K. Sudama v. Union of lndia

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in supp'ort of the petition' the High Court may be pleased to direct the respondent no 3 to pass appropriate orders on petitioner notice dated 31-05- 2019 forthwith pending disposal of the above writ petition' Counsel for the Petitioner: SRt A' VENKATESH' REPRESENTING SRI PAMULA VAMSHI KRISHNA Counsel for the Respondent Nos'1 and 3: SRI J' B+IANU KUMAR' REPRESENTING SRI GA;I;N.AViiH KUIVTAR, DEPUTY SOLICITOR GENERAL OF INDIA Counsel for the Respondent Nos'2' 5 and 6: GP FOR REVENUE Counsel for the Respondent No'4: SRI K'R' KOTESWARA RAO' SC FOR CANTONMENT BOARD The Court made the following: ORDER r:,_.-' THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA W.P.Nos. 242 L2 of 2Ol9 Sri A. Venkatesh, learned Senior Counsel learned counsel for the petitioner. Sri J.Bhanu Kumar, learned counsel representing Sri Gadi praveen Kumar, learnecl Dv.. Solicitor General of India appearing for the respondent Nos.l and 3. Learned Standing Counsel for Cantonment Board appearing for the respondent representing Sri p.Vamshi Krishna, No.4. ORDER: The writ petition is filed for a Mandamus directing the respondents, more particularly, the officers of the.cantonment B.ard to handover Ac.4-O0 guntas of land to the petitioner. '2. The petitioner states that the respondents have illegalll. occupied Ac.4-Ooguntas of land belonging to the petitioner for more than 3O years. The petitioner also claims compensatton for the alleged illegal occupation of the said land.

3. Learned Senior Counsel appearing for the petitioner submits that the father of the petitioner purchased Ac.T _22 guntas of land in Survey No.37 /2 (New Survey No.l7O/2) situated at Thokatta Villagc, Secunderabad, under a Registered Sale Deed dated 2O Aban l35S Fasli and was in possession of the said rand. counsel submits that the Defence Authorities trespassecl into Ac.4-0O guntas of the lanrl and constructed a water resen-oir without following due process oi (rw. Counsel submits that the petitioner hled a writ petition in 19g9 2 (W.P.No.12729 of 1989) seeking compensation lor Ac 4-OO guntas of land which u'a s e ncroached by the respondents and an rlrder was passed on 19.04.199 1 giving liberty to the parties to approach a Civil court for estab)ishing their title to the land. Counsel submits that the respondent Nos_ 1 and 3/Ministry of Defence and the Defence Estate ofhcer, respectively, initiated proceedings for declaration o1'title and recovery of possession and other consequential reliefs'

4. lrarned t;ounsel for the respondent Nos. 1 and 3 i'e', Ministry of Defence and t,he Defence Estate Officer, respectively denies the contention tha t ,he respondents have illegally occupiect Ac'4-OO guntas of land or are liable to pay compensation and dama ges to the petitioner by reason of the same. Counsel submits lhat the petitioner is disentitled frorr claiming recovery of possession after the limitation period of 12 yc'ars; from the date of dispossession. Counsel submits that the respc,nd3nts dispute the title of the pctitioner since the respondents h:tve been in possession of the said property since 1933 when the Generzrl Land Register was written incorporating the extent of the land under :he control of the erstwhile British Military

5. Counsel sub'mits that it is in fact the petitioner who has trespassed into and occupied Ac.3-27 guntas of land, which is the subject matter of W.P.No.24179 ol 2Ol9 and that the water reservoir was constructed prrior to 197O when the petitioner was a m inor. It is 3 submitted that the petitioner has failed to prove title over Ac.Z_27 guntas of lald or acquiring title under the registered Sale Deed.

6. I have heard learned counsel appearing for the petitioner and for the alswering respondents i.e., Ministry of Defence and the Defence Estate Officer.

