Telangana High Court
M. Sowmya Sowmya vs The State Of Telangana on 29 February, 2024
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION Nos.28677 and 31353 of 2023
COMMON ORDER:
Since the issue involved in both these writ petitions is intrinsically interconnected, they are taken up and heard together and are being disposed of by this common order.
2. Writ Petition No.28677 of 2023, under Article 226 of the Constitution of India, is filed by the petitioner/respondent No.6 in Writ Petition No.31353 of 2023, seeking the following relief:
"....to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents herein not giving necessary protection to safeguard the petitioner possession over Execution Petition schedule property from illegal interference and encroachments by third parties in compliance of the orders passed by the Hon'ble Division Bench in W.A.No.2012 of 2003 dated 25.11.2003 for smooth implementation of Award/ Decree dated 21.01.2019 passed in O.S.No.225 of 2018 in E.P.No.2185 of 2022 and E.P.No.2186 of 2022 is illegal, arbitrary, unconstitutional, violative of principles of natural justice and violative of Article 300-A of the Constitution of India, consequently direct the respondent No. 3,4 and 5 to give necessary protection to safeguard the possession over Execution Petition schedule property from illegal interference and encroachments by third parties in compliance of the orders passed by this Hon'ble Court in W.A.No.2012 of 2003 dated 25.11.2003 for smooth implementation of Award/ Decree dated 21.01.2019 passed in O.S.No.225 of 2018 in E.P.No.2185 of 2022 and E.P.No.2186 of 2022 and to pass such other order or orders that are deem fit and proper in the facts and circumstances of the case in the interest of justice...."
3. Writ Petition No.31353 of 2023, under Article 226 of the Constitution of India, is filed by the petitioners/respondent Nos.6 and 7 in Writ Petition No.28677 of 2023, seeking the following relief:
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"....to issue an appropriate, Writ, Order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in seeking to interfere with the petitioners peaceful possession and enjoyment over the land admeasuring Ac.4-35 Guntas in Survey Nos.9 and 11 situated at Kapra Village and Mandal, Ranga Reddy District, Under GHMC Kapra Circle and Mandal, Medchal- Malkajgiri District as arbitrary, illegal, unjust, unfair and violative of Art. 14, 21 and 300-A of Constitution of India and consequently interdict them from interfering with the petitioners peaceful possession and enjoyment over the said land and pass such other order or orders as are deemed fit and proper in the circumstances of the case...."
4. The petitioner in W.P.No.28677 of 2023 is respondent No.6 in W.P.No.31353 of 2023 and the petitioners in W.P.No.31353 of 2023 are impleaded as respondent Nos.6 and 7 in W.P.No.28677 of 2023. In both the writ petitions, respondent Nos.1 to 5 are official respondents. For the sake of convenience, hereinafter, the parties are referred as they were arrayed in W.P.No.28677 of 2023.
5. The brief facts that are necessary for disposal of the present writ petitions are stated as under:
The lands in Survey Nos. 9, 11, 47, 140, 141, 142, 143, 151, 152, 153, 676 and 677, admeasuring about 90.08 acres, situated at Kapra Village, in the erstwhile Medchal Taluk (now Vallabhnagar Taluk) of Ranga Reddy District, Telangana (hereinafter referred to as "the disputed lands") originally belonged to evacuees who migrated to Pakistan during partition and the said lands were distributed to various allottees, who migrated from Pakistan under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as "the Displaced Persons Act"). The ::3::
Deputy Custodian and Collector, Hyderabad District, after conducting a detailed enquiry in respect to the claim of ownership of the disputed property, issued Notification No.55 in NO CE/4064 to 4080 dated 11-12-1952, declaring the disputed property as an evacuee property under Section 7 of the Evacuee Property Act. Pursuant to the aforesaid declaration, the name of the Collector/Custodian was entered in the revenue records and the Central Government has acquired the "disputed lands" by issuing notification under Section 12 of the Displaced Persons Act for the rehabilitation of the persons who were displaced during the Partition. The Tahsildar, Medchal Taluk, issued a letter dated 29-6-1966, inter alia, seeking to auction the "disputed lands" on yearly lease basis. Aggrieved by the said action, Sri Mandal Anjaiah, claiming to be the predecessor in interest, has filed Writ Petition No.1051 of 1966 and the same was dismissed by this Court vide order dated 14.06.1968 on the ground that the claim of the legal heirs of Mandal Bucham is belated and they have also not exhausted the alternate remedy provided under the provisions of the Evacuee Property Act. After the dismissal of the writ petition, some portion of the lands were allotted to Sri Gopaldas and Sri Jangimal on 15-9-1968 and to Sri Mathuradas (legal heir of Sri Valiram Hiramal) on 21-11-1968. Some of the legal representatives of late Mandal Bucham had approached the Deputy Custodian General, New Delhi by filing a revision petition ::4::
