Principal Secretary, Revenue Department, State of Telangana vs B. Rangaswamy (Died) By Lrs.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4669 OF 2022 (Arising out of SLP(Civil) No.6898/2021)

The Principal Secretary, Revenue Department, State of Telangana & Anr. .…Appellant(s)

Versus

B. Rangaswamy (Dead) By Lrs. & Ors. ….Respondent(s)

WITH

CIVIL APPEAL NO.4670 OF 2022 @ SLP(C) NO.7610/2021)

JUDGMENT

A.S. Bopanna,J.

Leave granted.

2. The Appellants-State of Telangana through its Principal

Secretary as appellant No.1 and District Collector as appellant

No.2 are before this Court in the Appeal bearing No.4669/2022

Signature Not Verified (arising out of SLP 6898/2021), assailing the judgment dated Digitally signed by Sanjay Kumar Date: 2022.07.11

01.04.2021 passed by High Court for the State of Telangana at 15:51:17 IST Reason:

Hyderabad in CCCA No.22/1999. The appellant in Appeal No. Page 1 of 44 4670/2022 (arising out of SLP No.7610/2021), is also assailing

the same judgment insofar as cancellation of a portion (298

sq.yards) of the suit subject land allotted in his favour. The

consequence of the result of the main appeal will befall on the

appellant in the said appeal, due to which there is no need to

consider the same in detail.

3. Through the judgment dated 01.04.2021 the High Court

has allowed the appeal and set aside the judgment and decree

dated 10.11.1998 passed by the V Senior Civil Judge, City Civil

Court, Hyderabad in O.S. No.609/1981. Consequently, the suit

has been decreed declaring the respondents in the main appeal

as owners and restraining the appellants herein from interfering

with their possession. The appellant in the connected appeal has

been directed to restore possession to the extent of 298 Sq. yards,

i.e., a portion of the suit schedule property which has been

allotted to him during the pendency of the lis.

4. The case has a chequered history. The suit filed in 1981

was at the first instance dismissed on 24.09.1982 after detailed

consideration. The respondents herein filed an appeal before the

High Court. The High Court, after consideration, through its

judgment dated 26.06.1995 set aside the judgment passed by

Page 2 of 44 the Trial Court and remanded the matter to the Trial Court for

fresh determination. It is after such determination the suit was

once again dismissed by the Trial Court on 10.11.1998, which

was carried in appeal and resulted in the impugned judgment,

which is presently assailed herein. The appellants herein were

defendants No.1 and 2 in the suit. The respondents No.1 to 12

herein are the legal representatives of plaintiff No.2 who had

instituted the suit and respondent No.13 was the plaintiff No.1

in the suit. The parties would be referred to as per their rank in

the suit before the Trial Court for the ease of reference,

convenience and clarity.

5. The brief facts leading to the present case are; the plaintiffs

No.1 and 2 along with one Smt. B. Saroja Devi are partners in

the business carried on in the name and style ‘Bhagyanagar

Studio’ which has its office at Road No.14, Banjara Hills,

Hyderabad. The second plaintiff claims to have purchased the

property measuring 2 acres 10 guntas under a registered sale

deed dated 03.09.1964. The property is claimed to be a part of

Survey No.129/56 Banjara Hills, Hyderabad. Smt. B. Saroja

Devi, one of the partners, in the plaintiff No.1 studio claims to

have purchased the property bearing Survey No.129/73 situated

Page 3 of 44 in Banjara Hills, Hyderabad admeasuring 5 acres 38 guntas,

under a sale deed dated 03.09.1964. The plaintiffs contend that

the said extent of the property situated in Survey No.129/56 and

Survey No.129/73 are adjacent to each other. Being a contiguous

block of land, the plaintiffs undertook the construction of the

studio over the said lands. It is the pleaded case of the plaintiffs

that in such circumstance the plaintiff No.1 is in possession of 7

acres and the plaintiff No.2 is in possession of about 3000 sq.

yards which he retained for himself. The plaintiff asserts that the

said 3000 sq. yards is not government land. It is further averred

in the plaint that the plaintiffs are in continuous possession and

enjoyment beyond the statutory period adverse to the interest

and to the knowledge of one and all. It is therefore alternatively

contended that they have become absolute owners in respect of

the suit land by adverse possession and by virtue of title.

6. It is averred in the plaint that the defendant/Government

at that stage was trying to interfere with the possession of the

plaintiff over the suit land, contending that the land belonging to

the government was being enclosed with a compound wall and

structures were being raised by the plaintiff. The plaintiff

contended that the land in question is private land and made a

Page 4 of 44 grievance that the government claiming that the suit land

bearing Survey No.403 Shaikpet Village is situate between the

plaintiffs’ land is not allowing the plaintiff to carry on the

construction. The plaintiffs further reiterating that the suit

schedule land belongs to the plaintiffs have filed the suit seeking

that the plaintiffs be declared as the absolute owners and

possessors of the suit land admeasuring about 2 acres 10

guntas, forming part of Survey No.129 as detailed in the schedule

and plan annexed to the plaint. It was further prayed that the

defendant/Government be prohibited from interfering or causing

obstruction in the construction work, enjoyment and possession

of the suit land.

7. The defendants filed their written statement disputing the

claim of the plaintiffs. Apart from contending that the suit was

bad for non-joinder of proper and necessary party the defendants

also contended that the suit is not maintainable. Insofar as the

averments in the plaint relating to the ownership of the property

bearing Survey No.129/56 and Survey No.129/73, reference was

made to the total extent which was owned by the vendor of the

plaintiff and also the property being sold in portions. In that

regard it was contended that the land situate on the western side

Page 5 of 44 to the portion purchased by Smt. B. Saroja Devi, there is

government poramboke land bearing Survey No.403.

Considering the total extent and the portions sold, it was

contended that the extent to which the claim is being made is

not situate in Survey No.129/56 but is actually the government

land owned and possessed by the government which bears

Survey No.403 situate between Survey No.129/56 and 129/73.

