MVR,J
A.S.No.1701 of 1998
1
HON'BLE SRI JUSTICE M. VENKATA RAMANA
APPEAL SUIT No.1701 of 1998
JUDGMENT:
This is a regular first appeal filed under Section 96 CPC by the plaintiffs-appellants against the decree and judgment in O.S.No.22 of 1990 dated 29.04.1998 on the file of the Court of learned Senior Civil Judge, Nuzvid. The respondents are the defendants in the suit.
2. During pendency of this appeal, the first appellant died. His sole legal heir being the second appellant is on record. The 7th respondent died during pendency of the appeal. Respondents 10 and 11, who are his legal heirs, have been brought on record.
3. The relief sought by the appellants in the suit is to declare their right, title and interest to item No.1 of the plaint schedule properties and to grant a consequential permanent injunction restraining the respondents from interfering with their possession and enjoyment of the same and also declare their right, title and interest to item No.2 of the plaint schedule properties and for recovery of possession of the same from the respondents 1 to 4 after duly evicting them there from. These two properties are described in the plaint schedule as under:
"Item No.1: About Ac.11.74 cents (4.747 hectares) of dry land with mango garden with well grown fence on all four sides bearing R.S.No.287/3-A, 287/3-B, 287/3-C and 287/3-D, included in patta Nos.657, 480, 292 and 658 of Adavinekkalam village in Gannavaram Sub-Registry, Krishna District, with the following boundaries:
East : Donka South: Land of Parsa Rajaratnam now purchased by Korivi Koteswara Rao West: Vagu for some extent and land of Nanduru Veerabhadra Sarma for some extent.
MVR,J A.S.No.1701 of 1998 2 North: Land of Gera Yesamma now purchased by Kurakula Tirupataiah.
Item No.2: About Ac.1.00 cents (0.405 hectares) of dry land with tender mango plants therein bearing R.S.No.287/3E of Adavinekkalam village in Gannavaram Subregistry in Krishna District, with the following boundaries:
East : Donka South: Land of Gera Yesamma now under unauthorized occupation of the defendants 1 to 4. West: Land of Guduru Krishnarao. North: Land purchased by Korivi Koteswararao from Parsa Rajaratnam."
They shall be referred to hereinafter as 'the suit lands' for convenience.
4. The case of the appellants is that item No.1 of the suit lands was purchased of different extents under different sale deeds in between the years 1969 to 1974 by the first appellant in the name of his wife Smt.Sesha Ratnamma. Smt.Sesha Ratnamma passed away. During her lifetime, according to the appellants, the first appellant was managing these lands raising a mango garden therein. It is also their case that by the time of purchase of these extents, there were full of bushes with Palmyra trees, which the first appellant reclaimed and made it suitable to raise a mango garden. Thus, the appellants stated that in or about in the year 1973 in an extent of about Ac.10.00 cents and later in another extent of Ac.2.00 cents, the first appellant raised a mango garden and that entire extent of Ac.11.74 cents in Item No.1 of the suit lands is a single extent.
5. It is also the case of the appellants that item No.2 of the suit lands is further to the south of item No.1, which are separated by an extent of Ac.1.00 cents belonging to Sri Parsa Rajaratnam, who later MVR,J A.S.No.1701 of 1998 3 sold it away to the first respondent and that this item No.2 is to the immediate south of land in possession of the first respondent. It is also their case that further south of this item No.2, the 6th respondent has her land and to immediate north of item No.1, the 6th respondent had her land, which she had sold away to the 9th respondent showing more extent than what she had, giving incorrect boundaries. It is further contended that the first appellant purchased item No.2 in the name of his wife in R.S.No.287/3A from the rightful owners under a possessory agreement for sale dated 24.07.1973 and that they have been in possession and enjoyment of the same, since then.
6. The further case of the appellants is that the respondents 1 to 4 encroached upon item No.2 of the suit lands without any manner of right and illegally raised a mango garden about two years prior to the institution of the suit.
7. The appellants also referred to O.S.No.335 of 1974 filed by Smt.Sesha Ratnamma against others including the respondent No.6 on the file of the Court of learned District Munsif, Nuzvid, for permanent injunction with reference to the suit lands, that was dismissed. Appeal preferred against the decree and judgment therein in A.S.No.45 of 1984 on the file of the learned Subordinate Judge Court, Nuzvid was dismissed. Second Appeal in S.A.No.87 of 1987 presented against the decree and judgment therein on the file of this Court, when it was at Hyderabad, was also dismissed.
8. It is also the case of the appellants that on account of liberty given to them to establish their right and interest to the suit lands, they were constrained to institute the suit for the reliefs stated above.
