Remanded

M/s.Mythrinagar Welfare Association v. Pannalal, S/o.Ram Lal, Aged 57 Years, Business

Telangana HC17 Aug 2012SA/1071/2011

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction, the High Court set aside judgments of lower courts that dismissed and then allowed the suit respectively. Finding evidence insufficient and title unproven, the Court remitted the matter to the Trial Court for fresh disposal after comprehensive evidence on public purpose land designation.

What did the court decide?

Appeal allowed; judgment of courts below set aside; matter remitted to Trial Court for disposal afresh after adducing further evidence; status quo maintained for six months.

M/s.Mythrinagar Welfare Association Vs Pannalal, S/o.Ram Lal… — Partition | Telangana HC (2012)

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HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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SECOND APPEAL NO. 1071 OF 2011

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JUDGMENT:

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The second defendant in O.S.No. 444 of 1999, on the file of Additional Junior Civil Judge, Ranga Reddy District at L.B.Nagar is the appellant herein.

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The suit was filed for permanent injunction contending that the suit schedule property was purchased by the plaintiff from one Jamula Hanumantha Rao, on 4.2.1989 through the GPA holder and since then the plaintiff has been in possession and enjoyment of the property. A room was raised in the said property and the men of the first defendant came to the property to demolish the room without any notice or intimation. The plaintiff therefore filed the suit for injunction against the first defendant. The first defendant claimed that the Grampanchayat, Chandanagar approved the layout plan for Sy.No. 224 in the year 1972 on an extent of

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4050 square yards, which was earmarked for public purpose i.e., park and school, in the year 1989 and all the villagers within the Grampanchayat merged in Serilingampally Municipality and therefore, the property vested in the Municipality. In 1998, the plot owners formed in an association, which is second defendant herein and made representations to take steps for regularization of layout. Accordingly, the defendant-Municipality forwarded the proposals to HUDA. The plaintiff obtained the status-quo order on the basis of false documents. The second defendant also claimed that since the property was earmarked for parks and public purposes, the plaintiff has no title or right to possess the property. On behalf of the plaintiff, PWs 1 to 5 were examined and marked Exs. A1 to A9. On behalf of defendants, DWs 1 and 3 were examined and marked Exs. B1 to B6.

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After considering the evidence on record, the Court below dismissed the suit. Aggrieved by the said judgment, an appeal viz., A.S. No. 99 of 2005 is preferred to the III Additional

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District Judge, who allowed the appeal and granted decree for injunction. Aggrieved by the said judgment, the present Second Appeal is filed by the second defendant. The following substantial questions of law arises for consideration:

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“(1) Whether the Lower Appellate Court is right in setting aside the judgment of the Lower Court when the plaintiff has failed to prove the title to the property?

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(2) Whether the possession claimed by the plaintiff is real and as to whether inferences drawn by the First Appellate Court and the law applied by the First Appellate Court are legal?”

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There is no dispute about the fact that the suit was filed for injunction and before claim was made, the plaintiff has to prove the right to possession. In this case, the plaintiff claims that he has purchased the property from one J. Hanumantha Rao and the title deeds were not filed before the Trial Court and during the pendency of the appeal, PW-4 was recalled and Ex. A1 to A4 were marked which are not admissible documents to convey title to the

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plaintiff and therefore, they could not be taken into consideration.

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The learned counsel appearing for the appellant has taken pains to elaborate the question of law about the possession, forgetting about the fact that for the vacant land the possession is always with the owner and there is no evidence as to whether the constructions made by the plaintiff are with the permission of Panchayat or Municipality. In fact, the layout is said to have been filed as Ex. B-3 and as per Ex. A4 letter produced by the appellant, the layout was said to have been cancelled in 1983 after it was created in 1981. Therefore, the Appellate Court took the view that the layout of the year 1972 relied on by the defendant is not correct. The approach of the Lower Appellate Court is totally incorrect. The question before the Court is whether the suit scheduled property is earmarked for public purpose or any of the layouts pending or passed by the competent authorities. If layouts are filed and even if they are approved for some time, it does not mean that the plaintiff will get title to the property.

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Though the appellate Court relied upon the evidence of PW-5, the Sarpanch, to the effect that Ex. B-3 layout was not approved and no single document has been filed before the Court to prove the same, the nature of the document relied on by the plaintiff without proving the title is only in the nature of ipse dixit and there is no proof of right to possession. Merely because a person occupies the property and on the principle of possession, real owner or the person to whom the property vested, cannot be proved by the Court. The decisions relied on by the First Appellate Court would not apply to the facts of this case. In order to decide the issue in this case, it is essential for this Court to decide as to the particulars of the layout, if any filed before the competent authority, discloses whether property was specified towards parks in public purpose. If such a thing is done in the layout then whoever may be the owner of the property, it cannot be amended. Therefore, it is for the Courts to ascertain title as to whether this plan is part of the layout; whether it was

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filed in 1972 or in 1981 as approved and then to decide as to whether the father of the plaintiff has got right to alienate the property.

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Therefore, with the above circumstances, the evidence adduced on both sides is not sufficient and consequently the judgments of the Courts below are set aside and the matter is remitted back to the Trial Court for disposal afresh, after giving an opportunity to both the parties to adduce further evidence and documentary evidence to show whether the schedule property is a land set out for public purpose or parks. On such evidence, the Courts below shall decide the issues.

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Accordingly, points are answered and appeal is allowed and the matter is remitted to Trial Court. The Trial Court is directed to dispose of the suit within six months. Statusquo existing as on today shall be maintained till then.

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N.R.L. NAGESWARA RAO,

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DATE: 17.08.2012 KA

M/s.Mythrinagar Welfare Association v. Pannalal, S/o.Ram Lal, Aged 57 Years, Business

Case brief

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What did the court decide?

M/s.Mythrinagar Welfare Association v. Pannalal, S/o.Ram Lal, Aged 57 Years, Business

Case brief

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What did the court decide?

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