HONOURABLE SMT.JUSTICE T.MEENA KUMARI SECOND APPEAL No.270 of 2009 JUDGMENT: This appeal arises out of the decree & judgment, dated 17th January, 2009, passed in A.S.No.294 of 2005 by the learned III Additional Chief Judge, City Civil Courts, Hyderabad, confirming the judgment and decree, dated 4.4.2005 passed in O.S.No.1229 of 1993 by the learned V Senior Civil Judge, City Civil Court, Hyderabad. The appellants herein are the defendants and the respondents are the plaintiffs in the suit. For the sake of convenience, the status of the parties will hereinafter be referred to as arrayed in the suit. Originally, the plaintiffs filed the suit in O.S.No.1229 of 1993 for ejectment and resumption of possession on the following grounds: Plaintiffs 1 to 10 are the legal heirs of one late Dwaraka Pershad and that the 1st plaintiff is GPA holder of plaintiffs 2 to 10. They claimed that late Dwaraka Pershad was the owner of the suit property in survey No.58/1, which is equivalent to survey No.127/1 of New Bahaloolkhanguda, Erragadda, Hyderabad under a registered sale deed dated 22.5.1353 Fasli (1942 AD). Subsequently, the defendant-Government obtained the lease of the schedule property on 20.4.1972 for location of the hospital for mental health and subsequently, the lease has been renewed from time to time till 2.7.1984 under various registered lease deeds and finally on 2.2.1986 on the same terms and conditions and subsequently, the defendants committed default in payment of rents. Hence, a notice under Section 106 of the Transfer of Property Act terminating the lease was issued, but the defendants did not respond. The 5th defendant filed a written statement stating that the property in question does not belong to the vendor under Ex.A1 or to the father of the plaintiffs and that it is a Government land and in the revenue records, it has been noted as poramboke and the major extent was occupied by the roads and other infrastructure and allotments are made to various departments including Medical and Health, Public works and Irrigation and some land was occupied by the land grabbers. It is also stated that Bahaloolkhanguda is Ex-Jagir village under the estate of Raja Dharamkaram Bahadur and in the year 1927 AD a survey was conducted. As per Sethwar of 1336 fasli, survey No.58 admeasuring Ac.97.14 gts., was sub-divided into new survey numbers 42,43,63, 64, 65, 173, 174, 175, 176, 177, 178 and 186 and 12 revision survey numbers were recorded as lands belonging to Royal Air Force and after abolition of Jagirs, the village was merged with Diwani and the entire property is vested in the Government and thereafter, the Government have conducted survey in the year 1950 and the aforesaid 12 Revision Survey numbers were formed into single Survey number as ‘127’ with an extent of Ac.99.39 gts., and the land was classified as Sarkari land in the name of Khatadar Royal Air Force and the entire land shown as poramboke as per the original sethwar 1953 AD, which is the final record of settlement. It is further stated that after the second world war, the properties, which were in possession of the Ministry of defence were transferred to the State of Hyderabad i.e., Public Works Department and then, to Medical and Health Department for the purpose of establishing Mental Hospital. The premises of the building and the land are encompassed by old compound wall and fencing on all sides and that the total area of the land in possession of the Mental Care Hospital is Ac.53.24 gts., after deducting the land used for road widening and the land under the occupation of the land grabbers. Out of Ac.53.24 guntas, Ac.2.00 was given to Hyderabad Metropolitan Water Supply and Sewerage Board. A survey was conducted as per the provisions of A.P. Survey and Boundaries Act, 1923 during the years 1965 to 1972 and a final notification as provided under Section 13 of the said Act was published in Hyderabad District Gazette No.27, dated 22.4.1976 and during the said survey, the survey No.127 was correlated to various town survey numbers and the suit property as per the said survey is located in T.S.No.1, Block B, Ward No.3 of Bahaloolkhanguda village within 68 acres 13 guntas, which is shown as Government Mental Hospital and that the entries in the Town Survey Land Register were became final as no suit was filed within three years from the date of Gazettee publication on 22.4.1976 as provided under Section 18 of the A.P. Survey and Boundaries Act 1923 and as such, the entries clearly establish that the Government is the absolute owner of the suit property. The Government proposes to establish Rythu Bazar within the compound wall of Mental Care Hospital. It is also stated that some portion of the land belonging to the Mental Hospital has been utilised for the purpose of road widening and some portion has been encroached by the land grabbers and as such, it is not possible to identify without furnishing correct boundaries of the suit land as the boundaries shown in the suit property do not exist. The 3rd defendant filed the written statement contending that the plaintiffs have to prove their title to the property and admitted that the suit schedule property is part of survey No.127/1, but it is a Government land and the 3rd defendant is enjoying the same as per the admission of the plaintiffs. Before the Court below, 1st plaintiff examined himself as P.w.1 and got Exs.A1 to A24 marked on his behalf and the defendants besides examining D.W.1, got marked Exs.B1 to B10 on their behalf. On appreciation of the evidence on record, the Court below decreed the suit. Hence, the defendants carried the matter in appeal, in which, the judgment of the Court below was confirmed. Having aggrieved by the same, the present appeal has been filed. Heard the learned Counsel and perused the material available on record. It is the contention of the learned Government Pleader that as per the town survey conducted during the year 1965-72, the Government is the absolute owner of the entire property in possession, occupation and enjoyment of the Government Hospital for Medical care, Erragadda and that the plaintiffs have no manner of right whatsoever over the same and that in the Town Survey Land Register, the land in question was recorded as Government Poramboke and the entries in TSLR became final and conclusive and will prevail over any other document and that Ex.B1 copy of Sethwar clearly shows that the Government is the absolute owner of the suit schedule property and therefore, the respondents are not entitled to claim the relief of eviction against the Government. It is pertinent to note that the scope for