7. The dates which are material for the adjudication as to whether the petitioner is entitled for possession of Ac.4_0O guntas of land are as follows

8. The petitioner claims to be the legal heir .of the person who purchased Ac.7 -22 guntas of 1and in Thokatta Village, Secunderabad and further claims that the Defence Authorities/respondents trespassed into Ac.4-0O guntas of the Ac.7_27 guntas of land and constructed a reservoir- The petitioner contends that the petitioner continued to be in possession of the remai ning Ac.3_27 guntas of land. The petitioner has not produced any further particulars of ownership of the land in question or any particulars including the date from which the alleged encroachment occurred.

9. The proceedings initiated by the parties in .respect of the said land i.e., Ac.4-00 guntas out of Ac.T -2T guntas of land can be categorized in the following manner. 4 Civil Proceedinqs lo.Thepetitiorrer|rledW.P.No.|2729of1989prayingfora Mandamus dirccting the respondents to pay the compensal-ion to the extent of Ac.7 27 guntas of land The learned Single Jur:lge of the erstwhile High Court of Andhra Pradesh at H;'derabad directed the parties to approa<:h the Civil Court to establish their resper:tive titles over the land

11.Theresponr1entsfiledo.S.No.266of1991beforethelearnedIII AdditionalJudge,CityCivilCourt,Secunderabadfordeclarationof title, recovery of possession and other consequential reliefs The Court dismissed the Suit by a judgment dated 15 03 1996 with a findingthattheSaleDeedobtainedbythepetitioner,sfatherisnota fabricated documont and that the respondents are not the owners of the plaint scLred'r1e property' The responden[s preferred a First Appeal challenging the judgment before the learned 1 Additronal Chiel Judge, City Civil Court, Secunderabad which rvas dismissed on 1g.o1.2o03 on the ground that the Trial court considered all the relevant point,s and there was no scope for interference in the impugned judgmenl.

12. The respondent filed a Second Appeai before the erstwhile High Court of Andhra Pradesh at Hyderabad, challenging the cismissal of the First Appeal. The Second Appeal was also disrnissed on 2Vfl8.2OO8. Tl'rt: Second Appeal was dismissed on the ground that ,/ 5 there were no questions of raw framed for consideradon and that the questrons were pure questions of fact.

13. The respondents filed a Special Leave petition (SLp) from the rejection of the Second Appeal in 2OO9 which was dismissed on

05.1 1.2014. The Proceedinss before the Revenue Department for construction of Boundary Wall. 14- The District Revenue Ofhcer passed an order dated 1g. l2.lggl directing the Mandal Revenue Officer to incorporate the name of the petitioner as the successor in interest and the owner of the land in Sy.No. 170/2 (old Sy.No.37/2) admeasuring Ac.7 -2T guntas.

15. The District Collector, Hyderabad, passed an order dated 22.O8,2OO3 holding that the order dated la.D.lggl passed by the District Revenue Ofhcer was void and the land in question belongs to the Government. The petitioner filed an application seeking permission to construct a boundary wali, the sanction for which was refused by the Executive Ofhcer, Cantonment Board. The petitioner thereafter hled W.P.No. 13776 of 2OO3 against the refusal and on

22.Oa.2OOa the High Court passed an order directing the Executive Ofhcer, Cantonment Board to consider the application submitted by the petitioner ald approve the same in accordance with law. I 6

16. A Welfare Society (Sri Venkateshwara Welfare Society) filed W.P.No. 16272 of 2004 against the order dated 22'08'2003 which was set aside by the Ftigh Court on 22-Oa.2OO8 The respondent No 4 (the Cantonment Board) fiied W.A.No. 1366 of 2O08 challenging the order dated 22.08.2008 passed in W.P.No. 13776 of 2OO3' This r'r'rit appeal along with other writ appeals were dismissed, uide a common order dated O6.07 .2OO9.

17. The responrlent Nos.1 and 3 preferred an SLP against the order dated 06.07 .2009 which was dismissed by the Supreme Court on O5.ll.2ol4. The review petitions filed against the said order as well as the curative petitions were also dismissed on 2 1 .O4.2O 15 and

06. 12.2O 15, resPectivelY.

