H.B. Datar, J.
1. The plaintiff is the appellant in the present second appeal. His suit was partly decreed by the trial judge. But in appeal before the appellate court, the appellate judge has allowed the appeal and dismissed the plaintiff's suit. This is now his second appeal brought up before this court.
2. The case of the plaintiff is that there has been an open plot of land measuring 22 yds x 19 yds. at Nagur village. Gulbarga, Taluka. It is his case that it is in his possession for more than 40 years and after obtaining permission for construction on the plot in the year 1349 F. from Tahsildar certain construction was put up by the plaintiff. It was further the case of the plaintiff that later his brother's son Shivalingappa has constructed a house on the northern side of the plot with permission of the plaintiff. But defendant 1 started proceeding with the 2nd defendant to auction the plot. In spite of the objection by the plaintiff, the plot was ultimately put up for auction and defendant 3 appears to have purchased the plot The sale in his favour appears to have been confirmed. The plaintiff therefore filed a suit for a declaration and also for permanent injunction.
3. It is unnecessary to consider the question whether the plaintiff is entitled to a decree for a declaration as the decree passed denying the plaintiff the declaration sought. was not challenged, with the result that it has become final. The only question which has to be determined was whether the plaintiff was entitled to a decree for a permanent injunction again the defendants, in the manner in which it has been ordered by the learned judge, in para 27 of his judgment.
4. The original 1st defendant did not contest the suit. Though defendant 2 State Government contested the suit, so far as the decree passed by the trial court against defendant 2 is concerned. it appears to be not seriously concerned, in the matter. It was only defendant 3 who challenged the decree passed by the trial court. The suit, as already stated, was resisted principally by defendants 2 and 3 and on a consideration of the entire material, the learned trial judge came to the conclusion that having regard to the provisions of Section 101 of the Hyderabad Land Revenue Act. 1317 F. the State Government had no competence after the lands had been occupied by the plaintiff and construction put up, to take any steps and therefore putting the property to auction and purchase by defendant 3 was not valid and was one without jurisdiction. The learned trial judge, there-lore granted a decree for injunction. The learned Appellate judge in appeal took the view that Section 101 was subject to Section 24 and therefore the plaintiff was not entitled to a decree for injunction.
5. The short question, therefore. is as to whether the interpretation placed by the learned appellate judge upon the provisions of Sections 24 and 101 of the Act is sound.
6. Section 24 of the Act is a general Section which provides that it shall be lawful for the Taluqdar or other officer appointed by the Government subject to rules sanctioned by Government and contained in Notification, to dispose of them in his descretion. but the rights of way or the other rights legally vesting in any person or the public shall subsist. This section merely provides that it shall be lawful for the taluqdar to dispose of them in his discretion. This includes all rights to road, lands, paths, bridges etc., which is mentioned in the earlier provisions. Section 101, on the other hand, reads as follows:--
'If after the commencement of this Act, any person, without the written permission of the officer, occupied any land situated in a village site which has not been set apart for agriculture, the Taluqdar may recover the compensation for occupancy rights of such land or fix a land revenue on the land or order both for recovery of compensation and levy of land revenue; and if it is proved that the land was held dishonestly or through mischief he may recover penalty to the extent of double the compensation for occupancy right'.
This section provides that if any person has occupied any land situated in a village site which has not been set apart for agricultural purpose, then the Taluqdar may recover compensation for the occupancy right of such land or fix a land revenue on the land. But this does not entitle the Taluqdar or other authority to evict a person. It is also provided that if it is proved that the land has been held dishonestly or by mischief, even then what can be recovered is the compensation amount. It has also been provided in the latter part of the section that if a building has been constructed on it and the Government purpose or the public benefit is thereby encroached upon if that building is not demolished and not more than one year has elapsed from the date of completion of construction, an order may be passed to demolish the same. It is clear that the provisions of Section 24 are subject to the provisions of Section 101. Under the provisions of Section 101 certain rights have been conferred upon the persons like the present plaintiff and those rights could not have been intended to be taken away by Section 24 of the Act. In that view of the matter, in view of the concurrent finding recorded by both the courts below that the plaintiff has been in possession of the property from 1939 and he has put up construction, it was clear that the learned appellate judge was in error in holding that having regard to the provisions of Section 24 the auction sale conducted was valid. In my view, the decision of the trial judge was sound and did not call for interference by the appellate judge.
7. In that view, this appeal isallowed the judgment and decree passedby the appellate judge are eet aside andthose of the trial court are restored. Inthe circumstances, the parties will beartheir own costs in all the three courts.