Telangana High Court
Ahmed Nizamuddin vs Mohd Ghaziuddin Hassan on 13 June, 2025
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CCCA.No.227 of 2010
JUDGMENT:
(per Hon’ble Sri Justice Laxmi Narayana Alishetty)
The present appeal is filed aggrieved by the judgment and
decree dated 30.08.2010 passed in O.S.No.347 of 2004 on the file of
the IX Additional Chief Judge (FTC), City Civil Court,
Hyderabad.
2. Heard Sri. M.V.Suresh Kumar, learned senior counsel
appearing for Sri A.Srinivasa Rao, learned counsel on record for
the Appellant, Sri M.R.Harsha, learned counsel appearing for
Respondent Nos.1 to 5 and learned Government Pleader for
Assignment appearing for respondent Nos.6 to 8.
3. Appellant is Defendant No.1, Respondent Nos.1 to 5 are
Plaintiffs and Respondent Nos.6 to 8 are Defendant Nos.2 to 4 in
the suit before the Trial Court. For convenience, the parties are
hereinafter referred to as they are arrayed in the suit.
4. The brief facts of the case as narrated in the plaint are that
the father of the Plaintiffs’ one Nazir Yar Jung was granted a
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patta for land admeasuring Acs.8-32 gts. in Sy.No.129/70 situated
between Road Nos.1 & 11, Banjara Hills, Hyderabad, vide patta
document dated 5th Meher 1330 Fasli corresponding to 1920; that
the said Nazir Yar Jung expired on 06.07.1966 leaving behind the
Plaintiffs as his legal heirs and successors-in-interest to all the
properties left by him.
4.1. The patta land was allotted TS.Nos.1, 2 and 3 in Block R,
Ward No.11; TS.Nos.26, 34 to 42 in Block P, Ward No.11; that the
Plaintiffs have got a layout sanctioned from Municipal
Corporation of Hyderabad (MCH) on 30.12.1964; that in Plot No.1
i.e., TS.No.1, no construction could be made since the land is
situated in low lying and water stagnant area and the same was
shown as water body in the sanctioned plan; that while that being
so, the MCH issued notice dated 29.12.1964 under Section 293 of
the Hyderabad Municipal Corporation Act stating that work of
underground drainage line is taken up through the land of the
Plaintiffs and that compensation would be paid as per the Rules.
The MCH issued another letter dated 07.05.1965 informing that
rough stones excavated during the course of excavation will be
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handed over to father of the Plaintiffs and compensation would
also be paid.
4.2. It was further averred that the Plaintiffs sold an extent of
1350 Sq.Yds. in Plot No.2 in TS.No.2 in Sy.No.129/70 to one Ilyas
Ahmed Menai, vide sale deed bearing document No.38/1970
dated 06.01.1970, retaining an extent of 816 square meters in
TS.No.1 in Sy.No.129/70.
4.3. It was further averred that Defendant No.1 approached the
Plaintiffs for using the dried private nala land for the purpose of
vehicle parking. Accordingly, a letter of confirmation-cum-
consent dated 12.02.2000 was executed in favour of Defendant
No.1. However, Defendant No.1, in collusion with Defendant
Nos.2 to 4, tried to encroach upon the Plaintiffs’ land to an extent
of 816 Sq.Mtrs. in the eastern part of TS.No.1 in Sy.No.129/70 and
managed to obtain municipal number from MCH authorities
bearing municipal No.8-2-618/20/C on western side to Plot No.2,
TS.No.2 and trying to raise structures therein illegally.
4.4. It was further averred that when the Plaintiffs applied for
TSLR extract with sketch plan for TS.Nos.1 and 2 in
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Sy.No.129/70, Shaikpet Village, it was revealed for the first time
that Defendant No.1 is trying to encroach and raise structures;
that the TSLR extract which was obtained on 27.08.2004 shows
the name of Nawab Nazir Yar Jung in Column-10 (Pattedar
column), G Kalva in Column-20 and underground drainage in
Column 23 in respect of Plot No.1 in TS.No.1, Sy.No.129/70
admeasuring 816 square meters and further, TS.No.2
admeasuring 1120 square meters shows the name of Nawab
Nazir Yar Jung in column 10 (pattedar column) and also in
column 20 (possessor column); and that kalva or nala shown in
column 20 of TS.No.1 is only a private canal of five feet width
flowing across TS.No.1, but it does not admeasure 816 square
meters; that the entry in the TSLR as G kalva for the entire
TS.No.1 is a misnomer and a mistake and the same was shown
without notice to the Plaintiffs; that five feet width private nala
was flowing across TS.No.1 underground and hence, the same
needs to be corrected; and therefore, the plaintiffs filed the suit
for the following reliefs:-
(a) To declare the plaintiffs as the owners of TS.No.1 admeasuring
816 square meters in Sy.No.129/70, Shaikpet Village and
Mandal, Banjara Hills, Hyderabad;
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(b) To direct defendant No.1 to deliver vacant possession of the suit
schedule property failing which the Court may deliver vacant
possession through Court bailiff;
(c) To direct defendant No.4 to correct the entries in TSLR; and
(d) To grant mandatory injunction directing defendant No.1 to
remove the unauthorized illegal structures in TS.No.1 in
Sy.No.129/70 admeasuring 816 square meters, Shaikpet Village
and Mandal, Hyderabad.
5. Defendant No.1 filed written statement denying the
averments made in the plaint and averred that he has no personal
knowledge about the grant of patta in favour of father of the
Plaintiffs to an extent of Acs.8-30 gts. in Sy.No.129/70, however
he is aware of the fact that the Plaintiffs held some land and out
of the said land, they sold an extent of 1350 Sq.Yds. in favour of
Ilyas Ahmed Menai through a registered sale deed bearing
document No.38/1970, dated 06.01.1970; and that Defendant
No.1 purchased an extent of 195 Sq.Yds. each, totaling 390
Sq.Yds., from the Ilyas Ahmed Menai under two registered sale
deeds vide documents bearing Nos.1946/1994 and 1952/1994.