MVR,J A.S.No.1701 of 1998 4
9. The 1st respondent opposing the suit claim, denying the entire version of the appellants mainly contended that Smt.Sesha Ratnamma also filed O.S.No.49 of 1985 against him and his son, viz, the 2nd defendant on the file of the Court of learned District Munsif, Nuzvid in respect of their lands and filing another suit against them in such an event, is improper. It is also the contention of the first respondent that he had purchased in all in an extent of Ac.3.45 cents under two registered sale deeds dated 24.05.1982 from Sri Persa Rajaratnam out of Ac.3.00 cents in Sy.No.287/E and under another sale deed dated 12.02.1986, Ac.2.45 cents from him, in the same survey number, which was preceded by an agreement for sale dated 24.05.1982 executed in favour of his maternal aunt Smt.Koneru Venkata Subbamma. Thus, the first respondent claimed that both these extents are contiguous plots, which are surrounded by a fence of Palmyra trees, where they have raised a mango garden being looked after by himself and his son, viz. the 2nd respondent. They further contended that they are not proper and necessary parties to the suit and thus, the suit being bad for mis-joinder.
10. The respondents 3 and 4 claimed that they were allotted 'D' form pattas in R.S.No.287/4 of Ac.2.13 cents and in R.S.No.287/5 of Ac.1.00 respectively, which they have been enjoying together raising a mango garden. Thus, they denied the case of the appellants that they ever encroached upon any extent in Sy.No.287/3E.
11. The 6th defendant is the main contestant in this case. While denying the entire claim of the appellants including possession and enjoyment of both the extents of the suit lands, she contended that she has Ac.10.50 cents comprised of Ac.6.00 cents in one plot located to the south of bund of Sri Anjaneya tank and another extent of Ac.4.00 cents, which is further south of the first plot separated by the lands of others.
MVR,J A.S.No.1701 of 1998 5 The 6th respondent further contended that her father filed O.S.No.134 of 1954 on the file of the Court of learned Subordinate Judge, Vijayawada, that was decreed and upon his death, she was added as a party to the above suit. She further contended that the decree and judgment in the above suit were confirmed in an appeal.
12. The 6th respondent contended referring to O.S.No.335 of 1974, A.S.No.45 of 1984 and S.A.No.87 of 1987 referred to above including the outcome therein and that in as much as the title claimed by the appellants to the suit lands is being questioned right from the year 1974, seeking declaratory relief in the year 1990 in the suit clearly made out that it is barred by limitation. Reference is also made by the 6th respondent that clear observations in the earlier round of litigation right from the trial Court to this Court were that the appellants were never in possession of the suit lands nor title. Thus, the 6th respondent contended that the relief of recovery of possession should have been sought and in the absence of it, the suit filed as such, is not maintainable.
13. The 9th respondent while denying the claim of the appellants contended that he had purchased Ac.4.50 cents of dry land in R.S.No.387/3A of Adavinekkalam village from the 6th respondent and that he had planted mango grafts in this land. On account of the disputes between the appellants and the 6th respondent, the 9th respondent contended that the appellants are attempting to grab his lands without any manner of right. He also questioned the nature of boundaries describing the suit lands in the plaint.
14. Thus, all the contesting respondents resisted the claim of the appellants.
MVR,J A.S.No.1701 of 1998 6
15. On the pleadings, the learned trial Judge settled the following issues for trial:
1. Whether the plaintiff is entitled to declaration of title of items 1 and 2 of plaint schedule properties?
2. Whether the plaintiff is entitled to recovery of possession of item No.2 of the plaint schedule property?
3. Whether the plaintiff is in possession of item No.1 of the plaint schedule property?
4. Whether the suit is barred by limitation?
5. Whether the suit is not maintainable?
6. To what relief?
16. At the trial, the first appellant examined himself as P.W.1 apart from two other witnesses, while relying on Ex.A1 to Ex.A22. The first respondent examined himself as D.W.1, the respondents 3 and 4 being D.W.2 and D.W.3 respectively and the 6th respondent examined herself as D.W.4. Ex.B1 to Ex.B4 were marked by the respondents 3 and 4 while the respondent No.6 relied on Ex.B5 to Ex.B16 in support of her contention, at the trial.
17. Basing on the pleadings, evidence and considering the contentions advanced on behalf of the parties, the learned trial Judge did not favour the appellants and dismissed the suit with costs payable to the respondents 3 to 8.
18. Sri M.V.Suresh, learned counsel for the appellants, Sri G.Vivekanand, learned counsel for the respondents 1, 2 and 9 and Sri P.Rajasekhar, learned counsel for the respondents 5 and 6 addressed arguments.
19. As seen from the judgment of the trial Court, a memo was filed on behalf of the appellants on 23.03.1998 withdrawing the claim against the respondents 3 and 4. However, the trial Court finding that it was MVR,J A.S.No.1701 of 1998 7 filed when the judgment was to be pronounced rejected it. This fact is also referred to in the operative portion of the judgment as well as in the decree of the trial Court.
20. After the suit was reserved for judgment, it appears that I.A.No.284 of 1998 was filed on behalf of the appellants to amend the relief in respect of item No.1 of the suit lands to one of possession, in the event the trial Court came to the conclusion that the appellants were not in their possession. It was seriously opposed on behalf of the respondents 5 to 8. Learned trial Judge dismissed the same by an order dated 29.04.1998 recording reasons therein particularly holding that filing such an application after 24 years and since the claim is barred by time, the proposed amendment is not tenable.
21. In this appeal, an attempt is made on behalf of the appellants to consider this amendment of the relief obviously in terms of Section 105 CPC. Amendment of the pleadings is governed by Order VI Rule 17 CPC. One of the prime requirements to consider a request for amendment of the pleadings is not only the nature of the amendment but also the due diligence on the part of the party seeking such amendment.