It is contended that the plaintiffs themselves in the year 1976

and 1978 admitted that the piece of land admeasuring 2 acres is

lying in between Survey No.129/56 and Survey No.129/73,

which belongs to the government and the plaintiffs applied and

requested the government for allotment of the said land for

extension of their studio. In fact, they sought allotment at the

market rate. The defendants denied that the suit schedule

property is a part of land bearing Survey No.129/56. With

reference to the various measurements stated in the plaint

wherein it is contended that 7 acres is with plaintiff No.1 and

plaintiff No.2 is in possession of 3,000 square yards, it is pointed

out by the defendant, which if added, would be 7 acres 16 guntas

and 64 square yards, though the purchase of 5.38 acres in

Survey No.129/73 and 2 acres 10 guntas in Survey No.129/56

Page 6 of 44 as claimed would actually add up to 8 acres 18 guntas. That by

itself would indicate that the plaintiffs are not clear about the

measurement and the identification of the property.

8. In that light it was further contended in the written

statement that the plaintiffs with an intention to grab a portion

of the valuable government land bearing Survey No.403 which is

situate between the Patta land of Survey No.129/56 and Survey

No.129/73 have made an attempt in that regard but were

prevented from doing so. It is also contended that the civil court

had no jurisdiction under Section 14 of the A.P. Land

Encroachment Act 1905. With all the above noted contentions

the defendants sought dismissal of the suit.

9. Based on the rival pleadings, the trial court framed six

issues for its consideration. Though at the first instance the suit

was considered based on such issues, the judgment passed by

the trial court was set aside by the High Court and the matter

was remitted to the trial court for fresh consideration. At that

point, the issues were recast, which read as hereunder:-

“1. Whether the plaintiffs proved the identity of the suit schedule property and also correctness of the plaint schedule?

2. Whether the plaintiffs proved their title to the suit schedule property?

Page 7 of 44 3. Whether the plaintiffs proved their possession to the suit schedule property on the date of suit?

4. Whether the suit is bad for misjoinder or non-

joinder of parties?

5. Whether the suit is not maintainable in law?

6. To what relief?”

10. A perusal of the issues framed would indicate that the

burden had been cast on the plaintiffs to prove not just the title

to the suit schedule property but also the identity of the property

and the correctness of the plaint schedule. The plaintiffs

examined PW-1 to PW-5 as their witness and got marked the

documents at Exhibits A-1 to A-19. The defendants on their

behalf examined DW-1 and DW-2 and got marked the documents

at Exhibits B-1 to B-7. The trial court on analysing the evidence

has arrived at its conclusion that insofar as the identity and

ownership which was required to be proved under issues 1 and

2, the plaintiffs failed to prove that the suit schedule property

admeasuring 2 acres 10 guntas is part and parcel of Survey

No.129/56. In that view, since the identity and correctness of the

suit schedule property was not proved, the said issues were held

against the plaintiffs in addition to the other findings and the

Page 8 of 44 suit was dismissed. The High Court while considering the appeal,

though had reappreciated the evidence, has essentially found

fault with the defendants in not producing the original of the

documents which were produced and marked. In that light,

drawing an adverse inference against the defendants, arrived at

a conclusion that the Trial Court had wrongly held that there was

land belonging to the government wedged between the property

bearing Survey No.129/73 and Survey No.129/56. The High

Court set aside the judgment of the trial court and decreed the

suit. It is in that view, the defendants claiming to be aggrieved

are before this Court in this appeal.

11. We have heard Mr. C.S. Vaidyanathan and Mr. K.

Radhakrishnan, learned senior counsel on behalf of the

appellants No.1 and 2 (defendants) respectively and Mr. V. Giri,

learned senior counsel on behalf of the respondents (plaintiffs)

and perused the appeals papers.

12. The learned senior counsel for the defendants, for the

first time, in this appeal, sought to contend that the suit is

barred by time as it was filed beyond the period of limitation

provided in law. To support his contention that the issue of

limitation can be raised even at this stage, the learned senior

Page 9 of 44 counsel has relied on Management of the State Bank of

Hyderabad vs. Vasudev Anant Bhide AIR 1970 SC 196 and

Town Municipal Council, Athani vs. Presiding Officer,

Labour Court, Hubli AIR 1969 SC 1335. Alternatively, the

case in Banarasi Das vs. K. Kanshi Ram AIR 1963 SC 1165

is relied to contend that even if limitation is not a pure

question of law but was a mixed question of fact and law, it is

open for the appellate court to frame an issue and remit it to

the Trial Court to render a finding on the same. Having noted

the decisions rendered in the background of the facts arising

therein, though there can be no cavil regarding the proposition

of law enunciated therein, the said decisions cannot be

considered in the abstract without reference to the facts

arising herein.

13. In the instant case, though the issues relating to survey

and re-survey of the land had arisen keeping in view the

identity of the property being the question, the fact remains

that the suit is not predicated on that basis to qualify to be a

suit under Section 14 of the Andhra Pradesh and Boundaries

Act, 1923 to invoke the limitation period of two years provided

therein. On the other hand, the suit is one for declaration of

Page 10 of 44 title and identity of the property, claiming it to be located

within the boundaries of a particular survey number. In that

view, as rightly contended by the learned senior counsel for

the plaintiffs, the period of limitation as provided in Article 58

of the Limitation Act, 1963, which provides the period of three

years from the date when the right to sue first accrues to

obtain declaration is applicable. On this aspect, the learned

senior counsel for the plaintiffs has also relied on Daya Singh

& Anr. vs. Gurdev Singh (dead) by Lrs. & Ors. (2010) 2

SCC 194 and MST Rukhmabai vs. Lala Laxminarayan &

Ors. AIR 1960 SC 335 to fortify his contention that the period

of limitation in the instant case is to be computed from the

date when the cause of action arose. The learned senior

counsel for the defendant contends, even if that be the

position, the letter dated 23.05.1976 was written by Sri. B.