5.1. It was further averred that Defendant No.1 is not aware of
allotment of town survey numbers of the suit schedule property
and sanction of layout dated 30.12.1964; that no cause of action
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had arisen for filing the present suit and TSLRs are not authentic,
as in innumerable number of cases, TSLRs are found to be
incorrect.
5.2. It was further averred that Defendant No.1 purchased an
extent of 475 Sq.Yds. bearing Municipal No.8-2-618/20/C from
one Mohd Rafeeq through registered sale deed vide Doc.
No.5226/1993; that an extent of 390 Sq.Yds. forms part of land
sold by Plaintiffs in favour of Ilyas Ahmed Menai and an extent
of 475 Sq.Yds. purchased from Rafeeq is a different and distinct
property. It was further averred that Defendant No.1 approached
the plaintiffs for the purpose of using the area over the private
nala for vehicle parking and letter of confirmation-cum-consent
dated 12.02.2000 was given, however it is denied that he is
illegally raising unauthorized structures and is trying to
regularize the said structures in collusion with the other
defendants; and further averred that he is acting in accordance
with the letter of consent dated 12.02.2000 without violating the
terms thereof.
5.3. It was further averred that Defendant No.1 has obtained
sanctioned plan from MCH for construction of building in the
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area covered by sale deeds vide Doc Nos.1946/1994 and
1952/1994 and constructed building in accordance with the
sanctioned plan dated 27.03.2004 and completed construction. It
was further averred that the suit schedule property does not form
part of the property purchased by Defendant No.1 and in any
case, the Plaintiffs are not entitled to question the rights or title of
Defendant No.1 over the said property.
5.4. It was further averred that Mohd. Rafeeq from whom
Defendant No.1 purchased land under sale deed vide Doc.
No.5226/1993, was in peaceful possession of the said property for
more than 25 years and in view of long-standing possession of
property, he perfected his title even by adverse possession to the
knowledge of the Plaintiffs and that the possession was open. It
was further averred that MCH filed a suit in OS.No.2453 of 1991
against the vendor of Defendant No.1 i.e., Rafeeq for
unauthorized construction in an extent of 475 Sq.Yds. and thus,
the vendor of Defendant No.1 was in possession of the said extent
even as on 1991, which is much prior to sale of property in his
favour in the year 1993. Defendant No.1 finally contended that
when he is not changing the nature of suit land beyond the scope
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of confirmation-cum-consent letter dated 12.02.2000 and the
construction is not done over the suit land, the suit is false and
baseless and thus, prayed to dismiss the suit.
5.5. Defendant No.3 filed written statement and averred that
the suit filed by the Plaintiffs is not maintainable since notice
under Section 80 CPC was not issued and the application filed to
dispense with notice under Section 80(2) CPC is devoid of any
merit. It was further averred that the Plaintiffs have no right to
claim the land in TS.No.1 Block R, Ward No.11, Shaikpet Village
as the same is classified as ‘nala government land’; that the
plaintiffs are tracing title over TS.No.1, Block K, Ward No.11 of
Shaikpet Village which was a ‘nala’ falling through the land and
such nalas are treated as ‘government lands’ during town survey
operation.
5.6. It was further averred that town survey of Shaikpet Village
was done in the year 1965-70 under the provisions of AP Survey
and Boundaries Act, 1923, which was extended to Telangana area
with effect from 01.08.1959; that notification under Section 13 of
the said Act was published in Gazette No.13 dated 28.02.1977 and
as per the survey, old Sy.No.129/70 was correlated to various
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town survey numbers and the relevant TS number for schedule
property is TS.No.1 Block R, Ward No.11 of Shaikpet Village and
is classified as nala i.e., Government land, which is correlated to
Sy.No.129/70 by virtue of a patta dated 05th Meher 1330 Fasli
and that the Plaintiffs are put to strict proof of their ownership
over the said property; that in column 10 (pattedar column) of
TSLR, it was recorded as Nazir Yar Jung and column 20 (Name of
present enjoyer), the name of ‘G (Government) underground
drainage’ was recorded; that any person aggrieved by the entries
in TSLRs can file a civil suit within a period of three years from
the date of gazette publication, however, in the present case, no
suit has been filed within the stipulated time, therefore, the
entries made in the TSLR have become final and binding on the
parties and as such, the suit is barred by limitation and is liable to
be dismissed.
5.7. It was further averred that the allegations that Defendant
No.1 in collusion with Defendant Nos.2 to 4, had attempted to
grab the land of the Plaintiffs and is attempting to regularize the
illegal construction are false and baseless and finally, prayed to
dismiss the suit.
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6. The Plaintiffs filed rejoinder to the written statement filed
by the Defendants and averred that the allegation of Defendant
No.1 that he has no personal knowledge about the grant of patta
in favour of father of Plaintiffs is false since in a suit filed by
Defendant No.1 against MRO and MCH vide O.S.No.1639 of 2001
on the file of IV Junior Civil Judge, seeking grant of injunction not
to interfere with the suit schedule property therein i.e., House
bearing Municipal Nos.8-2-618/20/C, 8-2-618/8 part and
8-2-618/9 part admeasuring 475 Sq.Yds. and 195 Sq.Yds.
respectively situated at Road No.11, to which one of the
boundaries on the west is shown as Plot No.1 (TS.No.1), in para 3
thereof, it was clearly admitted that land admeasuring Ac. 8-30
gts. in Sy.No.129/70 was allotted to father of the Plaintiffs.