22. The basis for the appellants to seek relief of declaration is the liberty preserved by this Court in their favour while disposing of S.A.No.87 of 1987 in its judgment dated 25.02.1990. While holding that there was no material to support the claim of the appellant therein, viz. Smt.Sesha Ratnamma regarding possession and enjoyment of the suit land, when a request was made for remand of the matter, such an observation was recorded to the effect that dismissal of the second appeal would not preclude the appellant therein from establishing the claim to title to the suit land, if so advised.
MVR,J A.S.No.1701 of 1998 8
23. The suit was filed in the trial Court on 12.04.1990 and within two months from the date of disposal of this second appeal. It is further to be observed that right through, the defence of the contesting defendants in the suit was, as to frame of the suit and since declaratory relief was not sought regarding right, title and interest claimed by Smt.Sesha Ratnamma. Thus, a persistent claim continued all through and inspite of observations of all the courts in the earlier suit, the appellants choose to pursue the very same remedy of permanent injunction consequent to declaratory relief.
24. This conduct of the appellants is demonstrative of their nature and is certainly questionable. It is a reflection of want of due diligence on their part. When it is considered along with long delay in seeking such an amendment that too when the suit was reserved for judgment, it did not auger well. Therefore, while finding justification in dismissal of the above petition filed under Order VI Rule 17 CPC for amendment of the relief in the suit, at this stage also, there is no justification to permit the same.
25. For such purpose, particularly in given facts and circumstances of the case, the appellants cannot be permitted to invoke Section 105 CPC for this purpose nor can it be stated that the order of the trial Court has affected the decision in this case. Though a ground is referred to in the memorandum of appeal, in the circumstances and for the reasons stated above, the appellants cannot be permitted to canvass against the order of the trial Court now and that they are precluded from questioning the correctness of this order. Thus, the request of the appellants to reconsider the order of the trial Court in I.A.No.284 of 1998 dated 29.04.1998 in O.S.No.22 of 1990 is rejected.
MVR,J A.S.No.1701 of 1998 9
26. Now, the following points arise for determination:
1. Whether the appellants are entitled for the relief of declaration of their right, title and interest to both the items of the suit lands and for consequential reliefs?
2. Whether the suit claim is barred by time and if the findings of the learned trial Court in this respect are proper?
3. To what relief?
27. POINT No.1: The deceased first appellant is the father of second appellant. Smt.Sesha Rathnamma was the wife of the deceased first appellant and mother of the second appellant. The suit lands are in Adavinekkalam village of Krishna District. All the parties to this appeal except the 4th respondent belonged to the same village. The 4th respondent belonged to Savarigudem village, Gannavaram Mandal of Krishna District.
28. The respondents 7 and 8 are the sons of the 6th respondent. The 6th respondent worked as a teacher at Vijayawada for some time. The legal representatives of the 7th respondent, who died during pendency of the appeal, are also living in the same village. The 9th respondent is the purchaser of certain extent of land from the 6th respondent admittedly and this extent is the northern boundary of item No.1 of the suit lands according to the appellants. There is a dispute with reference to the extent in occupation of the 9th respondent of this land.
29. Adavinekkalam village was a part of the estate belonging to Zamindarini of Gannavaram viz, Smt.Raja Vellanki Lakshmi Narsayamma Rao Bahadur. Extents of about 200 acres and 26 acres covered by patta numbers 233 and 232 were granted for enjoyment to different villagers, by Zamindarini. Sri Talanati Marianna was the father of the 6th MVR,J A.S.No.1701 of 1998 10 respondent. Smt.Arogyamma was his second wife and was also the mother of the 6th respondent.
30. O.S.No.134 of 1954 and O.S.No.208 of 1954 were instituted by Sri Talanati Marianna and his wife Smt.Arogyamma on the file of the Court of learned Subordinate Judge, Vijayawada, where the principle relief sought was general partition of the lands. Ex.B5 is the certified copy of the judgment therein. The findings recorded in the above suit included that the claim set forth by the plaintiffs therein is true and in all, the parents of the 6th respondent could make out that they were entitled to Ac.84.00 cents of land at Adavinekkalam village. The findings were so recorded basing on the sale deeds, registration extracts of which were marked as Ex.A5, Ex.A6 both dated 11.11.1942, Ex.A8, Ex.A9 both dated 10.10.1953, in these suits. All these four sale deeds were exhibited in the course of trial in this case, on behalf of the 6th respondent being Ex.B11 and Ex.B13 to Ex.B15.
31. The case of the appellants is resting on purchase of different extents under the originals of Ex.A2 to Ex.A6, covering No.1 of the suit lands in an extent of Ac.11.74 cents. Item No.2 of the suit lands was purchased under Ex.A1 possessory agreement for sale as alleged, by Smt.Sesha Rathnamma from Smt.Santhoshamma and others on 24.07.1956. It is an extent of Ac.1.00 cents. In both these extents, according to the appellants, a mango garden is raised and is in existence, since the year 1973.
