SIVA NAGAYYA Vs. AHMED KHAN

JUDGEMENT

(1.) The Second Appeal S.A. No. 273/90 is preferred by defendants 3 to 9, 11 to 14, 16, and 18 to 22 and the Second Appeal No. 610/90 is preferred by defendants 1 and 2 in O S No. 25 of 1976 arise out of the judgment in AS No. 108/78. As parties are common and common question arises for consideration in both these second appeals and they are being disposed of together by a common judgment.

(2.) The first respondent in both the second appeals viz. Ahmed Khan is the plaintiff in O S No. 25/76 on the file of the District Munsif, Vikarabad The case of the plaintiff is that he is the absolute owner and pattedar and is in possession of the land bearing S No. 39 at Manneguda village. He and prior to him his father-in-law Jarawar Khan was in possession and enjoyment of the said land for more than 45 years. About 45 years back the plaintiff planted 200 mango trees, dug a well and constructed a house in the said land and subsequently raised two huts for his farm servants. While so on 12-4-76 the second defendant accompanied by the Revenue Inspector and two police constables came to the land and demolished one house belonging to the plaintiffs The writ appeal W A No. 126/76 preferred by the plaintiff against the dismissal order of W P No. 1336/76 was dismissed on 21-4-76 with a direction to the second defendant not to evict the plaintiff for a period of three months to enable the plaintiff to issue notice under Section 80 CPC for filing the suit. Pursuant to the aforesaid direction the plaintiff issued a notice to the Collector i.e. the first defendant and the Tahsildar the second defendant. The Tahsildar, sent a reply stating that it is a government land and that the suit land of 0.39 cts. is covered by Survey No. 51/2 and 51/3. According to the plaintiff that even assuming that the suit land belongs to the government the plaintiff has perfected his title by prescription as he was in actual, uninterrupted, open and adverse possession since last 45 years. The plaintiff, therefore, filed the above suit for declaration of title and posssssion, and also for perpetual injunction from merfering by the defendants Subsequent to the filing of the suit, as defendants 3 to 17 encroached on 600 Sq. Yards the plaint was amended claiming further relief of ejectment of defendants 3 to 17.

(3.) Defendants 1 and 2 filed one written statement and the defendants 3 to 16 filed separate written statement. Their case is that the plaintiff is the owner and pattedar of the land bearing S No. 39 of Manneguda village but its extent is only Ac, 9.22 guntas. The disputed 0 39 cts. constitute survey numbers 51/2 and 51/3 which is gairah land belonging to the government and that the plaintiff is not in possession and enjoyment of the said area of 0.39 cts. in question. It was further stated that when the shop owners of Manneguda village requested to provide government land for their shops the land bearing S. Nos 51/2 and 51/3 were selected for providing to the shop owners, the plaintiff filed a petition stating that the land which was proposed to be given to the shop owners is in his possession and enjoyment and requested to sanction patta in his favour. Inspite of notice in respect of his claim, he did not produce any documentary evidence. The defendants 3 to 16 stated that the land is government land and that they have denied the adverse possession of the plaintiff and that they have been permitted by the revenue authorities to construct the houses. They are in possession and cojoyment of about 20 guntas since more than 40 years as absolute owners.