Placid Faria & Ors. v. Aditya Dev & Ors.

(per Hon’ble Sri Justice Vilas V. Afzulpurkar) WP.No.21387 of 1996 is filed by four petitioners, who are questioning the judgment of the Special Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short ‘the Act’) in LGC.No.11 of 1992 dated 12.07.1996. The vendor of the petitioners now represented by his legal representative is also questioning the judgment of the Special Court in LGC.No.20 of 1992, which is based on the self-same facts, decided on 12.07.1996 on the self-same grounds. Both the writ petitions are, therefore, heard together and are being disposed of by this common order.

The bare facts, essential for appreciating the issued involved, are as follows: (a) Admittedly, one Captain Ahmed Moinuddin was the owner of an extent of Ac.2.21 guntas of land covered by Sy.No.129/31 corresponding to T.S.No.2/1 and 2/2, Shaikpet, Banjara Hills, Hyderabad. One A. Krishna Bai purchased the aforesaid land from Captain Ahmed Moinuddin under a registered sale deed dated 9th Isfander 1344 Fasli (1933-34 AD). Ex.B3 is the extract of the town survey reduced showing the name of A. Krishna Bai W/o. A. Keshav Rao, as the owner of the property covered by

Sy.No.129/31. The said Krishna Bai sold Ac.1.00 guntas to one Smt. Rajyalaxmi and another extent of Ac.1.00 guntas to Sri Raghubale Rao under two registered sale deeds dated 15.05.1964 marked as Exs.B1 and B2. It is alleged that for the balance extent of Ac.0.21 guntas, Krishna Bai executed a relinquishment deed in favour of her son Sri A. Dinkar Rao. The said document is not on record but later the said Dinkar Rao sold away the said land under an agreement of sale dated 31.07.1967 under Ex.A22 in favour of Induri Ashanna (petitioner in WP.No.22181 of 1996). The said agreement was followed by a registered sale deed Ex.A21 dated

11.05.1968. The petitioners claim that they have purchased the LGC schedule property form Induri Ashanna, who was examined as P.W.2 after duly publishing a notification in ‘Deccan Chronicle’ - Ex.A2. Later a registered sale deed – Ex.A1 was executed in their favour on 22.08.1985 by P.W.2 and they were delivered possession of the property. It is, further, claimed by the petitioners that since the northern and southern boundaries were not correctly shown in Ex.A1, a rectification deed – Ex.A3 dated

26.06.1992 was executed rectifying the said mistake in Ex.A1 sale deed. (b) Petitioners, further, claim that since there was attempt to physically interfere with their possession by the respondents 3 to 8 in LGC.No.11 of 1992, they filed a civil suit in O.S.No.5136 of 1988 on the file of the VIII Assistant Judge, Hyderabad for permanent injunction and obtained interim injunction vide I.A.No.1563 of 2008 dated 23.12.1988 marked as Ex.A4. It is alleged that there were further attempts of interference compelling them to move the civil Court for seeking further orders for protection, the details of which are not necessary. (c) The concise statement filed by the petitioners in support of the aforesaid LGC, further, states that while their vendor - Induri Ashanna’s name was mutated in the revenue record, during the town survey operations, the said land was surveyed by the Deputy Director and was correlated to T.S.No.2/1 and 2/2. It is also alleged that Induri Ashanna filed declaration under the Urban Land Ceilings Act and was declared to hold 1300 sq. yards in excess whereas 1200 sq. yards was found to be retainable area and it is asserted that the petitioners have purchased the said retainable area. It is, further, alleged that they have filed civil suit and obtained injunction against the respondents 3 to 8. However, the petitioners lost possession on account of ex parte injunction obtained by a purchaser, from the seventh respondent, one Mr. Aditya Dev vide O.S.No.1036 of 1991 before the I Additional Judge, City Civil Court, Hyderabad and ex parte interim injunction vide I.A.No.1243 of 1998 dated 15.11.1991 obtained by the said purchaser in the aforesaid suit. It is alleged that the said respondents have forcefully occupied the LGC schedule land and have taken up construction. The petitioners also allege that the entire matter was enquired into by the Joint Collector and his report Ex.A36 clearly supports that the petitioners land has been grabbed by the respondents whereupon the petitioners have filed the aforesaid land grabbing case.