interference with concurrent findings of the fact while exercising jurisdiction under section 100 C.P.C. is very limited. In case of perverse findings only, the question of fact will be appreciated in a case of this nature. Coming to the case on hand, on a perusal of the material on record and the judgments impugned, it is obvious that Exs.A8 to A15- correspondence between the plaintiffs and the Government, which is subsequent to Exs.B1 to B10, goes to show that the Government has been corresponding with the plaintiffs with regard to the arrears of the rents payable to the plaintiffs even after the date of their survey alleged to have been conducted between 1965 to 1972. It is the contention of the defendants that by mistake of fact, they have entered into the lease with the plaintiffs. If it is assumed to be true for a while, the correspondence viz., Exs.A8 to A15, subsequent to the survey alleged to have been conducted, cannot lend any support to the version of the defendants. Therefore, I feel that the execution of the documents viz., Exs.A4 to A7 cannot be brushed aside and the defendants cannot be permitted to deny the title of the plaintiffs under the provisions of Section 116 of the Indian Evidence Act. Further, from the material on record, it is obvious that a writ petition in WP No.9717/1993 was filed before this Court by one Mohd Khasim and Ameena Begum with regard to the entries wrongly made for survey No.58 (old) of Bahloolkhanguda and in that connection, this Court observed that when Rayees Yar Jung was the owner and accepted by the Government and his sales were held to be valid and as the land in Sy.No.58(old) corresponding to Sy.No.127(new) was held to be patta land and the orders were issued to rectify the settlement error and the same having been acted upon, there is absolutely no reason or justification for discriminating the case of the writ petitioners, which stands similarly as that of the other purchasers of Rayees Yar Jung. On that, the Government preferred an appeal before the Apex Court and the Apex Court dismissed the said appeal. The observations of this Court in the writ petition goes to show that the Government accepted that one Rayees Yar Jung was the owner of the land in question. But in the present case, it had taken a different stand that Bahloolkhanguda is Ex-Jagir village under the estate of Raja Dharamkaram Bahadur and after abolition of Jagirs, the village was merged with the Diwani. Once the Government admitted that Rayees Yar Jung was the owner of the land, it cannot be permitted to take a different stand at a later stage. Therefore, the appellant is estopped from altering its earlier stand. Further, the documents Exs.A4 to A7 go to show that the lease was extended from time to time, and as the defendants failed to pay the rents properly, a legal notice under Ex.A16 was issued terminating the tenancy w.e.f. 20.2.1990, and the correspondence between the plaintiffs and the defendants also made it clear that the defendants took the premises on lease. The material on record further goes to show that the defendants, who denied the title not only of the plaintiffs but also the very vendor of plaintiffs’ father did not choose to file any document to support the same and no document is filed by the defendants to show that they have addressed any correspondence or issued any notice to the plaintiffs questioning their claim over the suit property inspite of the correspondence between the plaintiffs and defendants 1 to 4 under Exs.A10 to A15. When the defendants acknowledged the lease and paid the leased amount right from 1972 to 1986, they shall be estopped from questioning the title of the plaintiffs over the property in question as rightly observed by the Court below. In this connection, after considering the evidence on record, both the Courts below discussed elaborately and gave the concurrent findings. In view of the fact that no evidence has been adduced by the appellants-defendants to prove that the land belongs to the Government, in the absence of which, the contentions raised in the memorandum of grounds do not constitute any substantial question of law. In this view of the matter, the contention of the learned Counsel for the appellants that the property in question belong to the Government does not stand on ground. Insofar as ground No.1 is concerned, while relying upon the decision of Apex Court in P. Chandrasekharan and others Vs. S. Kanakarajan and others[1], it is contended by the learned Counsel for the appellants-defendants that the Courts below ignored the documentary evidence relating to lease deeds, which do not contain any boundaries and order recovery of possession basing on the boundaries shown in the plaint schedule, which do not tally on ground and the findings of the Courts below are perverse. The ground raised by the appellants-defendants constitutes a question of fact. Except taking such plea in the written statement, the defendants could not choose to adduce any material to establish the same. Originally, the property in question was purchased in the year 1942 and the same was leased out in the year 1972. The version of the defendants-Government itself goes to show that some portion of the land in question was given to road widening and some portion of it was occupied by the land grabbers. As per the sale deed, the plaintiffs had shown what their father had purchased. The sale deed clearly shows its boundaries. It is the contention of the plaintiffs that the property, what they got under Ex.A1 sale deed, was leased out to the defendants. Therefore, mere change in the boundaries at subsequent stage, would not affect the rights of the plaintiffs. Apart from that, the ground raised by the appellants-defendants is within the factual arena, over which roving enquiry is not permissible at the stage of the second appeal. In this view of the matter and in view of the facts and circumstances of the case, I feel that the grounds in this appeal do not constitute any substantial questions of law. In view of the foregoing discussion and in view of the concurrent findings of both the Courts below and in the absence of any substantial question of law, I have no hesitation to hold that the judgments of the Courts below do not suffer from any illegality or irregularity warranting interference of this Court and hence, the second appeal is liable to be dismissed. In the result, the Second Appeal is dismissed at the admission stage. ______________________ Justice T.Meenakumari Date: 6th November, 2009. Nn HONOURABLE SMT.JUSTICE T.MEENAKUMARI Second Appeal No.270 of 2009 .11.2009 [1] (2007) 5 SCC 669