RT, Malakpet, Hyderabad v. Prabhakara Reddy, S/o late Narayana Reddy, aged about major, Occ Agriculture, Rto

'1 . Smt. V. Sakuntala Devi, W/o Vasudeva Reddy, aged about major, Occ Housewife, Chinna Maoor Village, Devaruppula Mandal, Warangal District. 2. Smt. K. Bharati Devi, Wo Rajeswara Rao, aged about Bg years, Occ Housewife, R/o Bl-90, Chaval Road, Hyderabad.

3. Smt. V. lndra Devi, Wo late Prabhakara Reddy, aged about major, Rl/o '16-10- 22813, Old Malakpet, Hyderabad. ...PETITIONERS/RESPONDENT Nos.4 to 6 AND 1 2 J 4 5 The State Archaeological Museums Department, representeC by its Director, Government of Telangana, (Previously shown as State of Andhra Pradesh), Gunfoundry, Hyderabad The Commissioner, Survey and land Records Settlement, Government of Telangana (Previously shown as Government of A.P.), Hyderabad. ... RESPONDE NTS/APPE LLANTS V.Swaroopa Rani, W/o Damodar Reddy, aged about major, Occ House-wife, R/o 1-9-31 2^/VA and B, Vidyanagar. 9mt. G. Ahalya Devi,-Wo Sri G. Ramachandra Reddy, aged about major, Occ House-wife, No. 3212, RT, Malakpet, Hyderabad V. Prabhakara Reddy, S/o late Narayana Reddy, aged about major, Occ Agriculture, Rto Chowdoor Village, Dev-aruppula Mandal, Warangal Diltrict. ...RESPONDENTS 3- Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim order Dated 07.03.2018 in W.A. No. 1639 o'f 2017 granted by this Hon'ble Court. Counsel for the Appellants: Ms. DTVYA ADEPU, SPL. GP, REP. FOR THE ADVOCATE GENERAL counserfor the Respondent No.4 - t, REiYFBHtJ\_i[f]#rt;$ f=orrJl:=., WRIT APPEAL NO: 1661 OF 2017 Writ Appeal under clause 15 of the Lefters Patent against the order passed dated 7 -3-2017 in W.P. No.'167 54 oI 20OB on the file of the High Court. Between: 'l . The State Archeological [Vluseums, Telangana, (Previously shown as Gunfoundry, Hyderabad. 2. The Commissioner, Survey Telangana (Previously sh Hyderabad. reo. bv its Director. Government of Goveinment of Andhra Pradesh), and Land Records Settlement, Government of own as Government of Andhra Pradesh), AND ...APPELLANTS Mahadevapatnam, Bhimavaram Taluk, W.G. District.

1. Vegasena Venkata Satyanarayana., -S/9, 2. Kalidindi Subba Raju, S/o. Surya Narayana Raju R/o. Myeepa Village' Venkata Somaraju Rl/o' Bhimavaram Taluk, W.G. Diskict.

3. Penumetcha Surya Narayana Raju, S/o. Lakshmipati Raiu R/o.llan Colony, Nagarjuna Sagar, Nalgonda District.

4. Penumathsa Venkata Sathyanarayana Raju, S/o. Penumathsa Surya Narayana Raju.

5. FazalAli, S/o. lbrahim Esa Rl/o. Kingkoti, Hyderabad. Rep. by their G.P.A. Holder Vegesana Murthy.Raju, S/o.Subbaraju, age 31 Yrd, H/o. 40-4-6, J.V.R Street, Krishna Nagar, Venkateswarapuram, Vijayawada, Krishna District. ...RESPONDENTS -4 l.A. NO: 1 OF 2017(WAMP. NO: 3163 OF 2017 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the order dt. 07.03.2017 passed in W.P.No.167b4 of 2008. lA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to permit the petitioners herein to delete the words "was 3 hectares" from para - g of the Affidavit filed in support of l.A. No. 1l 2017 (WAMP No. 3163/ 2017 in WA. No. 1661 of 2017) and read the affidavit without taking into ,lonsideration of those words. lA NO: 6 OF 2018 Between: '1 . Vegasena \/enkata Satyanarayana, S/o. Venkata Somaraiu Rl/o. [\/ahadevapatnam, Bhimavaram Tdluk, W.G. District.

