HON'BLE Smt. JUSTICE P.SREE SUDHA
APPEAL SUIT No.248 of 2007
JUDGMENT
1. This appeal is directed against the judgment and decree dated 03.11.2006 passed in O.S.No.52 of 2001 on the file of the learned IV Additional District and Sessions Judge, Fast Track Court, Ranga Reddy District, wherein and whereby the suit filed by the plaintiffs is dismissed.
2. Sons of Mr.Babaiah filed suit for declaration of title and for perpetual injunction against the brother's children of Mr. Babaiah. The case of the plaintiffs in brief is that M.Babaiah- father of plaintiff Nos.1 to 4 was the pattadar and possessor of the lands bearing Sy.Nos.5, 247, 250, 251, 253 and 254 admeasuring Ac.1.22 guntas, Ac.2.09 guntas, Ac.1.23 guntas, Ac.0.06 guntas Ac.1.37 guntas and Ac.9.05 guntas respectively, total admeasuring Ac.16.19 guntas, situated at Yapral Village, Malkajgiri Mandal, Alwal Municipality, Ranga Reddy District. The said M.Babaiah died intestate on 21.10.1982 leaving the plaintiffs as his legal heirs. The said Babaiah during his life time acquired the suit lands with his own funds and thus they are the self acquired properties. The name of Babaiah was recorded 2 as pattadar and possessor since 1954-55 onwards in the revenue records. After the death of Babaiah, the plaintiffs became owners and possessors. They submitted an application to the concerned Mandal Revenue Officer for mutation of their names on 14.02.1994 in writing and orally requested on 03.09.1998, but the Mandal Revenue Officer without following the rules and the procedure and in collusion with the defendants issued ROR proceedings under ROR/Yapral/21/899 dated 20.06.1995 without any notice to the plaintiffs prior to the passing of the proceedings. Aggrieved by the said proceedings the plaintiffs preferred an Appeal before the Revenue Divisional Officer, Chevella Division. By proceedings No.C/1086/1996 dated 06.09.1999 the Revenue Divisional Officer allowed the appeal and set aside the orders of the Mandal Revenue Officer dated 20.06.1995 and directed them to approach the competent civil Court. Aggrieved by the said order the defendants preferred Revision Petition in D5/6986/1999 before the Joint Collector, Ranga Reddy District, and he remanded the matter for de nova enquiry. As per Section 8(2) the plaintiffs have got right to institute a suit against the defendants who denied their title and an entry in record of rights shall be amended in accordance with any such 3 declaration. As such the plaintiffs filed suit for declaration of title, but the defendants in collusion with patwari and revenue officials filed an application for mutation of suit schedule property in their names claiming equal shares along with the plaintiffs as per the family settlement deed dated 02.05.1975.
3. The defendants in their counter in the appeal stated that M.Babaiah was not the exclusive owner of the suit lands. As M.Babaiah was an elder member of the family, his name was recorded in the revenue records and the suit lands are ancestral properties but not self acquired properties of Babaiah and they were acquired by the grandfather of the plaintiffs and Defendant Nos.1, 2, 4 and late Anjaneyulu, the husband of D.3 and father of Defendant Nos.4 and 5 and M.Narasimhulu father of defendant No.7 and after the death of M.Narasimhulu the name of Babaiah was recorded as pattadar on behalf of his brothers. It was also pleaded that prior to the family settlement between the plaintiffs and the defendants, the suit schedule lands were divided into five shares and were allotted each one including the plaintiffs during the year 1960 and since then each family is in possession and enjoyment of their respective shares. But in the year 1975, Ac.20.00 guntas were acquired from the possession of all the share holders by the Government for purpose of 4 defence quarters and as such the family settlement was written in the year 1975 and in pursuance of the same compensation was awarded for acquiring the land was to be distributed equally in five shares and accordingly the amount was apportioned and the Land Acquisition Officer was also passed orders in the award. Aggrieved by the said award, the plaintiffs and the defendants referred the matter to the civil Court for enhancement of compensation and it is still pending. The plaintiffs stated that the alleged settlement deed dated 02.05.1975 is not a genuine document. On 27.03.2001 and 21.05.2001 the defendants attempted to dispossess the plaintiffs and also threatened to bring some more persons and hence the plaintiffs filed the suit.
