1
HON'BLE SRI JUSTICE T. AMARNATH GOUD
CCCA No.301 OF 2004
JUDGMENT:
1 Challenge in this appeal is to the judgment and decree dated 14.6.2004 passed in O.S.No.85 of 1995 on the file of the Court of the I Senior Civil Judge, City Civil Court, Hyderabad wherein and whereby the learned Judge dismissed the suit filed by the appellant herein.
2 For the sake of convenience, parties to this appeal will hereinafter be referred to as they were arrayed before the trial Court.
3 The plaintiffs instituted the suit O.S.No.85 of 1995 on the file of the court below stating that one Sheik Ahmed was pattedar and possessor of land an extent of Ac.7.00 in Sy.No.403/1/Paiki situated in Shaikpet village, Golconda Mandal, Ranga Reddy District. Out of the said extent, the said Sheik Ahmed executed an agreement of sale dated 25.8.1964 in favour of one Veera Machaneni Prasada Rao - the father of the first plaintiff, agreeing to sell Ac.1-25 guntas of land for Rs.8,000/- and received an earnest money of Rs.2,500/-and the property was also delivered possession of the property to the father of the first plaintiff. However, soon after that, the said Sheik Ahmed died. As his legal representatives were not coming forward to execute a regular sale deed, the said Prasadarao filed O.S.No.69 of 1967 on the file of the I Additional Judge, CCC, Hyderabad, for specific performance and other reliefs, which was decreed on 26.3.1976 on contest by the defendants therein. Subsequently the Court had executed a sale 2 deed in favour of the plaintiffs 2 to 7 and others on 18.02.1985 and under panchanama the Court Bailiff put the plaintiffs in possession of the property on 03.9.1986.
4 It is the further case of the plaintiffs that the first plaintiff noticed a compound wall in the portion of the Plaint schedule property being raised by PWD department without permission or consent of the plaintiffs. The PWD department officials are claiming that the property belong to the Government. Even assuming that at one point of time, the property belongs to the Government, still the plaintiffs and their predecessors in title had perfected their title to the suit schedule property by adverse possession and the defendants cannot claim any right over the suit schedule property or question the title of the plaintiffs or their predecessors in title to the property. Since the defendants raised a compound wall in the suit schedule property, the plaintiffs amended their claim and sought recovery of possession also. 5 The defendants filed written statement denying the various averments of the plaint. The defendants denied the existence of Sy.No.403/1/Paiki, as per the revenue records, the Plaint schedule property forms part of Sy.No.403, which is classified as Government land and that as on the alleged date of agreement dated 25.8.1964, the property it is in possession and enjoyment of the Government. The decree passed in O.S.No.69 of 1967 on the file of the I Additional Judge, CCC, Hyderabad, is not binding on the defendants as they were not parties to the said suit. The land in question was surveyed by the Town Survey Department and the 3 same was numbered as T.S.No.4/1/1 in Block 'G' and Ward No.10 and its extent is 9 Hectares 43.55 meters, which is classified as Government land and correlate to Sy.No.403 of Shaikpet village or any village map. The receipts produced by the plaintiff are fabricated documents. The Government decided to allow a portion of the said T.S. Number situated at Road No.10 to the PWD department for construction of quarters to IAS officers. Accordingly possession of Government land in TS No.4/1/1 to an extent of Ac.94.355 sq. meters has been handed over to PWD department and they constructed compound wall. 6 By way of additional written statement, the defendants further submitted that the very fact of seeking recovery of possession after eight years of filing the suit shows that the plaintiffs were never in possession of the property. The Revenue Divisional Officer, Hyderabad filed LGC No.21 of 1988 against one L.L.Sudhakar Reddy who was claiming possession over the Government land in the un-recognized Plot Nos.11, 12 and 13 of Defunct Jubilee Hills Municipality and that the suit schedule property is part of un-recognized Plot No.11 thereof, which is the subject matter of the said LGC. The said LGC was allowed and said judgment was upheld by the Hon'ble High Court in W.P.No.9846 of 1989.
7 Basing on the above pleadings, the trial Court framed the following issues for trial:
1) Whether the plaintiffs are entitled to the suit schedule property from the defendants?4
2) To what relief?