32. In respect of Item No.2 of the suit lands, there is no necessity to dilate further in as much as Ex.A1 agreement for sale did not create any right, title or interest to it in favour of Smt.Sesha Rathnamma. In terms of Section 54 of Transfer of Property Act, this situation is clear and MVR,J A.S.No.1701 of 1998 11 therefore by virtue of this alleged agreement for sale, there cannot be any valid transfer of right, title or interest in her favour in terms of Section 8 of Transfer of Property Act. Added to it, neither there is any documentary proof to establish the alleged possession under Ex.A1 since the year 1973 adduced by the appellants at the trial from the time of the alleged purchase of Ex.A1 in the year 1973 nor pleading in the plaint nor there is specific allegation of their dispossession by the respondents 1 to 4. A bald allegation that this item was occupied about two years prior to the institution of the suit by the respondents 1 to 4, is not sufficient nor is meeting the requirement of law.
33. Added to it, at the trial the first appellant as P.W.1 attributed that this item was occupied by the respondents 3 and 4 and thus the role of the respondents 1 and 2 was excluded by him though pleaded in the plaint of such an encroachment.
34. The respondents 1 to 4 specifically denied this claim of the appellants while contending that they have been in exclusive possession and enjoyment of their respective extents, who did not have anything to do with this item No.2 of the suit lands.
35. Specific version of the first respondent at the trial was that he purchased the entire extent of Ac.3.45 cents in Sy.No.287/3E from its erstwhile owner Sri Parsa Rajaratnam and this entire extent is separated by a fence of palmyrah trees, where he and his son, viz., the second respondent raised a mango garden. The first appellant as P.W.1 clearly admitted in cross-examination on behalf of the respondents 1 and 2 of the case so set up by them, of enjoying Ac.3.45 cents in Sy.No.285/3E and purchase of such extent from Sri Parsa Rajaratnam. The respondents 1 and 2 did not adduce any documentary evidence in MVR,J A.S.No.1701 of 1998 12 respect thereof. Nonetheless, in view of these admissions of the first appellant as P.W.1, their claim was established at the trial.
36. The respondents 3 and 4 also deposed of possession of Ac.3.13 cents in all, as D.W.2 and D.W.3 respectively by virtue of 'D' form pattas granted to them. To prove their possession and enjoyment of such extents in R.S.No.287/4 and 5 of Ac.2.13 cents and Ac.1.00 cents, they had produced Ex.B1 to Ex.B4 pattadar pass books and title deeds. However, these documents were issued during pendency of the trial (suit). The pattas claimed by the respondents 3 and 4 for these extents were not produced at the trial and even otherwise, they were apparently issued during pendency of the suit in or about in the year 1994 or 95. They too denied that they ever encroached upon item No.2 of the suit lands, as alleged by the appellants confining their claim to such an extent of Ac.3.13 cents. The 6th respondent denied that there is any poramboke land belonging to the Government in the extent claimed by her.
37. P.W.1 viz., the first appellant stated that the respondents 3 and 4 have been in possession of the Ac.3.13 cents under 'D' form pattas, where they have raised a mango garden. It is also his version that the respondents 3 and 4 are in possession of this land since 15 years. However, he claimed that they occupied Ac.1.00 cents belonging to Sri Koneti Surya Prakasa Rao, which he had purchased under the original of Ex.A6 dated 15.07.1974. It is neither the pleaded case of the appellants in the plaint nor proof was adduced at the trial in respect thereof.
38. The first appellant as P.W.1 also stated that he did not file any adangals in respect of possession and enjoyment attributed to Sri Surya Prakasa Rao of this Ac.1.00 cents and expressed his ignorance when MVR,J A.S.No.1701 of 1998 13 suggested that Sri Surya Prakasa Rao was not the pattadar of the land in R.S.No.287/3E. In fact, Ex.A13 the extract of 10(1) account makes out that during fasli 1380 to 1389 and 1390 (1971 to 1980) under patta No.294 Sri Surya Prakasa Rao had certain extent in Sy.No.287/3A. When item No.2 of the suit lands is in Sy.No.287/3E, Ex.A13 thus gives a different account of holding of Sri Surya Prakasa Rao in Sy.No.287/3A. Thus, this is another reason to hold that the version of the first appellant as P.W.1 in this respect is incorrect and false.
39. Therefore, for all the reasons stated above in respect of item No.2 of the suit lands, the appellants cannot seek relief of declaration nor their claim of alleged possession and enjoyment of this item was established at the trial. It is a false claim.
40. The claim of the appellants in respect of item No.1 is that this entire extent of Ac.11.74 cents is covered by R.S.No.287/3A, 3B, 3C and 3D included in patta numbers 657, 480, 292 and 658 of Adavainekkalam village.
41. According to their version, Ac.1.00 cents each in Sy.No.287/3A was purchased from Sri Inti Joseph and Sri Gaddam Jonathan under the originals of Ex.A1 and Ex.A2 dated 10.05.1969 and 30.11.1970. According to the appellants, they are in possession of Ac.3.00 cents in Sy.No.287/3A. Ex.A1 reflects that the land of Sri Gaddam Jonathan is the southern boundary of Ac.1.00 cents sold there under. Ex.A2 states the boundaries to the north and south of the land covered by it, being the lands belonging to Smt.Sesha Rathnamma.