2. Kalidindi Suhba Raju,_ S/o. Surya Narayana Raju R/o. Vlyeepa Village, Bhimavaram 'f aluk, W.G. District. '

3. Penumetcha Surya Narayana Raju, S/o. Lakshmipati Raju R/o.llan Colony, Nagarjuna Sagar, Nalgonda Distriit.

4. Penumathsa Venkata Sathyanarayana Raju, S/o. penumathsa Surya Narayana Raju.

5. F azal Ali, S/o. lbrahim Esa R/o. Kingkoti, Hyderabad. Rep. by their (i.P.A. Holder Vegesana Murthy Raiu, S/o.Subbaraiu. aoe 3.1 Itr, o, 40-4-6, J_V.R Street, Krishna Venkates#aiap"uiam, Vijayawada, h.rishna District. 'Nagjar, AND 1 The State Archeolooical Telangana, (Previou-sly Gunfoundry, Hyderabad. Museums, shown as rep. by its Director, Government of Government of Andhra Pradesh), 2 The Commis.sioner, S.urvey and Land Records Setflement, Government of .lelangana (P.eviously shown as Government of Ariclhra pradesh), Hyderabad. ...APPELLANTS ...RESPONDENTS I Petition under section 15'l cPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to vacate the interim order dated 07.03.2018 passed in WA No. 1661 ol 2O17 Counsel for the Appellants: Ms. DIVYA ADEPU, SPL. GP, REP' FOR THE ADVOCATE GENERAL Counsel for the Respondents: SRI VEDULA VENKATA RAMANA, Sr'COUNSEL, REP. FOR M/s. BHARADWAJ ASSOCIATES The Court delivered the following: COMMON JUDGMENT THE HON'BLE THE ACTING CHIEF. JUSTICE SUJOY PAUL AND THE HON'BLE SMT. JUSTICE RENUKA YARA WRIT APPEAL Nos.l639 and I 661 of 2Ol7 COMMON JUDGMENT (Per Hon'ble Smt. Justice Renu.ka Yara): Heard Ms. Dirya Adepu, learned Special Government Pleader attac:hed to the ofhce of the learned Advocate (leneral for the State of 'Telangana, appearing for the appellants, Sri Vedula Srinivas, learned Senior Counsel appearing for Mr. l(. pradeep Reddy, learned counsel for respondent Nos.4 :rnd 5 in W.A.No.1639 of 2017, Sri Vedula Venkata Raman,a, learned Senior Counsel appearing for M/s. Bharadwaj Associates for the respondents iir W.A.No. 1661 of 2OlZ . perused the record.

2. The altpcals are preferred by the appellants/ respondents aggrieved bv the impugned common order dated 07 .O3.2O17 passed by a lt:arned Single Judge in W.p.Nos.13g10 zmd 16754 of 2O08. In tl-re said order, the appellants were direc tecl to pay costs of Rs.20,000/ to the respondents in each lr,rit petition; declared the zrction of writ appellant No. 1 in constrrrcting the compound vrrlil covering the land of the resportdents in Sy.No.318/ 1, situated in Gaddiannaram Village, Asmangadh, Malakpet, Hyderabad, as illegal, violative of Article 3OO-A of the 2 WA.Nos.1639 & 1661 of 2017 r) Constitution of India, contrary to the orders passed by the P'A' to Collector, Hyderabad District in No'821392178, dt. 14.08.1980 as confirmed in Commissioner, Survey Settlement Land Records, Andhra Pradesh, Hyderabad, in Revision Petition Case No.R.O.R. ll2golaO dt.14.09.1981 and the judgment of the VII Junior Civil Uudge, City Civil Court, Hyderabad, dt. 14.10.1998 in O.S.No.39O3 of 1986 ald confirmed in judgment dt. 12.O9.2000 in A.S.No.176 of 7999 on the file of the Chief Judge, City Civil Court, Hyderabad and consequently directed writ appeliant No.1 to demoiish the compound wall constructed by appellant No.1 over and above the land of Ac.3.OO gts. covered by the Monument Mons, Raymonds Obelisk (for short 'the subject land') and further directed the appellants not to encroach upon the land of the respondents in Sy.No.3 18/ 1, Gaddiannaram Village, Asmangadh, Malakpet, Hyderabad. .) The respondents frled the writ petitions with the following prayers: " to direct the Commissioner Survey and Land Records (2"d respondent) to survey the land of the State Archaeological Museums Department (l't respondent) arld fix the boundaries as per the orders of the PA to the Collector, Hyderabad Distnct in his order dt.14.08.1980 in E21392/7a as conhrmed by the i J \XrA.Nos.1639 & 1661of 2017 Cornmissioner, Survey Settlement Land Records in ltis order dt.14.09.1981 in Revision Petition No.RORll29O/80 and .urther to direr thc 1"t respondent herein to demolish the compound rvail cc,rrstructed in deviation from the orders of the aforesaid aulhor ties". Brief facts

