TMI Blog1972 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... on, on the west by 'Bakar Mandi', on the north by cement road, graveyard and huts belonging to the plaintiff and on the south by land, huts and graveyards belonging to the plaintiff was the ancestral property of the plaintiff and was owned by him having been purchased by his ancestors. In the 1346 Fasli i.e. 1936 A.D. the Sarfe-Khas Mubarak which was the Department in-charge of the personal estate of the Nizam of Hyderabad made efforts to acquire the possession of the Bazar claiming title over it and actually took possession of the same. Under the terms of certain agreements between the Surfe-Khas and the Municipal Corporation all the Bazaars in the possession of Sarfe-Khas were entrusted to the Corporation on the condition that it should manage them and pay a specified amount to the Sarfe-Khas. The right to recover the tax was transferred from the Bazaarath Department of Surfe-Khas to the Municipal Corporation but the property remained in the possession of the said Department of the Sarfe-Khas. The plaintiff laid claim with the Surfe-Khas to the Bazaar and after full inquiry the title was admitted by the Surfe-Khas Department over the Bazaar and other adjacent property whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned that in 1323 Fasli the Government had decided that the land situate on the bank of the river Musi extending from Muslim Jang Bridge to Old Bridge should not be used for residential purposes but should be used only for public as playgrounds and park. The City Improvement Board had, therefore, acquired the land and the house from those who possessed them after payment of compensation. The defendant denied the right of the plaintiff to maintain the suit as no notice had been issued under Section 447 of the Hyderabad Municipal Corporation Act 1950, hereinafter called the 'Corporation Act'. 5. On the pleadings of the parties the following six issues were framed : 1. Is the plaintiff the owner and in possession of the suit land ? 2. Has the Municipal Corporation been in possession of the suit land for over twelve years ? 3. Is the plaintiff not entitled to sue on the ground that notice as provided by the Hyderabad Municipal Corporation Act was not issued ? 4. What relief is the plaintiff entitled to ? 5. But on the representation of the defendant the following issues were added on 10-4-56 by the then Additional Chief Judge, Shri K. Umapathy Rao : 6. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i river by which the boundaries underwent drastic changes. It was pointed out by the trial court that the plan which was mentioned in the sale deed as also the mortgage deed had not been produced by the plaintiff to show how much area was covered by the sale deed and to enable demarcation of the boundaries. In the judgments of the Sarfe-Khas Department there was a mention of the aforesaid plan and obviously it had been produced before the Sarfe-Khas authorities. Indeed by Ext. P-3 which was the judgment of Mohtamim Sarfe-Khas dated 21-12-1358 Hijri it was directed that the land should be handed over to the plaintiff according to the sale deed of 1889 A.D. the plan attached to it. The case of the defendant Corporation apparently was that Dhansingh owned the plot measuring 1250 Sq. Yds. only for which compensation had been assessed and paid to him when the same had been acquired. Dhansingh had filed an objection petition in the year 1914 Ext. D-10 saying that a plot of open land bearing No. 5945/D situate at Karwan Aspan and adjacent to the slaughter house in the prohibited area had been acquired. He was enclosing the plan for compensation being awarded. The only order on the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the above evidence the defendant maintained that the sole property which had been purchased by Dhansingh by virtue of the sale deed Ext. P-12 had been acquired for which compensation had been paid to him and the present land comprising the Bazaar had nothing to do whatsoever with the land which was the subject matter of sale in favour of Dhan Singh in 1889 A.D. 8. The trial court did not accept the above case set up by the defendant. It relied on several other documents to show that even after receiving compensation Dhansingh asserted his ownership over the suit property by collecting Tehbazari in 1338 Fasli. From the plan Ext. D-1 of the prohibited area it was established that there was some land for which compensation had not been paid by the City Improvement Board because in that plan some portion were shown with the remark that compensation had yet to be paid with regard to them. Thus from the record in the City Improvement Board and the Hyderabad Corporation pertaining to compensation it was clear Dhansingh was not paid compensation for the whole of the land purchased by him by means of the sale deed Ext.P 12. The trial court next referred to the Firman Ext. D-17 the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y advert only to one aspect pertaining to the right of collection of taxes relating to the Bazaar. The case of the plaintiff was that in view of certain agreements between the Sarfe-Khas and the Corporation the latter had been given the right of collection of taxes on payment of a stipulated amount. Although the Corporation had been summoned to produce those agreements but it failed to do so. Certain files were sought to be got produced but it was found that a number of letters there from were missing. The trial court drew an inference against the defendant Corporation for the non-production of the papers which had been summoned and held that the agreements alleged by the plaintiff between Sarfe-Khas and the defendant Corporation stood proved. The evidence relating to the auction of the Bazaar made by Sarfe-Khas was also considered and after referring to the various orders made by Sarfe-Khas Department directing release of the land including the Bazaar in favour of the plaintiff together with other evidence discussed by the trial court issues Nos. 1 2 were found in favour of the plaintiff and against the Defendant. Issue No. 3 was decided against the defendant and in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by both sides which was not considered by the High Court and the appeal was disposed of only on the three matters already mentioned. 12. We may dispose of the legal points. As regards the requirement of a notice under Section 447 of the Corporation Act that section provides that no suit shall be instituted against the Corporation, Commr, Municipal Officer or servant in respect of any act done in or purported to be done pursuance of execution or intended execution of the Act or in respect of any alleged neglect or default in the execution of the Act until the expiration of one month next after a notice had been served on the Corporation or Officer concerned in the manner indicated in the section. This is what the High Court said on the point : It cannot be gain said that the acts complained of by the plaintiff were acts done by the Corporation in pursuance of its powers and duties under the Act. Under Section 59 of the Act the Corporation is empowered to make provision for public parks, gardens play grounds and recreation grounds, while under Section 56 of the Act the Corporation is empowered to remove obstructions upon public places. The question whether a notice under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff's father Dhan Singh were set out. The plaintiff ought to have got produced the plan and the mortgage mentioned in the sale deed which would have established with greater certainty and clarify the extent of the area which was conveyed by that sale deed. The plan which the Municipal Corporation itself produced and to which reference has been made by the trial court showed that the eastern boundary of the Bazaar was similar as that given in the sale deed, namely, the Nala of the Musi River etc. A careful examination of that plan shows that the plot for which compensation had been paid to Dhan Singh for an area of 1250 Sq. yds. was far removed from the Bazaar and there were several other plots which intervened. It is somewhat difficult on the present state of the record to reconcile the case of the defendant Corporation that the entire area covered by the sale deed had been acquired for which compensation had been paid to Dhan Singh with the relative situation of the Bazaar and the plot measuring 1250 sq. yds. If a Commissioner had been appointed in regard to which the plaintiff ought to have taken appropriate steps in the trial court it would not have been difficult ..... X X X X Extracts X X X X X X X X Extracts X X X X
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