Telangana High Court
Dist.Collector,Hyd And Another vs R.Ramachandra Rao on 9 June, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr.JUSTICE G.RADHA RANI
CITY CIVIL COURT APPEAL No.78 of 2002
JUDGMENT:
This appeal is filed by the appellants-defendants aggrieved by the
judgment and decree dated 10.04.2000 passed in O.S. No.1828 of 1997 by
the II Senior Civil Judge, City Civil Court, Hyderabad.
2. The respondent is the plaintiff.
3. For the sake of convenience, the parties are hereinafter
referred as arrayed before the trial court.
4. The plaintiff filed the suit to declare the notice in File
No.C/2601/1997 dated 07.07.1997 issued by the office of the Mandal
Revenue Officer, Himayathnagar Mandal, Hyderabad (defendant No.2) as
null and void, that the plaintiff was the absolute title holder of the suit
schedule property and consequently to grant perpetual injunction to
restrain the defendant Nos.1 and 2 from interfering with his possession
over the suit schedule property i.e. open land covered by four rooms within
the compound bearing Municipal No.3-2-592 situated at Rahamathbagh,
Chappal Bazar, Kachiguda, Hyderabad.
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5. The plaintiff contended that he was the owner and possessor
of the above suit schedule property. He purchased two houses bearing
Nos.3-2-523 and 3-2-592 under a registered sale deed bearing document
No.193/1988 dated 01.02.1988 from Smt. Ummahani Khusroo Banu for a
consideration of Rs.48,000/-. The said Ummahani Khusroo Banu became
owner of the house bearingNo.3-2-523 and 3-2-592 by virtue of a oral gift
by delivery of possession from her son Abdul Basit Ansari, which was
confirmed by the Memorandum of Confirmation dated 05.01.1981
notarized on the said date. The said Basit Ansari was unmarried and died
leaving behind him his mother Smt. Ummahani Khusroo Banu W/o. Late
Sri Abdul Ghani Ansari Khusroo Shah Nizami, who was the legal heir of
her son Basit Ansari. The said Basit Anasari purchased the house bearing
No.3-2-523 and 3-2-592 under registered sale deed executed by Gaddam
Kista Reddy vide document No.3032/1962 dated 21.11.1962 of Joint Sub-
Registrar, Hyderabad. The said Gaddam Kista Reddy purchased house
bearing No.3-2-523 and 3-2-592 through registered sale deed document
No.484/1960 dated 04.03.1960 from Fah-E-Rasool Khan. Fah-E-Rasool
Khan was in possession and enjoyment of the house bearing No.3-2-592
before the sale in 1960. Thus, the plaintiff and his predecessors in title had
been in possession and occupation of the land covered by four rooms
within the compound of house bearing No.3-2-592 for more than 37 years.
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The plaintiff demolished the four rooms within the compound bearing
Municipal No.3-2-592 with a view to construct a new house and obtained
permission from MCH by removing the existing building in permit
No.193/48 for house bearing No.523 and 592/3/85 dated 30.06.1988. The
plaintiff demolished the four rooms existing in the compound, but due to
lack of funds could not make construction of house or building in the land
bearing Municipal No.3-2-592. The plaintiff paid the property tax to the
house bearing No.3-2-523 and 3-2-592 which were adjacent to each other.
Thus, the plaintiff and his predecessors in title had become the owner and
possessor of the land covered by four rooms within the compound bearing
Municipal No.3-2-592 for more than 37 years and acquired title to the said
property. There was a prescription of possession backwards under Section
114 of the Evidence Act. The open land covered by four rooms within the
compound bearing Municipal No.3-2-592 was not a government land in
Town Survey No.56, Abadi. Even otherwise, the plaintiff acquired title to
the suit property by being in possession for more than 37 years by adverse
possession and the title of Government if any was extinguished by
operation of law under Section 27 read with Article 112 of the Limitation
Act, 1963.
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6. The Plaintiff submitted that the second defendant issued a
notice under Section 7 of A.P. Land Encroachment Act, 1905 in File
No.C/2601, 1997 dated 07.07.1997 in respect of the suit property. The
plaintiff submitted an explanation on 21.07.1997 denying the title of the
Government and asserting title in himself by virtue of registered sale deed
bearing document No.193/1988 dated 01.0.1988 and registered sale deed
document No.3032 dated 21.11.1962 referred above. Therefore, the
defendant Nos.1 and 2 had no jurisdiction to initiate proceedings under the
provisions of A.P. Land Encroachment Act and it was for the defendants
to approach the Civil Court to establish the title of the Government.
Therefore, the notice issued by the second defendant on 07.07.1997 and
the proceeding initiated by the defendant No.2 under A.P.Land
Encroachment Act were not maintainable in the eye of law. The
Government or the defendant Nos.1 and 2 could not decide such questions
unilaterally in its favour and could not try to evict the plaintiff from the
suit property. The defendant Nos.1 and 2 were trying to interfere with the
possession and enjoyment of the plaintiff over the suit property and
threatening to dispossess the plaintiff from the suit property. In view of
the urgency, the plaintiff prayed to dispense with the notice under Section
80 of CPC and filed the suit.
