HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A. No.46 of 1986 Date: 29.03.2011 Between: Bhoomaji Pader (died) per LRs ….Appellants. And: Mir Mushtak Ali Khan and others. …..Respondents. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A. No.46 of 1986 JUDGMENT: (per Hon’ble Sri Justice P. Durga Prasad) This appeal is filed against the order dated 30.03.1979 passed by the Additional Chief Judge-cum-Additional Metropolitan Sessions Judge, Hyderabad in O.P.No.392 of 1974. The appellant herein is the 6th claimant therein. The Commissioner, Municipal Corporation, Hyderabad for the purpose of construction of a National Park, below the Tank bund road, sent a requisition for acquisition of lands situated in Kaire, Lingampalli, Gaganmahal, Rasoolpur village, Hyderabad. Though originally requisition for 231 acres, an extent of 100 acres were required and it was notified. The present OP relating to an extent of 24 guntas in S. No.59 and Ac.4.01 gunta in S.No.60, Gaganmahal village. Before the Land Acquisition Officer, one Mir Hussain Ali Khan filed the claim petition stating that he is the owner of the property and he sold the same to the so many parties and hence the compensation must be paid to him and the other claimants are relying upon and deriving their titles through Meer Hussain Ali Khan except the claimant No.6 viz., Bhoomaji Pader and he made a separate claim stating that he has purchased 1/4th share from Nawab Hadi Jung, S/o.Sri Shah Yar Jung who is the joint pattedar of the above said land in S.Nos.59 and 60 by registered sale deed dated 5.12.1963. In view of the contradicting claims, the Land Acquisition Officer has made the reference to the civil court under Section 30 of the Land Acquisition Act (for short, the Act) vide reference dated 16.7.1974 for deciding the apportionment of compensation for the land situated in S.Nos.59 and 60 of Gaganmahal village, Hyderabad District. The claimant No.1 has filed the claim statement claiming that he is the sole owner of Ac.04.25 guntas in S.Nos.59 and 60, Gaganmahal village, Hyderabad by virtue of his title to the said land as well as his continuous, uninterrupted, open, exclusive and actual physical possession of the said area for over 30 to 40 years. He further contended that his father was in exclusive possession of the said land till his death in 1936. His father’s possession also was open, exclusive and without interruption for a number of years before his death and after his father’s death in 1936, he came into possession of the said property and he is continuing in his possession without any interruption. In exercise of acts of ownership he was executing leases for limited periods in favour of third parties for quarrying earth for making bricks, etc. On 4.3.1962, he applied to the revenue Authorities for mutation of patta in his name in respect of the land in S.Nos.59 and 60 of Gaganmahal village and mutation of patta was effected in his name on 10.5.1962 after due publication of a notification in the prescribed manner calling for objections. Thereafter, he entered into an agreement on 6.5.1962 with one Subbaraya Sastri for the sale of the land in S.Nos.59 and 60, Gaganmahal village, Hyderabad. The said Subbaraya Sastri had paid Rs.2,000/- on the date of agreement, but since he committed a breach of agreement, the agreement was cancelled. Subsequently in the year 1964 out of Ac.4.25 guntas in S.Nos.59 and 60, Gaganmahal village, this claimant had sold about 15,277 sq. yards to P.V. Prasada Rao and others by registered sale deeds. In February, 1964, he has sold 5,025 sq. yards to claimants 2 to 5 by registered sale deeds. The claimants have submitted a lay out plan in respect of the entire lands in S.Nos.59 and 60, Gaganmahal village for himself and on behalf of claimants 2 to 5 and Prasada Rao and others to whom he had sold portions of land on the basis of which a plan was prepared by Municipality on 7.6.1964. Since the land formed part of 100 acres proposed to be acquired by the Municipality, the plan was not sanctioned as evidenced by a resolution passed on 5.3.1966 by the Standing Committee of Hyderabad Municipal Corporation. No other person or persons except this claimant and the claimants 2 to 5 and Prasada Rao and other claimants 7 to 23 to whom this claimant has sold portions of the land as stated above have any title to any portion of Ac.4.25 guntas nor any other persons or persons had any possession at any time in the past 30 to 40 years. Claimant Nos.2 to 5 have filed claim statement stating that they have