42. It is also the claim of the appellants that under the sale covered by Ex.A4 dated 10.05.1969, Ac.3.15 cents in R.S.No.287/3E was purchased from Sri Cherukuri Purnachandra Rao. They further asserted MVR,J A.S.No.1701 of 1998 14 that an extent of Ac.5.63 cents was purchased on the same day from Smt.Juvva Soudamini, who is the daughter of Sri Cherukuri Purnachandra Rao covered by Ex.A5. Smt.Soudamini purchased these extents under the originals of Ex.A11 and Ex.A12 dated 31.08.1964 and 25.08.1968 respectively. Sri Anjaneyulu S/o. Sri Uppugoti Bulli Venkaiah and his sons sold the land covered by Ex.A11, of Ac.4.00 cents. Under the original of Ex.A12 Smt.Soudamini had purchased an extent of Ac.1.62 cents from Smt.Thammina Bullemma W/o. Sriramulu. This entire extent of Ac.5.63 cents covered by Ex.A5 is described being in R.S.No.287/3C.
43. Entire extent of Ac.1.00 cents covered by Ex.A6 dated 15.07.1974 was purchased in the name of Smt.Sesha Rathnamma from Sri Konda Surya Prakasa Rao in R.S.No.287/3E.
44. The appellants relied on Ex.A13 10(1) account, Ex.A9 certified copy of adangal for fasli 1384 as well as Ex.A14 FMB (sketch) in this respect. It is the settled proposition of law that the entries in revenue records cannot make out right and title to the lands in question. Even otherwise, when it is the claim of the appellants that they have been in possession and enjoyment of these extents, it is for them to make out that the name of Smt.Sesha Ratnamma was mutated in the revenue records. Producing revenue records of this nature in relation to the alleged predecessors in title of Smt.Sesha Rathnamma cannot assist their contention.
45. As rightly observed by the learned trial Judge and contended for the respondents in this appeal, the appellants did not make any effort to examine anyone connected to these sale transactions including the alleged predecessors in title or their representatives. Reasons for this omission are not forthcoming.
MVR,J A.S.No.1701 of 1998 15
46. As seen from Ex.B7 certified copy of the judgment in O.S.No.335 of 1974 dated 14.09.1979 Sri Gaddam Jonathan the alleged vendor under Ex.A3 was examined at the trial. Admittedly, it was a suit pending between Smt.Sesha Ratnamma, the respondents 6 and 7 herein and others as well as husband of the 6th respondent. One of the findings recorded in the above suit with reference to Ex.X1 an extract of adangal was that Sri Talamala Marianna (father of 6th respondent) alone was pattadar of Sy.No.287/3A admeasuring Ac.5.76 cents. When Ex.A13- 10(1) account is considered, with reference to Sy.No.287/3A, names of others apart from Talamala Marianna are appearing under patta No.294. When the claim of the appellants is that they have Ac.3.00 cents in Sy.No.287/3A, going by the contents of Ex.A13 itself, third parties should have certain extents in the same survey number, for which, there is no explanation from them. When Ex.A3 and Ex.A4 are able to account for Ac.2.00 cents in Sy.No.287/3A, Ac.1.00 cents claimed by the appellants therein remain unexplained.
47. The above circumstances are considered only in preponderance of probabilities having regard to the nature of case set forth by the appellants. When their right, title and interest are in serious dispute, particularly at the instance of the 6th respondent, it is an inviolable necessity for the appellants to examine their predecessors in title or their representatives or those connected, to prove all these transactions. It is for them to establish that there was effective and valid transfer of title in their favour, of the entire extent covered by item No.1 of the suit lands.
48. It is neither pleaded case or the version presented at the trial for the appellants that Smt.Sesha Ratnamma had purchased any extent out of item No.1 of the suit lands from the 6th respondent. The first MVR,J A.S.No.1701 of 1998 16 appellant as P.W.1 could not explain at the trial how his alleged predecessors in title acquired these extents.
49. The entire Adavinekkalam village was once a part of the estate as referred to supra, has significant bearing in this context. Necessarily the appellants should connect their alleged acquisition of this extent to this estate and possibly the lands involved in the suits O.S.No.134 and 208 of 1954 of the Court of learned Subordinate Judge, Vijayawada included these extents. Derivation of title should necessarily through such source. This fact is not clarified on behalf of the appellants.
50. In a title suit, the burden is always on the appellants to establish their claim. They cannot in any manner rely on the latches or weakness in the case set up by the defendants/respondents.
51. On behalf of the 6th respondent in this context, UNION OF INDIA AND OTHERS v. VASAVI COOPERATIVE HOUSING SOCIETY LIMITED AND OTHERS1 is relied on, where in this context in paras 15 and 17 to 19 observations are recorded thus:
"15. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
16. .................
17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. Maran Mar Basselios Catholicos v. Thukalan Paulo Avira2 observed that "in a suit [for declaration] if the plaintiffs are to succeed, they must do so on the strength of their own title."1
(2014) 2 SCC 269 2 AIR 1959 SC 31 MVR,J A.S.No.1701 of 1998 17
18. In Nagar Palika, Jind v. Jagat Singh3, this Court held as under:
"The onus to prove title to the property in question was on the plaintiff-respondent... In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."