under Section 27 of the Evacuee Property Act, inter alia, questioning the Notification dated 11-12-1952. The Deputy Custodian General vide his order dated 25-9-1970, had allowed the revision petition and remanded the case to the Custodian-cum-Collector, Hyderabad District for redetermination of the evacuee nature of the lands after affording an opportunity of hearing to all the parties. The Collector- cum-Deputy Custodian vide order dated 28-5-1979 came to the conclusion that since there were no records available to the contrary, Sri Mandal Bucham and his legal heirs continue to be the owners of the disputed lands. Aggrieved by the aforesaid order, the allottees had filed a revision petition before the Chief Settlement Commissioner of Evacuee Property, Hyderabad under the Displaced Persons Act. The Chief Settlement Commissioner of Evacuee Property, by his order dated 11-5-1983, set aside the aforesaid order of the Collector-cum-Deputy Custodian, and declared the disputed lands are evacuee property. The legal heirs of Mandal Bucham filed Writ Petition No.7517 of 1983 on the file of this Court and this Court vide order dated 26-7-1988, dismissed the writ petition, inter alia, holding that it cannot compel any authority to initiate and dispose of the proceedings suo motu under Section 33 of the Displaced Persons Act. Thereafter, the legal heirs of Mandal Bucham filed Writ Petition No.17722 of 1990 on the file of this Court seeking to direct the Commissioner, Survey, Settlement and Land Records/Chief ::5::
Settlement Commissioner, Evacuee Property, Hyderabad to conduct an enquiry into the questions of title of "disputed lands" and correctness of the declaration of the said property as evacuee property in pursuance of proceedings of the Chief Settlement Commissioner dated 27-10-1979. The Division Bench of this Court allowed the said writ petition vide judgment dated 27-4-2000, by setting aside the order passed by the Chief Settlement Commissioner dated 11-5-1983 and restoring the order passed by the Collector- cum-Deputy Custodian of Evacuee Property dated 28-5-1979. Aggrieved by the same, Shankara Cooperative Housing Society Limited and others filed Civil Appeals against M. Prabhakar and others vide Civil Appeal Nos.4099, 4100 and 4101 of 2000 and 3949 of 2011 on the file of Hon'ble Supreme Court. During the pendency of the appeals, Smt.Eshwari Bai (alleged vendor of petitioners in W.P.No.31353 of 2023) expired. The application filed by Thakur Hadanani (GPA holder of allottee-Smt. Eshwari Bai) to bring the legal representatives of Smt.Eshwari Bai was dismissed by the Hon'ble Supreme Court vide order dated 30-3-2010 observing as follows: "Having heard learned counsel for the applicants in I.A.Nos.7 & 8 in C.A. No. 4101 of 2000, we are of the view that these applications are utterly misconceived. Admittedly, Smt. Ishwari Bai had expired on 6th August, 1999, long before the filing of the present appeals. As per the memo of parties name, appeal has been preferred in the name of Smt. Ishwari Bai through her General Power of Attorney holder, Shri Thakur Madanani. There is no gain-saying that after the death of Smt. Ishwari Bai, her General Power of Attorney holder had no locus standi to file the present appeal in her name. In that view of the matter, prayer for substitution in place of deceased Smt. Ishwari Bai is rejected and I.As. are dismissed accordingly."
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The Hon'ble Supreme Court after hearing at length all the interested parties, vide judgment dated 05.05.2011 allowed the Civil Appeal Nos.4099 of 2000 and batch (Shankara Cooperative Housing Society Limited vs M. Prabhakar and others 1) by setting aside the judgment dated 27.04.2000 passed in W.P.No.17722 of 1990 and consequently, declared the notification dated 11.12.1952 issued under Section 7 of the Act as valid in law and the evacuee property acquired by the Central Government under Section 12 of the Displaced Persons Act, ceases to be evacuee property and becomes the property of the Central Government. During the pendency of appeals before the Hon'ble Supreme Court, Sri Mandal Nandam and Sri Mandal Prabhakar @ Buchaiah, who are vendors and predecessors in title of the petitioner in W.P.No.28677 of 2023 have filed Writ Petition No.21342 of 2003 questioning the action of the revenue authorities in interfering with their possession over the subject lands, and the said Writ Petition was dismissed on 14.10.2003 on the ground that Special Leave Petition in respect of the subject lands is pending on the file of Hon'ble Supreme Court.
