IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE G.CHANDRAIAH SECOND APPEAL NO:1239 OF 2009 DATED:23.11.010 Between: 1.Sathineni Mallaiah & others ..... APPELLANTs AND 1 Singireddy Satyamma & another .....RESPONDENTS The Court made the following : THE HON'BLE SRI JUSTICE G.CHANDRAIAH SECOND APPEAL NO:1239 OF 2009 JUDGMENT: This second appeal is filed by the defendants-appellants against the judgment and decree passed in A.S.No:89 of 2008 on 31.7.2009 by the learned 3rd Additional District Judge, Karimnagar. The appellants are defendants-1 to 4 and the respondent herein is the sole plaintiff in the suit. The brief facts of the case are: The plaintiff filed O.S.63 of 2003 on the file of the learned Senior Civil Judge, Karimnagar, for recovery of possession of the suit schedule land by evicting defendants-1 to 4. The case of the plaintiff is that the suit land in S.No:347 to the extent of Ac.3.00 situated at Arepally village, Karimnagar District originally belonged to 5th defendant. The 5th defendant converted the said land into plots in the year 1982-83 and sold away the same to different persons. The plaintiff purchased a plot bearing No:20 and 21 totally admeasuring 767 square yards out of the said survey number from the 5th defendant for a valid consideration. The 5th defendant executed a registered sale deed document No:716/19983, dated 16.2.1983 in favour of the plaintiff. Since the date of purchase, the plaintiff is in possession and enjoyment of the suit land. The name of the 5th defendant is continued in the revenue records. The plaintiff did not mutate her name in the revenue records. The suit schedule land is a residential plot. After purchase of the suit plot by the plaintiff, the Government laid S.R.S.P canal through the northern side plots of the suit land. Plots-18, 19, 22 and 23 which are situated on the northern side of the suit land, were effected under the canal. The plaintiff had been in continuous and uninterrupted possession over the suit land till 15.7.2002, on which date, the plaintiff was dispossessed illegally by defendants-1 to 4. The defendants removed the boundary stones of the plots of the plaintiff and ploughed the suit land, soughtern side 30’ riad abd westerb sude 20’ road and made the roads to disappear on 15.7.2002. The plaintiff and her husband requested the defendants-1 to 4 to restore the possession to the plaintiff, for which they refused. The grave of the husband of the 5th defendant is situated on the north west corner of the suit land. Defendants-1 to 4 in collusion with 5th defendant have created bogus and illegal documents in respect of the land and grabbed the suit land from the possession of the plaintiff. The defendants do not have any legal right or possession over the suit schedule land. Therefore, the plaintiff filed the suit for recovery of possession of the suit land. The case of defendants-1 to 4 who have filed a common written statement is that they purchased the suit schedule land from the legal heirs of V.Narasimha Reddy who purchased it from the 5th defendant. The plaintiff was never in possession of the suit land. V.Narasimha Reddy purchased Ac.1.05 guntas of land under a registered sale deed in the year 1988. The remaining land was sold by them in favour of Bathini Srinivas and others. The land of the plaintiff was already acquired by the Government for the purpose of laying canal. Defendants-1 to 4 are in lawful possession of the suit land and they are the bonafide purchasers of the suit land for a valid consideration. The suit is barred by limitation. The plaintiff is not in possession of the suit land since 1983. The 5th defendant has filed a separate written statement contending that he is the owner and possession of the land in S.No:347 admeasuring Ac.3.00 guntas. She did not convert the said land in to house plots in the year 1982-83. The plaintiff has not been in possession of the suit land. The contention of the plaintiff that she was dispossessed by defendants-1 to 4 on 15.7.2002 and defendants- 1 to 4 removed the stones and ploughed the suit land, southern side road and western side road of the suit and in collusion with 5th defendant, they have created the forged document, is false. Defendants-1 to 4 did not grab the suit land and they never trespassed into the suit land. Basing on the said pleadings, the Court below had framed the following issues: 1.Whether the plaintiff purchased the suit land and was in possession of it? 2.Whether the plaintiff was dispossessed by the defendants from the suit land? 3.Whether the suit land is part of land purchased by defendants? 4.Whether the suit land is affected in Land Acquisition by the Government for S.R.S.P canal? 5.Whether the suit claim is barred by limitation? 6.Whether the plaintiff is entitled for recovery of possession? 