HON'BLE SRI JUSTICER. RAGHUNANDAN RAO
APPEAL SUIT No.859 of 1997
JUDGMENT:
This appeal is filed by defendants 1, 2, 4, 6, 7 and 14 in the suit against the judgment and decree of the District Judge, Vizianagaram in O.S.No.55 of 1996, dated 25.02.1997.
2. The suit was originally filed as O.S.No.31 of 1986 on the file of the Sub-Court, Parvathipuram and renumbered as O.S.No.144 of 1987 when it was transferred to the Sub-Court Bobbili. Thereafter, it was renumbered as O.S.No.71 of 1989 when it was transferred to the Sub- Court, Vizianagaram, and finally as O.S.No.55 of 1996 when it was withdrawn to the District Court at Vizianagaram.
3. For the ease of convenience, the parties to the appeal are referred to as they are arrayed in the suit.
4. The suit was filed by the plaintiffs for recovery of possession over three items of property set out in the schedule attached to the plaint and for mesne profits thereon. Item-1 relates to Ac.5.00 of land in Sy.No.41/1P. Item-2 relates to Ac.0.30 cents of land in Sy.No,.41/2 (new R.S.No.41/3). Item-3 relates to Ac.5.00 of land in Sy.No.41/2 (new R.S.No.42/1). An extent of Ac.4.52 cents in Sy.No.10/5 (new R.S.No.10/6) has also been set out as Item-4. However, no relief is sought against Item-4. All these lands fall within Borrajavalasa village. The lands falling within Items-1 to 3 in the schedule are referred to as schedule lands.
5. The 2nd plaintiff is the widow of the younger brother of the 1st plaintiff. The case of the plaintiffs was that the 1st plaintiff and late Akundi Perisastry are brothers. Defendants 8 to 10 are sons of the 1 st 2 RRR,J.
A.S.No.859 of 1997 plaintiff and defendants 11 to 13 are the sons of the 2nd plaintiff. Various extents of land including the schedule lands had been purchased, in Borrajavalasa Agraharam, which was declared as an Inam Estate, by late Akundi Narayana, who was the father of the 1st plaintiff and late Akundi Perisastry. After the abolition of Estates under the Madras Estates Abolition Act, the entire Borrajavalasa Agraharam vested in the State Government on 25.02.1959. Thereafter, a survey was conducted of the lands in the said village and, according to the plaintiffs, the schedule lands and other lands belonging to the plaintiffs‟ family were categorised as "Gayali" lands (waste lands). The plaintiffs‟ family had been given D- form pattas in relation to the lands belonging to the plaintiffs‟ family other than the schedule lands. As no pattas had been granted in connection with the schedule lands, applications were made by the 1st plaintiff and his late brother late Akundi Perisastry to the Settlement Officer, Visakhapatnam, under Section 15 of the Madras Estate Abolition Act and the same was accepted by the Settlement Officer, who ordered issuance of pattas in favour of the 1st plaintiff and his brother in relation to Items-1 to 3 and also in relation to Item-4 of the plaint schedule. However, land admeasuring Ac.2.14 cents in R.S.No.41/1 and Ac.0.40 cents in R.S.No.42 were given to the members of the Bonu family by way of D-form patta. The plaintiffs were in possession and enjoyment of the land since then. The pattas were given in the names of various members of the family, but it is the common case of the plaintiffs as well as the other members, who are arrayed as defendants, that the property remained the property of the joint family of the plaintiffs.
6. According to the plaintiffs, Defendants 1 to 7 believing the words of certain persons, who were inimical to the family of the plaintiffs 3 RRR,J.
