SOGRA BEGUM Vs. STATE OF A P

JUDGEMENT

(1.) This is an appeal filed by the plaintiffs against the judgment and decree passed by the trial Court dismissing OS No.1506 of 1993 on 14-8-1997. The suit was filed for a declaration that the plaintiffs were absolute owners and possessors of the suit property measuring 2318 sq.yards, which is part and parcel of house bearing No.5-9-7/2, situated at Saifabad. They also sought perpetual injunction restraining the defendants 1 to 6 from interfering with their peaceful possession and enjoyment over the suit property.

(2.) The facts leading to filing of the suit were that the suit property originally known as 'Roshan Manzil' was owned by one Sir Afsar-U1-Mulk who sold it to Feroz Shah in 1908. The said Feroz Shah sold it to Nawab Mohd. Yer-Jung in September, 1913. Nawab Jung died in 1942 and the total property measuring 15,105 sq.yards devolved on his heirs. Some of his heirs migrated to Pakistan at the time of partition. The property was declared evacuee property and it vested with the Custodian of the evacuee property and was taken over by the Custodian. The Custodian divided the property into four parts and put it to auction. In the auction a portion of the property measuring 4165 sq.yards bearing Municipal No.5-9-7/2 was purchased by Mehabubimnisa Begum, an extent of 3958 sq.yards was purchased by Dr. Brij Raj, an extent of 682 sq.yards was purchased by Akbar Hussain Latif and the remaining portion of the property i.e., 6300 sq.yards was purchased by Smt. Sofia Begum. In the said auction necessary sale certificates were issued by the competent officer to the respective purchasers and the purchasers were put in possession. The plaintiffs purchased the land from Mehbubunnisa Begum who had purchased 4165 sq.yards in the auction. The said Mehbubunnisa Begum remained in possession of the property till it was sold by her to the plaintiffs through sale deed dated 19-11-1979. Before the sale deed was executed, permission under Section 27 of Urban Land Ceiling Act, 1979 and clearance certificate under Section 230(A) of the Income Tax Act were obtained. It is further stated in the plaint that the suit property was being managed and supervised by Mohammed Mohamood, the husband of the 1st plaintiff and GPA holder of both the plaintiffs. It is stated that the plaintiffs were enjoying the property. The plaintiffs' vendor had leased out the suit premises to B.S. Venkat Ram and K. Rami Reddy, partners of Gopi Hotel, for running a hotel. After purchase of the property, the plaintiffs' vendor filed eviction petition before the Principal Rent Controller being RC No.72 of 1980 against the tenant, as a result the tenant vacated the suit premises and handed over the vacant possession to the plaintiffs on 25-4-1988. They levelled and developed the rear side open land of the suit premises into two blocks by getting boulders cut into pieces and investing amounts. When the plaintiffs were levelling the second block on the eastern end, the defendants 3 and 6 started illegal interference and created hurdles in the development of the property. They contended that the property was the Government land. The plaintiffs issued notices dated 13-10-1989 to the defendants 1 to 5 not to interfere with their peaceful possession and enjoyment of the suit property. The plaintiffs also requested the defendants to allow them to carry out necessary corrections in revenue records for recording the total extent of town survey No.42, Ward No.52, Block 'D' as 3482 sq.metres as against wrong recording of 1544 sq.metres. Defendant No.5 sent a reply on 5-12-1989. The Government never claimed the suit property as its own at any time either at the time of vesting or auctioning. Since the defendants made an attempt to interfere with the peaceful possession of the plaintiffs over the suit property which was sought to be justified on the basis of a town survey record, the plaintiffs filed a writ being WP No. 1021 of 1990 in the High Court. The High Court granted interim stay of eviction on 31.1.1990 in WP MP No. 1291 of 1990. Defendant No.3, in the counter-affidavit filed in the writ petition, admitted the auction sales and possession of the plaintiffs over the suit property. The High Court however disposed of the writ petition on 1.10.1993 directing status quo for a period of three months and gave liberty to the plaintiffs to seek appropriate relief from a civil Court after giving notice under Section 80 CPC. The plaintiffs gave notice under Section 80 CPC on 20.10.1993 to the defendants 1 to 6 and after expiry of the period of notice, me suit was filed.

(3.) Defendants 1 to 6 filed written statement through defendant No. 6. He denied the assertions made in the plaint and admitted that the entire extent of the land having been declared evacuee property was sold in a public auction to Dr. Br'iz Raj under sale certificate dated 5.11.1995, Akbar Hussain Latif under sale certificate dated 3.11.1995, Mehabubunnisa Begum and Sofia Begum under sale certificate dated 9.11.1995. He further contended that according to the town survey records, the area covered by premises 5-9-7/2 relates to a portion of 'Roshan Manzil' belonging to Mehabubunnsia Begum and it was surveyed and the same falls in TS No. 42, Ward 52, Block 'D' of Nampally village to an extent of 1544 sq. meters, bounded by plot of Dr. Briz Raj on the North, house of Mohd.Ishaq on the South, main cement road on the West and hillock on the East. As per the sale certificate issued by the competent authority of evacuee property i.e., the custodian the area covered by the premises was recorded as 1544 sq. meters as against their possession of 4165 sq. yards. It was further contended that the plaintiffs had filed WP No.1021 of 1990 which was disposed of by the High Court with a direction to file a civil suit for declaration of title and possession. It was contended that as per the report of the Deputy Director of Survey and Land Records, the town survey of Hyderabad and Secunderabad was conducted under the provisions of Survey and Boundaries Act, 1923 after extension to Telangana Region vide Act 22 of 1958. The area covered by premises No. 5-9-7/2 relating to 'Roshan Manzil' was surveyed as T.S.No. 42, Ward 52, Block 'D' of Nampalli village for an extent of 1544sq. meters only. It was contended that the averment of the plaintiffs that their vendor purchased 4165 sq. yards in the public auction and sale certificate was issued to that effect is false.