18. The petitioner thereafter hled an application before the Cantonment Board for implementation of the order dated 22.Oa.2OO9 by which the Cantonment Board was directed to consider and approve the application sttbmitted by the petitioner. Criminal Proceedinqs. 19 . The respondbnt No.3 hled criminal proceedings a gainst the petitioner by way of an FIR before the XII Additional Chief Metropolitan Magistrate, Nampaliy, Hyderabad. The petit.ioner llled Crl.P.Nos.2561l artd 2571 of 2018 which were allowed bv the High Court on 09.11.2118. The petitioner submitted represental-ions to the 7 Cantonment Board on 16.06.2OlZ, 14.l2.2}lg, Og.O2.2O]r9 and also issued legal notice 31.os.2019 for implementation of the orders dated

22.O8.2OO8 whereby the Cantonment Board was directed to consider the plan submitted by the petitioner. The respondent No.4 replied to the legal notice on 25.oz.2org stating inter aria that the petitioner,s application for construction of boundary wall was rejected by the competent authority on o9.o7.2oo3 and the petitioner has failed to submit a fresh application thereafter.

20. The Cantonment Board further stated that the petitioner had also sold the land by dividing it into plots withoirt valid permission from the competent authorit5z and the several applicants claiming to be the buyers of plots applied for construction for boundary wall pursuant thereto. The Cantonment Board issued notice to the petitioner on 25.07.2019 asking the petitioner to file a fresh plan for implementation of order dated 22.O8.2008 and the petitioner replied to the notice on 26.08-2019. The petitioner.approached the Supreme Court under Article 32 of the Constitution of India and on O2.Og.2Olg, the Supreme Court granted liberty to the petitioner to approach the High Court. 2L. The above narration of proceedings initiated by the parties against each other is germane to the reliefs sought in the present writ petition, namely, whether the petitioner has established a case for a l I writ of Mandamus, directing the respondents to hand ove' Ac'4-00 guntas of land to t1-re petitioner' 22. It is evident from the stand taken by learned counsel rrppearing for the parties that the writ petition involves hotly-contested facts' The petitioner stakes claim over Ac'4-00 guntas of land by declaring that the respondents have illegally occupied the said land contrary to thc petitioner's right over the same' The respondents' on the other hand, sought for a declaration over Lc'3-27 guntas of the Iand It is undisputed trrat Ac'g-27 guntas of land is part of Hc 7 -27 guntas of Iand in Sy.No 170/2 situated at Thokatta Vitlage Secunderabad which have inherited from his father under a the Petitioner c raims to registered Sale Deed'

23. The rival claims of the parties would be evident from the prayers in the writ petition and those in O S No'266 of 1991 lrled by the respondent No. t before rhe III Additional Judge' City Civil Court' Secunderabad. The disputed claims of ownership over Ac'4-O0 guntas/Ac.3-27 guntas of land is clearly a civil dispute between the parties whicir is beyond the powers of a Writ Court under Aricle 226 of the Const',tut ion 'of India' The relief for recovery of possession on a disputed tract of land is eminently suited for adjudication in a civii The second question is whether the petitioner has been able to blish ar-. unciisputed title over Ac'4-OO guntas of land for the relief

24. ESt2 I of recovery of possession and consequential damages for the alleged illegal occupation of the said land by the respondents.

25. The petitioner grounds the issue of title to Ac.7-27 guntas of land on the judgments and orders passed by the Courts in the Suit filed by the respondent No. 1 (O.S.N o.266 of 1991). The hrst judgmenr relied upon by the petitioner is of 15.03.1996 by which the respondent's Suit was dismissed by the III Additional Judge, City Civil Court, Secunderabad.

