- (1.) This appeal has been preferred against the impugned judgment and order dated 22.3.2004, passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in City Civil Court Appeal No. 72 of 1989, by way of which the Civil Suit filed by the respondent against the appellants, claiming title over the suit land in dispute, has been upheld.
(2.) The facts and circumstances giving rise to this appeal are: A. One Shri M.A. Samad, Assistant Engineer, City Improvement Board, Hyderabad, alongwith his associate, converted the land in dispute measuring 3.525 acres i.e. 17061 sq. yards, in favour of the Forest Department in 1920. B. The suit land was given on lease on 21.5.1943 to M/s. A. Allauddin & Sons for a fixed time period, incorporating the terms and conditions, that the lessee would not be entitled to extend the existing building in any way, or to erect any structure on the land leased. The lessee was also prohibited from transferring the suit land by any means. C. The said M/s. A. Allauddin & Sons, a proprietory concern, sent a letter dated 29.9.1945 in response to the eviction notice, informing the appellants that it was not possible for it to remove the factory established on the suit land, and thus, the said lessee asked the appellants to put up the said property for rent. The said firm, then sent a letter dated 1.5.1951, offering rent of Rs.600/- per annum. D. The appellants vide letter dated 20.12.1954, informed M/s. A. Allauddin & Sons to vacate the site within a period of one month, or else be evicted in accordance with law, and in that case it would also be liable to pay damages. In spite of receiving such a letter, the said lessee/tenant remained in possession of the suit premises, and continued to pay rent, as is evident from the letter dated 15.8.1956. The appellants, however, vide letter dated 21.2.1958, asked the said lessee/tenant M/s. A. Allauddin & Sons, yet again, to vacate the suit land. E. Instead of vacating the suit land, M/s. A. Allauddin & Sons executed a lease deed dated 24.2.1958, and got it registered on 6.4.1958, in favour of Syed Jehangir Ahmed and others (Partners of the respondent firm, M/s Star Bone Mill and Fertiliser Co.), for a period of two years. During the subsistence of the said sub-lease, the partners of the firm M/s. A. Allauddin & Sons, executed a sale deed on 11.11.1959 in favour of the respondent, for a consideration of Rs.45,000/-. The said sale deed was also registered, and possession was handed over to the respondent. F. The respondent herein filed a petition in 1964 before the Minister for Agriculture & Forest, seeking permanent lease of the suit premises in his favour. On 26.4.1967, an order was passed by the Ministry of Agriculure & Forest in respect of recovery of arrears of rent as regards the said land. The respondent vide letter dated 7.5.1969, offered higher rent to the appellants for the suit land. G. On 22.5.1970, the respondent wrote a letter to the Chief Minister of Andhra Pradesh (Ex.B-39), stating that he had been cheated by M/s. A. Allauddin & Sons, as it had executed a sale deed in his favour, even though it had no title, and a very high rate of rent was fixed by the department, which should be reduced and till the matter is finally decided, a rent of Rs.569/- per month should be accepted. The said application/petition was rejected by the Assistant Secretary to the Government, Food & Agriculture Department, vide letter dated 18.12.1970. H. Aggrieved, the respondent filed Writ Petition No. 187 of 1971 wherein an interim order dated 12.1.1971 was passed, to the effect that the recovery of rent for the period prior to 26.4.1969 would be made at the rate of Rs.568/- per month instead of Rs.1279/- per month. Subsequent to 26.4.1969, rent would be recovered at the rate of Rs.1279/- per month. In case, arrears are not paid by the respondent, he would be vacated from the suit land. I. In view of the interim order of the High Court, the appellants issued a demand notice for a sum of Rs.45,484.62 paise. However, vide order dated 19.10.1971, the High Court directed the respondent to deposit a sum of Rs.30,000/-, in eight monthly installments. The said writ petition was disposed of vide order dated 18.2.1972, asking the respondent to approach the appropriate forum to establish his rights over the suit land, or to make a representation to the State Government for this purpose. J. The appellants served notice dated 8.4.1974, upon the respondent under Section 7 of the Land Encroachment Act, and the respondent submitted a reply to the said show cause notice on 24.6.1974. The matter was adjudicated and decided on 21.8.1974, under Section 6 of the Land Encroachment Act, and the respondent was directed to vacate the suit land. K. The respondent filed Writ Petition No. 5222 of 1974 before the High Court, however, the same was dismissed, after giving liberty to the respondent to approach the civil court. Thus, the respondent filed Original Suit No. 582 of 1974 for declaration of title and for injunction, restraining the appellants from evicting the said respondent/plaintiff from the property in dispute. The appellants contested the suit by filing a written statement, and on the basis of the pleadings therein, a large number of issues were framed, including whether M/s. A. Allauddin & Sons was actually the owner and possessor of the suit land; and whether it could transfer the suit land to the respondent/plaintiff, vide registered sale deed dated 11.11.1959. L. The City Civil Court, vide judgment and decree dated 25.4.1989 decreed the suit, holding that the Government was not the owner of the suit land, and that the respondent/plaintiff had a better title over it. Thus, he was entitled for declaration of title, and injunction as sought by him. M. Aggrieved, the appellants preferred City Civil Court Appeal No. 72 of 1989 before the High Court, challenging the said judgment and decree dated 25.4.1989, which was dismissed vide judgment and decree dated 22.3.2004, affirming the judgment and decree of the trial court. Hence, this appeal.
(3.) Shri Amarendra Sharan, learned senior counsel appearing on behalf of the appellants, has submitted that the courts below misdirected themselves and did not determine the issue as regards, whether the vendor of the respondent/plaintiff had any title over the suit property. The same is necessary to determine the validity of the sale deed in favour of the respondent/plaintiff. The issue before the trial court was not whether the Government was the owner of the said land or not. No such issue framed either. Moreover, such an issue could not be framed in view of the admission made by the respondent/plaintiff itself, as it had been paying rent regularly to the Government, and the same was admitted by it, by way of filing an application before the Government stating, that M/s. A. Allauddin & Sons had cheated it by executing a sale deed in its favour, without any authority/title. It thus, requested the Government to execute a lease deed/rent deed in its favour. It was not its case, that in its earlier two writ petitions filed by it, it had acquired title over the land validly, or that M/s. A. Allauddin & Sons etc., had any title over the said suit land. The lease deed executed by the Government in favour of M/s. A. Allauddin & Sons, dated 21.5.1943 must be considered in light of the provisions of Section 90 of the Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'), and not the sale deed dated 11.11.1959, as the suit was filed in 1974, just after a period of 15 years of sale, and not 30 years. The courts below have erred in applying the provisions of Section 90 of the Evidence Act. The findings of fact recorded by the courts below are perverse, being based on no evidence and have been recorded by a misapplication of the law. Thus, the appeal deserves to be allowed.;