8 The trial Court also framed the following additional issues:
1) Whether the plaintiffs are entitled to restore the possession from the defendants?
2) Whether the plaintiffs have perfected their title to the suit property by adverse possession?
9 During the course of trial, on behalf of plaintiffs the first plaintiff himself got examined as P.W.1 and got exhibited Exs.A.1 to A.26 and on behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B.1 to B.8 were marked.
10 Giving an elaborate discussion on Issue No.1, the trial Court held that as the plaintiffs failed to prove their title and ownership over the suit schedule property as their vendor himself has no better title and accordingly held this issue against the plaintiffs. 11 On Additional Issue No.1 the trial Court held that since the plaintiffs failed to establish their title to the suit schedule property, they are not entitled to the relief of recovery of possession and accordingly answered this issue also against the plaintiffs. 12 On Additional Issue No.2 which is with regard to the adverse possession, the trial Court held this issue also against the plaintiffs in view of short period of possession over the property from 03.9.1986 i.e. the date on which the bailiff alleged to have delivered possession of the property to the plaintiff till 30.01.1995 i.e. the date of filing of the suit. Accordingly, the trial Court dismissed the suit.
13 As stated supra, aggrieved by the said decree and judgment, the unsuccessful plaintiffs filed the present appeal. 5 14 Sri D. Prakash Reddy, the learned senior counsel appearing for the plaintiffs submitted that the trial Court ought not to have dismissed the suit after holdling that the defendants admitted the entries in Khasara Pahani and Vasool Baki register and that the trial Court ought to have drawn adverse inference for non- production of revenue records and khasara pahani by the defendants in whose possession the original documents are. He further submitted that trial Court having held that there is S.No.403/1/Paiki, ought not to have held that the plaintiffs have not produced patta certificate of Shaik Ahmed in respect of the suit property. He further submitted that in view of Exs.A.17 and 18, the trial Court ought to have drawn presumption that the plaintiffs have perfected their title to the property and ought to have decreed the suit. He further submitted that in view of Exs.A.1 and A.2 the trial Court ought to have held that the vendor of the plaintiffs was in possession of and has clear title to the subject property. 15 The learned Government Pleader appearing for the respondents submitted that the Special Court has categorically found fault with the respondents therein on the ground that they are land grabbers and decreed the LGC No.21 of 1988 in favour of the applicant / Government. He further submitted that the land in Sy.No.403/1/Paiki does not exist as per the revenue records and there is a discrepancy in survey numbers more so the said extent of Sy.No.403/1/Paiki falls in Road No.10 and Road No.12 of Banjara Hills, Hyderabad on three different portions in three different areas and thus the claim of the plaintiffs is unjust and the appeal is liable to be dismissed.
616 In reply to the above argument of the learned Government pleader, the learned senior counsel submitted that no amount of evidence can be looked into upon a plea which was never put forward and referred to the judgment of the Privy Council in Siddik Mahomed Shah V. Mt. Saran1.
17 The contention of the plaintiffs is twofold; viz., firstly, by virtue of the specific performance suit being decreed in their favour, the plaintiffs are the absolute owners and they are in peaceful possession and enjoyment of the property since they are the bona fide purchase of the property. Secondly, or in alternative, for the last 30 years, they have been in adverse possession and enjoyment of the property till filing of the suit and thus they perfected their title to the property.
18 On the other hand, the case of the Government is that the subject land is Government property and thus they are making constructions and it does not belong to the plaintiff. It is their further case that Shaik Ahmed is a land grabber and several land grabbing cases were against him and the Special Court under the Land Grabbing Act in LGC No.45 of 1991 held against the respondents therein that the Government as owner of the property. 19 With regard to the above contention of the Government, as can be seen from the material papers placed on record, in LGC No.45 of 1991 filed before the Special Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, Hyderabad, the son of Shaik Ahmed by name Shaik Ismail was shown as 8th respondent. 1 AIR 1930 P.C. 57 7 It is to be seen further that as against the finding given by the Special Court holding that the respondents therein are land grabbers, batch of Writ Petitions were filed before the Hon'ble High Court of erstwhile State of Andhra Pradesh viz., Writ Petition Nos.22323, 22334, 23999 of 1996 and 28402 of 1998. A Division Bench of the Hon'ble High Court allowed all the Writ Petitions, setting aside the judgment of the Special Court, holding that the findings of the Special Court on the validity of the applications filed by the State under Section 8 of the Land Grabbing Act and the correctness of the stand taken by the State is contrary to the law and that the petitioners by giving both oral and documentary evidence proved their possession through their predecessors-in- title for a long period and that they also established the identity of the property which the Special Court failed to notice. The Division Bench further clearly stated that the purchasers are not land grabbers. Thus, the ambiguity with regard to the existence of Sy.No.403/1/Paiki is cleared.
