THE HON'BLE SRI JUSTICE P.S.NARAYANA S.A.Nos.593 and678 of 2003 20th April, 2010 Between :- Mohd.Ziauddin and others .. Appellants And State of A.P. Rep. by its Collector, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA S.A.Nos.593 and678 of 2003 COMMON JUDGMENT:- These Second Appeals are filed as against the Decrees and Judgments made in A.S.No.439/98 and A.S.No.439/98 on the file of the IX Additional Chief Judge, City Civil Court (Fast Track Court) at Hyderabad. Both these appeals had been preferred as against the Judgment and Decree made in O.S.No.3646/91 on the file of the II- Assistant Judge, City Civil Court, Hyderabad. The Appellate Court reversed the Decree and Judgment made by the Trial Court. The following substantial questions of law had been raised in both these Second Appeals:- 1) Having recorded a finding, both on the basis of the record and also on the basis of the admissions of the defendants, the plaintiffs are in possession of the suit property. Can a Civil Court refuse to grant injunction against the defendants merely because the defendants have subsequently filed a suit for obtaining possession as against the same plaintiffs found to be in possession. Is it not obligatory on the part of the Civil Court to prevent the defendants to interfere with the possession of the plaintiffs until the latter is evicted therefrom in due course of law. 2) Does the pendency of a Land Grabbing Cse prevent the defendants in the Special Court under A.P.Land Grabbing (Prohibition) Act at Hyderabad for approaching the Civil Court to protect his possession till they are evicted from the suit land in execution of the decree. 3) That once the Trial Court gave exemption to the plaintiffs from issuing suit notice under Section 80 CPC will the plaintiffs be obliged to issue fresh notice in respect of any amendment of the plaint more particularly when the amendment is in regard to only relief based on the same facts and cause of action. 4) Whether a suit for correction of record is in accordance with the title relating to the property is barred by any provision of law. 2. Sri Balchand, the learned Counsel representing the appellants in both these appeals would maintain that the other private parties had not chosen to prefer any appeal whatsoever and the said private parties are not represented by anyone. The learned Counsel also would point out that as far as the State of Andhra Pradesh, the Mandal Revenue Officer, Musheerabad, the Circle Inspector of Police, Chikkadpally, the Municipal Corporation represented by its Commissioner, these parties are bound by the Judgment made in LGC No.37/98 by the Special Court under the A.P.Land Grabbing (Prohibition) Act, Hyderabad and hence the suits are to be decreed and the decree granted by the original Court to be restored by allowing the Second Appeals. The learned Counsel also pointed out to S.A.M.P.No.2547/2008, an application filed for reception of Additional Evidence in S.A.No.593/2003. 3. On the contrary, the learned Government Pleader for Arbitration would maintain that this suit for injunction had been filed on the strength of a agreement and even otherwise it is not clear what would be the effect of the Judgment made by the Special Court under the A.P.Land Grabbing (Prohibition)Act in L.G.C.No.37/98. Since certain factual controversies are involved, it may not be just and proper to straight away allowing the Second Appeals on the strength of a subsequent event which had been brought to the notice of this Court. 4. Heard the Counsel on record. 5. As already aforesaid, these Second Appeals had been preferred as against the common Judgment made in A.S.No.439/98 and A.S.No.439/98 on the file of the IX Additional Chief Judge, City Civil Court (Fast Track Court) at Hyderabad. The substantial questions of law which had been raised in the Grounds of Appeal already had been referred to above. 6. S.A.M.P.No.2547/2008 is filed in S.A.No.593/2003 praying for reception of the certified copy of the Judgment dt.7-3-2005 in L.G.C.No.37/98 and L.G.C.No.17/2001 made by the Special Court under the A.P.Land Grabbing (Prohibition) Act and the same to be received as the additional evidence and the same to be marked as Ex.A.53. This Court had carefully gone through the reasons which had been explained in the affidavit filed in support of the application. It is needless to say that this is a subsequent event and the said Judgment is having direct bearing on the questions involved in these Second Appeals. In the light of the same, this application is hereby ordered. 