Telangana High Court
Kampati Venkateswrlu And Another vs Maddineni Sravan Kumar And 4 Others on 27 December, 2023
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
SECOND APPEAL No.161 of 2014
JUDGMENT:
This Second Appeal is filed by the appellants, who are the defendants 1 and 2 in O.S.No.206 of 2007 aggrieved by the judgment and decree dated 31.01.2014 in A.S.No.106 of 2013 on the file of the Court of the I Additional District Judge, Khammam confirming the judgment and decree dated 31.10.2013 in O.S.No.206 of 2007 on the file of the Court of the Senior Civil Judge, Khammam.
2. The appellant No.1 died during the pendency of the appeal and the appellants 3 to 5 were brought on record as legal representatives of the deceased appellant No.1 vide order dated 23.08.2022 in S.A.M.P.No.2322 of 2016.
3. The respondent No.1 - plaintiff filed a suit for declaration and injunction, for correction of entries in the revenue records and cancellation of registered sale deed document No.2265 of 2007 dated 14.05.2007 executed by the appellant No.1 - defendant No.1 in favour of appellant No.2 - defendant No.2.
4. The parties are hereinafter referred as arrayed in O.S.No.206 of 2007 for the sake of convenience.
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5. The case of the plaintiff was that the suit schedule property i.e.Ac.2- 33gts. of land in Survey No.246/E of Tirumalayapalem Village and Mandal, Khammam District was the ancestral property of Maddineni Family and the plaintiff's grandfather succeeded to the property during partition. The pahani copies for the years 1994 to 2003 and 2006-2007 issued by revenue authorities would confirm the title of the grandfather of the plaintiff. The suit schedule property was a dry land. The land was kept fallow for several years due to severe drought conditions. One Kampati Anjaiah, the brother of defendant No.1 and R/o.Pindiprolu village, developed greedy eye over the suit schedule property, since the land was situated near R&B road and insisted the grandfather of the plaintiff to sell the same at a cheaper rate and when the grandfather of the plaintiff refused to sell the same, he started creating troubles. The grandfather of the plaintiff by name Maddineni Rangaiah executed a gift deed in favor of plaintiff vide document No.4004 of 2006 dated 15.12.2006 and registered the same in the Office of the Sub-Registrar, Kusumanchi. Since the date of execution of the said gift deed, the plaintiff was in possession and enjoyment of the same. The plaintiff had applied to the revenue authorities in the month of December, 2006 for issuance of pattadar passbook and title deed in his favour. After execution of the gift deed by Maddineni Rangaiah in favour of the plaintiff, Kampati Anjaiah the brother of the defendant No.1 started interfering with the possession and enjoyment of the plaintiff. As such, the 3 Dr.GRR, J sa_161_2014 plaintiff filed a suit before the Principal Junior Civil Judge, Khammam vide O.S.No.1228 of 2006 against Kampati Anjaiah, seeking the relief of perpetual injunction and obtained ad interim injunction order. Kampati Anjaiah after entering appearance did not choose to file written statement and counter. Finally, he was set ex-parte and the suit was decreed in favour of the plaintiff on 05.06.2007. During the pendency of the said suit, the plaintiff having noticed that Kampati Anjaiah, the brother of the defendant No.1 was making hectic efforts to manipulate the revenue records in collusion with defendant No.5, filed an application vide I.A.No.587 of 2007 to summon the Mandal Revenue Officer to produce the relevant records from the year 1990 up to date. The respondent therein, Kampati Anjaiah without filing counter dragged the matter and finally got manipulated the records and obtained pattadar passbook and title deed in favour of his brother, the defendant No.1 herein. The defendant No.5 i.e. the Mandal Revenue Officer (Tahsildar, Tirumalayapalem) without issuing notice as contemplated under the Record of Rights (for short "ROR") Act and its Rules to the affected parties including the plaintiff and his grandfather who were in possession of the land and without considering and disposing of the application filed by the plaintiff in December, 2006 for issuance of pattadar passbook and title deed, issued pattadar passbook and title deed in favour of defendant No.1 in the month of March, 2007 by making false entries in the records. The plaintiff after suspecting the malafides of the defendant No.1, obtained certified copies 4 Dr.GRR, J sa_161_2014 of the relevant records and found that the 1st defendant in collusion with defendant No.5 manipulated the records by making some wrong entries and got filed an objection petition from Maddineni Family by one M.Ganapathi, as if he had got objection to issue passbook in favour of defendant No.1 and the defendant No.5 without issuing notice to the affected parties i.e. the plaintiff or his grandfather, knowing fully well that he was the title holder of the property and without conducting proper enquiry as to the possession of the land as contemplated under the ROR Act and Rules, passed a cryptic order unilaterally concluding that defendant No.1 was the rightful owner and requested defendant No.4 to accord permission to issue passbook and title deed vide letter R.C.No.ROR/62/2005 dated 26.02.2007. Immediately, on the next date i.e. on 27.02.2007, the defendant No.4 without going through and verifying the records accorded permission to issue passbook and title deed in favour of defendant No.1. The plaintiff contended that Maddineni Ganapathi was no way concerned and was having no right and interest in the suit schedule property. 5.1. The plaintiff further submitted that defendant No.1 immediately after obtaining passbook and title deed fraudulently sold the property in favour of defendant No.2 vide registered sale deed document No.2265 of 2007 dated 14.05.2007 of Sub-Registrar, Kusumanchi without any valid title. Under the guise of the registered sale deed executed by defendant No.1, the defendant No.2 in collusion with defendant No.1 was trying to interfere with the 5 Dr.GRR, J sa_161_2014 possession and enjoyment of the plaintiff over the suit schedule property and on 25.06.2007, the defendants 1 and 2 threatened the plaintiff and his father with dire consequences and obstructed them from entering into the suit schedule property. The plaintiff approached defendant No.5 for correction of entries in the ROR by filing representation. But, the authorities instead of enquiring into the matter, informed the plaintiff to prefer an appeal before higher authorities to decide the matter. The plaintiff preferred appeal before the Revenue Divisional Officer (for short "RDO"). The plaintiff contended that defendants 1 and 2 without any manner of right over the suit schedule property, taking undue advantage of false entries being made in the revenue records were claiming possession over the suit schedule property. As such, he was entitled to seek declaratory relief under Section 34 of the Specific Relief Act, 1963 to declare his right and title to the property and questioning the validity and legality of the entries made in the revenue records, as such filed the suit seeking the reliefs i) to declare him as an absolute owner in respect of the suit schedule property and
