Full Judgment Text
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CASE NO.:
Appeal (civil) 2630 of 1989
PETITIONER:
M/S. PRAGA TOOLS CORPORATION LTD.
Vs.
RESPONDENT:
SMT. MAHBOOBUNNISSA BEGUM & ORS.
DATE OF JUDGMENT: 04/05/2001
BENCH:
V.N. Khare & S.N. Variava
JUDGMENT:
(With C.A. Nos. 2763-64/1989, C.A. No. 2762 of 1989 and C.A.Nos. 4874-75 of 1989)
J U D G M E N T
S.N. VARIAVA, J.
L...I...T.......T.......T.......T.......T.......T.......T..J
All these Appeals can be disposed of by this common
Order. Parties are being referred to in their capacity in
Civil Appeal 2630 of 1989.
Briefly stated the facts are as follows. In the State
of Andhra Pradesh there are two adjoining villages viz.
Moosapet and Kukatpalli. Kukatpalli was a khalsa (dewani)
village where the lands were held by patedars. Moosapet was
sarfe-khas village. Sometime in 1963 the Government of
Andhra Pradesh (Respondent 10) allotted lands in Moosapet
village in favour of various parties. Whilst so doing the
Respondent 10 allotted to Appellants (M/s. Praga Tools
Corporation Ltd.) an area of 195 acres 33 guntas in Survey
No. 210/1 in Moosapet village. Possession was then given
to Appellants.
Immediately on the transfer of land Smt. Mahboobunnissa
Begum and ors. (Respondents 1 to 9) filed a Writ Petition
before the High Court of Andhra Pradesh claiming that the
Government had purported to allot to Appellants lands
belonging to them without having acquired the said land. It
was claimed that the lands, which were allotted and of which
possession was given, bore Survey Nos. 362 to 373 and part
of survey No. 374 of Kukatpally village. In this Writ
Petition the Government filed a counter affidavit stating
that there was a dispute as to the question of title. On
the basis of this counter affidavit the Writ Petition was
dismissed with directions to approach the Civil Court.
In December 1974 Respondents 1 to 9 filed Suit No. 102
of 1975 seeking possession over the land in dispute or in
the alternative compensation for illegal dispossession. One
Amina Begum (Respondent 11) had also filed Suit No. 12 of
1974 claiming to be the owner of the same land. It must be
mentioned that Respondents 1 to 9 claimed as heirs of
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previous owner Ghulam Khader. Respondent 11 made a claim to
these lands on basis of an alleged Sale Deed in her favour
from the said Ghulam Khader.
On 20th April, 1982 the trial Court decreed Suit No.
102 of 1975 and dismissed Suit No. 12 of 1974. Appellants
and the Respondent 10 (Government) were held to be jointly
and severally liable to pay compensation for the lands
wrongly taken over. Against the decree dated 20th April,
1982, Appeals were filed both by the Government as well as
Appellants. An Appeal was also filed by Respondent 11
against the dismissal of her suit. All these Appeals were
decided by the High Court by a common Judgment dated 9th of
September, 1988. By this Judgment the Appeal filed by
Respondent 11 (Amina Begum) was dismissed. The Appeal filed
by Appellants (Praga Tools Corporation Ltd.) was also
dismissed. However, the Appeal filed by the Government was
allowed in part to the extent that it was held that as the
Government had handed over to Appellants only an area of 195
acres and 33 guntas, the compensation which was to be paid
was only in respect of 195 acres and 33 guntas. It was held
that if there was any excess land, over and above 195 acres
and 33 guntas, that was certainly the property of
Respondents 1 to 9.
As against this Judgment Appellants has filed Civil
Appeal No. 2630 of 1989. The State of Andhra Pradesh has
filed Civil Appeals bearing Nos. 2763-64 of 1989. Smt.