7. It is also brought to the notice of the Court that before the Appellate Court several documents concerned with C.S.No.14/58 had been placed. But the Appellate Court had not considered those documents may be for the reason that those documents the Appellate Court might have felt to be no so relevant. But however in the light of the decision made by the Special Court referred to above, these documents also would have lot of bearing on the questions in controversy between the parties. 8. The brief case of the plaintiff as set out in the plaint as amended are as hereunder:- “That 2462 Sq.Yds. of Sy.No.179, Poci No.I, Block 7 of Risala Khursheed Jahi Paigah, Zamisthanpur, Hyderabad is in their legal possession. Plaintiff No.3 purchased two plots of land measuring 733.32 Sq.Yds.from M/s.Cyrus Investments Pvt.Ltd., under an agreement of sale on 4-2- 1984. M/s.Cyrus Investments Pvt.Ltd., Bombay purchased the same from the shares of Paigah Property from some other shares they were added as parties C.S.No.14/58 wherein a preliminary decree was passed. Third plaintiff later his purchase of above two plots applied to the Court to release the property from the possession of receiver-cum- Commissioner in an application 29 of 1984 and the Court has passed order for delivery of possession on 6-7-84. Accordingly Receiver-cum-Commissioner delivered the property in the presence of mediators on 10-7-84 and obtained a receipt from the then third plaintiff is in possession of 733.32 Sq.Yds. One K.Vitta purchased an extent of 1600 Sq.Yds. in the same survey number from Mahaboobuddin Khan, S/o. late Nawab Ikramuddin Khan under a registered sale deed on 23-8-1962 which is outside the purview of C.S.No.14/1958. Later K.Vittal entered into an agreement of sale with third plaintiff and G.Krishna on 10-9-1990. Later there were disputes between the vendors and vendees which all resulted in filing O.S.No.899/95 before IV- Additional Judge, City Civil Court, Hyderabad for specific performance of agreement of sale which was dismissed on 18-9-1996 an appeal was filed by way of CCA.No.111/87 by third plaintiff, at that time the parties entered into a compromise vide CMP.No.541/87. The Court has decreed in terms of compromise in CCA.No.111/86 on 30-1-87. According to the terms of the compromise, 3rd plaintiff possession should not be disturbed towards 1700 Sq.Yds. Later the disputes arose between Vittal and 3rd plaintiff as area found to b slightly more than the area mentioned under the agreement pronounce the award on 25-7-1989 which was made rule of the Court by decree in O.S.No.1300/1989 of the IV-Additional Judge, City Civil Court, Hyderabad on 17-8-1989. The possession of the plaintiffs and their predecessors entered in revenue records and pahanies. Plaintiffs 1 and 2 executed General Power of Attorney to third plaintiff which was registered on 7-10-1989. Subsequent to compromise decree of the High Court and prior to the actual measurement of the land D.6, 9 and 10 along with others who have floated 5th defendant organization and were preventing the encroachers from grabbing the land till then they requested third plaintiff to give the tin shed and land occupied by the tin shed existing in a portion of the schedule sites so as to use it as a prayer hall for 5th defendant organization and he agreed to gift 140 Sq.Yds. of site and the tin shed existing therein vide No.1-7- 18/18A and entered into written agreement on 8-1-89 with D.6, 9 and 10 and others wherein D.5 and 6 acknowledged plaintiff’s title over the entire plaint schedule property. Later D.5 to D.10 and others have agreed to have a new prayer hall to be constructed by third plaintiff in the south, east corner of the plaint schedule property and further agreed to contribute Rs.30,000/- towards their part of construction costs and agreed to give up their rights if any had in original piece of land agreed to be gifted to them. The said oral agreement was ratified and confirmed by standing committee of 5th defendant recorded standing committee resolution dt.2-10-1990. Then D.5 paid Rs.10,000/- as 1st instalment agreed to contribute by them on 4-10-1990. As a result this novation in the agreement D.5 and D.10 ceased to any rights if they ever had in 140 Sq.Yds. as per written agreement