7.To what relief. During the course of trial, P.ws.1 to 3 were examined and Exs.A1 to A8 were marked on behalf of the plaintiff and D.Ws.1 to 4 were examined and Exs.B1 to B10 were marked on behalf of the defendants. On a consideration of the evidence on record, the learned trial Court by judgment and decree dated 22.10.2008, decreed the suit as prayed for, for recovery of possession of the suit schedule land by evicting defendants-1 to 4. Aggrieved by the same, defendants-1 to 4 preferred an appeal in A.S.No:29 of 2008 on the file of the learned 3rd Additional District Judge, Karimnagar. The learned 1st appellate Court framed the following points for consideration: “Whether the plaintiff is not the owner of the suit schedule property and appellants are only the owners of suit schedule property as contended by the appellants. Whether the Government acquired the land in the lands of the appellants or in the lands of the plaintiff for laying S.R.S.P. canal and whether the plaintiff is in possess and dispossessed from the suit land?” O n reappreciation of the evidence on record and after considering the points framed for consideration, the 1st appellate Court held that it is sufficient to hold that the plaintiff has proved her right under Ex.A1 as an absolute owner in respect of the suit schedule land. Under the second point, it held that all the P.ws. categorically stated that the plaintiff was inducted in possession by the vendor under Ex.A1 till she was dispossessed on 15.7.1982 by the defendants illegally by disturbing the boundaries and their evidence is not at all shattered by the counsel for the defendants that there was no such disturbance and hence, the case of the plaintiff appears to be probable to believe the defendants-1 to 5 in collusion trying to grab the existing land in S.No:347 belonging to the plaintiff after laying S.R.S.P canal and that since the plaintiff proved that she was in possession by virtue of her title and dispossession, the Court below has rightly decreed the suit of the plaintiff and consequently, the appeal is dismissed. Aggrieved by the same, the present second appeal is filed by defendants-1 to 4 in the suit. The learned counsel appearing on behalf of the defendants- appellants did not controvert any of the findings of the trial Court or the lower appellate Court, on the issues framed. He sought to contend that there is no dispute that originally, V.Narasimha Reddy was the originals owner of the entire land in S.No:347, from whom the 5th defendant had purchased and that D5 had in turn sold the land by making it into plots and Defendants-1 to 4 and the plaintiff are the purchasers from the 5th defendant. He also submits that the controversy between the plaintiff and defendants-1 to 4 is that according to the plaintiff, the land purchased by defendants-1 to 4 was acquired by the Government whereas according to the defendants, the land purchased by the plaintiff was acquired by the Government and therefore, the plaintiff had no land at all. He further sought to contend that there is no identification of the suit schedule land and the plaintiff was never given possession of the land as contended by the plaintiff pursuant to Ex.A1. The learned counsel does not dispute either the existence or validity of Ex.A1 sale deed pertaining to the plaintiff and that Exs.B1 and B2 pertain to defendants-1 to 4. He further contends that the Government issued G.O.Ms.No:377, Panchayat Raj, dated 12.10.1973 contemplating the Rules relating to the Regulation or Restriction of Building and the Use of Sites for Buildings. Rule 3 of the said G.O reads as under: Rule 3: Owners to make a lay out and to form a street or road when disposing of lands as building sites: 1.The owner of any land shall, before he utilizes, sells ceases or otherwise disposes of such land or any portion thereof, as sites for construction of buildings; (a)make a lay out and form a street or road giving access to sites and connecting them with an existing public or private street except in cases where the sites abut on an existing public or private street; (b)set apart in the lay out, atleast 5 percent of the total area of land for a play ground, a park, an educational institution or for any other public purpose as may be prescribed by the Gram Panchayat; ©shall give notice to the Gram Panchayat concerned in the application form appended in Appendix K. (2)unless the conditions specified in clauses (a) and (b) of sub rule (1) are satisfied, the owner shall not be entitled to utilize, sell, lease or otherwise dispose of his land or any portion for the construction of buildings. (3)No permission for the construction of buildings in such land or portion thereof shall be granted by the Gram Panchayat, unless- (i)the street or road as required in sub rule (1) is laid out and the condition required in sub rule (2) thereof is fulfilled; and (ii)all layouts indicating sub divisions of land, however small they are approved by the Gram Panchayat.” He submits that the alleged transaction is in utter violation of the said Rules and therefore, the land in question was never made into plots and there was no sanction of lay out at all. Hence, the vendor ie., D5 had no right to sell the property in contravention of the Rules and the plaintiff had no right to purchase the same. Therefore, he submits that the relief granted by both the Courts i n favour of the plaintiffs, is illegal and