Andhra HC (Pre-Telangana)
Waheedunnisa Begum (Died) Per Lrs. vs Municipal Corporation Of Hyderabad And ... on 19 September, 2006
Equivalent citations: 2007(2)ALD564, 2007(4)ALT689
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. These second appeals are filed by the same appellant and against, almost the same parties. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties are referred to, as arrayed in Second Appeal No. 646 of 1994.
2. The genesis of the dispute is as under:
3. The sole appellant died and her legal representatives are brought on record. Respondents 1 and 2 are two Temples, through Idol and Deity; Respondent No. 3 is a Priest; Respondent Nos. 4 to 7 are devotees of the said Temples; Respondent No. 8 is the A.P. Housing Board, and Respondent No. 9 is the Municipal Corporation of Hyderabad.
4. The appellant is an allottee of City Improvement Board Quarters at Agahpura, where the Temples are also located. The 8th respondent executed a sale deed in favour of the appellant, in respect of the quarters, as well as the adjoining land. The 9th respondent accorded permission for undertaking construction in the open place also.
5. The Respondents 1 to 7 filed O.S. No. 165 of 1983 in the Court of VI Assistant Judge, City Civil Court, Hyderabad, for the relief of cancellation of the sale deed in favour of the appellant, insofar as it relates to a lane, leading to the Temple. They pleaded that, adjoining the Naala, there existed a lane, connecting the Temple with the road, and it was being used as an access, particularly during festival seasons. They alleged that cement road was laid by the Corporation, and when the appellant attempted to dig drenches in it, they prevented. With these and certain other related facts, they prayed for the relief of cancellation of the sale deed, dated 27-11-1980, insofar as it related to the lane.
6. The Municipal Corporation of Hyderabad, the 9th respondent herein, accorded permission to the appellant, on 7-1-1981, enabling her to make construction. Respondents 1 to 3 filed O.S. No. 3975 of 1981, for cancellation of the construction permission.
7. The 9th respondent issued notice dated 10-3-1981, directing the appellant to show cause as to why the permission shall not be cancelled. Assailing the same, the appellant filed O.S. No. 741 of 1982 in the same Court.
8. The appellant pleaded, in all the three suits, that there did not exist any public lane, abutting her site, and the suits filed by the respondents are without any basis. She contended that they do not have locus standi, and that the suits are not maintainable for more reasons than one. The trial Court clubbed all the three suits and recorded common evidence. Through a common judgment dated 28-7-1989, the trial Court decreed O.S. Nos. 3975 of 1981 and 165 of 1983 and dismissed O.S. No. 741 of 1982. Aggrieved thereby, the appellant filed A.S. Nos. 262, 263 and 261 of 1989, respectively, in the Court of Additional Chief Judge-cum-Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad. The appeals were dismissed on 29-7-1994, through a common judgment. Hence, these second appeals.
9. Sri D.V. Sitharam Murthy, earned Counsel for the appellant submits that the suit for cancellation of a sale deed was not maintainable, since it was filed by persons, who are not parties to the document. He contends that as regards the relief of cancellation of construction permission, the trial Court dismissed the suit against the Municipal Corporation, but had erroneously decreed it against the appellant. He further submits that unless the legal or easementary right of the Respondents 1 to 7 vis-a-vis the suit schedule property was declared in a properly constituted suit, it was not open to them, to claim the reliefs in the present set of proceedings. Earned Counsel further points out that the respondents failed to establish that there existed any road, and in that view of the matter, there was no basis for the trial Court in decreeing the suits filed by the Respondents 1 to 7. He contends that the cancellation of the permission, accorded to the appellant, was also without basis.
10. Sri Pratap Narayan Sanghi, earned Counsel for the Respondents 1 to 7, on the other hand, submits that the various documents, placed before the trial Court, clearly demonstrated that there existed a public lane, leading to the Temples, and that the A.P. Housing Board had transferred that portion of the lane, which abuts the house of the appellant, without any basis. He contends that though the Municipal Corporation granted permission for construction, in the said lane, it took steps for cancellation, soon after it realized that there is a road, abutting the lane, He further submits that no question of law arises for consideration in these second appeals, and that under no circumstances, an individual can be permitted to make construction over a public lane.
11. The respondents instituted proceedings in relation to a strip of land, which, according to them, was part of the lane, leading to the Temple. One suit was filed for cancellation of the sale deed, executed by the A.P. Housing Board, and the other was for cancellation of the construction permission, granted by the Municipal Corporation. Appellant, on the other hand, filed a suit assailing the proceedings issued by the Municipal Corporation, for cancellation of the construction permission. The trial Court framed necessary issues, separately in the three suits. In the common evidence that was recorded, Respondents 1 to 7 examined PWs. 1 to 4, and filed Exs. 1 to 22. On behalf of the appellant DWs. 1 to 3 were examined, and Exs.B-1 to B-13 were marked. In addition to that, letters addressed by the Endowment and Police Departments were taken on record as Exs.X-1 to X-4. The suits filed by the Respondents 1 to 7 were decreed and the one filed by the appellant was dismissed. In the appeal, the appellate Court framed the following points, which in turn, reflected the controversy in the three suits:
1. Whether the lower Court committed error in coming to the conclusion that the plaintiffs in O.S. No. 3975/81 were entitled for the declaration that the Permit No. 114/39, dated 7-1-1981 granted by the 1st defendant in favour of 2nd defendant is null and void and the plaintiffs are entitled for consequential injunction and if so, whether A.S. No. 262/89 is liable to be allowed?
