Telangana High Court
Dist.Collector,Hyd And Another vs R.Ramachandra Rao on 9 June, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr.JUSTICE G.RADHA RANI
CITY CIVIL COURT APPEAL No.78 of 2002
JUDGMENT:
This appeal is filed by the appellants-defendants aggrieved by the judgment and decree dated 10.04.2000 passed in O.S. No.1828 of 1997 by the II Senior Civil Judge, City Civil Court, Hyderabad.
2. The respondent is the plaintiff.
3. For the sake of convenience, the parties are hereinafter referred as arrayed before the trial court.
4. The plaintiff filed the suit to declare the notice in File No.C/2601/1997 dated 07.07.1997 issued by the office of the Mandal Revenue Officer, Himayathnagar Mandal, Hyderabad (defendant No.2) as null and void, that the plaintiff was the absolute title holder of the suit schedule property and consequently to grant perpetual injunction to restrain the defendant Nos.1 and 2 from interfering with his possession over the suit schedule property i.e. open land covered by four rooms within the compound bearing Municipal No.3-2-592 situated at Rahamathbagh, Chappal Bazar, Kachiguda, Hyderabad.
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5. The plaintiff contended that he was the owner and possessor of the above suit schedule property. He purchased two houses bearing Nos.3-2-523 and 3-2-592 under a registered sale deed bearing document No.193/1988 dated 01.02.1988 from Smt. Ummahani Khusroo Banu for a consideration of Rs.48,000/-. The said Ummahani Khusroo Banu became owner of the house bearingNo.3-2-523 and 3-2-592 by virtue of a oral gift by delivery of possession from her son Abdul Basit Ansari, which was confirmed by the Memorandum of Confirmation dated 05.01.1981 notarized on the said date. The said Basit Ansari was unmarried and died leaving behind him his mother Smt. Ummahani Khusroo Banu W/o. Late Sri Abdul Ghani Ansari Khusroo Shah Nizami, who was the legal heir of her son Basit Ansari. The said Basit Anasari purchased the house bearing No.3-2-523 and 3-2-592 under registered sale deed executed by Gaddam Kista Reddy vide document No.3032/1962 dated 21.11.1962 of Joint Sub- Registrar, Hyderabad. The said Gaddam Kista Reddy purchased house bearing No.3-2-523 and 3-2-592 through registered sale deed document No.484/1960 dated 04.03.1960 from Fah-E-Rasool Khan. Fah-E-Rasool Khan was in possession and enjoyment of the house bearing No.3-2-592 before the sale in 1960. Thus, the plaintiff and his predecessors in title had been in possession and occupation of the land covered by four rooms within the compound of house bearing No.3-2-592 for more than 37 years. 3
Dr.GRR,J CCCA No.78 of 2002 The plaintiff demolished the four rooms within the compound bearing Municipal No.3-2-592 with a view to construct a new house and obtained permission from MCH by removing the existing building in permit No.193/48 for house bearing No.523 and 592/3/85 dated 30.06.1988. The plaintiff demolished the four rooms existing in the compound, but due to lack of funds could not make construction of house or building in the land bearing Municipal No.3-2-592. The plaintiff paid the property tax to the house bearing No.3-2-523 and 3-2-592 which were adjacent to each other. Thus, the plaintiff and his predecessors in title had become the owner and possessor of the land covered by four rooms within the compound bearing Municipal No.3-2-592 for more than 37 years and acquired title to the said property. There was a prescription of possession backwards under Section 114 of the Evidence Act. The open land covered by four rooms within the compound bearing Municipal No.3-2-592 was not a government land in Town Survey No.56, Abadi. Even otherwise, the plaintiff acquired title to the suit property by being in possession for more than 37 years by adverse possession and the title of Government if any was extinguished by operation of law under Section 27 read with Article 112 of the Limitation Act, 1963.
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6. The Plaintiff submitted that the second defendant issued a notice under Section 7 of A.P. Land Encroachment Act, 1905 in File No.C/2601, 1997 dated 07.07.1997 in respect of the suit property. The plaintiff submitted an explanation on 21.07.1997 denying the title of the Government and asserting title in himself by virtue of registered sale deed bearing document No.193/1988 dated 01.0.1988 and registered sale deed document No.3032 dated 21.11.1962 referred above. Therefore, the defendant Nos.1 and 2 had no jurisdiction to initiate proceedings under the provisions of A.P. Land Encroachment Act and it was for the defendants to approach the Civil Court to establish the title of the Government. Therefore, the notice issued by the second defendant on 07.07.1997 and the proceeding initiated by the defendant No.2 under A.P.Land Encroachment Act were not maintainable in the eye of law. The Government or the defendant Nos.1 and 2 could not decide such questions unilaterally in its favour and could not try to evict the plaintiff from the suit property. The defendant Nos.1 and 2 were trying to interfere with the possession and enjoyment of the plaintiff over the suit property and threatening to dispossess the plaintiff from the suit property. In view of the urgency, the plaintiff prayed to dispense with the notice under Section 80 of CPC and filed the suit.
