A. Abdul Rahim vs Syed Gulam Mohinddin Saheb

Dr. B. Siva Sankara Rao, J.—The Second Appeal is maintained by appellants 1 to 5, no other than defendants 1 to 5 in O.S. No.1 of 1982 on the file of Subordinate Judge, Tirupati and later, on transfer renumbered as O.S. No.93 of 1985 on the file of Subordinate Judge, Srikalahasti (from its constitution) Chittoor District and since the 1st appellant (1st defendant) died pending the second appeal, the appellants 6 to 8 are brought on record as his legal representatives vide order dated 31.08.2016 in S.A.M.P. No.1274 of 2015.

The suit O.S. No.93 of 1985 was filed by sole plaintiff-by name Syed Gulam Mohiddin Saheb against the five defendants supra, for the relief of permanent injunction originally and later amended to the efficacious relief of declaration of title in relation to the plaint schedule property consists of Ac.0.47 cents in S.No.969/B/46 of Nagalapuram Village, Satyavedu Taluk of Chittoor District with thatched house bearing Assessment No.743 and also five other huts bearing Assessment Nos.324 to 327 and 395 and also a tiled house, private Durga by name Mahaboob Subhani and with consequential relief of permanent prohibitory injunction restraining the defendant Nos.1 to 5 and their men from interfering with the alleged possession and enjoyment of plaintiff in his claiming as the ancestral property of his late father and succeeded by him because of his sister, who is alive relinquished her right over the property, thereby, he got absolute right with title and otherwise perfected title by adverse possession with possession since 1952 and that the defendants have no right to use as public burial ground as it is a private burial ground with Darga with five huts and one thatched house and one tiled house described in the plaint schedule and a month before filing suit the defendants by inducement and threat extorted his signature in a paper to convert as a conveyance that no way bind him and despite notice with false reply, the defendants trespassed on 06.01.1982 and dismantled the roof of thatched house Assessment No.324 and left and the same is subject matter of criminal case. The suit claim was resisted with contest by the defendants from the written statement and Additional written statement of 1st defendant in particular, while denying all plaint and amended plaint averments, that the suit property of Ac.0.47 cents is classified and registered as gramakantam with muslim burial ground in the revenue records and never that of personnel property of plaintiff and his ancestors, further there is no other burial ground for muslim community of the village and further there is also a darga, peerla chavadi and fire pit in the suit property in use by muslim community for the religious purposes since times immemorial under management of muslim zamad and plaintiff was kept by giving meerva as fakir to look after and for conducting the religious functions connected to it and due to some recent misunderstandings between the plaintiff and the muslim Zamad who also got residence in one of the houses in the plaint schedule, the plaintiff to grab the property if possible set up the suit false claim with no manner of right or interest over the suit property. The facts from the pleadings further show that pursuant to the revenue records showing suit site as village poramboke, Tahsildar, Satyavedue when issued notice under Section 6 of A.P. Land Encroachment Act, the plaintiff preferred appeal (also by saying sub-collector in 1982 issued notice under Section 9 (3) of the Land Acquisition Act to plaintiff to acquire the same) before the RDO, Chandragiri and from same ended in dismissal holding said L.A. Act proceeding a mistaken outcome of the suit site was already vested in the State Government as per Section 3 (d) of the A.P Estates Abolition Act, 1948 and plaintiff did not question the same.

From said pleadings and issues and from plaintiffs another suit for permanent injunction against the Government authorities also in O.S. No.117 of 1985 from self same facts of respective pleadings under contest by Government authorities with common trial from evidence of PWs.1 and 2, Exs.A1 to A94 & DWs.1 to 6, Exs.B1 to B17 and from hearing and by common judgment of the trial Court supra, both the suits were ended in dismissal on 24.02.1989. Against the decrees from dismissal judgment of both suits supra the appeals filed by the plaintiff in A.S. Nos.32 and 33 of 1989 were partly allowed decreeing the suits claim in respect of part of self same property of two suits, viz., for tiled and thatched houses only but dismissing rest of the claim by confirming the trial Courts common judgment and decree in other respects.