4. In the written statement filed by the defendants, they denied the ownership and possession of late Babaiah and also the acquisition of the properties by the said Babaiah with his own funds and submitted that they are not the self acquired properties. The defendants further stated that pending the proceedings before the Mandal Revenue Officer, the plaintiffs filed speculative suit to harass the defendants and that the defendants prevented the interference of the plaintiffs in the suit schedule property on 27.03.2001 and 21.05.2001. The 5 defendants would further submit that the suit schedule properties originally belongs to Mandala Narasimhulu who died in the year 1950 and he was survived by five sons. The details are shown as follows:
MANDALA NARSIMULU Died in 1950 M.Babaiah Chinna M.C.Pentaiah Gandaiah M.Rana-
died in 1992 Venkaiah died in 1959 died in 1980 lingam
died in 1994
V.Narsimha M.Anjaneyulu P.Narasimulu Muralidhar
Pratap Krishna Sudhakar
Lingam
Chinna
Narsimha
Srinivas Swaroopa Rani
Parvathamma Swapna
Sagar
5. It was further stated that after the death of Mandala Narasimhulu the lands were jointly cultivated by Babaiah and his brothers and as he was eldest son he acted as Kartha of the joint family. In the year 1960 the oral partition was effected, which was reduced in the form of memo of past settlement in the presence of mediators and also attested by the then Sarpanch of the Village Yapral. Sy.No.16 alone was not partitioned as tenant was in possession and they are all in joint possession of the suit schedule properties and their names were reflected in khasra pahani. In the year 1970 the Government 6 acquired the land for defence purpose including part of suit schedule lands. As the lands were in the name of Mandala Babaiah to pay compensation as per the shares, a draft for clarification was drawn in the presence witnesses by the first plaintiff with his own handwriting admitting and acknowledging the past oral partition. In the land acquisition proceedings Mandala Babaiah stated that the suit schedule properties are joint family properties and they are partitioned by metes and bounds and requested for apportionment of compensation as per their shares and accordingly the Land Acquisition Officer passed an award and it was not challenged and rythu pass books were also issued to all the share holders and the defendants are in possession of their respective shares. The plaintiffs wrongly mentioned the boundaries of the suit lands and the details of the shares of the plaintiffs and the defendants were mentioned in detail. As the plaintiffs suppressed the facts, they are not entitled for declaration and injunction and it was also stated that in the year 1980 one Jagannadha Rao agreed to purchase Ac.4.00 guntas of land in Sy.No.254 of Yapral Village and a General Power of Attorney was executed in his favour but it was cancelled by them.7
6. The case of the defendants is that they filed an application before the Mandal Revenue Officer for mutation of their names in the revenue records, in which a notice was issued, Grama Sabha was held and plaintiffs were present but not objected, but started blackmailing the defendants demanding money on the ground that they will help for mutation. When the defendants refused to pay the amount, the plaintiffs filed an application before the Revenue Divisional Officer, East Division. The plaintiffs have sold away most of the properties allotted to them and they are creating hurdles for enjoyment of the properties allotted to the defendants and hence requested the Court to dismiss the suit.
7. On behalf of the plaintiffs, the first plaintiff was examined as P.W.1 and one K.Sudershan was examined as P.W.2. Exs.A1 to A5 were marked. The sixth defendant was examined as D.W.1 and Exs.B1 to B12 were marked on behalf of the defendants. Though the affidavit of D.W.1 was filed on 18.04.2006 in lieu of chief-examination, documents were marked on 25.04.2006 and it was represented that there is likelihood of compromise the subject matter of the suit in question and on that ground several adjournments were granted. On 29.08.2006 a conditional order was passed and the evidence of defendants 8 was closed and the matter is posted for arguments on 12.09.2006. As no one appeared on that day the case is reserved for judgment. The trail Court held that the burden lies on the defendants to prove Issue Nos.1 and 2. But D.W.1 failed to appear and he was not subjected to cross examination and as such his evidence and the documents were not proved and hence it was held that the said issues are not proved. In so far as Issue Nos.3 and 4 are concerned, the burden lies on the plaintiffs. During the cross-examination of P.W.1, Exs.B1 to B3 were marked by confronting to the witness. In the said documents, the name Mandala Babaiah was mentioned as pattadar and column No.13 it was mentioned as Mandala Babaih Modalaguvaru and in the pahani for the year 1958-59 in column No.11 and 16 it was mentioned as Mandala Babaiah and vagairalu and under Ex.B2 pahani patrikas in column No.11 it was mentioned as Mandala Babaiah and thammulu. In Ex.B2 the name of Mandala Babaiah was mentioned as pattadar and in cultivation column the names of Venkaiah, Rajalingam, Pochaiah and Gandaiah were recorded as cultivators. Ex.B3 is the certified copy of claim petition filed before the Land Acquisition Officer and it is filed in respect of acquisition of land in an extent of Ac.10.19 guntas in Sy.No.245 and Ac.9.16 9 guntas in Sy.No.247 in which Mandala Babaiah claimed 1/5th share in the lands. In the cross-examination of P.W.1 when it was suggested that the defendants are the brothers of Babaiah, he denied the same but admitted regarding receiving of compensation by all the brothers. P.W.1 also admitted that in the year 1995 the Mandal Revenue Officer, Malkajgiri, issued pattadar pass books to the defendants to the extent of their shares and he further stated that he do not know how his father acquired the properties. The plaintiffs filed copy of Chowfasla and phanies. In view of admissions made by P.W.1 in his cross- examination it was held that the evidence proves the relationship between the plaintiffs and the defendants as co-shareres. The plaintiffs failed to examine the person who made the entries in the revenue records. P.W.2 simply stated that the suit schedule properties are self acquired properties of the plaintiffs' father and as such they are in possession of the same. As the evidence of P.Ws.1 and 2 is not supported by the documentary evidence, the trial Court observed that the plaintiffs cannot depend upon the weaknesses of the defendants and they failed to prove their case and accordingly dismissed the same.
