THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CITY CIVIL COURT APPEAL No.61 of 1990 Dated:- 25th July, 2011 Between:- Nalini Narain and others ...Appellants AND Mrs. Prabhavathi Reddy Ravi and others …Respondents THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CITY CIVIL COURT APPEAL No.61 of 1990 JUDGMENT:-(Per Hon’ble Sri Justice B.Chandra Kumar) This appeal is directed against the judgment and decree dated 04.06.1990 passed in O.S.No.335 of 2003 by the Additional Chief Judge, City Civil Court, Hyderabad (Temp), whereby and whereunder, the suit filed by the first respondent herein for declaration of title and for recovery of possession and damages was decreed. 2. The appellants 1 to 4 herein are defendants 1, 2, 5 and 6 respectively and the respondent No.1 herein is the plaintiff, respondents 2 and 3 herein are defendants 3 and 4 respectively before the Court below. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Court below. Brief facts of the case:- 3. The dispute is with regard to the suit schedule property, which is shown as ‘A’ schedule plot bearing Municipal No. 8-2-120/86/9, admeasuring 1350 square yards demarcated as sub Plot No.3 in Major Plot No.11 situated at Banjara Hills, Hyderabad. ‘B’ schedule property is shown as 900 square yards of land forming extreme eastern and southern part of the ‘A’ schedule property. ‘C’ schedule property is shown as 450 square yards of land forming north-eastern part of the ‘A’ Schedule Property (the ‘A’ schedule property will be hereinafter referred to as ‘suit schedule property). The suit schedule property originally belonged to one Sofia Begum. The third defendant – Smt.Rangamma and Smt.Ahmed Bee claimed their title through said Sofia Begum. Smt.Rangamma and Smt.Ahmed Bee, through their G.P.A. – Sri T.V.Ramachandraiah – the fourth defendant sold the suit schedule property to Smt.Anasuya – the mother of the plaintiff vide Ex.A.2 – Registered Sale deed dated 19.05.1965. The plaintiff’s mother got her name mutated in the Assessment Register of the Municipal Corporation of Hyderabad. In support of her claim, she has relied upon Ex.A.3 – Intimation letter dated 31.07.1965 sent by the Municipal Corporation of Hyderabad to the effect that mutation of the name of the mother of the plaintiff has been effected in the Municipal Assessment Register and Ex.A.4 certificate dated 30.07.1965 issued by the Municipal Corporation of Hyderabad. 4. The plaintiff’s father Sri G.Sanjeeva Reddy is a trade union leader and a social worker. He worked as Minister in Government of Andhra Pradesh from 1968 to 1971. He filed a declaration as required under the provisions of the A.P.Urban Land (Ceiling and Regulation) Act, 1976, and had shown the suit schedule property in his declaration. Government of A.P. have also issued orders vide G.O.Ms.No.1760 dated 17.10.1978 exempting the vacant land of 654.5 Square Metres from the provisions of the above referred Act. The plaintiff has relied on Ex.A.5 and A.6 in support of her contention in this regard. The further case of the plaintiff is that her mother gifted the suit schedule property to her in the year 1972, but however, the Gift Deed to that effect, vide Ex.A.7, was executed on 13.03.1979 by her mother in her favour. It is also her case that the plaintiff was residing in USA after her marriage and that her father was looking after her properties and in June, 1981, her father informed her that due to his pre-occupation with his political and social works, he could not supervise and look after the suit schedule property and that the first defendant was found in possession of ‘B’ Schedule Property and the second defendant was found in possession of ‘C’ Schedule Property and that when he enquired about their possession of the suit schedule property, defendants 1 and 2 informed that they purchased the suit schedule property from defendants 3 and 4. Then the plaintiff got issued legal notice dated 17.06.1981 vide Ex.A.8 to the first defendant and Ex.A.11 legal notice dated 26.11.1981 to the second defendant and then filed the suit for declaration of title, recovery of possession and for past and future damages. 