The petitioner in WP.No.22181 of 1996 i.e. vendor of the petitioners in WP.No.23187 of 1996, has originally filed a suit in O.S.No.345 of 1992 for permanent injunction relating to 1300 sq. yards of land in the same Sy.No.129/31 correlating to T.S.No.2/1 and 2/2 Ward 12, Block K and T.S.No.28/2 Ward 9, Block H. In the concise statement, the petitioner has stated the self-same facts including the sale by Dinkar Rao to him and thereafter, the declaration under urban ceilings and the proceedings pending with regard to the extent of land determination. The concise statement also confirms the sale of 1200 sq. yards of retainable area to the petitioners in WP.No.23187 of 1996 and later filing of various civil suits and obtaining interim orders by the petitioner to protect his possession. The concise statement also, further, states that the respondents 1 to 5 sold some plots to respondents 6 to 11 but could not deliver possession as the respondents 1 to 5 themselves were not in possession. Later the said respondents 6 to 8 filed separate suits in O.S.Nos.347, 348 and 349 of 1992 before the II Assistant Judge, City Civil Court, Hyderabad against the writ petitioner herein i.e. Induri Ashanna and the writ petitioners in WP.No.23187 of 1996 and taking advantage of the status quo order obtained by them, it is claimed that the said respondents 6 to 8 forcefully took possession and started taking up constructions. Thus, alleging that the sixth respondent has grabbed 618 sq. yards; seventh respondent has grabbed 506 sq. yards; eighth respondent has grabbed 520 sq. yards and ninth respondent has grabbed the remaining extent, LGC.No.20 of 1992 was filed. Various injunction suits referred to above were also transferred to be tried along with LGC.No.20 of 1992 and were separately numbered as LGC.Nos.53, 54 and 55 of 1994. However, the decision in LGC.No.20 of 1992, which is the subject matter of WP.No.22181 of 1996, would decide those matters also as petitioners in those LGC’s are parties to LGC.No.20 of 1992 as respondents 6, 7 and 8 respectively.

The contesting respondents have filed counter and opposed the said LGC’s, primarily, admitting that the original owner was Captain Ahmed Moinuddin and later he sold it to Krishna Bai and the sale by Krishna Bai to Raghubale Rao and Rajyalaxmi of an extent of Ac.1.00 guntas each is not disputed. However, the respondents claim that before the sale in favour of Induri Ashanna, as alleged by the petitioners, the said Dinkar Rao had, in fact, executed another sale deed dated 10.01.1968 in favour of Lingala Mangamma, which is marked as Ex.A12, which comprises of 1208 sq. yards and another sale deed Ex.A11 dated 27.02.1968 covering 989.44 sq. yards. It is, therefore, alleged that by the time Dinkar Rao is said to have executed Ex.A21 sale deed dated 11.05.1968 for 2500 sq. yards in favour of Induri Ashanna, he had already sold the entire extent to Mangamma and as such the very title obtained and pleaded by Induri Ashanna is disputed. It is, further, alleged that the said Mangamma, through her son L. Venkateshwara Rao, sold different extents to one Aditya Dev under Ex.A41 dated 21.01.1981 admeasuring 616.50 sq. yards. The purchasers under the aforesaid Ex.A41 are respondents 1 and 2 in WP.No.21387 of 1996. It is also alleged that after the death of Mangamma, the respondents 3 to 7 became entitled to the property by succession and they applied for approved layout from the Municipal Corporation of Hyderabad and while plot No.1 admeasuring 616.50 sq. yards was sold under Ex.A41 to Aditya Dev, representing respondents 1 and 2 in WP.No.21387 of 1996, the other plots were also similarly sold and the purchasers have constructed the houses. The respondents, therefore, have set up a title through Dinkar Rao but under different sale deeds said to have been executed by Dinkar Rao in favour of Mangamma under Exs.A11 and A12 whereas the petitioners in both LGC’s are also claiming title from Dinkar Rao, who sold the land in favour of Induri Ashanna under Ex.A21. The respondents deny the rest of the allegations including the legality and veracity of the surveys conducted by the revenue authorities as well as the report said to have been prepared by the Joint Collector and marked as Ex.A36.