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8. Aggrieved by the said judgment, this appeal is preferred by the plaintiffs. The learned counsel for the appellants- plaintiffs would mainly contend that though D.W.1 did not turn up for cross-examination, the oral evidence of the plaintiffs was unrebutted, the trail Court erred in appreciating the same. Learned counsel would further assert that there is no evidence before the trail Court to show whether the lands purchased by Babaiah were from any ancestral property or out of the funds provided by the joint family and that the trial Court considered Exs.B1 to B3 though they have no bearing on the claim of the appellants. Mere mentioning of the names of the brothers of late Babaiah as cultivators will not give them any right except tenancy right. Learned counsel would also assert that even in the absence of contrary evidence by the defendants, the trial Court erred in stating that the burden of the plaintiffs was not discharged. Learned counsel would also argue that mere entries in the revenue records, without any basis, do not confer any right or entitlement to the parties. The trial Court erred in considering the fact that the evidence of P.Ws.1 and 2 is not supported by documentary evidence and also failed to consider Exs.A4 and A5. Learned counsel would also assert that Exs.B4 to B12 were marked and not subjected to cross-examination 11 and as the evidence of D.W.1 was eschewed, the evidence of P.Ws.1 and 2 was not appreciated in proper perspective and therefore requested the Court to set aside the judgment of the trial Court.
9. Learned counsel for the appellants would rely upon the case law reported in UTTARADI SRIVAISHNAVA MUTT V/s. THE COLLECTOR1 in which it was held that "where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct." Learned counsel for the appellants- plaintiffs would also argue that as D.W.1 has not entered into the witness box and not presented himself for cross- examination, an adverse presumption has to be drawn against him on the basis of the principle contained in Section 114 of the Evidence Act.
10. Perusal of the record shows that the appellants herein filed written arguments before the Revenue Divisional Officer in which they stated that the respondents kept quiet for thirty five years without claiming any rights. As per revenue records from 1 MANU/AP/0694/2022 12 1954-55 onwards till 1994-95 the name of Babaiah was recorded as pattadar and possessor and after his death the names of the appellants were recorded and under the guise of ROR orders, the Mandal Revenue Officer issued pass books and they are liable to be cancelled. The appellants also contended that the recording authority or the Mandal Revenue Officer has no power for dividing the entire land and allowing the shares except civil Court. The appellants stated that as per the khasra pahani 1954-55 the name of Babaiah was recorded as pattadar and it clearly shows that the lands are self acquired properties of Babaiah and thus respondents have no right. From 1954-55 till 1994-95 the name of the father of the respondents or the respondents were not recorded as pattadars and as such they have no right in the said lands. The appellants herein filed an application before the Mandal Revenue Officer for grant of succession after the death of their father but the respondents have not filed any succession proceedings. Even without any succession proceedings, ROR authority came to the conclusion that the appellants and respondents are only parties and the said conclusions are void and illegal as per the Succession Act, 1956, if at all it is an ancestral property, all the co sharers including the daughters of late Babaiah were also entitled to the 13 shares and it is to be decided by the civil Court. It was also held that though respondents stated that there was a family settlement on 02.05.1975, the said document is not filed. Moreover, it requires stamp duty and registration otherwise it is inadmissible in evidence and cannot be relied upon. They further stated that respondents have not filed any documents to show that late Narasimhulu was the pattadar and possessor of the land at any point of time and also disputed the sale of land in Sy.No.16. They further stated that the family settlement between Babaiah and his brothers is not valid as it was not signed by the major sons of Babaiah. They further stated that the Land Acquisition Officer has given Ac.6.15 guntas towards compensation to Babaiah and to the others to an extent of Ac.3.15 guntas.
11. Considering the above said arguments the Revenue Divisional Officer, stated that the order of the recording authority cannot stand to the legal scrutiny and is to be set aside and the pattadar pass books issued are to be cancelled. As the partition of immovable properties is in dispute, the parties are advised to seek remedy available to them before the competent civil Court.