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7. The defendant No.2 filed written statement which was adopted by the defendant No.1. The defendant No.2 contended that the plaintiff was not entitled to seek declaration of notice in File No.C/2601/97 dated 07.07.1997 as null and void, as final orders had been passed by the authorities on 26.07.1997 and if there was any grievance, the plaintiff was entitled to prefer appeal under A.P. Land Encroachment Act. The plaintiff did not issue notice under Section 80 of CPC which was mandatory. As such, the suit was not maintainable. The defendant No.2 also contended that the plaintiff was claiming injunction without seeking the relief of declaration of title, as such, the suit was not maintainable on that ground also. The defendant No.2 contended that the suit schedule land was situated in T.S.No.56, Ward-191, Block No.1 to an extent of 109 sq. mts., of Lingampally Village and the same was government land. Between 1965 and 1970 final notification was issued under Section 13 of the A.P. Survey and Boundaries Act and the same was notified in A.P. Gazette during 1979. As such, the survey report and TSL Records became conclusive proof of ownership, since no suit was filed by the predecessors in title of plaintiff within three years from the date of Gazette Notification as contemplated under Section 14 of the A.P. Survey and Boundaries Act, 1923. Thus, the said survey became final and the boundaries and title of ownership shown therein were conclusive proof. Neither the plaintiff nor 6 Dr.GRR,J CCCA No.78 of 2002 his alleged predecessors in title had ever raised an objection to the said survey. Mere payment of taxes to MCH or approval of layout or permission by MCH, would not confirm any right or title to the plaintiff on the government land.
8. The defendants further contended that during the inspection of Government lands, it was noticed that the plaintiff had encroached the suit schedule land and accordingly, action under A.P. Land Encroachment had been initiated against the plaintiff and a notice under Section 7 was issued on 07.07.1997. The plaintiff submitted his reply. The defendant after verifying the documents filed by the plaintiff with the revenue, survey and settlement records, found that the said documents filed by the plaintiff had no relevance or connection with the suit schedule land, which was a government land. Therefore, speaking orders were passed by the defendant rejecting the claim of the plaintiff on 26.07.1997. Subsequently, thereafter a notice under Section 6 of the Act was issued authorizing the Mandal Revenue Inspector to take over possession of the land. When the plaintiff refused to take notice and resisted delivery of possession of land, the Mandal Revenue Inspector served notice as required under law and taken over possession of the land of an extent of 109 Sq. Mtrs in T.S.No.56, Ward-191, Block-I situated in Lingampally village on 28.07.1997. 7
Dr.GRR,J CCCA No.78 of 2002 Subsequently, thereafter the District Collector, Hyderabad allotted the said land to the District Educational Officer for construction of Government Upper Primary School, Chowdi Nanamia vide Proceedings No. C3/7244/97 dated 10.10.1997 and accordingly possession of the said land was handed over to the representative of D.E.O., duly conducting Panchanama on 13.10.1997. The plaintiff was never in possession of the suit schedule land. The suit schedule land was a Government land and the Government was in possession when the suit was filed, and prayed to dismiss the suit with costs.
9. Basing on the said pleadings, the trial court framed the issues as follows:
1. Whether the plaintiff is entitled for the relief of declaration as well as injunction as prayed for?
2. Whether the suit is bad for non-issuance of notice as required under Section 80 of CPC?
3. To what relief?
10. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A14. A neighbouring person in the locality was examined as PW.2. The MRO of Himayathnagar was examined as DW.1 and Exs.B1 to B10 were marked on behalf of the defendants. The Inspector of Survey in 8 Dr.GRR,J CCCA No.78 of 2002 the office of the Deputy Director of Survey and Land Records, Hyderabad was examined as DW.2.
11. On considering the oral and documentary evidence on record, the trial court i.e. the II Senior Civil Judge, City Civil Court, Hyderabad, decreed the suit. Aggrieved by the said judgment and decree dated 10.04.2000, the defendants preferred this appeal.
12. Heard Sri G. Tirupathi Reddy, learned Government Pleader for appeals for the appellants and Sri B.Ravi Kiran Rao, learned Senior Counsel for the respondent-plaintiff.
13. Learned Government Pleader for appeals contended that the trial court committed an error in giving a finding that the respondent- plaintiff or his predecessors in title had perfected their right by way of adverse possession without framing an issue or evidence let in the said regard. As per the plaint, the plaintiff mentioned that there were two house numbers 3-3-592 and 3-2-523 and that they together constituted 109 sq. yds. The schedule was not properly shown. The boundaries were shown in respect of the total 190 sq. yds., but not 109 sq. yds. As per the schedule of the property shown in Ex.A1 sale deed, it was 190 sq. yds., but not 109 sq. yds. The boundaries were shown separately for the two houses in the 9 Dr.GRR,J CCCA No.78 of 2002 link document Ex.A3. But in the present suit, the boundaries were shown in respect of the total 190 sq. yds. When the description of the property was not correct the plaintiff could not maintain the suit for declaration of title.
