THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 11555 OF 2010 ORDER : 1. This Writ Petition is filed seeking to issue a writ of mandamus declaring the action of the respondent in interfering with peaceful possession and enjoyment of the petitioner over property in survey no.145 an extent of Ac.8.16 cents situated at Hydernagar Village, Balapur Mandal, Ranga Reddy District by laying walking track without any notice to the petitioner as illegal, arbitrary and violative of Article 300A of the Constitution of India and consequently direct the respondent not to interfere with the petitioner’s peaceful possession and enjoyment of the said property. 2. The case of the petitioner, in brief, may be stated as follows: The petitioner is owner and possessor of the aforesaid land. He is son of Nawab Himayat Nawaj Jung Bahadoor, who is defendant no.1 in C.S. No.14 of 1958 before this Court filed for partition of lands of Khurshid Jah in Hydernagar, Hafeezpet and Hasmathpet village of Balanagar Mandal. The petitioner was impleaded as defendant no.103 in the said suit after death of his father. The said suit ended with a compromise on application No.264 of 1961 and a preliminary decree was passed on 28.6.1973, and same has become final. The Government having failed in its appeals claiming the land, did not file any other cases in relation to the said lands. In pursuance of the instructions of the Government, Chief Commissioner of Land Administration, Andhra Pradesh convened a meeting with the Joint Collector, Ranga Reddy and thereafter a report was sent to the Government vide letter dated 1.7.2004 requesting the Government to permit the Collector, Ranga Reddy District to sanction mutation in respect of survey nos. 145 and 168 of Hydernagar Village as ‘no court cases are pending with regard to the said lands’, and having taken note of the said situation, the Government permitted the Collector to effect mutation in the lands in survey nos. 145, 163 and 172, which is subject to Urban Land Ceiling clearance. The Government also issued letter No.28908/JAI/2004-1, dated 5.11.2004 permitting the Collector, Ranga Reddy to effect mutation in the land records in respect of survey nos.145 of Hydernagar Village. Petitioner claimed Ac.26.00 in survey no.145 and requested the Collector, Ranga Reddy to mutate his name and also made several applications. Revenue Inspector inspected the site and reported to the Revenue Divisional Officer. The petitioner is in physical possession of Ac.8.16 guntas in survey no.145 from the time of his ancestors and it had fallen towards his share and mutation proceedings are pending. But, for the last five years, the respondent is making efforts to lay a walking track in the said land. The said land is a patta land and that the Government has lost its claim and decided to mutate names of the parties in C.C. NO.14 of 1958. Without acquiring the said land, the respondent cannot interfere with the possession of the petitioner or lay walking track therein. The respondent is high-handedly acting to lay the walking track. Hence, the Writ Petition. 3. The respondent corporation filed its counter affidavit denying the averments made in the writ affidavit and stated inter alia that C.S. No.14 of 1958 was disposed of by this Court and as per the court directions, the District Collector instructed the Revenue Divisional Officer for partition of the land among the shareholders under Section 54 CPC, and accordingly, the Revenue Divisional Officer submitted partition plan to the Court through Receiver-cum-Commissioner in the year 1981. The petitioner is not in possession of the above site and the respondent corporation constructed compound wall around the park area. Open spaces are vested with the respondent corporation and therefore, it is developing park in the public interest. One Smt. Vilayat Jhan Dargari Begum, w/o. late Himayat Nawab Jung and the petitioner sold the land to an extent of Ac.90.00 in survey no.145, Hydernagar Village comprising of 2 items i.e. Ac.82.23 guntas and Ac.7.17 guntas to IDPL Employees’ Co-operative House Building Society Limited through registered sale deed bearing document no.8486 of 1980, dated 11.06.1980, and thereafter, the said Society applied for layout and the same was approved by the respondent corporation in which an extent of Ac.8.00 of open space was provided for park and site for primary school. As per the layout, the open space is vested with the respondent corporation. Compound wall has been constructed on three sides and on western side it could not be constructed since the neighbour is disputing about the land. The property in question vested with the respondent corporation since it is a part of approved layout of IDPL Employees’ Co-operative House Building Society Limited, and hence, it is prayed to dismiss the Writ Petition. 4. Originally, the Writ Petition was filed against the sole respondent i.e. first respondent only. On 20.05.2010, this Court granted interim order of status quo with regard to laying of walking track in the land in question. Thereafter, IDPL Employees’ Co-operative House Building Society Limited filed W.P.M.P. No.29558 of 2011 seeking to implead it as party respondent no.2 in the Writ Petition and also filed W.V.M.P. No.3881 of 2011 to vacate the interim order dated 20.05.2010 in the above Writ Petition. Implead petition was ordered by this Court vide its order dated 18.10.2011. 