Singarapu Syam Sundaresham v. The District Collector,

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI CIVIL MISCELLANEOUS APPEAL No.123 of 2015 JUDGMENT:

This appeal, under Order XLIII rules 1 and 2 of the Code of Civil Procedure, 1908 ('the Code', for brevity), by the appellant/unsuccessful plaintiff is directed against the order dated 17.12.2014 of the learned IV Senior Civil Judge, City Civil Court, Hyderabad, holding Full Additional Charge of the Post of the learned VIII Additional Senior Civil Judge (Judge, Fast Track Court), passed in I.A.No.1236 of 2005 in O.S.No.1519 of 2005 filed by the petitioner/plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 of the Code seeking temporary injunction restraining the respondents/defendants from interfering with the plaintiff's possession and enjoyment over the premises bearing no.1-1-380/18 standing on part of plot no.7, admeasuring 200 square yards out of which the Government is claiming 145 square metres equivalent to 173.4 square yards situated at Bakaram/Gandhi Nagar, Musheerabad Mandal, Hyderabad morefully described in the schedule annexed to the plaint.

2. I have heard the submissions of the learned counsel for the appellant/plaintiff ('the plaintiff', for brevity) and the learned Government Pleader for Arbitration (TG) appearing for the respondents/defendants ('the defendants', for brevity). I have perused the material record.

3. The introductory facts which lead to the filing of this appeal by the plaintiff, in brief, are as follows: "The plaintiff brought the suit for declaration of his title and perpetual injunction in respect of the aforementioned property. Along with the suit, the plaintiff had filed an interlocutory application for temporary injunction to restrain the defendants from interfering with the plaintiff's possession over the suit schedule land on the premise that it is a Government land, pending final disposal of the suit. That application was resisted by the defendants by filing counter affidavit. At the time of enquiry, exhibits P1 to P8 were marked on the side of the plaintiff and exhibits R1 to

R5 were marked on the side of the defendants. No oral evidence has been adduced by either of the parties. On merits, the Court below, while dismissing the application for temporary injunction had observed that the plaintiff is entitled to maintain his possession until he is evicted by due process of law."

4. Feeling aggrieved of the said order, the plaintiff is before this Court as appellant.

5. The learned counsel for both the sides advanced their arguments in line with the respective pleadings, which are already stated supra.

6. Now the points for determination are:

1.

Whether the plaintiff had made out valid and sufficient grounds to set aside the order dated 17.12.2014 of the Court below passed in I.A.No.1236 of 2005 in O.S.No.1519 of 2005?

2.

Whether the order impugned is unsustainable under facts and in law, as contended by the plaintiff?

7. POINTS:- 7.1 The facts that lead to the filing of this appeal by the plaintiff are already stated supra, in detail. I have noted the submissions of the learned counsel for both the sides.

7.2 The case of the plaintiff is this: "The plaintiff is the owner of 400 square yards of site covered by plot no.7 situated at Bakaram Village having purchased the same under regular registered sale deed dated 22.08.1963 for valid consideration. The certified copy of the said registered sale deed is filed as exhibit P1. After purchase of the said site, the plaintiff had constructed a house in a part of the said site and the same was assessed to tax by the Municipal Corporation of Hyderabad. He has been

paying taxes regularly. Exhibit P3 is the Property Tax Receipt. Later, he had sold a portion of the said property in the year 2003 to one Sunanda for valid sale consideration; and the remaining portion was and is in his possession and enjoyment. A Solvency Certificate under exhibit P2 was issued with regard to the said property by the MRO, Musheerabad. Exhibit P4 is a document under which the plaintiff had sold 200 square yards of land out of the land purchased under the original of exhibit P1. Exhibit P5 is the Market Value Certificate. Exhibit P6 is the notice sent by the defendants under Section 7 of the A.P. Land Encroachment Act, 1905 seeking eviction of the plaintiff. The plaintiff had earlier applied for regularization to avoid any conflict and dispute with the Government and pursuant there to, a copy of exhibit R1 was issued.

In view of notice under exhibit P6, the plaintiff had got issued a statutory notice dated 26.07.2005 under Section 80 of the Code. The action for eviction was initiated by the defendants against the plaintiff knowing fully well that he is the absolute owner of the plaint schedule property for over four decades. Hence the plaintiff is constrained to file the suit and the application for temporary injunction."

7.3 On the other hand, the case of the defendants is this: "The material allegations in the affidavit filed in support of the petition and the plaint are false and the same are denied. The plaintiff is put to strict proof that he is the owner of 400 square yards of site covered by plot no.7 of Bakaram Village. The fact is that during the town survey of Bakaram and Gagan Mahal villages conducted in the year 1965 to 1971 and in the initial survey conducted in 1355 and 1357 Faslis, it was noticed that there was a gap between the two villages, which was left un-surveyed and the said gap area was admeasuring 145 square meters and was assigned T.S. No. 52/2, Block H in Ward - 72 of Bakaram Village and it is recorded as 'G', i.e., Government in Col.No.20 of TSLR. The plot no.

