Telangana High Court
M/S. K.M.R.Estates And Builders Pvt. ... vs Mandal Revenue Officer/Tahsildhar, on 20 March, 2025
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.188 of 2024
JUDGMENT:
This appeal suit is filed against the Judgment and decree dated 05.10.2020 in O.S.No.212 of 2013, passed by the learned Special Sessions Judge for trial of cases under SC/ST (POA) Act
- cum - VII - Additional District Judge, at L.B.Nagar, Ranga Reddy District.
2. The suit vide O.S.No.212 of 2013 was filed by the appellant/plaintiff seeking perpetual injunction restraining the respondents/defendants from interfering with their peaceful possession and enjoyment of the suit schedule property. P.W.1 was examined on behalf of the appellant/plaintiff and got marked Exs.A1 to A42 on their behalf and D.W.1 was examined on behalf of the respondents/defendants and got marked Exs.B1 to B4 on their behalf. The trial Court, after considering the evidence on record and arguments of both sides, dismissed the suit. Aggrieved by the said Judgment and decree, appellant/plaintiff preferred the present appeal.
3. The examination of the pleadings of the parties and both documentary and oral evidence on record and also the 2 submission made by the counsel for the appellant and respondents and appreciation of the evidence shows that one B.Lingamma was the original pattedar and possessor of the land in Sy.Nos. 1 to 5, 7, 8, 12, 72, 74, 75, 78, 98, 99, 101, 102, 111, 126, 82, 31, 41, 39, 69, 103, 106, 113, 70, and part of 23 of Gachibowli Village, Serilingampally Mandal, Rangareddy District. The said B.Lingamma filed a declaration under Section 6(1) of the provisions of Urban Land Ceiling and Regulation Act and the same was dealt with by the special officer, ULC, Hyderabad and after enquiry orders were passed under Section 8(4) of the Act determining the declarant as surplus holder.
4. The Special officer, ULC, Hyderabad passed orders under Ex.A15 vide Proceedings No.H1/5306/76 dated 15-03-1995 stating that declarant B.Lingamma is a surplus holder of 1,48,012.39 sq.mts in the above said survey numbers which includes Sy.No.2. However the Special officer, ULC, Hyderabad issued Ex.B1-Proceedings No H1/5306/76, dated 21-11-2007 stating that an errata is issued for correction of discrepancies and Sy.No.2 which was erroneously included as surplus land was deleted by application of general exemption granted in terms of G.O.Ms. No.733 (ULC) dated 31-10-1988. The surplus land was re-determined as 1,26,778.29 sq.mts. The government 3 therefore issued Ex.A41-Gazette notification dated 18-01-2008 clearly stating that instead of 1,48,012.39 sq.mts an extent of 1,26,778.29 sq.mts is determined as surplus and land in Sy.No.2 was deleted from such surplus extent of land. The Ex.A41 i.e., Gazette notification is not in dispute.
5. The respondents relied upon Ex.B2 dated 10-03-2008, which is notice issued under Section 10(5) of the Urban Land Ceiling and Regulation Act by the Special officer, ULC, Hyderabad which shows that the possession was only an extent of 1,26,778.29 sq.mts in the above said survey numbers excluding Sy.No.2. The respondents therefore admitted that Sy.No.2 was not declared as surplus by virtue of Ex.B2.
6. The Ex.A42 dated 11-03-2008 in Proceedings No.H1/5306/76 is a panchnama with regard to taking possession of surplus land of 1,26,778.29 sq.mts. This panchnama shows that possession of land admeasuring Ac.1-27 gts in Sy No.2 was not taken. However, an extent of Ac.1-14 gts in Sy.No.7 was taken, which is also the suit property.