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7. The defendant No.2 filed written statement which was
adopted by the defendant No.1. The defendant No.2 contended that the
plaintiff was not entitled to seek declaration of notice in File No.C/2601/97
dated 07.07.1997 as null and void, as final orders had been passed by the
authorities on 26.07.1997 and if there was any grievance, the plaintiff was
entitled to prefer appeal under A.P. Land Encroachment Act. The plaintiff
did not issue notice under Section 80 of CPC which was mandatory. As
such, the suit was not maintainable. The defendant No.2 also contended
that the plaintiff was claiming injunction without seeking the relief of
declaration of title, as such, the suit was not maintainable on that ground
also. The defendant No.2 contended that the suit schedule land was
situated in T.S.No.56, Ward-191, Block No.1 to an extent of 109 sq. mts.,
of Lingampally Village and the same was government land. Between 1965
and 1970 final notification was issued under Section 13 of the A.P. Survey
and Boundaries Act and the same was notified in A.P. Gazette during
1979. As such, the survey report and TSL Records became conclusive
proof of ownership, since no suit was filed by the predecessors in title of
plaintiff within three years from the date of Gazette Notification as
contemplated under Section 14 of the A.P. Survey and Boundaries Act,
1923. Thus, the said survey became final and the boundaries and title of
ownership shown therein were conclusive proof. Neither the plaintiff nor
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his alleged predecessors in title had ever raised an objection to the said
survey. Mere payment of taxes to MCH or approval of layout or
permission by MCH, would not confirm any right or title to the plaintiff on
the government land.
8. The defendants further contended that during the inspection of
Government lands, it was noticed that the plaintiff had encroached the suit
schedule land and accordingly, action under A.P. Land Encroachment had
been initiated against the plaintiff and a notice under Section 7 was issued
on 07.07.1997. The plaintiff submitted his reply. The defendant after
verifying the documents filed by the plaintiff with the revenue, survey and
settlement records, found that the said documents filed by the plaintiff had
no relevance or connection with the suit schedule land, which was a
government land. Therefore, speaking orders were passed by the defendant
rejecting the claim of the plaintiff on 26.07.1997. Subsequently, thereafter
a notice under Section 6 of the Act was issued authorizing the Mandal
Revenue Inspector to take over possession of the land. When the plaintiff
refused to take notice and resisted delivery of possession of land, the
Mandal Revenue Inspector served notice as required under law and taken
over possession of the land of an extent of 109 Sq. Mtrs in T.S.No.56,
Ward-191, Block-I situated in Lingampally village on 28.07.1997.
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Subsequently, thereafter the District Collector, Hyderabad allotted the said
land to the District Educational Officer for construction of Government
Upper Primary School, Chowdi Nanamia vide Proceedings No.
C3/7244/97 dated 10.10.1997 and accordingly possession of the said land
was handed over to the representative of D.E.O., duly conducting
Panchanama on 13.10.1997. The plaintiff was never in possession of the
suit schedule land. The suit schedule land was a Government land and the
Government was in possession when the suit was filed, and prayed to
dismiss the suit with costs.
9. Basing on the said pleadings, the trial court framed the issues
as follows:
1. Whether the plaintiff is entitled for the relief of declaration
as well as injunction as prayed for?
2. Whether the suit is bad for non-issuance of notice as
required under Section 80 of CPC?
3. To what relief?
10. The plaintiff examined himself as PW.1 and got marked
Exs.A1 to A14. A neighbouring person in the locality was examined as
PW.2. The MRO of Himayathnagar was examined as DW.1 and Exs.B1 to
B10 were marked on behalf of the defendants. The Inspector of Survey in
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the office of the Deputy Director of Survey and Land Records, Hyderabad
was examined as DW.2.
11. On considering the oral and documentary evidence on record,
the trial court i.e. the II Senior Civil Judge, City Civil Court, Hyderabad,
decreed the suit. Aggrieved by the said judgment and decree dated
10.04.2000, the defendants preferred this appeal.
12. Heard Sri G. Tirupathi Reddy, learned Government Pleader
for appeals for the appellants and Sri B.Ravi Kiran Rao, learned Senior
Counsel for the respondent-plaintiff.
13. Learned Government Pleader for appeals contended that the
trial court committed an error in giving a finding that the respondent-
plaintiff or his predecessors in title had perfected their right by way of
adverse possession without framing an issue or evidence let in the said
regard. As per the plaint, the plaintiff mentioned that there were two house
numbers 3-3-592 and 3-2-523 and that they together constituted 109 sq.
yds. The schedule was not properly shown. The boundaries were shown in
respect of the total 190 sq. yds., but not 109 sq. yds. As per the schedule
of the property shown in Ex.A1 sale deed, it was 190 sq. yds., but not 109
sq. yds. The boundaries were shown separately for the two houses in the
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link document Ex.A3. But in the present suit, the boundaries were shown
in respect of the total 190 sq. yds. When the description of the property
was not correct the plaintiff could not maintain the suit for declaration of
title.
14. He further contended that, in his cross-examination PW.1
admitted that he demolished the existing house, as such, the suit schedule
property must be an open land, but the plaintiff was claiming that it was
house with a compound wall. In Ex.A1 sale deed, it was shown as an open
land. As such, the plaintiff purchased an open land. His contention that he
demolished the houses was false. The plaintiff failed to establish the
identification of the property with boundaries. The plaintiff filed Ex.A6 to
A10 receipts showing payment of property tax to MCH. But, there was no
question of payment of tax to open land. A notice was issued under
Section 7 of the Land Encroachment Act to the plaintiff under Ex.B1 on
07.07.1997 and an order was passed under Section 6 of the Land
encroachment Act under Ex.B2 on 26.07.1997. The possession was taken
under panchanama marked under Ex.B3 and a gazette notification was also
issued under Ex.B9 on 28.02.1977. The same became final. The suit has
to be filed within three years from the date of notification by the aggrieved
party. As such, the suit was barred by limitation. The plaintiff was
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claiming title and alternatively adverse possession, which were
contradictory claims. No document was filed by him to show that he was
in possession of the property for more than 30 years. As such, the claim of
adverse possession was not maintainable. As the plaintiff admitted that he
demolished the existing house and no new house was constructed by him
after demolition, he could not file the suit showing it as four rooms. The
observation of the trial court that the plaintiff was in occupation of two
houses with appurtenant land thereto was against the admission made by
him in his cross-examination. All the tax receipts filed by him were prior
to 1999 but, did not pertain to the date of filing of the suit. The plaintiff
failed to prove that he was in possession of the suit schedule property and
prayed to allow the appeal by setting aside the judgment of the trial court.