purchased the land from the first respondent, Nawab Mir Hussin Ali Khan by registered sale deed dated 10.2.1964 for an extent of 5,025 sq. yards and the claim statement filed by the 1st claimant may be read as part and parcel of their claim statements. Since the date of the sale to them by Mir Hussain Ali Khan, they have been in open, continuous and uninterrupted possession of the land conveyed to them without objection by any one. They also submitted a layout plan to the Municipality for construction of the building. Therefore, the claimants 2 to 5 be declared as rightful owners of the area conveyed to them and they are entitled to the full compensation. Claimants 7 to 23 have filed their claim statement stating that the first claimant was in possession of the entire area of the said S.Nos.59 and 60, Gaganmahal village as owner thereof. The first claimant by a registered sale deed executed in the year 1963 and sold to the claimants 7 to 23 an extent of 15278 sq. yards comprised in S.Nos.59 and 60, Gaganmahal village and delivered the possession to them and they are in possession of the said property from that date till taking of the possession by the Municipal Corporation. As such they are entitled for the compensation for the land admeasuring 15278. The claimant No.6 nor his predecessors had any title or right over the said property. The claimant Nos.38 to 41 who are the legal representatives of the claimant No.3 have filed their claim statements stating that Mir Ashfaq Ali Khan died in 1976 and he along with claimants 2,4 and 5 are the owners of 5,025 sq. yards of land in S.Nos.59 and 60, Gaganmahal village and they have submitted a layout plan to Municipal Corporation, Hyderabad, but the layout plan was not sanctioned in pursuance of the resolution passed by the Standing Committee of the Municipal Corporation of Hyderabad dated 5.3.1966. The land belonging to Mir Hussain Ali Khan claimant No.1 who is the owner and possessor and pattader of the said land. The father of the claimants and claimants 1, 3 and 4 have purchased 5023 sq. yards and registered the same under sale deed dated 10.2.1964. Therefore, they are entitled for the compensation along with the claimants 2,4 and 5. Claimants 42 to 52 who are the legal representatives of the claimant No.5 adopting the claim statement already filed by the claimants 2 to 5. Claimant No.6 has filed the claim statement stating that he has purchased 1/4th share out of the total extent of Ac.4.25 guntas in S.Nos.59 and 60, Gaganmahal village a piece of land to the extent of 5,596 sq. yards from its rightful owner Nawab Khadi Jung, son of late Nawab Shah Yar Jung. Originally Shah Yar Jung and Shamsheer Jung were joint pattadars of the lands in S.Nos.59 and 60, Gaganmahal village admeasuring Ac.4.25 guntas. Both Shah Yar Jung and Shamsheer Jung expired. Shah Yar Jung has got two sons viz., Hadi Jung and Mehdi Jung. Shamsheer Jung has got one son Hussain Ali Khan who is entitled for half share out of Ac.4.25 guntas in S.Nos.59 and 60, Gaganmahal village. Shah Yar Jung’s heirs Hadi Jung and Mehdi Jung both share the other half share and as such each got 1/4th share of the total extent of land. This claimant purchased an extent of 5596 sq. yards through a registered sale deed dated 5.1.1963 from Hadi Jung after paying valuable consideration along with full notice to all the other claimants and share holders and as such Mir Hussain Ali Khan, the claimant No.1 has got full knowledge and confirmation about this claimant purchasing the land. More over, the Municipal Corporation through the Land Acquisition Officer has issued notice to the claimant and took possession from this claimant under cover of panchanama. This claimant had filed the original registered sale deed dated 5.12.1963 before the Land Acquisition Officer and it clearly shows the title and ownership of this claimant to the extent of 5596 sq. yards. The claimant No.1 Hussain Ali Khan has sold about 15000 sq. yards and now he is claiming the entire property for himself ignoring the rightful claim of the other share holders. He cannot deny the rightful share usurp for himself the entire lands and grab the entire compensation amount for himself. As such, this claimant is entitled for compensation for an extent of 5596 sq. yards along with other claimants. Therefore, from the above claim statements, it is observed that except claimant No.6, all the other claimants are claiming their rights through the claimant No.1 and claimant No.6 is alone claiming his right through Nawab Hadi Jung. Basing on