14. He further contended that, in his cross-examination PW.1 admitted that he demolished the existing house, as such, the suit schedule property must be an open land, but the plaintiff was claiming that it was house with a compound wall. In Ex.A1 sale deed, it was shown as an open land. As such, the plaintiff purchased an open land. His contention that he demolished the houses was false. The plaintiff failed to establish the identification of the property with boundaries. The plaintiff filed Ex.A6 to A10 receipts showing payment of property tax to MCH. But, there was no question of payment of tax to open land. A notice was issued under Section 7 of the Land Encroachment Act to the plaintiff under Ex.B1 on 07.07.1997 and an order was passed under Section 6 of the Land encroachment Act under Ex.B2 on 26.07.1997. The possession was taken under panchanama marked under Ex.B3 and a gazette notification was also issued under Ex.B9 on 28.02.1977. The same became final. The suit has to be filed within three years from the date of notification by the aggrieved party. As such, the suit was barred by limitation. The plaintiff was 10 Dr.GRR,J CCCA No.78 of 2002 claiming title and alternatively adverse possession, which were contradictory claims. No document was filed by him to show that he was in possession of the property for more than 30 years. As such, the claim of adverse possession was not maintainable. As the plaintiff admitted that he demolished the existing house and no new house was constructed by him after demolition, he could not file the suit showing it as four rooms. The observation of the trial court that the plaintiff was in occupation of two houses with appurtenant land thereto was against the admission made by him in his cross-examination. All the tax receipts filed by him were prior to 1999 but, did not pertain to the date of filing of the suit. The plaintiff failed to prove that he was in possession of the suit schedule property and prayed to allow the appeal by setting aside the judgment of the trial court.
15. The learned Senior Counsel for the respondent-plaintiff, on the other hand, contended that there was no pleading and evidence with regard to the arguments advanced by the learned Government Pleader for Appeals with regard to boundaries, location of the property etc. The plaintiff purchased the property through registered sale deeds and also filed link documents of his vendors. All his vendors were also in possession of the suit schedule property prior to him. The plaintiff purchased the suit schedule property in the year 1988. Notice was issued to the plaintiff 11 Dr.GRR,J CCCA No.78 of 2002 under the Land Encroachment Act in the year 1997. The trial court considering the evidence on record, observed that the plaintiff was a bonafide purchaser and that he was also residing as a tenant in the suit schedule property prior to his purchase. He further contended that no enquiry was conducted by the MRO. After issuing notice, under Section 7 of the Land Encroachment Act, dated 07.07.1997, the plaintiff submitted his title deeds as well as the title deeds of his vendors, but without considering them properly, an order was passed under Section 6 of the Act on 26.07.1997 under Ex.B2. Panchanama proceedings were conducted under Ex.B3 recording that possession was taken over on 28.07.1997. Under the Land Encroachment Act, a right of appeal over the proceedings of the MRO was provided to the RDO. Thirty (30) days time was prescribed under the Act for preferring the appeal. But, without even waiting for 30 days, possession was taken over within two days after passing the order under Ex.A2 on 26.07.1997. Mere conducting Town survey would not confer title on the Government. The Government failed to prove its title and failed to follow the procedure for taking possession. If the suit schedule property was a government land, there would be prohibition for registration, but the Registrar had not raised any objection for registering the sale deeds. Ex.B1 notice also would describe the land as G-Abadi and nature of occupation as open with compound wall. When a 12 Dr.GRR,J CCCA No.78 of 2002 compound wall was there, it would denote that it was in possession of some person. The respondent-plaintiff was a bonafide purchaser and his title and possession was rightly recognized by the trial court and relied upon the judgments of the Hon'ble Apex Court in Government of Andhra Pradesh v. Thummala Krishna Rao and another 1 on the aspect that the summary remedy prescribed by Section 6 is not the kind of legal process which was suited to an adjudication of complicated questions of title.
15.1. He further relied upon the judgment of the High Court of A.P. in Hyderabad Potteries Private Limited v. Collector, Hyderabad District and another 2 on the aspect that there was no presumption that every entry made in TSLR shall be presumed to be proved until contrary was proved, as in the case of entries made in the Record of Rights under the provisions of the A.P. Record of Rights in Land Act, 1971.
15.2. He further relied upon the judgment of the High Court of A.P. in State of A.P. and others v. Singam Setty Yellananda 3 on the ground that issuance of notice under Section 80 (2) of the Code of Civil Procedure could be dispensed with on the ground of urgency.
1 AIR 1982 SC 1081 2 2001 (3) ALT 200 3 AIR 2003 AP 182 13 Dr.GRR,J CCCA No.78 of 2002 15.3. He further relied upon the judgment of the High Court of A.P. in S. Vasantha and another v. District Collector, Hyderabad District, Hyderabad4 on the aspect that the summary remedy under the Land Encroachment Act, 1905 could not be invoked when the parties were in settled possession of the property in question for a longtime.