15. The learned Senior Counsel for the respondent-plaintiff, on
the other hand, contended that there was no pleading and evidence with
regard to the arguments advanced by the learned Government Pleader for
Appeals with regard to boundaries, location of the property etc. The
plaintiff purchased the property through registered sale deeds and also filed
link documents of his vendors. All his vendors were also in possession of
the suit schedule property prior to him. The plaintiff purchased the suit
schedule property in the year 1988. Notice was issued to the plaintiff
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under the Land Encroachment Act in the year 1997. The trial court
considering the evidence on record, observed that the plaintiff was a
bonafide purchaser and that he was also residing as a tenant in the suit
schedule property prior to his purchase. He further contended that no
enquiry was conducted by the MRO. After issuing notice, under Section 7
of the Land Encroachment Act, dated 07.07.1997, the plaintiff submitted
his title deeds as well as the title deeds of his vendors, but without
considering them properly, an order was passed under Section 6 of the Act
on 26.07.1997 under Ex.B2. Panchanama proceedings were conducted
under Ex.B3 recording that possession was taken over on 28.07.1997.
Under the Land Encroachment Act, a right of appeal over the proceedings
of the MRO was provided to the RDO. Thirty (30) days time was
prescribed under the Act for preferring the appeal. But, without even
waiting for 30 days, possession was taken over within two days after
passing the order under Ex.A2 on 26.07.1997. Mere conducting Town
survey would not confer title on the Government. The Government failed
to prove its title and failed to follow the procedure for taking possession.
If the suit schedule property was a government land, there would be
prohibition for registration, but the Registrar had not raised any objection
for registering the sale deeds. Ex.B1 notice also would describe the land as
G-Abadi and nature of occupation as open with compound wall. When a
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compound wall was there, it would denote that it was in possession of
some person. The respondent-plaintiff was a bonafide purchaser and his
title and possession was rightly recognized by the trial court and relied
upon the judgments of the Hon’ble Apex Court in Government of
Andhra Pradesh v. Thummala Krishna Rao and another 1 on the aspect
that the summary remedy prescribed by Section 6 is not the kind of legal
process which was suited to an adjudication of complicated questions of
title.
15.1. He further relied upon the judgment of the High Court of A.P.
in Hyderabad Potteries Private Limited v. Collector, Hyderabad
District and another 2 on the aspect that there was no presumption that
every entry made in TSLR shall be presumed to be proved until contrary
was proved, as in the case of entries made in the Record of Rights under
the provisions of the A.P. Record of Rights in Land Act, 1971.
15.2. He further relied upon the judgment of the High Court of A.P.
in State of A.P. and others v. Singam Setty Yellananda 3 on the ground
that issuance of notice under Section 80 (2) of the Code of Civil Procedure
could be dispensed with on the ground of urgency.
1
AIR 1982 SC 1081
2
2001 (3) ALT 200
3
AIR 2003 AP 182
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15.3. He further relied upon the judgment of the High Court of A.P.
in S. Vasantha and another v. District Collector, Hyderabad District,
Hyderabad4 on the aspect that the summary remedy under the Land
Encroachment Act, 1905 could not be invoked when the parties were in
settled possession of the property in question for a longtime.
15.4. He further relied upon the judgment of the High Court of A.P.
in B. N. Manga Devi and another v. State of Andhra Pradesh 5 on the
aspect that remedy under Section 6 of the Land Encroachment Act, 1905
could not be resorted to unless the alleged encroachment was of a recent
origin.
15.5. He further relied upon a judgment of the High Court of A.P.
in G. Satyanarayana v. Government of A.P. and others 6 on the aspect
that issuance of proceedings based only on entry in TSL Records would
not constitute conclusive proof of title.
16. Basing on the arguments advanced by both the learned
counsel, now the points that arise for consideration in this appeal are:
(1) Whether the notice issued by the defendant No.2 to the
plaintiff vide File No.C/2601 of 1997, dated 07.07.1997
can be declared as null and void, and whether the4
2007 (1) ALD 692
5
2011 (6) ALD 283
6
2014 (4) ALD 358
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CCCA No.78 of 2002plaintiff is entitled to be granted consequential
perpetual injunction against the appellants-defendants?
(2) Whether the trial court committed any error in
decreeing the suit in favour of the plaintiff?
(3) To what result?
