MUNICIPAL CORPORATION HYDERABAD Vs. DEVI SINGH

JUDGEMENT

(1.) This is an appeal by the Municipal Corporation of Hyderabad from the judgment and decree of the Second Additional Judge, City Civil Court, Hyderabad, whereby the suit brought by the respondent, Devi Singh, for a perpetual injunction in respect of the land known as "Jumerath Bazar" was decreed. The decree dated gth April, 1960, was in the following terms : "This suit coming on this day for final disposal in the presence of............ it is ordered and decreed that plaintiff's case decreed. Defendant should not interfere in the possession and enjoyment of the land known as Jumerath Bazar, which has been released in favour of the plaintiff by Sarf-e-Khas according to judgment dated 6th February, 1950, Exhibit P-4 and modified by a judgment dated 5th May, 1952, Exhibit P-13- Parties to bear their costs." Be it noted even at the outset that the decree which is challenged in this appeal is grounded on Exhibit P-4, an order passed by Sadarul Maham Sarf-e-Khas, directing that whatever land had been taken over by the Sarf-e-Khas in 1346 Fasli (1936) from the possession of the plaintiff, should be restored to him. The subsequent order Exhibit P-13 dated 5th May, 1952, merely clarified Exhibit P-4, by excluding some specified items from its operation.

(2.) The plaintiff's case as set out in the plaint was as follows : The land known as " Maidan Bazar Jumerath " situated at " Karvan Aspan " and bounded on the east by a ',' Nalla " and police station; on the West by " Bakar Mandi " and the shed belonging to the plaintiff; on the north by Cement Road, grave-yard and huts belonging to the plaintiff; and on the south by land, huts and grave-yards belonging to the plaintiff, is the ancestral property of the plaintiff, having been purchased by his ancestors for cash. In 1346 Fasli (1936) the Sarfi-e-Khas Mubarak Estate took possession of the above property of the plaintiff claiming it as belonging to them. Subsequently, however, on a representation made by the plaintiff to the Sarf-e-Khas authorities, the latter acknowledged the title of the plaintiff to the land which they had taken over and ordered the release of the property to the plaintiff. This was done first by an order passed by the Superintendent of the Bazaarath Sarf-e-khas on 21st Aban 1358, Fasli, which order was confirmed by the Sadarul Maham on 6th February, 1950. In pursuance of the said orders the suit land was restored to the plaintiff an 22nd May, 1950, and ever since then he has been in possession and enjoyment of the same. In October, 1950 the Municipal Corporation made attempts to take possession of the suit land claiming it to be the property of the Corporation, but the plaintiff resisted those attempts successfully. However, again in March, 1953 the Corporation once again took steps today a playground in the suit site. Besides, the Corporation Was trying to collect through one of its contractors the Zamindary right on the land which really belongs to the plaintiff. Hence the present suit was instituted on 27th April, 1953, for a permanent injunction, restraining the defendant-Corporation from obstructing the plaintiff's possession and enjoyment of the suit property, and further to restrain the defendant from collecting any amount except the pi-escribed Municipal taxes from the suit property. Thus, it will be observed that in the plaint the plaintiff traced his title to the suit land, which was described as "Jumerath Bazar " to a purchase by his ancestors. HIS further case was that the said land, which was his ancestral property, was unjustly taken over by the Sarf-e-Khas, but they subsequently restored it to the plaintiff in the year 1950 after making due enquiries and satisfying themselves that the land really belonged to the plaintiff; that ever since then he has been in possession and enjoyment of the same and that the Municipal Corporation unlawfully and Without any manner of right Was trying to interfere with his possession and enjoyment of the suit land.

(3.) The Municipal Corporation resisted the suit on three main grounds: (1) It denied that "Jumerath Bazar " is the ancestral property of the plaintiff and was owned and possessed by him. The sale deed upon Which the plaintiff based his title does not relate to the suit land. The officials of the Sarf-e-Khas had no power to pass orders handing over the suit property to the plaintiff, in view of the Firman dated 29th Safir 1358 Hijri (20th April, 1939) issued by H. E. H. the Nizam, directing the handing over of the prohibited area from Muslam Jung Bridge to the Old Bridge and situated on the bank of the Moosi river, to the Municipal Corporation to be utilised for parks and playgrounds. By an earlier Firman issued by H. E. H. the Nizam in 1323 Fasli (1913) it had been declared that the land situated on the bank of the river Moosi and extending from the Muslam Jung Bridge to the Old Bridge should not be used for residential purposes, but should be reserved for the benefit of the public for making provision for playgrounds, parks etc. Keeping the said purpose in view, the City Improvement Board had acquired from 1913 to 1916 the lands and houses situated in that area from the respective owners after paying them compensation. Even the father of the plaintiff (Dhan Singh) had claimed and received compensation for plot No. 201 belonging to him, which was of an extent of 1225 square yards situated in this area. (2) It was in compliance with the Firman issued by H.E.H. the Nizam that the land in question between Muslam Jung Bridge and Old Bridge Was handed over by the City Improvement Board to the Municipal Corporation on 6th Farwardi, 1350 Fasli (6th February, 1940), and the defendant has ever since been in possession of the suit land and has been auctioning and granting short leases of strips of "Jumerath Bazar" to various persons. (3) Inasmuch as the plaintiff had not issued a notice to the defendant as I enjoined by section 447 of the Hyderabad Municipal Corporation Act, 1950, the suit was not maintainable. On these pleadings the Court below framed a number of issues, of Which the crucial ones were the following: Is the plaintiff the owner and in possession of the suit land ? 2. has the Municipal Corporation been in possession of the suit land for over twelve years ?