15.4. He further relied upon the judgment of the High Court of A.P. in B. N. Manga Devi and another v. State of Andhra Pradesh 5 on the aspect that remedy under Section 6 of the Land Encroachment Act, 1905 could not be resorted to unless the alleged encroachment was of a recent origin.
15.5. He further relied upon a judgment of the High Court of A.P. in G. Satyanarayana v. Government of A.P. and others 6 on the aspect that issuance of proceedings based only on entry in TSL Records would not constitute conclusive proof of title.
16. Basing on the arguments advanced by both the learned counsel, now the points that arise for consideration in this appeal are:
(1) Whether the notice issued by the defendant No.2 to the plaintiff vide File No.C/2601 of 1997, dated 07.07.1997 can be declared as null and void, and whether the 4 2007 (1) ALD 692 5 2011 (6) ALD 283 6 2014 (4) ALD 358 14 Dr.GRR,J CCCA No.78 of 2002 plaintiff is entitled to be granted consequential perpetual injunction against the appellants-defendants?
(2) Whether the trial court committed any error in decreeing the suit in favour of the plaintiff?
(3) To what result?
17. POINT No.1:
In the light of the contentions raised by the learned Government Pleader for Appeals and the learned Senior Counsel for the respondent-
plaintiff, the evidence of the witnesses needs to be looked into. The plaintiff examined himself as PW.1. He stated that he purchased two houses from Smt. Ummahani Khusroo Banu on 01.02.1988 under a registered sale deed document No.193/1988 and that the suit schedule property was bearing premises No.3-2-592 situated at Rahamathbagh, Chappal Bazar, Hyderabad. He stated that his vendor got the suit property under a gift deed (HIBA) executed by Basit Ansari, who was the son of his vendor. The said Basit Ansari purchased the property from his vendor Sri Gaddam Kista Reddy on 04.03.1960 and said Gaddam Kista Reddy inturn purchased the property from Fah-E-Rasool Khan. Ex.A1 was the registered sale deed document through which the plaintiff purchased the property from Smt. Ummahani Khusroo Banu Nizami. Ex.A2 was the memorandum of HIBA dated 05.01.1981 along with its translation. Ex.A3 15 Dr.GRR,J CCCA No.78 of 2002 was the registered sale deed through which Basith Ansari purchased the property from G. Kista Reddy. Ex.A4 was the certified copy of the sale deed through which G. Kista Reddy purchased the property from Fah-E-
Rasool Khan. PW.1 further stated that before he purchased the suit schedule property in the year 1988, he was residing in the suit property as a tenant of Basit Ansari from the year 1972, he used to pay monthly rent of Rs.70/- to the said Basit Ansari. The suit schedule property consisted of four rooms surrounded by compound wall. He stated that the compound wall was in existence since 1960 onwards. The total plinth area of the suit schedule property was 190 sq. yds. He obtained permission from MCH for reconstruction of the house. The said permission dated 30.04.1988 was marked as Ex.A5. Exs.A6 to A10 are the property tax receipts issued by MCH. Notice was issued by defendant No.2 dated 07.07.1997 was marked as Ex.A11. The reply given by the plaintiff to the said notice dated 17.07.1997 was marked as Ex.A12 and the extract from the Tax Assessment Register of the property tax of MCH was marked as Ex.A13.
PW.1 further stated that while he was residing in the suit schedule property, he received notice from the defendant under Ex.A11. He was in occupation of the suit schedule property for the past 37 years. The two houses were located at a combined place. His predecessor in title also resided in the suit schedule property and that they had perfected their title. 16
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18. In his cross-examination, PW.1 stated that notice was issued in respect of 109 sq. yds., of land, but he filed suit seeking declaration in respect of 190 sq. yds., of land with compound wall and house. He also admitted that Ex.A2 plan would show the premises bearing No.3-2-592 as an open land with compound wall. He admitted that in the plan attached to Ex.A4 the open land was not shown. He admitted receipt of notice under Section 6 of the A.P. Land Encroachment Act and that he submitted his explanation within time. He denied that he was evicted by the MRO from the suit property and stated that there was a house existing and that he was continuing residing there.
19. The plaintiff got examined a neighbour, who was residing adjacent to his house, as PW.2. PW.2 stated that he knew the plaintiff since 1972. He was a resident of Chappal Bazar, Hyderabad. His house was third house adjacent to the plaintiff's house. The house of the plaintiff belonged to him, but did not belong to the Government. In the entire area, there was no government land. The plaintiff purchased an old house, dismantled it and constructed a new house.
20. In his cross-examination, PW.2 admitted that he had not seen the documents as to the extent of land purchased by the plaintiff. He stated that there was no government land in front of the house and denied that 17 Dr.GRR,J CCCA No.78 of 2002 there was government land in front of the house of the plaintiff and the plaintiff encroached the same.