17. POINT No.1:
In the light of the contentions raised by the learned Government
Pleader for Appeals and the learned Senior Counsel for the respondent-
plaintiff, the evidence of the witnesses needs to be looked into. The
plaintiff examined himself as PW.1. He stated that he purchased two
houses from Smt. Ummahani Khusroo Banu on 01.02.1988 under a
registered sale deed document No.193/1988 and that the suit schedule
property was bearing premises No.3-2-592 situated at Rahamathbagh,
Chappal Bazar, Hyderabad. He stated that his vendor got the suit property
under a gift deed (HIBA) executed by Basit Ansari, who was the son of his
vendor. The said Basit Ansari purchased the property from his vendor Sri
Gaddam Kista Reddy on 04.03.1960 and said Gaddam Kista Reddy inturn
purchased the property from Fah-E-Rasool Khan. Ex.A1 was the
registered sale deed document through which the plaintiff purchased the
property from Smt. Ummahani Khusroo Banu Nizami. Ex.A2 was the
memorandum of HIBA dated 05.01.1981 along with its translation. Ex.A3
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CCCA No.78 of 2002was the registered sale deed through which Basith Ansari purchased the
property from G. Kista Reddy. Ex.A4 was the certified copy of the sale
deed through which G. Kista Reddy purchased the property from Fah-E-
Rasool Khan. PW.1 further stated that before he purchased the suit
schedule property in the year 1988, he was residing in the suit property as a
tenant of Basit Ansari from the year 1972, he used to pay monthly rent of
Rs.70/- to the said Basit Ansari. The suit schedule property consisted of
four rooms surrounded by compound wall. He stated that the compound
wall was in existence since 1960 onwards. The total plinth area of the suit
schedule property was 190 sq. yds. He obtained permission from MCH for
reconstruction of the house. The said permission dated 30.04.1988 was
marked as Ex.A5. Exs.A6 to A10 are the property tax receipts issued by
MCH. Notice was issued by defendant No.2 dated 07.07.1997 was marked
as Ex.A11. The reply given by the plaintiff to the said notice dated
17.07.1997 was marked as Ex.A12 and the extract from the Tax
Assessment Register of the property tax of MCH was marked as Ex.A13.
PW.1 further stated that while he was residing in the suit schedule
property, he received notice from the defendant under Ex.A11. He was in
occupation of the suit schedule property for the past 37 years. The two
houses were located at a combined place. His predecessor in title also
resided in the suit schedule property and that they had perfected their title.
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18. In his cross-examination, PW.1 stated that notice was issued
in respect of 109 sq. yds., of land, but he filed suit seeking declaration in
respect of 190 sq. yds., of land with compound wall and house. He also
admitted that Ex.A2 plan would show the premises bearing No.3-2-592 as
an open land with compound wall. He admitted that in the plan attached to
Ex.A4 the open land was not shown. He admitted receipt of notice under
Section 6 of the A.P. Land Encroachment Act and that he submitted his
explanation within time. He denied that he was evicted by the MRO from
the suit property and stated that there was a house existing and that he was
continuing residing there.
19. The plaintiff got examined a neighbour, who was residing
adjacent to his house, as PW.2. PW.2 stated that he knew the plaintiff
since 1972. He was a resident of Chappal Bazar, Hyderabad. His house
was third house adjacent to the plaintiff’s house. The house of the plaintiff
belonged to him, but did not belong to the Government. In the entire area,
there was no government land. The plaintiff purchased an old house,
dismantled it and constructed a new house.
20. In his cross-examination, PW.2 admitted that he had not seen
the documents as to the extent of land purchased by the plaintiff. He stated
that there was no government land in front of the house and denied that
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there was government land in front of the house of the plaintiff and the
plaintiff encroached the same.
21. The MRO, Himayatnagar was examined as DW.1. He stated
that the suit land belonged to the government and the same was a vacant
land. No municipal number was allotted to it. The extent of the land was
109 sq. meters. It was situated in TS No.56, block No.1, Ward No.191 of
Lingampally village. During the regular inspection of Government lands
by his predecessors, it was found that the plaintiff encroached the
government land and a notice was issued to him under Section 7 of the Act
on 07.07.1997 and the plaintiff gave a reply on 17.07.1997. The reply
submitted by the plaintiff was not relevant. Therefore, after due enquiry, a
final order of eviction was passed under Section 6 of the Land
Encroachment Act on 26.07.1997. The plaintiff did not prefer any appeal.
They have taken possession of the land on 28.07.1997 under a panchanama
and handed over the vacant land to the District Educational Officer for
construction of School on 13.10.1997. The notice under Section 7 of the
Land Encroachment Act issued to the plaintiff was marked as Ex.B1. The
order passed by the MRO under Section 6 of the Land Encroachment Act
was marked as Ex.B2. The panchanama for taking over possession from
the plaintiff was marked as Ex.B3. The copy of the extract of the Town
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Survey Land Register pertaining to Town Survey No.56 was marked as
Ex.B4. The sketch plan was marked as Ex.B5 and the proceedings for
handing over the schedule property to the DEO dated 13.10.1997 was
marked as Ex.B6. The plan enclosed to it was marked as Ex.B7. The
notification issued by the Assistant Director of Survey and Land Records
dated 30.07.1960 was marked as Ex.B8 and the Gazette Notification dated
28.02.1977 was marked as Ex.B9. Ex.B10 was the plan demarcation
sketch.
22. In his cross-examination, DW.1 admitted that during his
recent inspection he came to know that there were structures erected over
the suit land by the plaintiff and they were contemplating to book a land
grabbing case against the plaintiff. He admitted that on the east of the land
there was house of the plaintiff. On the northern and southern sides, there
were houses and on the western side there was a lane. He stated that the
documents filed by the plaintiff were not relevant to the suit site. He
admitted that the suit site was a Government Abadi land. He admitted that
in Ex.A1 notice the boundaries of the suit property were not disclosed.