20 Exs.A.1 and A.2 are the certified copies of pahani patrika for the years 1959-60 and 1963-64. In Exs.A.1 and A.2 the name of Shaik Ahmed was shown as pattadar and the entire extent was Ac.7.00. The said Sheik Ahmed executed an agreement of sale dated 25.8.1964 in favour of one Veera Machaneni Prasada Rao - the father of the first plaintiff and that the father of the first plaintiff was also put in possession of the property on the even date. The Government repeatedly stated that the documents relied on by the plaintiffs are fabricated and false. The said allegation of the Government has been appreciated and considered by the trial 8 Court but miserably failed in pointing out as to what is the fabrication and which document is fabricated is not explained. Admittedly, the documents which are placed on record are Government records and entries are there from the year 1959 and the agreement of sale is of the year 1964 and the suit for specific performance was of the year 1967 and the said suit was decreed in 1967. When all through the documents were in the custody of the Government, the issue of fabrication does not arise. The said fabrication of documents is not established and proved. 21 Further, since the judgment in the LGC was set aside by a Division Bench of the Hon'ble High Court, it is not open for the defendants / Government to rely on the observations made in the order passed by the Special Court.
22 The plaintiffs were put in possession of the property under a valid panchanama by the Court Bailiff through Court proceedings in pursuance of the decree passed in a suit for specific performance. In the said suit neither the court nor the defendants therein have taken a plea with regard to the title of late Shaik Ahmed.
23 With regard to the boundaries of the subject property, P.W.1 in his cross examination has categorically stated the boundaries of the same. The schedule of property shown in Ex.A.6 registered sale deed executed by the Court in O.S.No.69 of 1967 shows the land in extent of Ac.1-25 guntas in Sy.No.403/1/Paiki situated in Shaikpet village in Road No.10, Banjara Hills, Hyderabad, with specific boundaries. In fact, the trial Court had accepted the 9 contention of the plaintiffs about the existence of the Sy.No.403/1/Paiki. Therefore, the contention of the defendants on this aspect is liable to be brushed aside. Ex.A.5 which is of the year 1981 shows the name of the father of the first plaintiff. Moreover, the argument that property cannot be in Road Nos.10, 12, Banjara Hills, Hyderabad cannot be accepted as the description in revenue records is Shakikpet.
24 The trial Court relying on the judgment between in Soora Begum V. State of Andhra Pradesh2 observed that Entries in TSLR are not conclusive proof of title. Though the defendants have neither filed village map of Shaikpet nor the record showing the correlative survey numbers from the beginning till the assignment of T.P.No.4/1/1 Block 'G' Ward '10' Shaikpet village. The defendants failed to prove that the suit schedule property forms part of Sy.No.403 of Shaikpet Village which is classified as Government Poramboke land. In such a situation, the trial Court ought to have drawn an inference that since it is the case of the plaintiffs that they were put in possession of the property by late Shaik Ahmed in the year 1964 itself, the existence of Sy.No.403/1/Paiki is in existence.
25 On the point of evidentiary value of revenue records, the learned senior counsel relied on the following judgments:
Shikhar Chand Jain V. Digamber Jain3, G.Satyanarayana V. Government of Andhra Pradesh4, Commissioner of Survey & 2 2002 (1) AWR 131 (DB) AP 3 (1974) 1 SCC 675 4 2014 (4) ALD 358 10 Settlement V. G.Padmavathi5 Union of India V. Vasavi Co-operative Housing Society Ltd.6, Kasturchand & Ors. V. Harbilash & Ors.7 and Joint Collector V. D.Narsing Rao8.
