HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD A.S. No.290 of 2010 Date:22.03.2011 Between: Y. Satyanarayana ….Appellant. And: The Kukatpally Municipality rep. by its Commissioner and another …..Respondents. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD A.S. No.290 of 2010 JUDGMENT: (per Hon’ble Sri Justice P. Durga Prasad) This is an appeal arising out of the judgment and decree passed in O.S.No.121 of 2001 by the II Additional District Judge, Ranga Reddy at L.B. Nagar on 20.08.2007. The appellant herein is the plaintiff and he has filed the suit for declaration of title, delivery of the possession and consequently injunction. The brief averments of the plaint are that the plaintiff has purchased A.2.00 Gts., of land from Nawab Mir Fazilat Hussain Khan and Y. Janga Reddy under registered sale deed dated 22.1.1966 under Document No.36/1966. the said land forms part and parcel of S.No.806 of Kukatpally village and it consists of total extent of Ac.23.38 Gts. The plaintiff along with eleven others purchased entire land from Mir Fazilath Hussain Khan and Y. Janga Reddy separately on 22.1.1966. The plaintiff and other purchasers of the said land obtained permission jointly for one common layout from the director of Town Planning on 24.2.1978. As per Layout Rules 5,245 sq. yards was left over by the owners in respect of their respective shares out of total plotted area. After deducting the surrendered area, there is excess land of 2,216 sq. yards still vacant. The plaintiff has got subsisting rights in suit schedule property by virtue of relinquishment deed dated 6.3.1979 executed by the other purchasers/co-sharers in favour of the plaintiff which was validated by the Collector. The other share holders relinquished their rights of their respective shares in the suit schedule property to an extent of 2216 sq. yards and thus the plaintiff became the absolute owner of suit schedule property. The plaintiff has constructed a temporary room bearing No.9- 120 with asbestos sheets and paid taxes to the same to the then Gram Panchayat and he recently came to know that the defendant with his staff high handedly removed the room and demolished the structures without any notice to him. The action of the defendant municipality is a clear violation of R-10(1) of A.P. Municipal Layout Rules, 1970 as the plaintiff along with eleven other members have already left open area of 5,425 sq. yards for the purpose of parks and other public purposes. The defendant has filed a W.P.No.2458 of 2001 before this Court to protect his rights over the suit property and to measure entire land in S.No.806 of Old Kukatpally village and also to direct the defendant to deliver vacant land measuring 2216 sq. yards and for other releifs. This Court while disposing the said W.P. on 14.2.2001 directed to file a civil suit as it involves declaration of title and delivery of possession. Later the plaintiff has issued statutory legal notice to the defendant asking the defendant to declare the plaintiff as owner and also for delivery of possession of suit property and in spite of receipt of the notice, the defendant- authority trying to change the nature of land. Hence, the suit. Originally, the suit is filed against the 1st defendant who is Municipal Commissioner, Kukatpally Municipality. Subsequently, the 2nd defendant is impleaded as party to the suit. The 1st defendant has filed the written statement admitting that the Director of Town Planning, A.P. has approved layout vide No.8/78 in S.No.806 of Bobbuguda village for an extent of 1,08,500 sq. yards under A.P. Gram Panchayat Act in the year 1978 and the same was released by the then Gram Panchayat to the land owners. As per the Gram Panchayat Layout Rules 5% of total extent layout was reserved for open space i.e., 5,425 sq. yards. After development of land by the owners as per the layout, the plots were sold to different individuals and permission for construction of residential houses were granted to the said plot owners. The land was developed according to the sanction layout, formation of the roads and earmarked open places are being maintained by municipality and the said layout area is now called as Panduranga Nagar. The defendant is now under the possession of earmarked three open spaces for public utility in three different locations. The land earmarked as open spaces “for parks and public utility are under the maintenance of defendant municipality”. Up to the formation of defendant municipality in the year 1987, the Bobbuguda village limits also made as part of defendant municipality and since then the open spaces earmarked the layout i.e., site 1 and 2 as stated above are in possession and control of defendant municipality. The site No.3 i.e, earmarked open space park, where now a temple is in existence. In respect of the subject matter of the land, one Mr. Sadiq Ali filed a suit in O.S.No.507 of 1994 before the District Munisif, West and South and in the said proceedings the learned District Munisif appointed Advocate Commissioner and in the report of the said Commissioner, noted the present status of three open spaces. It is also stated that the layout was sanctioned in the year 1978 