Aggrieved by the same, Writ Appeal No.2012 of 2003 was preferred on the file of this Court and the Division Bench of this Court vide judgment dated 25.11.2003 allowed the said Writ Appeal by setting 1 (2011) 5 SCC 607 ::7::
aside the orders passed in W.P.No.21342 of 2003 observing as follows:
"The Supreme Court granted status quo and it would mean that status quo has to be maintained as regards entries only and not with respect to possession of the appellants/writ petitioners, and possession of the appellants/petitioners cannot be disturbed otherwise than by due process of law and the only direction which was, sought by the appellants/petitioners was that not to interfere with the possession of appellants/writ petitioners of the land in question otherwise than by due process of law. Impugned order as such is liable to be set aside. Accordingly, writ appeal is allowed, impugned order is set aside and the writ petition is also disposed of with direction that respondents shall stand restrained from interfering with the lawful possession of the appellants/petitioners except in accordance with law."
It appears that the judgment passed in Writ Appeal No.2012 of 2003 attained finality. Thereafter, Sri Mandal Vinay Kumar Goud, vendor of the petitioner herein filed O.S.No.225 of 2018 on the file of XVI Additional District Judge, Ranga Reddy District, at Malkajgiri, against the petitioner herein and Mandal family members, seeking partition and separate possession in respect of disputed lands. The said suit was compromised before the Lok Adalat and an award dated 21.01.2019 was passed in Lok Adalat No.1 of 2019. Seeking execution of the award dated 21.01.2019, the petitioner herein has filed E.P.No.7 of 2019 on the file of Principal District Judge, Medchal-Malkajgiri District, at Malkajgiri, wherein the executing Court dismissed the same on 31.01.2020 on the ground that the award/decree was not engrossed on requisite stamp papers, as required under law. It is stated by the petitioner that even though he has complied the objections and resubmitted the E.P, the Executing ::8::
Court dismissed the same vide docket order dated 25.08.2022. Challenging the same, the petitioner has filed Civil Miscellaneous Appeal No.393 of 2022 on the file of this Court. The Division Bench of this Court vide judgment dated 02.09.2022 allowed the said C.M.A, setting aside the docket order dated 25.08.2022 passed in E.P and directed the Executing Court to number the E.P and proceed in accordance with law. Thereafter the petitioner filed E.P.Nos.2185 and 2186 of 2022 on the file of Principal District Judge, Medchal- Malkajgiri District, at Malkajgiri, and the same are pending. Pending adjudication of the said E.Ps, alleging that third parties are interfering with his possession, the petitioner filed E.A.No.459 of 2022 in E.P.No.2185 of 2022 seeking police aid. Since the said application was not disposed of, the petitioner lodged a complaint on the file of respondents-police seeking police protection to protect his possession over the subject property. It is stated by the petitioner that police have not acted upon the complaint submitted by him and as such he was constrained to file Crl.M.P.No.517 of 2023 seeking to direct the police to investigate into the complaint submitted by him by following the guidelines issued by the Hon'ble Supreme Court. It is the case of the petitioner even though said Crl.M.P. was allowed vide dated 06-06-2023, the police have not initiated any action. As such the petitioner is constrained to file the present Writ Petition No.28677 of 2023 seeking police aid.
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6. This Court in W.P.No.28677 of 2023 after taking note of the orders passed by a Division Bench of this Court in W.A.No.2012 of 2003 and C.M.A.No.393 of 2022, granted interim order dated 12.10.2023 directing the police to provide necessary protection to petitioner to safeguard the possession over Execution Petition schedule property from illegal interference and encroachments by third parties.
7. Pending adjudication of W.P.No.28677 of 2023, M.Sowmya and M. Balakrishna, filed I.A.No.2 of 2023 seeking to implead them as respondent Nos.6 and 7 in W.P.No.28677 of 2023. The respondent Nos.6 and 7 also filed W.P.No.31353 of 2023 on the file of this Court seeking to restrain the respondents therein from interfering with their possession and enjoyment over the land admeasuring Ac.4-35 gts in Sy.Nos.9 and 11 situated at Kapra Village and Mandal, Ranga Reddy District, under GHMC Kapra Circle and Mandal, Medchal- Malkajgiri District. It is the case of the respondent Nos.6 and 7 that they have purchased the said lands from Thakur Tirumal Madnani, who is the power of attorney holder of original allottee Eshwari Bai. It is stated taht Eshwari Bai, was allotted an extent of Ac.20-27 Guntas in Survey Nos.9, 11, 140, 142, 143, 676 and 677 situated at Kapra Village and Mandal, Medchal-Malkajgiri District and during her lifetime, said Eshwari Bai, executed General Power of Attorney in favour of Thakur Tirumal Madnani (in Civil Appeal Nos.4099/2000 & ::10::
batch, it is recorded as Thakur Hadanani) on 06.08.1999. The said Thakur Tirumal Madnani, executed an agreement of sale dated 23.06.1997 in favour of respondent Nos.6 and 7. It is the case of the respondent Nos.6 and 7 that when the G.P.A has not come forward to execute the sale deed, the dispute was referred to the sole arbitrator as per the terms of the agreement of sale and the sole arbitrator has passed an award dated 02.05.2012 directing the Thakur Tirumal Madnani to execute registered sale deed.