On the basis of the pleadings on the lines, as mentioned above, the Special Court framed the following issues in LGC.No.11 of 1992:

Whether the applicants are the owners of the petition schedule property?

2. Whether the rival title set up by the respondents is true and valid? 3. possession? 4. To what relief? Whether the respondents perfected title by adverse The Special Court also framed the following issues in LGC.No.20 of 1992:

1. Whether the petitioner is the owner of the petition schedule property?

2. Whether the title set up by the respondents is true and valid? 3. Whether the respondents are land gra7bbers within the meaning of the Act? 4. To what relief?

As mentioned above, for the sake of convenience and as the allegations as well as the evidence is common and identical in both the matters, a reference to the evidence in LGC.No.11 of 1992, which is the subject matter of WP.No.21387 of 1996, is discussed hereunder.

The petitioners, who are the applicants, have examined P.W.1 – one of the applicants, P.W.2 the vendor of the applicants, who is also applicant in connected LGC.No.20 of 1992, P.W.3 the Surveyor, P.W.4, who was the Joint Collector, who prepared Ex.A36 report and P.W.5 one Upper Division Clerk in City Planning Division of MCH. The petitioners have also marked Exs.A1 to A46. The respondents examined respondent No.7 as R.W.1, the Deputy Inspector of Survey and Land Records as R.W.2, the Deputy Director of Survey and Land Records as R.W.3 and son of one Sharada Bai as R.W.4. The said R.W.4 is examined for the purpose of marking Ex.B5 sale deed dated 04.12.1963 said to have been executed by Krishna Bai in favour of his mother Smt. Sharada Bai. The respondents also marked Exs.B1 to B5 and through official witness, who are examined as above, Exs.X1 to X13 were marked.

It may be mentioned that the impugned judgments came to be passed by the Special Court, primarily, based on Ex.B5 sale deed said to have been executed by Krishna Bai in favour of Sharada Devi. After hearing the parties, the Special Court, under it’s impugned judgments dismissed both the land grabbing cases giving rise to questioning the said judgments in these writ petitions by either of the applicants.

We have heard Sri Y. Ratnakar, learned counsel for the petitioners appearing in WP.No.21387 of 1996 and Sri K. Durga Prasad, learned counsel for the petitioners appearing in WP.No.22181 of 1996. We have also heard Sri M. Narender Reddy, Advocate and Sri M.A. Rasheed Qureshi, Advocate, representing the respondents in both the writ petitions. We have heard the detailed submissions made by the all the learned counsel on various aspects attempting to show the title and possession of the respective claimants with reference to revenue records, town survey record, sale deeds, plans etc.

Sri Y. Ratnakar and Sri Durga Prasad, learned counsel for the petitioners, have made submissions to establish that Krishna Bai admittedly had derived title of the property from Captain Ahmed Moinuddin under the sale deed of 1933-34 referred to under the preamble above and thereafter, she executed Ex.B1 sale deed of Ac.1.00 guntas in favour of Sri Raghubale Rao and another extent Ac.1.00 guntas under Ex.B2 sale deed in favour of Smt. Rajyalaxmi, both dated 15.05.1964. It is only thereafter that the parties dispute set up different claims for title with regard to the balance extent of Ac.0.21 guntas. While according to the petitioners Induri Ashanna purchased 2,500 sq. yards of the aforesaid land from the son of Krishna Bai namely, A. Dinkar Rao under agreement of sale Ex.A22 dated 31.07.1967, followed by registered sale deed Ex.A21 dated 11.05.1968. The aforesaid sale was supported by mutation made in the year 1970 in favour of purchaser – Induri Ashanna as well as by Ex.A29 T.S. Sub-Division Map and Ex.A31 – No Objection Certificate issued by the Government and Exs.A27, A33, A38 and A39, which are TSLR extracts confirming Induri Ashanna recorded as rightful owner of the said 2,500 sq. yards. The petitioners, therefore, contend that their title acquired from Induri Ashanna under Ex.A1 cannot be disputed and it is clearly established by the petitioners.