and the defendant municipality was constituted in the year 1987 and after long lapse of period now the plaintiff claiming the suit land only with an intention to grab the suit land which is under control and occupation of the defendant municipality. The municipality is developing all the open spaces into parks for public purpose. The defendant Municipality denying that the co-purchasers/co sharers relinquished their right over their respective schedule property in favour of the plaintiff and the same was validated by District Collector. It is stated that the left over space measuring 5425 sq. yards under the layout also includes the suit land. The suit land is ear marked as open space for park and public utility and the same is under possession and control of defendant municipality. The plaintiff has no right over the suit schedule property and there is no cause of action to file the suit and the plaintiff is not entitled for any relief as prayed for and the suit is liable to be dismissed with costs. The 2nd defendant has filed written statement admitting that the Director of Town Planning A.P., has approved layout No.8/78 inS.No.807 of Bobbuguda village to an extent of 1,08,500 sq. yards under A.P. Gram Panchayat Act, 1978 and the same was released by the then Gram Panchayat to the land Owners. As per Gram Panchayat layout Rules 5% of the total extent layout was reserved for open spaces i.e., 5425 sq. yards for public utility like parks, Temple, Play Grounds, Community Halls etc. The concerned plot owners having obtained necessary permission, constructed their respective residential houses and the residents of that area formed into an association called as Panduranga Nagar Welfare Association and accumulated funds from the members of the association for the developmental activities like private drinking water, drainage system, electricity connection, internal roads, parks, temples, play grounds community hall etc. The left over open three spaces for public utility in three different locations and the same are under possession of 1st defendant and the said three sites are being maintained by the 1st defendant for benefit of the residents of the locality to provide amentias. More over in the third open spaces laid water pipe line junction and supplying water to the entire colony and there is no vacant excess land in the said colony as alleged by the plaintiff. The 1st defendant has not demolished the house bearing No.9-120 at any point of time and the allegations are created for filing of false suit to grab the land by creating documents. Hence, the suit is liable to be dismissed. Basing on the above pleadings, the lower court has framed the following issues: 1. Whether the plaintiff is entitled to the declaration of his title over the suit schedule property? 2. Whether the plaintiff is entitled to vacant possession of the suit schedule property as prayed for? 3. Whether the plaintiff is entitled to perpetual injunction as prayed for? 4. To what relief? The plaintiff himself was examined as P.W.1 and got examined P.Ws.2 and 3. Exs.A.1 to A.12 are marked on their behalf. D.Ws.1 and 2 were examined on behalf of the defendant No.1 and Exs.B.1 to B.4 were marked on their behalf. As D.W.1 did not turn up for cross- examination, his evidence was eschewed. The learned District Judge by taking into consideration of both oral and documentary evidence held the Issue No.1 in favour of the defendants and against the plaintiff and consequently the other issues were held against the plaintiff and thereby dismissed the suit. Aggrieved by the said dismissal of the suit, the plaintiff therein has filed the present appeal. Now the point that arises for consideration is whether the appellant/plaintiff is entitled for declaration of his title over the suit schedule property and consequently entitled for possession of the suit schedule property and for perpetual injunction as prayed for? There is no dispute between the parties that the total extent of the land in S.No.806 of Kukatpally village is Ac.23.38 Gts., and for the entire land in S.No.806, a layout plan was sanctioned by the Director of Town Planning vide layout No.8/78. It is also an admitted fact that as per the layout rules, an extent of 5,425 sq. yards has to be left over by the owners from out of their respective shares out of total plotted area towards the public utility like park, play ground, temples etc. According to the appellant/plaintiff, after surrendering 5425 sq. yards of land towards public purposes to the municipality, there remaining an extent of land of 2,216 sq.yards still vacant and all the co-owners are entitled for the said excess land and the other co-owners have relinquished their rights over the said property in favour of the plaintiff under relinquishment deed dated 6.3.1979 and by virtue of the relinquishment deed he became the absolute owner of 2216 sq. yards which is the suit schedule property. The learned counsel for the defendants, on the other hand, has pleaded that as per the layout sanction plan 8/78 three open spaces are left over towards public purposes which is total extent of 5425 sq. yards and there is no excess vacant land of 2216 sq. yards as