Admittedly, during the pendency of Civil Appeals on the file of Hon'ble Supreme Court, the GPA holder of original allottee-Eshwari Bai, filed I.A.Nos.7, 8 and 10 seeking to bring the LRs of Smt. Eshwari Bai. The Hon'ble Supreme Court vide order dated 30.03.2010 dismissed the said applications holding that Smt. Eshwari Bai expired long before filing of the appeals and therefore, the GPA holder Thakur Hadanani (Thakur Tirumal Madnani, claimed by the respondent Nos.6 and 7) has no locus standi to file the appeal in her name. Curiously, after invalidating the power of attorney in favour of Thakur Tirumal Madnani, the alleged agreement of sale said to have been executed in favour of respondent Nos.6 and 7 was referred to the Sole arbitrator and making the very alleged power of attorney holder as party respondent and the award dated 02.05.2012 was obtained. Basing on the arbitral award dated 02.05.2012, the respondent Nos.6 and 7 got executed the sale deed dated 07.07.2014 ::11::
in their favour through Court by filing E.P.No.163 of 2012 and they are claiming rights under the said sale deed. It is the case of the respondent Nos.6 and 7 that the legal heirs of original allottee-Smt. Eshwari Bai, executed ratification deeds dated 31.03.2015, 17.10.2015, 09.05.2015 and 09.05.2016 in their favour. It is the case of the respondent Nos.6 and 7 that the respondent Nos.2 to 5, at the instigation of petitioner in W.P.No.28677 of 2023 are interfering with their peaceful possession and enjoyment of the subject lands and forcing to settle the matter with the petitioner.
Hence, they filed W.P.No.31353 of 2023.
8. Considered the submissions of learned counsel for respective parties and perused the record.
9. Sri V.Pattabhi, learned Senior Counsel appearing for the petitioner in W.P.No.28677 of 2023 has submitted that Mandal Nandam and Mandal Prabhakar @ Buchaiah, who are predecessors of the petitioner herein have filed Writ Petition No.21342 of 2003 on the file of this Court challenging the action of the revenue authorities in interfering with their possession over the subject lands, and the said Writ Petition was dismissed on 14.10.2003. Aggrieved by the same, Writ Appeal No.2012 of 2003 was preferred on the file of this Court, wherein the Division Bench vide judgment dated 25.11.2003 allowed the Writ Appeal by setting aside the orders passed in ::12::
W.P.No.21342 of 2003 and gave a categorical finding about the possession of the appellants therein over the subject lands and the revenue authorities were restrained from interfering with the lawful possession of the appellants therein, except in accordance with law. The learned Senior Counsel has submitted the judgment dated 25.11.2003 passed by the Division Bench of this Court in Writ Appeal No.2012 of 2003 is final and binding on all the concerned. It is further submitted a suit vide O.S.No.225 of 2018 came to be filed on the file of XVI Additional District Judge, Ranga Reddy District at Malkajgiri, seeking partition and separate possession of agricultural lands admeasuring Ac.90.08gts in Sy.Nos.9, 11, 47, 140, 141, 142, 143, 151, 152, 153, 676 and 677, situated at Kapra Village and Mandal, Medchal-Malkajgiri District (erstwhile Ranga Reddy District) and the said suit was compromised before the Lok Adalat vide Award dated 21.01.2019. Subsequently, seeking execution of the said award/decree dated 21.01.2019, the decree holder/petitioner herein, who was defendant No.9 in the said suit, filed an Execution Petition on the file of Executing Court. However, the same was dismissed on 31.01.2020 primarily on the ground that the award/decree was not engrossed on requisite stamp papers, as required under law. The petitioner herein has resubmitted the E.P and the same was returned by the Executing Court vide order dated 25.08.2022. Challenging the same, the petitioner filed Civil Miscellaneous Appeal No.393 of 2022 ::13::
on the file of this Court and the Hon'ble Division Bench of this Court vide judgment dated 02.09.2022 allowed the C.M.A. by setting aside the order dated 25.08.2022 and reaffirmed the right, title and possession of the petitioner and other joint decree holders by holding that judgment dated 25.11.2003 passed in W.A.No.2012 of 2003 and the compromise decree dated 21.01.2019 passed in O.S.No.225 of 2018 attained finality and as such directed the executing Court to number the E.P and dispose of the same in the light of observations made in its judgment dated 02.09.2022. Thereafter, the petitioner filed E.P Nos.2185 of 2022 and 2186 of 2022 on the file of Principal District Judge, Malkajgiri, and the same are pending for adjudication. It is further submitted that when third parties interfered with the possession of the petitioner, on 26.09.2022, he filed EA.No.459 of 2022 in EP No.2185 of 2022 seeking police aid and the same is also pending. In the meanwhile, the petitioner has lodged a complaint on the file of respondents-police and inspite of direction given by the learned X Metropolitan Magistrate, Medchal, to conduct investigation, the police has not conducted investigation and as such, the petitioner filed Crl.M.P.No.517 of 2023 in Crime No.383 of 2021 seeking to direct the police to take appropriate action as per the guidelines issued by the Hon'ble Apex Court and the said Crl.M.P. was allowed by the learned Magistrate vide Order dated 06- 06-2023. Inspite of the same, when the police have not taken any ::14::