A.S.No.859 of 1997 that the lands covered in Items-1 to 3 of the plaint schedule are Gayali lands and they would be entitled to possession of the land being weaker sections, had made attempts to trespass into the land and take over possession of the lands. The plaintiffs, and defendants 8 to 13, having recognised this intention of defendants 1 to 7, had got issued a notice dated 16.03.1986 to defendants 1 to 7 that the lands in Items-1 to 3 of the plaint schedule belong to the family of the plaintiffs and defendants 1 to 7 should not disturb their possession over the land. However, defendants 1 to 7, despite receiving the said notice, entered into the plaint schedule lands in the 1st week of April, 1986 and started agricultural operations in the land. In view of the illegal occupation of the land by defendants 1 to 7, the plaintiffs had filed the present suit for eviction of defendants 1 to 7 from Items-1 to 3 of the plaint schedule and for mesne profits from defendants 1 to 7 on account of the illegal use and occupation of the land.
7. Defendants 1 to 7 filed a written statement in which they took the plea that the lands shown in Items-1 to 3 of the plaint schedule were waste banjar lands and had never been cultivated by any member of the family of the plaintiffs. The nature of the land shown in the records under the A.P. (A.A) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short „the Estates Abolition Act‟) was correct as the said lands were waste lands. The defendants and their predecessors had entered into the plaint schedule lands more than 25 years before filing of the suit and had brought these lands under cultivation even before 1962. The plaintiffs, knowing fully well that all these lands and the neighbouring lands were waste lands, had applied and obtained D-form pattas and again applied under the Estates Abolition Act for grant of ryotwari pattas 4 RRR,J.
A.S.No.859 of 1997 in relation to the lands mentioned in the plaint schedule. The defendants were not made party to any of the proceedings under which the plaintiffs had obtained D-form pattas or ryotwari pattas, and as such, these pattas were not binding on the defendants and do not make out any case or title to the plaintiffs. The Settlement Officer could not have granted any such ryotwari patta, as it was beyond his jurisdiction and the Court should examine the correctness of the order of the Settlement Officer and declare the same as nullity as the Settlement Officer had violated the principles of natural justice. Defendants 1 to 7 had acquired adverse possession to the suit schedule lands on account of their possession openly and peacefully against the rights of the plaintiffs and hostile to everybody including the plaintiffs for more than 12 years before filing of the suit.
8. Defendants 1 to 7 also took the plea that the suit is barred by time and for non-joinder of parties, as the State of A.P is a necessary party since the plaintiffs are now requiring assigned lands to be treated as patta lands.
9. On the basis of the above pleadings, the following issues were framed by the trial Court, prior to the trial.
1. Whether the plaintiff is entitled to recovery of possession of items 1 to 3 of the plaint schedule?
2. Whether the suit relief is barred by time?
3. Whether the suit is liable to be dismissed for non- joinder of necessary parties to the suit?
4. Whether the plaintiff is entitled to mesne profits as prayed for?
5. Whether the suit is barred for not seeking declaration of title?
10. Thereafter the following additional issue was also framed.
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A.S.No.859 of 1997
"Whether the suit stands abated on account of non- impleading of the legal representatives of the fifth defendant who died pending the suit?
11. The plaintiffs examined the 1st plaintiff as PW.1 and two other persons as PWs.2 and 3. Exs.A.1 to A.35 were marked on behalf of the plaintiffs. Similarly, the 2nd defendant was examined as DW.1 and a neighbour in the area was examined as DW.2. Exs.B.1 to B.3 were marked on behalf of the defendants.
12. After an elaborate trial and hearing, the trial Judge had allowed the suit by way of the judgment and decree dated 25.02.1997 directing defendants 1 to 4, 6, 7, 14 and 16 to deliver possession of the plaint schedule Items-1 to 3 and further proceedings to be initiated for determination of mesne profits. Aggrieved by the same defendants 1 to 4, 6, 7 & 14 have filed the present appeal.
13. Sri O. Manohar Reddy, learned counsel appearing for the appellants in the appeal assailed the judgment and decree on various grounds. The said grounds can be summarised in the following manner.
a) The plaintiffs had never been in possession of the land and it was defendants 1 to 7 who were cultivating the suit schedule land. He relied upon the cross-examination of PW.1 where PW.1 had stated that defendants 1 to 7 had earlier cultivated the lands on behalf of the plaintiffs‟ family. He would submit that PW.1 while admitting that the defendants were in possession of the land, sought to claim that this possession was a permissive possession on behalf of the plaintiffs without any material to demonstrate the above permissive nature of the possession. He would also rely upon Ex.B.1, which is the certified copy of the counter filed by the Tahsildar in the proceedings, filed for grant of 6 RRR,J.
