant
in respect of the suit schedule property, which therefore ought
to be reckoned as the cause of action. Further, the notification
dated 29.07.1977 was published on 06.08.1977 when again
the cause of action occurred, but the suit was filed only on
22.06.1981 beyond the period of three years and is therefore
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beyond limitation. However, a perusal of the plaint averments
would disclose that the letter and notification referred above is
not the be-all and end-all. There was subsequent
correspondence in 1978 and 1979, more particularly when
notices dated 06.05.1979 and 10.08.1979, were issued. The
plaintiffs thereafter issued the notice dated 30.04.1980 under
Section 80 of the Civil Procedure Code. Since according to the
plaintiff, the defendants continued to obstruct the peaceful
possession of the property, suit was filed on 22.06.1081. The
sequence would show that the cause of action has continued
after it had first arisen and the suit was filed within the period
of limitation provided for in law. We are therefore unable to
accede to the contention of the learned senior counsel for the
defendants.
14 . The learned senior counsel further urged the contention of
the suit being not maintainable for not filing the suit on behalf
of the partnership firm. The contention is not necessary to be
adverted in detail since the same was considered by the Trial
Court while answering Issue No.4 and the said finding has not
been disturbed by the High Court. In the instant case the
question essentially is with regard to the title and identity of the
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property bearing Survey No.129/56. The plaintiff No.2 having
purchased the same had filed the suit. Though certain averments
were made with regard the property being used for the
construction of Studio, being contiguous property, there is no
concrete material on record to indicate the nature and
constitution of the firm and the details of the firm’s property. In
any event, the concurrent conclusion on that issue does not call
for interference.
15. The learned senior counsel representing the defendants
while adverting to the merits sought to refer to the documents
filed along with I.A. No.137529 of 2021 to buttress their case
further, in addition to the documents produced and marked
before the trial court. The learned senior counsel for the plaintiffs
objected to the documents produced for the first time before this
Court along with the said application. It is his contention that
the rigor of the provision contained in Order 41 Rule 27 C.P.C.
would apply though the said provision has not been invoked in
the application.
16. In that light, it would be appropriate for us to take note of
the said application and at the outset consider as to whether the
said documents are to be taken on record. Only in the
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circumstance of the documents being taken on record, the said
documents can be referred to, for further consideration in
accordance with law. In that view, a perusal of the application
would indicate that the only reason assigned by the defendant is
that the documents have been discovered recently from amongst
the heap of records lying with the department . The learned senior
counsel for the defendant relied on the decision in Ramanbhai
Ashabhai Patel vs. Dabhi Ajithkumar Fulsinji AIR 1965 SC
669 and in Jamshed Hormusji Wadia vs. Port of Mumbai 2004
(3) SCC 214 to contend that this court in exercise of its own
jurisdiction could permit to even make good the deficiency by
exercising the power under Article 142 of the Constitution.
Though on the proposition of law there can be no quarrel that in
appropriate cases this court can exercise its power under Article
142 of the Constitution in order to serve the ends of justice, in
our opinion, the circumstance in which the defendants are
seeking to produce the documents in the instant case, in the
manner as has been sought at present, such exercise of
discretion is not justified.
17. On the other hand, as rightly pointed out by the learned
senior counsel appearing for the plaintiffs, the suit was instituted
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as far back in the year 1981 and the suit for the first time was
disposed of on 24.09.1982. The appeal was thereafter pending
before the High Court till 26.06.1995, when the appeal was
allowed and the matter was remanded to the Trial Court for fresh
disposal. Thereafter the suit was disposed of on 10.11.1998. The
matter was once again pending before the High Court upto
01.04.2021 until the appeal was disposed of. Despite such long
pendency of the matter and also there being an opportunity of
filing the documents when the matter had been remanded to the
Trial Court, no diligence was shown. In such circumstance the
attempt made at this belated stage to bring on record additional
documents would not be justified. Hence, it cannot be permitted
by exercising the plenary power of this court in a matter where
the right of the parties relating to immovable property is to be
determined and when there was ample opportunity earlier.
Further, in a proceeding relating to the civil suit, mere
production and the documents being taken on record would not
suffice since the documents are to be proved by exhibiting it in
accordance with law, which exercise cannot be resorted to at this
juncture. In that view, we see no reason to permit the production
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of the documents at this stage. Accordingly, I.A. No.137529 of
2021 is rejected.