4. The rt:spondents in both the writ petitions are ()laiming to be owners ()1' land admeasuring Ac.3.OO gts. in S1'.No.318/ 1 Gaddi Annarilm Village which was originally o\rned by H.E.H The Nizam the VII (for short 'the Nizam') and u.as pul-chased by Naseem Fatima and Saleema Fatima on 03.1O. 1964 ald O2.O9.1963 r,ispectively. The respondents in W.A.No.1639 of 2Ol7 purchased Ac. 1.0O cts from Naseem Fatima on

20.08.1966, the said lald was divided into six plots ald five plots were sold. Similarly, the respondents in W.A.No. 1661 of 2077 are clairning different extent of land through their vendor Saleema Fatinta.

5. There is a history of proceedings before the revenue authorities frl' rectification of entries to reflect the name of the H.E.H. Nizanr as the owner and possessor of land in Sy.No.31B/ 1 try deleting the term 'sarkari'. The said pr.oceedings are orders of rhe PA to the Collector, Hyderabad District in his order dt. 14.08.1980 in 82/392178 as conhrmecl by the 4 WdNos.1639 & 1661 of 2017 Commissioner, Survey Settlement Land Records in his order dt.14.09.1981 in Revision Petition No.ROR/1290/80. The said proceedings before the revenue authorities ended in favour of the respondents in both the writ appeals. Consequently, the name of the H.E.H. Nizam is reflected as owner of the land in Sy.No.318/ 1

6. Apart from the proceedings before the revenue authorities, the respondents in W'A.No' 1639 of 201'7 have frled O.S.No.39O3 of 1986 seeking perpetual injunction against the writ appellant No.1 with respect to land to an extent of Ac' 1'0O gts. consisting of six house plots in Sy'No'318/ 1 of Gaddialnaram Village and said suit was decreed by judgment and decree dated 14. 1O. 1998. Further, the appeal hled by writ appellant No.1 challenging the judgment and decree passed by the Civil Court in A'S.No.176 of 1999 has been dismissed by the learned Chief Judge, City Civil Court, Hyderabad uide judgment d.ated, 12.O9.2OOO and said judgment became final as the writ appellant No.1 did not challenge the same by frling Second Appeal. Lastly, there was an attempt made to acquire the land in 7 question by the A.P.trlectricity Board ald the same was 5 WA.Nos.1639 & 7661 of 2O17 challenged trefore the High Court in W.p.Nos.4950 and 5322 of 1986 and the respondents were granted with stay from dispossession. In view of the culmination of a1l the proceedings before various forums in their favour, the responderrts in both the writ appeals filed writ petitions seeking reliefs prayed for i.e. survey of subject land to declare the construction of compound wall around the subject land as illegal and to dernolish the same. Contentions of the Appellants:

8. The czrse of the writ appellants is that the land in question is arL ancient monument existing in 3.73 he<:tares and 36 square meters of land as per extract of Tor.r.n Survey Larrd Register and said monument is risted in Gazette Notiiication No.49/1111 lTArchaeolog,/S1, dated 12.01.1953 issued by the Education De partment (Archaeolory) . In said notific ation, the monument is referred as ,Mons Raymonds Obelisk,, ,N4usa-Ram Bagh (H) Sr-rburb)' 'resting place of Michel Joachim Marie Raymond, a lrrench Offrcer who was originally in Tipu Sultan.s service but surbsequently joined the Nizam,s service, and that 'monument isr u,ell protected and maintained,. On thr: basis of aforementioned documents, the writ appellants claim that the land in question belongs to an ancient monument which is 6 WANos.1639 & 1667 of 2017 notified as early as 1953 and has been well protected arrd maintained ever since. According to the writ appellants, 3'73 hectares arrd 36 square meters approximately equals to Ac'7 '28 gts. and the same is surrounded bY comPound wall protecting the resting place of Raymonds Obelisk', Ann Janet trlizabelh Jenkin, two dogs and a horse. Upon examining the case of the rival parties, the learned Single Judge on the basis of the frndings given by the revenue authorities and the Civil Courts allowed the writ petitions leading to hling of the present appeals' g. The learned counsel for the writ appellants argued that the prayer of the respondents is entirely civil in nature seeking locaTizationlidentihcation of the respondents' land and that sale deeds produced by the respondents do not show an archaeological monument as one of the boundary' Consequently, it is argued that the land of the respondents is not within conhnes of the ancient momrment whose walls were in existence for more than 40 years ald .therefore, the respondents are not entitled to the relief sought'