ii) consequentially to direct the defendants 1 and 2 and all other persons claiming through them not to interfere with his peaceful possession and enjoyment over the suit schedule property by way of perpetual injunction, iii) to direct the defendants 3 to 5 for effecting correction of entries in the revenue records by deleting the names of defendants 1 and 2 and to incorporate the name of the plaintiff in respect of the suit schedule property and iv) for cancellation of 6 Dr.GRR, J sa_161_2014 the registered sale deed bearing document No.2265 of 2007 dated 14.05.2007 executed by defendant No.1 in favour of defendant No.2.
6. The defendant No.2 filed written statement and the same was adopted by defendant No.1. The defendant No.2 contended that originally Maddineni Pentaiah was the pattadar of land in Survey No.246 and he sold an extent of Ac.1-20gts. of land through an unregistered sale deed to defendant No.1 in the year 1979 and the remaining land of Ac.2-00gts. was sold to Sale Sundaraiah and Sale Sundaraiah in turn sold it to defendant No.1 through an unregistered sale deed in the year 1987. As Sale Sundaraiah died, the statement of his wife Sale Santamma was recorded and both the unregistered sale deeds were regularized under the ROR Act. Therefore, the defendant No.1 became the pattadar of the entire land and after excluding the land covered by donka, the title deed was issued to an extent of Ac.2-33gts. and the same was purchased by defendant No.2 through registered sale deed document No.2265 of 2007 dated 14.05.2007. All the said extents were formed into a single compact block on the spot within the boundaries mentioned in the sale deed executed by defendant No.1 in favour of defendant No.2. The possession of defendant No.1 was recorded in the pahani. In the pattadar column, the name of Maddineni Pentaiah continued until 1993-94, as the defendant No.1 did not approach the authorities under the ROR Act for regularization of sales made in his favour out of sheer ignorance. The defendant No.1 was under the bonafide belief that since 7 Dr.GRR, J sa_161_2014 possession was given to him on the respective dates of sale, no further action was necessary to be taken by him. Without notice to anyone, all of a sudden the name of Maddineni Pentaiah was removed and the name of Maddineni Rangaiah was written in column No.11 and after defendant No.1 approached the authorities under ROR Act for regularization of the sales made in his favour by the original owners, the revenue authorities regularized the same by collecting the stamp duty after thorough enquiry, recording the statements and after verifying the physical possession of defendant No.1, issued title deed and pattadar passbook in favour of defendant No.1 in respect of Survey No.246/E and defendant No.1 in turn sold the said property in favour of defendant No.2 through a registered sale deed bearing document No.2265 of 2007 dated 14.05.2007 and ever since the purchase made through the above said document, the defendant No.2 was in possession and enjoyment of the same. 6.1. He further contended that after the land was sold by Maddineni Pentaiah and Maddineni Srinivasa Rao, neither Pentaiah nor Srinivasa Rao nor any member of the Maddineni Family entered into the land at any point of time and therefore, the question of anyone cultivating the land would not arise. The plaintiff filed the suit against K.Anjaiah, who was a stranger to the suit schedule property and might have obtained an ex-parte decree, which was not binding on defendant No.1. Maddineni Rangaiah, the grandfather of the plaintiff was no way concerned with the suit schedule property. The authorities under the ROR 8 Dr.GRR, J sa_161_2014 Act regularized the sales made by Maddineni Pentaiah, father of Maddineni Rangaiah and the sale made by Maddineni Srinivasa Rao, the brother of Maddineni Rangaiah by collecting stamp duty and after verifying the unregistered sale deeds as per the powers vested with them under ROR Act. There was no necessity to issue any notice to a stranger to a property like Maddineni Rangaiah. The order passed by defendant No.5 issuing title deed and pattadar passbook in favour of defendant No.1 was a reasoned order. The name of Maddineni Rangaiah was not mentioned as pattadar in the confirmed ROR Act. On the other hand, Maddineni Rangiah had manipulated the records. The order of defendant No.5 was legally valid and title to the property was rightly conferred on defendant No.1 and the sale made by defendant No.1 in favour of defendant No.2 was perfectly valid. The defendant No.2 was in possession of the suit schedule property even before the suit was filed and therefore the question of threatening the plaintiff and his father for entering into the suit land would not arise. It was the plaintiff and his grandfather, who had brought into existence illegal documents and filed a false suit for extracting money from defendant No.2. The defendant No.1 was contesting the appeal pending before the RDO, Khammam. The gift deed executed by Maddineni Rangaiah in favour of the plaintiff was a void document. The possession of defendant No.1 over the suit schedule property ever since he purchased the same was also supported by electricity service connection given in the name of 9 Dr.GRR, J sa_161_2014 his wife to an electric pump set in the field of defendant No.1 since a decade back. After purchasing the suit schedule property, the defendant No.2 erected barbed wire fencing around the entire land and raised cotton crop which was standing in the suit schedule property and contended that the plaintiff had no cause of action to file the suit and that the suit was barred by limitation and prayed to dismiss the suit.