It is impugning the same only the defendants in O.S. No.93 of 1985 supra filed the Second Appeal.

The Second Appeal was admitted on 23.06.1997. As not properly framed question of law now heard and admitted afresh by framing the following substantial questions of law:

i) When Section 88 of the Grampanchayat Act and Section 87 of the A.P Panchayat Raj Act and equally by Municipalities Act that provide for vesting of cremation and burial grounds for maintenance including as per Article 243(w) with State list Item 10 of the Constitution of India and from Ex.B2-C.C of survey and settlement adangal shows the land is earmarked as burial ground and the plaintiff was kept as fakir to look after the plaint schedule land and for conducting rituals of the dead bodies to be buried, can he claim any right much less as owner to any of the extent out of the suit property and if not reversal decree and judgment of lower appellate Court is perverse and unsustainable?

ii) When Government did not impugn the result of O.S. No.117 of 1985 and A.S. No.32 of 1989, is the present second appeal lis survives? and

iii) What result?

Heard both sides for deciding the Second Appeal on above substantial questions of law and perused the material on record.

It is important to say from what is referred supra that the sole plaintiff maintained another suit O.S. No.117 of 1985 (Originally O.S. No.167 of 1982 later transferred and renumbered as O.S. No.117 of 1985) against the State of A.P represented by District Collector, Chittoor District as sole defendant for permanent prohibitory injunction with the contention as propounded in O.S. No.93 of 1985 saying it is a private property and Government has no right to issue the so-called notice under Land Encroachment Act. It is important to mention that during pendency of two suits, the sole plaintiff maintained Writ Petition No.4722 of 1982 in this Court and the learned Single Judge of this Court disposed of the writ petition vide order dated 15.07.1982 having observed as under:

"The grievance of the petitioner is that the Tahsildar, Satyavedu without issuing notice u/s 7, has issued notice u/s 6 of the Land Encroachment Act and directed him to vacate the land. If it is true, the Tahsildar is directed to give the petitioner a notice u/s 7 of the Land Encroachment Act and then dispose of the matter. Till then he cannot ask the petitioner to vacate his house.

I am making it clear that by virtue of the order of the Subordinate Judge, Tirupati, in the suit filed by the petitioner against 5 muslims, the injunction was dissolved and members of Muslim Community of Nagalapuram Village are permitted to burry their dead in the suit land. Therefore, the petitioner can claim to be in possession of the house only.

Accordingly, the writ petition was disposed of."

In fact having availed the writ order though same is even during pendency of the suit and the revision order made final the observations in the suit, if at all, to be confined only to that and the lower appellate Court also went to that extent in answering the appeals lis.

The factual scenario from the contest of the Government and the private defendants in both the suits is that said property is the Government property in which there is muslim burial ground and in the joint trial of both suits among Exs.A1 to A94, Exs.B1 to B17 were marked, most of the ''A'' series documents therein are the tax receipts in favour of the plaintiff right from the year 1957 showing payment of property tax althrough with continuous possession therefrom. What the trial Court observed in answering the issues formulated to decide the lis of both suits by common disposal is that, plaintiff did not even ask for declaration of title against the Government but for maintained suit O.S No.117 of 1985 for bare injunction and the same is not maintainable when notice already issued by the Government under land encroachment Act for a cloud on title to maintain the injunction against the Government and before expiry of the statutory notice of two months under Section 80 C.P.C against the Government. The trial Court while dismissing said suit, equally dismissed the suit in O.S. No.93 of 1985 saying it is a burial ground for the muslim community in use. The writ petition order supra exhibited as Ex.B1 and the certificate of settlement of Adangal exhibited as Ex.B2 are the crucial documents filed on behalf of the Government and the contesting private defendants in both the suits in arriving the conclusion by the trial Court vide common judgment dated 24.02.1989.