the above pleadings, the lower court has framed the following point for consideration: Whether the claimant No.6 is the rightful owner of the property viz., S.Nos.59 and 60 or claimant Nos.1 and 2 are the right full owners of the property? In order to establish their respective claims, the claimants 2 to 5 examined P.Ws.1 and 2 and got marked Exs.A.1 to A.45 and on behalf of the claimant No.6, P.Ws.3 and 4 were examined and Exs.A.46 was marked. The learned Additional Chief Judge after taking into consideration of both oral and documentary evidence held that the claimants 2 to 5 are entitled for the compensation and the claimant No.6 is not entitled for any compensation. Aggrieved by the said order, the present appeal is filed. Now the point that arises for consideration is whether the claimant No.6 is entitled for the compensation to an extent of 50,596 sq. yards in S.Nos.59 and 60, Gaganmahal village, Hyderabad District? The learned counsel for the appellants has pleaded that one Shah Yar Jung and Shamsheer Jung are the joint pattedars of the land to an extent of Ac.4.25 guntas i.e., 24 guntas in S.No.59 and Ac.4.01 gunta in S.No.60, Gaganmahal village and Shah Yar Jung has got two sons viz., Hadi Jung and Mehdi Jung and Shamsheer Jung has got only one son viz., Mir Hussan Ali Khan. Since the land in S.Nos.59 and 60 stands in the joint pattedar, both Shah Yar Jung and Shamsheer Jung are entitled for equal share in the said property and as such the legal heirs of Shah Yar Jung viz., Hadi Jung and Mehdi Jung are entitled for half share and Mir Hussain Ali Khan who is the legal heir of Shamsheer Jung is also entitled for the half share in the entire Ac.4. 25 guntas of land situated in S.Nos.59 and 60, Gaganmahal village and out of their half share of Shah Yar Jung, Hadi Jung is entitled for 1/4th share and he sold the 1/4th share to the claimant No.6 by registered sale deed dated 5.12.1963. As such he is entitled to claim the compensation for the extent of the said land purchased by him. The learned counsel for the appellants has further pleaded that the Exs.A.1 to A.3 were not proved when the same was denied by P.W.4, as such Exs.A.1 to A.3 cannot be relied upon and the claimant No.6 establishes his claim by examining his vendor as P.W.4 and himself as P.W.3. From the above pleadings, it is clear that there is no dispute that the total extent of Ac.4.25 guntas is the entire land in S.Nos.59 and 60, Gaganmahal village. According to the claimant No.6, Shah Yar Jung and Shamsheer Jung are the joint pattedars of the said land and they are entitled for half share each. The vendor of claimant No.6 who is the P.W.4 is entitled for 1/4th share in the said property and as he has sold the said property in favour of the claimant No.6 and as such he is entitled for the compensation for the extent of land purchased by him from P.W.4. The other claimants who are claiming through Hussain Ali Khan who is the legal heir of Shah Yar Jung is not entitled for any share in the entire property. As such the sale of the entire land by Hussain Ali Khan does not confer any right on the other claimants as such the other claimants are not entitled for any compensation in respect of the 1/4th share of P.W.4. On behalf of the claimants 2 to 5, claimant No.2 is examined as P.W.2 and according to him claimant No.1 is the vendor from whom the claimants 2 to 5 purchased the land of an extent of 5025 sq. yards in S.Nos.59 and 60, Gaganmahal village out of the total extent of Ac.4.25 guntas. This land is also known as Phulbagh, below the lower tank bund. In Gaganmahal area, Claimant No.1 got no other land at all except the said land. They purchased the said land under registered sale deed dated 10.2.1964 for Rs.40,000/- and claimant No.1 was the possessor of this Ac.4.25 guntas since about 40 years i.e., from the days of his father. His father Nawab Shamsheer Jung died in 1936. After the death of his father, claimant No.1 was staying in the said land. Shamsheer Jung and Shahyar Jung were brothers and partitioned their properties almost 70 years back. They were the first pattadars of S.Nos.59 and 60, Gaganmahal village. In partition, land fell to the share of Shamsheer Jung. Claimant No.1 is the only son of Shamsheer Jung. Shayer Jung died in the year 1928 i.e., 1338F. He died leaving 2 sons and 2 daughters Mir Mahdi Ali Khan and Mir Hadi Ali Khan. As per Ex.A.1 Hadi Ali Khan relinquaihsed all his rights over all properties in favour of his elder brother Mehdi Ali Khan accepting Rs.1,25,000/- and Hiranbagh. As per