7. The defendant No.5 filed written statement submitting that the defendant No.1 submitted an application to defendant No.5 along with claim Form No.10 on 12.12.2005 with a request to issue pattadar passbook and title deed in his favour for the land in Survey No.246/E admeasuring Ac.2-33gts. situated at Tirumalayapalem Village and Mandal, Khammam District and as per the claim form and statement, it was observed that defendant No.1 purchased an extent of Ac.2-00gts. from Sale Santamma during the year 1987 and remaining land to an extent of Ac.1-20gts. from Late Maddineni Pentaiah (pattadar / share holder) during the year 1979 for a considerable value paid by him and cultivating the same since long time and his name was recorded during the year 1980-81, 1981-82 and 1982-83 in the revenue records. But later on, his name was not found. After receipt of the application and claim form No.10 from defendant No.1, the defendant No.5 directed the Mandal Revenue Inspector to conduct enquiry into the matter for issuance of pattadar passbook to the ryots. Meanwhile, one Maddineni Ganapathi approached defendant No.5 with an 10 Dr.GRR, J sa_161_2014 objection that the said land was not sold to any one and it was under their possession till date and the name of Maddineni Durgabayamma was figured in the pahani. The defendant No.1 approached defendant No.4 to consider the issue and to settle by issuing pattadar passbook and title deed and the said petition was forwarded to the Office of defendant No.5 with a request to enquire in detail and verify the revenue records and to obtain the statements of adjacent pattadars and to submit a detailed report. As per the directions of defendant No.5, the Mandal Revenue Inspector inspected the suit schedule property and recorded the statements of the adjoining pattadars and the statements of ryots. As per the statements of the adjoining pattadars and ryots, it was found that Sri Dondeti Babu Rao had signed on the sada sale deed at the time of payment of value of the land purchased from late Sale Sundaraiah dated 10.04.1987 admeasuring Ac.2-00gts. in Survey No.246 for a sale consideration of Rs.11,000/- and the said Dondeti Babu Rao deposed that the Maddineni Family was no way concerned for the land purchased from Sale Sundaraiah, since already the land was sold by Maddineni Pentaiah. Further Sri Kalvakuntla Veeranna of Tirumalayapalem Village deposed that he was having agricultural land very nearer to Survey No.246. The defendant No.1 and his father Ramaiah were cultivating the said lands for the past 15 years and he also deposed that he was using the well water of Kampati Venkateshwarlu since 15 years and the said well was digged in Survey No.246 by Kampati Family to raise chillies and 11 Dr.GRR, J sa_161_2014 other crops. He also stated that the possession of Maddineni Family over the land would not arise. Smt. Sale Santamma of Yedulla Cheruvu Village had deposed that her husband purchased the land on 21.03.1985 from Daravath Desya, Dharma, Sons of Badhya, R/o. of Tirumalayapalem and thereafter her husband sold the said land to defendant No.1 on 10.04.1987 and since then, the defendant No.1 was in possession and enjoyment of the said land. As per the statement of Sri Maddineni Kotaiah, he was cultivating his own land to the east side of the land belonging to the respondent No.1 since 20 to 25 years back and Maddineni Ganapathi and his family were no way concerned with the said land. On thorough enquiry through Village Revenue Officer and Mandal Revenue Inspector, Tirumalayapalem Village and basing on the documents produced by defendant No.1, the defendant No.5 found that Maddineni Pentaiah and Maddineni Durgabayamma expired long back. The name of Maddineni Durgabayamma finds no place anywhere in the revenue records. Moreover, on verification of the copies of documents of sada sale deeds and local enquiry revealed that late Maddineni Pentaiah sold away his land during his life time and subsequent change of land from one to another also took place through sada sale deeds. As per the above findings, the defendant No.5 addressed a letter to defendant No.4 vide proceedings in R.C.No.ROR/62/2005 dated 26.02.2007 to accord permission to process the issuance of pattadar passbook and title deed as per the Rules in vogue under ROR Act. After receipt of the said proceedings 12 Dr.GRR, J sa_161_2014 from defendant No.5, in turn, the defendant No.4 addressed a letter informing the defendant No.5 to inform the facts of the enquiry to the complainant and to take further course of action in the file as per record, enquiry and rules in vogue under ROR Act. Later, the case had been referred to the Sub-Registrar, Kusumanchi to furnish the necessary stamp duty and registration fee. The Sub- Registrar, Kusumanchi furnished the said details. Subsequently, after conducting due enquiry and after examination of the entire revenue records, the defendant No.4 issued 13-B Namuna document vide C.No.62/ROR/2005 dated 15.03.2007, wherein it was clearly mentioned about the payment of stamp duty and penalty. Further, the defendant No.5 also issued ROR title deed and pattadar passbook in favour of defendant No.1 in respect of the suit schedule property.
