THE HON'BLE SRI JUSTICE P.S.NARAYANA C.C.C.A.Nos.17 and 94 of 1994 3rd June, 2010 Between :- Smt.N.Bala Tripura Sundari .. Appellant And The Government of Andhra Pradesh, Rep. by its Secretary, Revenue Department, Secretariat, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA C.C.C.A.Nos.17 and 94 of 1994 COMMON JUDGMENT:- These two appeals – C.C.C.A.Nos.74/94 and 94/94 had been preferred as against the Decree and Judgment made in O.S.No.796/79 on the file of the I-Additional Judge, City Civil Court, Hyderabad. The 1st plaintiff is the appellant in C.C.C.A.No.17/94 and the other plaintiffs are the appellants in C.C.C.A.No.94/94 and inasmuch as both these appeals had been preferred as against the Decree and Judgment made in O.S.No.796/79 aforesaid, both these matters are being disposed of by this common Judgment. 2. It is stated by Sri Venkateshwar Reddy, the learned Counsel representing the appellant in C.C.C.A.No.17/94 and Sri Ghanta Rama Rao, the learned Counsel representing the appellants in C.C.C.A.No.94/94 that in a similar matter in C.C.C.A.No.58/93 dt.10-10-2006 the Decree and Judgment of the Trial Court had been set aside and the matter was remanded and since the respective stands taken by the parties and the evidence available on record also being substantially the same, it would be just and proper to set aside the Decree and Judgment made in this suit also and make an order of remand. The certified copy of the Judgment in C.C.C.A.No.58/93 also is placed before this Court. 3. The operative portion of the Judgment in C.C.C.A.No.58/93 aforesaid reads as hereunder:- “In the result, the appeal is allowed and the Judgment and Decree of the Trial Court are set aside and the matter is remitted back for fresh disposal according to law after giving opportunity to both sides to adduce evidence on the question referred to during the course of this Judgment. It is made clear that the lower Court shall not be swayed away by any observations made during the course of this Judgment. It is submitted that during the pendency of the suit and pendency of the appeal there has been an injunction in favour of the plaintiff granted against the defendant- Government. Therefore, it is directed that the Government shall not take any steps till the disposal of the suit by the lower Court for recovery of the property. The plaintiff also shall not make any constructions whatsoever in the suit land. Costs in this appeal shall abide the result of the suit.” 4. On the contrary, the learned Government Pleader for Appeals would maintain that in the light of the convincing reasons recorded in the suit, this is not a fit matter where an order of remand can be made. 5. Heard the Counsel. 6. In the facts and circumstances well explained and also the submissions made by the Counsel on record, the following points arise for consideration in these appeals:- 1) Whether the findings recorded by the Trial Court to be confirmed or to be set aside in the facts and circumstances of the case? 2) Whether an order of remand to be made in these appeals also in the light of the order of remand made in C.C.C.A.No.58/93 aforesaid in the facts and circumstances of the case? 3) If so, to what relief, the parties would be entitled to? 7. Points No.1 and 2:- The parties hereinafter for the purpose of convenience would be referred to as shown in O.S.No.796/79 aforesaid. 8. The plaintiffs filed the suit for declaration that the plaintiffs are the absolute owners and possessors of their respective plots of land out of Municipal No.6-3-903, situated at Somajiguda, Hyderabad and for cancellaltion of the notification dt.25-9-76 showing the said area as a gap area in the Survey and Settlement Records in T.S.No.57/2, Ward No.88, Khairatabad village, Hyderabad District and for consequential injunction retsaining the defendants and their servants, agents etc., from claiming any interest whatsoever from interfering with the plaintiffs peaceful possession and enjoyment of the plaint schedule property and for costs of the suit. 9. It is the case of the plaintiffs that the old S.No.227 of survey No.1324 F situated at Khairatabad village was the property of Paigah which was named as Somajiguda. A portion of this land was assigned to Nawab Aga Yar Jung by the Paigah. In the re-survey Nawab Aga Yar Jung was assigned S.No.19 prior to 1352F and obtained the sanction of Hyderabad Municipality through permit No.254/259 dt.6- 12-42. Nawab Agar Yar Jung gifted a portion of this land measuring 5,500 Sq.Yds. in 1349F to his daughter Smt.Vikarunnisa Begum for construction of a house. Smt.Vicarunnisa Begum constructed a house thereon under cover of the building permit No.1368 of 1349F issued by the Municipal Corporation of Hyderabad. The house was named ‘Shalimar’ and was assigned Ml.No.133/1 and was subsequently renumberd as Relief-2-903 