action, the petitioner was constrained to file the present Writ Petition No.28677 of 2023 seeking police aid. It is further submitted that this Court, on 12.10.2023, after due consideration of the matter, granted interim order in favour of the petitioner. The learned Senior Counsel vehemently argued that the respondent Nos.6 and 7, who are unrelated to the case on hand or in the earlier proceedings i.e., W.A.No.2012 of 2003 or O.S. No 225 of 2018, or in CMA No.393 of 2022, acting dishonestly and by suppressing facts, filed W.P.No.31353 of 2023 on the file of this Court. It is submitted that respondent Nos.6 and 7 have suppressed the fact of pendency of civil suit vide OS No.329 of 2018 on the file of Additional Junior Civil Judge at Malkajgiri, in respect of land admeasuring Ac.4-35 guntas, which is covered by the Writ Petition No.28677 of 2023 and ultimately, prayed to allow the Writ Petition No.28677 of 2023 and dismiss the Writ Petition No.31353 of 2023.
10. Per contra, Sri D. Prakash Reddy, learned Senior Counsel appearing for the respondent Nos.6 and 7 in W.P.No.28677 of 2023 has submitted that respondent Nos.6 and 7 are the owners and possessors of the lands admeasuring Ac.20-27 Guntas in Survey Nos.9, 11, 140, 142, 143, 676 and 677 situated at Kapra Village and Mandal, Medchal-Malkajgiri District. It is further submitted that originally lands admeasuring Ac.90-08 Gts in Survey Nos.9, 11, 47, 140, 141, 142, 143, 151, 152, 153, 676 and 677, situated at Kapra ::15::
Village and Mandal, Ranga Reddy District, were notified as evacuee property, under Administration of Evacuee Property Act, 1950, vide Notification dated 11.12.1952 and was acquired by the Central Government following due process for the purpose of granting compensation and rehabilitation to the Displaced Persons under the Displaced Persons (Compensation & Rehabilitation) Act, 1954 and vested in the Government. It is further submitted that Kasra pahani mentions the name as "Custodian" in the pattadar column in respect of the subject lands. It is further submitted that out of the said extent of Ac.90-08 Gts, an extent of Ac.20.27 Gts was allotted in favour of Smt. Eshwari Bai Pahlajrai, who was a displaced person, vide Allotment Order dated 13.07.1966 bearing No.HYD-45/5643 and a Sanad dated 30-11-1966 was also issued in her favour. Subsequent to such allotment, she was put in possession of the said lands and thereafter, she entered into an agreement of sale dated 23.06.1997 with the respondent Nos.6 and 7 through her GPA holder Thakur Tirumal Madnani and total sale consideration was paid by the respondent Nos.6 and 7. It is also submitted that when Smt. Eshwari Bai retracted from her commitment to execute the registered sale deed in favour of respondent Nos.6 and 7, they invoked the arbitration clause, which culminated into passing of an Award dated 02.05.2012, wherein the Arbitral Tribunal, directed the GPA holder of Smt. Eshwari Bai, to execute and register the sale deed as per the ::16::
agreement of sale within a period of two months from the date of the award and put the respondent Nos.6 and 7 in possession of the schedule property. As the said direction was not complied, respondent Nos.6 and 7 were constrained to file E.P.No.163 of 2012 on the file of Principal District Judge, Ranga Reddy District, at L.B.Nagar and the same was allowed vide order dated 08.04.2013 and a sale deed dated 07.07.2014 was executed in favour of respondent Nos.6 and 7 and possession was also delivered to them and since then they have been in peaceful possession and enjoyment of the same. It is further submitted that to obviate any kind of legal issues, respondent Nos.6 and 7 got executed ratification deeds dated 31.03.2015, 17.10.2015, 09.05.2016 and 09.05.2016 from the legal heirs of Smt. Eshwari Bai in their favour. It is further submitted that Mandal Bucham, challenged the notification dated 11.12.1952 issued by the Central Government in declaring the land admeasuring Ac.90-08gts as evacuee property and when the matter eventually reached the Hon'ble Supreme Court, the Hon'ble Supreme Court after extensive hearing passed an elaborate Judgment dated 05.05.2011 negating all the claims of the Mandal Family over the land admeasuring Acres 90-08 gts, and upheld the acquisition of the same by the Central Government under Sec.12 of the Displaced Persons Act and vesting of the same as encumbrance free in the Central Government. It is further submitted that while the things ::17::