8. The defendant No.5 contended that as per their enquiry, the defendant No.1 has been in possession and enjoyment of the suit schedule property. At the time of issuing ROR title deeds and pattadar passbooks as per the statements of the neighbouring ryots, they found that defendant No.1 had been in possession over the suit schedule property since long time and purchased the same through sada sale deeds. Therefore, the allegation of the plaintiff that he was the owner and possessor of the suit schedule property through a gift deed dated 15.12.2006 executed by Maddineni Rangaiah was false and baseless. The defendant No.5 was not aware of the filing of the suit vide O.S.No.1228 of 2006 13 Dr.GRR, J sa_161_2014 against the brother of defendant No.1 and also not aware of the passing of decree in favour of the plaintiff. As per physical verification of the said land, the defendant No.1 was in possession of the land. The defendant No.5 was also not aware of the alienation of the suit schedule property in favour of defendant No.2 and prayed to dismiss the suit. The said written statement of defendant No.5 was also adopted by defendants 3, 4 and 6.
9. Basing on the said pleadings, the following issues were settled for trial:
i) Whether the plaintiff is entitled for declaration as prayed for?
ii) Whether the plaintiff is entitled for consequential relief of permanent injunction as prayed for?
iii) To what relief?
The following additional issues were also framed:
i) Whether the plaintiff is entitled to the relief of direction to the defendants 3 to 5 for effecting correction of entries in the revenue records by deleting the names of defendants 1 and 2 by cancelling ROR passbook and title deeds issued to defendant No.1 and to incorporate the name of the plaintiff in respect of the suit schedule property?
ii) Whether the plaintiff is entitled to the relief of cancellation of registered sale deed bearing document No.2285 of 2007 dated 14.05.2007 executed by defendant No.1 in favour of defendant No.2?
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10. On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A1 to A29 were marked. On behalf of the defendants, DWs.1 to 9 were examined and Exs.B1 to B32 were marked.
11. On considering the oral and documentary evidence on record, the learned Senior Civil Judge, Khammam decreed the suit granting all the reliefs as prayed for.
12. Aggrieved by the said judgment and decree dated 31.10.2013 the defendants 1 and 2 preferred A.S.No.106 of 2013. The same was heard by the I Additional District Judge, Khammam and vide judgment dated 31.01.2014 dismissed the appeal confirming the judgment and decree passed in O.S.No.206 of 2007 by the Senior Civil Judge, Khammam.
13. Aggrieved further, the defendants 1 and 2 preferred this Second Appeal. The following substantial questions of law are formulated by this Court on 01.09.2014:
1) Whether declaring title of the respondent No.1 over the suit schedule property on the ground that pahanis for the years 1994 to 2007 indicate the name of his predecessor-in-title and grandfather, M.Rangaiah, as pattadar, is contrary to the settled legal proposition that mere entries in the revenue records do not confer title on any person?
2) Whether the 1st appellant has perfected title over the suit schedule property by way of adverse possession?15
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3) Whether framing an issue as to whether the 1st respondent is entitled to the consequential relief of permanent injunction upon declaration of title, by the trial court, is contrary to the settled legal proposition that the relief of permanent injunction is not automatic and consequential upon the declaration of title and that the possession of the plaintiff as on the date of filing of the suit is decisive to grant the said relief of permanent injunction?
4) Whether the courts below committed substantial error in granting the relief of permanent injunction in favour of the 1st respondent on the basis of the pahani for the year 2006-07 (Ex.A3), which indicates the name of the predecessor-in- title and grandfather of the 1st respondent, M.Rangaiah, as pattadar and possessor of the suit schedule property, in as much as the said pahani was issued by the Village Panchayat Officer, who is not the competent authority to issue pahanis?
14. Heard Sri Syed Ghouse Basha, learned counsel for the appellants and the learned Senior Counsel Sri Vedula Srinivas for respondent No.1, who is representing Miss.Vedula Chitralekha, the counsel for respondent No.1 on record and the Government Pleader for Appeals for respondents 2 to 5.