and it presently bears M.No.6-3-903. The said Smt.Vikarunnisa Begum sold the entire area of 5500 Sq.Yds. together with the said house to Smt.Jani Begum by sale deed dt.28-2- 52 registered as document No.52 of 1952. Smt.Jani Begum in turn sold it to Mrs.Sogra Amir Ali by a registered sale deed dt.6-7-56 registered as Doc.No.1596 of 1956. Mrs.Sogra Amir Ali sold the building together with an area of 2000 Sq.Yds. to Mrs.Famirunnisa Begum W/o.Mohd.Sharfuddin Khan and also the remaining area to the plaintiffs herein in bits. The details of the area purchased by each plaintiff are as under:- 1) Smt.N.Balatripurasundari (Plaintiff No.1) 310 Sq.Yds. (H.No.6-3-903/4) 2) Smt.Y.Sulochana Rani (Plaintiff No.2) 250 Sq.Yds. (H.No.6-3-903/4/A) 3) Smt.G.Sita Devi (Plaintiff No.3) 250 Sq.Yds. (H.No.6-3-903/4/B) 4) N.Radhakrishna Murthy (Plaintiff No.4) 250 Sq.Yds. (H.No.6-3-903/4/C) 5) S.Venkatewarlu (Plaintiff No.5) 325 Sq.Yds. (H.No.6-3-903/4/D) 6) S.Suryanarayana (Plaintiff No.6) 325 Sq.Yds. 7) Smt.M.Laxmi (Plaintiff No.7) 490 Sq.Yds. (Wherein she constructed a house) 8) Smt.S.Ramalakshmi (Plaintiff No.8) 422 Sq.Yds. (Open land) The plaintiff and their predecessors-in-title are in possession and enjoyment of their respective plots of land since 1939 as full owners. That in the survey conducted and notified in the District Gazette dt.25- 9-76 a major portion of the above mentioned land bearing M.No.6-3- 903 and later order given the above sub-division numbers, situated at Somajiguda, is shown in T.S.No.57/2 Ward No.88, Khairatabad village and this is shown as a gap area. The District Gazette is not available for sale and as such the plaintiffs are unable to know the details published in the District Gazette. As per the Hyderabad Land Revenue Act and the Settlement Rules made thereunder, the previous survey and settlements have been done and Aga Yar Jung was recorded as the owner and pattedar of old Sy.No.19. His name continued in the Revenue Records including the pahanies and later the names of Vikarunnisa Begum, Jani Begum and Sogra Begum in the relevant years. The basis for treating the land as gap area is not known. It is unknown to law that a land for which a patta was given will be treated as gap area. This is nothing but a malicious action purported by the village patwaris as well as the employees of the Survey and Settlement Department. The plaintiffs are not bound by such declaration as the plaintiffs and as well as their predecessors-in- title have been in continuous possession and enjoyment openly, exclusively and adversely to the interest of the Government for more than 40 years. As such they have perfected their title to their respective plots of land. Smt.Fakrunnisa Begum has already instituted a suit in O.S.No.146/790 for a declaration of her title and injunction and also for correction of boundaries and the same suit is pending for disposal. The plaintiffs have issued a statutory notice on 19-6-79 and the defendants received the same but they have not chosen to give reply. 10. Defendant No.3 filed written statement pleading that the suit land belongs to the Government of Andhra Pradesh. The title, ownership and possession etc., of the plaintiffs from Paigah to Nawab Agar Yar Jung to Smt.Vikarunnisa Begum and others is not true and correct. The plaint is completely silent as to how much extent of the land was being enjoyed by Smt.Vikarunnisa Begum and the mode of enjoyment of the property was also not disclosed and further on how much extent of land their alleged predecessor-in-title Smt.Vikarunnisa Begum constructed a house. The plaint is silent that how much extent of the building portion was sold by their alleged predecessor-in-title to Smt.Sogra Amir Ali to Smt.Fakrunnisa Begum and also about the boundaries on all the four sides regarding an extent of 2541 Sq.Yds. alleged to have been purchased by plaintiffs herein. The survey numbers are not tallying as alleged by the plaintiffs in their sale deeds. The construction of the houses by the plaintiffs on the suit land and assignment of Municipal Numbers to the premises, as alleged will not confer any ownership, right on the land. The title, ownership and possession of the plaintiffs is denied. 