claimed by the plaintiff in the said layout and as such the question of plaintiff became an absolute owner under relinquishment deed does not arise and they also denied about the execution of the relinquishment deed in favour of the plaintiff by the other co-owners and as such the plaintiff is not entitled for any reliefs as claimed by him. The learned counsel for the appellant has pleaded that as per Ex.A.2 layout plan three open spaces are shown and the two open spaces covers an extent of 5425 sq. yards surrendered by them to the municipality and the third open space is 2216 sq. yards which was kept as open land by the co-owners as their own and by the date of relinquishment deed dated 6.3.1979 which is marked as Ex.A.3, he became the absolute owner of the said property. He further pleaded that he constructed a room over the said property and the same was allotted with door number 9-120 and he also paid the municipal tax for the said room and subsequently in his absence, the said room was demolished by the municipality. Therefore, he was constrained to file the present suit. Now the point to be decided is whether there is an excess land of 2216 sq. yards in the layout plan after surrendering of an extent of 5425 sq. yards to the municipality by the owners of the land? The plaintiff as P.W.1 examined himself and got examined two more witnesses to establish his contention that there is an excess of 2216 sq. yards apart from the land of 5425 sq. yards which was surrendered for the public purpose under the layout. P.W.1 in his chief-examination has narrated the facts as mentioned in the plaint. In the cross-examination, he has voluntarily deposed that the suit schedule property is separately earmarked in Ex.A.2 layout and they have kept the same as open land for their personal purpose and as such they have not shown it as a plot. Therefore, according to him, they have left 2216 sq. yards separately in the layout plan after leaving the other open spaces towards the public purposes. P.W.2 D. Mallesham who was examined on behalf of the plaintiff claiming to be the resident of Panduranga Nagar has stated that the plaintiff is the absolute owner and title holder of the suit schedule property and it belongs to the plaintiff herein still the suit schedule property is the vacant land and that the defendants illegally interfered and demolished the existing structure which belongs to the plaintiff. In the cross-examination, he has stated that he is residing in the house bearing No.9-81/11, Panduranga Nagar. The suit schedule property consist of 2200 sq.yards and he did not know whether there any open spaces are left over in Panduranga Nagar colony layout for the purpose of park or not. He denies that the suit property is left over to lay park for the benefit of residents of Panduranga Nagar colony. The other witness examined on behalf of the plaintiff is P.W.3 S. Ramulu. He also stated that he is residing in the above said Panduranga Nagar colony and the plaintiff is the absolute owner and title holder of the suit schedule property and it belongs to the plaintiff and still the suit schedule property is the vacant land and the defendants have demolished the existing structure which belongs to the plaintiff. In the cross-examination, he has stated that he do not know the survey number of the suit land and the total extent of the land is 2200 sq. yards since beginning of commencement of Panduranga Nagar colony. The said colony was planned as per approved Government lay out plan. He denies that three places were left over in the said colony for the purpose of laying of parks, play grounds etc. and he volunteers that only one open space left over in that colony. Therefore, both P.Ws.2 and 3 are not aware about the open spaces left out in the Panduranga Nagar colony layout. Moreover according to P.W.3, only one open space was left in the layout plan which is contrary to the layout plan submitted by the plaintiff himself. Therefore, the evidence of P.Ws.2 and 3 is not helpful for deciding the issue involved in the suit. Moreover their evidence cannot be relied upon as they are not aware of the existing open spaces in the Pandurangar Nagar colony and it is also doubtful whether they are the residents of the Panduranga Nagar colony as they have not produced any documentary evidence to show that they are the residents of said colony. Apart from oral evidence, the plaintiff has relied upon the documentary evidence. Ex.A.2 is the attested copy of the layout plan of 6/78 approved by the Director of Town Planning and as per the said layout plan three open spaces have shown in different spaces in the entire extent of Ac.23.38 Gts in S.No.806 and the said document does not disclose availability of any vacant land admeasuring of 2216 sq. yards apart from the three open spaces left over for the purpose of pubic. The plaintiff’s counsel has relied upon the evidence of D.W.2 to establish that the two open spaces are covers an extent of 5425 sq. yards and third open spaces is consisting of 2216 sq. yards belong to him. D.W.2 in his chef-examination, has narrated the same facts as mentioned in his written statement and in the cross-examination he admitted