18. Having concluded so, the rival contentions of the parties
are necessary to be adverted based on the evidence that was
available before the Trial Court which has been referred to by the
Trial Court and reappreciated by the High Court to arrive at their
respective conclusion. As noted, the prayer made in the plaint is
to the effect that the plaintiffs be declared to be the absolute
owners and possessors of the suit schedule property
admeasuring about 2 acres 10 guntas forming part of the Survey
No.129 as detailed in the schedule and the plan annexed. In the
schedule to the suit, the property is described as the land
admeasuring 2 acres 10 guntas bearing Survey No.129/56
known as Thathi Khana, Shaikpet Village, Road No.14, Banjara
Hills, Hyderabad, A.P. The boundaries shown are the Land and
Bungalow of Begum Mehdi Yar Jung on the North, Road No.14
on the South, part of Survey No.129/56 on the East and part of
Survey No.129/73 on the West. To seek such relief, the case put
forth by the plaintiff is that plaintiff No.2 purchased the property
from Raja Dharam Karan under a sale deed dated 03.09.1964.
The suit schedule property is a portion of the property which had
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been purchased by Raja Dharam Karan from Syed Riaz Ahmed
Sahabpattedar in the year 1946. It is the further case of the
plaintiff that on the western side of the suit schedule property,
the property bearing Survey No.129/73 which was purchased by
Smt. B. Saroja Devi, one of the partners of plaintiff No.1 is
situated. Therefore, the case of the plaintiff, in effect, is that the
suit schedule property No.129/56 purchased by the plaintiff
No.2 is immediately next to the property bearing Survey
No.129/73 on its eastern side and they are contiguous lands.
The need for seeking declaration arose since the defendants had
raised an objection to the plaintiff putting up a compound wall
enclosing the properties bearing Survey No.129/73 and property
bearing Survey No.129/56 which the plaintiff claim to be
contiguous. But according to the defendants there exists the
government land bearing Survey No.403 wedged between Survey
No.129/73 and Survey No.129/56 and such land measured an
extent of over 2 acres. The objection is to enclosing the land
belonging to the government also while constructing the
compound wall.
19. The plaintiff No.2 examined himself as PW-1 and got
marked the document at Exhibit A-2 whereunder Shri Syed Riaz
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Ahmed, who originally owned the property bearing Survey
No.129/56 sold an extent of 8 acres 12 guntas in favour of Shri
Raja Dharam Karan Bahadur. The sale deed dated 03.09.1964
under which the plaintiff purchased the property from the legal
heirs of Raja Dharam Karan is marked as Exhibit A-3. In the said
document the boundary as depicted in the schedule indicates,
on the east, vendors land agreed to be sold to B. Balaiah and the
western boundary indicated is the land of the vendor No.6,
bearing Survey No.129/73 agreed to be sold to B. Saroja Devi.
Therefore, that land is the one sold by Rani Jayanthi Devi to Smt.
B. Saroja Devi. As far as that aspect there is no serious dispute.
However, the boundary shown towards the east as the vendors’
land agreed to be sold to Shri B. Balaiah is in fact, another extent
of land situated in the very same land bearing Survey No.129/56
which is purported to have been sold under Exhibit A-3 to
plaintiff No.2. A sketch attached to the said sale deed is marked
as Exhibit A-4.
20. One Shri Krishnaiah son of Balaiah was examined as PW-
2, to state with regard to the location of the land since it is stated
that the adjoining property was purchased by his father. One
Shri D. Venkat Reddy is examined as PW-3 to state with regard
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to his knowledge about the location of the property as he has
worked as the watchman of the suit property from the year 1950
onwards. Shri M. Krishna Murthy is examined as PW-4 to state
about his knowledge regarding the plaintiff No.2 having
purchased the property bearing Survey No.129/56 under a sale
deed dated 03.09.1964 and to state that the said land is in the
possession of the plaintiff No.2. Shri Tej Karan son of Raja
Dharam Karan, the vendor of plaintiff No.2 is examined as PW-
5. The said witness has stated about his family owning the land
measuring 2 acres 10 guntas in Survey No.129/56 of Shaikpet
and the said land being sold under the document at Exhibit A-3.