10. Referring to the judgment of the learned Single Judge, reference is made to the observation that the boundary wall "appears" to have been constmcted in violation of the Civil 7 WA.Nos.1639 & 1667 oI 2017 Court's jud,lment of permanent injunction in fav<>ur of the respondents

11. A refe.rence is made to three sale deeds dated ).7.06.1967 executed b1. .:espondent No.l in favour of responderrt Nos.2, 4 and 5 in W.A..No.1639 of 2Ol7 coupled with rough s;ketch and Deed of Re.lease dated 24.06. 1967 executed in favour of respondent No.l coupled with rough sketch. It is a:gued that the sale deeds of the respondents in both writ appeals do not disclose existr:nce of any monument ald therefore, there is no cause of ac:ion for hling a writ petition. A perusal of said documents, more particularly, Deed of Release, dated 24 .06.1967 shou,s the northern boundary as ,Moosaram plot form and M<l-rument'. The sale deeds dated 27 .06 .7967 show the northern troundary as Tomb of Mosaremo, and Tornb area,.

12. The iearned counsel for the writ appellalts refer.red to the definition of a.n ancient monument as referred in Sectic,n 3 of the Telangana Ancient and Historical Monumerrts and Archaeological Sites and Remains Act, 196O, which reads as under: 'A1l ;mcient and archzreological sites historical monuments ancl all and remains which have }>een ; l I 8 WA.Nos.1639 & 1661 of 2017 declared by the 8 [Ancient Monumcnts Preservation Act, 1904 (Central Act 7 of 1904), or the Hyderabad Ancient Monuments Preservation Act (Hyderabad Act VIII of 1337 F.), to be protected monuments but which have not been declared by or under law made by Parliament to be of national importance, shall be deemed to be ancient and historical monuments or archaeologlcal sites and remains declared to be protected monuments or areas for the purposes of this Act"-

13. The learned counsel for the appellants sought to negate the findings of the revenue authorities alleging that the said orders do not throw light on the boundaries of the land of the respondents and also do not disclose the location of land owned by them. Further, the judgment and decree of the civil Courts in O.S.No.39O3 of 1986 and A.S.No.176 of 7999 are sought to be negated on the ground that said suit was frled seeking perpetual injunction with respect to 1 Acre of land only, that too by the respondents in W.A.No.1639 of 2Ol7 only and that the writ appellants in W.A.No.166l of 2Ol7 are not parties to the proceedings before the civil Courts. Lastly, it is ernphasized that the entries in Telangana Survey Land Records (TSLR) and Gazette notifrcation of the vear 1953 are completely ignored'

14. The learned counsel for the appellants referred to the judgments of the Hon'ble Supreme Court of India in State of o \YA.Nos.1639 & t661 of 2017 A.P. vs. Hyderabad Potteries Pvt. Ltd. and anotherl, Palem Chandra Shekar and others vs. Palem Bikshpathy and othersz, E. Achuthan Nair vs. P. Narayanan Nair and another3, Mohan Pandey and another vs. Usha Rani Rajgaria (Smtf and othersa and Roshina T vs. Abdril Azeez K.T. and, otherss referring to contentions of various parties without referring to lindings of the Court. Therefore, said citations cannot be of assistance to the writ appellalts.