5. The first defendant filed written statement and denied the material averments made by the plaintiff. According to the first defendant, he has no knowledge about the alleged purchase of the suit schedule property by the mother of the plaintiff through registered sale deed dated 19.05.1965 and also with regard to the declarations filed by her father under the provisions of Urban Land Ceiling Act and about the registered Gift Deed dated 13.03.1979 said to have been executed by the mother of the plaintiff in favour of the plaintiff. The specific case of the first defendant is that the plaintiff was never in possession of the suit schedule property and that there was neither sign board on the site displaying the name of the plaintiff nor any boundary stones were fixed and the entire area was rocky with boulders. Her specific case is that defendant No.4 was at the site and he was in factual possession of the suit schedule property. It is also her case that when she ascertained the municipal records from the year 1965 to 1979 the names of defendant No.3 and her erstwhile partner – Ahmed Bee were shown as actual owners and possessors of the suit schedule property. It is also her case that the Encumbrance Certificates obtained from the office of the Sub-Registrar for the period between 1950 and 1958 and from the year 1959 to 1981 in respect of suit schedule property shown ‘NIL’ encumbrances. It is also her case that she has purchased the ‘B’ schedule property from the original owners through registered sale deed dated 21.06.1979 vide Ex.B.6 for a valuable consideration and thereafter sold 410 square yards of land in ‘B’ Schedule Property to defendants 5 and 6 on 12.08.1980. 6. It is also her case that the alleged Gift Deed dated 13.03.1979 executed by the mother of the plaintiff in favour of the plaintiff is invalid, if at all executed. It is also her specific case that after the purchase of ‘B’ schedule property, she has constructed a house with enormous costs in the year 1981 and that defendants 5 and 6 have also constructed their residential house in ‘C’ Schedule property during the period 1980 – 1981. It is also her case that before selling the property to defendants 5 and 6, she had applied to the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad, and the same was acknowledged. It is also her case that no one raised any objection at the time of construction of her house on the suit schedule property, which went on for two years, i.e, from 1979 to 1981. Thus, the specific case of the first defendant is that the A’ Schedule Property comprising of ‘B’ and ‘C’ Schedule Property was never in possession and enjoyment of the plaintiff and her mother since May, 1965 to 1979 and that even if the plaintiff and her mother had any subsisting right over the land, they have lost their title, interest and right since they never had been in possession for well over the statutory period of 12 years. It is also her case that even prior to the filing of the suit on 20.09.1982, the Special Deputy Collector, Hyderabad, called upon defendants 1, 2, 5 and 6 to file documents and when they submitted all records in their possession, the District Collector, Hyderabad, through his memo No.F4/5125/83 informed them that the lands in their possession were classified as Government lands bearing Town Survey No.4/1/6 and advised them to seek regularization of the same from the Government and that in the above circumstances, the plaintiff cannot seek any relief from the Court. 7. Defendant Nos.2 adopted the written statement field by the first defendant. 8. The fourth defendant, who is the G.P.A. Holder of the third defendant, filed separate written statement and his case is that the third defendant had sold the suit schedule property to the mother of the plaintiff in the year 1965, but however, the land was uneven with boulders and there was no approach road and, therefore, the father of the plaintiff expressed his unwillingness to occupy the land and insisted him (fourth defendant) to provide a better plot instead of the suit schedule property. His further case is that the father of the plaintiff was interested to take an open plot lying opposite to the suit schedule property, but as it was not free from encumbrances, he could not transfer the same in the name of mother of the plaintiff as requested by the father of the plaintiff. It is also his specific case that the father of the plaintiff had assured him (fourth defendant) that whenever the land lying opposite to the suit schedule property is given to him, he would occupy the same in lieu of the suit schedule property and in view of the assurance given by the father of the plaintiff and as the plaintiff or her mother did not occupy the suit land till 1979 and he had sold the same to defendants 1 and 2 after informing them about the earlier sale transactions done in favour of mother of the plaintiff. As far as the other averments of the plaint are concerned, he has denied the knowledge about the same. 9. Defendants 5 and 6 also filed a common memo adopting the written statement filed by defendants 1 and 2, but however, they filed an additional written statement after obtaining permission from the Court and specifically averred that the suit schedule property, which is bearing Town Survey No.4/1/6, is Government land but not private land belonging to any party and that the Collector, Hyderabad, had informed them accordingly. 