*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.14 of 2008 %08.12.2011 #Atluri Kuchela Rao. ..Appellant. Vs. $The District Collector and another. ..Respondents. !Counsel for the appellant : Sri B.Adinarayana Rao ^Counsel for Respondents : Government Pleader for Arbitration. <Gist : >Head Note: ?Cases Referred: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.14 of 2008 JUDGMENT: The appellant filed O.S.No.1121 of 1992 in the Court of VII Senior Civil Judge, City Civil Court, Hyderabad, for the relief of declaration of title and perpetual injunction, in respect of the suit schedule property of a plot of 370 square yards in Road No.3, Banjara Hills. He stated that the suit schedule property is part of plot No.11, carved out by erstwhile Jubilee Hills Municipality; and its allottee Smt.Safia Begum sold it in favour of one Smt. Rangamma and others through sale deed, dated 12.04.1965, under Ex.A.3 and that Ragamma and another, in turn, divided that land into 12 plots and sub-plot No.11, admeasuring 1849.66 square metres, was sold to smt.Iqubal Begum Sayed, in the year 1969. She, in turn, is said to have sold 648 square yards to the appellant under Ex.A.1, dated 05.10.1978. Out of this, the appellant is said to have sold 278 square yards through a document, dated 15.05.1992. It was also mentioned that the respondents made an attempt to recover the possession of the suit schedule property and other extents from the vendors by filing L.G.C.Nos.26 of 1990 and 36 of 1991 and that the Special Court constituted under the A.P. Land Grabbing (Prohibition) Act (for short ‘the L.G.Act’), had dismissed the said cases. With these and other averments, he prayed for the relief of declaration of title and perpetual injunction. On behalf of the respondents, a written statement was filed, stating that the suit schedule property is part of survey No.403, a large extent owned by the Government. It was also mentioned that the Jubilee Hills Municipality divided the land in the said survey number into 134 plots and the suit schedule property is part of plot No.10 and not plot No.11, as pleaded by the appellant. Various transactions pleaded by the appellant are said to be fictitious. The trial Court partly decreed the suit, granting the relief of perpetual injunction through its judgment, dated 05.09.2005, and declined the relief of declaration of title. The appellant filed A.S.No.553 of 2005 before the Chief Judge, City Civil Court, Hyderabad, feeling aggrieved by the denial of relief of declaration of title. The appeal was dismissed through judgment, dated 15.05.2007. Hence, this Second Appeal. Sri B.Adinarayana Rao, learned counsel for the appellant, submits that the trial Court and the lower Appellate Court, did not doubt the transactions covered by Exs.A.1 to A.7 and have declined the relief of declaration of title, only on the ground that the absolute title of the predecessors-in-title of the appellant was not proved. He contends that the fact that the respondents failed to establish their legal entitlement in L.G.C.No.36 of 1991, was not taken note of. He further submits that both the Courts proceeded on a wrong perception of Section 35 of the Specific Relief Act. Learned Government Pleader for Arbitration, on the other hand, submits that the relief of declaration of title can be granted, only through a decree in rem, and for that purpose, it becomes essential for a plaintiff to prove the title beyond any pale of doubt. He contends that though the appellant provided chain of transactions covered by sale deeds, he did not establish the title of the original allottee. The suit was filed for the twin reliefs of declaration of title and perpetual injunction. The fact that the appellant is in possession of the property is evident from the proceedings initiated by the respondents, in L.G.C.Nos.26 of 1990 and 36 of 1991, against his vendors. The trial Court framed the following issues for its consideration: i) “Whether the plaintiff is entitled for the relief of declaration of title in respect of suit schedule property? ii) Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for? iii) Whether the suit property is property of government as contended by defendants? iv) Whether the suit is bad for want of Section 80 notice as contended by defendants?” On behalf of the appellant, PW.1 was examined and Exs.A.1 to A.7 were filed. Exs.A.1 to A.4 are sale deeds executed at various points of time covering the suit schedule property; Ex.A.5 is the tax pass book; Ex.A.6 is the tax receipt and Ex.A.7 is the c.c. of judgment in L.G.C.Nos.26 of 1990 and 36 of 1991. On behalf of the respondents, DWs.1 and 2 were examined and Exs.B.1 to B.5 were filed. Ex.B.2 is the extract of Town Survey Land Register; Ex.B.1 Gazette notification of the survey; Ex.B.3 is the sketch map in respect of the suit schedule property; Ex.B.4 is the pahani for the year 1986-87 and Ex.B.5 is the statement of sale of plots developed by Jubilee Hills Municipality. As observed earlier, the suit was partly decreed granting the relief of injunction, but declining the one of declaration of title. In A.S.No.553 of 2005 preferred by the appellant herein, the lower Appellate Court, framed only one point for its