Andhra HC (Pre-Telangana)
Municipal Corporation Of Hyderabad vs G. Sarojini And Ors. on 21 November, 2006
Equivalent citations: 2007(2)ALD171, 2007(4)ALT655
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Defendant No. 3 in O.S. No. 322 of 1994, on the file of the learned II Additional Rent Controller-cum-XIV Junior Civil Judge, City Civil Court, Hyderabad, preferred this second appeal.
2. The first respondent is the wife and the second respondent is the son of one late G. Srisailam. Both of them filed the suit, for the relief of perpetual injunction, against the appellant and Respondents 3 and 4 herein, in respect of an extent of Ac. 0.12 guntas (about 1500 square yards) of land in Survey No. 104 of Gudimalkapur Village, Hyderabad, described in the suit schedule. It was pleaded that the land in Survey No. 104, admeasuring 6.37 guntas, was owned by one Mr. Nawab Mohammed Omer Bin Barkaddoula and after his death, one of his legal heirs, by name Smt. Basheerunnisa Begum, became its absolute owner, by virtue of decree passed in O.S. No.86 of 1339 Fasli. She is said to have executed a sale deed, dated 8-11-1958, transferring the suit land in favour of Srisailam, for a consideration of Rs. 88/-, and that ever since then, Sreesailam and after his death, Respondents 1 and 2 (for short 'the respondents') are in possession and enjoyment of the suit schedule property. It was also stated that they paid tax for the land, under Non-Agricultural Lands Assessment Act, 1963 (for short 'the Assessment Act'), and are running a nursery in it. They complained that the appellant-Corporation and Respondents 3 and 4 started interfering with their possession over the suit land, without any basis. It was alleged that though a notice, dated 25-6-1993, was issued to them, stating the necessary facts, the interference persisted.
3. Respondents 3 and 4 remained ex parte. The appellant-Corporation alone contested the matter. In the written statement filed by them, it was stated that Smt. Basheerunissa Begum, who was the owner of the land in Survey Nos. 92, 93 and 95, along with Survey No. 104, in all, admeasuring 12.19 guntas, entered into an agreement of sale with one Sri Anne Venkatesham, in respect of part of the said land, and after her death on 14-12-1963, her daughter, by name Qumarunnisa Begum, executed a registered sale deed, dated 28-8-1964, in favour of Venkatesham. The latter, in turn, is said to have sold an extent of Ac. 6.30 guntas and Ac. 3.12'/2 guntas of land in favour of Accountant General's Office Co-operative Housing Society, Hyderabad (for short 'the Society'), through sale deeds, dated 6-3-1965 and 1-7-1965 respectively. It was also pleaded that the land was divided by the Society into plots and the layout was approved by the appellant, vide proceedings, dated 7-5-1969, as a result of which, 40% of the vacant land in the layout, including the land, earmarked for roads and parks, vested in the appellant. The suit land was said to be part of the open space left in the layout and vested in the appellant. An objection was also raised to the effect that notice under Section 680 of the Hyderabad Municipal Corporation Act, 1955 (for short 'the Act') was not issued, before the suit was filed.
4. The trial Court decreed the suit, through its judgment, dated 7-8-2000. Aggrieved thereby, the appellant filed A.S. No. 423 of 2000 in the Court of XI Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad. The appeal was dismissed on 19-6-2003. Hence, this second appeal.
5. Sri Ghanta Rama Rao, the learned Standing Counsel for the appellant submits that the Courts below have committed errors, as regards the finding about possession of the land as well as the legal implications of approval of the layout. He contends that Exs. A5 and A6, which were heavily relied upon by the Courts below, on the question of possession, were totally irrelevant and unacceptable in evidence, on account of the fact that they were issued by the persons not vested with power. He contends that the Rules framed under the Act mandates that whenever a layout is sanctioned by the appellant-Corporation, the land earmarked towards open space, parks and roads, shall vest in it, by operation of law and that the same cannot be ignored, even assuming that the respondents have any semblance of right.
6. Sri B.V. Subbaiah, learned Senior Counsel appearing for Smt Bobba Vijaya Lakshmi, learned Counsel for the respondents, on the other hand, submits that neither the Society nor the appellant has any right over the suit schedule property and it is absolutely owned and possessed by the respondents. He contends that the respondents specifically pleaded that they are running a nursery in the suit land and substantiated the same, through cogent oral and documentary evidence. Learned Counsel points out that the appellant was not sure, as to which is the area that vested in it, as open space, and obviously, with a view to help the Society, the appellants had sanctioned a revised layout, about three years after the layout was initially sanctioned. He contends that the written statement did not refer to the revised layout at all and in the first layout, marked as Ex. B. l, the suit schedule property was not shown at all, as the open space.
7. The trial Court initially framed only one issue, dealing with the entitlement of the respondents for the relief of perpetual injunction. Subsequently, an additional issue was framed about the maintainability of the suit, in the context of compliance with Section 685 of the Act. On behalf of the respondents, PWs. l to 3 were examined and Exs. Al to A8 were marked. Ex. Al is the original sale deed in Urdu, Ex. A2 is its translation, and Ex. A3 is the plan. Exs. A4 and A5 are the demand notices issued under the Assessment Act. Ex. A6 is the legal notice issued by the respondents under Section 685 of the Act. On behalf of the appellant, D.Ws. l and 2 were examined. Original layout and revised layout were marked as Exs. Bl and B3 respectively. Exs. Bl 1 and B12 are the certified copies of registered sale deeds executed in favour of the Society. Ex. B13 is the rectification deed. The trial Court held all the issues in favour of respondents and decreed the suit.