Ex.A.2, Hadi Ali Khan deposed in support of the above partition. Now Hadi Ali Khan is not seen and his where abouts are not known at all. As per Ex.A.3, Hadi Ali Khan filed a petition confirming his relinquishment. Before their purchase, claimant No.1 entered into an agreement to sell Ac.4.25 guntas except 2000 sq. yards with an advocate N.V.B Sastry for Rs.1.00 lakh. Sastry advertised it in news papers in “Rehenuma-E-Deccan” dated 21.5.1962. Ex.A.4 is the certified copy of that advertisement. No objections were received for the request of Sastry. Ex.A.5 is the certified copy of the mutation proceedings originally granted by the Tehsil Office. Ex.A.6 is the Patta transfer copy. Finally the agreement was cancelled as Sastry failed to perform his part. Claimant No.1 cancelled the contract and sold the land to several people including themselves. O.S.No.29 of 1964 was filed by Sastry and claimants 2 to 5. Claimant No.6 is claiming 1/4th share out of Ac.4.25 guntas through his vendor Hadi Ali Khan. The Hadi Ali Khan relinquished all his rights. Therefore, according to P.W.2, the entire property in S.Nos.59 and 60, Gaganmahal village to an extent of Ac.4.25 guntas fell to the share of Shah Yar Jung in the partition between Shah Yar Jung and Shamsheer Jung and after the death of Shamsheer Jung, claimant No.1 became the absolute owner of the said property and from whom they have purchased the property and according to him Hadi Jung has relinquished his entire property in favour of his elder brother Mehdi Jung under Exs.A.1 to A.3. With regard to relinquishment of the share of Hadi Jung in favour of Mehdi Jung, the claimants 2 to 5 examined P.W.1 who has worked as Record Keeper in the office of the Commissioner of Land Revenue, Nampally and according to him they are also keeping the record of Nazim Aliyat (Revenue Office). Ex.A.1 is the certified copy of the compromise entered into between Mehdi Ali Khan and Hadi Ali Khan dated 15th Kundat, 1338 Fasili. Ex.A.2 is the certified copy of the statement made by Hadi Ali Khan datd 29th Khurdat 1338 Fasili. Ex.A.3 is the certified copy of the petition filed by the Hadi Ali Khan dated 27th Behman 1340 Fasili. Beneath the Ex.A.3, there is an affirmation by Hadi Ali Khan. The originals of Exs.A.1 to A.3 were brought by him from their office and Exs.A.1 to A.3 are the true copies of the originals. Both P.Ws.1 and 2 were not cross-examined on behalf of the claimant No.6. Therefore, their evidence stood un- rebutted. Claimant No.6 in order to establish his contention examined himself as P.W.3 and according to him he is the owner of 1/4th extent out of Ac.4.25 guntas in S.Nos.59 and 60, Gaganmahal village. He purchased the land from ¼ title holder Nawab Hadi Jung, son of Shahiyar Jung. Ex.A.46 is the registered sale deed dated 5.12.1963. The land was originally belonged to two joint pattadars viz., Shah Yar Jung and Shamsheer Jung. Shah Yar Jung got 2 sons viz., Hadi Jung and Mehdi Jung. Claimant No.1 is entitled for half share of the patta being the son of Shamsheer Jung and his claim for the entire land is not at all correct. In the cross-examination, he has stated that he do not remember to have paid Rs.500/- at the Registrar’s office under Ex.A.46 being the balance. The entire consideration was Rs.2,000/- for 5596 sq. yards. The original sale deed was misplaced. The other 1/4th share belonged to his vendors brother. His other brother is not claiming his 1/4th share in this OP now. After his purchase, on his approach the Revenue Patwari sent a notice to claimant No.1 but it was returned as refused. He did not cause any advertisement published in newspapers. He did not have any other lands in the city. He do not know whether the properties were divided long back and Shamsheer Jung was the sole owner of this Ac.4.25 guntas and that claimant No.1 is in possession since a long time. He do not know whether the father and son were paying the land revenue for this entire Ac.4.25 guntas since the last 50 or 60 years. He do not know whether in 1338 Fasili there was an agreement between his vendor and his brother as per which his vendor gave up all his rights for other immovable properties. He do not know that his vendor has no right over this property. Claimant No.6 in support of his contention examined his vendor Hadi Jung as P.W.4 and he has stated that the land bearing S.Nos.59 and 60, Gaganmahal village admeasuring Ac.4.25 guntas joint patta of his father and his uncle and it is still in joint patta. He is 1/4th share holder in the said land. He sold his 1/4th