7. The Ex.B3 is also a panchanama dated 11-03-2008 in Proceedings No.H1/5306/76. Curiously this panchnama is also 4 of the same date as that of Ex.A42. The extent of the surplus land in both the panchnamas i.e., Ex.A42 and Ex.B3 is recorded as 1,26,778.29 sq.mts. However, as regards Sy.No.2 the same was excluded in Ex.A42-panchnama, but shown as included in Ex.B3-panchnama. The Ex.B3-panchnama is contrary to the Ex.A41-Gazette notification whereby Sy.No.2 was specifically excluded and Ex.B2 notice caused under Section 10(5) of the Act and relied upon by the respondents. The respondents are not able to explain such glaring discrepancy. In any view the Ex.A41 Gazette notification and Ex.B2 notice prevail upon Ex.B3 panchnama. In the circumstances there is no hesitation to conclude that Ex.A42 panchnama relied upon by the appellant in accordance with Ex.A41 Gazette notification and Ex.B2 notice relied upon by the respondents, but not Ex.B3 panchnama. Therefore, the Ex.B3 panchnama is unreliable and has no value. The evaluation of such evidence on record shows that the court below failed to consider such documentary evidence on record with regard to Ac.1-20 gts of land in Sy.No.2 which is a part of the suit property. As the land in Sy.No.2 was never declared as surplus, the respondents never came into possession of the same and also never set up any adverse claim of title against the appellant in respect of the same. 5
8. Admittedly, B.Lingamma was the original pattedar and possessor of the land in Sy.No.2. After the demise of B. Lingamma, Ex.A4 i.e., registered sale deed dated 18-06-1983 vide document No.4675 of 1983 was executed by one B. Venkat Narayana and B.Satemma in favour of G.Vijayalakshmi in respect of land admeasuring Ac.1-27 gts in Sy.No.02 of Gachibowli village. The said G.Vijayalaskhmi in turn executed Ex.A3-settlement deed dated 05-10-1994 in favor of her daughter G.Kusuma in respect of the land measuring an extent of Ac.1-20 gts in Sy.No.02 of Gachibowli village apart from the land admeasuring Ac.0-37 gts in Sy No.1. The said G.Kusuma in turn executed Ex.A2-Agreement of Sale cum GPA dated 18-12-2002 in favor of KMR Estates and Builders Pvt. Ltd in respect of the above said extent of Ac.1-20 gts in Sy.No.02 and Ac.0-37 gts in Sy.No.01 of Gachibowli village. Further on the basis of the said AGPA i.e., Ex.A2, the Ex.Al sale deed dated 25-04-2005 was executed in favor of the appellant. The appellant is claiming its title, rights and possession from its predecessor in title B.Lingamma through the above referred registered instruments. As admittedly B.Lingamma was the pattedar and the appellant perfectly sourced its title and possession from B.Lingamma, the same is clearly established. It is also a settled proposition of law that possession follows title. 6 The possession of the appellant is therefore clearly established. It is also observed that by virtue of Ex.A41 Gazette notification and Ex.B2 notice which clearly show that Sy.No.2 was never declared as surplus nor possession of the same was never intended to be taken here is of no genuine denial of title of the appellant over the land in Sy.No.02. The mere suit for perpetual injunction is maintainable in the facts of the present case. There is no necessity to seek declaration of title.
9. As regards the land in Sy.No.07, the same was admittedly declared as surplus in terms of Ex.A41 Gazette notification. However, the Ex.A16 endorsement dated 07-06-2010 in file No.H1/5306 of 76 shows that the application No. H2/455/265/2006, was issued by the Special officer, ULC, Hyderabad vide G.O.Ms.No.411 Revenue (UC-III) Department dated 11-05-2010, which is referred in the endorsement that the surplus land of an extent of 3035.13 sq.mts in Sy No.7 of Gachibowli village was duly regularized in the name of the said R.Sadanand Rao i.e., vendor of the appellant after payment of regularization charges in terms of G.O.Ms.No.455, Revenue (UC) Department dated 29-07-2010. There is another endorsement i.e., Ex.A17 dated 07-06-2010 and the same shows as extent of 1416.38 sq.mts in Sy.No.07, which was regularized in the name 7 of B.Govind Rao, who is also the vendor of the appellant after payment of regularization charges. It is clearly mentioned in both Exs.A16 and A17 endorsements that "the allotment made by the government shall be conclusive proof of title of the occupant over such excess land allotted" and further the allotment made is exempted from stamp duty and registration. The respondents have not disputed the Exs.A16 and A17 endorsements issued by the Special officer, ULC, Hyderabad, pursuant to the orders of the government referred therein. The respondents having admitted Exs.A16 and A17 endorsements are estopped from raising any contrary pleas. Once the occupation of surplus land in Sy.No.07 is regularized the possession of the appellant and its predecessor in title stands confirmed.