that the Advocate Commissioner was appointed by the Court and he has submitted a report and according to him the sketch of the item-I of the report of the Advocate commissioner is the suit schedule property but there is difference in measurement of the area comparing to Ex.B.3. Item No.2 of sketch in Advocate Commissioner report is same with sketch in Ex.B.2 and likewise Item No.3 of sketch in Advocate Commissioner report is similar to sketch in Ex.B.1. According to him there is a difference in area and measurement comparing to Item Nos.2 and 3 with Ex.B.1 and Ex.B.2. He admits that the total area physical open area Ex.B.1 to B.3 comes to 7210 including road areas. He admitted that the physical area in Ex.B.1 to B.3 are similar to Item No.1 to 3 in the Advocate Commissioner Report. He also admitted that the entire Sy.No.806 consisting of 23 acres and 38 guntas. He admitted that there is an existing temple in Ex.B.2 and there is an electric transformer, well and surrendered by the compound wall and Ex.B.1 and B.2 covered the area of 5,425 sq yards including roads. There are no structures in Ex.B.3. Therefore, basing on the admissions made by the D.W.2, in the cross-examination, the appellant’s counsel has contended that Ex.B.1 to B.3 measures 7210 sq yards and Exs.B.1 and B.2 measures 5425 sq. yards and as such the area covered under Ex.B.3 is the excess land belongs to him. But the D.W.2 has mentioned the said area of 7210 sq. yards covered in Exs.B.1 to B.3 includes road area and like wise he also included road area covered by Exs.B.1 and B.2 as 5425 sq. yards. The learned counsel for the defendant No.1 also pleaded that as per the layout plan 100 feet wide road has left over, but the same was not yet formed and the Commissioner has ever taken into consideration of 75 feet wide road and remaining 25 feet wide road was covered into the open area and as per the Exs.B.2 an 3 clearly shows that the road was included in the open area and if the road is excluded the area covered by Exs.B.1 to B.3 comes only 5,092.98 sq. yards. Therefore, the contention of the learned counsel for the appellant is that Exs.B.1 and B.2 covers an extent of 5425 sq. yards and the remaining land covered by Ex.B.3 belongs to them cannot be accepted. The lower court has rightly observed that Ex.A.2 layout plan does not disclose any open area left over by the land owners for their personal purpose and it only shows that three open areas and the Commissioner who has inspected the said land at the instance of the plaintiff also found three open spaces and he also prepared the plans mentioned as Item Nos.1 to 3. As admitted by the D.W.2, the said plan prepared by the Commissioner are same is that of Exs.B.1 to B.3 but the areas mentioned in the Commissioner defers from the area mentioned in Exs.B.1 to B.3. As rightly pointed out by the D.1’s counsel that the Commissioner has included the road area into the open area as the road was not yet formed and thereby come to the conclusion that there is the excess land. As per Exs.B.1 to B.3 the three open areas is 5,092.98 sq. yards which is the below the surrendered area of 5,425 sq. yards by the plaintiff and others. Therefore, the appellant has failed to establish that there is an excess land of 2216 sq. yards in Ex.A.2 layout plan. The next contention raised by the appellant that he is claiming that he is the absolute owner of the suit land basing on Ex.A.3 dated 16.3.1979. In that regard, the lower court has examined in detail with regard to the contention of the plaintiff and found that non of the owners who have relinquished their rights in favour of the plaintiff were examined to establish that they have sellable right over the suit schedule property. With regard to the construction of the room bearing Door No.9-120, the plaintiff has failed to examined any of the residents of Panduranga Nagar colony to establish that he is having a room with the Door No.9-120 in the said colony. As rightly pointed out by the 1st respondent’s counsel that the layout was sanction in the year 1978 and relinquishment deed was executed in favour of the plaintiff in the year 1978 but he has kept quiet for all these years and filed the suit in the year 2001. That itself shows that he is not having any title over the suit property and more over he has failed to establish his title over the suit schedule property as claimed by him. Therefore, the lower court has rightly come to the conclusion that the plaintiff has failed to establish his title over the suit property and also the existence of the property in the layout Ex.A.2 and thereby rightly dismissed the suit. Therefore, the finding of the learned District Judge does not warrant any interference by this Court. Hence, we hold that the plaintiff is not entitled for the declaration and consequential relief of recovery of possession or granting of injunction as prayed for. Accordingly, the point is held. In the result, the appeal is dismissed. In the circumstances, without costs. ______________________ B. PRAKASH RAO,J. _____________________ P.DURGA PRASAD,J. Date:22.03.2011. Gk. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD A.S. No.290 of 2010 Date:22.03.2011 Gk.