11. Further it is stated that the correct position as follows:- In Khairatabad village S.No.227 with an extent of 116 acres and 22 guntas was gairan (Adabi Somajiguda) land as per Survey and Settlement Records of 132F. The piece of land is lying west of the Railway line from Khairatabad to Secunderabad. In 1340F, the survey No.227 of Khairatabad village resurveyed and assigned survey No.I to 44, following the limit of enjoyment on ground and formed into separate Revenue village called Somajiguda. S.No.19 with an extent of 11 acres and 18 guntas in the revised Somajiguda Survey and Settlement records of 1353F was recorded as Patta land in favour of Asgar Sultan Saheb. The sale transaction referred to by plaintiffs commencing from Nawab Agar Yar Jung up to the date of purchase of the plaintiffs including all their predecessors-in-title are not brought to Revenue Records and therefore no mutation was affected during 1340F of and till date. The notification published in Hyderabad District Gazette, dt.25-9-76 relates to validation of Town Survey under Section 13 of the Survey and Boundaries Act in respect of Ward No.88 of Khairatabad village. According to re-survey records T.S.No.57/1 to 3 is co-related to old survey numbers as mentioned below: 1) TS No.57/1 R.S.No.162)P) Patta land of Khairatabad. 2) T.S.No.57/2 Co-related to R.S.No.277 Gairan land of Khairatabad village which is treated as gap area (unsurveyed) which is omitted to be given a number. 3) T.S.No.57/3 This was correlated to S.No.19/Part of sjd village (Patta lands) 12. Further it is stated that as per Town Survey records T.S.No.57/1 and 57/3 are registered in favour of Sri Sogra Ameer Ali, the immediate predecessor-in-title to the plaintiff and 57/2 was booked as encroachmet in gairan land with Smt.Sogra Ameera Ali as encrocher. The plaintiffs in earlier paras of the plaint have referred to the various records of the Government but they have not chosen to indicate the orders or authority on the basis of which she has derived the title over the land. The present available Revenue Records of 1358F, onwards which pertains to the period after the abolition of Sarfekhas, show that Sy.No.19 of Somajiguda stands in the name of one Sri Asgar Sultan and from 1954-55 it was sub-divided into two sub-divisions. Khairatabad is an ex-sarfekhas village, its initial survey of 1324F is still on vogue in the Revenue Records with Sy.No.227 admeasuring 113 acres 22 guntas classified as Government land under area of Somajiguda. The survey map of Khairatabad pertaining to 1324F has a mention of gairan and Bancharai i.e., Communal Grazing lands. There is no record to show whether any Nawab Agar Yar Jung was at any time assigned the said lands by the Paigah authorities. As evident from the map of Somajiguda village of 1326F, that it is situated within the boundaries of village Khairatabad with an extent of 135 acres of 01 guntas with a total of 40 survey numbers in the village. After abolition of Jair and Sarfekhas, the Administration of Khairatabad and Somajiguda village was transferred to the Government. The present entries in Khairatabad village continues to be a Government land as habitation area of Somajiguda and Sy.No.19 of Somajiguda village has two sub-divisions. The plaintiffs have to establish the particulars of old Sy.No.19 and the corresponding new survey numbers thereto. 13. Further it is also stated that the correct position regarding re- survey is detailed herein. When re-survey was done during the year 1353F the boundaries of S.No.1 to 44 of Somajiguda village was carved out of Sy.No.227 of Khairatabad village, following the limits of enjoyment on ground and lands assessed to Revenue and the area left unsurveyed insno.227 of Khairatabad was treated as “Gp Area” in between Khairatabad and Somajiguda village boundaries. During the Town Survey conducted in the year 1969-70, this gap area was detected and recorded as such in Town Survey records and also confirmed by the Sp.Dy.Collector, Final Check Operations, Hyderabad, who was appointed for verifications of each line of demarcation between private and Government lands. 14. It is further stated that on receipt of the application from the Siddartha Cooperative Society in Collector’s file No.F1/20408/76 the Collector allotted some area of land to the society out of the gap area, which forms part of old S.No.227 of Khairatabad village which is recorded as Gairan land. While handing over possession to the society, the land covered by T.S.No.57/1 to 3 which is under the possession of plaintiff was not disturbed. There is no valid, legal and binding notice as per the provisions of notice as per the provisions of Section 80 CPC, hence suit is liable to be dismissed with costs. The jurisdiction of the Civil Court is barred by virtue of amendment to Section 14 of A.P.Land Encroachment Act of 1905 vide A.P.Act 23 of 1976. The plaintiffs have intentionally undervalued the suit properties in order to cause loss to the State Revenue. As each of the 8 plaintiffs are said to be having a separate sale deed registered in the name of the individual separately, each of the plaintiffs has to value the suit separately, by filing individual suits, but neither general suit nor representative suit. This kind of joint nature of suit is untenable and not maintainable and there is no cause of action to any of the plaintiffs. When each of the eight plaintiffs have said to be having eight separate sale deeds, in individual capacities, the boundaries of individual plots, separately are to be taken into consideration but not 2541 Sq.Yds. as a single unit whereby owners individually differ. The allegations of the plaintiffs in the plaint disclose, that each one of the four prayers are independent of other relief, not consequential and they are not dependant alternatively. Having not paid the requisite Court fee, separately the plaintiffs have no right to claim different reliefs. 