19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against them, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited."
52. ANANTHULA SUDHAKAR v. P.BUCHI REDDY(DEAD) BY L.Rs AND OTHERS4 and R.HANUMAIAH AND ANOTHER v. SECRETARY TO GOVERNMENT OF KARNATAKA, REVENUE DEPARTMENT AND OTHERS5 are relied on for the 6th respondent in this context.
53. Reasons are assigned supra making out that the appellants failed to make out their case of acquisition of right, title and interest to the lands covered by item No.1 and therefore, they failed to discharge their burden.
54. The 6th respondent, who is claiming right and interest in respect of an extent of Ac.10.00 cents in the same village, comprised of two separate extents of Ac.6.00 cents and Ac.4.00 cents interspersed by different extents of others, primarily relied on outcome of O.S.No.134 and 284 of 1954 on the file of the Court of learned Subordinate Judge, Vijayawada. It is also her version as D.W.4 that out of the general 3 (1995) 3 SCC 426 4 AIR 2008 SC 2033 5 (2010) 5 SCC 203 MVR,J A.S.No.1701 of 1998 18 partition of the lands directed by the decree and judgment in the above suits, she was delivered Ac.10.00 cents out of Ac.26.00 cents covered by patta No.233 and thus explained acquisition of her right, title and interest. As already stated supra, the 6th respondent is basing her claim of such acquisition under Ex.B11 and Ex.B13 to Ex.B15 sale deeds, which were also considered as seen from Ex.B5 common judgment in O.S.No.134 and 208 of 1954 dated 15.12.1961 recording clear findings thereon and to the effect that these sales either in favour of father or mother of the 6th respondent made out about Ac.84.00 cents in their favour under different pattas in that village. The 6th respondent as the third plaintiff in both the above suits also deposed therein.
55. Common judgment in Ex.B5 was confirmed by the Court of learned I Additional District Judge, Machilipatnam in A.S.No.92 of 1962 dated 20.12.1969 vide Ex.B6.
56. The 6th respondent relied on Ex.B9 to Ex.B12 and Ex.B16 photo copies of pattas to substantiate her claim. They were permitted to be marked in the course of trial though serious objections were raised on behalf of the appellants, as to their admissibility in evidence. They were seriously challenged as seen from cross-examination of D.W.4 on behalf of the appellants. These photo copies were attested by a Gazetted Officer. Ex.B9 to Ex.B12 and Ex.B16 do not meet the requirements of the Evidence Act to call or describe themselves as appropriate documentary evidence. Nonetheless these pattas were considered in the judgment in Ex.B5 and their effect was discussed. They cannot be part of evidence since inadmissible and that the learned trial Judge erred in considering them.
MVR,J A.S.No.1701 of 1998 19
57. Thus, the version of the 6th respondent pleaded in her written statement and brought out during trial by virtue of the documentary proof and oral evidence, is in effect substantiating her claim for Ac.10.00 cents she held, which she claimed that the appellants have sought to usurp and grab by means of false transactions.
58. In the presence of the material placed and challenge of the 6th respondent, the burden on the appellants stands more pronounced. In the circumstances of the case, the inference to draw is that the appellants failed to establish their right, title and interest to item No.1 of the suit lands. Oral assertion of P.W.1, viz. the first appellant that they raised a mango garden and which they have been enjoying since the year 1973 or 1974 cannot be a substitute for the evidence to be let in.
59. Therefore at every stage, as seen from the material on record, there is complete failure of the appellants to substantiate their claim in respect of both the items of the suit lands.
60. One of the contentions of the appellants is that the judgments covered by Ex.B5 and Ex.B6 cannot be looked into in as much as the appellants and their predecessors-in-interest are not parties to these suits. However, this question is no longer res integra in as much as they bear relevance as is observed in TIRUMALA TIRUPATI DEVASTHANAMS v. K.M.KRISHNAIAH6. In para - 9 in this context in this ruling, it is observed as under:
"9.........
In Srinivas Krishna Rao Kango vs. Narayan Devji Kango & 7 Others speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter 6 AIR 1998 SC 1132 7 Air 1954 SC 379 MVR,J A.S.No.1701 of 1998 20 parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das vs. Sant Ram & Others8 held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence Act as a `transaction' in which a right to property was `asserted' and `recognised'. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni vs. Brajmohini9 that a previous judgment, not inter parties was admissible in evidence under Section 13 to show who the parties were, what the lands in disputer were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni vs. Brajmohini and Ram Ranjan Chakerbati vs. Ram Narain Singh10 by Sir John Woodroffe in his commentary on the Evidence Act (1931, P 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur vs. Ram Sunder11."
61. Further reliance is placed on behalf of the 6th respondent in this context in RAMAN PILLAI KRISHNA PILLAI AND OTHERS v. KUMARAN PARAMESWARAN AND OTHERS12 where the afore stated judgment in Tirumala Tirupathi Devasthanam was considered.