Ex.B4, the Town survey extract also did not disclose the entire description
of the property. The boundary description of the vacant site was not
shown in Ex.B4. He admitted that he had not filed the map of the
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Lingampally village. He stated that after Town Survey was conducted
between the years 1965 to 1970, they were following the Town Survey
Land Records. He stated that he had no proof to show that the notices
were served to the plaintiff at the time of town survey and added that the
Deputy Director of Survey and Land Records would be holding all the
records pertaining to the issue of notice. He also admitted that as per the
records, the suit land did not have any number and that he did not know
whether there were structures and a house therein. He stated that they had
no knowledge about Exs.A5 to A13 receipts issued by the MCH. He
stated that no objections were filed by the plaintiff within three years of
issuing gazette notification as such, the suit schedule property belonged to
the Government.
23. The Inspector of Survey from the office of the Deputy
Director, Survey and Land Records, Hyderabad was examined as DW.2.
He stated that the Town Survey was conducted in the City of Hyderabad
during the years 1965-1970. The survey was conducted under the A.P.
Survey and Boundaries Act, 1920. During survey, notices were issued
under Section 9 (2) of the A.P. Survey Proceedings Act. Lingampally in
which the suit property was located, was also covered with town survey.
He stated that Ex.B8 was the notification issued under Section 6 of the
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Land Encroachment Act and Ex.B9 was the Gazette Notification issued
under Section 13 and Ex.B10 was the certified extract of the plotted
demarcated sketch prepared by the original Surveyor. As per Ex.B10 (A)
there were no structures in the suit land. At the time of Survey, it bears
Town Survey No.56 admeasuring 109 sq. meters. They had issued notices
under Section 9(2) of the Act. The acknowledgments of the receipts of the
notices were preserved with the Central Survey Office, Narayanaguda,
Hyderabad. He stated that as per G.O.Ms.No.1039, dated 14.09.1972 all
open lands and Abadi lands were treated as Government Lands. As per
their records, the suit land was recorded as government land (Government
Abadi Land).
24. In his cross examination, he admitted that he had not given
any affidavit to show that the suit schedule property was a vacant site. He
denied that a building was existing in the suit property since 1937. He
admitted that Ex.B10 did not show the extent of any survey number and
for the extents, they had to refer to the Town Survey Land Register.
25. Thus, as seen from the evidence of DWs.1 and 2, they were
claiming that the suit property was a vacant land, it was part of T.S. No.56.
As per G.O.Ms.No.1039, dated 14.09.1972, all open lands and Abadi lands
were treated as government lands and as it is a vacant land, they have
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issued notice under Section 9(2) of the A.P. Survey Proceedings Act and
issued Gazette notification under Section 13 of the said Act.
26. Ex.B9 would only disclose that a detailed town survey of the
villages/wards was completed under Section 13 of the A.P. Survey and
Boundaries Act, 1923 and unless the survey notified was modified by a
decree of civil court under the provisions of Section 14 of the said Act, the
records of the survey shall be conclusive proof that the boundaries
determined and recorded therein shall be conclusive proof that they were
correctly recorded and determined. The village name Lingampally and the
Ward Nos.190 and 191 were also mentioned in the said gazette
notification. As per DW.1, if anybody had any objections, with regard to
the boundaries determined therein, the objections have to be filed within
three years of the said notification. As no objections were filed within
three years by the plaintiff or his predecessors in title from the date of the
gazette notification on 28.02.1977, the said property belonged to the
government.
27. The evidence of PW.1 would disclose that he was residing as
a tenant of Basit Ansari in the suit schedule property since 1972 and he
purchased the same in the year 1988 from the mother of Basit Ansari.
Though the evidence of DWs.1 and 2 would disclose that they have issued
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notices under Section 9(2) of the A.P. Survey Proceedings Act and the
acknowledgments of the receipt of the notices were preserved with the
Central Survey Office, Narayanguda, Hyderabad, no proof was filed to
show that the notices were served on the plaintiff or his owner Basit Ansari
at the time of conducting survey by the department of Survey and land
records. Exs.A1 to A4 sale deeds do not disclose the survey number
except the house numbers. Ex.A4 registered sale deed document
No.484/1964 issued by the office of the District Registrar, Hyderabad is
pertaining to the sale of two houses bearing Municipal Nos.3-2-523 and
592. Thus, there were houses existing since 1960 and it was not an open
land. DW.2 also stated in his evidence that in the entire area, there was no
government land or any open land in front of the house of the plaintiff.
28. The learned Senior Counsel for the respondent-plaintiff also
filed a photograph showing the existence of a house in the suit schedule
property and that there was no vacant land existing therein. The
photograph was dated 23.11.2017. All the registered sale deeds marked
under Exs.A1 and A3 also describe the suit schedule property as bearing
Municipal No.3-2-523 and 3-2-592 admeasuring 190 sq. yds., consisting of
a tiled roof house situated at Rahamath Bagh, Kachiguda, Hyderabad. It
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was stated to be comprising of three small rooms, kitchen, bath and
lavatory with the tiled roof.
29. The Hon’ble Apex Court in Government of A.P. v.
Thummala Krishna Rao and another (cited supra) held that:
“The summary remedy for eviction which is provided for by S. 6 of
the Act can be resorted to by the Government only against persons
who are in unauthorized occupation of any land which is “the
property of Government”. If there is a bona fide dispute regarding the
title of the government to any property, the Government cannot take a
unilateral decision in its own favor that the property belongs to it, and
on the basis of such decision, take recourse to the summary remedy
provided by S. 6 for evicting the person who is in possession of the
property under a bona fide claim or title. The summary remedy
prescribed by S. 6 is not the kind of legal process which is suited to
an adjudication of complicated questions of title.”