21. Having noted the oral evidence tendered by the said
witnesses, it is evident that keeping in view the nature of the
controversy, the oral evidence would not be sufficient to resolve
the controversy relating to the identity of the property. Insofar
as the plaintiff No.2 having entered into a sale transaction and
having purchased an extent of 2 acres 10 guntas in Survey
No.129/56, the same cannot be in dispute since the same is
under a registered document but the issue is; which was the
property that was actually conveyed. Though for convenience a
sketch was attached to the sale deed and it is marked as Exhibit
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A-4, in view of the dispute raised by the defendants that there is
a plot of government land to the east of Survey No.129/73 being
the west of Survey No.129/56, this aspect of the matter requires
consideration since the question essentially is as to whether the
identity of the land is established by the plaintiff with reference
to the land which is purportedly purchased as land located in
Survey No.129/73 under another sale deed at Exhibit A-5. The
sketch along with all the sale deeds are not an authenticated
record but is prepared for the convenience inter se between the
parties to the sale deed and does not bind anyone else.
22. Notwithstanding the fact that we have rejected the
application seeking production of the additional documents
which included certified copies of various sale deeds under which
the family of Raja Dharam Karan had sold different extents of
land to different purchasers, the sale transactions being under
registered documents is in the public domain and the ‘chart of
flow of title’ referred to by learned senior counsel for the plaintiffs
and the consideration by High Court has indicated the different
sale deeds starting from the transaction under which Syed Riaz
Ahmed sold the total extent of 8 acres 12 guntas to Raja Dharam
Karan under the document dated 27.03.1945. Though the extent
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of 2 acres 10 guntas was sold to the plaintiff No.2 from out of the
said extent of 8 acres 12 guntas under document dated
03.09.1964, it is also indicated that from the property bearing
Survey No.129/56 an extent of 2 acres 20 guntas was sold to
Moulvi Syed Taqui Bilgrami. Another extent of 2 acres 16 guntas
was sold to Natwara Nanda. Further, an extent of 2 acres 16
guntas was sold to Merry Nandi. That apart, an extent of 2 acres
20 guntas was sold to B. Balaiah. In addition to the said
transactions, the sale deed in favour of the plaintiff No.2 was to
the extent of 2 acres 10 guntas.
23. Apart from the fact that various extents in Survey
No.129/56 were sold to different persons, the document at
Exhibit A-1 whereunder Syed Riaz Ahmed sold 8 acres 12 guntas
in Survey No.129/56 to Raja Dharam Karan Bahadur indicated
the western boundary as ‘nala’ which is claimed by the
defendants as the government nala. The learned senior counsel
for the plaintiffs no doubt contended that the mere mentioning
of ‘nala’ can only mean that it is a drain and it cannot be a
reference to government property being situated on the western
side. Even if the said contention is taken note of, in the nature
of the evidence presently available on record and in the
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circumstance where the plaintiff had sought for a declaration to
the effect that the property measuring 2 acres 10 guntas forms a
part of Survey No.129, rather than to rely on the weakness of the
evidence tendered by the defendant it was for the plaintiff to
prove their case. From the document at Exhibit A-5, which is the
sale deed dated 03.09.1964 whereunder Smt. Saroja Devi has
purchased 5 acres 38 guntas in Survey No.129/73 from R.
Jayanthi Devi, it is seen that it is also a portion of the total extent
of land in the said Survey No. 129/73, which consisted of 11
acres 10 guntas. The boundary shown to the said document also
does not conclusively prove the case of the plaintiff. On the other
hand, when it is the case of the plaintiffs that Smt. B. Saroja
Devi, a partner in the plaintiff No.1 establishment had purchased
a portion of the property bearing Survey No.129/73 and that the
plaintiff No.2 had purchased a portion of the property in Survey
No.129/56, more particularly in the circumstance when the
property bearing Survey No.129/56 was sold in different bits to
various purchasers, if the plaintiff was to seek the relief as
prayed in the present suit, it was necessary for the plaintiff to
bring on record the various sale deeds for the different extents of
the land in Survey No.129/56 and Survey No.129/73 so as to
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indicate the extent and the boundaries under each of the sale
deeds from the eastern most point of Survey No.129/56 so as to
progress towards the western boundary and establish that the
last extent of property purchased by the plaintiff No.2 was within
the total extent contained in Survey No.129/56 and that the
portion so purchased is not physically located in the land
belonging to the government and no extent of land belonging to
the government has been included in the sale deed by purporting
it to be the sale of private land bearing Survey No.129/56. The
plaintiff having failed to produce the said documents has not
proved their case to enable the trial court to come to a conclusion
that the property which the plaintiffs are claiming is factually a
part of Survey No.129. Instead, when the defendants attempted
to produce the same before the High Court in order to place the
matter in its perspective, the High Court rebuked the defendants
for not producing the same earlier and drew adverse
presumption.