dt.8-1-89. These defendants bound to shift the new prayer hall which is in final stages of the construction on south west corner. Then 3rd plaintiff obtained permission from the MCH under permit No.1213/95 of 1990 dt.20th January, 1990 for construction of multi-storied residential complex in the suit property. The defendant refused permission to construct in 140 Sq.Yds., of site which is presently occupied by tin shed with a liberty to renew the application for that portion also after the 5th defendant organization shifts to new prayer hall. After the grant of the permission by D.5, they started the construction of new prayer hall and also laid foundation for residential complex. While the work is in progress, D.4 issued a notice on 6-11- 1990 the construction is against the sanction plan and directed 3rd plaintiff to show cause as to why construction should not be demolished under Section 428 of the MCH Act and building shall be demolished in accordance with Section 52(2) of the MCH Act. Then 3rd plaintiff filed W.P.No.15705/90 questioning the notice and to declare it as null and void. The said Writ Petition was disposed of directing the petitioner to file the explanation to show cause notice within three days. Further not to proceed with the construction and further directed not to demolish and shall not give effective demolition for a period of one week from the date of service of the order of demolition. Accordingly, 3rd plaintiff submitted his explanation to 4th defendant on 15-11-90. In the meanwhile, Dy.Commissioner of MCH, Circle No.3 directed the Circle Inspector of Police, Chikkadpally i.e., D.3 to post police constables at the schedule property to prevent further construction on 29-11- 90 vide letter No.302/ACT/C-3/MCH/90 to Dy.Commissioner of Police, East Zone, requested for removal of the police force from the site. Later D.4 issued a letter dt.30-11-90 under Section 636 of the HMC Act directing the 3rd plaintiff to remove the structures immediately, he then questioned it by Writ Petition No.16779/90 and a Judgment is passed on 21-2-1991 and set aside the D.4. Later directed the order D.4 to consider his explanation within two weeks from the date of the order and no fresh order was communicated to the plaintiffs from them. When the plaintiffs began to complete the construction, 3rd defendant high handedly, illegally prevented the plaintiffs from the construction and threatened 3rd plaintiff, illegally confined and then filed Writ Petition No.4360/91. He preferred appeal No.440/91 and the Division Bench passed order on 3-4-91 with an observation directing the parties to seek appropriate remedies before the appropriate forum and further observed that the police are only concerned to see that there is a breach of peace and law and order and dismiss the appeal. Later D.3 along with constables came to the site on 1-8-91 and directed the 3rd plaintiff to stop the construction. He did not stop the construction. Again on 3-8-91 D.3 came with Subordinates, beat the workers and took him to Police Station which action is violation of the orders of the High Court and Writ Appeal No.440/91. By then the prayer hall which was in progress to the extent of plastering, doors and windows were being fitted. D.6 to D.10 have been writing letters and using influence through powerful politicians bringing pressure on D.1 and D.2 to write letters to D.3 and D.4 to seek that the construction is stopped. Based on them, 3rd defendant and his Subordinates illegally, high handedly prevented them from proceeding with the construction work. Suit property is the absolute property of the plaintiffs. The Collector, Hyderabad after due and elaborate enquiry passed three proceedings file Nos.F5/7590/92, dt.14-12-92; F5/7590/92, dt.15-1-94; and C3/4787/91, dt.29-7-94, stating that the property is not the Government property. The Town Survey Map prepared by the Collector, Hyderabad and his letter F/7590/92, dt.31-1- 94 along with sketch plan of Zamisthanpur show that the Sy.No.179 of Zamisthanpur of which is suit property wherein part of it is private property is not the Government property. D.4 filed a memo stating all the records in respect of the property are with the standing Counsel for MCH appearing before the High Court on behalf of the MCH as such defendant’s office did not give para wise remarks or any other documents and records to him in view of the said fact written statement and counters are not filed. Further the plaintiff got amended the plaint by inserting paras 17A and in para 19 and 21 A, B and C by bringing about the proceedings of the Collector and about filing of the Writ Petitions and seeking orders therein mandatory injunction and direction to D.1 for correcting the Town Survey Records showing the suit land, an extent of 2460, beonging to plaintiff and not as Government land and to carryout necessary corrections accordingly. 