5. The second respondent filed its counter affidavit denying the averments made in the writ affidavit and stated inter alia that the petitioner is not the owner of the property in question. After execution of sale deed dated 11.6.1980, the second respondent came to know that the schedule property is part and parcel and subject matter of C.S. No.14 of 1958 before this court, and thereafter, it filed I.A. NO.81 of 1981 in I.A. No.139 of 1971 in C.S. NO.14 of 1958 to implead as a party to the said suit and the same was allowed on 23.10.1981 as respondent no.114 and the writ petitioner filed counter affidavit admitting sale and registered sale deeds in favour of the society. Further, the society had filed I.A. No.37 of 1983 for delivery of the schedule property as per the allotment made by this Court by order dated 22.04.1983 further receiver delivered possession of the schedule property on 5.6.1983 by way of panchanama and the same was confirmed by way of final decree proceedings in I.A. No.281 of 1984, dated 9.11.1984. The society also made an application for conversion of the schedule property from agriculture to non- agriculture and the same was approved by the Government of A.P. by virtue of G.O.Ms. No.351 dated 3.8.1984. Thereafter, the society made an application to HUDA for formation of a layout and the same was approved vide proceedings dated 21.4.1987 and the revised layout dated 17.4.1989 approved by HUDA, the society left open spaces and park area in their land, which is being developed as a park. Petitioner and his family members got a total extent of Ac.172.24 guntas in survey no.145 from total extent of Ac.220 and they had executed a registered sale deed dated 11.6.1980 through their G.P.A. holder for an extent of Ac.90.00 and the remaining Ac.82.22 guntas was parted and settled with third parties in O.S. NO.62 of 1980 on the file of the Munsif Magistrate West, Hyderabad. So, they have no right over the property in question. Suppressing all the facts, petitioner filed the present Writ Petition. After conducting survey only, the schedule land was delivered to the society and the same was confirmed by this Court and the concerned authorities demarcated the land and a final decree was passed on 9.11.1984 in its favour, and all these details were specified in Gift-cum-Settlement Deed dated 27.10.1987 in favour of Kukatpalli Municipal Council. The petitioner has no land in the above survey number and he, along with his family members, had alienated the schedule property by virtue of registered sale deeds, and he settled some extent of land with the occupants. As the layout was sanctioned by HUDA and in the year 1987 the society executed a Gift Settlement Deed in favour of the then Kukatpalli Municipality earmarking the property for park and the first respondent corporation is in possession of the property and constructed wall around the park with government funds and when they sought to develop the same, the present Writ Petition is filed. Hence, it prayed to dismiss the Writ Petition. 6. The first respondent-corporation filed W.V.M.P. No.3951 of 2011 for vacating the interim order dated 20.05.2010 along with an additional counter affidavit and stating inter alia as follows. Even though the petitioner is claiming that he is owner and possessor of the property in question, he did not give any boundaries in respect of said Ac.8.16 guntas, and that even if he gives full description of the property, a dispute of this nature has to be adjudicated only by a competent civil court after adducing evidence. As per registered sale deed, various court judgments and gift settlement deed dated 27.10.1987 executed by the second respondent, the first respondent is in possession of the property in question. The second respondent society purchased Ac.90.00 guntas in survey no.145 vide registered sale deed dated 11.6.1980 from the petitioner and others. The additional counter affidavit reiterated the facts stated in the counter affidavit of the second respondent society with regard to the second respondent impleading as party in C.S.No.14 of 1958, putting the society in possession of the property after demarcating, and passing of final decree in favour of the society, and the approving of layout dated 21.4.1987 by HUDA. The second respondent executed a gift settlement deed No.794/1987 dated 27.10.1987 in favour of the first respondent corporation, which started developing it as a park and path way to facilitate the above society members and also general public. In view of the interim order of this Court, residents of the colony are adversely affected due to non-development of open spaces. Hence, it prayed to vacate the interim order and dismiss the Writ Petition. 7. The petitioner filed reply affidavit stating that the second respondent claims ownership rights from the family of the petitioner through a sale deed allegedly executed by GPA, but no GPA was executed by the petitioner in favour of the alleged GPA holder from whom the second respondent is claiming right. The second respondent has not filed copies of the documents to substantiate the claim. The execution of gift settlement deed in favour of the first respondent was admittedly before the modified layout and no ratification is sought after the layout being modified and therefore the claim of the first respondent is untenable. None of the respondents stated that open spaces settled in favour of the first respondent giving specific boundaries and therefore the respondent is claiming valuable property of the petitioner as one of the open space settled in its favour on the pretext that the same was open space earmarked for park. As per the location sketch of the property issued by the Mandal Surveyor, Balanagar Mandal, boundaries to the property in question are :North: APHB colony; East: Part of the land in survey no.145; South: part of the land in survey no.145; west: 30’ wide road and the second respondent colony houses. The first respondent is acting to the tunes of the second respondent society and trying to deprive the valuable right of the petitioner over his property. 