State Of A.P. & Ors vs D. Raghukul Pershad (D) By Lrs & Ors

The facts briefly are that the respondents herein filed OS No. 2379 of 1990 in the Court of 5th Assistant Civil Judge, City Civil Court, Hyderabad against the appellants no. 1 to 4 for ejectment and resumption of possession of the suit land. The case of the respondents in the plaint was that the appellants had taken lease of the suit land from their common ancestor late Shri Dwaraka Pershad who had purchased the suit land from Nawab Raisyar Bahadur. The further case of the respondents in the plaint was that as the appellants failed to pay any rent from 1986 and renewed the lease after 1986, the respondents gave a notice to the appellants on 30.11.1989 to vacate the suit land. The appellants filed written statement pleading, inter alia, that the suit land actually belonged to the appellants and the lease deed had been executed and the rent had been paid to the respondents by mistake of fact. The learned Civil Judge decreed the suit for eviction after recording a finding, inter alia, that the appellants have not been able to prove the title to the land. The appellants filed First Appeal before the 3rd Additional Chief Judge, City Civil Court, Hyderabad which was numbered as AS No. 294 of 2005. The First Appellate Court held that the appellants were estopped from setting up title in them so long as they have not surrendered possession of the land to the lessees, namely, the respondents and further held that the appellants have not been able to establish their title to the suit land.

Aggrieved, the appellants filed Second Appeal SA No. 270 of 2009 before the High Court and by the impugned order, the High Court has dismissed the Second Appeal after holding that the appellants cannot be permitted to deny the title of the respondents under the provisions of 116 of the Indian Evidence Act and also holding that the appellants have not been able to adduce any evidence to prove that the suit land belonged to the appellants. The High Court also held in the impugned order that in a writ petition WP No. 9717 of 1993 filed before the High Court one Mohammed Khasim and Ameena Begum had challenged the entries with regard to Survey No. 58(Old) of Bahloolkhanguda Survey No. 127(new) and the High Court had observed that Rayees Yar Jung was the owner and sales made by Rayees Yar Jung were therefore, valid. The High Court further observed that the order passed by the High Court in writ petition no. 9717 of 1993 was challenged before this Court by the Government but this Court had dismissed the appeal and therefore, the appellants were estopped from taking a different stand with regard to the ownership of the land. With the aforesaid findings, the High Court dismissed the Second Appeal of the appellants.

For the aforesaid reasons, we set aside the findings of the trial Court, the First Appellate Court and the High Court on title, but we maintain the decree for eviction. We, however, order that the appellants will vacate the suit land within six months from today and further make it clear that the suit, if any, filed by the appellants for declaration of title and consequential relief cannot be entertained by the Court unless the appellants first vacate and handover possession to the respondents.

The judgment of the Courts below are modified accordingly. The appeal is allowed to the extent indicated above. No costs.