Cheruku Dasaradha vs Khaja Shoukat Ali

This appeal is directed against the judgment and decree dated 16.02.2010 passed by the learned Principal District Judge at Nalgonda, in A.S.No.64 of 2007 allowing the appeal and setting aside the judgment and decree dated 08.10.2007 passed in O.S.No.57 of 1997 on the file of the learned Junior Senior Civil Judge at Devarakonda.

O.S.No.57 of 1997 was filed by Cheruku Dasaradha-plaintiff seeking permanent injunction restraining the defendants and their men from interfering with his peaceful possession and enjoyment over an extent of 726 square feet of open plot covered with basement situated at Deverakonda proper. The plaintiff in the plaint would submit that he took 161.3 square yards of land on lease for 94 years commencing from 20.02.1969 from Syed Suleman, Syed Jafar Ali and Syed Manzoor Ahmed through registered lease deed bearing No.1055 of 1984 and on the same day he was put in possession. The lease period would be completed by 19.02.2062 and the lessee is entitled to make constructions over the leased out plot. As such, he raised construction over half of the leased out plot and used the remaining portion for carrying on his business and keeping the necessary material to his business. The Grampanchayat, Deverakonda, has allotted H.No.16-98 to the building constructed by him and he was paying house tax regularly. He also obtained water tap and electricity connections and paying requisite charges. The defendants are strangers to the family of the plaintiff and they have no right over the plaint schedule property. He would also assert that in order to go to their land from PWD Road, the defendants came upon the suit land on 09.07.1997 and tried to remove the basement existing over it to make pathway and the plaintiff resisted them with great difficulty. As the defendants are still trying to interfering with the plaint schedule property, he filed the present suit seeking an injunction.

Defendant Nos.1 to 3 filed their common written statement contending that the alleged lease deed is without consideration and it was brought into existence by the plaintiff and that he was never put in possession of plaint schedule property. The second defendant is the owner and possessor of an extent of Ac.1.10 guntas out of Sy.No.399 situated at Deverakonda and he purchased the same from Syed Suleman for a valuable consideration and also obtained a decree in O.S.No.54 of 1983 dated 31.01.1983 in which he was declared as owner and possessor of the plaint schedule property. From then onwards he is in continuous ownership and possession over the plaint schedule property. He also submitted that he is cultivating the vegetables and dry crops and also having water servicing canter. He also submitted that the plaintiff illegally occupied 726 square feet of land adjoining Swarnamukhi Canal in the year 1995 and claiming equal extent of land in the suit adjacent to the building without having any valid right or title. He would also submit that he is paying land revenue from the date of purchase and he was issued occupancy certificate dated 17.03.1992 by the Revenue Divisional Officer, Miryalguda, and pattadar pass book and title deed was also given in his name and his name was incorporated in the pahanies as the owner and possessor of plaint schedule property, and therefore, the plaintiff is not entitled for any relief.

The fourth defendant remained ex parte.

In support of his contentions, the plaintiff examined himself as P.W.1 and M.D.Sadique was examined as P.W.2 on his behalf. The second defendant was examined himself as D.W.2 and one Maddimadugu Daya Ratnam was examined as D.W.2. Exs.A.1 to A.8 were marked on behalf of the plaintiff and Exs.B.1 to B.7 were marked on behalf of the defendants.

Considering the oral and documentary evidence adduced by both the parties, the trial Court decreed the suit with costs in favour of the plaintiff and defendants are restrained from interfering with plaintiff’s peaceful possession and enjoyment over the plaint schedule property. Aggrieved by the said judgment, the defendants in the suit preferred an appeal. In the appeal, the appellate Court allowed the appeal and the judgment of the trial Court was set aside by observing that it is for the plaintiff to establish his possession over the plaint schedule property as on the date of filing of the suit by cogent and convincing evidence and he has to stand on his own legs and he cannot take advantage of the weaknesses of the defendants’ evidence and that the trial Court misdirected and came to a wrong conclusion. Aggrieved by the same, the plaintiff preferred this Second Appeal.

For the sake of convenience, the parties hereinafter are referred to as arrayed in the suit.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

Learned counsel for the appellant would contend that the defendants in the suit pleaded that the suit schedule property is not part and parcel of Ac.1.10 guntas recognised by the civil Court decree in favour of the second defendant, but the appellate Court dismissed the suit filed for injunction. He would further argue that the trail Court held that the plaintiff is in possession of the suit schedule property and that the appellate Court without setting aside the said finding, the injunction granted was reversed and that the second defendant is not a party to the consent decree and therefore, it is not binding upon him. He would further argue that in a suit for declaration of title and perfection of title by adverse possession is maintainable in respect of Inam land. He would further aver that whether the occupancy rights certificate under A.P. (TA) Abolition of Inams Act can be granted in respect of urban/residential/non/agricultural property, and therefore, requested to allow this second appeal.