9. Defendant No.2 filed written statement denying the allegations made in the plaint. Defendant No.2 stated in the written statement as hereunder:- “That as per town survey record, the suit land falls in T.S.No.71 and 75, Ward No.153, Block-K of Zamistanpur village, Musheerabad Mandal, correlated to revenue Sy.No.179/P and it is recorded as Government land. T.S.No.75 is having an area of 2354 Sq.Meters and it is recorded as GVM Road. T.S.No.75 is having 1375 Sq.Meters and it is recorded as Government land. On physical verification, it is found that on the Government land in T.S.No.75, there is a building existing kown as M.P.Miseph Church on an area of 124 sq.meters. The plaintiffs are not in possession of the suit land and their contention is wrong. As per the pahanies of 1960-61 to 81, 82 the land falls in Sy.No.179 of Zamistanpur village. Sy.No.179 is having an extent of Ac.9.39 guntas. From the pahanies 1961-62 to 1981-82 names of Yevwa Balakrishna Reddy, S/o.Malla Reddy, Ganna Reddy, Ramakrishna Reddy names are ound against columns of the pahani. As per the town survey record, Sy.No.179/P correlated to T.S.No.71 and 75 Ward No.153, Block-I in column No.10 the names of Yerva Balakrishna Reddy, S/o.Malla Reddy, Yerva Gana Reddy, S/o.Malla Reddy, Ramakrishna Reddy, S/o.Malla Reddy has been written in colum No.20 it is recorded as Government land. The town survey has been implemented and it became final and that therefore the land covered by suit land belongs to Government. Plaintiff claim that he purchased the land from different persons is bad in law and that they are not having any title over the suit land and it is Government land. Sale transactions made in respect of Government land is illegal land are liable to be cancelled. Defendant is not a party to various suits mentioned in the plaint. As such any orders passed in the said suits are not binding on the defendant. As per Town Survey record, suit land is Government land. M/s.Cyrus Investment Pvt.Ltd., Bombay or any other person are not having any lawful rights to sell the Government lands without permission from the Government. He is unaware of the sale agreement and it is not binding on him. The sale is illegal and void. He is not a party to the disputes as mentioned in the plaint. The possession of the plaintiff over the Government is illegal and liable for eviction. As per the town survey, the suit land is a Government land. Plaintiffs are not entitled to or any reliefs in the suit and claimed by the plaintiff is the Government land. Plaintiffs have no legal rights to claim the suit land. The valuation shown by the plaintiff is low. Plaintiff has no right or title over the Government land.” 10. Defendants No.5 to 10 filed written statement at the first instance and even filed additional written statement after amendment of the plaint. Several allegations had been denied. The allegation that the plaintiffs are the lawful owners had been specifically denied. No such place exists within the boundaries mentioned in the schedule. They denied about the claim of the plaintiff that the suit land is the paigah family property and about iling of O.S.No.14/58 before the High Court and in turn appointment of receiver-Commissioner for management of the property and Cyurus Investment Pvt.Ltd., Bombay purchasing the shares and they were added as 206th defendant in the suit and passing the preliminary decree are all of the in their knowledge and they are not parties to that suit. Plaintiffs further claim that plaintiff No.3 purchased 2 plots of 733.32 Sq.Yds. from the share of Cyrus Investments Pvt.Ltd., under agreement of sale dt.4-2-84 is false and denied. The mere agreement of sale does not confer any right or title to the property. Delivery of possession of 733.32 Sq.Yds. was made over to Syed Waheed Hussain on 10-7-84 by receiver-cum- Commissioner pursuant to the orders by the High Court on 6-7-84 and Syed Waheed Hussain is in continuous lawful possession by virtue of the alleged purchase from the Cyrus Investments Pvt.Ltd., are all false and denied. Syed Waheed Hussain was never in possession of the property of 733.32 Sq.Yds. even from 10-7-84. 