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Mohamed TaqiuddIn Vs. Gulam Mohamed Abdul Hasan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 354/2 of 1954-55
Judge
Reported inAIR1960AP340
ActsContract Act, 1872 - Sections 196
AppellantMohamed Taqiuddin
RespondentGulam Mohamed Abdul Hasan and anr.
Appellant AdvocateJ.V. Suryanarayana, Adv.
Respondent AdvocateD.M. Deshmukh and ;Syed Ahmed Ali Khan, Advs.
DispositionAppeal allowed
Excerpt:
.....when there is express mention of certain things, then anything not mentioned is excluded. - d-2) the lower appellate court has clearly given a finding that it has not been proved. 4. 23. before discussing the effect of these two documents, we would like to mention certain facts. the notification states that the rights and duties of the jubilee hill municipality which when enlarged, were to be like the rights and duties of other municipalities generally. 1, 2, 3, 5 and 6 clearly go to prove that the suit property was given to the appellant with specific demarcations. 28. thus after giving careful consideration to the entire evidence on record, we are of the opinion that the title and possession of the appellant to the suit property is well proved......the suit land measuring one acre and 37 1/2 guntas bearing plot no. 129/ d-45 from jubilee hill municipality in 1350 f. and he was in possession of the said land ever since the purchase.4. the appellant in the rejoinder denied the allegations of the first respondent. on the averments in the pleadings, the trial court framed 5 issues. on behalf of the appellant 10 witnesses were examined and 20 documents were filed. respondent no. 1 examined 4 witnesses and filed 15 documents. on the evidence produced, the learned subordinate judge held that the plaintiff was the owner and in possession of the suit property. it also held that the title and possession of the 2nd defendant was not proved. in the result the learned subordinate judge decreed the suit of the appellant in toto.5......
Judgment:

Manohar Pershad, J.

1. This second appeal on behalf of the plaintiff-appellant is directed against the judgment and decree passed by the learned District and Sessions Judge, Hyderabad allowing the appeal of the second defendant and dismissing the suit of the plaintiff which was decreed by the trial Court.

2. This second appeal first came up before our learned brother M. A. Ansari, J. who having regard to the importance of the question involved in this second appeal, has referred it to a Bench which is Before us now.

3. The appellant Mohd. Taqiuddin, as the plaintiff instituted a suit in the Court of the Subordinate Judge, Hyderabad District for a declaration of his ownership, and for a permanent injunction against the Hyderabad Municipal Corporation (defendant No. 1) and Gulam Mohd. Abdul Hasan (defendant No. 2) in respect of the plot of land bearing No. 129/D-45 to the extent of one acre and 37 1/2 guntas out of a total area of the plot measuring 3 acres 21 guntas, situated on Jubilee Hill in the village of Sheikpet, West Taluk, Hyderabad District.

The appellant's case was that he was the owner of the whole plot and was in possession of it since 1356 F. and that the first respondent herein (the second defendant in the trial court) in collaboration with the second respondent (defendant No. 1) the Hyderabad Municipal Corporation, was encroaching upon his right and interfering in his possession to the extent of 1 acre and 37 1/2 guntas without any title.

The Municipal Corporation filed a written statement to the effect that whatever action was taken by the Municipal Corporation, it was done 'bona fide' and in accordance with the record. 1st respondent (defendant No. 2 in the trial court) stated that he had purchased the suit land measuring one acre and 37 1/2 guntas bearing plot No. 129/ D-45 from Jubilee Hill Municipality in 1350 F. and he was in possession of the said land ever since the purchase.

4. The appellant in the rejoinder denied the allegations of the first respondent. On the averments in the pleadings, the trial court framed 5 issues. On behalf of the appellant 10 witnesses were examined and 20 documents were filed. Respondent No. 1 examined 4 witnesses and filed 15 documents. On the evidence produced, the learned Subordinate Judge held that the plaintiff was the owner and in possession of the suit property. It also held that the title and possession of the 2nd defendant was not proved. In the result the learned Subordinate Judge decreed the suit of the appellant in toto.