contrary to the Rules. However, he does not dispute the fact that this particular aspect has not been pleaded either before the trial Court or before the lower appellate Court nor any issue is framed therein or any evidence is lead thereto. But, he submits that the point that has been raised in this second appeal, is a question of law, which can be raised at any point of time and it is permissible to raise the same under section 100 C.P.C in spite of the fact that the said issue did not fall for consideration either before the trial Court or before the lower appellate Court. On the other hand, the learned counsel appearing on behalf of the sole plaintiff-respondent, submits that the question of law raised by the appellants, is not a question of law at all and it may be a question of law coupled with the question of fact. Therefore, it is not a question of law for the reason that the defendants do not dispute the validity of Ex.A1 and B1 and B2, under which the plaintiff and defendants-1 to 4 had established their rights and that when the defendants-1 to 4 are claiming their right under Exs.B1and B2, the rules that are sought to be made applicable, cannot be made applicable to the plaintiff alone, but also to defendants-1 to 4 and if that being the case, defendants-1 to 4 also do not have a case. Therefore, he submits that the plea sought to be taken in the second appeal, was not taken by defendants-1 to 4 either before the trial Court or before the lower appellate Court. He also submits that the Rules sought to be pressed into service by the defendants-appellants, does not say that a plot purchased by the plaintiff can be said to be illegal on account of not following the Rule. He contends that it only says that unless the conditions specified in clause-(a) and (b) of Rule 3 (1) are satisfied, the owner shall not be entitled to utilize, sell, cease or otherwise dispose of the land or any portion thereof, as sites for construction of buildings. The transactions that have been taken place never dealt with that the sites in question were purchased for the purpose of houses at the relevant point of time. It only shows as “plots”. Therefore, he submits that having failed to raise the plea in both the Courts below, the appellants-defendants-1 to 4 cannot make a different case in the second appeal and apart from that, the plea taken by the appellants-defendants does not at all constitute a question of law as submitted by the learned counsel for the defendants-appellants. Therefor, the point that arises for consideration is as to whether whether the transactions held between the plaintiff and D5 on one hand and Defendants-1 to 4 and D5 on the other would disentitle both of them to hold the possession of the said land in case of failure to follow Rule 3 of the Rules relating to the Regulation or Restriction of Building and the Use of Sites for Buildings as contemplated under G.O.Ms.No:377, dated 12.10.1973. The suit filed by the plaintiff is for recovery of possession based on a valid transaction under Ex.A1 held by the plaintiff. On behalf of the plaintiff, the evidence was led and necessary issues were framed and all the issues were held in favour of the plaintiff and aggrieved by the same, the defendants-appellants have filed the appeal. The case of defendants-1 to 4 is that the land purchased by the plaintiff was acquired by the Government and therefore, there is no such land as claimed by the plaintiff and the 5th defendant who is the vendor of the plaintiff in her written statement completely denied the claim of the plaintiff. In this regard, both the Courts below have considered the issue elaborately and held that the plaintiff is the purchaser of the suit schedule land under Ex.A1 and she was put in possession of the suit schedule land and she was dispossessed by defendants-1 to 4 and therefore, the plaintiff is entitled to recover the possession of the schedule land from defendants-1 to 4. Therefore, the contention of the learned counsel for the appellants-defendants that the point that could not be raised either before the trial Court or before the lower appellate Court can be raised in the present second for the first time on the ground that the substantial question of law can be raised at any point of time, cannot be accepted. Moreover, the entire judgment of the trial Court or the lower appellate Court, does not say that the suit site was meant for house sites at the relevant point of time. Therefore, at this length of time, the Rules as contemplated under G.O.Ms.No:377, dated 10.10.1973 cannot be allowed to be pressed into service without there being such a plea at the appropriate point of time. Therefore, I do not see any reason to interfere with the concurrent findings of the lower Appellate Court and consequently, the second appeal is liable to be dismissed. Accordingly, this second appeal is dismissed confirming the decree and judgment of the lower appellate Court. No order as to the costs. ________________________ Justice G.CHANDRAIAH Dated: 18.11.2010 Gurc. THE HON'BLE SRI JUSTICE G.CHANDRAIAH SECOND APPEAL NO:1239 OF 2009 18.11.2010