Ramaswamy when he was aware of the claim of the defendant

in respect of the suit schedule property, which therefore ought

to be reckoned as the cause of action. Further, the notification

dated 29.07.1977 was published on 06.08.1977 when again

the cause of action occurred, but the suit was filed only on

22.06.1981 beyond the period of three years and is therefore

Page 11 of 44 beyond limitation. However, a perusal of the plaint averments

would disclose that the letter and notification referred above is

not the be-all and end-all. There was subsequent

correspondence in 1978 and 1979, more particularly when

notices dated 06.05.1979 and 10.08.1979, were issued. The

plaintiffs thereafter issued the notice dated 30.04.1980 under

Section 80 of the Civil Procedure Code. Since according to the

plaintiff, the defendants continued to obstruct the peaceful

possession of the property, suit was filed on 22.06.1081. The

sequence would show that the cause of action has continued

after it had first arisen and the suit was filed within the period

of limitation provided for in law. We are therefore unable to

accede to the contention of the learned senior counsel for the

defendants.

14. The learned senior counsel further urged the contention of

the suit being not maintainable for not filing the suit on behalf

of the partnership firm. The contention is not necessary to be

adverted in detail since the same was considered by the Trial

Court while answering Issue No.4 and the said finding has not

been disturbed by the High Court. In the instant case the

question essentially is with regard to the title and identity of the

Page 12 of 44 property bearing Survey No.129/56. The plaintiff No.2 having

purchased the same had filed the suit. Though certain averments

were made with regard the property being used for the

construction of Studio, being contiguous property, there is no

concrete material on record to indicate the nature and

constitution of the firm and the details of the firm’s property. In

any event, the concurrent conclusion on that issue does not call

for interference.

15. The learned senior counsel representing the defendants

while adverting to the merits sought to refer to the documents

filed along with I.A. No.137529 of 2021 to buttress their case

further, in addition to the documents produced and marked

before the trial court. The learned senior counsel for the plaintiffs

objected to the documents produced for the first time before this

Court along with the said application. It is his contention that

the rigor of the provision contained in Order 41 Rule 27 C.P.C.

would apply though the said provision has not been invoked in

the application.

16. In that light, it would be appropriate for us to take note of

the said application and at the outset consider as to whether the

said documents are to be taken on record. Only in the

Page 13 of 44 circumstance of the documents being taken on record, the said

documents can be referred to, for further consideration in

accordance with law. In that view, a perusal of the application

would indicate that the only reason assigned by the defendant is

that the documents have been discovered recently from amongst

the heap of records lying with the department. The learned senior

counsel for the defendant relied on the decision in Ramanbhai

Ashabhai Patel vs. Dabhi Ajithkumar Fulsinji AIR 1965 SC

669 and in Jamshed Hormusji Wadia vs. Port of Mumbai 2004

(3) SCC 214 to contend that this court in exercise of its own

jurisdiction could permit to even make good the deficiency by

exercising the power under Article 142 of the Constitution.

Though on the proposition of law there can be no quarrel that in

appropriate cases this court can exercise its power under Article

142 of the Constitution in order to serve the ends of justice, in

our opinion, the circumstance in which the defendants are

seeking to produce the documents in the instant case, in the

manner as has been sought at present, such exercise of

discretion is not justified.

17. On the other hand, as rightly pointed out by the learned

senior counsel appearing for the plaintiffs, the suit was instituted

Page 14 of 44 as far back in the year 1981 and the suit for the first time was

disposed of on 24.09.1982. The appeal was thereafter pending

before the High Court till 26.06.1995, when the appeal was

allowed and the matter was remanded to the Trial Court for fresh

disposal. Thereafter the suit was disposed of on 10.11.1998. The

matter was once again pending before the High Court upto

01.04.2021 until the appeal was disposed of. Despite such long

pendency of the matter and also there being an opportunity of

filing the documents when the matter had been remanded to the

Trial Court, no diligence was shown. In such circumstance the

attempt made at this belated stage to bring on record additional

documents would not be justified. Hence, it cannot be permitted

by exercising the plenary power of this court in a matter where

the right of the parties relating to immovable property is to be

determined and when there was ample opportunity earlier.

Further, in a proceeding relating to the civil suit, mere

production and the documents being taken on record would not

suffice since the documents are to be proved by exhibiting it in

accordance with law, which exercise cannot be resorted to at this

juncture. In that view, we see no reason to permit the production

Page 15 of 44 of the documents at this stage. Accordingly, I.A. No.137529 of

2021 is rejected.

18. Having concluded so, the rival contentions of the parties

are necessary to be adverted based on the evidence that was

available before the Trial Court which has been referred to by the

Trial Court and reappreciated by the High Court to arrive at their

respective conclusion. As noted, the prayer made in the plaint is

to the effect that the plaintiffs be declared to be the absolute

owners and possessors of the suit schedule property

admeasuring about 2 acres 10 guntas forming part of the Survey

No.129 as detailed in the schedule and the plan annexed. In the

schedule to the suit, the property is described as the land

admeasuring 2 acres 10 guntas bearing Survey No.129/56

known as Thathi Khana, Shaikpet Village, Road No.14, Banjara

Hills, Hyderabad, A.P. The boundaries shown are the Land and

Bungalow of Begum Mehdi Yar Jung on the North, Road No.14

on the South, part of Survey No.129/56 on the East and part of

Survey No.129/73 on the West. To seek such relief, the case put

forth by the plaintiff is that plaintiff No.2 purchased the property

from Raja Dharam Karan under a sale deed dated 03.09.1964.

The suit schedule property is a portion of the property which had

Page 16 of 44 been purchased by Raja Dharam Karan from Syed Riaz Ahmed

Sahabpattedar in the year 1946. It is the further case of the

plaintiff that on the western side of the suit schedule property,

the property bearing Survey No.129/73 which was purchased by

Smt. B. Saroja Devi, one of the partners of plaintiff No.1 is

situated. Therefore, the case of the plaintiff, in effect, is that the

suit schedule property No.129/56 purchased by the plaintiff

No.2 is immediately next to the property bearing Survey

No.129/73 on its eastern side and they are contiguous lands.