5. Against the judgment and decree of the trial court, the first respondent (2nd defendant) went in appeal to the District and Sessions Court, Hyderabad District, from where his appeal has been allowed and the suit of the appellant had been dismissed. Hence this appeal before us as stated earlier.

6. In this appeal the only point to be considered is who is the real owner of the disputed plot. The appellant has stated that he purchased it in 13,56 F. and the contention of the first respondent is that he had purchased it in 1350 F. In order to prove the title and possession, the appellant relies on the oral and documentary evidence.

7. to 16. (After discussing the oral and documentary evidence on record his Lordship proceeded). The documentary evidence read along with the oral evidence amply proves that the appellant had purchased the disputed plot of land in 1356F. from the Jubilee Hill Municipality and got possession of the same.

17. As against this, the second defendant relies on the oral testimony of his witnesses and the documentary evidence. The first document relied upon is Ex. D-1, the letter from Nawab Ahsan Yar Jung Bahadur, Executive Officer, addressed to the Secretary of the Hon'ble Minister Sarf-e-Khas dated 19th Amaradad 1350 F, stating that the plot 129/D-45 was thereby being given to the first respondent. This has been proved by P. W. 1. Ex. D-2 the next document is the plan alleged to have been annexed to Ex. D-1.

But it may be noted that at this stage that this plan does not bear any attestation or signature of any person. Ex. D-3 the third, document is a copy of the judgment by the Hon'ble Minister. Ex. D-4 another document is a letter from the Taluqdar to the Tahsildar stating that the plot 129/D-45 measuring one acre 371/2 guntas has been sold in favour of the first respondent and directed him for the mutation of the patta accordingly.

18. Ex. 13-5 another document is a letter from the Secretary, Jubilee Hill Municipality addressed to the Taluqdar, Atraf Balda. In this letter it is stated that the plots mentioned in the list annexed to the letter are being sold in favour of the per sons whose names are shown in the list against their plots, and directed the Tahsildar to grant patia in their names accordingly.

19. Ex. D-6 is the annexed list. Ex. D-7 is a letter from the Executive Officer, Nawab Ahsan Yar Jung Bahadur addressed to the 2nd defendant to the effect that out of Rs. 100/- after deducting Rs. 2/-, Rs. 98/- were being returned. The rest of the documents Exs. D-8 to D-15, it appears were filed late on 19-8-1952 and were not received in evidence by the trial Court.

20. This is all the documentary evidence that has been produced and relied upon by the first respondent. In support of the documentary evidence, the first respondent relies on the oral testimony of four witnesses including himself. The first respondent in his deposition has stated that he purchased the suit land in 1350F. and since then he has been in possession. The other three witnesses also deposed to the fact that the first respondent had purchased the suit property and has been in possession.

The trial court has not believed the evidence of the first respondent and has held that his evidence is not sufficient either to prove that he purchased the suit land or that he has been in possession. The appellate court on the evidence has also held that the evidence produced is not sufficient to prove that the 1st respondent was in possession or that he ever came into possession, But on the question of title, the appellate Court has held relying on Exs. P-5 and 6, that the first respondent purchased the suit property in 1350F. It has also held that excepting for these two documents, there it no satisfactory evidence on record on behalf of the first respondent to show that he had derived the title to the suit land and that was a valid one.

21. So, according to the lower appellate court the only evidence that goes to prove the title of the first respondent is Exs. D-5 and 6. As regards the plan (Ex. D-2) the lower appellate court has clearly given a finding that it has not been proved. Now we have, to see whether Exs. D-5 and D-6 do really go to prove the title of the first respondent.

22. As stated earlier Ex. D-5 is a letter addressed by the Secretary, Jubilee Hill Municipality to the Taluqdar of the Sarf-e-Khas. In this letter it is stated that the sale is being effected by the Municipality. Ex. D-6 is the list attached to Ex. D-5 and in that list the name of the first respondent is shown at serial No. 4.

23. Before discussing the effect of these two documents, we would like to mention certain facts. It is not disputed that in the year 1350F, the Municipality from whom the first respondent alleges to have purchased the land, was governed by regulation sanctioned by a Firman. It is a short document and consists of 7 paragraphs. According to the 4th paragraph, the Jubilee Hill Municipality was to comprise of 3 bodies; the first to be the general body the second the executive body and the third body to be an executive officer.