2. Whether the lower Court committed error in coming to the conclusion that the plaintiffs in O.S. No. 165/83 were entitled to the relief of cancellation of sale deed dated 27-11-1980 executed by the 1st defendant in favour of 3rd defendant and for mandatory and perpetual injunctions prayed for and if so, whether A.S. No. 263/89 is liable to the allowed?
3. Whether the lower Court committed error in coming to the conclusion that the plaintiff in O.S. No. 741/82 was not entitled to the declaration that the notice under Section 452 of HMC Act dated 15-3-1982 issued by the 1st defendant is illegal and void and the plaintiff is not entitled for permanent injunction and if so, whether A.S. No. 261/89 is liable to be allowed?
All the points were answered against the appellant.
12. Though the earned Counsel for the appellant had made detailed submissions, touching upon the various aspects, by and large they revolve around the same points, that were framed by the lower appellate Court, and second appeals need to be examined from the same angle. It would be better, that the second point is taken up first, for discussion; this relates to the cancellation of the sale deed, dated 27-11-1980. For all practical purposes, it can be said that the suit was filed with a view to vindicate the rights, in respect of a place, which, according to the Respondents 1 to 7 was a public lane. By seeking cancellation of the sale deed, they did not intend to secure any portion of the subject-matter of the sale deed, for themselves. Therefore, the fact that Respondents 1 to 7 were not parties to the document, does not disentitle them from maintaining the suit. The principal question would be, as to whether the sale deed covered any portion of land, which is earmarked as a public land. The burden in this regard, is squarely upon the Respondents 1 to 7. In case, it is established that the sale deed covered any public lane, that portion of the sale deed, which related to the lane; has to be set aside.
13. The Temple was existing since last several decades, if not centuries. Exs.A-1 to A-3 are the documents, issued by the concerned authorities, recognizing their existence, etc. With a view to depict the situation on the ground, a sketch, marked as Ex.A-4 was filed on behalf of the Respondents 1 to 7. Since it was prepared by one of the parties to the suit, its authenticity cannot be conclusive.
14. Ex.A-5 is the certified copy of a town survey map, and Ex.A-6 is the certified copy of town survey register. A perusal of these plans clearly discloses that a lane existed, between the house of the appellant, on the one hand, and the Naala; and this road led to the Temple. Under Section 83 of the Evidence Act, the plans or maps, furnished by the Government authorities, carry with them, strong presumption as to their genuinity and validity. The expression used is "shall presume". Section 79 attaches similar presumption to Ex.A-6. It was open to the appellant to disprove the correctness or accuracy of Exs.A-5 and A-6. No steps were taken in this direction. Not even a suggestion was made to the concerned witness, to the effect that the lane shown therein, passing in between the Naala and the house of the appellant, is not the one, which connects Temple.
15. Once it has emerged that a public road existed in front of the house of the appellant, there was no basis for any authority, including the Housing Board, to transfer the portion of the lane in favour of the appellant, or any other person. One does not have to search for detailed provisions, or authoritative precedents, in support of the proposition, that neither any private individual nor any Government authority can transfer, a public lane, earmarked and shown in public records, maintained under the relevant statutes. Therefore, the view taken by the Courts below, in this regard, does not warrant any interference.
16. Point No. 1 relates to the relief of cancellation of Permit No. 114/39, dated 7-1-1981, issued in favour of the appellant, enabling her to construct on the disputed site. On finding that the permission was accorded to construct upon a public lane, the trial Court granted the relief.
17. It is no doubt true that the trial Court dismissed O.S. No. 3975 of 1981 against the Municipal Corporation, on the ground that the plaintiffs therein did not serve a notice to the Municipal Corporation, before filing the suit, and decreed the suit against the appellant. Though it may appear to be somewhat extraordinary at the first blush, on a careful analysis, it would become evident that the grievance of the respondents was more against the appellant, in the matter of undertaking construction, than against the Corporation. The fact that the suit was dismissed against the Corporation, on a technical ground; does not have the effect of condoning the flagrant violation in the matter of construction over a public lane. While the Corporation was the author of the permission, the appellant was the immediate beneficiary under it. The dismissal of the suit against the Corporation, on a technical ground, does not disable the trial Court from examining the legality of the permission. Even if the permission was otherwise found to be illegal, it cannot be permitted to be used as a devise, to undertake construction upon a public lane.
18. The third issue is almost, the other facet of Issue No. 1. The relief, which was sought by the respondents, against the Corporation, had virtually stood granted, with the initiation of proceedings for cancellation of the permission, which related to the construction on the public lane.
19. This Court does not find any basis to interfere with the concurrent findings of fact recorded by the Courts below. The second appeals are accordingly dismissed. There shall be no order as to costs.