stood thus, on 16.10.2023, the petitioner in W.P.No.28677 of 2023 along with henchmen tried to trespass into the property of respondent Nos.6 and 7 admeasuring Acres 4-35 in Survey Nos.9 and 11 and encroached the same and threatened the watchman and other persons on site with dire consequences. Even though the respondent Nos.6 and 7 lodged a complaint dated 17.10.2023 with respondent No.5 but till date, FIR has not been registered. It is vehemently contended that instead of registering the complaint, the respondent Nos.2 to 5 are aiding the petitioner in W.P.No.28677 of 2023 to interfere with the peaceful possession and enjoyment of the subject lands and forcing to settle the matter with the petitioner.
11. Sri J. Prabhakar, learned Senior Counsel appearing for respondent No.6 in W.P.No.31353 of 2023 has submitted that predecessors of the petitioners in W.P.No.31353 of 2023/respondent Nos.6 and 7 in W.P.No.28677 of 2023 are not parties to the earlier round of litigation in Civil Appeal Nos.4099 of 2000, 4100 of 2000, 4101 of 2000 and 3946 of 2011 on the file of Hon'ble Supreme Court. In fact when their alleged vendor represented by their General Power of Attorney Thakur Tirumal Madnani, filed implead application in the said Civil Appeal Nos.4099 of 2000 and batch, the Hon'ble Supreme Court vide order dated 30.03.2010 and 05.05.2011 dismissed the same categorically holding that the GPA executed by Smt. Eshwari Bai, got terminated due to her death in the year 1999 and as such ::18::
her agent Thakur Tirumal Madnani has no locus to represent the deceased Eshwari Bai and further the petition to bring the legal heirs on record was also dismissed. It is contended by the learned Senior Counsel that with the invalid General Power of Attorney, the respondent Nos.6 and 7 have created an agreement of sale and basing on the same, obtained Arbitral Award and then got executed ratification deeds from the alleged legal heirs of Eshwari Bai. The learned Senior Counsel seriously disputed about the execution of so- called agreement of sale and the arbitral award obtained by the respondent Nos.6 and 7 and the subsequent ratification deeds said to have been executed by the alleged legal heirs of Eshwari Bai. It is submitted that while allotting evacuee property, Government has not delivered any possession to the allottee and the revenue entries also depicts the name of custodian only. Therefore, in the absence of respondent Nos.6 and 7 instituting any suit for recovery of possession from the petitioner in W.P.No.28677 of 2023, who is in lawful possession of the property, respondent Nos.6 and 7 are not having any right to maintain the Writ Petition No.31353 of 2023 and therefore, the Writ Petition No.31353 of 2023 filed is misconceived and liable to be dismissed. The learned Senior Counsel further submitted that the respondent Nos.6 and 7 have filed a suit vide O.S.No.329 of 2018 on the file of Additional Junior Civil Judge, Malkajgiri, against one Raju Goud seeking perpetual injunction and ::19::
obtained ex parte decree and the same was set aside at the instance of petitioner in W.P.No.28677 of 2023 by impleading him as party defendant in the said suit. The respondent Nos.6 and 7 having failed to obtain any interim order in the said suit and suppressing the fact of pendency of the same, filed the present W.P.No.31353 of 2023 seeking the very same relief and therefore, the W.P.No.31353 of 2023 is not maintainable and liable to be dismissed on the sole ground of suppressio veri, suggestio falsi. The learned Senior Counsel further submitted that the petitioner in W.P.No.28677 of 2023 filed I.A.No.547 of 2021 in O.S.No.329 of 2018 under Section 36 of Displaced Persons Act and Order XXII Rule 9(1) r/w Section 9 and 151 of CPC, seeking to dismiss the suit and the same is pending. It is further contended that the petitioners in W.P.No.31353 of 2023 are not in possession of the property and there are no valid documents in their favour to claim the rights from the original allottee-Eshwari Bai and in the absence of the same, they are not entitled for any relief in W.P.No.31353 of 2023. It is also submitted that even if it is assumed that Eshwari Bai, is allottee of the property, by virtue of long possession respondent No.6 in W.P.No.31353 of 2023/petitioner in W.P.No.28677 of 2023 has perfected his title and if at all petitioners in W.P.No.31353 of 2023/respondent Nos.6 and 7 in W.P.No.28677 of 2023 are having any right, they have to follow due process of law to seek eviction. In support of his submissions, the ::20::
learned Senior Counsel has placed much reliance on the decision in K. Jayaram and others vs. Bangalore Development Authority and others 2 and ultimately, prayed to dismiss the W.P.No.31353 of 2023
12. The learned Government Pleader for Home appearing for the respondent Nos.1 to 5 has filed counter affidavit of respondent No.5 in W.P.No.28677 of 2023 and submitted that in compliance of the interim orders dated 12.10.2023 passed by this Court in W.P.No.28677 of 2023, they have issued a notice No.394/SHO- JWNR/RCK/2023 dated 15.11.2023 to the petitioner requesting to submit a representation mentioning the date and time to enable the respondents-police to provide appropriate police protection to the schedule property.