8. Learned counsel for the petitioner contended that the petitioner got Ac.26.00 guntas of land in survey no.145 of Hydernagar Village, Balanagar Mandal, Ranga Reddy District, out of which the present land to an extent of Ac.8.16 guntas is in exclusive possession and enjoyment of the petitioner and the first respondent, without there being any authority, is trying to interfere with possession of the petitioner; that the first respondent has not filed any single document to show that this particular land was given to the municipality by virtue of the gift deed in the year 1987; that no documents are filed by the respondents to show that the said extent of Ac.8.16 guntas is earmarked as open space and therefore, he prays to issue a direction to the first respondent not to interfere with the possession and enjoyment of the petitioner over the said property. 9. On the other hand, the learned standing counsel appearing for the first respondent contended that the prayer in the Writ Petition is vague; that the boundaries of the land to an extent of Ac.8.16 guntas being claimed by the petitioner, have not been furnished by the petitioner; that, in pursuance of the HUDA approved layout, the said extent of Ac.8.16 guntas was gifted to the then Kukatpalli Municipality under a registered gift deed in the year 1987 and since then the first respondent is in possession and enjoyment of the property; that when the first respondent wanted to develop the land as a park and also for making a walking track, the petitioner approached this Court and falsely obtained the order; that there is a serious dispute with regard to the title and possession of the land claimed by the petitioner as the first respondent is claiming right, title and interest as gifted to the municipality whereas the petitioner is claiming the property as belonging to him, and such disputed questions of fact cannot be decided exercising the extraordinary jurisdiction under Article 226 of the Constitution of India, and therefore, the Writ Petition is misconceived and is liable to be dismissed. 10. On the other hand, the learned counsel for the second respondent contended that the petitioner is relying upon a survey report prepared by the revenue officials, which does not reveal that the survey was conducted after giving notice to all the residents of the locality and also municipality, and therefore, the survey cannot be acted upon; that the facts relating to the year 1985 may not be known to the general power of attorney holder of the petitioner as the general power of attorney was allegedly executed after 1985; that the land in question was gifted to the then Kukatpalli Municipality by the second respondent, and therefore, he prays to dismiss the Writ Petition. 11. The dispute is with regard to an extent of Ac.8.16 guntas in survey no.145 of Hydernagar Village, Balanagar Mandal, Ranga Reddy District. The petitioner stated that he got title to an extent of Ac.26.00 of land in the said survey number and requested the Collector to mutate his name in the revenue records. Thereafter, the Revenue Inspector inspected the premises and submitted a report stating that the petitioner was in physical possession of Ac.8.16 guntas in survey no.145 and prepared a rough sketch. Therefore, the main contention of the petitioner is that the property in dispute is a patta land and the first respondent has no right to interfere with the possession of the petitioner. On the other hand, case of the first respondent is that by virtue of gift settlement deed bearing document No.794/87, dated 27.10.1987 executed by the second respondent, the first respondent is in possession of the property in question ever since 1987, and that the petitioner is not in possession of the property. It is the case of the second respondent that it purchased an extent of Ac.90.00 in survey no.145 for a valuation consideration from One Smt. Vilayat Jhan Dargari Begum, w/o. late Himayat Nawab Jung and the petitioner. But, the said fact is disputed by the petitioner and he filed reply affidavit stating that no sale deed was executed by the G.P.A. holder of the petitioner in favour of the second respondent. The petitioner is claiming right basing on location sketch map said to have been prepared by the Mandal Surveyor. Location sketch is not prepared in accordance with law. Such a plan is not appended to the petition stating that the land in the sketch map is being interfered by the first respondent and is trying to develop the same into a park or laying of walking track. Therefore, there is a serious dispute of question of fact with regard to title as well as possession over the landed property in question. There cannot be any dispute that when there is a serious dispute with regard to title and possession of the property, ordinarily the same cannot be determined exercising the extraordinary powers under Article 226 of the Constitution of India. 