The general body, according to the 7th paragraph, was to appoint the executive officer and the third of the same Regulation had provided that the officer would discharge all the administrative work with the sanction of the executive body. It follows therefore that any contract by the executive officer would not be binding on the Municipality unless the executive body had sanctioned the agreement.

24. In the instant case, Ex. D-5 is relied upon by the first respondent as evidencing sale by Nawab Ahsan Yar Jung Bahadur as Executive Officer. In this document it is no doubt stated that sale is being effected but it is not clear whether it is through this document or some other. Even assuming as is argued that sale is effected through this document it would not help the respondent unless it is shown that Nawab Ahsan Yar Jung was competent to transfer. Nawab Ahsan Yar Jung was an executive officer appointed by Firman under the regulation and his contracts were subject to the sanction of the executive body.

It is common ground that an executive body as contemplated by the regulation came into existence only in 1352F. and not before. This would be about the time of another notification which was published on Ardibehist 3, 1352F. The notification states that the rights and duties of the Jubilee Hill Municipality which when enlarged, were to be like the rights and duties of other Municipalities generally. It is clear therefore that after Ardi-behist 1352F. there were changes in the constitution of the Institution known as Jubilee Hill Municipality. According to the regulations, contracts entered into by the Executive Officer had to be sanctioned by the executive body. There is nothing on record to show that any such sanction was given to the sale to the first respondent by the body.

25. It is further urged by the learned counsel for the first respondent that even if there is no such sanction still Exs. D-5 and D-6 constitute sufficient evidence of ratification by the competent authority to convey the property owned by the Municipality. In other words the 1st respondent's title rests on the ratification. It may be noted that the body whose consent was required, was not in existence then. Ratification, in our opinion, in order to be effective, can only be by an authority that is in existence on the day the transaction was entered into and it should also be competent to ratify.

The authority capable of ratification when the grant was made in favour of the respondent would be the executive part of the general body of the Jubilee Hill Municipality, but it did not exist then. The ratification relied upon is by another authority that had come into existence after the Notification of Ardihchist 1352F. The result would be that the ratification in 1353F. by the authority would not be by one who was in existence in 1350F. Therefore such a ratification would, in our opinion, be not valid in law.

26. It is further contended on behalf of the first respondent that the Municipality which is admittedly the owner of the suit land, not only admits that the suit property was sold to the 1st respondent, but that it was a valid transfer, and there is no reason why this Court should not act on the admission of the Municipality. This argument is equally devoid of force. The Jubilee Hill Municipality transferred the suit property in favour of the appellant in 1356 F. It is alleged that the same Municipality transferred the suit property in favour of the first respondent in 1350 F.

When there are two transfers by the Municipality and if the Municipality admits one transfer, merely on the admission of the Municipality, the title of the 1st respondent cannot be accepted, against the appellant unless the first respondent proves that the transfer in his favour was a valid one which in our opinion has not been proved.

27. Yet another argument was advanced on behalf of the first respondent that the transfer in favour of the appellant was not of a specific portion of the land. There is no force in this argument either. Ex. P-1 the application of the appellant read along with the resolution Ex. P-2 and the evidence of P.Ws. 1, 2, 3, 5 and 6 clearly go to prove that the suit property was given to the appellant with specific demarcations.

28. Thus after giving careful consideration to the entire evidence on record, we are of the Opinion that the title and possession of the appellant to the suit property is well proved. The transfer in favour of the first respondent is not valid and does not affect the rights of the appellant.

29. The appellant's suit is for declaration of his right and injunction. Both the courts on the evidence have held the possession of the appellant as proved. We have also held that the appellant's possession is proved. As regards the title, the trial court had held that the title of the appellant is proved. We agree with the view of the trial court that the appellant's title is proved. When title and possession of the appellant is proved, the first respondent who has no right to the suit property cannot interfere with the possession of the appellant. The appellant, in our opinion, would be entitled to an injunction and declaration against respondent No. 1.

30. Appeal is allowed, judgment and decree of the lower appellate court are set aside and that of the trial court restored. The appellant would he entitled to costs against respondent No. 1 throughout.


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