26 As per the ratio laid down in G.Satyanarayana case (4 supra) while dealing with the Telangana Area Land Census Rules, 1954, the erstwhile High Court of Andhra Pradesh held at para No.83 as under:
83. These rules were made under Section 97 of the Tenancy Act. Under these Rules, land census, as defined by Rule 2(f) of the Rules, was taken up by the Government. The important record i.e., Khasra Pahani is a document prepared under these Rules. Rules 8 to 13 speak of provisional Khasra Pahani and Rule 14 speaks of fair copy of Khasra Pahani. The said record is an important record and entry as pattadar in the same would confer absolute title over the land occupied.
27 In D.Narsing Rao case (8 supra) the Hon'ble apex Court held at para No.13 and 14 as under:
13. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs Regulation, 1358 fasli. 'Khasra Pahani' is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It was gazetted under Regulation 4 of the A.P. (Telangana Area) Record of Rights in Land Regulation 1358F. As per Regulation No.13 any entry in the said record of rights shall be presumed to be true until the contrary is proved. The said Regulation of 1358-F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on 15.8.1978. In the 2nd edition (1997) of "The Law Lexicon" by P. Ramanatha Aiyer (at page 1053) 'Khasra' is described as follows: "Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed."
14. Admittedly, the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 pertaining to Survey Nos.36 and 37 of Gopanpally village. The purchase of the said lands by the respondents from them under registered sale deeds are also not seriously disputed. The further fact is that they have been regularly paying land revenue continuously since the year 1954. The appellants herein issued the impugned notice dated 31.12.2004 under Section 166B of A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of entries in the 5 1999 (4) ALD 61 6 2002 (5) ALD 532 7 (2000) 7 SCC 611 8 (2015) 3 SCC 695 11 Khasra Pahani of the year 1953-54, by fixing the date of inquiry as 5.2.2005 and that notice is the subject matter of challenge here.
28 As could be seen from the record, from 1954 onwards the name of the vendor of the plaintiffs is recorded. The name of the predecessor - in - title has not been rebutted. Therefore, the trial Court is in error in asking the plaintiffs to prove ownership of their predecessor-in-title. As stated supra, in the earlier round of litigation, i.e. O.S.No.69 of 1967 neither the court nor the defendants therein have taken a plea with regard to the title of late Shaik Ahmed. Therefore, presumption under Section 114 of the Indian Evidence Act has to be drawn.
29 The learned counsel for the plaintiffs relied on the ratio laid down in Union of India V. Ibrahim Uddin9 wherein the Hon'ble apex Court held at para Nos.6, 12 and 25 as under:
6. The registered partition deed stood duly proved and it was the proof of the title of the plaintiff/respondent no.1. The plaintiff/respondent no.1 made an application for inspection of the record before the officers of the appellant/defendant no.1 but perusal of the record was not permitted. The appellant/defendant no.1 did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn against it in view of the provisions of Section 114 clause(g) of the Indian Evidence Act, 1872 (hereinafter called the Evidence Act). The Will, taken on record as an additional evidence at appellate stage stood proved and thus, contents thereof automatically stood proved.
12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126).
9 (2012) 8 SCC 148 12
25. In the instant case, admittedly, the plaintiff/respondent no.1 during the pendency of his suit had made an application before the authorities under the control of the appellant/defendant no.1 to make the inspection. However, he was not permitted to have any inspection. The plaintiff/respondent no.1 did not submit any interrogatory statement or an application for making inspection or for production of the document as provided under Order XI CPC. In such a fact-situation, in view of the law referred to hereinabove, it is not permissible for the first appellate Court or the High Court to draw any adverse inference against the appellant/defendant no.1.