It is, further, contended that under Section 10 of the Act, the petitioners having been discharged the burden cast upon them to establish prima facie title, their case cannot be rejected without examining the rival claim and rival title set up by the respondents. The petitioners also contend that when the municipal authorities granted layout to the seventh respondent the Survey and Revenue authorities have examined the matter in great detail with reference to all previous records and the Joint Collector, P.W.4, has given detailed report – Ex.A36 requiring the municipal authorities to take steps to cancel the layout in favour of the seventh respondent as erroneous.

Learned counsel have also tried to demonstrate before us the discrepancies in the title documents produced by the respondents with reference to the plan and the dimension of the property, particularly, with reference to Road No.12. Learned counsel have also drawn our attention to the other aspects concerning the urban land ceiling proceedings in the declaration of the petitioners’ vendor – Induri Ashanna and have contended that in view of the town survey record, which established the title of the petitioners, the dismissal of the LGC cases by the Special Court below is clearly erroneous. It is also alleged that though voluminous record was produced, the Special Court has disposed of the land grabbing case merely on the basis of Ex.B5 by ignoring all other material. The petitioners, therefore, contended that the Special Court has committed manifest error in excluding from consideration, crucial oral and documentary evidence already on record and on misreading of evidence of P.W.4 as well as Ex.B5, has dismissed both the land grabbing cases, though according to them the ingredients of grabbing as required to be established under the Act, are clearly established by the petitioners. Learned counsel for the petitioners also placed reliance on a decision of the Supreme Court in V. LAXMINARASAMMA v. A. YADAIAH (DEAD) & OTHERS [1]

Per contra, the learned counsel for the respondents have submitted that the title documents produced by the petitioners, Ex.A1 shows defective schedule and the map accompanying Ex.A21 is not produced. It is also contended that the extents pleaded by the respondents do not differ, though there is some discrepancy with regard to dimension. It is also contended that the alleged registered lease deed in favour of A. Dinkar Rao is not produced by the petitioners and it is asserted that the mutation under Ex.A24 in favour of the petitioners’ vendor is not implemented. So far as P.W.4 and his report Ex.A36 is concerned, it is contended that as a then Joint Collector, P.W.4, has exhibited a very biased attitude in favour of the petitioners, has deliberately given the report – Ex.A36 in favour of the petitioners. The respondents contend that the said report has no evidentiary value as it is a part of correspondence between the Joint Collector and the Commissioner of Municipal Corporation and none of the parties had involved or participated. Further, the said enquiry is not statutory and no great importance can be attached to it. The respondents contend that their title to the property is clearly traceable to a valid layout sanctioned and granted in favour of their vendor by MCH and that each respondent/purchaser has obtained appropriate building permission from the municipal corporation and have constructed their houses. Learned counsel would, therefore, submit that the allegation of grabbing made by the petitioners is clearly not established and in fact, the possession of the respondents is lawful.

We have considered the aforesaid submissions in the light of the certiorari jurisdiction of this Court invoked in these writ petitions. Though elaborate submission were advanced on behalf of either side, many of the questions raised by the learned counsel are purely factual issues, which need to be decided on appreciation of evidence on record. The certiorari jurisdiction of this Court would not extend to a decision on such pure questions of fact. Further, in view of the judgment proposed to be passed herein it would be neither proper nor appropriate for us to give any finding or make any observation with regard to any of the said factual aspects.