The need for seeking declaration arose since the defendants had

raised an objection to the plaintiff putting up a compound wall

enclosing the properties bearing Survey No.129/73 and property

bearing Survey No.129/56 which the plaintiff claim to be

contiguous. But according to the defendants there exists the

government land bearing Survey No.403 wedged between Survey

No.129/73 and Survey No.129/56 and such land measured an

extent of over 2 acres. The objection is to enclosing the land

belonging to the government also while constructing the

compound wall.

19. The plaintiff No.2 examined himself as PW-1 and got

marked the document at Exhibit A-2 whereunder Shri Syed Riaz

Page 17 of 44 Ahmed, who originally owned the property bearing Survey

No.129/56 sold an extent of 8 acres 12 guntas in favour of Shri

Raja Dharam Karan Bahadur. The sale deed dated 03.09.1964

under which the plaintiff purchased the property from the legal

heirs of Raja Dharam Karan is marked as Exhibit A-3. In the said

document the boundary as depicted in the schedule indicates,

on the east, vendors land agreed to be sold to B. Balaiah and the

western boundary indicated is the land of the vendor No.6,

bearing Survey No.129/73 agreed to be sold to B. Saroja Devi.

Therefore, that land is the one sold by Rani Jayanthi Devi to Smt.

B. Saroja Devi. As far as that aspect there is no serious dispute.

However, the boundary shown towards the east as the vendors’

land agreed to be sold to Shri B. Balaiah is in fact, another extent

of land situated in the very same land bearing Survey No.129/56

which is purported to have been sold under Exhibit A-3 to

plaintiff No.2. A sketch attached to the said sale deed is marked

as Exhibit A-4.

20. One Shri Krishnaiah son of Balaiah was examined as PW-

2, to state with regard to the location of the land since it is stated

that the adjoining property was purchased by his father. One

Shri D. Venkat Reddy is examined as PW-3 to state with regard

Page 18 of 44 to his knowledge about the location of the property as he has

worked as the watchman of the suit property from the year 1950

onwards. Shri M. Krishna Murthy is examined as PW-4 to state

about his knowledge regarding the plaintiff No.2 having

purchased the property bearing Survey No.129/56 under a sale

deed dated 03.09.1964 and to state that the said land is in the

possession of the plaintiff No.2. Shri Tej Karan son of Raja

Dharam Karan, the vendor of plaintiff No.2 is examined as PW-

5. The said witness has stated about his family owning the land

measuring 2 acres 10 guntas in Survey No.129/56 of Shaikpet

and the said land being sold under the document at Exhibit A-3.

21. Having noted the oral evidence tendered by the said

witnesses, it is evident that keeping in view the nature of the

controversy, the oral evidence would not be sufficient to resolve

the controversy relating to the identity of the property. Insofar

as the plaintiff No.2 having entered into a sale transaction and

having purchased an extent of 2 acres 10 guntas in Survey

No.129/56, the same cannot be in dispute since the same is

under a registered document but the issue is; which was the

property that was actually conveyed. Though for convenience a

sketch was attached to the sale deed and it is marked as Exhibit

Page 19 of 44 A-4, in view of the dispute raised by the defendants that there is

a plot of government land to the east of Survey No.129/73 being

the west of Survey No.129/56, this aspect of the matter requires

consideration since the question essentially is as to whether the

identity of the land is established by the plaintiff with reference

to the land which is purportedly purchased as land located in

Survey No.129/73 under another sale deed at Exhibit A-5. The

sketch along with all the sale deeds are not an authenticated

record but is prepared for the convenience inter se between the

parties to the sale deed and does not bind anyone else.

22. Notwithstanding the fact that we have rejected the

application seeking production of the additional documents

which included certified copies of various sale deeds under which

the family of Raja Dharam Karan had sold different extents of

land to different purchasers, the sale transactions being under

registered documents is in the public domain and the ‘chart of

flow of title’ referred to by learned senior counsel for the plaintiffs

and the consideration by High Court has indicated the different

sale deeds starting from the transaction under which Syed Riaz

Ahmed sold the total extent of 8 acres 12 guntas to Raja Dharam

Karan under the document dated 27.03.1945. Though the extent

Page 20 of 44 of 2 acres 10 guntas was sold to the plaintiff No.2 from out of the

said extent of 8 acres 12 guntas under document dated

03.09.1964, it is also indicated that from the property bearing

Survey No.129/56 an extent of 2 acres 20 guntas was sold to

Moulvi Syed Taqui Bilgrami. Another extent of 2 acres 16 guntas

was sold to Natwara Nanda. Further, an extent of 2 acres 16

guntas was sold to Merry Nandi. That apart, an extent of 2 acres

20 guntas was sold to B. Balaiah. In addition to the said

transactions, the sale deed in favour of the plaintiff No.2 was to

the extent of 2 acres 10 guntas.

23. Apart from the fact that various extents in Survey

No.129/56 were sold to different persons, the document at

Exhibit A-1 whereunder Syed Riaz Ahmed sold 8 acres 12 guntas

in Survey No.129/56 to Raja Dharam Karan Bahadur indicated

the western boundary as ‘nala’ which is claimed by the

defendants as the government nala. The learned senior counsel

for the plaintiffs no doubt contended that the mere mentioning

of ‘nala’ can only mean that it is a drain and it cannot be a

reference to government property being situated on the western

side. Even if the said contention is taken note of, in the nature

of the evidence presently available on record and in the

Page 21 of 44 circumstance where the plaintiff had sought for a declaration to

the effect that the property measuring 2 acres 10 guntas forms a

part of Survey No.129, rather than to rely on the weakness of the

evidence tendered by the defendant it was for the plaintiff to

prove their case. From the document at Exhibit A-5, which is the

sale deed dated 03.09.1964 whereunder Smt. Saroja Devi has

purchased 5 acres 38 guntas in Survey No.129/73 from R.