30 In the instant case it is the specific evidence of D.W.1 that he is unable to produce the relevant record before the Court. On the other hand, the plaintiffs showing their title to the property filed several applications before the Mandal Revenue Officer and Revenue Divisional Officer under Order 11 Rule 16 CPC for calling the records. But the competent authorities did not furnish even certified copies of the relevant documents to the plaintiffs. It means the defendants have intentionally withheld from filing the original Khasra pahani and other revenue records to the Court. 31 More so, it is not the case of the defendants that the father of the first plaintiff obtained the decree for specific performance by playing fraud on the part of the Court. Right from the beginning, the plea of the plaintiffs was that Shaik Ahmed, having received earnest money from the father of the first plaintiff, put him in possession of the property. The defendants have not rebutted the same by letting cogent and convincing evidence. 32 In Chief Conservator of Forests V. Collector and Others10 the Hon'ble apex Court held that Section 110 of the Evidence Act embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of 10 (2003) 3 SCC 472 13 proof on the party who denies his ownership. The presumption which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title. 33 Having regard to the facts and circumstances of the case and the principle enunciated in the cases cited supra, this Court is of the view that the trial Court erred in holding the Issue No.1 against the plaintiffs. Therefore, this Court has no hesitation to hold that the plaintiffs are owners of the suit schedule property having obtained a valid decree from their vendors. Accordingly, the Issue No.1 is answered in favour of the plaintiffs and against the defendants.
34 On Issue No.1 this Court held that the plaintiffs have perfected their title to the property having purchased the same under registered sale deed by way of decree in a suit for specific performance. The judgment and decree passed in the earlier suit i.e. O.S.No.69 of 1967 was not challenged before the appellate court. Hence the findings and observations whatever made in the said judgment have become final. Of course, the plea of the defendants is that the defendants in the said suit are land grabbers and hence they cannot pass a better title. However, it is to be seen that a Division Bench of the High Court dismissed the findings of the LGC Court. Hence the father of the first plaintiff has obtained a valid title. In that view of the matter, certainly, the plaintiffs are entitled for recovery of possession. The Additional Issue No.1 is answered accordingly.
1435 On Additional Issue No.2 which is with regard to the adverse possession, it is the case of the plaintiffs that by virtue of agreement of sale entered into with Shaik Ahmed in the year 1964, they are in possession of the suit property even prior to the bailiff put them in possession of the same through court proceedings. However, the trial Court took a view that the father of the first plaintiff came into possession of the suit property on 06.8.1986 by virtue of the sale deed executed by the trial Court in O.S.No.69 of 1967 and the present suit was filed in the year 1995 which is nine years after they came into possession of the property and since the period of limitation is 30 years, the plaintiffs failed to establish the plea of adverse possession.
36 On this point, the learned counsel for the plaintiffs relied on the ratio laid down in Ravinder Kaur Grewal V. Manjit Kaur11 wherein the Hon'ble apex Court held at para Nos.60 to 62 as under:
60. The adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonym with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.
61. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected 11 (2019) 8 SCC 729 15 right which cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.
62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.
37 Further, as per the evidence of D.W.1, the defendants started constructing compound wall in the suit schedule property in the year 1992. But he could not say the exact date of delivery of the property to the R&B department, the G.O. number and extent of area for construction of Government quarters. Of course, the plaintiff has to succeed his case on his own merits but not on the weaknesses of the defendants. In the instant case, the plaintiffs perfected their title to the property by way of a decree in a suit for specific performance, that too, executed through process of Court. In the said suit the father of the plaintiff took the plea of possession over the property in the year 1964. Since the said 16 decree and judgment have become final, a presumption can be drawn that the plaintiffs are in possession of the property even in the year 1964 i.e. by the date of agreement of sale executed by Shaik Ahmed in favour of father of the first plaintiff. Since the plaintiffs succeeded in claiming that they are in possession of the property in the year 1964 itself, i.e. three years even before filing of O.S.No.69 of 1967, the plaintiffs have established their plea of adverse possession to the date of filing of the present suit in the year 1995. The period of limitation presumed to have started from 1964. So from 1964 to 1995 the period of 30 years limitation is fulfilled by the plaintiffs.
38 In that view of the matter, the plaintiffs have succeeded on all issues. Therefore, the findings of the trial Court on this Additional Issue No.2 are also liable to the set aside. 39 In the result, the appeal is allowed, setting aside the judgment and decree dated 14.6.2004 passed in O.S.No.85 of 1995 on the file of the Court of the I Senior Civil Judge, City Civil Court, Hyderabad. No order as to costs. Miscellaneous petitions, if any, pending in this appeal, shall stand closed.
__________________________ T. AMARNATH GOUD, J.
Date: 27.9.2021 Kvsn