21. The MRO, Himayatnagar was examined as DW.1. He stated that the suit land belonged to the government and the same was a vacant land. No municipal number was allotted to it. The extent of the land was 109 sq. meters. It was situated in TS No.56, block No.1, Ward No.191 of Lingampally village. During the regular inspection of Government lands by his predecessors, it was found that the plaintiff encroached the government land and a notice was issued to him under Section 7 of the Act on 07.07.1997 and the plaintiff gave a reply on 17.07.1997. The reply submitted by the plaintiff was not relevant. Therefore, after due enquiry, a final order of eviction was passed under Section 6 of the Land Encroachment Act on 26.07.1997. The plaintiff did not prefer any appeal. They have taken possession of the land on 28.07.1997 under a panchanama and handed over the vacant land to the District Educational Officer for construction of School on 13.10.1997. The notice under Section 7 of the Land Encroachment Act issued to the plaintiff was marked as Ex.B1. The order passed by the MRO under Section 6 of the Land Encroachment Act was marked as Ex.B2. The panchanama for taking over possession from the plaintiff was marked as Ex.B3. The copy of the extract of the Town 18 Dr.GRR,J CCCA No.78 of 2002 Survey Land Register pertaining to Town Survey No.56 was marked as Ex.B4. The sketch plan was marked as Ex.B5 and the proceedings for handing over the schedule property to the DEO dated 13.10.1997 was marked as Ex.B6. The plan enclosed to it was marked as Ex.B7. The notification issued by the Assistant Director of Survey and Land Records dated 30.07.1960 was marked as Ex.B8 and the Gazette Notification dated 28.02.1977 was marked as Ex.B9. Ex.B10 was the plan demarcation sketch.
22. In his cross-examination, DW.1 admitted that during his recent inspection he came to know that there were structures erected over the suit land by the plaintiff and they were contemplating to book a land grabbing case against the plaintiff. He admitted that on the east of the land there was house of the plaintiff. On the northern and southern sides, there were houses and on the western side there was a lane. He stated that the documents filed by the plaintiff were not relevant to the suit site. He admitted that the suit site was a Government Abadi land. He admitted that in Ex.A1 notice the boundaries of the suit property were not disclosed. Ex.B4, the Town survey extract also did not disclose the entire description of the property. The boundary description of the vacant site was not shown in Ex.B4. He admitted that he had not filed the map of the 19 Dr.GRR,J CCCA No.78 of 2002 Lingampally village. He stated that after Town Survey was conducted between the years 1965 to 1970, they were following the Town Survey Land Records. He stated that he had no proof to show that the notices were served to the plaintiff at the time of town survey and added that the Deputy Director of Survey and Land Records would be holding all the records pertaining to the issue of notice. He also admitted that as per the records, the suit land did not have any number and that he did not know whether there were structures and a house therein. He stated that they had no knowledge about Exs.A5 to A13 receipts issued by the MCH. He stated that no objections were filed by the plaintiff within three years of issuing gazette notification as such, the suit schedule property belonged to the Government.
23. The Inspector of Survey from the office of the Deputy Director, Survey and Land Records, Hyderabad was examined as DW.2. He stated that the Town Survey was conducted in the City of Hyderabad during the years 1965-1970. The survey was conducted under the A.P. Survey and Boundaries Act, 1920. During survey, notices were issued under Section 9 (2) of the A.P. Survey Proceedings Act. Lingampally in which the suit property was located, was also covered with town survey. He stated that Ex.B8 was the notification issued under Section 6 of the 20 Dr.GRR,J CCCA No.78 of 2002 Land Encroachment Act and Ex.B9 was the Gazette Notification issued under Section 13 and Ex.B10 was the certified extract of the plotted demarcated sketch prepared by the original Surveyor. As per Ex.B10 (A) there were no structures in the suit land. At the time of Survey, it bears Town Survey No.56 admeasuring 109 sq. meters. They had issued notices under Section 9(2) of the Act. The acknowledgments of the receipts of the notices were preserved with the Central Survey Office, Narayanaguda, Hyderabad. He stated that as per G.O.Ms.No.1039, dated 14.09.1972 all open lands and Abadi lands were treated as Government Lands. As per their records, the suit land was recorded as government land (Government Abadi Land).
24. In his cross examination, he admitted that he had not given any affidavit to show that the suit schedule property was a vacant site. He denied that a building was existing in the suit property since 1937. He admitted that Ex.B10 did not show the extent of any survey number and for the extents, they had to refer to the Town Survey Land Register.
25. Thus, as seen from the evidence of DWs.1 and 2, they were claiming that the suit property was a vacant land, it was part of T.S. No.56. As per G.O.Ms.No.1039, dated 14.09.1972, all open lands and Abadi lands were treated as government lands and as it is a vacant land, they have 21 Dr.GRR,J CCCA No.78 of 2002 issued notice under Section 9(2) of the A.P. Survey Proceedings Act and issued Gazette notification under Section 13 of the said Act.
26. Ex.B9 would only disclose that a detailed town survey of the villages/wards was completed under Section 13 of the A.P. Survey and Boundaries Act, 1923 and unless the survey notified was modified by a decree of civil court under the provisions of Section 14 of the said Act, the records of the survey shall be conclusive proof that the boundaries determined and recorded therein shall be conclusive proof that they were correctly recorded and determined. The village name Lingampally and the Ward Nos.190 and 191 were also mentioned in the said gazette notification. As per DW.1, if anybody had any objections, with regard to the boundaries determined therein, the objections have to be filed within three years of the said notification. As no objections were filed within three years by the plaintiff or his predecessors in title from the date of the gazette notification on 28.02.1977, the said property belonged to the government.