8. It is surprising to note that the lower appellate Court framed as many as 11 points for its consideration, unmindful of the fact that the suit was only for the relief of perpetual injunction. The appeal was, no doubt, dismissed, but in the process of answering various points framed by it, the first appellate Court travelled beyond the actual area of controversy.
9. Before undertaking discussion of the matter on merits, it must be clarified that the various observations made by the trial Court and the lower appellate Court, leading to declaration or recognition of title vis-a-vis the suit schedule property, are superfluous and they cannot be treated as final. In fact, the lower appellate Court itself observed so, but only after making certain unwarranted observations, touching on the title.
10. To disclose their rights vis-a-vis the suit schedule property, the respondents filed Ex. Al, the sale deed. Since it was for a consideration of less than Rs. 100/-, it did not require registration and was accordingly taken on record, without any objection. The respondents pleaded that ever since the date of purchase, their predecessor in title and after him, they are continuing in possession of the land. Oral evidence was adduced, pointing out that a nursery is raised in it. The cross-examination of the witness examined on behalf of the respondents, was directed mainly to the question of the absence of licence from the competent authority, for running the nursery. Neither it was suggested that the respondents are not in possession of the land, nor it was established that the appellant is in possession of the same.
11. In addition to adducing oral evidence, the respondents have filed Exs. A4 and A5, the notices issued for payment of tax, under the Assessment Act, for several years preceding the suit. On behalf of the appellant, it is pointed out that Exs. A4 and A5, which were supposed to be issued by the Revenue Inspector, were signed by the Village Administrative Officer. The objection, in this regard, could have been entertained, had any suggestions been put to the witness concerned, on these lines. Further, the respondents are not the authors of the said notices and they cannot be expected to explain as to who issued the said notices, and under what circumstances. Had the appellant made an issue out of it, or raised the contention at the relevant stage, there would have been an occasion for the respondents to meet the same. At any rate, Exs. A4 and A5 cannot be treated as the sole basis for the findings about the possession of the respondents over the suit schedule land.
12. The sole basis for the claim or plea of the appellant-Corporation vis-a-vis the suit schedule land is that it has vested in it, as an open space earmarked in a layout. In Para 5 of the written statement, it is stated as under:
The Accountant General's Office Cooperative Housing Society got the layout approved of the said land of 3 acres 12'/2 guntas vide layout permit No. 59/60 dated 7-5-1969. The suit land forms part of the said layout and it comes under open space for public purpose. It may be noted that as per the layout rules of 1965, 40% of the land has to be left for roads and parks etc. and the said open space of 40% vests with the MCH and as such the suit land belongs to MCH and it will be developed for public purpose only.
An employee of the appellant-Corporation was examined as D.W. 2. According to him, a layout was sanctioned under L.P. No. 52/ 67. It does not tally with the layout mentioned in Para 5. Ex. B1 is the layout, referred to, in the written statement. It discloses that the suit land was shown as Plot Nos. 79, 80 and 81 and not as open space. In his deposition, D.W. 2 stated that the layout was revised and the suit land was left as open space. The revised layout is marked as Ex. B3 and was released on 22-1-1971. The written statement is silent about this. The suit schedule property was shown as open space and a substantial portion of the open area shown in Ex. B1 was converted into plots. This clearly indicates that the Society initially sought to include the suit schedule land in their layout and carved the same into plots and having realized that the respondents are the owners, it approached the appellant to change the layout, to their benefit. Instead of verifying the matter properly, the appellant had chosen to confer benefit upon the Society, and had sacrificed almost half of the open space shown in Ex. B1, which vested in it, in the year 1969.
13. Whatever may have been the circumstances, under which, the appellant approved a revised layout, to its own detriment, at least when the respondents came forward with a plea of ownership of the suit land, the appellant-Corporation was expected to call upon the Society to replenish the open area, as was indicated in Ex. B1. Surprisingly, the tone and tenor of the present litigation leaves an impression that the appellant is fighting the litigation for the Society.
14. The appellant is not able to point out as to when the possession of the suit schedule property was taken over by it. Even if it can be assumed that the open space and roads vest in the appellant, by operation of law, at least a notional or symbolic delivery of possession is required to take place. The question assumes greater importance, in view of the fact that initially a layout was sanctioned under Ex. B1 with open space, at a particular place, and it was revised three years later, under Ex. B3, with totally different allocations of the open space. These important and far reaching questions remained unexplained and the oral and documentary evidence adduced on behalf of the appellant is blissfully silent, in this regard. With the revision of layout, the open area left in the old layout was to revert back to the Society and a different area was to vest in the appellant. Naturally, possession of the corresponding pieces of land was to have been exchanged. Such an important step must be borne out by record and cannot depend upon the ipsi dixit of the appellant.
15. This Court does not find any substantial question of law in the second appeal nor any error in the conclusions arrived at by the Courts below.
16. It has already been pointed out that the observations made by the lower appellate Court, in relation to the title to the suit schedule property, are superfluous and at any rate, the same cannot constitute a ground for reversal of the judgment, in view of Section 99 of C.P.C. The said provision mandates that any error or defect in any proceedings in the suit, not affecting the merits of the case or jurisdiction of the Court, cannot constitute the basis for interference.
17. The second appeal is, accordingly, dismissed. There shall be no order as to costs.