6.1. It was further averred that the Plaintiffs have sold an extent
of 1350 Sq.Yds. to Ilyas Ahmed Menai under registered sale deed
dated 06.01.1970. The said Ilyas Ahmed Menai sold an extent of
959 Sq.Yds. vide two separate sale deeds to Basheer Khan and his
wife-Aiasha Sultana, vide sale deeds dated 11.06.1992 and
15.06.1992 bearing Doc. Nos.3685/92 and 3616/92 respectively in
respect of Municipal Nos.8-2-261/9 and 8-2-216/8; that the said
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Basheer Khan and Aiasha Sultana have obtained permission from
MCH vide sanctioned plan dated 26.09.2003 and have raised a
complex comprising of stilt + five floors and the same falls in
TS.No.2 and that he has surrendered an extent of 400 square
yards in road widening and therefore, there is no open land
available for sale after 1992 and thus, the contention of Defendant
No.1 that he purchased an extent of 195 Sq.Yds. each under two
registered sale deeds is misconceived and incorrect.
6.2. It was further averred that the vendor of Defendant No.1
i.e., Ilyas Ahmed Menai has attempted to grab the suit schedule
property of the Plaintiffs in TS.No.1 i.e., the suit schedule
property by fictitious sale deeds and fictitious municipal numbers
and that Roopchand Pardesi is a black listed person having
absconded from India after collecting more than 200 crores and is
wanted by Police; and that Defendant No.1 obtained bogus
Municipal Nos.8-2-618/20/C & 8-2-618/8, covered by 816
Sq.Mtrs. on western side of Plot No.2 (TS.No.2) of suit land.
6.3. It was further averred that the allegation that defendant
No.1 purchased an extent of 475 square yards from Mohd. Rafeeq
under registered sale deed bearing Doc. No.5226 is also false. The
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said documents are fabricated and created by the GPA holder
Roopchand Pardesi of Ilyas Ahmed Menai, though the latter had
no land available with him to alienate; that Defendant No.1
played fraud in collusion with Ilyas Ahmed Menai in obtaining
two GPAs in respect of Municipal No.8-2-618/20/C, Road No.11,
when the property of Ilyas Ahmed Menai property bears
Municipal Nos.8-2-618/8 & 9. It is unexplained as to how Ilyas
Ahmed Menai could give GPA to Rafeeq for non-existing
Municipal No.8-2-618/20/C.
6.4. It was further averred that the consent letter dated
12.02.2000 stood automatically revoked and cancelled as soon as
Defendant No.1 started encroaching on the Plaintiffs’ property
and despite the objection and also injunction order granted by the
Court dated 30.09.2004, Defendant No.1 went ahead his illegal
activities and completed structures and therefore, Defendant
No.1 is liable to pay a sum of Rs.50,000/- as mesne profits. It was
further averred that the allegation that Mohd. Rafeeq had been in
peaceful possession for 25 years before execution of sale deed in
favour of Defendant No.1 is fictitious and concocted and thus,
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there is no question of perfection of title of the said Mohd. Rafeeq
by adverse possession.
6.5. It was further averred that the said Roopchand Pardesi
who is GPA holder of Ilyas Ahmed Menai executed two sale
deeds; that in the sale deed executed in favour of Defendant No.1
only Municipal No.8-2-618/8 (part) was shown, however, in the
sanctioned plan of defendant No.1, the Municipal number is
mentioned as 8-2-618/8 & 9 Road No.11, which is without any
basis; that there is no correlation between sale deeds executed by
GPA holder and actual property on site; that Defendant No.1
with an ill-motive had obtained the consent letter dated
12.02.2000 to cover up the latest illegal encroachments and also to
camouflage his encroachment in TS.No.1 and to get bogus
permission from the MCH.
6.6. It was further averred that the Plaintiffs have filed a sub-
division map submitted by Defendant No.1 in a different case,
wherein the plan shows an existing building in municipal Nos.
8-2-618/8 & 9 and the encroached land belonging to the Plaintiffs
is shown abutting. Thus, there is clear encroachment in TS.No.1
as evident from the photographs; that there is no correlation
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between the GPAs, sale deeds and the actual property on site;
that Basheer Khan and his wife have constructed cellar + 5 floors
in his entire property and there is nothing available for sale to
Defendant No.1. Thus, knowingly fully well that there is no
property available with Ilyas Ahmed Menai, Defendant No.1
created and concocted three registered sale deeds in collusion
with the GPA Holder and played fraud.
6.7. It was further averred that the MCH issued a letter
informing that two rooms constructed in House No.8-2-618/8 are
getting effected in road widening of Road No.11 and called upon
to remove the said rooms within three days. In reply to the said
letter, Ilyas Ahmed Menai had stated no objection for acquiring
his land for road widening and asked for compensation and build
the compound wall as in the case of others.
6.8. It was further averred that the sanctioned plan purported
to be obtained by Defendant No.1 for construction of building
shows M.Nos. 8-2-618/8 & 9, but these municipal numbers
belong to Ilyas Ahmed Menai who has raised comprehensive
structure. The Defendant No.1 contended that he has purchased
M.No. 8-2-618/20/C which is not shown in the plan.