27. The evidence of PW.1 would disclose that he was residing as a tenant of Basit Ansari in the suit schedule property since 1972 and he purchased the same in the year 1988 from the mother of Basit Ansari. Though the evidence of DWs.1 and 2 would disclose that they have issued 22 Dr.GRR,J CCCA No.78 of 2002 notices under Section 9(2) of the A.P. Survey Proceedings Act and the acknowledgments of the receipt of the notices were preserved with the Central Survey Office, Narayanguda, Hyderabad, no proof was filed to show that the notices were served on the plaintiff or his owner Basit Ansari at the time of conducting survey by the department of Survey and land records. Exs.A1 to A4 sale deeds do not disclose the survey number except the house numbers. Ex.A4 registered sale deed document No.484/1964 issued by the office of the District Registrar, Hyderabad is pertaining to the sale of two houses bearing Municipal Nos.3-2-523 and
592. Thus, there were houses existing since 1960 and it was not an open land. DW.2 also stated in his evidence that in the entire area, there was no government land or any open land in front of the house of the plaintiff.
28. The learned Senior Counsel for the respondent-plaintiff also filed a photograph showing the existence of a house in the suit schedule property and that there was no vacant land existing therein. The photograph was dated 23.11.2017. All the registered sale deeds marked under Exs.A1 and A3 also describe the suit schedule property as bearing Municipal No.3-2-523 and 3-2-592 admeasuring 190 sq. yds., consisting of a tiled roof house situated at Rahamath Bagh, Kachiguda, Hyderabad. It 23 Dr.GRR,J CCCA No.78 of 2002 was stated to be comprising of three small rooms, kitchen, bath and lavatory with the tiled roof.
29. The Hon'ble Apex Court in Government of A.P. v.
Thummala Krishna Rao and another (cited supra) held that:
"The summary remedy for eviction which is provided for by S. 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". If there is a bona fide dispute regarding the title of the government to any property, the Government cannot take a unilateral decision in its own favor that the property belongs to it, and on the basis of such decision, take recourse to the summary remedy provided by S. 6 for evicting the person who is in possession of the property under a bona fide claim or title. The summary remedy prescribed by S. 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title."
30. As rightly contended by the learned Senior Counsel for the respondent-plaintiff if the suit schedule property was a government land, the same should have been included under the B-Register of the Sub- Registrar Office prohibiting registrations. But, the Registrar continuing to register the property since 1960 onwards and the MCH granting permissions for construction of houses and collecting taxes shows that the government is not seriously pursuing the matter that it was a government land. No documents are filed by the appellants to show that it was a government property except relying upon the Town Survey and Land Records. The judgment of this Court in Hyderabad Potteries Pvt. Ltd. v. 24
Dr.GRR,J CCCA No.78 of 2002 Collector, Hyderabad District and another (2 supra) would make it clear that:
"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 identification of the lands and fixation of boundaries. There is no provision under the Act intending to make any detail enquiries with 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 presumed to be true until contrary is proved as in the case of entries made in the record of rights under the provisions of A.P. Record of Rights in Land Act, 1971. It is not a record of right. There is no such provision in the Andhra Pradesh Survey and Boundaries Act, 1923.
The question as to the nature and scope of entries in TSLR had fallen for consideration in WA Nos.115 and 160 of 2000 before a Division Bench of this Court. The Division Bench observed that "the entries in TSLR are no doubt relevant. But they are not conclusive. It is common knowledge that there may be many instances where the owners of land in urban areas will not be in a position to correlate the house numbers or ward numbers to the survey numbers or the entries may not be upto date and that may introduce some practical difficulties in obtaining TSLR extracts.....The TSLR cannot be regarded as a sole guiding factor."
31. In S. Vasantha and another v. Collector, Hyderabad District, Hyderabad and another (4 supra) also it was held that:
"When predecessors in title of petitioners and subsequent thereto, the petitioners have been in settled possession of property in question for a longtime, question whether the same is under defective title or not have to be adjudicated upon. Summary remedy under the A.P. Land Encroachment Act, 1905 cannot be invoked."
32. In the present case also, the registered sale deeds filed by the respondent-plaintiff marked under Exs.A1, A3 and A4 would disclose that the respondent-plaintiff and his predecessors in title have been in settled 25 Dr.GRR,J CCCA No.78 of 2002 possession of the property in question for sufficiently a longtime. Whether the same was under a defective title or not, needs to be adjudicated upon and a summary remedy under Section 6 of the Act could not be invoked to evict the respondent-plaintiff.