The Special Court, as stated above, decided both the land grabbing cases solely on the basis of the evidence of R.W.4 and Ex.B5. Paragraphs 36 and 37 of the judgment of the Special Court are necessary to be extracted to appreciate the above aspect. “36. It is submitted on behalf of the applicants that though Ex.A21 sale deed is dated 11.05.1968, the same is preceded by an agreement of sale dated 31.07.1967 which is marked as Ex.A22. It is further submitted that to show Ex.A22 agreement of sale is a genuine document, it is submitted that reference was made of Ex.A22 in Ex.A21. It is true that in Ex.A21 sale deed dated 11.05.1968 reference was made to the agreement of sale dated 31.07.1967. But it is to be noted that the property was sold under Ex.B5 sale deed dated 04.12.1963 by Krishna Bai. As we have already observed, recitals in Ex.B5 clearly shows that the total extent of Ac.2.21 Guntas was sold by Krishna Bai in favour Sharada Devi. The evidence of R.W.4, son of Sharada Devi shows that R.W.4, etc, are in possession of Ex.B5 property, having constructed houses therein having obtained necessary permission from the MCH and after obtained ULC clearance. Of course, R.W.4 speaks of another sale deed by Dinkar in favour of Sharada Devi for 300 sq. yards. This evidence of no avail since the registered extent of Sy.No.129/31 is only Ac.2.21 Guntas and the total extent was sold under Ex.B5 to Sharada Devi. Consequently nothing remains with Krishna Bai after the execution of Ex.B5 to be conveyed Sy.No.129/31 to anybody.

In view of these circumstances, we are of clear opinion that applicants are not the owners of the application schedule property. Accordingly we hold under Issue No.1. Under Issues No.2 and 3, we hold that the entire extent of Ac.2.21 guntas of land covered by Sy.No.129/31 was purchased by Sharada Devi under the original of Ex.B5 as early as on 14.12.1963 from the rightful owner, Krishna Bai and has been possession and enjoyment of the same. Accordingly, we hold under these issues.”

It is, therefore, evident that the Special Court came to the conclusion that Krishna Bai had sold the entire extent of Ac.2.21 guntas of land acquired by her from Captain Ahmed Moinuddin to Sharada Devi, the mother of R.W.4 under Ex.B5. The Special Court, therefore, came to the conclusion that having sold the entire land to Sharada Devi no land was left either with Krishna Bai or her son Dinkar Rao to be dealt with. In effect, therefore, the Special Court came to the conclusion that neither the petitioners nor the respondents can claim title to any land through Krishna Bai or her son Dinkar Rao. The entire land of Ac.2.21 guntas purchased by Krishna Bai from Captain Ahmed Moinuddin under registered sale deed of 1933-34, therefore, stood exhausted, when she sold the entire property under Ex.B5 dated

04.12.1963 to Sharada Devi.

During hearing we have also put a query relating to the aforesaid finding to both the learned counsel appearing on either side and the said finding was explained by both the learned counsel merely by stating that the sales of one acre each in favour of Rahgubale Rao and Rajyalaxmi having been accepted by both parties and the said purchasers being, even now, available on site, it cannot be said that Krishna Bai sold away the entire land to Sharada Devi. We have also examined the evidence of R.W.4, who has marked Ex.B5 sale deed in favour of his mother by Krishna Bai. The said R.W.4 asserts that he is even now in possession of the said property and he has constructed houses after obtaining necessary permission municipal authorities and urban land ceiling authorities. The cross- examination of the said witness, R.W.4, is, however crucial, which was not taken into consideration by the Special Court while reaching the aforesaid findings. The relevant paras of the cross-examination are worth extracting.

My mother purchased the property in Sy.No.129/31 under two sale deeds. The first sale deed covers an area of 2 Acrs.21 gts purchased from Krishnabai. The second sale deed covering an area of 3000 sq. yards purchased Dinkar, S/o. Krishnabai. They are purchased under Ex.B5 correlates to T.S.No.3, Ward 12, Block K of Shaikpet village and we are in possession of the property falling in the said T.S.No. right from the beginning. I do not know the extent held by Krishnabai inSy.No.129/31. I noticed a sale deed where under Krishnabai sold one acre in Sy.No.129/31 to one Raghubale Rao. The land sold in favour of Raghubale Rao is different from the one purchased from Krishnabai S.No.129/31 to Rajyalaxmi. Similarly the land sold in favour of Rajyalaxmi is also not one purchased by my mother from Krishnabai. Similarly the land purchased by I. Ashanna which is 21 gts. in extent is also not one purchased by my mother from Krishnabai…All along, till this day, my mother is in possession of Ex.B5 property. Ex.B5 property was plotted. The houses built-up in these pots is 10’x 10’. Though to Ex.B5 no plan is appended, there to original of Ex.B5. The properties purchased by my mother and the schedule property of the petitioners herein are separate and distinct.