A.S.No.859 of 1997 ryotwari pattas. In this affidavit, the Tahsildar had stated that the plaintiffs were not in possession of the lands in which they were seeking ryotwari pattas (these lands correspond to Items-1 to 3 of the schedule lands).
b) The lands in question had been categorised as waste lands in the proceedings under the Estates Abolition Act. In such a situation, the lands would vest absolutely in the Government under Section 3 of the Estates Abolition Act and the question of grant of ryotwari pattas under the other provisions of the Estates Abolition Act would not arise. Apart from this, the Tahsildar himself had stated that these lands were not in the possession of the plaintiffs. For both these reasons, grant of ryotwari pattas is illegal and without jurisdiction as such the grant runs contrary to the requirements of the provisions of the Estates Abolition Act.
c) The plaintiffs except stating that they were in possession of the land have not demonstrated any such possession and the claim of the plaintiffs that they were dispossessed from the lands in April, 1986 is also not supported by any material or evidence. The alleged cist receipts marked as Exs.A.3 to A.34 are documents prepared on white papers and the internal differences in ink and writing in these documents clearly demonstrate that these are got up documents and that the plaintiffs were never in possession of the suit schedule lands. In such a situation, keeping in view the fact that PW.1 himself had admitted the possession of the defendants over the suit lands, the suit is barred by limitation.
d) As grant of ryotwari pattas/D-form pattas is illegal and has to be discarded, the Government, which is the owner of the land, was a necessary party and non-joinder of necessary party is a fatal to the suit.
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A.S.No.859 of 1997
14. Sri Ch. Dhanamjaya, learned counsel appearing for the plaintiffs/respondents 1 and 2 would submit that the D-form pattas and the ryotwari pattas given by the Government, and which have been ,marked as Exs.A.1, Adangals marked as Ex.A.2 and A.3 and the land revenue receipts marked as Exs.A.4 to A.34 would clearly show that the plaintiffs were the owners of the suit schedule lands and that they had been in possession of the land and had been paying the land revenue for all the period right up to the filing of the suit itself. Even though, the Tahsildar had filed an affidavit stating that the plaintiffs were not in possession of the suit schedule land, the Settlement Officer in his proceedings marked as Ex.A.1 dated 09.05.1975 had recorded that the plaintiffs were in possession of the suit schedule lands. As this proceeding of the Settlement Officer had never been disputed or challenged, the said findings are final. Sri Ch. Dhanamjaya also submits that as long as the said orders of the Settlement Officer are not set aside, defendants 1 to 7 cannot contend that this Court should discard the title granted to the plaintiffs by virtue of the said proceedings.
Consideration of the Court:
15. The admitted facts in the present case are that the plaintiffs have been granted ryotwari pattas over the suit schedule lands. Defendants 1 to 7 did not have any document of title recognising their ownership or possession over the said lands. The case of the defendants is fully dependent upon the statements of the Tahsildar in the counter filed under the proceedings of the Estate Abolition Act and the admissions that are said to have been elicited from PW.1 regarding the possession of the land by defendants 1 to 7.
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16. The trial Court had framed five issues and an additional issue (the said additional issue, which has been decided in favour of the plaintiffs, is not assailed in the course of arguments).
17. The controversy boils down to two issues:-
1. Whether the plaintiffs have title over Items-1 to 3 of the suit schedule lands; and
2. Whether the defendants have been able to demonstrate their possession over the land to dispute the contention of the plaintiffs that they had been in possession of the lands and had been dispossessed in April, 1986.