62. Thus, the objection raised on behalf of the appellants in this respect cannot stand.
63. The appellants, inspite of the consistent observations in earlier round of litigation in O.S.No.335 of 1974 till S.A.No.87 of 1987 including A.S.No.45 of 1984, continued their version of being in possession and enjoyment of both the items of the suit lands. Clear findings were recorded in the earlier litigation confirmed in S.A.No.87 of 1987 of want of proof of possession of these lands from the appellant therein, viz. 8 AIR 1954 SC 606 9 (1992) ILR 29 CAL 190 (198)(PC) 10 (1895) ILR 22 CAL 533(PC) 11 AIR 1934 PC 157 : 61 IA 286 12 AIR 2002 KERALA 133 MVR,J A.S.No.1701 of 1998 21 Smt.Sesha Ratnamma. Learned trial Judge considering these factors observed that the earlier judgments covered by Ex.B7 and Ex.B8 precluded the appellants from raising the very same contention in this matter on the principle of res judicata in terms of Section 11 CPC. On behalf of the 6th respondent, her learned counsel also referred to application of Section 11 CPC and alternatively contending that in view of Section 40 of Indian Evidence Act, the same question cannot be reagitated while further relying on Section 41 of Evidence Act.
64. On behalf of the appellants strenuous contentions are advanced pointing out that in none of the written statements of the respondents neither there is a plea of res judicata pointing out the circumstances nor any attempt was made at the trial to pursue such course. Therefore, it is the contention of the learned counsel for the appellants that the respondents cannot raise such question for the first time in this appeal.
65. In support of such contention, reliance is placed in RAJA JAGADISH CHANDRA DEO DHABAI DEB v. GOUR HARI MAHATO AND OTHERS13. The extracted portion hereunder from this decision of Privy Council is relevant. This judgment is locus classicus.
"The first being the question of res judicata. The High Court declined to allow the appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues. It seems to their Lordships that the High Court was right in this view, because it was necessary for the appellant, if he were going to make use of the judgment in the suit of 1900 as res judicata to identify the subjects in dispute in the present case with the subjects which in that case were held to belong to the Rajah and not to the tenants."13
1936 AIR (PC) 258 MVR,J A.S.No.1701 of 1998 22
66. In KATRAGADDA CHINA ANJANEYULU AND ANOTHER v. KATTRAGADDA CHINA RAMAYYA AND OTHERS14, the above ruling of privy council is referred, with approval. Reliance is further placed for the appellants in this context in M/s.MARISAMI BROTHERS BY ITS MANAGING PARTNER M.MARISAMI v. M/s.BLUEMOUNT SWITCHGEARS ASSOCIATES (Pvt.) Ltd., REPRESENTED BY ITS MANAGING DIRECTOR S.PALANISWAMI AND OTHERS15.
67. In MADHUKAR D.SHENDE v. TARABAI ABA SHEDAGE16 in para 12 in this context, it is observed as under:
"12.................Res judicata is a mixed question of fact and law. We do not find the plea of res judicata having been raised in the plaint. Copies of pleadings and issues framed in the earlier suit have not been tendered in evidence and we do not find any issue on res judicata having been framed and tried between the parties in the present suit..................."
68. The procedure to follow when a plea of res judicata is raised by way of pleadings and proof is explained in SMT.V.RAJESHWARI v. T.C.SARAVANABAVA17. The relevant observations are in paras 11 to 13 as under:
"11.The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal (See: (Raja) Jagadish Chandra Deo Dhabal Deb Vs. Gour Hari Mahato & Ors., Medapati Surayya & Ors. Vs. Tondapu Bala Gangadhara Ramakrishna Reddi & Ors18, Katragadda China Anjaneyulu & Anr. Vs. Kattragadda China Ramayya & Ors. The 14 1965 AIR (A.P.) 177(FB) 15 1969(1) MLJ 573 16 2002 AIR (SC) 637 17 2004(1) SCC 551 18 AIR 1948 PC 3 MVR,J A.S.No.1701 of 1998 23 view taken by the Privy Council was cited with approval before this Court in The State of Punjab Vs. Bua Das Kaushal19. However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the Trial Court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.
12. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors. Vs. Mohd. Hanifa (Dead) by Lrs. & Ors.20, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh Vs. 21 Bhooralal , placing on a par the plea of res judicata and the plea of estoppel under Order II Rule 2 of the Civil Procedure Code, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore Vs. Secretary of State For India in Council & Anr.22, pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous 19 (1970) 3 SCC 656 20 (1976) 4 SCC 780 21 (1964) 7 SCR 831 22 (1887-88) 15 Indian Appeals 186 MVR,J A.S.No.1701 of 1998 24 suit and what was heard and decided. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.
13. That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same. Reference may be had to Pritam Kaur w/o S. Mukand Singh Vs. State of Pepsu and Ors.23 and Rajani Kumar Mitra & Ors. Vs. Ajmaddin Bhuiya24, and we find ourselves in agreement with the view taken therein on this point."
69. As rightly contended for the appellants in view of the settled proposition and position of law in this context, the 6th respondent is not justified in raising a plea of res judicata as such without therebeing any basis as a pleading or otherwise at the trial. Learned trial Judge is not justified in recording such findings.