13. The learned counsel appearing for the respective parties elaborately made submissions with regard to right, title, possession and invited this Court to refer voluminous records, which contains Photostat copies of sale deeds, allotment orders, power of attorney, ratification deeds, arbitral award etc., to substantiate their claim. While exercising the power under Article 226 of the Constitution of India, this Court is not in a position to examine the authenticity or the validity of the documents filed in support of their pleadings. To 2 (2022) 12 Supreme Court Cases 815 ::21::
determine the questions involved, mere examination of documents alone is not sufficient, oral evidence also has to be evaluated to arrive at a just conclusion. The petitioner in W.P.No.28677 of 2023 claims to be in possession of the subject lands by placing reliance on the compromise decree dated 21.01.2019 passed in O.S.No.225 of 2018 and the judgment dated 02.09.2022 passed in C.M.A.No.393 of 2022. To establish long possession and claim adverse possession, the petitioner relied on the judgment dated 25.11.2003 passed by a Division Bench of this Court in W.A.No.2012 of 2003 and to deny the possession of respondent Nos.6 and 7, the learned counsel relied upon the observations of the Hon'ble Supreme Court in Shankara Cooperative Housing Society Limited vs. M. Prabhakar and others (supra), wherein it was observed as follows:
"12. xx xx..... It appears that in view of the pendency of the proceedings, the Tahsildar refused to give possession of the "disputed lands" to the allottees (who had sanads in their name) in the light of the aforesaid order of the Collector-cum-Deputy Custodian, Hyderabad District.........
18. The subject matter in Civil Appeal No.4101 of 2000 pertains to lands in Survey nos.9,11,140,142,143,676 and 677, admeasuring about 20.27 acres. These lands were originally allotted to Smt. Eswari Bai on 30.11.1966. During her life time, she had executed a General Power of Attorney in favour of Thakur Hadanani on 06.08.1999. During the pendency of the appeal, Smt. Eswari Bai expired. The application filed by Thakur Hadanani to bring legal representatives of Smt. Eswari Bai was dismissed by this Court vide its order dated 30.03.2010 as General Power of Attorney holder of deceased has no locus- standi to file the appeal. In this appeal, the appellants before us are (1)P. Laxmi Patni, who is the son-in-law of P.M. Rao; (2) Vidya Devi, legal representative of ::22::
Seetha Devi wife of Gopal Das and (3)Thakur Das is minor and represented by Smt. Vidya Devi."