15. The learned counsel for the appellants contended that the case of the respondent - plaintiff was that he acquired the property through a registered gift deed executed by his grandfather Maddineni Rangaiah. The basis for the gift deed was a pahani for the year 2006-2007 issued by the Panchayat Secretary, Tirumalayapalem. The Joint Collector, Khammam had passed order in Revision Petition No.18 of 2011, which was a revision against the order passed 16 Dr.GRR, J sa_161_2014 by the RDO, Khammam dated 12.07.2011. In the said order, the Joint Collector held that the pahani for the year 2006-2007, which would form the basis for creation of the gift deed bearing No.4004 of 2007, was without any record and illegal. The said order became final, as the same was not challenged in any Court. The order of the Joint collector was filed as additional evidence in S.A.M.P.No.1438 of 2017. Maddineni Rangaiah was never shown to be the possessor except shown as pattadar for the years 1994 - 1995 to 2004 - 2005. PW.1 categorically admitted in his cross-examination that no document was filed to show that there was any partition, which was the case of the plaintiff. As per the plaint, Maddineni Rangaiah succeeded to the property during partition. The mode of acquisition of property by Maddineni Rangaiah was not stated by the plaintiff. No document was filed and no evidence was led to show that Maddineni Rangaiah had got title to the property. Admittedly, Maddineni Rangaiah was never shown to be in possession of the property as per Exs.A1 to A28. It was not the case of the plaintiff that Maddineni Rangaiah had inherited the property from his father Maddineni Pentaiah. As per the plaint, Maddineni Rangaiah got the property directly from his grandfather Maddineni Chinna Appaiah. The basis for the plaintiff to support his case was the revenue record marked under Ex.A2, wherein Maddineni Rangaiah was shown as pattadar only and not possessor from 1994 - 1995 to 2004 - 2005. The mode of acquisition was not shown in Ex.A2. Ex.A2 could not convey title on M.Rangaiah for the 17 Dr.GRR, J sa_161_2014 simple reason that M.Chinna Appaiah had two sons M.Pentaiah and M.Veerabadraiah, and M.Pentaiah had six children M.Rangaiah, M.Harinath, M.Ganapathi, M.Srinivas, M.Venkateshwarlu and M.Haragopal. M.Rangaiah had two sons M.Venkateshwarlu and M.Nageshwar Rao. The plaintiff was the son of M.Venkateshwarlu. As such, by including the name of M.Rangaiah in pattadar column illegally would not confer any title to M.Rangaiah in view of the settled law that revenue entries would not create any title.
16. He further contended that the finding of the trial court was that the name of M.Pentaiah was not found in the revenue records. But, in fact as per the statements submitted as additional evidence in S.A.M.P.No.114 of 2006, M.Pentaiah was shown to be the possessor till the year 1983-84 along with others including the name of the father of the 1st defendant Kampati Ramaiah. The name of the father of the 1st defendant was reflected in the possessor column from the year 1980. Ex.A1 was based upon Ex.A3. Ex.A3 was proved to be forged and illegal document as per the order of the Joint Collector in Revision Petition No.18 of 2011. Ex.A2 was without any basis and would not convey any title. As such, suit for declaration could not be decreed on the basis of weakness of the case of the defendants. But the courts below had appreciated the evidence in a perverse manner. Without considering the case of the plaintiff, considered the case of the defendants. The trial court granted the relief of injunction as a consequential relief on the basis of 18 Dr.GRR, J sa_161_2014 declaration granted to the plaintiff without considering the admissions made by PW.1 and the documents filed by the appellants. PW.2 also admitted that it was defendant No.1 who was cultivating the property as tenant. As per the contents of the plaint, the suit schedule property was kept fallow.
17. He further contended that the first appellate court by perverse appreciation of evidence had held that no appeal was filed against the order of the RDO, which was against the record. Thus, the final court of fact had committed a grave factual mistake. The first appellate court in ignorance of the facts held that the defendants claimed the right through the predecessor of the plaintiff and placed the burden upon the defendants and came to a wrong conclusion without framing proper issues and proper appreciation as contemplated under Order XLI Rule 31 of CPC.
18. He further contended that both the courts below failed to appreciate that the appellants were paying electricity charges since more than two decades exhibiting their possession and ignored the admissions made by PW.1 that the defendants were in possession of suit schedule property and that he should file a suit for recovery of possession. It was the case of no evidence, as the plaintiff had not entered the witness box and the General Power of Attorney (for short "GPA") holder, who gave evidence as PW.1 had not filed any GPA on behalf of the plaintiff and no permission was obtained as per rules. Nowhere in the entire 19 Dr.GRR, J sa_161_2014 chief affidavit of PW.1, he stated that he had personal knowledge of all the events. It was settled law that in a suit for declaration of title, the case has to be decided on the basis of oral and documentary evidence adduced by the plaintiff without looking into the case of the defendants. The plaintiff could not take advantage of the weakness of the case of the defendants. Except Exs.A1 to A3 and the evidence of PWs.1 to 3, there was nothing on record to prove the case of the plaintiff. The evidence of PWs.1 and 2 disproves the evidence of PW.3 and relied upon the judgment of the Hon'ble Apex Court in Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others 1, on the aspect that burden lies upon the plaintiff to establish his case irrespective of whether defendants prove their case or not and that entries in the revenue records would not confer any title.