24. Further, though the plaintiff No.2 has got the sale deed in
his favour as far back in the year 1964, the documents to
indicate the mutation proceedings and the revenue documents
being mutated in favour of the plaintiff has not been produced.
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The document at Exhibit A-10 and A-11 with regard to the
notification relating to construction of Bhagyanagar Studios
indicating the schedule and the plan for construction of the
studio cannot advance the case of the plaintiff insofar as
determining the real issue in the suit. The said notification
indicates with regard to the construction in Survey No.129/73 to
the extent of 5 acres and the layout of the construction is shown
only in Survey No.129/73, over which the defendants have no
dispute whatsoever relating to that property, that too, when
construction was well within the extent of 5 acres 38 guntas. The
name of B. Rangaswamy (plaintiff No.2) indicated as neighbour’s
land to the said plan would not mean that the case of the plaintiff
had been accepted by the defendants to be contiguous lands. All
that was necessary at that stage for the relevant competent
authority was to take note of the permission sought for
construction and grant approval to that extent. The dispute arose
only when the compound wall beyond that extent was attempted
to put up.
25. As against the evidence tendered by the plaintiff, the
defendant through DW-1 has stated with regard to the manner
in which the approval for construction was granted and in the
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said process the revenue authorities were not being involved. The
letters dated 15.06.1978 and 23.05.1976 are marked as Exhibits
B-1 and B-3 respectively on behalf of the defendants to contend
that the plaintiffs being aware of the existence of government
land had addressed letters to the Collector, Hyderabad District
referring to the piece of land lying in between Survey No.129/56
and 129/73 of Shaikpet Village. The plaintiffs sought allotment
of the same to the first plaintiff for extension of the studio
activities. In Exhibit B-3, the details are more forthcoming
wherein reference is made to the extent of land wherein
construction is sought to be put up and also indicating that they
have learnt that there is a piece of land in between the land
purchased by them and therefore they were requesting for
allotment of the same. On the said documents at Exhibits B-1
and B-3 the learned senior counsel for the plaintiffs contended
that the plaintiff No.2 who is the owner of the land bearing
Survey No.129/56 has not addressed the said letter.
26. The learned senior counsel appearing for plaintiffs
contended that the said letters do not amount to admission that
there is Government land. He relied on the decisions in Chikkam
Koreswara Rao vs. Chikkam Subba Rao (1970) 1 SCC 558;
Page 25 of 44
Nagubai Ammal vs. B. Shama Rao AIR 1956 SC 593 and Sita
Ram Bhau Patil vs. Ramachandra Nagu Patil (1977) 2 SCC
49 to the effect that admission has to be unequivocal, which is
not so in the instant case. On that aspect, though the letter has
not conceded in unequivocal terms, it has referred to the claim
made by the revenue authorities and the request has been made
instead of asserting their right as has been done later by filing
the suit. In any event, the said letters lend perspective to the
issue when considered along with the other evidence. Even if
contents of the letters are not admission, the letters remain to be
a piece of evidence to indicate that the request made for allotment
of the same land is indisputable. It is also contended by the
learned senior counsel that in the cross-examination of PW-1, he
has indicated that the letter has not been written by him. In that
regard, a perusal of the cross-examination indicates that the
letters dated 15.06.1978 and 23.05.1976 were confronted to PW-
1. Though PW-1 denied that he had given such letter to the
government and claimed that there was no government land
between the two Sy. Nos. and further though he denies the
suggestion that his brother applied to the government, he has
thereafter added, since his brother is not the owner, he cannot
Page 26 of 44
make such request. Though such a statement is made, what
cannot be lost sight of, is that the document is on behalf of the
plaintiffs more particularly the plaintiff No.1 i.e. Bhagyanagar
Studio. The letters are on its letter head and the signatory Sri B.
Ramaswamy was not only the brother of plaintiff No.2 but also a
partner along with plaintiff No.2 and Smt. B. Saroja Devi and the
reference with regard to the construction to be made as a
composite unit is stated with reference to Survey Nos.129/73
and 129/56 for plaintiff No.1 Studio. Further, the said letters are
produced by the defendants from their records and the letter has
been addressed by the plaintiff within a short duration from the
period the sale deed dated 03.09.1964 has come into existence.