14. It is stated that the petitioner in W.P.No.28677 of 2003 also obtained a decree/award dated 21.01.2019 in O.S.No.225 of 2018 passed by the Lok Adalat and to implement the same, the petitioner has filed E.P.No.2186 of 2022 on the file of Principal District Judge, Medchal-Malkajgiri, at Malkajgiri, and the same is pending. Whereas the respondent Nos.6 and 7 relied on the sale deed dated 07.04.2014 executed by the Thakur Tirumal Madnani, GPA holder of original allottee-Eshwari Bai, through Court vide orders dated 08.04.2013 passed in E.P.No.163 of 2022 by the learned Principal District Judge, Ranga Reddy District, at L.B.Nagar. According to the observations of the Hon'ble Supreme Court in the order dated 30.03.2010 passed in I.A.Nos.7, 8 and 10 in Civil Appeal No.4101 of 2000, Smt. Eshwari Bai had expired on 06.08.1999, long before the filing of the appeals before the Hon'ble Supreme Court and after the death of Smt. Eshwari Bai, her General Power of Attorney holder had no locus standi to file the appeal in her name. While referring the agreement of sale for decision of sole arbitrator, the respondent Nos.6 and 7 have not impleaded the legal heirs of original allottee-Smt. Eshwari Bai, as parties to the arbitration. The learned Senior Counsel Sri J.Prabhakar, appearing for the respondent No.6 in W.P.No.31353 of 2023 (petitioner in W.P.No.28677 of 2023) has seriously disputed the existence of power of attorney and its validity and ratification of the ::23::
sale deeds said to have been executed by legal heirs of Eshwari Bai in favour of respondent Nos.6 and 7. In the opinion of this Court, these issues are required to be decided after considering elaborate evidence. It is the specific case of the petitioner in W.P.No.28677 of 2023 that he is in possession of the subject lands by virtue of the findings recorded in W.A.No.2012 of 2003 and said findings have been reaffirmed in C.M.A.No.393 of 2022. Against the judgments passed in both W.A.No.2012 of 2003 and C.M.A.No.393 of 2022, the contesting respondents therein have not filed any appeal(s). The respondent Nos.6 and 7 have not produced any document relating to delivery of possession by the revenue authorities after the allotment is made. It is brought to the notice of this Court that petitioner in W.P.No.28677 of 2023 has filed a suit vide O.S.No.375 of 2023 on the file of Principal Senior Civil Judge, Medchal-Malkajgiri District, at Malkajgiri, seeking cancellation of the sale deed executed in favour of respondent Nos.6 and 7 in W.P.No.28677/2023 (petitioners in W.P.No.31353 of 2023) and the same is pending.
15. In the instant case, Civil Suits vide O.S.No.329 of 2018 on the file of Additional Junior Civil Judge, Malkajgiri and O.S.No.375 of 2023 on the file of Principal Senior Civil Judge, Medchal-Malkajgiri District, at Malkajgiri; and Execution Petitions i.e, E.P.Nos.2185 and 2186 of 2022 on the file of Principal District Judge, Medchal- Malkajgiri District, at Malkajgiri, are pending for adjudication ::24::
between the parties and any observation of this Court in these writ petitions will have effect on the rights and interest of the parties over the subject property.
16. Taking into consideration of the aforesaid facts, this Court instead of going into validity or otherwise of the respective claims made by the petitioner as well as respondent Nos.6 and 7, and as the jurisdiction of the Civil Court is wide and plenary and as the respondent Nos.6 and 7 are having remedy of filing an application under Order XXI Rules 97 to 100 of CPC, deems it appropriate to relegate the respondent Nos.6 and 7 to file appropriate application in pending E.P.Nos.2185 and 2186 of 2022 on the file of Principal District Judge, Medchal-Malkajgiri District, at Malkajgiri.
17. Further, in view of the findings recorded by Division Bench of this Court in Writ Appeal No.2012 of 2003 holding that the predecessors of the petitioner in W.P.No.28677/2023 are in lawful possession of the property and the said findings having been reaffirmed by another Division Bench of this Court in C.M.A.No.393 of 2022 and as per the observations of the Hon'ble Supreme Court in Para 12 of the decision in Shankara Cooperative Housing Society Limited vs M. Prabhakar and others (supra) and taking note of the chequered history of the disputed lands, this Court, deems it appropriate that ends of justice would be met if the existing ::25::
arrangement of police protection granted by this Court on 12.10.2023 in W.P.No.28677 of 2023 is allowed to be continued till the disposal of E.P.Nos.2185 and 2186 of 2022 on the file of Principal District Judge, Medchal-Malkajgiri District, at Malkajgiri.
18. For the foregoing reasons, the petitioners in W.P.No.31353 of 2023/respondent Nos.6 and 7 in W.P.No.28677 of 2023 are relegated to file an appropriate application in pending E.P.Nos.2185 and 2186 of 2022 on the file of Principal District Judge, Medchal-Malkajgiri District, at Malkajgiri and till the disposal of the said E.Ps, the police protection granted by this Court on 12.10.2023 in W.P.No.28677 of 2023 shall continue. It is needless to say that the trial Courts as well as Executing Courts shall dispose of the matters, based on its own merits and in accordance with law.
19. Accordingly, Writ Petition Nos.28677 and 31353 of 2023 are disposed of.
Miscellaneous petitions, if any pending in these writ petitions shall stand closed. No costs.
___________________________ C.V. BHASKAR REDDY, J Date: 29.02.2024 scs