10. Admittedly, B.Lingamma was the original pattedar and possessor of the land in Sy No.07. After demise of B.Lingamma, Ex.A8 i.e., registered sale deed was executed by her heirs B.Venkat Narayana and B.Satemma through their GPA holder B.Ashok Kumar by virtue of registered GPA dated 23-11-1984 and 24-03-1984 in favour of B.Sadanand Rao in respect of land admeasuring Ac.0-20 gts in Sy.No.07 of Gachibowli village. The said B.Sadanand Rao executed Ex.A7 sale deed dated 8 28.02.2006 in favor of appellant in respect of said Ac.0-20 gts in Sy.No.07. The Ex.A6 is the Gift Settlement deed dated 04.11.1986 executed by B.Venkat Narayana and B.Satemma in favor of B.Govind Rao in respect of land admeasuring Ac.0-14 gts in Sy.No 07 of Gachibowli village. The said B.Govind Rao in turn had executed Ex.A5 i.e., sale deed dated 28-12-2005 in favour of appellant in respect of Ac.0-14 gts in Sy.No.07. Thus, the appellant sourced their title and possession from B.Lingamma through the above referred registered instruments. The appellant and their predecessors in title as above said came into possession to the property through the original pattedar B.Lingamma.
11. There is also a reference in Judgement and appeal to the submission and by the counsel for the respondents that there is no dispute with regard to title and possession of the appellant in respect of Ac.1-04 gts in Sy.No.07 of the Gachibowli village. It appears that the counsel for the respondents in the above facts and circumstances fairly admitted the title of the appellant in respect of the same. Despite such submission the court below erroneously felt that the appellant failed to discharge their burden to establish title and possession. The undisputed endorsements i.e., Exs.A16 and A17 clearly established the 9 possession and title of the appellant in respect of Ac.1-04 gts of Sy.No.07 of Gachibowli village and the appellant clearly discharged the burden, but the trial court failed to consider the material evidence on record.
12. The trial court also failed to consider the Exs.A19 to A33 pahanis, which clearly shows the possession and enjoyment of appellant and their predecessors in title over the suit lands. The appellant also relied upon Ex.A12 mutation proceedings dated 06-08-2005, which are passed by the respondent No.1 duly affecting the mutation of the name of the appellant in respect of Ac.1-20 gts in Sy.No.02 of Gachibowli village and Ex.A13 for an extent of Ac.0-10 gts in Sy.No.07 and Ex.A14 for an extent of Ac.0-14 gts in Sy.No.07 and also Ac.0-20 gts in Sy.No.07 of Gachibowli village. The D.W.1 in his Cross-examination clearly admitted Exs.A13 and A14 mutation proceedings and the same were never cancelled. As such mutation proceedings in the name of the appellant which were passed under Section 5 of the Telangana Rights in Land and Pattadar Pass Books Act, are appealable under Section 5(5) of the Act and admittedly no appeal was filed and such orders were not revised under Section 9 of the said Act, the same are binding upon the respondents. The Section 6 of the ROR Act gives rise to a presumption that 10 the entries in record of rights as recorded in the pahanis under Exs.A19 to A32 spread over the period of 1992 to 2011, showing the possession of the appellant and the same cannot be ignored. The appellant therefore by placing such material evidence established their possession over the suit property, but such material evidence was not considered by the trial Court.
13. There is substance in submission of the counsel for the appellant that in the light of such voluminous documentary evidence the dismissal of the suit on the premise that mere suit for injunction is not maintainable and in the absence of declaratory relief is erroneous. The Counsel had also relied upon the Judgement of the Hon'ble Apex Court in the case of K.M. Krishna Reddy v. Vinod Reddy,1 that when there is no serious dispute about the title the mere suit for injunction is maintainable. The Para numbers 15 to 17 of the above judgment are referred below:
"15. Hence, the respondents admitted the ownership of the appellant's father through whom the appellant claims title. Even going by the respondents' case, the appellant was the co-owner of the property, and the respondents admittedly had no title in respect of the suit property. Therefore, there was no dispute about the appellant's title as pleaded in the suit. The issue was 1 (2023) 10 SCC 248 11 whether the plea of adverse possession defeated that title. The burden of proving the plea of adverse possession was on the respondents. The burden on the appellant was to prove his possession on the date of the suit.