Mahboobunnissa Begum & Ors have filed Civil Appeal No. 2762
of 1989 and Amina Begum has filed Civil Appeal Nos. 4874-75
of 1989. Between Respondents 1 to 9 and Respondent 11 there
were conflicting claims in respect of the suit property. As
stated above Respondents 1 to 9 claimed the lands as heirs
of Ghulam Khader. Respondent 11 claimed the lands on the
basis of an alleged Sale Deed. Both the trial Court as well
as the Appellate Court have recorded findings of fact that
Amina Begum has not been able to prove the Sale Deed. These
findings of fact are based on evidence and we find no
infirmity in the Judgments of the Trial Court as well as the
Appellate Court in this behalf. Therefore the claim of
Respondent 11 (Amina Begum) cannot be upheld and Appeal Nos.
4874-75 of 1989 stand dismissed. We have heard the parties.
In spite of voluminous record the dispute is capable of
resolution quite easily. Respondents 1 to 9 claim ownership
of Survey Nos. 362 to 373 in Kukatpalli village.
Government of Andhra Pradesh claims no right in Survey Nos.
362 to 373 of Kukatpalli village. The Government claims
ownership of and has allotted to Appellants lands on footing
that they are part of Survey No. 210/1 of Moosapet village.
The main question is whether these lands are in Survey Nos.
362 to 373 of Kukatpalli village or they are in Survey No.
210/1 of Moosapet village. If the lands are in Survey Nos.
362 to 373 of Kukatpally village then the Government has
wrongly allotted. In that case appellants and the
Government are to pay compensation as directed by the trial
Court. On the other hand if the lands are in Survey Nos
210/1 of Moosapet village Respondents 1 to 10 can have no
claim.
These Appeals reached hearing on 18th November, 1993.
After briefly noting facts this Court observed as follows:
"All the appeals were decided by the High Court by a
common order. However, it may be stated that the claim by
the Government was that it owned extensive area in village
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Moosapet: one of such Survey Nos. was 210/1 which had an
area of nearly 400 acres, and that it was out of this that
195 acres were settled in favour of Praga Tools. Ghulam
Khader on the other hand appears to have had extensive area
in adjacent village Kukatpalli. The High Court observed
that initial survey in Kukatpalli village was done in 1299
Fasli and revision survey took place in 1347 Fasli, whereas
initial survey in Moosapet Village took place in 1328 Fasli
and the revision survey was an error in preparing the survey
maps for these two villages, and if the survey maps of these
two villages were placed side by side there was overlapping
of each other to a substantial extent. It, however, did not
decide the extent of over lapping. Further, the High Court
found that factually it appeared to be correct that Ghulam
Khader who was the owner of Survey Nos.747/8, 10, 11 and 12
and Survey No. 378 area 90 acres whereas the corresponding
two Survey Nos. 362- 373 comprised an area of 210 acres.
But it again did not decide whether this increase in area
from 90/95 acres to 212 acres was due to erroneous inclusion
of Government land or Ghulam Khader in the intervening
period became owner of more land. The High Court assumed
that Survey Nos. 362-373 comprising 210 acres did in fact
belong to Ghulam Khader and that the difference in the area
between old survey numbers and new corresponding numbers was
of little consequence."
This Court then remitted the matter back to the Trial
Court for determination of the following points with the
following observations :
(1) Whether the land given to Praga Tools Corporation
ltd. is out of Survey No. 210/1 in Moosapet village? Is
there any overlapping in Survey No. 210/1? If so, to what
extent? Is there overlapping in any portion of Survey Nos.
362-373 and 374?
(2) (a) What was the total holding of late Shri Ghulam
Khader in village Moosapet and Kukatpalli villages prior to
the revision survey?
(b) Whether the lands in Survey Nos. 362 to 373
correspond to the area of land in old survey numbers?
(c) How 90/95 acres of land in Kukatpalli village in
name of Ghulam khader became 212 acres in new survey
numbers? Was the increase as a result of inclusion of
Ghulam Khader’s own land from other survey numbers or from
adjacent villages or it was due to erroneous inclusion of
Government land?
Before recording findings on these issues the trial
court shall got the land surveyed and determine if the land
alienated to Praga Tools is in fact situated in Kukatpalli
village or Moosapet village. It shall be open to the court
to get it surveyed either by appointing a lawyer who is well
versed with survey work or by appointing higher officer of
the survey department, preferably the Director of Settlement
and Survey, or any independent agency having expertise of
survey. The survey shall be done after giving notice to all
the parties concerned, preferably in their presence. No
objection to survey report shall be entertained by the trial
court.