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6.9. It was further averred that Defendant No.3 admitted that
the old Sy.No. 129/70 is correlated to TS.No.1, Block R, Ward 11
of Shaikpet Village and the name of Nazir Yar Jung is shown and
hence, these Plaintiffs have absolute right and title. Defendant
No.3 has not disputed the sale in favour of llyas Ahmed in
TS.No.2. Moreover Defendant No.3 did not dispute the fact that
both Basheer Khan and Aisha Sultana, on one hand and
Defendant No.1, on the other hand, have obtained different
sanctioned plans for the same property; that the question of filing
a civil suit within three years does not arise since Plaintiffs’ rights
have been established and recognized from the date of Patta till
the date of encroachment by Defendant No.1; that even the TSLR
given by the government shows the name of the Plaintiffs’
ancestor as Pattedar and that, till today the Survey Department
has not issued any notice to the Plaintiffs for any survey
conducted by the Government; and that with regard to issuance
of Section 80 CPC notice, Plaintiffs have filed application under
Section 80 (2) CPC.
6.10. It was further averred that the allegation that MCH filed a
suit in OS.No.2453 of 1991 against Rafeeq is incorrect and in fact,
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the suit was filed by Rafeeq against MCH, and the said suit was
dismissed for default on 21.12.1991 and thus, prayed to decree the
suit.
7. Based on the above pleadings of both the parties, the Trial
Court framed the following issues:
a. Whether the plaintiffs are legal heirs of late Justice Nawab
Nazir Yar Jung and are the owners of Sy No.129/70, Shaikpet
Village, admeasuring Acs.8-32 guntas under the patta granted
by Nizam and whether T.S.No.1 suit schedule extent 816 sq.
mts. forms part of patta land as TSLR?
b. Whether defendant No 1 is aware about grant of patta of
Acs.8-32gts in Sy.No.129/70 to Nazir Yar Jung?
c. Whether Ilyas Ahmed Menai sold the entire property to
Bhasheer Khan and his wife in 1992 under two sale deeds
bearing H.No.8-2-618/8 & 9?
d. Whether defendant No.1 utilized letter of confirmation-cum-
consent letter dated 07.02.2000 and constructed 6 floors
complex in suit land?
e. Whether plaintiffs are entitled for mesne profits @ Rs.50,000/-
per month from date of rejoinder?
f. Whether the plaintiffs are entitled for mandatory injunction as
prayed for?
g. Whether Ilyas Ahmed Menai shown H.No.8-2-618/8 (part) in
sale deed to Aiasha Sultana under document No.3616/92 dated
15.06.1992 as contended by defendant No.1?
h. Whether plaintiffs are entitled to decree as prayed for?
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i. To what relief?
Additional Issue:
Whether the Civil Court has no jurisdiction and the Special
Court of Land Grabbing (Prohibition) Act, 1982 alone has got
jursidiction?
8. During the course of trial, to substantiate their case, on
behalf of the Plaintiffs, Plaintiff No.5 was examined as PW.1 and
Exs.A1 to A24 were marked. On behalf of the Defendants, DWs.1
& 2 were examined and Exs.B1 to B21 were marked.
9. The Trial Court on due consideration of the oral and
documentary evidence placed on record, as regards issue Nos.1
and 2 held that the Plaintiffs are the legal heirs of late Nazir Yar
Jung and are owners of land admeasuring Acs.8-32 gts. in
Sy.No.129/70, Shaikpet Village, Hyderabad and thus, answered
the said issues in favour of the Plaintiffs.
9.1. Insofar as issue No.3 is concerned, the Trial Court held that
Ilyas Ahmed Menai has sold entire property to Basheer Khan and
his wife-Aaisha Sultana after losing about 400 Sq.Yds. in road
widening and thus, answered the said issue accordingly.
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9.2. Insofar as issue No.4 is concerned, the Trial Court held that
Defendant No.1 constructed multi storied complex in suit
schedule property on the basis of letter of confirmation-cum-
consent.
9.3. Insofar as mesne profits are concerned, i.e., Issue No.5, the
Trial Court directed the Plaintiffs to file a separate suit for
ascertaining the mesne profits.
9.4. Insofar as issue No.6 is concerned, the Trial Court has
categorically held that entire building was constructed illegally
on the land belonging to Plaintiffs and therefore, the Plaintiffs are
entitled to mandatory injunction as prayed for.
9.5. With regard to issue No.7, the Trial Court negatived the
contention of Defendant No.1 that Plaintiffs are not entitled to
suit schedule property since the ancestors of the Plaintiffs have
sold all the plots in Blocks R and P, Ward No.11, and further, held
that by non-filing of declaration of properties before the authority
concerned does not deprive the title of persons concerned and
consequently observed that the plaintiffs are owners of land in
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Sy.No.129/70 in TS.Nos.1, 2 and 3 in Block R, Ward No.11 and
TS.Nos.26, 34-42 in Block P, Ward No.11.
9.6. Insofar as issue No.8 is concerned, the Trial Court held that
the suit schedule property admeasuring 816 Sq.Mtrs. in
Sy.No.129/70 belongs to the Plaintiffs and not to Defendants and
therefore, the Plaintiffs are entitled to decree as prayed for and
also awarded costs against Defendant No.1.
9.7. Insofar as issue No.9 and additional issue is concerned, the
Trial Court held that the suit being filed for declaration of title,
recovery of possession, mandatory injunction and correction of
entries in revenue records, only civil Court can go into such
comprehensive questions after full-fledged trial and ultimately,
held that the Court is empowered to entertain the suit.
9.8. By holding as aforesaid, the Trial Court vide judgment
dated 30.08.2010 decreed the suit in part against the Defendant
Nos.1 to 4 to the extent of reliefs of declaration of title, delivery of
the suit schedule property against Defendant No.1 and
mandatory injunction and correction of revenue records.
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Aggrieved by the said judgment, defendant No.1 filed the present
Appeal.
10. Learned senior counsel appearing for the appellant
submitted that the Trial Court failed to properly consider Exs.B-6
and B-7 as per which legal heirs of late Nawab Nazir Yar Jung did
not inherit any property at Road No.11, Banjara Hills,
Hyderabad; and that the Trial Court also failed to consider the
fact that nala vests with the Government and no individual can
claim any title to the public nalas and none can have private
nalas.