16. The question is whether it was necessary for the appellant to claim a declaration of title. On this aspect, a decision of this Court in Anathula Sudhakar v. P. Buchi Reddy (Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594] is relevant. Paras 13 and 14 of the said decision read thus: (SCC pp. 603-604) "13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
1213.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction
14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the appellant's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the appellant's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a 13 comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
(emphasis supplied)
17. It is obvious that there was no issue involved about the title of the plaintiff and his father. It is not as if the respondents had set up a title in themselves or were claiming through somebody who was claiming the title. Their plea was of adverse possession against the plaintiff, which presupposes that the appellant was the owner. When in a suit simpliciter for a perpetual injunction based on title, the defendant pleads perfection of his title by adverse possession against the plaintiff or his predecessor, it cannot be said that there is any dispute about the title of the plaintiff. Hence, the plaintiff need not claim a declaration of title in such a case as the only issues involved in such a suit are whether the plaintiff has proved that he was in possession on the date of the institution of the suit and whether the defendant has proved that he has perfected his title by adverse possession. Therefore, in the case at hand, it was not necessary for the plaintiff to claim a declaration of ownership. There was no cloud on his title. Therefore, the suit, as originally filed, was maintainable". The finding of the trial court on this aspect is not sustainable. 14
14. The counsel for the respondents herein contended that the Exs.A16 and A17 endorsements are in the name of vendors of the appellant, but not in the name of the appellant and therefore the same confirms the title and rights of vendors of the appellant, but not that of the appellant is also not tenable in view of Section 43 of the Transfer of Property Act. In this context it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of Tanu Ram Bora Vs. Pramod Ch.Das, 2 in which it was stated that when a transferee purchased the immovable property under the representations of the vendor that he was authorized to transfer the same and subsequently the transferor acquires the title, interest over the land which was initially declared as ceiling surplus and subsequently became non- surplus in such circumstance, the transferee acquires a valid title under sale deed executed by his vendor, which reads as follows:
"6.4. Section 43 of the TP Act provides that where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Thus, if at the time of transfer, the 2 SCC 2019 (4) 173 15 vendor/transferor might have a defective title or have no title and/or no right or interest, however subsequently the transferor acquires the right, title or interest and the contract of transfer subsists, in that case at the option of the transferee, such a transfer is valid. In such a situation, the transferor cannot be permitted to challenge the transfer and/or the transferor has no option to raise the dispute in making the transfer.
6.5. The intention and objects behind Section 43 of the TP Act seem to be based on the principle of estoppel as well as the equity. The intention and objects seem to be that after procuring the money (sale consideration) and transferring the land, thereafter the transferor is estopped from saying that though he has sold/transferred the property/land on payment of sale consideration, still the transfer is not binding on him. That is why Section 43 of the TP Act gives an option to the transferee and not the transferor. The intention of Section 43 of the Act seems to be that nobody can be permitted to take the benefits of his own wrong. In the facts and circumstances of the case, Section 43 of the Act would come into play and protect the rights of the original plaintiff".
15. By virtue of law laid down by the Hon'ble Apex Court there is no quarrel about the proposition that by virtue of Section 43 of the Transfer of Property Act, the appellant in the present case acquired valid title, rights and possession from their vendors by virtue of subsequent perfection of title of their vendors. The appellant therefore clearly established its 16 possession, rights and interest over the suit lands and the respondents never seriously disputed the title of the appellant. As observed above the Ex.A41 Gazette notification and Ex.B2 notice was never disputed whereby Sy.No.02 was excluded from surplus land and Exs.A16 and A17 were not disputed whereby the conclusive proof of title of the predecessors of the appellant was confirmed by the respondents. In the circumstances the appeal is to be allowed and the decree for perpetual injunction as sought for is allowed.
16. In the result, the present appeal suit is allowed by setting aside the Judgment and decree passed by the trial Court in O.S.No.212 of 2013, dated 05.10.2020. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 20.03.2025 tri 17 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.188 of 2024 DATE: 20.03.2025 TRI