MUNICIPAL COUNCIL Vs. MOHD ABDUL RASHEED

JUDGEMENT

(1.) Aggrieved by the judgment and decree dated 03.5.2002 in O.S. No. 10 of 1997 on the file of the Senior Civil Judge at Nalgonda, the first defendant filed this appeal. The suit filed for declaration of title and for recovery of suit schedule property was decreed.

(2.) For the sake of convenience, the parties shall be referred to as they were arrayed in the suit.

(3.) The case of the plaintiff in brief is that one Gulam Musthafa was the owner and possessor of 36500 square yards of land in Nalgonda revenue village prior to Fasli 1320. Out of it, 29376 square yards forms part of old Survey No. 3 and new Survey Nos. 841 and 842 and the remaining 7120 square yards forms part of Ramagiri Ambari, adjacent to the old Survey No. 3 towards East. Gulam Musthafa constructed a house in a portion of land after obtaining necessary permission. After the death of Gulam Musthafa, his two sons, being legal heirs, sold the said house with the entire open land to one Shahabodddin vide registered sale deed bearing No. 32 of Fasli 1350. The vendors, attestors and vendee are no more. The original sale deed executed by the sons of Gulam Musthafa was with late Shahaboddin, who after purchase of the land along with the house, was in possession of the same till 1952. During the Fasli 1351, the lands in Survey Nos. 841 and 842 were excised from agricultural category and made Abadi site. Late Shahaboddin gifted the house along with open land to his elder brother's daughter Smt. Ameena Begum in the year 1952 orally and the same was mutated in her name in municipal records. Thereafter, Ameena Begum sold a portion of the house and some open land to different persons, retaining 4142 square yards. She made application to the first defendant to permit her to construct a compound wall around 3220 square yards out of 4142 square yards leaving private roads on the east and south of the compound wall and 100 square yards on the eastern side. The first defendant passed a resolution on 30.4.1986 granting permission to construct the compound wall. However, on 05.11.1986, the District Collector as Special Officer, cancelled the said resolution observing that the said land is to be kept as park area. It is the second defendant which had shown the said land as park while obtaining permission for layout of its land. The land shown in the layout as park was not part of the land purchased by the second defendant. It is a portion of Ameena Begum's land who has nothing to do with the layout plan submitted by the second defendant for approval. Against the cancellation of the resolution by the District Collector as Special Officer, Ameena Begum filed writ petition No. 14192 of 1986 and this Court disposed of the same on 23.02.1989, quashing the resolution with a direction to the first defendant to cause notice to Ameena Begum and pass appropriate orders after hearing. While the writ petition was pending, on 15.02.1988, Ameena Begum orally gifted the entire land of 4142 square yards to the plaintiff. Subsequently, when Ameena Begum denied the gift in favour of the plaintiff, the plaintiff filed O.S. No. 107 of 1989 for declaration of title and injunction. Ameena Begum filed a written statement therein admitting his case. On that, the said suit was decreed on 12.09.1989 for 4142 square yards. The plaintiff set apart 535 square yards for roads out of 4142 square yards, while retaining 3607 square yards. Since the first defendant did not take action as per the directions of this Court in the writ petition filed by Ameena Begum, the plaintiff applied with the first defendant on 15.09.1989 seeking permission to construct compound wall. However, the first defendant treating the said land to be a park land and demarcated it for that purpose. Mere conversion of land in Survey Nos. 841 and 842 from agricultural category to Goathem category in Fasli 1350 did not empower the Government to entitle to any portion of the said survey numbers and deprive the original owner and his successors-in-interest. In the year 1991, the first defendant while admitting the plaintiff's ownership over the land, gave him permission to construct a compound wall on condition of leaving 650 square yards out of 3607 square yards for park, besides leaving the land on the south and east for roads, but the plaintiff left an extent of 735 square yards which is excess to the land required by the first defendant. Then, the plaintiff started constructing compound wall on the northern and eastern sides of 2872 square yards retained by him after leaving 735 square yards. At that time, the second defendant filed a writ petition against the plaintiff, defendant No. 1 and the Government restraining them from making any construction in the land which was shown as park in the layout submitted by it. During the pendency of the writ petition, the plaintiff completed the construction of compound wall on northern and eastern sides. The writ petition filed by the second defendant was disposed of on 12.7.1994 holding that since there are rival claims with regard to title, they have to be adjudicated by a civil court and till then the land shall be maintained by the first defendant municipality. As against, the plaintiff filed writ appeal and the same was dismissed on 06.06.1996. On 16.08.1996, defendants 1 and 2 occupied the land of 2872 square yards with northern and eastern compound walls raised by the plaintiff with a board "site under municipality". Hence, the suit.