SATYANARAYANA S MELKOTA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The plaintiffs are the appellants. Dr. G. S. Melkote, a freedom fighter initially filed the suit being O. S. No. 603 of 1977 on the file of the Court of the III Additional Judge and later the same was transferred to the Court of the I Additional Chief Judge, City Civil Court, Secunderabad, as O. S. No. 49 of 1980. During the pendency of the suit, Dr. G. S. Melkote (GSM) died and his legal representatives - three sons and two daughters, plaintiffs 2 to 6 were brought on record. The suit was filed for declaration and consequential injunction in respect of the suit schedule property mainly on the ground of adverse possession. The land ad measuring 3250 Sq. yds. bearing Municipal No. 3-5-80/1 situated at Narayanaguda is the suit schedule property. The trial Court dismissed the suit on two grounds, namely, that the plaintiffs failed to prove possession over and above 30 years and that the provisions of Sec. 80 of the Code of Civil Procedure, 1908 (CPC) were not complied with before filing the suit. In this appeal also, these are the only two points that arise for consideration. Before proceeding any further, it is necessary to briefly refer to the case of the plaintiffs and defendants (the parties are called by that nomenclature).

(2.) The sum and substance of the case filed by GSM is as follows. GSM was friend and doctor of one Sir Nawab Nizamat Jung (SNJ). As a token of gratitude for doctor's as well as service, SNJ offered the suit schedule property to GSM as a gift. The latter declined to take the same and then SNJ offered to sell the land. There were negotiations. A price of Rs. 24,000.00 was settled. GSM issued a cheque for Rs. 10,000.00 on 21-5-1945 towards part sale consideration to SNJ, the original owner of the suit schedule property. GSM was put in possession of the same, who constructed a compound wall with permission from the Municipal Corporation of Hyderabad dated 13-12-1951. Whatever be the reason, SNJ later gifted the property to the defendants: Govt. of Andhra Prdesh, District Collector, Hyderabad and Tahsildar, Hyderabad Urban - for construction of a Government Unani Hospital. The Government could not do so. They addressed a letter to GSM on 10-9-1957 calling upon him to construct a clinic and offered the suit schedule land on long lease. It was not agreed to by GSM. He wanted the land as a freehold without any vesting of ownership in the Government. The defendants issued an order being G. O. Ms. No. 1057, Health Department, dated 5-5-1959, calling upon GSM to hand over possession of the land. He sent a reply on 9-6-1959 claiming absolute ownership by virtue of adverse possession. When the Government again issued a notice dated 22-2-1971 demanding the cost of the land and mesne profits which were denied by GSM by issuing reply notice on 4-8-1971. By issuing another registered notice, the Government demanded possession from GSM, which was replied to and ultimately GSM filed the suit for declaration of title and consequential injunction.

(3.) The defendants demurred the suit contending that there was no enforceable agreement, that GSM was not in possession since 1945, that the suit does not lie without complying with the provisions of Sec. 80 of CPC. It was further stated in the written statement as follows. The cheque under which GSM alleged to have paid part consideration was returned back by SNJ and that possession was not delivered to GSM in June 1945. The property was gifted by SNJ to the Government under registered gift deed dated 12-4-1947 and on 7-5-1951, SNJ wrote a letter to the Government stating that he was prepared to give the suit schedule land with ultimate ownership remaining with the Government for the purpose of construction of clinic and requested the Government to permit the plaintiff to construct compound wall to prevent trespass by others. In response thereto, the Government vide their letter dated 26-5-1951 addressed the Inspector General of Medical and Health Services informing that the Government is agreeable with the proposal and permitted the plaintiff to construct a compound wall. The Government also imposed a condition that if GSM failed to construct clinic, the Government, as owner, would utilise the suit schedule land for any other suitable purpose. Dr. GSM did not construct nursing home nor did he pay single instalment of the sale consideration of Rs. 24,000/ -. The possession of GSM was only permissive. The registered gift deed in favour of the Government became final and the Government was in possession of the property.