The court shall permit the parties to adduce such
evidence as they consider necessary subject to relevancy.
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The findings shall be remitted to this Court after
affording opportunity of hearing to the parties concerned on
or before expiry of six months from today."
Pursuant to the above directions the trial Court
appointed the Director of Survey, Settlements and Land
Records and Collector, Hyderabad District as a Commissioner.
The Commissioner conducted the survey and gave a Report
wherein he purported to answer the questions posed by this
Court. The Commissioner also gave an additional report.
The trial Court thereafter, by its Order dated 16th
October, 1998, held that this Court has remitted the matter
back to it for recording findings. The trial Court held
and, in our view, correctly that it was the trial Court
which had to give the findings and that the Commissioner’s
Report was merely an aid to it. The trial Court permitted
the parties to adduce evidence and lead documentary
evidence. After considering all material and evidence the
trial Court answered the queries posed by this Court.
Briefly stated the findings of the trial Court are :
(a) that the boundary dispute between village Moosapet
and village Kukatpalli had been resolved long back and that
there was no subsisting boundary dispute at present
(b) that Survey No. 210/1 was deleted from Moosapet
village and Survey Nos. 362 to 373 were included as land in
Kukatpalli village in the name of Ghulam Khader,
(c) that the Suit lands were in Kukatpalli village and
they did not form part of the Survey No. 210/1 in Moosapet
village,
(d) that the land given to M/s. Praga Tools Corporation
is not out of Survey No. 210/1 of Moosapet village but that
they are part of Survey No. 362 to 373 in Kukatpalli
village,
(e) that the increase in land holding of Ghulam Khader
was because certain Pot Karab (waste land) were earlier not
included in the revenue records and by counting them the
acreage came to 218 acres. The Trial Court also found that
Ghulam khader had inherited lands of his sister Khader
Unnissa Begum and the addition of those lands further
increased his holdings.
These findings of the trial Court are now assailed
before us. It has been submitted that the Plaintiff’s claim
must be restricted to what had been claimed by them in the
plaint. In the plaint the Plaintiffs claim is to lands in
Survey Nos. 362 to 373 in village Kukatpalli. As has been
found by the trial Court even presuming that this area is
restricted to what is claimed in the Plaint, it comes to 218
acres. What has been given to Appellants is 195 acres 33
guntas. This has been given on the basis that this was
Government land in Survey No. 210/1 in Village Moosapet.
Once it is found that this is not a part of Survey No.
210/1 of Moosapet village, it automatically follows that the
decree of the trial Court, as affirmed by the High Court, is
correct and cannot be interfered with.
The State of Andhra Pradesh has filed objections to the
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findings of the trial Court. On behalf of Appellants and
the State of Andhra Pradesh it was submitted that the trial
Court could not have discarded the findings of the Court
Commissioner. It was submitted that as per the Orders of
this Court, it was only this Court which could hear
objections on the report of the Commissioner. We see no
substance in this submission. This Court had directed the
trial Court to record findings. The trial Court may have
appointed a Commissioner to carry out survey but ultimately
the findings had to be recorded by the trial Court. The
report of the Commissioner could only be an aid to the trial
Court in arriving at its findings. The Trial Court has
allowed parties to lead oral as well as documentary
evidence. The trial Court has complied with the directions
of this Court.
It was next submitted that there was a boundary dispute
between Kukatpalli and Moosapet villages. It was submitted
that the dispute has not yet been settled. It is submitted
that till this dispute is settled the claim of the
Respondents 1 to 9 cannot be upheld at all. In this behalf
it is necessary to set out the relevant portion of the
averments in the objections raised by the State before this
Court. They read as follows:
"(f) Issue No:1 raised by the Hon’ble Supreme
Court is "whether the land given to Praga Tools
Corporation Limited is out of Survey No.210/1 in
Moosapet Village? Is there any overlapping in Sy.
No.210/1? If so to what extent ? Is there over
lapping in any portion of Sy. Nos.:362-373 and 374".