19. The learned counsel for the appellants also relied upon the judgments of the Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) by LRs. and Others v. K.V.P.Shastri (Dead) by LRs. and Others 2, Ishwar Das Jain (Dead) by LRs v. Sohan Lal (Dead) by LRs. 3 dated 29.11.1999, Abdul Raheem v. The Karnataka Electricity Board and Others 4 and Leela Soni and Others v. Rajesh Goyal and Others 5 on the aspect that substantial 1 (2014) 2 SCC 269 2 Civil Appeal No.6183 of 2001 dated 10.12.2013 3 (2000) 1 SCC 434 4 Civil Appeal No.5320 of 2007 dated 20.11.2007 5 Civil Appeal No.6116 of 2000 dated 03.09.2001 20 Dr.GRR, J sa_161_2014 questions of law would arise when the findings of the courts below were contrary to the record and perverse.
20. He also relied upon the judgment of the Hon'ble Apex Court in Yabdyarlaros Dajiba Shrawane (Dead) v. Magniolrasl Harakchand Shah (Dead) 6 on the aspect that when the judgment of the final court of fact was based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence, the High Court in Second Appeal is entitled to interfere with the judgment. The finding of fact ignoring the admissions or concessions was vitiated in law and can be interfered with by the High Court in the Second Appeal.
21. He also relied upon the judgments of the Hon'ble Apex Court in Janki Vasudeo Bhojwani & Another v. Indusind Bank Limited 7 and also relied upon the judgment of the High Court of Telangana in N.Narasing Rao v.Gomathy B.Kumar 8, on the aspect that a General Power of Attorney Holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
22. He also relied upon the judgment of the High Court of Andhra Pradesh at Hyderabad in K.Mallikarjuna Vara Prasad v. K.Purnachander Rao (Dead) 6 Civil Appeal No.1798 of 1991 dated 02.08.2002 7 (2005) 2 SCC 217 8 Civil Revision Petition No.6642 of 2018 dated 19.11.2018 21 Dr.GRR, J sa_161_2014 and Others 9 in Second Appeal No.693 of 1994 on the aspect that the power of attorney is not a substitute for a party and he could not speak about the facts which were exclusively within the knowledge of the party concerned, who was his principal.
23. He also relied upon the judgment of the Hon'ble Apex Court in Mohinder Kaur v. Sant Paul Singh 10 on the aspect that where a party to the suit does not appear in the witness box and states his own case on oath, a presumption would arise that the case set up by him was not correct
24. He also relied upon the judgment of High Court of Kerala in Nalini and Others v. Padmanabhan Krishnan and Others 11 on the aspect that the maxim "possession follows title" is applicable in cases where it has been proved that the person having the title was once in actual possession and the application of the principle is based on the presumption of the continuance of that possession.
25. The learned counsel for the respondent - plaintiff on the other hand contended that the appeal was filed against the concurrent judgments and decrees of the courts below. Both the courts below had recorded categorical findings that the entries in the revenue records were manipulated and were not genuine and that the pattadar passbook and title deed relied by the appellants 9 (2006) 6 ALD 333 10 (2019) 9 SCC 358 11 AIR 1994 Kerala 14 22 Dr.GRR, J sa_161_2014 were obtained behind the back of the plaintiff, without notice to the plaintiff and without any enquiry and without following the procedure established by law.
26. Having come to know of the illegally obtained pattadar passbook and title deed by the appellants, the respondent - plaintiff filed an appeal before the RDO and the said appeal was allowed. A revision petition was filed by the appellants questioning the order of the RDO and the revision petition was disposed observing that there was a serious title dispute between both the parties and as the second appeal was pending, gave a direction to the parties in whose favour the High Court decides the Second Appeal to approach the Tahsildar, Tirumalayapalem for making necessary amendments in the entries made in the revenue records, as such the appellants could not rely upon the entries made by the Tahsildar or by the pattadar passbooks and title deeds issued to defendant No.1. Basing on the pattadar passbook and title deed issued to defendant No.1, defendant No.1 i.e. the appellant No.1 sold the property to the appellant No.2. Only if the appellant No.1 (defendant No.1) was the owner of the property, he would be entitled to sell the property to appellant No.2. The sadabainamas on which the defendant No.1 was relying were created and concocted documents. As the entire revenue records relied by the appellants - defendants got washed away and the plaintiff established a superior title over the appellants - defendants, the Second Appeal was liable to be dismissed. 23
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27. He further contended that the respondent - plaintiff based his claim on a registered gift deed. The name of the grandfather of the plaintiff by name M.Rangaiah was recorded as pattadar for more than ten years in the revenue records, the suit schedule property was ancestral in nature. There were no sale deeds in the hands of the family members. The contention of the plaintiff was that partition took place between the sons of M.Pentaiah and the suit schedule property came to the share of M.Rangaiah, the grandfather of the plaintiff. M.Srinivasa Rao (S/o.M.Pentaiah & B/o.M.Rangaiah) was examined as DW.9. He also admitted in his cross-examination about the family partition and each member getting five acres of land. The appellants - defendants were bound by the admissions made by their own witnesses. The plaintiff got examined his grandfather who executed the gift deed in his favour as PW.2. Exs.B1 to B3 were immediately contradicted by PW.2. The sada bainamas were not even unregistered sale deeds, but were only agreements of sale. No survey numbers and boundaries were mentioned in the said documents. They could not be regularized. In Ex.B12, the survey number was left blank. The Tahsildar validated them without issuing notice to PW.2. The High Court may look into evidence when both the courts wrongly determined the issues and relied upon the judgments of the Hon'ble Apex Court in S.Subramanian v. S.Ramasamy 24 Dr.GRR, J sa_161_2014 and Others 12 and in K.N.Nagarajappa and Others v. H.Narasimha Reddy 13 on the scope of Second Appeal.