33. By referring to the judgment of the Hon'ble Apex Court in Government of Andhra Pradesh v. Thummala Krishna Rao, it was held in S. Vasantha and another v. Collector, Hyderabad District, Hyderabad and another that:
"It seems to us clear from these provisions that the summary remedy for eviction which is provided for by section 6 of the Act can be resorted to by the Government only against persons who are in unauthorized occupation of any land which is "the property of Government". In regard to property described in sub- sections (I) and (2) of section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously which can only be done by resorting to the summary remedy provided by the Act. But section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under section 3''. Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government" If there is a bonafide dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad 26 Dr.GRR,J CCCA No.78 of 2002 and whether the Osmania University for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us is impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents.
The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act. The long possession of the respondents and their predecessors- in- title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddin from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily."
34. It was further held therein in the above judgment S. Vasantha and another v. Collector, Hyderabad District, Hyderabad and another that:
"In the decision referred in District Collector Ranga Reddy District, Hyderabad and others v. K. Narasinga Rao and others, the Division Bench of this Court following the ratio of the Apex Court referred in Government of A.P. v. T. Krishna Rao, held at Para 2 as hereunder:
"We have good reasons to agree with the view taken by the learned single Judge that the proceeding under Article 226 of the Constitution of India, is not suited for any 27 Dr.GRR,J CCCA No.78 of 2002 adjudication into the title of any person in a property. We have, however, good reasons to differ with the view taken by the learned single Judge that Section 6 of the Land Encroachment Act is not available to the appellants for removal of the alleged encroachments upon a land, which satisfies the requirements under the A.P. Land Encroachment Act, 1905. Section 6 of the Act states:
"(1) Any person unauthorizedly occupying any land for which he is liable to pay assessment under Section 3 may be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited therein shall also, if not removed by him after such written notice as the Collector, Tahsildar or Deputy Tahsildar may deem reasonable, be liable to forfeiture.
Forfeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct."
This section does not speak either of the duration, short or long, of encroachment and indicate that for the decision whether any person should be summarily evicted rests with the Collector, Tahsildar or Deputy Tahsildar, as the case may be and on the decision of the question in respect of the nature of the property on which the encroachment is alleged to have been committed. What may finally be relevant in such a case in issue is whether some one is in occupation of a property bonafide and whether such possession is exercised by him openly. If such possession is exercised for an appreciable length of time, one can prima facie accept the bonafide of the claim, otherwise, the claim may not be deemed without there being adjudication to be bona fide. In Government of Andhra Pradesh v. T. Krishna Rao, the Supreme Court has said: "If there is a bonafide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bonafide claim or title." In this case, the Supreme Court has also indicated that long possession would raise a genuine dispute between the claimant and the Government on the question of title, but also pointed out: "It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. But 28 Dr.GRR,J CCCA No.78 of 2002 duration of occupation is relevant in the sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law." What thus flows from the above, in our considered view, is that primary concern will be to see whether there is a bona fide claim of title and there are reasonable grounds to prima facie hold that the title to the property is in dispute and as such that a primary (sic. summary) procedure for eviction should be avoided. Adverting to the facts of the case, what is seen is, a series of transactions in respect of the property without, however, any dispute as to the property being under the Court of Wards and an agreement for sale, which has taken to the Civil Court for a specific performance and allegedly decreed by the Court against the alleged vendor of the petitioner-respondents. Constructions are said to have come up, but there is no claim on behalf of the petitioner-respondents that they complied with the requirements of the various provisions of the Hyderabad Municipal Corporation Act. Unauthorised character of the occupation of the land is not displaced by the materials which are brought on the record of the instant proceeding and unauthorised construction is writ large, because provisions of the Hyderabad Municipal Corporation Act are not complied with. Relief, which this Court at such a juncture can grant will be only in the nature of interim injunction leaving the parties to seek their remedy before the appropriate civil Court. Learned single Judge, on the facts as stated above, has chosen to restrain the Government from evicting the petitioner-respondents and /or demolishing constructions by resorting to the summary procedure Under Section 6 of the Act and asked the Government to seek adjudication of title and eviction in the Civil Court. The order, thus, has the effect of making the appellants to resign to the legal acts of the petitioner-respondents of coming up with the constructions upon the land, for which the appellants have a definite and bona fide claim. In our considered view, the best course, on the facts and in the circumstances of the case, would be to leave the dispute for adjudication by the Civil Court without there being any such condition of injunction in favour of the petitioner- respondents, as injunction, if any, can always be granted by the Civil Court if the petitioner-respondents establish a prima facie case and show balance of convenience in their favour."
35. In B.N. Manga Devi v. State of Andhra Pradesh and others (5 supra), this Court held that:
"The entries in Town Survey Land Records itself cannot be considered as conclusive proof of title or lack of it. Entries in TSLR 29 Dr.GRR,J CCCA No.78 of 2002 cannot, therefore, be fountainhead for doubting right, title and interest of any person in respect of any land."