The answer given by the trial court is that the land
given to M/s. Praga Tools Corporation Limited is not out of
Sy.No.210/1 of Moosapet village and they are in the
Kukatpalli village in Sy Nos.362 to 373 and that Sy.No.210/1
of Moosapet is not in existence as it was deleted and there
is no overlapping in Sy.No.210/1 or any portion of
Sy.Nos.362 to 373 and 374.
The answer given by the trial court to the 1st issue is
not correct and satisfactory one, because there is
overlapping in the above village and the matter not yet
finalised by the Competent authorities and at no point of
time Sy.No.210/1 Moosapet village was deleted as per Revenue
records.
It is pertinent to mention that while deciding boundary
dispute between Kukatpalli and Moosapet villages, the
Commissioner, Survey Settlements & Land Records, Hyderabad
in his order dated 28.10.1978 held that the Supplementary
sethwar of 1964 showing Sy.No.210/1 shall continue to remain
in Moosapet village and Col. Safdar Ali Mirza is entitled
to patta rights over Sy.No.210/1 in Moosapet village.
Aggrieved by the order of Commissioner, Survey,
Settlement & Land Records dated 28.10.1978, the Collector
filed a revision petition under section 166-B of the Andhra
Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli in the
court of Hon’ble Revenue Minister. The Government in its
order dated 10.4.1992 stayed the order of Commissioner to
the extent treating the Government land in Sy.No.210/1
admeasuring Ac.500-00 as patta land of Col. Safdar Ali
Mirza. The Revision Petition is not finally disposed off
due to pendency of (4) civil appeals in the Hon’ble Supreme
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Court.
In a civil suit filed by Smt. Mahboobunnissa Begum the
Addl. Chief Judge, Hyderabad in O.S. No.102/75 dt.
24.4.1982 decreed that the land handed over to Praga Tools
in Sy.No.210/1 of Moosapet village is part of Sy.No.362 to
373 of Kukatpalli village which is a patta land of Smt.
Mahboobunnissa Begum and awarded compensation of Rs.40
lakhs. Aggrieved by the said order, Government filed CCCA
9/83 which was partly allowed by High Court. The State of
Andha Pradesh filed C.A.No.2763-64 of 1989 which is pending
before the Supreme Court.
Due to different stand taken by different authorities,
the Supplementary Sethwar of 1964 has not yet been
implemented in Revenue records and boundary dispute and
overlapping of Sy.No.210/1 of Moosapet village with
S.Nos.362 to 373 of Kukatpalli village remains unsettled."
As is being pointed out hereafter, the above averments
that the boundary dispute between Moosapet and Kukatpally
village is still pending is contrary to Government records
and to averments in Suit No 102 of 1975. It is a pity that
a Senior Officer of the rank of Secretary to the Government
makes false averments before a Court of law. More than
anybody else Government and its officers are expected to be
honest with Courts of law and not take up a patently false
stand. If an officer of this rank cannot be honest with the
Court then one wonders how he can be trusted to hold such a
high position. This Order is to be brought to the notice of
the Chief Secretary who should warn the concerned officer
not to repeat such behavior and to keep the warning in the
file of the officer.
That this is a false case is clear from the following:
(a) In the written statements filed in this Suit it has
been averred as follows :
"1. In respect of the allegations in paragraph No. (1)
of the plaint, it is submitted that the suit lands were
involved in a overlapping case with certain lands of
Moosapet village. In this connection, the Land Record
Assistant, Hyderabad District, in file No.G1/914/63, made
certain proposals regarding the overlapping of lands of
Moosapet and Kukatpalli village and set the same to the
Director of Survey & Settlements, through letter
No.G1/914/63 dated 25.10.1963. The Director of Survey &
Settlement while forwarding a copy of the decision taken in
the year 1299 fasli, instructed the Land Record Assistant to
implement the orders passed in the year 1299 fasli. The
land Records Assistant was also directed to refix the
boundaries of the Kukatpalli Village as per the Revision
plan. Thereupon, Kharij Jama Patrak was prepared by the
Land Record Assistant and sent to the Director of Settlement
for approval and after his approval Zamima Sethwar was
issued in the year 1964. Under that Sethwar certain survey
numbers were deleted from Moosapet village while retaining
in Kukatpalli village. But until the Zamima Sethwar of 1964
was issued the Revenue Record showed that the lands in
question i.e., the suit lands were Government lands in
survey No.210/1, Moosapet village. Consequent to the issue
of the Zamima Sethwar of 1964, the lands in question being
retained in Kukatpalli village bear the survey numbers 362
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to 373 and part of Government land in S.No.374. From the
Revenue Records of Kukatpalli village it is obvious that one
Smt. Mahaboobunnissa Begum was owner of the said lands
which were shown as Kancha lands admeasuring 212 acres 16
guntas."