The fact that the letter is dated 23.05.1976 and G.O. of Municipal
Administration approving construction is dated 29.03.1976
cannot be a mere coincidence. This would indicate that from the
beginning after approval was given and construction commenced
the plaintiff was aware that there was a claim by the government
to an extent of property which is located between the two extents
in Survey No.129/73 and 129/56 when objection was taken
relating to extended construction. In that circumstance when the
suit is ultimately filed indicating the cause of action as the
Page 27 of 44
obstruction caused by the defendants and the defendants not
heeding to the notice dated 30.04.1980 issued under Section 80
of the Civil Procedure Code, the plaintiff was required to produce
the necessary document as already indicated, to establish that
out of the total extent of land in Survey No.129/56, even after
the sale of the different extents by the family of Raja Dharam
Karan the extent as sold to the plaintiff No.2 was still available
in Survey No.129/56 and therefore they are entitled to a
declaration that the land purchased by them was a part of Survey
No.129. Though the plan at Exhibit A-19 relating to the survey
plot of Survey No.129/73 dated 10.07.1942 is produced, from
the location of the property indicated it does not conclusively
show the eastern boundary as claimed by the plaintiffs. In that
light, a perusal of the judgment passed by the trial court
indicates that the trial court has taken into consideration the
evidence available on record and has analysed the same in its
correct perspective.
27. In that background, a perusal of the judgment passed by
the High Court would indicate that it has proceeded as if the
burden which had been cast on the defendant has not been
discharged though the issues framed had cast the burden on the
Page 28 of 44
plaintiff not only with regard to the title but also identity of the
suit schedule property and also correctness of the plaint
schedule property. It is noted that the High Court in fact has
relied more on the oral evidence of the plaintiff and has
commented that the trial court has wrongly relied on the
document at Exhibit B-1. The nature of the documents indicated
above and the manner in which the plaintiff was required to
establish its case in a circumstance where it was claiming that
the properties are contiguous was in the circumstance that there
was a challenge raised by the defendants to the identity and
description of boundaries rather than title. It is in that context
Exhibit B-3 that was addressed earlier in point of time and B-1
subsequently becomes relevant. As noted, the said documents
were produced from the records of the defendant and mere denial
at this point of time more particularly when the dispute between
the parties has continued ever since the plaintiff purchased the
property and sought to establish their right over the same.
However, the High Court in para 96 to 98 has placed it out of
context as if the Trial Court has proceeded only by treating the
letters as admission. What is necessary to be taken note is that,
excluding the property bearing Survey No.403 with its old No. as
Page 29 of 44
151/1 if the plaintiff has purchased any other extent in Survey
No.129/56 the defendants have no claim over the same. It is in
that light, the High Court was required to examine the matter
since what is to be established by the plaintiff was the
identification and correctness of the exact location of the land.
28. It is no doubt seen that the High Court in para 23 to 29 of
the judgment has adverted to take note of the documents
produced by the plaintiff at Exhibits A-1 to A-11 and A-19, more
particularly Exhibit A-3. Further, the evidence tendered by PW-
1, PW-4 and PW-5 was also taken note of. From the analysis
thereto the emphasis is on document at Exhibit A-3, whereunder
the plaintiff purchased the extent of 2 acres 10 guntas in Survey
No.129/56 from the heirs of Raja Dharam Karan. The evidence
of PW-4 was relied upon to take note that he had attested the
sale deed at Exhibit A-3. The evidence of PW-5 i.e., the vendor
No.5 in the said document was relied upon. Based on the said
evidence, the High Court noted the purchase of the property
made by the plaintiff No.2 and the schedule indicated to the said
document. The title of the plaintiff’s vendor to a larger extent of
the property than what was sold to the plaintiff No.2 was taken
note by referring to Exhibit A-1. On that aspect of the matter,
Page 30 of 44
though such consideration has been made by the High Court,
the fact that the plaintiff No.2 had intended to purchase an
extent of 2 acres 10 guntas in Survey No.129/56, in any event,
was not in dispute and the Trial Court has also accepted the said
position as rightly noted by the High Court. However, the dispute
arose since the question which required consideration was as to
whether the purported sale of Survey no.129/56 to an extent of
2 acres 10 guntas under the said sale deed is in fact a portion of
the property which was really located in Survey No.129/56 or as
to whether the vendors having sold different extent from the
larger extent of property to the various other purchasers, were
left with an extent of land measuring 2 acres 10 guntas to be sold
to the plaintiff No.2. In that light, the issue that would arise is
whether by such purported sale which was intended at selling a
portion of the property in Survey No.129/56, it had resulted in
physically conveying a portion, or an entire extent of the
government land which is claimed by the defendants to have
existed in between the lands bearing Survey No.129/56 and
Survey No.129/73 due to which the sale deed has also indicated
the Survey No.129/73 as the western boundary.