The lower appellate Court by common disposal of two appeals i.e., A.S. No.32 and 33 of 1989 maintained by the plaintiff by the reversal judgment dated 31.12.1996, having formulated eight points for consideration arrived the conclusion saying the plaintiff can establish that he is in settled possession by constructing tiled house and thatched house though the property shown in use as communal burial ground of muslim community and to that extent plaintiff perfected his title by adverse possession. Further, it was the observation to the conclusion that merely because plaintiff in O.S. No.117 of 1985 could not establish for the other portions, since in use as burial ground, it is not just to refuse the relief of injunction for the thatched house and the tiled house in which he is residing and thereby held entitled to permanent injunction restraining defendants 1 to 5 in O.S. No.93 of 1985 from any way interfering with the possession and enjoyment of the thatched house and the tiled house situated at eastern side in the suit site in an extent of 6ft site around on either side and the plaintiff is beyond not entitled to injunction for not residing of other property in answering the suit claim in O.S. No.117 of 1985 which is maintained against the Government and to that extent by setting aside the common dismissal judgment of trial Court by allowing the appeal A.S. No.32 of 1989 and so far as other claim in respect of O.S. No.93 of 1985 covered by A.S. No.33 of 1989 equally allowed in part declaring the title of the plaintiff in respect of the tiled house and thatched house and the site covered upto 6 ft on all sides from the walls subject to the limitation of not to enter into the grave yard or site covered by darga etc., and restraining the defendants of O.S. No.93 of 1985 as referred supra not to interfere with that extent of plaintiff to which permanent injunction granted in both suits.

However it appears the appeal filed by the Government in S.A. (SR) No.58305 of 1997 was dismissed for default on 16.12.2011 for non payment of batta in C.M.P. No. 27873 of 1998 which is filed for delay condonation and the appellant Government did not file any application for restoration of the unnumbered appeal.

No doubt, law is fairly settled from the expression of the Apex Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala, 2014 (2)ALD 3 (SC) = 2014 (1) SCC 669, relied upon the judgment of Punjab and Haryana High Court in Gurdwara Sahib Sannauli v. State of Punjab, (2009) 154 PLR 756, that a person with no right of entitlement under the guise of adverse possession cannot maintain declaratory relief of perfected title by adverse possession for the prospective right. Said finding as held therein by the High Court of the lower appellate Court is perverse and unsustainable, however, further observed by the Apex Court that when the injunction decree not challenged became final. Once such is the case, even the lower appellate Court''s judgment is no way sustainable and liable to be set-aside. However, when the Government paramount owner of the property even maintained the second appeal against permanent injunction relief granted by lower appellate Court reversing dismissal of suit claim in O.S. No.117 of 1985 by the trial Court and from its dismissal filed with delay condonation petition the unnumbered appeal, by no due diligence in its prosecuting, the lower appellate Court''s judgment has been given a seal indirectly by the Government for that because final though said decree for permanent injunction no way operates as res judicata against Government to maintain suit for declaration and ejectment as held by this Court in G. Narayana Reddy v. P.Narayana Reddy, CCCA No.86 of 2015 dated 19.2.2015.

Once such is the case, the defendants in O.S. No.93 of 1985 when claiming communal burial ground in the Government poramboke land claming through Government for such use, cannot have a better right than the Government even the second appeal is maintained by them by showing the legal position and the finding of plaintiff in O.S. No.93 of 1985 perfected title by adverse possession is set-aside, this Court could not go further against permanent injunction relief for no appeal by Government against what the lower Court held against the Government paramount owner of plaintiff for one tiled and another thatched house acquired title by prescription and entitled to permanent injunction against Government. However, it is made clear that said observation in suits for injunction does not operate as res judicata against right of Government to maintain suit for declaration of title and ejectment from said two houses with site.

Accordingly, in the result and with the above observations, the second appeal is disposed of. No order as to costs.

Consequently, miscellaneous petitions pending, if any, in this Second Appeal shall stand closed.