10. Basing on the above pleadings, the Court below framed the following issues for consideration:- 1. Whether the plaintiff is the owner of the suit land by virtue of the Gift Deed dated 13.03.1979 executed by her mother Mrs.G.Anasuya and by virtue of registered sale deed executed by D.3 and Smt.Ahmed Bee dated 19.05.1965 in favour of the mother of the plaintiff? 2. Whether D.1 and D.2 are bonafide purchasers of the suit schedule plots B and C properties respectively for valuable consideration without notice to the prior sale of the suit land in favour of Donor of the plaintiff? 3. Whether there is waiver and acquiescence on the part of the plaintiff in allowing the defendants 1 and 2 to complete their buildings on their respective plots without any notice of objections? 4. Whether the suit is bad for non-joinder of Sri Tej Narayan said to have been purchased 410 square yards from D.1 and Collector, Hyderabad? 5. Whether the suit is barred by limitation? 6. Whether the plaintiff is entitled to the relief of declaration of title and delivery of possession and whether, in the alternative, the plaintiff is entitled to any damages? 7. To what relief. 11. On behalf of the plaintiff, P.W.1 – G.Sanjeeva Reddy – father of the plaintiff, P.Ws.2 – C.Venkat Reddy and P.W.3 – the mother of the plaintiff were examined and Exs.A.1 to A.17 were marked. On behalf of the defendants, one Tej Narayan – defendant No.5 was examined as D.W.1 and Exs.B.1 to B.19 were marked. 12. Learned Additional Chief Judge, City Civil Court, Hyderabad, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiffs have proved Ex.A.2 and that P.W.3 – mother of the plaintiff became the absolute owner of the land by virtue of Ex.A.2 registered sale deed and that P.W.3 has executed a registered Gift Deed in favour of the plaintiff vide Ex.A.7 and that the contention of the defendants that the mother of the plaintiff and subsequently the plaintiffs were not in possession of the property cannot be accepted in view of the oral and documentary evidence on record in Ex.A.3 to A.6. The learned Judge also came to the conclusion that though the defendants were informed by the Collector, Hyderabad, vide Exs.B.2 to B.4 that the suit schedule property forms part of the Town Survey Number 4/1/6 in Shaikpet Village and it is classified as Government land, but since the Government did not claim the land as its land in Ex.A.5 – proceedings of the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad, and since no notice was issued to the plaintiff or her mother claiming the suit schedule property as Government land and since the government did not choose to file any Land Grabbing Case against the plaintiff or against the defendants from the year 1983 till the date of the judgment (04.06.1990), it is not open to the defendants to say that the Government is the owner of the suit schedule property. Learned Judge also held that the plaintiff has proved her title and that she is entitled for declaration of title and recovery of possession and also for past and present damages and accordingly, decreed the suit in favour of the plaintiff. Challenging the said Judgment and Decree, this appeal has been filed. Chequered events of the case:- 13. Admittedly, after the suit was decreed by the Court below on 04.06.1990, the State of A.P. through the Revenue Divisional Officer, Hyderabad, had filed two Land Grabbing cases in L.G.C.Nos.31 and 38 of 1991 before the Special Court constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (hereinafter referred to as ‘Special Court’), claiming Acs.3.16 guntas of land, which includes the suit schedule property, as Government land. Oral and documentary evidence let in. The Special Court held that the respondents therein and others i.e., defendants 1 to 5 and Sofia Begum and others are ‘land grabbers’ and allowed both the Land Grabbing Cases by its common order dated 28.07.1993, declaring that the suit schedule property is Government land. Aggrieved by the same, defendants 1, 2, and 5 approached this Court by filing Writ Petition Nos.15266, 15268 and 14403 of 1993 seeking a Writ of Certiorari to quash the judgment and the decree dated 28.07.1993 of the Special Court. 