- (1.) THIS appeal is from a judgment dated 3rd April, 2002 by the High Court of Andhra Pradesh in a First Appeal. The material facts of the case, as appear from the records, are discussed hereinbelow.
(2.) AS asserted by the appellants, the suit land (Original Suit No. 164/76) falls under Survey No. 129/64. The respondents Nos.1, 2 and 3 were the original plaintiffs and according to them the suit land falls in Survey No. 129/55. The appellants herein are the legal heirs of original defendant No.2. The respondents 4/1 and 4/2 are the legal heirs of original defendant No. 1. Respondents 1, 2 and 3, as noted above, are the original plaintiffs. The case of the appellants is that the suit land belonged to one Dr. Zafar Hussain who transferred the same to one Sajid Hassan by a registered sale deed dated 20.1.1950. Thereupon, Sajid Hassan sold on or about 22.7.1963 the said land to Razia Begum, the predecessor-in-title of original defendant No. 1 by a registered sale deed for a total consideration of Rs.6000/-. Razia Begum remained in uninterrupted and peaceful possession of the said property from the date of her purchase. On or about 11.08.1963 Razia Begum obtained house construction loan from the Housing Cooperative Society, Mellapelly Limited and thereafter permission for construction was accorded on or about 18.02.1964 by the Hyderabad Municipal Corporation. The original defendant no.1 was in possession and enjoyment of the property till it was transferred on 20.6.1973 to one Lateef Hassan Burney, the predecessor-in-title of the appellants (original defendant No.2) as the nominee of the defendant No.1 in terms of the rules of the Housing Society. Then, on 4.12.1975, the original suit (O.S.164 of 1976), out of which this proceeding arises, was instituted in the Court of the 4th Additional Judge, City Civil Court, Hyderabad by the plaintiffs against Razia Begum alleging that the plaintiffs' father Saiyed Shah Abdul Khader was the Pattedar and Landlord of land bearing Survey No.129/55 (old), New Survey No.165 admeasuring 3 Acres and 26 guntas situated at Kachcha Tattikhana Sivar village Shaikpet and the then Taluk West, now Hyderabad Urban Taluk. It was also alleged that the patta was transferred in the name of the father of the plaintiffs by Sarafe-e-Khas Mubarak on 25th Azur in 1340 Fasli and the father of the plaintiffs through a registered document Tamleeknama (Settlement Deed) on 10th Aban, in 1347 Fasli which corresponds roughly to the year 1930 transferred the land to his wife Fatima Sogra, the mother of the plaintiffs. It was further alleged that after the aforesaid transfer the said Fatima Sogra, the plaintiffs' mother, remained in continuous and exclusive possession of the same till her death on 24.07.1973. On her death the respondents No.4/1 and 4/ 2 illegally occupied the suit land. In the said suit Razia Begum, the predecessor- in-title of respondent No.4/1 and 4/2, filed her written statement pleading therein that she is a bone fide purchaser of the suit land by Rs.6000/- after issuing a public notice in the Daily Siyasat on 19.06.1963. No objections were received from anybody and the sale deed was finally registered with the plan on 22.07.1963. It was also pleaded in the written statement that she obtained the necessary permission for construction and obtained a loan from Housing Cooperative Society and had completed the construction till the basement level. No objection was raised by the plaintiffs with the construction and she has perfected her title against the plaintiffs by way of adverse possession. In her written statement she also pleaded that she transferred on 20.6.1973 the property in favour of Lateef Hassan Burney, predecessor-in-title of the appellants. On the filing of the written statement, Lateef Hassan Burney was impleaded as defendant no.2 by an order of the Court dated 4.11.1982. Thereupon, on 18.12.1982, the original plaintiffs filed an amended plaint impleading Lateef Hassan Burney. Thereafter, another suit was instituted on 15.1.1983 by the plaintiffs against one Prahlad Singh, who had illegally occupied a portion of their property falling under Survey No. 129/55 (old). It may be noted that in the subsequent suit Prahlad Singh did not dispute the fact that the suit property is part of Survey No.129/55 (old). Thereupon, in O.S. No.164 of 1976, the defendant No.2, predecessor-in-title of the appellants, filed his separate written statement stating therein that the property belongs to Razia Begum, the original defendant No.1, before it was transferred in his name and the Razia Begum had perfected her title by adverse possession against plaintiffs. Then, the witnesses were examined by the Trial Court. Then by an order dated 19.12.1983 the Trial Court appointed a Court Commissioner. The Court Commissioner with the help of a surveyor submitted a report on 25.4.1984.
(3.) ULTIMATELY, by judgment dated 19.9.1985, the suit was dismissed and being aggrieved by the same an appeal was filed before the High Court in the year 1986. The High Court again by an order dated 5.2.2002 appointed an Advocate Commissioner to determine the location of the property which, according to the original plaintiffs-respondent, was falling in Survey No. 129/ 55(old). However, the contention of the appellants is that the property was falling in Survey No. 129/64. The Advocate-Commissioner appointed by the High Court submitted a report along with a Map in which it has been shown that the suit property falls under Survey No. 129/55(old) but that finding has been reached on the basis of the judgment and order in O.S.No. 331/1980 which was between the original plaintiffs and one Sardar Prahlad Singh. In that suit (Suit No. 331/1980) no issue relating to the fact that the property of Prahlad Singh was in any other survey number than Survey No. 129/55(Old) was raised.;