10.1. Learned senior counsel further submitted that the
Advocate-Commissioner appointed by the Court failed to
identify the property claimed by the respondents and therefore,
the trial Court ought to have negatived the claim of the
respondents that they are owners of the suit schedule property;
that the Trial Court came to wrong conclusion that Ex.B-14 was
executed by the Appellant, but, in fact, Ex.B-14 was never
executed by the Appellant; and that the Trial Court failed to
consider the provisions of AP Survey & Boundaries Settlement
Act, 1923.
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10.2. Learned senior counsel further submitted that the Trial
Court failed to consider the fact that Respondents Nos. 1 to 5
failed to file original title documents and failed to prove their title
over the suit schedule property, thus, the Trial Court failed to
consider Ex.B-8 -the evidence of father of respondent Nos.4 and 5
in a suit filed for declaration, in which he has stated that his
father Nazir Yar Jung sold away different plots except Plot Nos.6
and 9 and thus, except Plot Nos.6 and 9, respondent No.1 to 5 did
not have any land in Sy.No.129/70, however, the Trial Court has
come to an erroneous conclusion.
10.3. Learned counsel further submitted that the Trial Court
failed to consider Ex.B-7 order passed by the Special Officer and
Competent Authority, Urban Land Ceiling, Hyderabad, as per
which, father of respondent Nos.4 and 5 and brother of
respondent Nos.1 to 3 had 1187 Sq.Mtrs. of vacant land in
Sy.No.129/70 in TS.Nos.26 and 34, Ward No.11, Block No.P,
Banjara Hills, Hyderabad and there is no reference to any land in
TS.No.1 which is the suit schedule property, which belongs to the
appellant.
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10.4. Learned senior counsel further submitted that the
confirmation-cum-consent letter dated 12.02.2000 vide Ex.B-14
signed by respondent No.5 was in respect of a nala which is on
the rear side of M.No.8-2-618/9, Road No.11, Banjara Hills,
Hyderabad, which belongs to the appellant and therefore,
respondent Nos.1 to 5, having admitted ownership of the
appellant, cannot claim the suit schedule property.
10.5. Learned senior counsel further submitted that the Trial
Court failed to consider the survey conducted by the authorities
under the AP Survey and Boundaries Settlement Act, 1923 as well
as the Gazette issued on 28.02.1977 under Sections 13 and 14 of
the said Act, which have become final since the same were not
challenged.
10.6. Learned senior counsel further submitted that the
respondents have obtained decree by playing fraud on the Court
and therefore, the decree obtained by the respondents is nullity in
law. He further submitted that the respondents have sought
cancellation of sale deeds bearing document Nos.1946/1994
(Ex.B-2) and 1952/1994 (Ex.B-3) executed in favour of appellant
which is per se impermissible since respondents are not parties to
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the said document; that it is settled principle of law that a person
who is not a party to a document cannot seek for cancellation of
the said document and the only option/remedy is filing a suit for
declaration of title. In the present case, admittedly, the
respondents have only sought for cancelation of sale deeds-
Exs.B-2 and B-3 and did not seek for declaration and therefore,
the Trial Court ought not to have granted the reliefs sought for to
the respondents.
10.7. Learned senior counsel further submitted that the appellant
has purchased an extent of 195 square yards each under Exs.B-2
and B-3 and has made constructions on the said land by duly
obtaining permission from MCH and the land covered under
Exs.B-2 and B-3 are different and distinct from the suit schedule
property and despite the specific plea of appellant that both the
properties are different, the Trial Court erroneously decreed the
suit with perverse findings that vendor of appellant had no land
to convey under Exs.B-2 and B-3.
10.8. Learned senior counsel further contended that the
judgment and decree passed by the Trial Court are based on
perverse findings and non-appreciation of evidence placed on
24
AKS, J & LNA, J
CCCA.No.227 of 2010
record by the appellant, therefore, the Appeal deserves to be
allowed. In support of his contentions, learned senior counsel
relied upon the following judgments of the Hon’ble Apex Court:
4) Committee of Management Anjuman Intezamia
Masajid, Varanasi v. Rakhi Singh & Ors. 4
11. Per contra, learned counsel for respondent Nos.1 to 5
submitted that the Trial Court on due appreciation of oral and
documentary evidence placed on record and on interpretation of
relevant law in proper perspective has rightly decreed the suit.
The present Appeal is devoid of merits and hence, the same is
liable to be dismissed.
11.1. Learned counsel further submitted that late Nawab Nazir
Yar Jung-father of respondent Nos.1 to 5 has been allotted an
1 (1984) 2 SCC 627
2 (2012) 8 SCC 148
3 (2016) 14 SCC 761
4 (2024) 3 SCC 336
5 2024 SCC OnLine SC 844
6 1994(1) SCC 1
25
AKS, J & LNA, J
CCCA.No.227 of 2010
extent of Acs.8.30 gts. by Sarfekas Mubarak; that he obtained
permission from MCH and divided the said land into plots and
sold an extent of 1350 to Ilyas Ahmed Menai under sale deed
bearing document No.38/1970 dated 06.01.1970 which is covered
by Plot No.2, TS No.2.
11.2. Learned counsel further submitted that out of the said
extent, Ilyas Ahmed Menai has lost an extent of 400 square yards
in road widening and he was left with 950 square yards which he
has alienated in favour of Basheer Khan and his wife-Aaisha
Sultana under two registered sale deeds bearing document
Nos.3685/92 and 3616/92, i.e., Exs.A-19 and A-20, respectively,
and as such, the said Ilyas Ahmed Menai had no land left with
him.