Jayanthi Devi, it is seen that it is also a portion of the total extent

of land in the said Survey No. 129/73, which consisted of 11

acres 10 guntas. The boundary shown to the said document also

does not conclusively prove the case of the plaintiff. On the other

hand, when it is the case of the plaintiffs that Smt. B. Saroja

Devi, a partner in the plaintiff No.1 establishment had purchased

a portion of the property bearing Survey No.129/73 and that the

plaintiff No.2 had purchased a portion of the property in Survey

No.129/56, more particularly in the circumstance when the

property bearing Survey No.129/56 was sold in different bits to

various purchasers, if the plaintiff was to seek the relief as

prayed in the present suit, it was necessary for the plaintiff to

bring on record the various sale deeds for the different extents of

the land in Survey No.129/56 and Survey No.129/73 so as to

Page 22 of 44 indicate the extent and the boundaries under each of the sale

deeds from the eastern most point of Survey No.129/56 so as to

progress towards the western boundary and establish that the

last extent of property purchased by the plaintiff No.2 was within

the total extent contained in Survey No.129/56 and that the

portion so purchased is not physically located in the land

belonging to the government and no extent of land belonging to

the government has been included in the sale deed by purporting

it to be the sale of private land bearing Survey No.129/56. The

plaintiff having failed to produce the said documents has not

proved their case to enable the trial court to come to a conclusion

that the property which the plaintiffs are claiming is factually a

part of Survey No.129. Instead, when the defendants attempted

to produce the same before the High Court in order to place the

matter in its perspective, the High Court rebuked the defendants

for not producing the same earlier and drew adverse

presumption.

24. Further, though the plaintiff No.2 has got the sale deed in

his favour as far back in the year 1964, the documents to

indicate the mutation proceedings and the revenue documents

being mutated in favour of the plaintiff has not been produced.

Page 23 of 44 The document at Exhibit A-10 and A-11 with regard to the

notification relating to construction of Bhagyanagar Studios

indicating the schedule and the plan for construction of the

studio cannot advance the case of the plaintiff insofar as

determining the real issue in the suit. The said notification

indicates with regard to the construction in Survey No.129/73 to

the extent of 5 acres and the layout of the construction is shown

only in Survey No.129/73, over which the defendants have no

dispute whatsoever relating to that property, that too, when

construction was well within the extent of 5 acres 38 guntas. The

name of B. Rangaswamy (plaintiff No.2) indicated as neighbour’s

land to the said plan would not mean that the case of the plaintiff

had been accepted by the defendants to be contiguous lands. All

that was necessary at that stage for the relevant competent

authority was to take note of the permission sought for

construction and grant approval to that extent. The dispute arose

only when the compound wall beyond that extent was attempted

to put up.

25. As against the evidence tendered by the plaintiff, the

defendant through DW-1 has stated with regard to the manner

in which the approval for construction was granted and in the

Page 24 of 44 said process the revenue authorities were not being involved. The

letters dated 15.06.1978 and 23.05.1976 are marked as Exhibits

B-1 and B-3 respectively on behalf of the defendants to contend

that the plaintiffs being aware of the existence of government

land had addressed letters to the Collector, Hyderabad District

referring to the piece of land lying in between Survey No.129/56

and 129/73 of Shaikpet Village. The plaintiffs sought allotment

of the same to the first plaintiff for extension of the studio

activities. In Exhibit B-3, the details are more forthcoming

wherein reference is made to the extent of land wherein

construction is sought to be put up and also indicating that they

have learnt that there is a piece of land in between the land

purchased by them and therefore they were requesting for

allotment of the same. On the said documents at Exhibits B-1

and B-3 the learned senior counsel for the plaintiffs contended

that the plaintiff No.2 who is the owner of the land bearing

Survey No.129/56 has not addressed the said letter.

26. The learned senior counsel appearing for plaintiffs

contended that the said letters do not amount to admission that

there is Government land. He relied on the decisions in Chikkam

Koreswara Rao vs. Chikkam Subba Rao (1970) 1 SCC 558;

Page 25 of 44 Nagubai Ammal vs. B. Shama Rao AIR 1956 SC 593 and Sita

Ram Bhau Patil vs. Ramachandra Nagu Patil (1977) 2 SCC

49 to the effect that admission has to be unequivocal, which is

not so in the instant case. On that aspect, though the letter has

not conceded in unequivocal terms, it has referred to the claim

made by the revenue authorities and the request has been made

instead of asserting their right as has been done later by filing

the suit. In any event, the said letters lend perspective to the

issue when considered along with the other evidence. Even if

contents of the letters are not admission, the letters remain to be

a piece of evidence to indicate that the request made for allotment

of the same land is indisputable. It is also contended by the

learned senior counsel that in the cross-examination of PW-1, he

has indicated that the letter has not been written by him. In that

regard, a perusal of the cross-examination indicates that the

letters dated 15.06.1978 and 23.05.1976 were confronted to PW-

1. Though PW-1 denied that he had given such letter to the

government and claimed that there was no government land

between the two Sy. Nos. and further though he denies the

suggestion that his brother applied to the government, he has

thereafter added, since his brother is not the owner, he cannot

Page 26 of 44 make such request. Though such a statement is made, what

cannot be lost sight of, is that the document is on behalf of the

plaintiffs more particularly the plaintiff No.1 i.e. Bhagyanagar

Studio. The letters are on its letter head and the signatory Sri B.

Ramaswamy was not only the brother of plaintiff No.2 but also a

partner along with plaintiff No.2 and Smt. B. Saroja Devi and the

reference with regard to the construction to be made as a

composite unit is stated with reference to Survey Nos.129/73

and 129/56 for plaintiff No.1 Studio. Further, the said letters are

produced by the defendants from their records and the letter has

been addressed by the plaintiff within a short duration from the

period the sale deed dated 03.09.1964 has come into existence.