30. As rightly contended by the learned Senior Counsel for the
respondent-plaintiff if the suit schedule property was a government land,
the same should have been included under the B-Register of the Sub-
Registrar Office prohibiting registrations. But, the Registrar continuing to
register the property since 1960 onwards and the MCH granting
permissions for construction of houses and collecting taxes shows that the
government is not seriously pursuing the matter that it was a government
land. No documents are filed by the appellants to show that it was a
government property except relying upon the Town Survey and Land
Records. The judgment of this Court in Hyderabad Potteries Pvt. Ltd. v.
24
Collector, Hyderabad District and another (2 supra) would make it clear
that:
“A bare reading of scheme of the A.P. Survey and Boundaries Act,
1923 would make it clear that the survey made under the said Act is
mainly intended for the purposes of identification of the lands and
fixation of boundaries. There is no provision under the Act intending
to make any detail enquiries with regard to the right, title and interest
of the persons in the lands. It is neither the object nor the scheme of
the said Act. There is no presumption that every entry made in the
TSLR shall be presumed to be true until contrary is proved as in the
case of entries made in the record of rights under the provisions of
A.P. Record of Rights in Land Act, 1971. It is not a record of right.
There is no such provision in the Andhra Pradesh Survey and
Boundaries Act, 1923.
The question as to the nature and scope of entries in TSLR had fallen
for consideration in WA Nos.115 and 160 of 2000 before a Division
Bench of this Court. The Division Bench observed that “the entries in
TSLR are no doubt relevant. But they are not conclusive. It is
common knowledge that there may be many instances where the
owners of land in urban areas will not be in a position to correlate the
house numbers or ward numbers to the survey numbers or the entries
may not be upto date and that may introduce some practical
difficulties in obtaining TSLR extracts…..The TSLR cannot be
regarded as a sole guiding factor.”
31. In S. Vasantha and another v. Collector, Hyderabad
District, Hyderabad and another (4 supra) also it was held that:
“When predecessors in title of petitioners and subsequent
thereto, the petitioners have been in settled possession of property in
question for a longtime, question whether the same is under defective
title or not have to be adjudicated upon. Summary remedy under the
A.P. Land Encroachment Act, 1905 cannot be invoked.”
32. In the present case also, the registered sale deeds filed by the
respondent-plaintiff marked under Exs.A1, A3 and A4 would disclose that
the respondent-plaintiff and his predecessors in title have been in settled
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CCCA No.78 of 2002
possession of the property in question for sufficiently a longtime. Whether
the same was under a defective title or not, needs to be adjudicated upon
and a summary remedy under Section 6 of the Act could not be invoked to
evict the respondent-plaintiff.
33. By referring to the judgment of the Hon’ble Apex Court in
Government of Andhra Pradesh v. Thummala Krishna Rao, it was
held in S. Vasantha and another v. Collector, Hyderabad District,
Hyderabad and another that:
“It seems to us clear from these provisions that the summary remedy
for eviction which is provided for by section 6 of the Act can be
resorted to by the Government only against persons who are
in unauthorized occupation of any land which is “the property of
Government”. In regard to property described in sub- sections (I) and
(2) of section 2, there can be no doubt, difficulty or dispute as to the
title of the Government and, therefore, in respect of such property, the
Government would be free to take recourse to the summary remedy of
eviction provided for in section 6. A person who occupies a part of a
public road, street, bridge, the bed of the sea and the like, is in
unauthorised occupation of property which is declared by section 2 to
be the property of the Government and, therefore, it is in public
interest to evict him expeditiously which can only be done by
resorting to the summary remedy provided by the Act. But section 6
(1) which confers the power of summary eviction on the Government
limits that power to cases in which a person is in unauthorised
occupation of a land “for which he is liable to pay assessment
under section 3”. Section 3, in turn, refers to unauthorised occupation
of any land “which is the property of Government” If there is a
bonafide dispute regarding the title of the Government to any
property the Government cannot take a unilateral decision in its own
favour that the property belongs to it, and on the basis of such
decision take recourse to the summary remedy provided by section
6 for evicting the person who is in possession of the property under a
bona fide claim or title. In the instant case, there is unquestionably a
genuine dispute between the State Government and the respondents
as to whether the three plots of land were the subject-matter of
acquisition proceedings taken by the then Government of Hyderabad
26
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CCCA No.78 of 2002and whether the Osmania University for whose benefit the plots are
alleged to have been acquired, had lost title to the property by
operation of the law of limitation. The suit filed by the University was
dismissed on the ground of limitation, inter alia, since Nawab
Habibuddin was found to have encroached on the property more than
twelve years before the date of the suit and the University was not in
possession of the property at any time within that period. Having
failed in the suit, the University activated the Government to evict the
Nawab and his transferees summarily, which seems to us is
impermissible. The respondents have a bona fide claim to litigate and
they cannot be evicted save by the due process of law. The summary
remedy prescribed by section 6 is not the kind of legal process which
is suited to an adjudication of complicated questions of title. That
procedure is, therefore, not the due process of law for evicting the
respondents.
The conspectus of facts in the instant case justifies the view that the
question as to the title to the three plots cannot appropriately be
decided in a summary inquiry contemplated by sections 6 and 7 of the
Act. The long possession of the respondents and their predecessors-
in- title of these plots raises a genuine dispute between them and the
Government on the question of title, remembering especially that the
property, admittedly, belonged originally to the family of Nawab
Habibuddin from whom the respondents claim to have purchased it.