11.3. Learned counsel further submitted that the appellant is
claiming that he purchased an extent of 390 Sq.Yds. under two
sale deeds bearing document Nos.1946/1994 (Ex.B-2) and
1952/1994 (Ex.B-3) through GPA holder-Roopchand Pardesi and
also through sale deed executed by Mohd. Rafeeq (Ex.B-4). He
further submitted that the said GPA is created and Exs.B-2 and
B-3-sale deeds were executed in respect of non-existing land and
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AKS, J & LNA, J
CCCA.No.227 of 2010
basing on the said fabricated sale deeds, the appellant has
managed to get permission from MCH and made construction on
the land given on lease for parking.
11.4. Learned counsel further submitted that house mentioned in
Exs.B-2 and B-3 is in fact non-existing, from which it is clear that
the sale deeds are executed in respect of non-existing land. He
further submitted that confirmation-cum-consent letter dated
12.02.2000 was only for the purpose of parking and however,
contrary to the terms of the said letter, the appellant raised
structures on the said land.
11.5. Learned counsel further submitted that the Trial Court has
considered the evidence and material on record and has come to
categorical conclusions that respondent Nos.1 to 5 are legal heirs
of later Nawab Nazir Yar Jung; that he was given patta in respect
of Acs.8.32 gts. of land which is admitted by the Appellant in
Ex.A-10 and also during the cross examination.
11.6. In support of his contentions, learned counsel for
respondent Nos.1 to 5 relied upon the following judgments:
27
AKS, J & LNA, J
CCCA.No.227 of 2010
1) V.M.S. Kandasamy Nadar v. The Province of Madras &
Anr. 7
3) Sree Pancha Murthy Co-op. House Building Society Ltd.
v. Govt. of AP & Ors. 9
4) Hyderabad Potteries Pvt. Ltd. v. Collector, Hyderabad
Distrct & Anr. 10
12) Dr. K.I. Askari & Anr. v. Nawab Mir Barkat Ali Khan,
HEH the Nizam VIII 18
12. In the light of grounds of appeal, submissions made on
behalf of both the parties, the following points arise for
consideration of this Court:
7 AIR 1953 Mad 391
8 AIR 1973 AP 168
9 2000 (3) ALD 520
10 2001 (3) ALD 600
11 2002 Suppl. (1) ALD 539 (DB)
12 AIR 2002 Cal 11
13 AIR 2003 SC 1989
14 2006 AIR SCW 4855
15 AIR 2007 All 84
16 2009 (3) ALT 200 (DB)
17 2010 (4) ALD 97 (SC)
18 2010(4) ALD 244 (DB)
19 2023 (6) ALD 194 (SC)
28
AKS, J & LNA, J
CCCA.No.227 of 2010
1) Whether the suit schedule property, i.e., Plot No.1,
admeasuring 816 square meters, forms part of patta
land admeasuring Acs.8-32 gts. in Sy.No.129/70,
assigned to late Nazir Yar Jung and corresponds to
TS.No.1 and Plot No.2 admeasuring 1350 square yards
corresponds to TS.No.2?
2) Whether Ilyas Ahmed Menai was left with any land
after alienation of 959 Sq.Yds. in favour of Basheer
Khan and Aisha Sultana, and after losing an extent of
400 square yards in road widening?
3) Whether the sale deeds bearing documents
Nos.1946/1994 (Ex.B-2) and 1952/1994 (Ex.B-3 executed
by Ilyas Ahmed Menai through GPA Holder, viz.,
Roopchand Pardeshi and sale deed vide document
bearing No.5226 of 1993 executed by Mohd. Rafeeq are
valid in the eye of law?
4) Whether Appellant made construction upon the land
admeasuring 816 Sq. Yds. which the Appellant
purportedly obtained for the purpose of parking,
pursuant to the letter-cum-consent deed dated
12.02.2000?
5) Whether the impugned order requires interference of this
Court?
Point No.1:
13. The undisputed facts of the case are that late Nawab Nazir
Yar Jung was granted patta in respect of Acs.8.32 guntas in
Sy.No.129/70 vide patta document dated 5th Meher 1330 Fasli
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AKS, J & LNA, J
CCCA.No.227 of 2010
corresponding to 1920 AD (Ex.A-1) along with plan Ex.A-2. It also
appears that Nawab Nazir Yar Jung got the layout approved by
MCH under Ex.A-3; that as per the said layout, land admeasuring
816 square meters is in TS.No.1 and in the said land, no
construction could be made as there is water body in the plan.
Plot No.2 is in TS.No.2 admeasuring 1350 square yards and Plot
No.2 was alienated in favour of Ilyas Ahmed Menai under
registered sale deed bearing document No.38/1970 dated
06.01.1970 (Ex.A-6). As per Ex.A-6, the land is surrounded by the
following boundaries:-
North: Road constructed by Nawab Nazir Yar Jung;
West: Nala;
East: Road No.1; and
South: Land belonging to Nawab Mahaboob Lateef.
14. While so, MCH has issued a notice dated 29.12.1964 to
Nawab Nazir Yar Jung to the effect that drainage line is being
laid underground with three feet width and 100 feet long on
western side to TS.No.1 of the plaintiffs’ land and compensation
would be paid. Further, letter dated 07.05.1965 (Ex.A-4) was
addressed by MCH stating that rough stones excavated will be
handed over to Nawab Nazir Yar Jung and compensation would
30
AKS, J & LNA, J
CCCA.No.227 of 2010also be paid. According to plaintiffs, who are legal heirs of
Nawab Nazir Yar Jung, no part of Plot No.1 was sold to
defendant No.1. As per Ex.A-9-Record of Measurements issued
by Collector, Survey and Land Records, Hyderabad District,
dated 27.08.2004, Plot No.1 corresponds to TS.No.1 admeasuring
816 square meters and Plot No.2 admeasuring 1350
corresponding to TS.No.2. In Ex.A-6-sale deed executed by
plaintiffs in favour of defendant No.1, the schedule of property is
clearly mentioned as Plot No.2 admeasuring 1350 square yards in
Sy.No.129/70, Shaikpet Village, Banjara Hills, Hyderabad.