15. The respondents while hling the writ petit.ons have sought re sut'r/ey of the land covered by the monuments which is within the cc,nfines of a compound wall for r.l,hich the writ appellants h ave consented in their counter. Hou.ever, the learned SingLe Judge without ascertaining the location of the land of the respondents has passed the order of demolition of the compound wall in order to deliver possession of the land to the responderLts. In that context, the learnecl counsel for the appellants referred to the judgment of the Hon,ble Supreme Court of Indi,t in the case between Union of India and others AIR 2010 SC 2 /r;0 2019 SCC OnL re TS 3,184 (r987) 4 SCC 71 (1992) 4 S(la (,1 r)[rqi: s,'c ii,, 10 WA.Nos.1639 & 1661of 2077 vs. Dinesh Prasad6, wherein, it is held that no relief to a party can be granted on the grounds not taken in the writ petition and it is not possible to grant relief beyond pleadings' Further, learned counsel for the appellants referred to judgment of the Hon'ble Supreme Court of India in the matter of Rajeev Mankotia vs. Secretary to the President of India aad othersT' wherein, it is held that it is the duty of the Union of India arld the State Governments to protect and preserve ancient monuments. Said matter related to the Viceregal Lodge as a protected monument included the land appurfenant to it' It is argued that contrary to the finding given by the Hon'ble Supreme Court of India in Rajeew Mankotia (7 supraf' the learned Single Judge directed to demolish the boundary wall without enquiry and without survey. Lastly, the iearned counsel for the appellants relied upon the judgment of this Court in W.A.No.484 of 2017, in the matter between the District Collector, Hyderabad and Syed Jahangir, wherein, it is held as follows: \ \ "4a. The issues involved in this appeal are the material questions which require to be decided on exarnination of evidence and on materia-I documents and the same cannot be 6 (20r2) 12 scc 63 ' 1997 ( to) scc 441 11 WA.Nos.1639 & 1661 of 2017 decided in the writ petition. These questions in our view were pure questions of facts and could be answered one wa1. or the other b]. the competent civil court in properly constitut,rd civil suit on the basis of the evidence adduced by the parttes but not on -he documents frled in the writ jurisdiction. Fr_rrther, thc veracity of the said documents has to be examined as per the prorisions of the Evidence Act.

49. Further, the remedy under Article 226 tff tine ConstitrLtion of India shall not be available except where there is infringement of right of the persons by the action of the staturtory authorities and this Court exercising power under l tLe writ jurisdiction cannot decide the di:;puted questior s, as there is availability of remedy under the general law. In catena of judgments Supreme Court held th at the pou,er urder Article 226 of the Constitution of India is not intendec to replace the remedy available to the person aggrier-e,l by hling a civil suit. (see Mohan pandey v. Usha Rani Rajgariae and Dwarka prasad Agarwa.I v. B.D.Agarwale)". Contentions of Respondents in W.A.No .1661 of2OI-7: 16. Sri Ve.rlula Venkata Ramana, learned Senior Counsel appearing for the respondents in W.A.No.166l of 2OlZ referred to the Telangana Ancient and Historical Monum,:nts and Archaeological Sites and Remains Act, 1960 to emphasize that the sections therein show that the State Government lLas power to protect the monuments, declare certain structures as ancient ' 119921 4 sr.c r, w ' (zoo3) 6 s<tc:-rn 12 WA.Nos.1639 & 1661of 2Ol7 monuments, to acquire the monuments and their maintenance, protection, etc., but does not give any scope for claiming ownership. Learned Senior Counsel referred to the judgment of the Hon'ble Supreme court of India in the matter of Roma Sonkar vs. Mahdya Pradesh State Public Service Commission and anotherlo, wherein, it is held as follows: "We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief lt is the exercise of jurisdiction of the High Court rrnder Article 226 of ttre Constitution of India- The learned Singie Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants' anottrer tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not meal that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the leamed Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Srnglc Judge, instead or remitting the lnatter to the learned Single Judge". 17 . on the basis of above frnding of the Hon'ble Supreme Court of India, the learned Senior Counsel appearing for the 'o (2018) l7 scc 106 , I 13 WANos.1639 & 1661 ot 2017 respondents :n W.A.No.1661 of 2Ol7 argued that 1.his Court does not havt: jurisdiction to look into the merits of the order passed by th,: learned Single Judge. Contentions of Respondents in W.A.No.1639 of 2017

18. Sri Vedula Srinivas, learned Senior Cor-insel apltearing for the respondents in W.A.No.1639 of .2017 argued that the documents rr:Jied upon by the writ appellants do not prove their title and are also not of assistance in proving the extent of lald covered bv tlir-- monument. It is argued that besides the Tombs of Raymonds ()belisk, Ann Janet Elizabeth Jenkin, twc, dogs and horse, there is al open land and said land belongs to the responden ts.