28. He further contended that PW.1 took leave of the Court before giving evidence and filed I.A.No.1572 of 2011 to permit him to appear on behalf of the plaintiff as his GPA holder and to act on behalf of the plaintiff. The said petition was allowed on 16.11.2011. PW.1 being the father of the plaintiff had personal knowledge of all the facts of the case and was entitled to depose and relied upon the judgment of the Hon'ble Apex Court in Man Kaur (Dead) by LRs. v. Hartar Singh Sangha 14.
29. He also relied upon the judgment of the Hon'ble Apex Court in Poona Ram v. Moti Ram (Dead) by LRs. and Others 15 on the aspect that in the absence of proof of better title, possession or prior peaceful settled possession was itself evidence of title. Law presumes possession to go with the title unless rebutted.
30. He also relied upon the judgment of the High Court of Karnataka in Smt.Jayamma Venkatram and Others v. Smt.Ashraf Jahan Begum and Others 16 on the aspect that whenever a person has been in possession of an immovable property, especially ancestral in character, for quite a long time, and 12 AIR 2019 SC 3056 13 AIR 2021 SC 4259 14 (2010) 10 SCC 512 15 AIR 2019 SC 813 16 ILR 2021 Karnataka 3559 25 Dr.GRR, J sa_161_2014 revenue entries stand in the lineage of his family continuously without any challenge to it, or if challenged, the same being overruled or rejected; and being not in a position to produce any document conferring title other than revenue records, there was no impediment to declare title based on possession which was otherwise called possessory title.
31. He also relied upon the judgment of the High Court of Andhra Pradesh in Chinna Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal, Rangareddy District and Others 17 on the aspect that proceedings in ROR without issuing notice on whose names the entries already exist was a nullity and void ab initio.
32. He relied upon the judgment of the High Court of Andhra Pradesh in Sri Bhavana Rushi Cooperative Housing Building Society v. Joint Collector, Rangareddy District and Others 18 on the aspect that an agreement of sale could not be regularized by the Mandal Revenue Officer and prayed to dismiss the Second Appeal.
33. Under Section 100 of CPC after the 1976 Amendment, it is essential for the High Court to formulate substantial questions of law. There are two 17 2007 (6) ALT 134 (F.B.) 18 2008 (3) ALD 629 26 Dr.GRR, J sa_161_2014 situations in which interference with findings of fact is permissible. The Hon'ble Apex Court in Jagdish Singh v. Natthu Singh 19 , held that:
"where the findings by the Court of facts are vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."
34. The Hon'ble Apex Court in Sebastio Luis Fernandez (Dead) by LRs. and Others v. K.V.P.Shastri (Dead) by LRs. and Others (2 supra) summarized the principles relating to Section 100 of CPC as follows:
"24. The principles relating to Section 100 of CPC case may be summarized thus:
"i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below 19 1992 (1) SCC 647 27 Dr.GRR, J sa_161_2014 has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule.
Some of the well-recognized exceptions are where
(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.
When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
35. In Abdul Rahim v. The Karnataka Electricity Board and Others (4 supra), the Hon'ble Apex Court observed that:
"Moreover, although, a finding of fact can be interfered with when it is perverse, but, it is also trite that where the courts below have ignored the weight of preponderating circumstances and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in considering the matter and in coming to its own independent conclusion."
36. The Hon'ble Apex Court in S.Subramanian v. S.Ramasamy and Others (12 supra), held that:
"As per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only 28 Dr.GRR, J sa_161_2014 on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam [AIR 1999 SC 2213], in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; or
(ii) Contrary to the law as pronounced by the Apex Court; or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.
8.3 When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain [AIR 2000 SC 426]. In the aforesaid decision, this Court has specifically observed and held:
"Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is 29 Dr.GRR, J sa_161_2014 when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.
37. In K.N.Nagarajappa v. H.Narasimha Reddy (cited supra), the Hon'ble Apex Court held that:
"14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate court are final. However, the rule that sans a substantial question of law, the High Court cannot interfere with findings of the lower court or concurrent findings of fact, is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage conscience of the court; in other words, it defies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in 103 of CPC.
15. Section 103 of CPC reads as follows:
"103. Power of High Court to determine issues of fact:
In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-30
Dr.GRR, J sa_161_2014
(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in Section 100."
16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board [(2010) 13 SCC 216], this Court held as follows:
"26. Thus, it is evident that Section 103 of CPC is not an exception to Section 100 of CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 of CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.