Page 31 of 44
29. That aspect of the matter assumes relevance in the context
of the documents that were sought to be produced by the
defendants who were the respondents before the High Court by
filing I.A. No.2 of 2021 under Order 41 Rule 27 of C.P.C. The
High Court having taken note of the decision in the case of Adil
Jamshed Frenchman (Dead) by Lrs Vs. Sardar Dastur
Schools Trust & Others (2005) 2 SCC 476, in Wadi Vs. Amilal
& Others (2015) 1 SCC 677, MIS. NETWORX INC. Vs. K.R.
MOHAN REDDY (2006) SCC Online AP 812, Shivajirao
Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 221
and in H.S. Goutham. Vs. Rama Murthy Anr. Etc. 2021 SCC
Online SC 87 and keeping in view the parameters laid down in
considering an application under Order 41 Rule 27 of C.P.C has
found it appropriate to reject the application.
30. Having rejected the said application, the High Court has
thereafter proceeded to take note of the documents to draw an
adverse inference against the defendants. While doing so the
High Court in para 38 has extracted a portion of the averments
in the written statement to note that the defendants did not
dispute regarding the registered sale in favour of plaintiff No.2
nor contended that the sale deed was fraudulent. The stand of
Page 32 of 44
the defendants in the written statement in its entirety would
indicate the case as put forth was with regard to the identity of
the property which really was the issue. The question was, as to
whether a mere indication of the schedule to the sale deed would
entitle the plaintiff for a declaration relating to the property even
if it was not actually lying within such schedule shown in the
document. In fact, the further consideration made by the High
Court from para 41 onwards while referring to the additional
documents would indicate that it is made in the nature as if the
defendants were before the court seeking for a declaration and in
support of which the documents were sought to be produced.
The certified copies of the registered sale deeds were filed to
indicate the total extent of the land in Survey No.129/56 which
was available with the vendor of the plaintiff and the portions
that had been sold. In fact, during the course of the judgment at
an earlier point, we have referred to this aspect of the matter to
indicate that in the context of the challenge being raised to there
being government land next to Survey no.129/56 and in that
circumstance when the plaintiff claimed that the purchase of the
land was actually in Survey No.129/56 and was contiguous with
Survey No.129/73 on its western side, the plaintiff was required
Page 33 of 44
to show that from the easternmost point of Survey No.129/56
which was available with the vendor of the plaintiff, the
sequential sale made to the other purchasers and despite such
sale he would have been left with the extent of the property which
was sold to the plaintiff No.2 in Survey No.129/56 itself.
Therefore, in fact, the said sale deeds not being produced by the
plaintiffs would run adverse to their case rather than holding it
against the defendants in not producing the same despite the
defendants being the State Government under whose custody the
registered documents remain as observed by the High Court. In
fact, it was an attempt by the defendants to disapprove an aspect
which in fact had not been proved by the plaintiffs by producing
such documents.
31. Further the regularisation applications dated 29.08.2008
which were sought to be produced were filed by the legal heirs of
the original plaintiff No.2, which was much after the suit had
been disposed of by the Trial Court on 10.11.1988 and was filed
during the pendency of the appeal before the High Court. The
High Court in any event has taken note of the said application in
the context as to whether the said application should be
considered as an admission by the plaintiffs to the title of the
Page 34 of 44
government and in that regard had disagreed with the learned
Advocate General who had put forth such contention. Insofar as
the existence of such applications, it is not seriously in dispute
in as much as the same had also resulted in proceedings before
the High Court in W.P.No.18460 of 2010 which was disposed by
a detailed order dated 15.04.2011. The learned senior counsel
for the plaintiffs while referring to the said applications brought
to our notice column No.4(d) to indicate that the nature of
occupation stated therein is “in pursuance of registered sale deed
1640/1964 dt. 03.09.1964, in favour of my father B.
Rangaswamy” and column 5(a) has also referred to the sale deed
and memorandum of family settlement. The learned senior
counsel has also cited a decision of the Division Bench of the
High Court for the State of Telangana at Hyderabad in
W.P.No.46114 of 2018 dated 23.04.2019 wherein a similar
situation was in issue and it is held as hereunder:-
“44. Therefore, it is clear that the applications for
regularization filed by the petitioner, were not dealt
with properly. Though, the petitioner has claimed
title to the property on the basis of the registered
sale deeds, the petitioner had, in all fairness, also
applied for regularization. This does not tantamount
to approbating and reprobating. If, with a view to
purchase peace, a person, who claims title to a
property, chooses to apply for regularization and
conveyance, the same can, at the most, tantamount
to giving up their title, subject however to the grant
of regularisation. If regularisation is rejected, it may
Page 35 of 44
be open to such persons to pursue their remedies
before the normal civil court to establish title. In
fact, the Government Orders stipulate the payment
of market value of the land as per the Basic Value
Register maintained in the Office of the Sub-
Registrar.”