The fact that the letter is dated 23.05.1976 and G.O. of Municipal

Administration approving construction is dated 29.03.1976

cannot be a mere coincidence. This would indicate that from the

beginning after approval was given and construction commenced

the plaintiff was aware that there was a claim by the government

to an extent of property which is located between the two extents

in Survey No.129/73 and 129/56 when objection was taken

relating to extended construction. In that circumstance when the

suit is ultimately filed indicating the cause of action as the

Page 27 of 44 obstruction caused by the defendants and the defendants not

heeding to the notice dated 30.04.1980 issued under Section 80

of the Civil Procedure Code, the plaintiff was required to produce

the necessary document as already indicated, to establish that

out of the total extent of land in Survey No.129/56, even after

the sale of the different extents by the family of Raja Dharam

Karan the extent as sold to the plaintiff No.2 was still available

in Survey No.129/56 and therefore they are entitled to a

declaration that the land purchased by them was a part of Survey

No.129. Though the plan at Exhibit A-19 relating to the survey

plot of Survey No.129/73 dated 10.07.1942 is produced, from

the location of the property indicated it does not conclusively

show the eastern boundary as claimed by the plaintiffs. In that

light, a perusal of the judgment passed by the trial court

indicates that the trial court has taken into consideration the

evidence available on record and has analysed the same in its

correct perspective.

27. In that background, a perusal of the judgment passed by

the High Court would indicate that it has proceeded as if the

burden which had been cast on the defendant has not been

discharged though the issues framed had cast the burden on the

Page 28 of 44 plaintiff not only with regard to the title but also identity of the

suit schedule property and also correctness of the plaint

schedule property. It is noted that the High Court in fact has

relied more on the oral evidence of the plaintiff and has

commented that the trial court has wrongly relied on the

document at Exhibit B-1. The nature of the documents indicated

above and the manner in which the plaintiff was required to

establish its case in a circumstance where it was claiming that

the properties are contiguous was in the circumstance that there

was a challenge raised by the defendants to the identity and

description of boundaries rather than title. It is in that context

Exhibit B-3 that was addressed earlier in point of time and B-1

subsequently becomes relevant. As noted, the said documents

were produced from the records of the defendant and mere denial

at this point of time more particularly when the dispute between

the parties has continued ever since the plaintiff purchased the

property and sought to establish their right over the same.

However, the High Court in para 96 to 98 has placed it out of

context as if the Trial Court has proceeded only by treating the

letters as admission. What is necessary to be taken note is that,

excluding the property bearing Survey No.403 with its old No. as

Page 29 of 44 151/1 if the plaintiff has purchased any other extent in Survey

No.129/56 the defendants have no claim over the same. It is in

that light, the High Court was required to examine the matter

since what is to be established by the plaintiff was the

identification and correctness of the exact location of the land.

28. It is no doubt seen that the High Court in para 23 to 29 of

the judgment has adverted to take note of the documents

produced by the plaintiff at Exhibits A-1 to A-11 and A-19, more

particularly Exhibit A-3. Further, the evidence tendered by PW-

1, PW-4 and PW-5 was also taken note of. From the analysis

thereto the emphasis is on document at Exhibit A-3, whereunder

the plaintiff purchased the extent of 2 acres 10 guntas in Survey

No.129/56 from the heirs of Raja Dharam Karan. The evidence

of PW-4 was relied upon to take note that he had attested the

sale deed at Exhibit A-3. The evidence of PW-5 i.e., the vendor

No.5 in the said document was relied upon. Based on the said

evidence, the High Court noted the purchase of the property

made by the plaintiff No.2 and the schedule indicated to the said

document. The title of the plaintiff’s vendor to a larger extent of

the property than what was sold to the plaintiff No.2 was taken

note by referring to Exhibit A-1. On that aspect of the matter,

Page 30 of 44 though such consideration has been made by the High Court,

the fact that the plaintiff No.2 had intended to purchase an

extent of 2 acres 10 guntas in Survey No.129/56, in any event,

was not in dispute and the Trial Court has also accepted the said

position as rightly noted by the High Court. However, the dispute

arose since the question which required consideration was as to

whether the purported sale of Survey no.129/56 to an extent of

2 acres 10 guntas under the said sale deed is in fact a portion of

the property which was really located in Survey No.129/56 or as

to whether the vendors having sold different extent from the

larger extent of property to the various other purchasers, were

left with an extent of land measuring 2 acres 10 guntas to be sold

to the plaintiff No.2. In that light, the issue that would arise is

whether by such purported sale which was intended at selling a

portion of the property in Survey No.129/56, it had resulted in

physically conveying a portion, or an entire extent of the

government land which is claimed by the defendants to have

existed in between the lands bearing Survey No.129/56 and

Survey No.129/73 due to which the sale deed has also indicated

the Survey No.129/73 as the western boundary.

Page 31 of 44

29. That aspect of the matter assumes relevance in the context

of the documents that were sought to be produced by the

defendants who were the respondents before the High Court by

filing I.A. No.2 of 2021 under Order 41 Rule 27 of C.P.C. The

High Court having taken note of the decision in the case of Adil

Jamshed Frenchman (Dead) by Lrs Vs. Sardar Dastur

Schools Trust & Others (2005) 2 SCC 476, in Wadi Vs. Amilal

& Others (2015) 1 SCC 677, MIS. NETWORX INC. Vs. K.R.

MOHAN REDDY (2006) SCC Online AP 812, Shivajirao

Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 221

and in H.S. Goutham. Vs. Rama Murthy Anr. Etc. 2021 SCC

Online SC 87 and keeping in view the parameters laid down in

considering an application under Order 41 Rule 27 of C.P.C has

found it appropriate to reject the application.

30. Having rejected the said application, the High Court has

thereafter proceeded to take note of the documents to draw an

adverse inference against the defendants. While doing so the

High Court in para 38 has extracted a portion of the averments

in the written statement to note that the defendants did not

dispute regarding the registered sale in favour of plaintiff No.2

nor contended that the sale deed was fraudulent. The stand of

Page 32 of 44 the defendants in the written statement in its entirety would

indicate the case as put forth was with regard to the identity of

the property which really was the issue. The question was, as to

whether a mere indication of the schedule to the sale deed would

entitle the plaintiff for a declaration relating to the property even

if it was not actually lying within such schedule shown in the

document. In fact, the further consideration made by the High

Court from para 41 onwards while referring to the additional

documents would indicate that it is made in the nature as if the

defendants were before the court seeking for a declaration and in

support of which the documents were sought to be produced.