Issue No.1:
18. On the question of title or ownership over the land, the plaintiffs are relying upon the proceedings of the Settlement Officer granting ryotwari pattas to the plaintiffs in respect of Items-1 to 3 of the plaint schedule. Prima facie, this creates sufficient title in favour of the plaintiffs. However, these proceedings are disputed by defendants on two grounds. Firstly, on the ground that no ryotwari pattas could have been granted as the lands have been declared as waste lands, and secondly on the ground that the plaintiffs were never in possession of the said lands. The question of possession is being dealt with under the second issue.
19. Section 3 of the Estates Abolition Act sets out the consequences of notification of an Estate under the Act. Upon such notification, the entire estate included in the assets of the "Zamindari" estate including waste lands etc., shall stand transferred to the Government and vest in the Government free of all encumbrances. Thereafter, ryotwari pattas can be granted under Section 11 to every ryot 9 RRR,J.
A.S.No.859 of 1997 in relation to the lands which were included in his holding; under Section 12 to the land holder in relation to the land which was the private land of the land holder; under Section 13 to the land holder of an Inam estate. This would mean that pattas would be granted only to those persons, who fall into the above categories, in relation to the lands which were in their possession and cultivation. As the lands, which are not in cultivation, would be treated as waste lands, grant of ryotwari pattas may not arise. In the present case, the Settlement Officer had accepted the contention of the plaintiffs that they were in occupation and cultivating the lands. This finding of the Settlement Officer has not been set aside. In such a situation, the plea of the defendants that the ryotwari pattas could not have been granted by the Settlement Officer has to be rejected as the Settlement Officer had considered this and had taken the view that the plaintiffs were in possession of the land as cultivators of the land. As a consequence, the pattas granted to the family members of the plaintiffs cannot be set aside and must be accepted as creating a title in favour of the plaintiffs.
Issue No.2:
20. Coming to the second issue, defendants 1 to 7 have not been able to place any material on record to show that they were in possession of the land. They are depending on the admissions said to have been made by PW.1, the statements of the Tahsildar in his counter in the proceedings under Estates Abolition Act and the deposition of DW2. As far as the affidavit of the Tahsildar is concerned, the same has not been accepted by the Settlement Officer whose orders have become final. As such this Court cannot depend upon the said statements of the 10 RRR,J.
A.S.No.859 of 1997 Tahsildar to hold that the defendants were in possession of the land. It must also be noted that the Settlement Officer had taken into account the cist receipts produced by the plaintiffs to hold that the plaintiffs were in possession and cultivating the suit schedule lands. In the circumstances, the contention of the defendants that the plaintiffs were never in possession of the suit schedule lands cannot be accepted.
21. As far as the admissions of PW.1 are concerned, a perusal of the said statement would show that the statement of PW.1 is to the effect that defendants 1 to 7 had been in possession of the said lands as tenants/cultivators engaged by the plaintiffs. As such, there is no clear cut unequivocal admission by PW.1 that the defendants were in independent possession of the land.
22. The defendants had examined a neighbour as DW2.This witness had said that the schedule lands were in the possession of the defendants for quite some time. However, in the course of cross examination the following was elicited from DW2:
"Apart from disputed property for some property D form Patta was granted to D1 to D7. D1 to D7 were given 2-50 and 1-50 cents as a D form patta near the suit lands. The suit schedule property is itself that land."
23. This witness is not clear whether the defendants 1 to 7 were in possession of the schedule lands or the lands for which the defendants 1 to 7 had D form pattas and as such much reliance cannot be placed on this witness.
24. It must be held that the plaintiffs had possession of the land and there is no proof of possession of the defendants over the schedule 11 RRR,J.
A.S.No.859 of 1997 land, except the statement of the plaintiffs that they had been dispossessed by the defendants in April 1986.
25. In the circumstances, there are no merits in the appeal and the same is accordingly dismissed, with costs. However, the proceedings for mesne profits may go on. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
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R. RAGHUNANDAN RAO, J
2nd November, 2021
Js
12 RRR,J.
A.S.No.859 of 1997
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
APPEAL SUIT No.859 of 1997
2nd November, 2021
Js