Thus in this suit it is admitted position that the
boundary dispute had been settled; that certain Survey Nos.
were deleted from Moosapet village and retained in
Kukatpalli village; that Survey Nos. 362 to 372 were
allotted to Kukatpalli village and stood in the name of
Mahboobunnissa Begum.
(b) the same averments had also been made in the written
statement of the Government in an earlier Suit bearing No.
332 of 1987 wherein it is averred as follows :
"15. It is submitted that there is no boundary dispute
between Mossapet and Kukatpalli villages. This dispute is
already settled in the year 1858 Fasli by the then
Commissioner, Survey and Settlements. The said decision is
final. At present there is no boundary dispute at all."
Thus at all stages Government has itself been stating
that the boundary dispute is no longer pending. All that
the Government was claiming was that the concerned lands
were in survey No. 210/1 of Moosapet village. Now that it
has been found that the lands are in Survey Nos 362 to 373
of Kukatpalli village a patently false case and the bogey of
pending boundary dispute is being raised. It is indeed a
pity that a high official of the Government now chooses to
take an contrary and false stand. Such practice has to be
deprecated in no uncertain terms.
The fact that there is no longer any boundary dispute is
clear from numerous other records and documents, all of
which are of the Government. All these documents are also
marked as exhibits in Suit No. 102 of 1975.
On 16th of January, 1968, the Collector has written to
the Secretary to the Government Revenue Department wherein,
in the context of the claim made by Respondents 1 to 19, it
is pointed out that a revised settlement of the Kukatpalli
village was in force and that the claim of the owner to the
land would have to be accepted. In this letter it was,
inter alia recorded as follows :
"The Director, unearthed the old records and found that
a decision regarding this boundary dispute was already taken
in 1299 Fasli. While sending a copy of this decision he
gave detailed instructions to the Collector LR quoting this
decision with a direction to implement the same. The Land
Record Assistant sought clarification about its
implementation. The Director in reply stated that the
decision of 1299 Fasli should be implemented by refixing the
boundary of Kukatpalli village as per the revision map.
Thereupon the Joint Collector and Collector ordered
preparation of Kami and Jasti Patrak. The Director of
Settlement approved the Kami Jasti sent by the Land Record
Assistant and a Zamine Sethwar has been issued in pursuance
of the same.
Xxx xxx
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It is seen from the said files that the boundary dispute
between Kukatpalli and Moosapet was existing when the
official language was persian and even before 1299 Fasli.
Kukatpalli was a (Khalsa) Devani village and Moosapet was a
Sarfekhas village. This boundary dispute in those days was
decided by two agencies, one by a panch Shaikpet Ailiah by
name, who was the Malipatel of Shaik village and the other
Sri Masheeduddin, Assistant Director, Settlement (Khalsa) in
1299 Fasli. The Panch gave a decision which was not
acceptable to the Diwani authorities. Sri Masheduddin, gave
a decision which also was not acceptable to the Sarfekhas
authorities. The then Superintendent, Settlement (Khalsa)
Shri Vasudev Rao by name approved the decision in 1300 Fasli
and get the same implemented through Shri Venkateshswami Rao
on 13.2.1301 Fasli. This decision of Superintendent
Settlement was communicated to the Govt. in the Revenue
Department. The Revenue Secretary, Shri Bharoucha ordered
that the decision should be taken at a joint meeting of
Khalse and Sarekhas survey and settlement officers.