70. At the same time, the effect of Section 40 of Indian Evidence Act, which clearly precludes the same question, which was considered in the earlier round of litigation and the finding thereon when become final cannot be overlooked. Relevancy of the judgments particularly when become final bears importance. In fact, Section 41 of Evidence Act ordains that such judgment is conclusive proof. Therefore, in terms of Section 40 and Section 41 of Evidence Act, it is not open for the appellants to raise such question asserting possession of the suit lands, whereon findings earlier recorded became final. Rightly in this context reliance is placed in IBNE HASAN v. SMT.HASINA BIBI AND OTHER25 for the 6th respondent. In paras 7 and 8, it is observed in this context as under:
23 AIR 1963 Punjab 9 (Full Bench) 24 AIR 1929 Calcutta 163 25 AIR 1984 ALLAHABAD 216 MVR,J A.S.No.1701 of 1998 25 "7. Previous judgments can be read in evidence in subsequent suits only if they are relevant under any of the Sections 40, 41 and 42. Judgments other than those mentioned therein would be irrelevant in view of Section 43 unless they fall in the category of judgments referred to in the latter part of Section 43. Further, in view of Section 44 judgments referred to in Sections 40, 41 and 42 would not be relevant if it is established that they were delivered by a Court not competent to deliver the same or were obtained by fraud or collusion.
8. Section 40 of the Evidence Act even without using the term 'Res judicata' refers to the consequences of res judicata. It is because of Section 40 that a judgment, which is relied on by a party in a subsequent suit in support of its plea of res judicata, becomes relevant and can be read in evidence. A previous judgment operates as res judicata between the parties to the earlier suit as also to persons claiming title through any such party......................"
71. Thus, on any count from the material on record, the inference to draw is that the appellants failed to establish their right, title and interest to both the items of the suit lands. Therefore, they should suffer the consequences entailing rejection of their case. Thus, this point is held in favour of the respondents and against the appellants.
72. POINT No.2: The 6th respondent contended that the suit claim is barred by time and no declaratory relief as such can be sought by the appellants. The basis for the contention is assertion of the 6th respondent ever since the disputes arose between the appellants on one hand and herself on the other and from the time O.S.No.335 of 1974 was instituted. The first appellant as P.W.1 admitted that there have been long standing disputes between themselves and the 6th respondent in respect of these lands for more than 18 years.
73. Apparently, the claim sought to be projected on behalf of the 6th respondent is that on account of bar of time in terms of Article 65 of MVR,J A.S.No.1701 of 1998 26 Limitation Act, the appellants cannot pursue their claim and thus remedy is barred. The question of limitation is based on fact and law. In the written statement of the 6th respondent except a bald plea of bar of limitation, there is no further pleading and if she is asserting her right, title and interest to the suit lands by adverse possession. Even otherwise, such question cannot arise in her case in as much as in the foremost judgments available on record in Ex.B5 in O.S.No.134 and 208 of 1954 dated 15.12.1961 it was recorded that the 6th respondent was being given away the mango garden, from and out of the lands concerned thereto. When it is a fact to consider that the source of title in respect of these lands should be on account of grant of pattas by the erstwhile Jamindarini of Gannavaram, when such fact of giving away mango garden to the 6th respondent on account of general partition directed, was recorded in Ex.B5 judgment, which was also confirmed as seen from Ex.B6 appellate judgment, it is clear that the assertion of the 6th respondent to these lands is by means of her own right, title and interest, which apparently she derived from her parents. Therefore, though a bald plea of bar of limitation was raised in the written statement, it is apparent that no further pleading was brought out advisedly.
74. As seen from the judgment under appeal, there are conflicting findings, in this respect. Learned trial Judge while considering issue No.4 in para 25 held that the relief of possession is barred by limitation. At the same time, learned trial Judge recorded another finding that filing the suit for declaration after disposal of S.A.No.87 of 1987, brings the same within limitation. Learned counsel for the 6th respondent invoking Order 41 Rule 22 CPC sought to canvass against this finding though no separate appeal or cross-objection is preferred. Though such MVR,J A.S.No.1701 of 1998 27 course is open for a party to challenge any finding recorded against him when supporting the decree, in given facts and circumstances of the case, the 6th respondent cannot pursue such defence of bar of limitation now.
75. Thus, this point is answered.
76. POINT No.3: In view of findings on point No.1, this appeal should necessarily fail. Since the appellants knowing full well of the nature of their claim, have pursued this matter unnecessarily making the respondents to bear the burden of this litigation, they should pay costs in this appeal to the respondents. Learned trial Judge has taken a right stand in awarding costs while dismissing the suit in favour of the respondents 3 to 8. Therefore, this appeal has to be dismissed with costs of the respondents.
77. In the result, this appeal is dismissed with costs of the respondents. Consequently, the decree and the judgment of the trial Court, stand confirmed. Interim orders if any stand vacated. All pending petitions, stand closed.
____________________ M. VENKATA RAMANA, J Dt: 14.06.2021 Rns MVR,J A.S.No.1701 of 1998 28 HON'BLE SRI JUSTICE M. VENKATA RAMANA A.S.No.1701 of 1998 Date: 14.06.2021 Rns