19. Learnr'<l counsel for respondents in W.A.No. 7639 of 2Ol7 while relying upon the arguments forwarded by the learned senior counsel for the respondents in W.A.No. 16 6 j of 2017 argued that 1.tre writ appelialts have failed to prove .:heir case before the rrl'renue authorities as well as Civil Cc,urts and therefore, car,not claim any relief in the present q/rit a.ppeals. It is argued thar the order of the learned Single Judge is based on findings of the revenue authorities as well as Civi1 Courts which .-\gve categorically given hndings in favour of the respondents l l i I i I I i I I i i I t I I 14 WA.Nos.1639 & 1561ot 2Ol7 d.eclaring them as owners of the land in Sy'No'318/ 1 on the basis of entries in pahanies as well as registered sale deeds' About the genuineness of entries in TSLR, the learned Senior Counsel relied upon judgment of the High Court of Judicature, Andhra Pradesh at Hyderabad in the matter of Hyderabad Potteries Pvt. Ltd. Vs. Collector' Hyderabad District and anothern, wherein, it is held as follows: "A bare reading of scheme of the A P Survey and Boundaries Act, 1923 would make it clear that the survey made under the said Act is mainly intended for the purposes of identifrcation of tJle lands ar.rd fixation of boundaries. There is no provision under the Act intending to make any detail enquiries wrth regard to the right, title and interest of the persons in the lands. It is neither the object nor the scheme of the said Act. There is no presumption that every entry made in the TSLR shall be prcsumed to be true until contrary is proved as in the case of entries made in me record of rights under the provisions of A P' Record of Rights in Land Act, lg7 l. It is not a record of right There is no such provision in the Andhra Pradesh Sur-vey a:rd Boundaries Act, 1923" . Findines of the Court: 2C.. Having perused the record, the oral arguments, written arguments and the citations relied by the respective counsel for " 2ool (3) ALT 2oo t5 WA.Nos.1639 & 1661 of 2Ol7 the writ apl)ellants and the respondents in botlL the writ appeals, ther,: zu'e certain predominant points to be noted. The frrst and foremost is that the subject property c:onsists of structures srtrrounded by a compound wall which is cleclared as ancient ntonument. The Gazette notification- dated I 2.01. 1953 shows the subject property as an ancient monument at Serial No.23. When relief is sought by private parties for lald housing an ancient rlonument and for demolition of walls strrrounding the monumer..t, the sarne requires certain amount of caution as contended b.i the learned counsel for the writ appellants on the basis of judgrnent in Rajeev Mankotia (7 supra), wtrerein it is held that the State and Central Governments have a duty to protect ancie'nt monument. Accordingly, the State anci Central Governments, are maintaining the same by constructing a compouncl u'a1l around the monuments. The photographs filed by the u,nt appellants show that the ancient morrument is indeed u,ell rrLaintained with compound wall and flooring. The photographs shor,,' the distinct structllres being o d as the architecture r: learly does not belong to present day construction parlance. I I i I 16 WA.Nos-1639 & 1661 ot 2017

21. The writ appellants resisted the attempts of the respondents in both the writ petitions before the civil courts ald revenue authorities, but were unsuccessful in proving their case on the basis of record. The revenue authorities gave hnding in favour of the HEH Nizam. The respondents in both the writ petitions are tracing their title through their vendors Naseem Fatima and Saleema Fatima. The sale deeds dated 27 06 '1967 and Deed of Release d,ated 24.06-1967 clearly reflect that the northern boundary of the alleged plots is the platform of a Tomb or platform of ancient monument. The very description of northern boundary shows that the ancient monument is on a platform which is the northern boundary' The docurnents produced by the respondents themselves show that there is certain demarcation of the ancient monument in the form of a platform. When the respondents in W.A'No'1639 of 2OI7 approached civii Court uide O.S.No.3903 of 1986, the burden of proof is on them to prove that the writ appellants have encroached into their land by exceeding the northern boundary platform. There are no such pleadings or frndings' Merely on the &sis of ownership allegedly proven through the registered sale \ deeds emanating from the HtrH Nizam and the subseqrrent vendors, the Civil Court granted perpetual injunction in favour t7 WA.\os.1639 & 1667 ot 2077 of respondents in W.A.No. 1639 of 2OlZ. The suit was fi1ed way back in the vear 1986 seeking perpetual injunction arleging that the u,rit ap1;,,-llant No.l is attempting to dig trenches in the propertJ* of the respondents without title and they di1 not heed to the resistance of the respondents and sintte the s ame is not denied, perpetual injunction was granted.