Learned counsel for the appellant-plaintiff relied upon the registered lease deed-Ex.A1 and submitted that the plaintiff was in possession of the suit schedule property from the year 1969 itself and the lease is for a period of 94 years. He also constructed house in the half of the extent and paid house tax under Exs.A2 to A8 and thus, he established his possession over the suit schedule property.

Learned counsel for the defendants would argue that O.S.No.54 of 1983 was filed by Khaja Asif Ali against one Syed Suleman seeking declaration of title and rectification of wrong entries in record of rights in respect of the suit schedule property i.e. Ac.1.10 guntas in Sy.No.399 measuring Ac.3.00 guntas situated at Deverakonda. The plaintiff would state that he is the owner and possessor of the suit schedule property and he is in possession and enjoyment by paying land revenue for more than

12 years and that he perfected title by adverse possession over the suit schedule property. He would further contend that the defendant therein interfered with his possession on 02.01.1993 and as such he filed the suit for declaration. The said suit was filed on 27.01.1983. The defendant filed his written statement on 31.01.1983 and admitted the averments made in the plaint. He specifically admitted that the plaintiff is the owner and possessor of the suit land and he is cultivating the same and enjoying the fruits there from and also paying land revenue regularly and that the defendant has no manner of right whatsoever over the suit schedule property and that due to some misunderstandings he interfered with the possession of the plaintiff and that he has no objection if the name of the plaintiff is entered in the revenue records as owner and possessor by duly deleting his name. Accordingly, a consent decree was passed on 31.08.1983 declaring that the plaintiff is the owner and possessor of the suit schedule property.

Ex.A1 was executed on 24.05.1984 by Syed Suleman and others in favour of the plaintiff in which it was stated that lease was granted from 20.02.1969 with possession. As the plaintiff was intending to construct in the said land, they executed the lease deed on that day and the lease is for 94 years i.e. from 20.02.1969 to 19.02.2062. It was further stated in the lease deed that after completion of 94 years of lease period, on payment of construction costs, the defendants can take back the possession. Perusal of the document would show that it was executed for 161.3 square yards i.e. 134.899 metres, but survey number of the land is not mentioned anywhere in it. Syed Suleman in his written statement filed on 31.01.1983 in O.S.No.54 of 1983 he clearly admitted Khaja Asif Ali is the owner and possessor of the said land and he has no objection to enter his name in the record of rights by deleting his name, and accordingly, a consent decree was also passed on the same day. The plaintiff could not explain the cogent reasons anywhere why the lease deed-Ex.A1 was executed in the year 1984 for a period of 94 years. He simply stated that he is not a party to the consent decree and it is not binding on him. He also stated that he was in possession of the land from 1969 onwards but the said document under Ex.A1 is executed in the year 1984 as he intends to construct a house in the said land. As per the judgment and decree passed in O.S.No.54 of 1983 he perfected title by adverse possession and it was also admitted by the defendant therein and thus, a consent decree was passed.

Learned counsel appearing for the defendants would mainly contend that the plaintiff is not acquired title by adverse possession and he has not filed any sale deed to prove the flow of title. Admittedly, the suit is filed for injunction simpliciter. It is the bounden duty of the plaintiff to establish his absolute possession over the plaint schedule land to grant injunction in his favour. Except Ex.A1 he has not filed any other material documents to substantiate his contentions. In view of the consent decree passed in the year 1983 Syed Suleman is not owner of the land and he cannot execute lease deed in favour of the plaintiff, and therefore, the lease deed executed in favour of the plaintiff itself is invalid and the possession basing on the said document cannot be accepted. Whereas the second defendant filed consent decree, occupancy certificate issued in his favour by the Revenue Divisional Officer, Miryalaguda, and pattadar pass book and title deeds in support of his contentions.

The appellate Court also observed that as on the date of Ex.A1, decree was already passed in O.S.No.54 of 1983 and hence Syed Suleman against whom decree was passed had no right to execute the lease deed. It was also observed that though the registered lease deed was dated 23.05.1984, the suit was filed in the year 1997. In the lease deed it was not mentioned how the executants got the property and that the plot number and survey number was also not mentioned, and thus, the appellate Court rightly held that it is for the plaintiff to prove his possession, but, he failed to do so and accordingly, the appellate Court allowed the appeal filed by the defendants by setting aside the order of lower Court.

The appellant herein would contend that whether title by adverse possession is maintainable in Inam land for declaration of title and so also whether occupancy rights certificate under A.P. (TA) Abolition of Inams Act can be granted in respect of urban/ residential/non-agricultural property as substantial question of law. But, as it is a suit for injunction those issues need not be decided in this appeal.

For the foregoing discussion, this Court finds no reason to interfere with the findings of the appellate Court.

In the result, the Second Appeal is dismissed. However, there shall be no order as to costs.

Pending miscellaneous petitions, if any, shall also stand dismissed in the light of this final judgment.