32. It is no doubt true that the said applications in the year
2008 were made without prejudice to their right, since their
appeal was still pending. Further even though as held by the
High Court it cannot be construed as an admission, one cannot
lose sight of the fact that in the nature of the entire controversy
the said applications become relevant. Firstly, what is to be kept
in perspective is also the fact that even before the suit was filed,
the documents at Exhibits B-1 and B-3 had come into existence
whereunder a request was made to allot the said lands. As
already noted though an attempt was made to contend that the
plaintiff No.2 who was examined as PW-1, in his cross-
examination stated that the said letter was not submitted by him
and his brother was not authorised, what cannot be lost sight of
is that the plaintiff No.1 is the Bhagyanagar Studio and the
plaintiff in their averments to the plaint have indicated that the
property purchased in Survey No.129/73 and 129/56 were
pooled into the activities of the studios. As noted earlier, the
communication is addressed on behalf of the Studio by the
Page 36 of 44
brother of plaintiff No.2 who was also a partner and the letter
dated 23.05.1976 refers to the fact of the property having been
purchased by the partners of the Studio. In the said letter even
though there is no categorical admission, the fact remains that
at that stage itself they have taken note of the fact that a claim
was made by the Patwari of Shaikpet Village and by the Revenue
Inspector that there is a piece of land of 2 acres in between their
lands and had mooted the proposal for allotment. It is in that
background we have observed hereinabove that the defendants
had raised the challenge to the claim of the plaintiff to the land
which is immediately adjacent to Survey No.129/73 and in that
circumstance instead of asserting their title at that stage they
had resorted to seek allotment. It is in that circumstance the
burden was heavier on the plaintiff when the suit was instituted
subsequently and in that context, we had indicated that the proof
of the entire extent was necessary to be shown to prove the
identity of the property which was purchased by the plaintiff No.2
and thus to establish the same not to be the property belonging
to the government.
33. The High Court thereafter in paragraphs 47 to 55 has
proceeded to observe with regard to the pleading in the written
Page 37 of 44
statement and in that regard, has commented that the evidence
sought to be produced by the defendants is not supported by the
pleadings. In that regard, certain decisions of this court have
been extracted and noted with emphasis and a conclusion has
been reached in para 56 to indicate that the said documents
sought to be relied on by the defendants have no relevance to
support the case set up by the defendants. As repeatedly
indicated by us, the plaintiffs having sought for declaration were
to prove the case. To the extent, the defendant had contended
with regard to the government property, in support of the
pleading in the written statement the defendant had relied on the
documents at Exhibits B-2, B-4 and B-5 to indicate that there
was an extent of property other than the property bearing Survey
No.129/56 which was wedged between Survey No.129/56 and
Survey No.129/73. Though much was made about the resurvey
not being notified, that would become relevant insofar as the
indication of the property as Survey No.403 but that cannot
negate the fact that the property existed there and the number
assigned was a different one. To that extent the Trial Court had
in fact taken note of the Survey No.151/1. In fact, the High Court
having extracted the deposition of the PW-1 has sought to give
Page 38 of 44
much credence to the same with regard to the Town Survey
records being wrongly prepared behind the back of PW-1 and the
Survey No.403 being carved out. Such challenge had not been
laid by the plaintiff in the forum provided, but merely have stated
so in the evidence which could not have weighed with the High
Court, when the larger issue based on substantive evidence
relating to the identity of the property was to be taken note. The
High Court though has taken note of the evidence of DW-1 and
DW-2 to find fault with the documents at Exhibits B-2, B-4 and
B-5 relied on by the defendants, what cannot be lost sight of is
that from the evidence of the said witnesses what flows is that
the initial survey was conducted in the year 1916 and the
revision survey was conducted in the year 1942. The town survey
was conducted and completed between 1965-1970. The survey
and the resurvey were much prior to the purchase of the property
by plaintiff No.2 in the year 1964. The survey No. which is shown
as 403 in the revision even if it is taken note that as put in the
comparative statement by the High Court it is 151/1 in Exhibit
B-2 and 151/1, 129/108 in Exhibit B-4 and B-5 and is alleged
that it is tampered as 403/108 in Exhibit B-4, as already
indicated above, the fact remains that there was an extent of the
Page 39 of 44
property situate between Survey No.129/73 and 129/56. The
order dated 04.08.1998 in CRP No.2781/1998 relied upon
though allowed the application seeking for original of initial
survey map has declined prayer for production of initial survey
map and revised survey records. The evaluation of the said
evidence is essentially in the context of the plaintiffs seeking a
declaration that the property purchased by them under the sale
deed dated 03.09.1964 is a part of Survey No.129 which aspect
can only be considered in the context of the vendor having
purchased the property which is possessed and owned by the
vendor and is conveyed without including any other property. To
that extent, from the evidence produced by the plaintiff, the proof
was insufficient and therefore in that context, the Trial Court had
dismissed the suit. The High Court in fact though has rendered
an elaborate judgment has proceeded at a tangent.