7, which the plaintiff is claiming, does not contain any survey number and the plaintiff, in fact, had purchased some land somewhere and is now claiming the suit land, which is a Government land. The construction of the house and the assessment of the same by the Municipal Corporation of Hyderabad over the land purchased by the plaintiff have no relevance to the suit land. The land in T.S.No.52/1, Block H, Ward-72 correlates to old survey no.

claiming falls under T.S.No.52/2 which is adjoining to T.S.No.52/1 and the plaintiff is claiming Government land covered under T.S.No.52/2 with a mala fide intention to grab the Government property. In fact, there is a building in T.S.No.52/1 constructed by the plaintiff and the plaintiff had obtained a Solvency Certificate from the office of the MRO under misrepresentation of fact; the same does not create any right or title over the Government land in T.S.No.52/2. The plaintiff having knowledge about the fact that the land covered under T.S.No.52/2 is a Government land had filed an application before the District Collector for regularization of the suit land under G.O.Ms.No.

515 which itself shows that the plaintiff is an encroacher upon the Government land; his application was rejected as the conditions laid down in the said GO were not fulfilled; and, subsequently the plaintiff was served with the notice under Section 7 of the A.P. Land Encroachment Act, 1905 to vacate the Government land grabbed by him and the further proceedings in that regard are pending before the MRO. The plaintiff, without exhausting the remedies available to him under law, had filed the present suit without following the due process of law; and the same is in violation of the mandatory provisions of law. Hence, the petition is liable to be dismissed."

7.4 The fact remains that the plaintiff had brought the suit for declaration of title and for perpetual injunction. The plaintiff claims to be in possession of the suit land since the year 1963 by virtue of the registered sale deed under exhibit P1. As rightly contended by the learned Government Pleader for Arbitration (TG) appearing for the defendants, the sale deed of the plaintiff does not show the survey number. Be that as it may. The plaintiff claims to be in possession of the suit land, having made some constructions including a compound wall. From the defence of the Government, ex facie it appears that there is a dispute about the identity of the property and a contention is also being sought to be advanced that there is no construction in the suit survey number and that the suit land is a vacant land.

However, under exhibit R1 order which was passed pursuant to the application for regularization submitted by the plaintiff to the Municipal Corporation of Hyderabad, the District Level Committee, while rejecting the application of the plaintiff in respect of the land for which regularization was sought for, had clearly stated in the said order that the suit land was a vacant land with a small tin roofed shed and a compound wall.

as contended by the plaintiff, but a tin shed with compound wall is in existence in the suit schedule land, cannot be disputed ex facie at this stage. Since the plaintiff claims to be in possession of the suit land since a long time and as the identity of the property is in dispute, the trial Court, having given credence to the fact that the plaintiff has applied for regularization and had thereby admitted the title of the Government, had refused to grant the temporary injunction, but had held that the plaintiff is entitled to maintain his possession until he is evicted under procedure established by law.

7.5 The learned counsel for the appellant/plaintiff would submit that only to avoid dispute with the Government an application for regularization was made by the plaintiff and that since the plaintiff is admittedly in possession of the property a notice under A.P.Land Encroachment Act, 1905 was given by the Government and that the plaintiff is entitled to continue in possession till the suit is finally disposed of on merits and subject to the result of the suit and that in cases of this nature, the Government is not entitled to initiate summary procedure and that the best course which would sub-serve the ends of justice is to stop the summary eviction proceedings and allow the parties to have the suit decided on merits as the suit is a comprehensive suit for declaration of title.

8. I have noted the submissions and I have given earnest consideration to the facts and the submissions. Having regard to the fact that the Government admits that there is a tin roofed shed and a compound wall in the plaint schedule property, ex facie this Court is of the well considered view that the proceedings for eviction of the plaintiff under the A.P.Land Encroachment Act, 1905 initiated by the defendants need not simultaneously be proceeded with against the plaintiff during the pendency of a comprehensive suit for declaration of title, as the matter is subjudice before a civil Court and the civil Court is having sesin over the matter.

9. Viewed thus, this Court finds that a temporary injunction can be granted as prayed for in favour the plaintiff, subject to the condition that the trial Court shall dispose of the suit as expeditiously as possible and preferably within a period of two (02)

months from the date of receipt of copy of this judgment and the further direction that the Government can continue to proceed with the eviction proceedings under the special enactment viz., the A.P. Land Encroachment Act, 1905, subject to the result of the suit. The disposal of this appeal as indicated above, in the well considered view of this Court, would sub-serve the ends of justice. The points are answered accordingly.

10. In the result, the Civil Miscellaneous Appeal is allowed without costs and the impugned order of the Court below is set aside. As a sequel, temporary injunction is granted in favour of the plaintiff as prayed for, however, subject to the condition that the trial Court shall dispose of the suit as expeditiously as possible and preferably within a period of two (02) months from the date of receipt of a copy of this judgment. It is needless to mention that the eviction proceedings initiated by the defendants under the A.P. Land Encroachment Act, 1905 shall remain dormant till the disposal of the suit by the Court below and shall be taken up in accordance with the procedure established by law, if necessary, and subject to the result of the suit. Miscellaneous petitions, if any, pending in this appeal, shall stand closed. ______________________ M.Seetharama Murti, J 28th September, 2015 Bvv