The question as to whether the title to the property came to be vested
in the Government as a result of acquisition and the further question
whether the Nawab encroached upon that property thereafter and
perfected his title by adverse possession must be decided in a
properly constituted suit. May be, that the Government may succeed
in establishing its title to the property but, until that is done, the
respondents cannot be evicted summarily.”
34. It was further held therein in the above judgment S. Vasantha
and another v. Collector, Hyderabad District, Hyderabad and another
that:
“In the decision referred in District Collector Ranga Reddy
District, Hyderabad and others v. K. Narasinga Rao and others, the
Division Bench of this Court following the ratio of the Apex Court
referred in Government of A.P. v. T. Krishna Rao, held at Para 2 as
hereunder:
“We have good reasons to agree with the view taken by
the learned single Judge that the proceeding under Article
226 of the Constitution of India, is not suited for any
27
Dr.GRR,J
CCCA No.78 of 2002adjudication into the title of any person in a property. We have,
however, good reasons to differ with the view taken by the
learned single Judge that Section 6 of the Land Encroachment
Act is not available to the appellants for removal of the alleged
encroachments upon a land, which satisfies the requirements
under the A.P. Land Encroachment Act, 1905. Section 6 of the
Act states:
“(1) Any person unauthorizedly occupying any land for which
he is liable to pay assessment under Section 3 may be
summarily evicted by the Collector, Tahsildar or Deputy
Tahsildar, and any crop or other product raised on the land shall
be liable to forfeiture and any building or other construction
erected or anything deposited therein shall also, if not removed
by him after such written notice as the Collector, Tahsildar or
Deputy Tahsildar may deem reasonable, be liable to forfeiture.
Forfeitures under this section shall be adjudged by the
Collector, Tahsildar or Deputy Tahsildar and any property so
forfeited shall be disposed of as the Collector, Tahsildar or
Deputy Tahsildar may direct.”
This section does not speak either of the duration, short or long, of
encroachment and indicate that for the decision whether any person
should be summarily evicted rests with the Collector, Tahsildar or
Deputy Tahsildar, as the case may be and on the decision of the
question in respect of the nature of the property on which the
encroachment is alleged to have been committed. What may finally
be relevant in such a case in issue is whether some one is in
occupation of a property bonafide and whether such possession is
exercised by him openly. If such possession is exercised for an
appreciable length of time, one can prima facie accept the bonafide of
the claim, otherwise, the claim may not be deemed without there
being adjudication to be bona fide. In Government of Andhra Pradesh
v. T. Krishna Rao, the Supreme Court has said: “If there is a bonafide
dispute regarding the title of the Government to any property, the
Government cannot take a unilateral decision in its own favour that
the property belongs to it, and on the basis of such decision take
recourse to the summary remedy provided by Section 6 for evicting
the person who is in possession of the property under a bonafide
claim or title.” In this case, the Supreme Court has also indicated that
long possession would raise a genuine dispute between the claimant
and the Government on the question of title, but also pointed out: “It
is not the duration, short or long, of encroachment that is conclusive
of the question whether the summary remedy prescribed by the Act
can be put into operation for evicting a person. What is relevant for
the decision of that question is more the nature of the property on
which the encroachment is alleged to have been committed and the
consideration whether the claim of the occupant is bona fide. But
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CCCA No.78 of 2002
duration of occupation is relevant in the sense that a person who is in
occupation of a property openly for an appreciable length of time can
be taken, prima facie, to have a bona fide claim to the property
requiring an impartial adjudication according to the established
procedure of law.” What thus flows from the above, in our considered
view, is that primary concern will be to see whether there is a bona
fide claim of title and there are reasonable grounds to prima facie
hold that the title to the property is in dispute and as such that a
primary (sic. summary) procedure for eviction should be avoided.
Adverting to the facts of the case, what is seen is, a series of
transactions in respect of the property without, however, any dispute
as to the property being under the Court of Wards and an agreement
for sale, which has taken to the Civil Court for a specific performance
and allegedly decreed by the Court against the alleged vendor of the
petitioner-respondents. Constructions are said to have come up, but
there is no claim on behalf of the petitioner-respondents that they
complied with the requirements of the various provisions of the
Hyderabad Municipal Corporation Act. Unauthorised character of the
occupation of the land is not displaced by the materials which are
brought on the record of the instant proceeding and unauthorised
construction is writ large, because provisions of the Hyderabad
Municipal Corporation Act are not complied with. Relief, which this
Court at such a juncture can grant will be only in the nature of interim
injunction leaving the parties to seek their remedy before the
appropriate civil Court. Learned single Judge, on the facts as stated
above, has chosen to restrain the Government from evicting the
petitioner-respondents and /or demolishing constructions by resorting
to the summary procedure Under Section 6 of the Act and asked the
Government to seek adjudication of title and eviction in the Civil
Court. The order, thus, has the effect of making the appellants to
resign to the legal acts of the petitioner-respondents of coming up
with the constructions upon the land, for which the appellants have a
definite and bona fide claim. In our considered view, the best course,
on the facts and in the circumstances of the case, would be to leave
the dispute for adjudication by the Civil Court without there being
any such condition of injunction in favour of the petitioner-
respondents, as injunction, if any, can always be granted by the Civil
Court if the petitioner-respondents establish a prima facie case and
show balance of convenience in their favour.”
35. In B.N. Manga Devi v. State of Andhra Pradesh and others
(5 supra), this Court held that:
“The entries in Town Survey Land Records itself cannot be
considered as conclusive proof of title or lack of it. Entries in TSLR
29
Dr.GRR,J
CCCA No.78 of 2002cannot, therefore, be fountainhead for doubting right, title and interest
of any person in respect of any land.”