12. On this aspect, learned standing counsel appearing for the first respondent relied on the following decisions. (a) In Orissa Agro Industries Corpn. Ltd. & others v. Bharati Industries and Others, wherein it is held thus: (para 7) “A bare perusal of the High Court's judgment shows that there was clear non-application of mind. On one hand the High Court observed that the disputed questions cannot be gone into a writ petition. It was also noticed that essence of dispute was breach of contract. After coming to the above conclusions the High Court should have dismissed the writ petition. Surprisingly, the High Court proceeded to examine the case solely on the writ petitioner's assertion and on a very curious reasoning that though the appellant-Corporation claimed that the value of articles lifted was nearly rupees 14.90 lakhs no details were specifically given. From the counter-affidavit filed before the High Court it is crystal clear that relevant details disputing claim of the writ petitioner were given. Value of articles lifted by the writ petitioner is a disputed factual question. Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. As noted above, the writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised. (See : State of Bihar v. Jain Plastic and Chemicals Ltd. 2002 (1) SCC 216)” (b) In D.L.F. Housing Construction (P) Limited v. Delhi Municipal Corpn. & others wherein it is held thus: (para 20) “In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The rights course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit.” (c) In Moran M.Baselios Marthoma Mathews II and others v. State of Kerala & others, wherein it is held thus: (para 12) “Such might have been the contentions of the appellants before the High Court or before us in the special leave petitions, but we have no doubt in our mind that such disputed questions in regard to title of the properties or the right of one group against the other in respect of the management of such a large number of Churches could not have been the subject matter for determination by a Writ Court under Article 226 of the Constitution of India in the garb of grant of police protection to one or the other appellants.” (d) In New Okhla Industrial Development Authority v. Kendriya Karmachari Sahkari Grih Nirman Samiti wherein it is held thus: (paras 12 and 13) “A High Court is not deprived of its jurisdiction to entertain a petition merely because in considering petitioner's right to relief question of fact may fall to be determined as pointed out in Gunwant Kaur v. Municipal Committee ( AIR 1970 SC 802). In a petition under Article 226, the High Court has jurisdiction to try issues of law and fact. Where, however, the petition raises complex question of fact, the Court should not entertain the petition. In Mahanta Moti Das v. S.P. Sahid (AIR 1959 SC 942) the High Court refused to go into the question as to whether Trusts were public or private trusts as the question had involved investigation of complicated facts and recording of evidence. The view was upheld. Thus, if there is a question on which there is a serious dispute which cannot be satisfactorily decided without taking evidence, it should not be decided in a writ proceeding (See Union of India v. T.R. Verma, AIR 1957 SC 882). If disputed questions of fact arise and the High Court is of the view that those may not be appropriately tried in a writ petition, the High Court has jurisdiction to refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact which may, for their determination, require oral evidence to be taken and on that account the High Court is of the view that the disputed statement may not be appropriately tried in a writ petition, the High Court should ordinarily decline to try the petition.” From the above decisions, it is clear that when there is a serious dispute relating to facts, the same cannot be adjudicated or decided exercising the powers under Article 226 of the Constitution of India. This aspect of the case is not in dispute. The exact location of the property is in dispute. It is clearly stated in the counter affidavit filed by the first respondent that the respondent no.1 is in possession of the property in question since 1987 in pursuance of the gift settlement deed dated 27.10.1987. In the reply affidavit filed by the petitioner, there is no specific denial with regard to that aspect. It is stated in the reply affidavit that none of the respondents has stated that the open spaces settled in favour of the first respondent giving specific boundaries and therefore falsely claiming valuable property of the petitioner as one of the open space settled in favour of the first respondent on the pretext that the same was open space earmarked for park. But, as seen from the gift deed dated 27.10.1987, an extent of 44038.89 square yards site was gifted in favour of the Kukatpalli municipality by the second respondent. Schedule of the property was shown. Therefore, prima facie, at this stage, it cannot be said that the open site was not handed over to the first respondent corporation. 13. This Writ Petition is filed by the general power of attorney holder of the petitioner. The General Power of Attorney is said to have been executed by the petitioner on 5.8.2009 for the purposes mentioned therein. The Writ Petitioner, who filed the Writ Petition with his G.P.A. has not stated as to how he came to know about the facts of the case and what had transpired prior to 2009 because the G.P.A. is said to have been executed by the petitioner in favour of the deponent-GPA holder in the year 2009. He has not stated in the affidavit or in the reply affidavit that he is having knowledge of the facts through which transpired prior to the year 2009, through the petitioner. 14. At this stage, there is no prima facie material to show that the extent of Ac.8.16 guntas of land belongs to the petitioner and he has got a title. When the petitioner failed to establish prima facie case, balance of convenience