inS.No.129/31. Krishnabai has sold one acre the plan appended (emphasis supplied)

The above evidence would show that the land said to have been purchased by the mother of R.W.4, Sharada Devi under Ex.B5 is clearly different and distinct from the land claimed by petitioners herein through Induri Ashanna, as clearly admitted by R.W.4. He, further, admits that the plan accompanying Ex.B5 is not produced on record and even otherwise the properties covered under Ex.B5 and the LGC schedule properties are different. He also admits that there are two sale deeds and not one and only Ex.B5 is marked through the said witness. He also admits the land sold by Krishna Bai in favour of Raghubale Rao and Rajyalaxmi, are admittedly different lands than covered under Ex.B5. In the light of the above evidence, therefore, the conclusion of the Special Court that Krishna Bai was not left with any land after execution of Ex.B5 sale deed and thereby the petitioners have no title, therefore, clearly suffers from a misreading or exclusion of the cross-examination of R.W.4 consideration. The Special Court, obviously, was under the impression that the land covered by Ex.B5 and the petition schedule lands are one and the same whereas R.W.4 asserts that they are different and distinct. The Special Court also failed to notice that the lands referred to in Ex.B5 sale deed and claimed by R.W.4 bears T.S.No.3, Ward 12, Block K whereas LGC schedule land bears T.S.No.2/1 and 2/2 and R.W.4 asserts that he continues to be in possession of the property covered by Ex.B5, which also clearly establishes that the land covered under Ex.B5 is different and distinct from the LGC schedule land. As stated above, the petitioners have been non-suited by the Special Court only on account of Ex.B5. All other evidence produced by the petitioners including the records of the urban land ceiling authorities and the survey authorities have been totally ignored by the Special Court and in exclusion of the oral and documentary evidence produced by either of the parties, both the land grabbing cases were dismissed on the ground that the vendor predecessor in interest of the petitioners was not left with any land after execution of Ex.B5 sale deed. The said conclusion by the Special Court is, therefore, clearly perverse and warrants interference by this Court under Article 226 of the Constitution of India.

We are, therefore, of the view that the impugned judgments of the Special Court are liable to be set aside and both the land grabbing cases deserves to be remitted back so that the Special Court would be in a position to appreciate the oral and documentary evidence produced by either of the parties and duly consider the same and decide both the land grabbing cases, in accordance with law, afresh. Though the parties have led sufficient evidence, both oral and documentary, in view of the fact that several years are passed by, after the impugned judgments passed by the Special Court, there may be subsequent developments and further evidence available, the parties would like to bring on record in support of their respective cases. The Special Court may, therefore, grant one opportunity to each party to lead further evidence and thereafter, hear and decide the matters afresh. We also make it clear that we have refrained from giving any finding or making any observation only to ensure that the Special Court is not prejudiced while re- considering the matter. However, we make it clear that any observation made herein shall not influence the Special Court in hearing and deciding the matter afresh, in accordance with law. The writ petitions are accordingly allowed and both the land grabbing cases are remitted to the Special Court accordingly. Since both the land grabbing cases are sufficiently old, we hope and trust that the Special Court would endeavour to hear and decide the same, at the earliest, preferably within a period of three (3) months from the date of receipt of a copy of this order. There shall be no order as to costs. ___________________ GHULAM MOHAMMED, J _____________________ VILAS V. AFZULPURKAR, J June 26, 2009 DSK [1] 2009 1 DECISIONS TODAY (SC) 136