Pursuant to the above orders joint survey and inspection
by Khalsa Officers and Sarfekhas officers were done and
decision was arrived at accepting the decision given by Sri
Masheeduddin, Assistant Director, Settlement in 1299 Fasli.
The Government (Revenue Department), files bearing No.
130/86 (Misc. Revenue) of 1345 Fasli, 1/22 of 1324 Fasli,
and 62/86 (Settlement) of 1349 deal with the instant case as
there are references available in the files of Director of
Settlement quoted already. The Director of Settlement
(Khalsa) issued order No. 628 dated 11.3.1350, to correct
papers as per traverse boundary of Kukatpalli and closed the
file."
Also on record is another letter dated 28th May, 1970
from the Collector to the Joint Secretary to the Government
Revenue Department. Here again it is emphasised that there
is no boundary dispute between Kukatpalli and Moosapet
village. It has been recorded that certain numbers have
been deleted from Moosapet village and have been retained in
Kukatpalli village.
By another letter dated 31st of July, 1973, the
Collector again points out that Survey No.210/1 of Moosapet
village has been deleted and that the land allotted to M/s.
Praga Tools Corporation Ltd. falls within Survey No. 362
to 373 of Kukatpalli village, which is a patta land. It is
suggested that proceedings for acquisition of this land be
taken up as land had already been given to Praga Tools
Corporation Ltd. In October 1979, the Government issued a
Notification which is Gazetted on 30th October, 1979.
According to this Notification certain lands which are in
Kukatpalli village are now transferred to Qutubullahpur
village. Among the lands which were in Kukatpally village
and which are now transferred to Qutubullahpur villare are
Survey Nos. 362 to 373. Thus the Government recognized the
fact that Survey Nos. 362 to 373 in Kukatpalli village
existed. The Hyderabad Urban Development authority has
issued a letter dated 24th September, 1976 pointing out that
Survey No.210/1 of Moosapet village stands deleted from
their records.
There are number of other documents also on record of
Suit No 102 of 1975. The trial court has noted them. For
purposes of this Order the above are sufficient to conclude
that the findings of the trial Court on the question raised
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by this Court are absolutely correct and unassailable. One
further fact must be mentioned. If, as now falsely claimed,
there was a pending boundary dispute and it had not been
resolved whether these lands were to be in Moosapet or
Kukatpalli the Government could not have allotted to the
Appellants. An allotment could only take place after such a
dispute was resolved. It is thus clear that the State of
Andhra Pradesh has purported to allot Appellants (M/s.
Praga Tools Corporation Ltd.) lands belonging to the
Respondents 1 to 9 without acquiring the same and without
paying any compensation for the same. The trial Court, was,
therefore, right in decreeing the Suit and directing the
State as well as M/s. Praga Tools Corporation Ltd. to
jointly and severally pay compensation. The High Court was
right in confirming this Decree. The High Court was also
right in holding that what the State had taken over and
handed to Praga Tools Corporation Ltd. was only 195 acres
and 33 quntas. Compensation could thus be paid only in
respect of this area. The High Court has amply protected
Respondents 1 to 9 by observing that they remain the owners
of the remaining land. As stated above Respondents 1 to 9
have also filed Appeal No. 2762 of 1989. It is against
that portion of the Judgment restricting the compensation to
195 acres and 33 qunthas and reducing the rate of interest
to 6 % p.a. We see no infirmity in the Order of the High
Court. Appellants and Government are only liable to pay for
the land wrongly taken over. As only 195 acres and 33
gunthas were taken over they only have to pay for that The
interest has been rightly fixed at 6% as, at the time the
land was taken over, this was prevailing rate of interest.
Civil Appeal No. 2762 of 1989 also stands dismissed. In
this view of the matter we see no reason to interfere in any
of the Appeals. Accordingly Civil Appeal No. 2630 of 1989
filed by M/s. Praga tools Corporation Ltd.; Civil Appeals
Nos. 2763/64 of 1989 filed by the Government of Andhra
Pradesh and Civil Appeal No. 2762 of 1989 stand dismissed.
There shall be no order as to costs in all the Appeals.