36. Thus, the entries in Town Survey and Land Records cannot be
considered as conclusive proof of title and the Government cannot claim
title basing only upon the entries in the Town Survey Land Records
Register and cannot seek eviction of the respondent-plaintiff by seeking a
summary procedure under Section 6 of the Land Encroachment Act, 1905.
The government cannot decide such question unilaterally in its favour and
evict any person summarily on the basis of such decisions. Duration of
occupation was also relevant in the sense that a person who is in
occupation for a property openly for a considerable length of time can be
prima facie considered as having a bonafide claim over the property.
37. The High Court of A.P. in G. Satyanarayana v.
Government of India and others (6 supra) also held that
“The petitioners have claimed ownership of the land in respect
of a common property based on a compromise decree passed in
O.S.No.1420/1983. The petitioners have traced their title through
their grandmother late Sultan Khatoon who has purchased an extent
of 23445 sq. mtrs. of land under registered sale deed 932 of 1336
Fasli (1926). In O.S.No.1420/1983, compromise decree dated 2-12-
1983, was obtained by the petitioners whereunder the property was
partitioned between them. The proceedings under the 1905 Act were
initiated only based on the entry in the TSLR describing the land as
G-Abadi. In the counter-affidavit, the respondents have not denied the
existence of registered sale deed under which the petitioners grand
mother has purchased the property as far back as the year 1926.
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CCCA No.78 of 2002
They have also not disputed the plea of the petitioners that for almost
90 years, their family has been in possession of the property. The long
standing uninterrupted possession of the petitioners family raises a
reasonable presumption that the property in question is a private
property and the same does not belong to the Government. Such a
presumption can be displaced by the Government only in a properly
constituted civil proceeding. On these undisputed facts of the case,
the ratio in the Judgment of the Supreme Court in Tummala Krishna
Rao (1-supra) squarely applies. The respondents cannot therefore
resort to summary proceedings of eviction under the provisions of the
1905 Act as there is a bona fide dispute relating to ownership of the
land. Following the dicta laid down in Tummala Krishna Rao (1-
supra) and the finding rendered by this Court on Point No.4, the only
option left with the respondents is to file a civil suit. The impugned
proceedings are therefore liable to be quashed with liberty to the
respondents to approach the competent Civil Court.
W.P.No.27589/2013: From the uncontroverted facts recorded in the
earlier part of the Judgment, it is evident that the only ground on
which eviction proceedings under the 1905 Act have been issued is
that the land is recorded as G-Abadi in the TSLR. The respondents
have not denied the genesis of the petitioners title. There are as many
as four registered sale transactions commencing from 17-6-1959. The
property was also the subject matter of O.S.No.555/1985 wherein a
decree was passed on 26-9-1995 in favour of Satyamma and her
husband, the predecessors-in-title of the petitioners. The long
standing possession of the predecessors-in-title of the petitioners, at
least from the year 1959, is not disputed by the respondents. In view
of the finding on Point No.4, the respondents cannot initiate eviction
proceedings under the provisions of 1905 Act only based on the entry
in the TSLR describing the land as G-Abadi. The impugned
proceedings are liable to be quashed, however, with liberty to the
respondents to approach the competent Civil Court for declaration of
title of the Government over the land in question.”
38. The longstanding uninterrupted possession of the respondent-
plaintiff raises reasonable presumption that the property does not belong to
the government. Such a presumption can be displaced by the Government
only by adducing proper evidence in proof of its title. The appellants
cannot resort to the summary proceedings of eviction under the provisions
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CCCA No.78 of 2002
of 1905 Act. As such, the notice issued by the defendant Nos.1 and 2 to
the plaintiff vide File No.C-2601/1997, dated 07.07.1997 can be declared
as null and void. In view of the longstanding possession of the plaintiff
established by him through the documents marked under Exs.A1, A3 and
A4, the registered sale deeds as well as Municipal Tax receipts filed by
him marked under Exs.A5 to A10, the plaintiff is entitled to be granted
consequential perpetual injunction against the appellants-defendants.
39. With regard to the contention of the defendant that notice
under Section 80 of CPC was not issued to him before filing the suit, the
trial court observed that at the time of filing of the suit, the plaintiff also
filed a separate petition to dispense with the issuance of notice under
Section 80 of CPC and that the said petition was allowed and the plaintiff
was permitted to file the suit dispensing with issuance of notice under
Section 80 of CPC in view of the urgency pleaded by the plaintiff.
40. In view of the leave granted by the court without service of
notice under Section 80 of CPC, it was held that the suit is maintainable.
This Court does not find any illegality in the order of the trial court in
making the said observation. The judgment of the High Court of A.P. in
State of A.P. and others v. Singamsetty Yellananda (3 supra) also
confirms the same.
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CCCA No.78 of 2002
41. As such, point No.1 is answered accordingly in favour of the
respondent-plaintiff as against the appellants-defendants.
42. POINT No.2:
In view of the ratio of the judgments as extracted above and the
evidence of the witnesses and the documents which were showing the
longstanding possession of the plaintiff, the trial court had not committed
any error in decreeing the suit in favour of the plaintiff.
43. POINT No.3:
In the result, the appeal is dismissed confirming the judgment and
decree dated 10.04.2003 passed in O.S .No.1828 of 1997 by the learned II
Senior Civil Judge, City Civil Court, Hyderabad. No costs.
Miscellaneous Applications pending, if any, shall stand closed.
____________________
Dr. G.RADHA RANI, J
Date:09.06.2025
KTL