Therefore, there is no dispute with regard to Plot Nos.1 and 2
corresponding to TS.Nos.1 and 2 respectively forming pat of
Sy.No.129/70, Shaikpet Village, Banjara Hills, Hyderabad
corresponding to Block-R, Ward-11, Shaikpet Village and
Mandal, Hyderabad District.
15. Coming to the oral evidence, plaintiff No.5 who was
examined as P.W-1, has categorically stated that his father Nawab
Nazir Yar Jung was granted Acs.8.32 guntas in Sy.No.129/70 in
Road Nos.1 and 11, Banjara Hills, Hyderabad and the said land
was allotted TS.Nos.1, 2 and 3, Block-R, Ward-11 and TS.Nos.26,
34 to 42 in Block-P, Ward-11. Defendant No.1, who was examined
31
AKS, J & LNA, J
CCCA.No.227 of 2010
as DW-1, admitted that he has purchased Plot No.2 admeasuring
1350 square yards vide document bearing No.38/1970 dated
06.01.1970 (Ex.A-6). Therefore, there is no dispute with regard to
Plot Nos.1 and 2 being part of Sy.No.129/70, Shaikpet Village and
Mandal, Hyderabad District. It is also evident, as observed supra,
from Ex.A-9-Record of Measurements that plot No.1
admeasuring 816 square meters and Plot No.2 admeasuring 1350
square yards corresponds to TS.Nos.1 and 2 respectively.
16. Accordingly, point No.1 is answered in favour of the
plaintiffs.
Point No.2:-
17. Admittedly, defendant No.1 purchased an extent of 1350
square yards of land in Plot No.2 of Shaikpet Village and Mandal,
Banajara Hills, Hyderabad (Ex.A-6). Further, defendant No.1
executed two sale deeds in favour of Basheer Khan and Aisha
Sultana, i.e., an extent of 606.17 square yards was sold to Aisha
Sultana, vide document bearing No.3616/1992, dated
15.06.1992(Ex.A-19) and an extent of 352.87 square yards was sold
to Basheer Khan vide document bearing No.3635/1992, dated
11.06.1972 (Ex.A-20), in respect of Municipal Nos.8-2-618/9 and
8-2-618/8. The land admeasuring 606.17 Sq.Yds. in
32
AKS, J & LNA, J
CCCA.No.227 of 2010
M.No.8-2-618/8 is surrounded by Road (North), Neighbour’s
House (South), H.No.8-2-618/9 (east) and Vendor’s Property
(West). Land admeasuring 352.87 Sq.Yds. in M.No.8-2-618/9 is
surrounded by Road (North), Neighbours House (South), Road
(East) and H.No.8-2-618/8. (West).
18. Thus, after alienation of an extent of 959 square yards,
defendant No.1 was left with roughly an extent of 390 square
yards with him.
19. It is pertinent to note that in the year 1982, Office of
Assistant City Town Planning issued a letter to Ilyas Ahmed
Menai vide Lr.No.326/ACP-5/82 dated 19.11.1982 (Ex.A17)
wherein it was informed that two rooms constructed by Ilyas
Ahmed Menai in premises No.8-2-618/8 & 9 are getting affected
in road widening of Road No.11. In reply, Ilyas Ahmed Menai
issued a letter dated 23.11.1982 (Ex.A18) stating his no objection
to the road widening and further requested time to demarcate the
boundaries of his house to take up further construction. Further
Exs.A23 & A24 show that land to the extent of 391 Sq.Yds. got
affected in road widening.
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AKS, J & LNA, J
CCCA.No.227 of 2010
20. Therefore, in view of the above, it is held that Ilyas
Ahmed Menai is left with no land after alienation of 959 Sq.Yds.
and after losing 390 Sq.Yds. in road widening.
21. Thus, an inference can be drawn from Exs.A6, A17 to A20,
A23 & A24 that Ilyas Ahmed Menai obtained permissions and
built two buildings in M.Nos.8-2-618/8 & 9 and sold the land
along with building to Basheer Khan and his wife Aisha Sulthana
to the total extent of 959 Sq.Yds. Since road No.11 in Exs.A19 &
A20 is situated to the north, it can be inferred that Ilyas Ahmed
Menai lost the land to the extent of 391 Sq.Yds. in road widening.
Point No.3:-
22. DW1 is claiming title through Exs.B2 to B4. DW1 deposed
that there is no land of plaintiff to the west of DW1’s property.
DW1 is claiming land in 8-2-618/8 (part) & 9 (part) and
8-2-618/20/C which means 390 Sq.Yds. in plot No.2 and 475
Sq.Yds. in plot No.1.
23. DW1 deposed that Ilyas Ahmed Menai purchased 1350
Sq.Yds. in TS.No.2 from the Plaintiffs. He further deposed that he
is aware that Basheer Khan and his wife Aaisha Sultana
purchased a portion of the said property from Ilyas Ahmed
34
AKS, J & LNA, J
CCCA.No.227 of 2010
Menai, but he is not sure when they have purchased. He further
deposed that Basheer Khan and his wife Aaisha Sultana made
constructions in TS.No.2 portion in about 960 Sq.Yds.
24. Thus, as held on Point No.2, Ilyas Ahmed Menai had no
land left with him after executing Exs.A19 & A20 and after losing
an extent of 400 square yards in road widening and as a sequel,
the sale deeds vide Exs.B2 & B3 executed in favour of defendant
No.1 by Roopchand Pardeshi-GPA holder of Ilyas Ahmed Menai
are held to be void.