11. On the strength of these pleadings, the following Issues and Additional Issues had been settled:- 1) Whether the plaintiff is entitled for perpetual injunction as prayed for? 2) Whether the plaintiffs are entitled for mandatory injunction directing the defendants 5 to 10 to conduct their activities of D.5 in the new prayer hall constructed by the plaintiff? 3) Whether the defendants 5 to 10 are entitled to set up any interest in any portion of the property in view of the documents executed by them? 4) To what relief? Additional Isues:- 1) Whether the plaintiffs are entitled for a direction to the defendant No.1 to correct the town survey records in respect of suit property? 2) Whether the suit relief is not maintainable without seeking the relief of declaration of title? 3) Whether the valuation of suit not proper? 12. The Trial Court recorded the evidence of P.W.1 and P.W.2, and D.W.1 to D.W.5 and marked Ex.A.1 to Ex.A.56 and Ex.B.1 to Ex.B.40 and after recording findings came to the conclusion that the plaintiffs are entitled to the reliefs prayed for. When the matters are carried by way of appeal as aforesaid, the Appellate Court having formulated the point for consideration at para 21, recorded reasons in detail commencing from paras 22 to 49 and ultimately came to the conclusion that the appeals are to be allowed and accordingly Decree and Judgment made by the Court of first instance had been set aside and the appeals are allowed, but however the parties were directed to maintain status quo till the disposal of the Land Grabbing Case. It is stated that the Land Grabbing Case already had been disposed of and a certified copy of the Judgment had been placed before this Court and this Court had received the same by way of additional evidence as already specified supra. As already aforesaid, it is also stated that though before the Appellate Court certain records relating to C.S.No.14/58 had been placed, those documents had not been considered. It is needless to say that in the light of the scope and ambit of Section 100 of the Code of Civil Procedure while deciding Second Appeals, the substantial questions of law raised and argued may have to be gone into. 13. In the light of the certified copy of the Judgment of the Land Grabbing Court placed before this Court and in the light of the findings recorded by the Appellate Court and further since it is brought to the notice of the Court and several documents concerned with C.S.No.14/58 also had been placed before the Appellate Court, those documents had not been considered, this Court is inclined to give an opportunity to both the parties to let in further evidence relating to all the documents which are said to have been placed before the Appellate Court in relation to C.S.No.14/58 and if such documents already had not been placed, the parties are at liberty to place such documents and also let in such evidence which the parties are desirous of letting in. It is needless to say that the parties are at liberty to let in further evidence in relation to the Judgment made by the Land Grabbing Court also which had been received by this Court by way of additional evidence today. 14. Accordingly, the Decree made in A.S.No.439/98 and A.S.No.269/2001 are hereby set aside and the matter is remanded to the Appellate Court to give opportunity to both of the parties on record, to let in further evidence in accordance with law in relation to the documents of C.S.No.14/58 and also in relation to the certified copy of the Judgment of the Land Grabbing Court and the other documents, if any, if the parties may have to rely, let these appeals be disposed of at the earliest point of time. 15. It is stated that D.5 also filed a Land Grabbing Case and D.5 had been unsuccessful before the said Land Grabbing Court. The learned Government Pleader for Arbitration also brought to the notice of the Court about the order made in W.P.No.14917/2005. 16. The Appellate Court to give top priority to these matters and decide these matters at the earliest point of time preferably within a period of six months from the date of receipt of a copy of this order. _____________________ Justice P.S.Narayana 20th April, 2010 smr