34. Insofar as the aspect relating to possession, the High
Court has adverted to this aspect of the matter in para 106
onwards and has found fault with the Trial Court that despite
there being abundant documentary evidence the Trial Court has
wrongly dealt with the issue of adverse possession. In fact, the
high court has failed to understand the context in which the
Page 40 of 44
consideration with regard to possession had arisen. As noted, if
the title to the property along with its identity had been
established, the possession would automatically follow from the
date of purchase on 03.09.1964. However, in the instant case
though the execution of a sale deed purportedly conveying an
extent in Survey No.129/56 was proved, the fact as to whether
the extent as indicated in the sale deed was actually located in
the Survey No.129/56 was not established by the plaintiffs from
the discussion made by the Trial Court as well as indicated by
us above. If that be the position, even if, the plaintiffs had
actually come in physical possession of the extent of property
which is not actually situate in Survey No.129/56 and is the
property which is claimed as the government property, the
possession to be declared to have been perfected by adverse
possession will have to pass the test to claim such right. It is in
that context it was alternatively contended that the plaintiffs had
also stated that they have perfected their title by adverse
possession. It is in that context that the Trial Court firstly having
noted that there are no documents to indicate possession has
also taken note that the purchase being in the year 1964 and the
suit being filed in the year 1981 the statutory period of 30 years
Page 41 of 44
to acquire right by way of adverse possession also does not arise.
The High Court no doubt has taken into account the evidence of
PW-1 who has stated that he has been in possession from the
date of purchase. The fact also remains that subsequently when
the compound wall was constructed it was demolished and it is
the very case of the plaintiffs that since there was interference
the suit was filed. Therefore, even if possession was taken by the
plaintiff, in the context of claiming title, there is no other
material. As already taken note by us, pursuant to the purchase,
the mutation proceedings and the assessment for tax if any made
has also not been brought on record by way of evidence.
Therefore, in the context of the possession sought to be protected
based on title, when the identity of the property is not established
despite purchase claimed under the registered sale deed the
relief as prayed for would not be available and therefore the Trial
Court was justified in that regard.
35. On the issue relating to an extent of 298 Sq. yards forming
part of the disputed property which is allotted in favour of the
appellant in Appeal bearing No.4670/2022 (arising out of SLP
No.7610/2021), in view of our conclusion that the judgment of
the High Court on the main aspect cannot be sustained and the
Page 42 of 44
judgment of the Trial Court is to be restored, the observations
relating to the allottee having no right and the mesne profits
being payable is not sustainable and is set aside accordingly.
However, we make it clear that we have not expressed any
opinion with regard to the correctness of the allotment to the
extent of 298 sq. yards or with regard to the manner in which the
application for regularisation made by the legal heirs of the
original plaintiff No.2 is to be considered. Those aspects of the
matter are left open to be considered in accordance with law by
the competent authorities/courts relating to the same and all
contentions in that regard are left open. The consideration herein
is limited to the nature of the relief sought in the suit and the
right as claimed by the plaintiffs not being established in
accordance with the law.
36. For all the aforestated reasons, the judgment dated
01.04.2021 passed by the High Court for Telangana at
Hyderabad in CCCA No.22 of 1999 is set aside. The judgment
dated 10.11.1998 passed by the V Senior Civil Judge, City Civil
Court, Hyderabad in O.S. No.609 of 1981 is restored.
37. The appeals are allowed. The parties shall bear their own
costs.
Page 43 of 44
38. Pending application, if any, shall stand disposed of.
……………………….J.
(INDIRA BANERJEE)
……………………….J.
(A.S. BOPANNA)
New Delhi,
July 11, 2022
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