The certified copies of the registered sale deeds were filed to

indicate the total extent of the land in Survey No.129/56 which

was available with the vendor of the plaintiff and the portions

that had been sold. In fact, during the course of the judgment at

an earlier point, we have referred to this aspect of the matter to

indicate that in the context of the challenge being raised to there

being government land next to Survey no.129/56 and in that

circumstance when the plaintiff claimed that the purchase of the

land was actually in Survey No.129/56 and was contiguous with

Survey No.129/73 on its western side, the plaintiff was required

Page 33 of 44 to show that from the easternmost point of Survey No.129/56

which was available with the vendor of the plaintiff, the

sequential sale made to the other purchasers and despite such

sale he would have been left with the extent of the property which

was sold to the plaintiff No.2 in Survey No.129/56 itself.

Therefore, in fact, the said sale deeds not being produced by the

plaintiffs would run adverse to their case rather than holding it

against the defendants in not producing the same despite the

defendants being the State Government under whose custody the

registered documents remain as observed by the High Court. In

fact, it was an attempt by the defendants to disapprove an aspect

which in fact had not been proved by the plaintiffs by producing

such documents.

31. Further the regularisation applications dated 29.08.2008

which were sought to be produced were filed by the legal heirs of

the original plaintiff No.2, which was much after the suit had

been disposed of by the Trial Court on 10.11.1988 and was filed

during the pendency of the appeal before the High Court. The

High Court in any event has taken note of the said application in

the context as to whether the said application should be

considered as an admission by the plaintiffs to the title of the

Page 34 of 44 government and in that regard had disagreed with the learned

Advocate General who had put forth such contention. Insofar as

the existence of such applications, it is not seriously in dispute

in as much as the same had also resulted in proceedings before

the High Court in W.P.No.18460 of 2010 which was disposed by

a detailed order dated 15.04.2011. The learned senior counsel

for the plaintiffs while referring to the said applications brought

to our notice column No.4(d) to indicate that the nature of

occupation stated therein is “in pursuance of registered sale deed

1640/1964 dt. 03.09.1964, in favour of my father B.

Rangaswamy” and column 5(a) has also referred to the sale deed

and memorandum of family settlement. The learned senior

counsel has also cited a decision of the Division Bench of the

High Court for the State of Telangana at Hyderabad in

W.P.No.46114 of 2018 dated 23.04.2019 wherein a similar

situation was in issue and it is held as hereunder:-

“44. Therefore, it is clear that the applications for regularization filed by the petitioner, were not dealt with properly. Though, the petitioner has claimed title to the property on the basis of the registered sale deeds, the petitioner had, in all fairness, also applied for regularization. This does not tantamount to approbating and reprobating. If, with a view to purchase peace, a person, who claims title to a property, chooses to apply for regularization and conveyance, the same can, at the most, tantamount to giving up their title, subject however to the grant of regularisation. If regularisation is rejected, it may

Page 35 of 44 be open to such persons to pursue their remedies before the normal civil court to establish title. In fact, the Government Orders stipulate the payment of market value of the land as per the Basic Value Register maintained in the Office of the Sub- Registrar.”

32. It is no doubt true that the said applications in the year

2008 were made without prejudice to their right, since their

appeal was still pending. Further even though as held by the

High Court it cannot be construed as an admission, one cannot

lose sight of the fact that in the nature of the entire controversy

the said applications become relevant. Firstly, what is to be kept

in perspective is also the fact that even before the suit was filed,

the documents at Exhibits B-1 and B-3 had come into existence

whereunder a request was made to allot the said lands. As

already noted though an attempt was made to contend that the

plaintiff No.2 who was examined as PW-1, in his cross-

examination stated that the said letter was not submitted by him

and his brother was not authorised, what cannot be lost sight of

is that the plaintiff No.1 is the Bhagyanagar Studio and the

plaintiff in their averments to the plaint have indicated that the

property purchased in Survey No.129/73 and 129/56 were

pooled into the activities of the studios. As noted earlier, the

communication is addressed on behalf of the Studio by the

Page 36 of 44 brother of plaintiff No.2 who was also a partner and the letter

dated 23.05.1976 refers to the fact of the property having been

purchased by the partners of the Studio. In the said letter even

though there is no categorical admission, the fact remains that

at that stage itself they have taken note of the fact that a claim

was made by the Patwari of Shaikpet Village and by the Revenue

Inspector that there is a piece of land of 2 acres in between their

lands and had mooted the proposal for allotment. It is in that

background we have observed hereinabove that the defendants

had raised the challenge to the claim of the plaintiff to the land

which is immediately adjacent to Survey No.129/73 and in that

circumstance instead of asserting their title at that stage they

had resorted to seek allotment. It is in that circumstance the

burden was heavier on the plaintiff when the suit was instituted

subsequently and in that context, we had indicated that the proof

of the entire extent was necessary to be shown to prove the

identity of the property which was purchased by the plaintiff No.2

and thus to establish the same not to be the property belonging

to the government.