22. According to the writ appellants, the compounC wall had been in existence for more than 40 years. While so, ac:cording to the responderLts in W.A.No.1639 of 2OlT, the writ appellant No.1 made atteml; ts to dig trenches in the year 19g6. When the respondents cpposed digging of trenches in the vear 1986 when there was no wal1, a question arises as to whv the re spondents did not seek r,:lief to prevent the construction of u,all l.ry the writ appellants aftr:r obtaining the decree of perpetual injunction. In this regard, i.e. construction of compound wall ar.ound the monumenr, the learned Single Judge in his order at paragraph No.38 has helcl as follows: .-he contention in the counter afhdavit filc.d on "38. f7.O4 2072 in W.p.No.138tO of 2OO8 that compounct wail was constructed 40 years back, is a false cont€ntion because , if so, it should have been constructed bv t972 Hor.r'er e:', in the written statement hled by thr: 1"t respondent in O.S.No.39O3 of 19g6, no such pleadingl was 18 WA.Nos.1639 & 1661of 2O'17 (-t raised. It was only stated. that it was looking a'fter t-lle suit area with the help of servants by erecting boundary stones and by putting sigr boards- If the compound wall had been in existence sitce 1972, the 1s respondent as defendant in the suit O.S.No.39O3 of 1986, would not have omitted to mention it in the wdtten statement' In fact in the said suit' it was clearly held that the "Raymond;s Otrelisk" was not located in the land claimed by the petitioners/plaintiffs therein. Thus it is clear that after the decision of the Civil court, the l"t respondent built the compound wall in gross violation of the perpetual injunction granted by the Court and the land belongrng to the petitioners was grabbed highhandedly by it. Such conduct of the l"t respondent' a Government Department, is to be strongly deprecated and cannot be countenanced".

23. The above frn<ling shows that the learned Single Judge heldthatthecontentionofthewritappellantsthatthe compound wall was constructed 40 years back is a false contention on the premise that the written statement frled by respondent No.1 in O.S.No.3903 of 1986 has no such pleadings' In this context, it is pertinent to note that existence or non- existenceofawallhastobeprovenbytherespondentsin W.A.No. 1639 of 2Ol7 who have approached the Civil Court vide O.S.No.39O3 of 1986, but not writ appellants' There is an erroneous presumption that in case, the vvall existed' the same would have been mentioned in the written statement' Further' it I I t I I i I l i I 19 WA.\os.1639 & 1667 of 2O17 is held that t1e monument ,,Raymond,s Obelisk,, was not located in the land (r aimed by the respondents. In case, th€ salne was true, the respondents herein would have no ground to seek demoiitiorr o' the compound wall.

24. There is a hnding to the effect that the r.r.rit appellant No.1 has bu:lt the compound wall in gross violatjon of the perpetual irjunction granted by the Court and the land belonging to the respondents was highhardedly gr.abbed by appeilant No . The said frnding does not stand to sc:rutiny for the simple reason that when the respondents in W.A.No.1639 of 2Ol7 approa,:hed the civii Court for remedy in the vear 1986 when trenchr:s were dug, nothing prevented them from approaching rt civil Court or the writ Court seeking appropriate relief, in case, lhe compound wall was highhandedlv constructed at any point of time, in the interim bet\4,een 1986 and 2008. 25 There is a hnding given by the learned Single Judge with respect to ext.?nt of the land covered by the monr,rment as follows at parzqJraph No.39 of the impugned order : "39. Also in the suit, the 1st respondent had claimed that only Ac ll-OO cents had been given to the Archaeolcgical Department for protection of the satd monument. But now, it is contending in the counter affidavits that Ac 7_2g 20 WA.Nos.1539 & 1661 oI 2Ol7 guntas is covered by compound wall Neither for the Ac 3-OO guntas nor fot Ac 7 -28 guntas, is any scrap of paper frled by the 1st respondent to show that it was allotted to it by any authority. Thus it is not acting bonafrde' It's action is highhanded ald amounts to land grabbing without any right, title or interest therein".

26. The learned Single Judge erroneously held that the appellant No.1 claimed Ac'3-OO cents was given to it (Archaeological Department) for protection of the monument' but is claimin g Ac.7 28 gts. as being covered by compound wall while {iling counter in the writ petitions' The Town Survey Land Records (TSLR) shows that the land belonging to the monument is to al extent of 3.73 hectares and 36 sqlrare meters' Said extent when converted into acres would be Ac'7 -28 gts' approximately. Therefore, we are of the considered opinion that the learned. Single Judge erred in his assessment of extent of landwithintheconfinesofthecompoundwallsurroundingthe monument for the past 40 years due to error in reading the extent of monument as mentioned in TSLR'

27. Learned senior counsel for the respondents in W.A.No.1639 of 2Ol7 has placed reliance on Hyderabad Potteries hft. Ltd. (11 supra) to contend that entries made in TSLR cannot be presumed to be true' Assuming for a moment \ I t 2l WA.Nos.1639 & 7667 of 2017 that the entries in TSLR are not true, the fact remains that Ac.7- 28 gts. of 1anrl is covered by a compound wa11.