14. All the three Writ Petitions were heard together and by a common judgment dated 14.07.2000, a Division Bench of this Court dismissed all the three writ petitions as withdrawn with certain observations. The said order reads as follows:- “Sri Vilas V. Afzal Purkar, learned counsel for the petitioner seeks permission to withdraw the above writ petitions. However, he requested that the petitioners may be permitted to deposit the amount as ordered by the Special Court under A.P. Land Gabbing (Prohibition) Act, Hyderabad at the rate of Rs.750/- per square metre in respect of the disputed property within three months from the date and get the land in occupation under regularization. It is always open for the petitioners to get the lands regularized, if they are entitled. It is submitted that already the first appeal filed by the writ petitioners in respect of the schedule property against Smt.Prabhavathi, one of the respondents to the writ petitions is pending. Regarding the deposit of the amount, in view of the pendency of the first appeal, we feel it proper to grant some more time. Accordingly, we grant three months time from this date. As the appeal is pending, it is open for both the parties to work out their remedies in the said appeal. It is also made clear that either the findings given by the Special Court or the observations now made by us shall not come in the way in deciding the first appeal. Withdrawal of these writ petitions or deposit of the amount for regularization shall not come in the way of deciding the rights of the parties and that the petitioners are at liberty to agitate before the appropriate forum. With the above observations, these three writ petitions are dismissed as withdrawn. No costs.” 15. With this back ground, this appeal came up for consideration before a learned single Judge of this Court and underwent several adjournments. However, learned Single Judge (Hon’ble Sri Justice P.S.Narayana) of this Court, by order dated 23.07.2009, after considering the rival contentions and referring to extracts of the common judgment in the above referred Writ Petitions, felt it appropriate to refer this appeal to a Division Bench and accordingly referred this appeal to a Division Bench and thus, the matter is listed before us. 16. The appellants, along with this appeal, have filed CCCAMP Nos.574, 575, 713 to 715 of 2008 seeking various reliefs. CCCAMP No.574 of 2008 has been filed seeking permission to amend the written statement filed by the first appellant, to the effect that the State of A.P. filed two Land Grabbing Cases in L.G.C.Nos.31 and 38 of 1991 against him and other defendants and that the said cases were decreed and that in pursuance of the said judgment, he paid Rs.13,24,314/- and that the second defendant paid Rs.6,95,178/- to the Government of A.P. and that the judgment of the Special Court is binding. 17. CCCAMP No.575 of 2008 is filed seeking to receive additional documents in view of the subsequent events after passing of the order by the Court below, which are as follows:- 1. Certified copy of the common judgment passed in LGC Nos. 31 and 38 of 1991 by the Special Court dated 28.07.1993; 2. Original Challan bearing No.8467 dated 27.09.2006 for a sum of Rs.6,95,178/- and original challans No.8466 for a sum of Rs.13,24,314/- dated 27.09.2006. 3. Proceedings No.11/2452/89, dated 18.09.2006 of the District Collector, Hyderabad. 4. G.O.Ms.No.529 dated 08.05.2006 of Government of A.P. (Revenue (Assignment-III-I) Department; and 5. Certified copy of the common order passed by the Hon’ble High Court of A.P. in W.P.No.15266 of 1993, W.P.No.15268 of 1993 and W.P.No.14403 of 1998 dated 14.07.2000. 18. CCCAMP No.713 of 2008 is filed to implead the proposed parties as respondents 4 to 6, i.e., (i) Government of A.P. rep. by the Secretary to Government, Revenue Department, Secretariat, Hyderabad; (ii) The Collector, Hyderabad District, Hyderabad; and (iii) The Revenue Divisional Officer, Hyderabad Division, Nampally, Hyderabad, to the Appeal. CCCAMP No.714 of 2008 is filed for dispensing with the issuance of statutory notice under Section 80 (2) of C.P.C. and CCCAMP No.715 of 2008 is filed to receive the documents filed, viz., (1) Gazette Notification dated 06.08.1977; (2) Acknowledgment of receipt of notice under Section 9(2) of Madras Survey & Boundaries Act, 1923; (3) Location sketch; (4) Pahani for the year 1981-82 of Shaikpet Village for Survey No.403; (5) Extract of TSLR in respect of TS No.4/1/1/C Ward No.10 Block D; and (6) Recognized plots of defunct Jubilee Hills Municipality, Shaikpet Village; as additional evidence on behalf of the petitioners therein. Contentions:- 19. Sri Sunil Bhaskar Ganu, learned counsel, appearing for Sri M.Papa Reddy, learned counsel for the appellants, and Sri D.Prakash Reddy, learned senior counsel, appearing for Sri Raghuveer Reddy, learned counsel for the respondents, have made elaborate submissions. 