consideration, viz., “Whether the appellant is entitled for the relief of declaration as prayed for?” and the same was answered against the appellant. The trial Court and the lower Appellate Court took note of the fact that the land in plot No.11 was allotted to Sofia Begum, and thereafter, the plot became the subject-matter of various transactions, till it was purchased by the appellant. The fact that the appellant is in possession and enjoyment of the plot is evident from Ex.A.7, where the L.G.C. filed by the respondents for recovery of possession of the same from the vendors of the appellant, was rejected. Further, the decree of perpetual injunction passed in favour of the appellant by the trial Court has become final, since the respondents did not prefer any appeal. The appellant based his title upon a series of sale deeds, traceable up to the original allottee of plot No.11. The trial Court and the lower Appellate Court expressed the view that in as much as absolute title is established in a perfect manner, relief of declaration of title cannot be granted. In other words, they proceeded on the assumption that since the decree for declaration of title would be in rem, nothing short of absolute title must be established. There is a general perception about the nature of decrees of declaration of title by branding them as those in rem. A view point is projected to the effect that it would operate as against the entire world. That, however, does not accord to the specific language of Section 35 of the Specific Relief Act, 1963 (for short ‘the Act’). The provision reads: “35.Effect of declaration – A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration such parties would be trustees.” From this, it is evident that a decree for declaration of title would operate only against the parties to it. In case a person, who is not a party to the decree, claims and proves better title, the decree obtained by an individual does not come in the way. Another aspect of the matter is that, the law does not stipulate any particular standard for establishing title in respect of an item of immovable property. By its very nature, the title would be relative, and much would depend upon the nature and strength of the claim made by the opposite party. A person can acquire title to the property, through several means. It may be through operation of law, such as by succession, by act of parties, such as through sale, or on account of sheer indifference, or negligence of the actual owner, viz., through adverse possession. Till recently, the concept of adverse possession was treated as a valid defence. The Supreme Court, however, held that, a person, who is in adverse possession of an immovable property, can institute suit for declaration of title, solely on the basis of his adverse possession. When such is the wide range of means, through which title to an item of property can be acquired, it is futile to insist that the proof thereof must be of a particular standard. Even in the respective categories, much would depend upon the type of resistance or the nature of claim made by the defendant. If the plaintiff in a suit of this nature establishes certain basic aspects and tenets of title and the defendant is not able to establish any superior title, a decree must follow and such a decree would operate only against the defendants and not against others, who are not parties to the suit. The lower Appellate Court has taken the view that though the respondents did not establish any title over the property, the appellant cannot be granted the relief of declaration of title, since he did not prove it to the level of perfection. An important substantial question of law arises from the discussion undertaken above, as regards the purport of Section 35 of the Act and the same is answered in favour of the appellant. Another aspect of the matter is that the respondents initiated proceedings under the L.G. Act, against the vendors of the appellant for recovery of the very suit schedule property. The jurisdiction of the Special Court is comprehensive. It is only when a petitioner before it establishes his title, or lawful entitlement to the property, that the person, who dispossessed him, can be treated as ‘land grabber’ and the relief of not only recovery of possession, but also of prosecution of the ‘land grabber’ would be granted. The plea of the respondents that they have the title over the property was repelled and the L.G.C. was rejected. It is stated that the writ petition filed by them was also dismissed. The result was that the respondents failed to prove their title, and thereby the right to recover the possession. If the title in respect of the property did not vest in the respondents, naturally it should be with the one, who is in possession and enjoyment of the property, particularly when the plea of the vendor of the respondents was accepted. Hence, the Second Appeal is allowed and there shall be a decree for declaration of title in favour of the appellant, vis-à-vis the suit schedule property, subject, however, to the right that the decree shall operate only vis-à-vis the respondents and not against third parties. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:08.12.2011 GJ