24. The curden of proof is clearly on the pa.rty which approaches -he Court seeking relief either before the Civil Court or the Writ (irurt. The respondents in the writ appeals ought to have filed a civil suit for identification of their property arld demolition ol the compound wa,ll. Alternatively, rvhen they approached the Writ Court seeking to demolish the compound wall of an ancient monument, the respondents ouglrt to have fi1ed conclusi.,re documentary proof as to when the compound wa-ll came into existence and that their lancl is encroached. Instead, the lr:spondents have sought relief of Writ of \{andamus to direct the writ appellant No.2 to survey the land and fix boundaries €rs; per orders of the p.A. to Collector, ilyderabad District in llo.B2/392/78, dt. 14.08.198O as conhrmed in Commissioner, Survey Settlement Land Records. Andhra Pradesh, t yderabad, in Revision petition Case No.R.O.R./12!)0/80 dt. 14.O9.1981. The prayer sought by the respondents squarely attracts the legal ratio laid dou.n by this Court in W..A.No.484 of 2Ol7 i.e. material cluestions which I 22 WA.Nos.1539 & 1661of 2017 require examination of evidence and documents cannot be decided in a writ Petltlon

29. The very fact that the respondents in the writ petition have sought survey of the lar,d for the purpose of hxing boundaries shows that they do not have any poof as to location of their land on ground, more particularly, within confrnes of the compound wall of the ancient momrment' In this context' it is also pertinent to note that the learned Single Judge exceeded the prayer of the respondents who have sought survey of land for the purpose of hxing boundaries and consequently sought demolition of compound wall- Wtrile so, the learned Single Judge without ordering survey has given a direction to demolish the compound wa1l. The learned Single Judge failed to consider the fact that the respondents in both the writ appeals did not produce any documentary proof as to the location of their plots within compound wall of the monument to seek demolition' In the absence of documentary evidence to show the exact location of the plots of the respondents, it is not possible to take up demolition of compound wall as there are no details as to the direction and location of the plots covered by the monument' 23 WA.\os.1639 & 1661 of 2017

30. For tre foregoing reasons, as per legal ratio ie.id clown iri Roma Sonkar, when the correctness or otherwise of the order passed bv the learned Single Judge is examined, we are of the considered opinion that the order passed by the lear.ned Single Judge is erroneous on three counts of non_existence of compound u all for 4O years, its construction in violation of the judgment passed by the Civil Court in O.S.No.39O3 ot- 1986 and order to demc,iish the compound wall by exceeding the prayer of survev soughl by the respondents in both the u.rit appeals.

31. Thus, both the Writ Appea_ls are allou,ed and the impugned c,l mmon order of the learned Single Judge in W.P.Nos.138t,l alld 16T54 of 2OO8, dated 07.03.2()17 is set aside. Howevr:r, this judgment will not come in tl re rvay of respondents -o avail the remedy available under the civ raw, if iaw so permits. There sha1l be no order as to costs. As a sequel, Miscelianeous petitions, pendir rg if any, stand disposec of. //TRUE COPY// SD/-K. SRINIVASA RAO OINT REGISTRAR ECTION OFFICER The Director, State Archeological Museums, Government of Telangana, (Previously shown as Goven.nent of Andhra Pradesh), Gunfoundry, Hyderabad. i6e Commissioner, Survey and Land Recirrds Settlemi:nt, Government of Telangana (Previouslv shown as Govi;rnment of Andhra Pradesh), Hyderabad ine Secti'on Offirer, Posting Section, High Court ior the State ')f Telangana at Hyderabad. Tlie Section Officer, Writ Non-service Section, High Court for the State of Telangana at Hvderabad. One'CC to SRI K PRADEEP REDDY, Advocate [OPUC] One CC to M/s. BHARADWAJ ASSOCIATES, Advocate [OPUC] Two CCs to ADVOCATE GENERAL, High Court for the State rf Telangana at Hyderabad [OU! Two CD Copies To, 1 2 J 4 5 b 7 8 BS BSw HIGH COURT DATED: 2110312025 .3- 3lA , :.::\ ) - . - 'le'lq 11 t" t"', COMMON JUDGMENT t WA.Nos.1639 and 1G61 ot 2017 '( ( \ ) ll / ALLOWING BOTH THE WRIT APPEALS, WITHOUT COSTS (