26. To understand the import of the judgment dismissing the hrst respondent's Suit, it is relevant to note that the respondent Nos.1 to 3 had prayed for a declaration of title and possession of Ac.3-27 guntas of iand at Thokatta Village, Secunderabad and for consequentiai relief against the petitioner (the defendant No.1 in the said Suit). The City Civil Court framed four issues in the Suit including whether the Sale Deed obtained by the petitioner's father was a fabricated document and whether the respondents are the owners of Ac.3-27 guntas of land and also whether the respondents are entitled to declaration and recovery of possession of the said land. 27 . The Court concluded that the defendant obtained Ac.7 -27 guntas of lald in Sy.No.l7O /2 ar:,d that a water reservoir was constructed in the said land and further came to the finding that Sale Deed obtained by the petitioner's father is not a fabricated document and the respondents are not the owners of the suit schedule proper5/ ltlLl 10 suit schedule Prol)erty i.e., Ac.3-27 guntas of land' The Suit was dismissed on Lne ground that the resporLde rrs were not entitled to recovery of possession of the The judgment dated 18.Oi.2003 of lhe APPeal Appeal Iiled by the respondents was on the Court dismissing the Court considering all the relevant- facts in ground of th': rlrial dismissing the Sr-rit The Appeal Court hence did not frnd r'rny reason to interfere with the judgment passed by the Trial Court' 2a. The dismissal of the Second Appeal frled by the respondents on 22.Oa .2OOB \^'as on the ground that the respondents ha d failed to prove their title ')ver the suit schedule property or the fact that they were not in poss;ession of the suit schedule property and that there was no substantial question of law involved in the second appeal which would medt interference' The Second Appeal u'as dismissed on that basis. Ttre order of the High Court' dated 05' 11 2014 dismissing the respondents' SLP and dismissing the Review Petitions on 21.O4 .2A15 does' not refer to any of the contested factual hndings'

29. Therefcrre, the judgment dated 15'03'1996 dismissing the respondents' Suit - o.S.No .266 of 1991, containing hndings of facts in the context of the rival submissions of the parties would be relevant for the present proceedings' This judgment wouid be of more rclevance sirLce the entire case of the petitioner rests on the hndings of the Courts in th,e civil proceedings initiated by the parties' 1i 30' To repeat one last time, the city civil courr ar Secunderabad held that (i) the respondents failed to establish their titre over the Ac-3-27 guntas of land, (ii) the respondents were not entitred for recovery of possession, (iii) the sale deed obtained by the petitioner,s father is not a fabricated document (iv) the peLitioner did not encroach on Ac.2-19 guntas of land in September, l9gg. The question which begs to be answered in light of the above factual findings is whether the finding of the respondents having failed to establish title and ownership of Ac.3-22 guntas of lald wouid automatically translate to an enforceable title and interest in favour of the petitioner in respect of Ac.4-0O guntas of land (encompassin g Ac.3_27 guntas which was the subject matter of the respondents Suit).

31. The answer to this question must be in the negative.

32. The reasons for this view are as foliows. Common sense dictates that dismissal of a Suit or a Iinding given by the Court which is adverse to the plaintiffs claim cannot amount to establishing a right or a trtle in favour of the defendant, by reason of the dismissal simpliciter. A party who seeks declaration of title or injunction of any form must independently establish a case before a court of law for the relief claimed in the suit. The party would invite the Court to come to a finding in favour of the party based on the facts and materiar disclosed to the Court. rJ l2 r'

33. The mere ltnding that the respondents are not entitled to recovery ol pcsst,ssion to Ac'3-27 guntas or even that the Sale Deed executed by the lletitioner's father is not a fabricated doculnent would not result in an a utomatic conclusion that the petitioner is the rightful owner of Ac.4-O0 guntas of land (the disputed Iand in the present writ petition) or that the petitioner would be entitled to consequential reliefs inctuding oossession from the respondents'

34. The petiticner's reliance on the hnding of the City Civil Court' Secunderaba<l, that the registered sa'le deed is not a fabricated document rv,tul,C only be restricted to the genuineness of the document but cannot amount to establishing the petitioner's title over Ac.3-27 guntirs of the land in question'

35. [n any ,:r'ent, a comparison of the prayers in O'S No'266 o[ 199 1 (the respondt)nts' Suit) and the prayers in the writ petition make it clear thaL the question of possession is a vexed issui: since the respondents ciaim possession from 1991 to the extent of Ac 3-27 guntas of land and the petitioner ciaims recove4' of possession of Ac.4-0oguntasofthislandin2olg.Theadmittedlackofclarityon the issue of possession of Ac.3-27 guntas of land $,ould be sufhcient for a Writ Court to decline entertaining the matter in view of the contentious issues.