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12. Aggrieved by the said order the respondents in the suit filed an appeal against the order of the Revenue Divisional Officer before the Joint Collector in which they filed written arguments along with certain documents. They mainly contended that there was a family settlement dated 02.05.1975 and it was signed by Babaiah and his son Venkata Narsaiah. They also stated that the Mandal Revenue Officer after verifying physical possession and records in the Grama Sabha held in the Village with the knowledge of the respondents passed the orders, but they kept quiet till 1999 and filed appeal before the Revenue Divisional Officer. The Revenue Divisional Officer instead of remanding the matter for proper scrutiny instructed them to approach the civil Court. It seems that they also filed implead applications, but they were dismissed.
13. The Joint Collector observed that as per the revenue records i.e. setwar and wasoolbqui for the year 1953 regarding the lands of the appellants in the said survey numbers, patta was in the name of Mandala Babaiah Vagairalu and even in the Khasra Pahani 1954-1955 and the pahani for the year 1958-59, 1962-63 and 1969-70 it was recorded as Mandala Babaiah Vagairalu/Mandala Babaiah Modalaguvaru. In other pahanies for the years 1970-71, 1974-75, 1978-79, 1992-93 and 1994-95 15 the name of Mandala Babaiah was recorded as pattadar and the name of the respondents was shown as occupants. It clearly shows that the brothers of Babaiah are also coparceners and were in possession and enjoyment of the said lands. As per the partition deed executed on 02.05.1975 there was an amicable settlement between Mandal Babaiah and his brothers and they have partitioned their properties about fifteen years back among five brothers and they were in possession and enjoyment of the lands. Ac.20.00 guntas was acquired by the Government and an Award was passed on 29.07.1981. As the Mandala Babaiah got Jeshta Bhagam, the compensation was awarded for an extent of Ac.6.15 guntas in his favour and Ac.3.15 guntas in favour of others and apart from that they also mentioned regarding the subsequent sales. Basing on the arguments of both sides, the Joint Collector observed that the Mandal Revenue Officer has not issued notice to the respondents and when there were more claims for similar property, the Mandal Revenue Officer should have given an opportunity to the sons of deceased pattadars and their statement was also not recorded before allowing the shares of the revision petitioners. The copy of the alleged partition deed executed in the year 1975 is available in the file and that the Revenue Divisional Officer failed to record the 16 statement of the shareholders and then he should have passed orders granting succession-cum-partition if there was no dispute. As per the partition deed all the shareholders are not having shares in all the lands and they have to demarcate the lands to the extent of their shares according to their possession and as such the matter was remanded to the Mandal Revenue Officer with a direction to follow the procedure and decide the matter as per their physical possession by metes and bounds as all the parties are the coparceners of the joint family property after thorough enquiry by not only giving notices but also hearing them personally in an order dated 05.03.2001.
14. The appellants herein are sons of plaintiff. They stated that their father alone was pattadar of the suit schedule property and the lands are his self acquired properties. As he died intestate, being his legal representatives they are entitled for the entire property. Whereas the respondents stated that the properties are ancestral properties of late Mandala Narsimhulu and Mandala Babaiah was his eldest son. Mandala Babaiah along with other brothers entered into a partition deed way back in the year 1975 and divided the lands into five equal shares as Babaiah was kartha of the family. Even when the land of Ac.20.00 guntas was acquired by the Government, he got 17 Jeshta Bhagam for an extent of Ac.6-15 guntas and other brothers got Ac.3-15 guntas and in the pahani patrikas filed before the authorities not only the name of Babaiah but also his brothers' names were mentioned as possessors or cultivators of the land.
15. Considering the arguments of both the parties, the Joint Collector remanded the matter to the Mandal Revenue Officer with a direction to give due opportunity to both sides, demarcate the lands and thereafter allot the same to the respective parties.
16. No doubt, the plaintiffs herein filed suit when the mutation orders were affected by the Mandal Revenue Officer in favour of the respondents herein apart from preferring an appeal before the Revenue Divisional Officer, but it is for them to establish their case as they filed suit for declaration of property and injunction it is for the plaintiffs to establish their case and they cannot simply rely upon the weaknesses of the defendants. Therefore, the argument of the learned counsel for the appellants that in spite of the fact that D.W.1 did not enter into one witness box, the trial Court dismissed their suit erroneously is not tenable. The trial Court rightly appreciated 18 the evidence of plaintiffs and held that they failed to prove their case and accordingly dismissed the suit. There is no infirmity in the judgment of the trial Court and it needs no interference.
17. In the result, the appeal is dismissed by confirming the judgment of the trial Court. However, there shall be no order as to costs.
18. Miscellaneous Petitions, if any, pending in this appeal shall also stand dismissed in the light of this final order.
____________________ P.SREE SUDHA, J.
25th NOVEMBER, 2022.
PGS