20. The main contention of Sri D.Prakash Reddy, learned senior counsel, appearing for Sri Raghuveer Reddy, learned counsel for the respondents is that the plaintiff’s mother has purchased the suit schedule property vide registered sale deed under Ex.A.2 and that by virtue of the said registered sale deed and since the suit schedule property is vacant land, a presumption has to be drawn that the plaintiff’s mother continued to be in possession of the suit schedule property. It is also his submission that the mother of the plaintiff got her name mutated in the municipal records and Ex.A.3 and A.4 proves the same. It is also his submission that the father of the plaintiff filed a declaration under the provisions of A.P.Urban land (Ceiling and Regulation) Act, 1976 and Exs.A.5 and A.6 proves the same and that subsequently, the mother of the plaintiff has executed Gift Deed in favour of the plaintiff under Ex.A.7 and all these circumstances go to show that the plaintiff had been in possession of the suit schedule property from the date of her purchase till the defendants illegally occupied the same and that the above referred documentary evidence is sufficient to prove the title of the plaintiff. 21. The next submission of learned senior counsel is that when the plaintiff came to know that the defendants challenged the judgment of the Special Court and that the Government of A.P. was also claiming the suit schedule property, she got impleaded herself as a party to the above referred batch of Writ Petitions and that when the defendants were intending to withdraw the above referred Writ Petitions, the counsel for the petitioners therein requested the Court to safeguard the interest of the plaintiff and in view of the said request, a Division Bench of this Court has made a categorical observation that the findings given by the Special Court and the observations made in the order of the Writ Petitions shall not come in the way of deciding this first appeal. His main submission is that the observations made in the judgment of the above referred writ petitions to which the plaintiff and the defendants are parties, and therefore, such observations have binding force and a party to a judgment cannot say that the said observations are obiter dictum or per incuriam. It is also his submission that in the above circumstances, there is no need to receive any additional evidence or add the State of A.P. as a party to the suit and that it is the plaintiff who is the master of his/her case and it is the prerogative of the plaintiff to choose the defendants or claim relief against the chosen defendants and the defendants cannot force the plaintiff to add any party. It is also his submission that once the third defendant – Smt. Rangamma and Smt.Ahmed Bee have sold the property to the mother of the plaintiff and thereby they had divested their title and, therefore, they could not have executed any sale deed in favour of defendants 1 and 2 and they could not have conveyed any right to the defendants 1 and 2. 22. Per contra, Sri Sunil Bhaskar Ganu, learned counsel, appearing for Sri M.Papa Reddy, learned counsel for the appellants submitted that the plaintiff has to stand or fall on her own legs and she cannot depend upon the weakness in the case of the defendants. His main submission is that though the plaintiff claims that her mother’s name was mutated in the municipal records in the year 1965 itself by virtue of Exs.A.3 and A.4, but the extracts of the Municipal Assessment Register vide Ex.B.11 and B.14 falsifies the claim of the plaintiff. It is also his submission that a reading of the entire evidence gives an impression that though the plaintiff’s mother seems to have purchased the suit schedule property in the year 1965, but she was never in possession of the same and the plaintiff’s father was not interested to take the suit schedule property and that he was interested to take an alternative plot and in the above circumstances, the defendants have purchased the suit schedule property. It is also his submission that the defendants had thoroughly made enquiries in the municipal office and also obtained Encumbrance Certificates from the Sub-Registrar Office which reveal that the names of the vendors of the defendants continued in the municipal records and no sales were shown in the Encumbrance Certificates and in the above circumstances, the defendants purchased the suit schedule property. It is also his submission that admittedly, the defendants have constructed their houses and have been residing therein and subsequently got their names mutated in the Municipal Assessment Registers. His main submission is that when the defendants had taken a specific plea in their written statement that the State of A.P. is the owner of the suit schedule property, the plaintiffs ought to have added State of A.P. as a party to the suit. 23. Learned counsel further submitted