share to Bhoomaji Rao claimant No.6 for the consideration of Rs.2,000/-. The possession of the land was handed over to Bhoomaji claimant No.6 from the date of registration of the sale deed. He do not know that what happened to that land after the registration of the sale deed. He has not received any notice from Municipal Corporation, Hyderabad in respect of the land after registration. The land may be in the possession of the Bhoomaji claimant No.6. He do not know whether after acquisition, the Corporation took possession of the said land from claimant No.6. His real brother’s name was Mehdi Jung. He died in the year 1944. He left behind him three sons, two daughters. He has not executed any relinquishment deed in favour of his elder brother. He has not signed and filed any papers before the Tahsildar or any court requesting them to grant pattas of the land in favour of his brother. He has not submitted any application before the Tahsildar office for the grant of the pattas in favour of any person. He has executed the sale deed in favour of the claimant No.6 out of his free will and concern and without any coercion. In the cross-examination, he admitted that his father died in 1927 and at that time his uncle Shamsheer Jung was alive. His father was elder than his uncle. His uncle Shamsheer Jung died in 1935. His father has two sons and two daughters. When his father died his mother was alive. There was partition between his father and uncle Shamsheer Jung, in respect of whatever properties were there for partition between his father and his uncle Shamsheer Jung. At the time of his father death his brother was called Mehdi Ali Khan and himself Hadi Ali Khan. The word Jung is a title conferred by the H.E.H., the Nizam. The title Jung was conferred on him in the year 1945. He do not remember when the title was conferred on his brother. After death of his father Haran Bagh was allotted to his share and it is situated at Saidabad. He did not purchase the said bagh as it was allotted to his share. He has sold that property in the year 1934. The land measures about Ac.4.00. Along with the other properties he got Haranbagh also in his share. At present he do not have list showing the properties allotted to his share. There was an agreement between his brother and himself allotment of properties within 25 days after his father’s death. There was no enquiry before the Nazim Atiyat in respect of the succession. He has not gone to the Nazim Atiyat Court, nor given any statement there. He has not filed any compromise between himself and his brother, before the Nazim Atiyat. He admitted that he received Rs.50,000/- as his share for Yakutpura Palace and Rs.25,000/- for Karkana Santh-E-Hind, and Rs.25,000/- for Sendhi Band in Tandur Jagir and Rs.25,000/- for Shahyar Garh in Moula Ali. He has not executed relinquishment deed having accepted Rs.1,25,000/- and Haranbagh to his share. Jewellery and railway shares were already partitioned. After allotting the ½ (half) of the property of Ganganmahal to their uncle the other half share will be entitled by himself and his brother equally. His brother share goes to his children. Neither himself nor his brother demanded partition of Ganganmahal property as it was a joint patta. He never asked after his brother death with his uncle or his children for partition of the said land. After the death his uncle, his children were paying the land revenue for the said land. He admits that after the death of Shamsheer Jung, Hussain Ali Khan was in possession of Gaganamahal property because it stood in joint patta. He also admits that originally all the properties were in the possession and enjoyment of Shamsheer Jung and Shah Yar Jung. Mehdi Ali Khan had three sons and two daughters. He heard that the patta has been transferred in the name of Hussain Ali Khan. He denies that to his knowledge the market value of the said property was Rs.10/- per sq. yard in 1962 to 1963. He denies that he sold the said property for five ‘annas’ per sq.yard because he had not title. He has not handed over any document except execution of the registration of the sale deed in favour of claimant No.6. Therefore, P.W.4 admitted about the transfer of patta in the name of Hussin Ali Khan i.e., the claimant No.1 herein. He also admitted that after the death of Shah Yar Jung, the claimant No.1 is in possession of the said property and Shah Yar Jung and his sons are paying the land revenue for the said land. Even though he is claiming that the entire property was shared between his father Shah Yar