36. Claimir-rg a relief of recovery of possession presunles that the plaintiff/ peti:ioner has been dispossessed from the land in question' 11 The peculiarity of the present proceedings is that both the petitioner as well as the respondents seek to be re-instated in the land which means that both claim to have been dispossessed from the lald by the other party.

37. Moreover, any claim for recovery of possession, apart from being purely an issue which is ht for determination in a civil action, must also be tested on the issue of Iimitation as prescribed under The Limitation Act, 1963. Article 65 to the Schedule to The Limitation Act, 1963 prescribes a limitation of 12 years for recovery of possession of an immovable property based on title. Admittedly, the petitioner prays for recovery of possession of Ac.4-0O guntas of land after 30 years, as per the prayer in the writ petition. The petitioner's pleaded case is that the respondents had illegally occupied Ac.4-OO guntas of Iand lor more than 30 years.

38. Ii is relevant that the writ petition does not contain any averment with regard to the date or even from the time on which the petitioner has been dispossessed from the said land. The writ petition also does not contain any statement establishing the petitioner's title over the disputed land. The only averment is that the petitioner's father purchased Ac.7 -27 guntas of land from its original owner on Abdul Wahab under sale deed dated 20 Aban 1355 Fasli and that the petitioner continued to be in possession of Ac.3-27 guntas (out of Ac,7 -27 guntas) by fencing the land. I l4 (

39. The facts p:esented on behalf of the petitioner shows a lack of bona fides on the part of the petitioner not only in terms of establishing tltle over Ac.4-OO guntas of iand but also in the matter of taking steps to establish title over the said land' The petitioner claims that the petitioner's father, late Sri Asha Balaiah, purchased Ac7-27 guntas of land in Thokatta Village by a registered Sale Deed dated 20 Aban 1355 Fasli (roughly translated to 1945) from one Abdul Wahab and the petitione r's father was in possession of the said iand since 1945. The pet'tioner however has not given the exact date of construction ttf reservoir by the respondents on Ac 4-O0 guntas of land even thotrgh the petitioner seeks compensation of the same The petitioner, horvever admits, that the reseryoir was constructed during lifetime of his father which means that the reservoir was constructed prior to 1g7O a\,hen the petitioner's father died. The petitioner further failed to take an1 steps after his father's death against construction of the reservoir cr ':laim recovery of possession over Ac 4-O0 guntas of land on which rhe reservoir was constructed. on the other hand, the respondent No 3 / Defence Estate ofhcer hled criminal proceedings against the petitioner \n 2017. The respondent's reply to the lega1 notice sent blr the petitioner denies illegal possession of the subject land by the respcndent and the fact that the petitioner did not make any fresh appliczLtion after the petitioner's application for construction of boundary wil11 u'as rejected by the competent authority on o9.o7.2003 15

40. The petitioner's hling of W.P.No.12729 of 1989 cannot be seen as a step in the right direction in respect of Ac.4-00 guntas of land since the petitioner claimed Ac.7-27 guntas in the said writ petition' In any event, the petitioner was directed to approach the Civil Court for establishing title to the Ac.7-27 guntas of land' The petitioner failed to hle any Civil Proceedings thereafter. On the other hand, the respondent authorities filed o.S.No.266 of 199 I against the petitioner for declaration of title and recovery of possession in respect of Ac '3-27 guntas of the land.