15. On the strength of these pleadings, the following issues had been settled:- 1) Whether the plaintiffs are entitled for declarations of their title and injunction as prayed for? 2) Whether the suit land can be treated as ‘gap land’ between two villages, even though patta was granted as long back as in 1939 to the predecessors-in-title of the plaintiffs? 3) Whether the plaintiffs are entitled to cancellation of notification dt.25-9-76 and on consequential alterations of survey records to the effect that the plaintiffs are absolute owners and possessors of the plaint schedule property? 4) Whether all the plaintiffs together can file a single suit against the defendant, as each of eight plaintiffs claims to have separate sale deeds? 5) Whether the statutory notice of the plaintiffs to defendants is not valid, legal and not binding? 6) Whether this Court has no jurisdiction to entertain the suit? 7) Whether the suit is valued correctly and Court fee paid is sufficient? 8) To what relief? On behalf of the plaintiffs, the 5th plaintiff was examined as P.W.1 and Ex.A.1 to Ex.A.49 had been marked. On behalf of the defendants D.W.1 was examined and Ex.B.1 to Ex.B.4 were marked. The Trial Court recorded reasons in detail and on appreciation of oral and documentary evidence ultimately came to the conclusion that the plaintiffs were unsuccessful in establishing their case. Incidentally Section 14 of the Land Encroachment Act also had been referred to and certain findings had been recorded. It is pertinent to note that except the evidence of P.W.1 on behalf of the plaintiffs, no other oral evidence had been let in. Equally except the evidence of D.W.1, no other further oral evidence had been let in on behalf of the defendants. It is no doubt true that voluminous documentary evidence had been placed before the Court – Ex.A.1 to Ex.A.49 on behalf of the plaintiffs and on behalf of the defendants Ex.B.1 to Ex.B.4 also had been marked. 16. These appeals being very old appeals and the suit itself being an old one and normally in ordinary course order of remand not to be made. But however when this Court in a similar fact situation, in an appeal C.C.C.A.No.58/93 which arose from O.S.No.146/79 on the file of the Court of the First Additional Judge, City Civil Court, Hyderabad, had recorded reasons in detail and made an order of remand, this Court cannot take a different view and in the light of the same, this Court is inclined to set aside the Decree and Judgment made by the Court of first instance and make an order of remand on the self-same following directions as made by this Court in C.C.C.A.No.58/93 which reads as follows:- “In the result, the appeal is allowed and the Judgment and Decree of the Trial Court are set aside and the matter is remitted back for fresh disposal according to law after giving opportunity to both sides to adduce evidence on the questions referred to during the course of this Judgment. It is made clear that the lower Court shall not be swayed away by any observations made during the course of this Judgment. It is submitted that during the pendency of the suit and pendency of the appeal there has been an injunction in favour of the plaintiff granted against the defendant- Government. Therefore it is directed that the Government shall not take any steps till the disposal of the suit by the lower Court for recovery of the property. The plaintiff also shall not make any constructions whatsoever in the suit land. Costs in this appeal shall abide the result of the suit.” 17. In the light of the observations made in C.C.C.A.No.58/93, this Court is inclined to remand the present matter also and accordingly this Appeal also is also allowed setting aside the Decree and Judgment made in O.S.No.796/79 on the file of the I-Additional Judge, City Civil Court, Hyderabad with a direction to the Government not to take any steps till the disposal of the suit by the Trial Court for recovery of the property. Let the Trial Court give opportunity to both the parties to let in further evidence, if the parties choose to do so, and decide the matter afresh in accordance with law. Inasmuch as, the suit itself is an old one, let top priority be given for disposal of the suit at the earliest point of time. Let the parties do bear their own costs. _____________________ Justice P.S.Narayana 3rd June, 2010 smr