33. The High Court thereafter in paragraphs 47 to 55 has

proceeded to observe with regard to the pleading in the written

Page 37 of 44 statement and in that regard, has commented that the evidence

sought to be produced by the defendants is not supported by the

pleadings. In that regard, certain decisions of this court have

been extracted and noted with emphasis and a conclusion has

been reached in para 56 to indicate that the said documents

sought to be relied on by the defendants have no relevance to

support the case set up by the defendants. As repeatedly

indicated by us, the plaintiffs having sought for declaration were

to prove the case. To the extent, the defendant had contended

with regard to the government property, in support of the

pleading in the written statement the defendant had relied on the

documents at Exhibits B-2, B-4 and B-5 to indicate that there

was an extent of property other than the property bearing Survey

No.129/56 which was wedged between Survey No.129/56 and

Survey No.129/73. Though much was made about the resurvey

not being notified, that would become relevant insofar as the

indication of the property as Survey No.403 but that cannot

negate the fact that the property existed there and the number

assigned was a different one. To that extent the Trial Court had

in fact taken note of the Survey No.151/1. In fact, the High Court

having extracted the deposition of the PW-1 has sought to give

Page 38 of 44 much credence to the same with regard to the Town Survey

records being wrongly prepared behind the back of PW-1 and the

Survey No.403 being carved out. Such challenge had not been

laid by the plaintiff in the forum provided, but merely have stated

so in the evidence which could not have weighed with the High

Court, when the larger issue based on substantive evidence

relating to the identity of the property was to be taken note. The

High Court though has taken note of the evidence of DW-1 and

DW-2 to find fault with the documents at Exhibits B-2, B-4 and

B-5 relied on by the defendants, what cannot be lost sight of is

that from the evidence of the said witnesses what flows is that

the initial survey was conducted in the year 1916 and the

revision survey was conducted in the year 1942. The town survey

was conducted and completed between 1965-1970. The survey

and the resurvey were much prior to the purchase of the property

by plaintiff No.2 in the year 1964. The survey No. which is shown

as 403 in the revision even if it is taken note that as put in the

comparative statement by the High Court it is 151/1 in Exhibit

B-2 and 151/1, 129/108 in Exhibit B-4 and B-5 and is alleged

that it is tampered as 403/108 in Exhibit B-4, as already

indicated above, the fact remains that there was an extent of the

Page 39 of 44 property situate between Survey No.129/73 and 129/56. The

order dated 04.08.1998 in CRP No.2781/1998 relied upon

though allowed the application seeking for original of initial

survey map has declined prayer for production of initial survey

map and revised survey records. The evaluation of the said

evidence is essentially in the context of the plaintiffs seeking a

declaration that the property purchased by them under the sale

deed dated 03.09.1964 is a part of Survey No.129 which aspect

can only be considered in the context of the vendor having

purchased the property which is possessed and owned by the

vendor and is conveyed without including any other property. To

that extent, from the evidence produced by the plaintiff, the proof

was insufficient and therefore in that context, the Trial Court had

dismissed the suit. The High Court in fact though has rendered

an elaborate judgment has proceeded at a tangent.

34. Insofar as the aspect relating to possession, the High

Court has adverted to this aspect of the matter in para 106

onwards and has found fault with the Trial Court that despite

there being abundant documentary evidence the Trial Court has

wrongly dealt with the issue of adverse possession. In fact, the

high court has failed to understand the context in which the

Page 40 of 44 consideration with regard to possession had arisen. As noted, if

the title to the property along with its identity had been

established, the possession would automatically follow from the

date of purchase on 03.09.1964. However, in the instant case

though the execution of a sale deed purportedly conveying an

extent in Survey No.129/56 was proved, the fact as to whether

the extent as indicated in the sale deed was actually located in

the Survey No.129/56 was not established by the plaintiffs from

the discussion made by the Trial Court as well as indicated by

us above. If that be the position, even if, the plaintiffs had

actually come in physical possession of the extent of property

which is not actually situate in Survey No.129/56 and is the

property which is claimed as the government property, the

possession to be declared to have been perfected by adverse

possession will have to pass the test to claim such right. It is in

that context it was alternatively contended that the plaintiffs had

also stated that they have perfected their title by adverse

possession. It is in that context that the Trial Court firstly having

noted that there are no documents to indicate possession has

also taken note that the purchase being in the year 1964 and the

suit being filed in the year 1981 the statutory period of 30 years

Page 41 of 44 to acquire right by way of adverse possession also does not arise.

The High Court no doubt has taken into account the evidence of

PW-1 who has stated that he has been in possession from the

date of purchase. The fact also remains that subsequently when

the compound wall was constructed it was demolished and it is

the very case of the plaintiffs that since there was interference

the suit was filed. Therefore, even if possession was taken by the

plaintiff, in the context of claiming title, there is no other

material. As already taken note by us, pursuant to the purchase,

the mutation proceedings and the assessment for tax if any made

has also not been brought on record by way of evidence.

Therefore, in the context of the possession sought to be protected

based on title, when the identity of the property is not established

despite purchase claimed under the registered sale deed the

relief as prayed for would not be available and therefore the Trial

Court was justified in that regard.

35. On the issue relating to an extent of 298 Sq. yards forming

part of the disputed property which is allotted in favour of the

appellant in Appeal bearing No.4670/2022 (arising out of SLP

No.7610/2021), in view of our conclusion that the judgment of

the High Court on the main aspect cannot be sustained and the

Page 42 of 44 judgment of the Trial Court is to be restored, the observations

relating to the allottee having no right and the mesne profits

being payable is not sustainable and is set aside accordingly.

However, we make it clear that we have not expressed any

opinion with regard to the correctness of the allotment to the

extent of 298 sq. yards or with regard to the manner in which the

application for regularisation made by the legal heirs of the

original plaintiff No.2 is to be considered. Those aspects of the

matter are left open to be considered in accordance with law by

the competent authorities/courts relating to the same and all

contentions in that regard are left open. The consideration herein

is limited to the nature of the relief sought in the suit and the

right as claimed by the plaintiffs not being established in

accordance with the law.

36. For all the aforestated reasons, the judgment dated

01.04.2021 passed by the High Court for Telangana at

Hyderabad in CCCA No.22 of 1999 is set aside. The judgment

dated 10.11.1998 passed by the V Senior Civil Judge, City Civil

Court, Hyderabad in O.S. No.609 of 1981 is restored.

37. The appeals are allowed. The parties shall bear their own

costs.

Page 43 of 44

38. Pending application, if any, shall stand disposed of.

……………………….J. (INDIRA BANERJEE)

……………………….J. (A.S. BOPANNA)

New Delhi, July 11, 2022

Page 44 of 44