25. With regard to Ex.B4 executed by Md.Rafiq, it is relevant
to note that vendor of Ex.B4 i.e., Md.Rafiq has not stated as to
how he acquired title while executing Ex.B4 nor DW1 has placed
any evidence on record to trace the title of Md.Rafiq. DW1
deposed that Md.Rafiq informed him that he is the GPA holder of
Ilyas Ahmed Menai. The statement of DW-1 is contrary to Ex.B-4,
which shows Md.Rafiq as an owner of schedule property
mentioned therein and not GPA holder of Ilyas Ahmed Menai.
The Plaintiffs have proved their title by virtue of TSLR extract-
Ex.A-8 and Exs.A5 which shows the name of Nazir Yar Jung.
Whereas DW1 could not establish his title over the suit schedule
property. There is no whisper as to how Municipal
35
AKS, J & LNA, J
CCCA.No.227 of 2010
No.8-2-618/20/C has been obtained for non-existing land, and
further, how DW1 traces his title to his vendors-Ilyas Ahmed
Menai and Mohd. Rafeeq, who, in fact, failed to establish their
source of title. Hence, the said documents-Exs.B-2 to B-4 are held
to be not proved.
26. The Hon’ble Supreme Court in Kizhakke Vattakandiyil
Madhavan (Dead) Thr. Lrs. v. Thiyyurkunnath Meethal Janaki
and Ors., 20 observed as under:
18… If right, title or interest in certain property is sought
conveyed by a person by an instrument who herself does not
possess any such form of entitlement on the subject being
conveyed, even with a subsisting deed of conveyance on such
property, the grantee on her successors-in-interest will not
have legal right to enforce the right the latter may have
derived from such an instrument…
27. Applying the above ratio to the present case, it can be
noted that since Md.Rafiq failed to establish his title over the
subject land, consequently, no legal right is derived by defendant
No.1 through Ex.B-4. Therefore, defendant No.1 cannot claim the
property to an extent of 475 Sq.Yds. in plot No.1.
20
2024 SCC OnLine SC 517
36
AKS, J & LNA, J
CCCA.No.227 of 2010
28. Accordingly, Point No.3 is answered against defendant
No.1.
Point No.4:
29. It is an undisputed fact that Plaintiffs and Defendant No.1
entered into letter-cum-consent deed dated 12.02.2000, wherein
defendant No.1 was permitted to use the land for the purpose of
vehicle parking. The subject land is forming part of private nala
and situated behind Plot No.9. As per Ex.B18, Defendant No.1
filed application with MCH for construction of house in H.No.8-
2-618/8 & 9 dated 27.03.2004 for ground, first and partly second
floor. Ex.B-18-Building permission is only with regard to M.No.
8-2-618/8 & 9 and not M.No.8-2-618/20/C. Since there is no land
left in M.No.8-2-618/8 & 9, the building permission raises
suspicion.
30. In the report of Advocate-Commissioner, who was appointed
to note down the physical features of suit schedule property, it
was mentioned that the suit schedule property is surrounded by
Road No.11 (North), Tank (South), Land belonging to Ilyas
Ahmed Menai (East) and Land belonging to Neighbour (South).
It was also mentioned that there is a building consisting of five
37
AKS, J & LNA, J
CCCA.No.227 of 2010
floors and except towards south, there are shutters and tin shed
surrounding the said building. The Advocate-Commissioner also
observed that in second and third floors, construction work is
going on and in the fourth floor, the dismantled material is lying
and upon enquiry the Defendant informed that MCH demolished
the fourth floor.
31. DW1 deposed that municipality demolished the 5th floor of
his building. If the deposition of defendant No.1 (DW-1) is read
in consonance with the commissioner’s report, an inference can
be drawn that defendant No.1 had constructed a five-storied
building in the suit schedule property.
32. As regards the Advocate-Commissioner’s report, defendant
No.1 contended that as per orders, dated 20.09.2005, passed in
CRP No.3550 of 2005, the report of the Advocate-Commissioner
as regards the localization of suit schedule site i.e., as to whether
it is covered by TS.No.1 or TS.No.2 was set aside and scope of
warrant of the Advocate-Commissioner was limited to noting
down only the physical features. Further, the Appellant
contended that he has filed objections to the commissioner’s
38
AKS, J & LNA, J
CCCA.No.227 of 2010
report requesting to reject the report, but the said objections were
not even referred to by the trial Court in the impugned judgment.
In relevance thereof, defendant No.1 relied upon the judgment of
Hon’ble Supreme Court in Committee of Management Anjuman
Intezamia Masajid, Varanasi (cited supra).
33. The Trial Court has drawn inference that five-storied
building is present on the suit schedule property in the light of
the deposition of DW1, the fraudulent act of DW1 in creating
Exs.B2 to B4 and managing to obtain permission from MCH to
construct five-storied building and also the report of the
Advocate-Commissioner. In view of above discussion and
evidence on record, the contention of defendant No.1 is untebale.
34. Accordingly, this Point No.4 is answered against defendant
No.1.
Point No.5:
35. In the light of the foregoing discussion and the findings of
this Court on Point Nos.1 to 4, this Court holds that the
impugned judgment of the trial Court requires no interference by
this Court and as such, the Appeal is liable to be dismissed.
36. Accordingly, this Appeal is dismissed.
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AKS, J & LNA, J
CCCA.No.227 of 2010
As a sequel, pending Miscellaneous Petitions, if any, shall
stand closed. No costs.
_______________________________
JUSTICE ABHINAND KUMAR SHAVILI
______________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date: 13.06.2025
dr