36. Thus, the entries in Town Survey and Land Records cannot be considered as conclusive proof of title and the Government cannot claim title basing only upon the entries in the Town Survey Land Records Register and cannot seek eviction of the respondent-plaintiff by seeking a summary procedure under Section 6 of the Land Encroachment Act, 1905. The government cannot decide such question unilaterally in its favour and evict any person summarily on the basis of such decisions. Duration of occupation was also relevant in the sense that a person who is in occupation for a property openly for a considerable length of time can be prima facie considered as having a bonafide claim over the property.
37. The High Court of A.P. in G. Satyanarayana v.
Government of India and others (6 supra) also held that "The petitioners have claimed ownership of the land in respect of a common property based on a compromise decree passed in O.S.No.1420/1983. The petitioners have traced their title through their grandmother late Sultan Khatoon who has purchased an extent of 23445 sq. mtrs. of land under registered sale deed 932 of 1336 Fasli (1926). In O.S.No.1420/1983, compromise decree dated 2-12- 1983, was obtained by the petitioners whereunder the property was partitioned between them. The proceedings under the 1905 Act were initiated only based on the entry in the TSLR describing the land as G-Abadi. In the counter-affidavit, the respondents have not denied the existence of registered sale deed under which the petitioners grand mother has purchased the property as far back as the year 1926. 30
Dr.GRR,J CCCA No.78 of 2002 They have also not disputed the plea of the petitioners that for almost 90 years, their family has been in possession of the property. The long standing uninterrupted possession of the petitioners family raises a reasonable presumption that the property in question is a private property and the same does not belong to the Government. Such a presumption can be displaced by the Government only in a properly constituted civil proceeding. On these undisputed facts of the case, the ratio in the Judgment of the Supreme Court in Tummala Krishna Rao (1-supra) squarely applies. The respondents cannot therefore resort to summary proceedings of eviction under the provisions of the 1905 Act as there is a bona fide dispute relating to ownership of the land. Following the dicta laid down in Tummala Krishna Rao (1- supra) and the finding rendered by this Court on Point No.4, the only option left with the respondents is to file a civil suit. The impugned proceedings are therefore liable to be quashed with liberty to the respondents to approach the competent Civil Court. W.P.No.27589/2013: From the uncontroverted facts recorded in the earlier part of the Judgment, it is evident that the only ground on which eviction proceedings under the 1905 Act have been issued is that the land is recorded as G-Abadi in the TSLR. The respondents have not denied the genesis of the petitioners title. There are as many as four registered sale transactions commencing from 17-6-1959. The property was also the subject matter of O.S.No.555/1985 wherein a decree was passed on 26-9-1995 in favour of Satyamma and her husband, the predecessors-in-title of the petitioners. The long standing possession of the predecessors-in-title of the petitioners, at least from the year 1959, is not disputed by the respondents. In view of the finding on Point No.4, the respondents cannot initiate eviction proceedings under the provisions of 1905 Act only based on the entry in the TSLR describing the land as G-Abadi. The impugned proceedings are liable to be quashed, however, with liberty to the respondents to approach the competent Civil Court for declaration of title of the Government over the land in question."
38. The longstanding uninterrupted possession of the respondent- plaintiff raises reasonable presumption that the property does not belong to the government. Such a presumption can be displaced by the Government only by adducing proper evidence in proof of its title. The appellants cannot resort to the summary proceedings of eviction under the provisions 31 Dr.GRR,J CCCA No.78 of 2002 of 1905 Act. As such, the notice issued by the defendant Nos.1 and 2 to the plaintiff vide File No.C-2601/1997, dated 07.07.1997 can be declared as null and void. In view of the longstanding possession of the plaintiff established by him through the documents marked under Exs.A1, A3 and A4, the registered sale deeds as well as Municipal Tax receipts filed by him marked under Exs.A5 to A10, the plaintiff is entitled to be granted consequential perpetual injunction against the appellants-defendants.
39. With regard to the contention of the defendant that notice under Section 80 of CPC was not issued to him before filing the suit, the trial court observed that at the time of filing of the suit, the plaintiff also filed a separate petition to dispense with the issuance of notice under Section 80 of CPC and that the said petition was allowed and the plaintiff was permitted to file the suit dispensing with issuance of notice under Section 80 of CPC in view of the urgency pleaded by the plaintiff.
40. In view of the leave granted by the court without service of notice under Section 80 of CPC, it was held that the suit is maintainable. This Court does not find any illegality in the order of the trial court in making the said observation. The judgment of the High Court of A.P. in State of A.P. and others v. Singamsetty Yellananda (3 supra) also confirms the same.
32
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41. As such, point No.1 is answered accordingly in favour of the respondent-plaintiff as against the appellants-defendants.
42. POINT No.2:
In view of the ratio of the judgments as extracted above and the evidence of the witnesses and the documents which were showing the longstanding possession of the plaintiff, the trial court had not committed any error in decreeing the suit in favour of the plaintiff.
43. POINT No.3:
In the result, the appeal is dismissed confirming the judgment and decree dated 10.04.2003 passed in O.S .No.1828 of 1997 by the learned II Senior Civil Judge, City Civil Court, Hyderabad. No costs.
Miscellaneous Applications pending, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date:09.06.2025 KTL