41. It is also the respondent's case that the subject land falls under Revenue Sy.No. 17O which is classihed as "Sarkari" (Government land)' The petitioner in fact also admits the larrd to be "Sarkari Abadi" but disputes the ou'nership of the Central Government over the said land' It is further relevant that the petitioner has failed to show that Abdul Wahab, from whom the petitioner's father had purchased Ac '7 -27 guntas of land was recorded as the owner of the said land Moreover' the document number of the sale deed which is on record does not match with the records of the Sub-Registrar, Maredpally' Thus' the petitioner's claim of title over Ac.7 -27 guntas of land has not been substantiated from the records placed before the Court'

42. [n any event, the rival claims of the petitioner and the Defence Authorities amount to vexed questions while the petitioner seeks possession of Ac.4-00 guntas out of hc '7 -27 guntas of land, the A 16 respondent claims title over Ac.3-27 guntas thereof. The petitioner's case is that the respondent has encroached over Ac.4-OO guntas of land by constr,:cting a reservoir- The respondents on the other hand say that the pe titioner has encroached on Ac.3-27 guntas of the Ac.7- 27 guntas.

43. Therefore, i1. is clear from the above that both the petitioner as well as the Defence Authorities claim title over the entire Ac.4-OO grntas/ Ac.3-27 guntas of [and. The basis of the petitioner's claim for possession for unzruthorized use and illegal possession hence becomes inconsequential in the face of the petitioner not being able to establish a right and title over the land which forms Lhe subject mat.ter of the alleged encroachment/construction oI reservoir.

44. A claim for ()ompensation must be premised on the undisputed title over the subject land and admitted encroachment of the said land by a third par[. (lompensation is usually awarded under a statute or a contract or or-r equitable grounds where the person whose land has been encroached trpoa is in a position to establish his/her title to the land and also esteLbiish the fact of illegal use/occupation of the land by another.

45. In the pre.sent case, the petitioner's claim for compens,ation falls under the third category, i.e., on the petitioner allegedly suff-ering the consequences of ttLe respondents' illegal occupation of the p,::titioner,s land. The petitionor has not been able to show an unimpeachable title l7 over Ac.4-oO guntas of land on which the respondents have constructed the water reservoir or that the respondents have illegally occupied the said land. The petitioner's claim for compensation is further diluted by the respondents claiming title over Ac'3-27 guntas of the Ac.4-O0 guntas on which the petitioner claims compensation' I \ f

46. Given the absence of a clean and u4encumbered title over the Ac.4-00 guntas of land or uncontroverted evidence of the respondents having illegally occupied the same, this Court is constrained to reject the relief for comPensation 4T.Therivalsubmissionsmakeitevidentthatthewritpetitionis full of disputed facts in relation to the right and title to Ac.4-0o guntas of land which forms the subject matter of the present writ peLition. The Writ Court is wholly ill-equipped to adjudicate on the factual controversies which is necessary for a question of title to the land in question. This Court is of the view that the appropriate recourse for the petitioner would be to file a civil Suit which the petitioner has chosen not to do despite being directed by the High Court'

48. The above reasons persuade this Court to hold that the writ petition is devoid of merit and the petitioner is hence not entitled to any relief. _, --../' I I i 18

49. W.P.Nos.24!112 of 2Ol9 rs accordingly dismissecl' Intenm orders, if any, shzLll stand vacated and ali connected appiications are disposed of There shall be no order as to costs' SD/. K.SREERAMA MURTHY REGISTRAR ASSI I I //TRUE COPYII To,

1. One CC to Sri f]amula Varnshi Krishna, Advocate [OPUC] 2. One CC to Sri Ciadi Praveen Kumar, Deputy Solicitor General Of lndia SE OFFICER IoPUCI

3. One CC to Sri K..R. Koteswara Rao, SC for Cantonment Board[OOPUC] 4. Two CD Copies j"^l YT .Lrlhc C,rp f-r Peventr t, [+th r."rL &,^,-+.!." slale J -e_kv,7a,aa qoul) "*.n E HIGH COURT DATED:0910112025 ORDER WP.No.24212 of 2019 ) tr,E 3 rA fc 1 v z a A 3 1l tiN 2025 t O6 iPAICP' gC * DISMISSING THE WRIT PETITION WITHOUT COSTS g(o 'P?EA jr, p