27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-
consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of the fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the 31 Dr.GRR, J sa_161_2014 lower courts. (vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647], Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343], Dinesh Kumar v.
Yusuf Ali [(2010) 12 SCC 740].
28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R.Vijaya Renganathan [(2010) 11 SCC 483]."
38. Under Section 100 of CPC, there is no restriction on the High Court to frame any additional substantial questions of law or to reformulate the existing substantial questions of law, if it is satisfied that the said substantial questions of 32 Dr.GRR, J sa_161_2014 law are involved in the case. As such, it is considered fit to reformulate the substantial questions of law as follows:
1. Whether PW.1 is competent to enter the witness box as the GPA holder of the plaintiff and to give evidence as a substitute for him?
2. Whether the courts below wrongly casted the burden on the defendants in a suit for declaration of title and basing on the weakness in the case of the defendants, had decreed the suit in favour of the plaintiff?
3. Whether the courts below had misread and misconstrued the oral and documentary evidence on record by perverse appreciation?
4. Whether the consequential relief of permanent injunction can be granted without the plaintiff proving that he was in possession of the suit schedule property as on the date of filing the suit?
P O I N T No.1:
Whether PW.1 is competent to enter the witness box as the GPA holder of the plaintiff and to give evidence as a substitute for him?
39. As seen from the facts of the case, the father of the plaintiff examined himself as PW.1 in the capacity of the GPA holder of the plaintiff. Though the appellants contended that PW.1 had not obtained permission of the Court to examine as GPA of the plaintiff, the record would disclose that he filed the necessary petition vide I.A.No.1572 of 2011 along with the GPA executed by 33 Dr.GRR, J sa_161_2014 the plaintiff in his favour on 01.09.2011. As per the GPA, the plaintiff stated that he acquired the suit schedule property through Gift Settlement deed vide document No.4004 of 2006 dated 15.12.2006 in Book No.1 of Sub-Registrar Office, Kusumanchi and he was appointing his father to look after all his immovable properties. He specifically mentioned that the schedule property was under civil dispute vide O.S.No.206 of 2007 on the file of the Senior Civil Judge, Khammam and stated that the GPA holder has to appear on his behalf to engage any advocate or attorney for the purpose and to appear and represent him in all the Courts, Civil, Criminal or Revenue including labour Tribunals (Original, revisional or appellate), in any registration offices and also to present appeals in any Court and to accept services of all summons, notices and other processes of law as his GPA.
40. Thus, the GPA was specifically given by the plaintiff asking his father to appear and to represent him before all the Courts and to present appeals. Being the father of the plaintiff and the son of M.Rangaiah, who executed the gift deed in favour of the plaintiff, PW.1 had personal knowledge of all the transactions and was capable to give evidence.
41. The contention of the learned counsel for the appellants was that power of attorney holder of a party can appear only as a witness in his personal capacity, but he could not appear as a witness on behalf of the principal and relied upon 34 Dr.GRR, J sa_161_2014 the judgments of the Hon'ble Apex Court in Vidhyadhar v. Manikrao and Another 20, wherein 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 was not correct."
42. He also relied upon the judgment of the Hon'ble Apex Court in Mohinder Kaur v. Sant Paul Singh (10 supra), wherein it was held that:
"7. In Janki Vashdeo [(2005) 2 SCC 217], it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him.
43. The learned counsel for the respondent - plaintiff on the other hand relied upon the judgment of the Hon'ble Apex Court in Man Kaur (Dead) by LRs. v. Hartar Singh Sangha (14 supra), wherein the position as to who could give evidence when the parties are represented by GPA is summarized by the Hon'ble Justice Raveendran as follows:
20
(1999) 3 SCC 573 35 Dr.GRR, J sa_161_2014 "(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to 36 Dr.GRR, J sa_161_2014 his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'.
Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
44. In the present case, the GPA holder is none other than a close family member i.e. the father of plaintiff, who is having personal knowledge of all the acts and transactions made by the plaintiff. As such, he is also permitted to give evidence with regard to the state of mind or conduct of the plaintiff. But, in the present case no such evidence with regard to the state of mind or conduct was required. As such, PW.1 is competent to enter into the witness box as the GPA holder of the plaintiff and to give evidence in his place. P O I N T No.2:
Whether the courts below wrongly casted the burden on the defendants in a suit for declaration of title and basing on the weakness in the case of the defendants, had decreed the suit in favour of the plaintiff?37
Dr.GRR, J sa_161_2014
45. As per Section 101 of the Indian Evidence Act, the burden of proof to establish a title lies on the plaintiff as he is the one who is asserting the existence of particular state of things basing on which he is claiming the relief. Section 101 of the Indian Evidence Act states that burden of proving the facts vests with the party who substantially asserts in the affirmative and not on the party which is denying it.
46. In terms of Section of 102 of the Indian Evidence Act, if both the parties failed to adduce evidence, the suit must fail. In a suit for title and possession, the burden of proof lies on the plaintiff and the same would be discharged only when he is able to prove his title. The weakness of the case of the defendants could not be a justification to decree the suit.
47. The Hon'ble Apex Court in Smt. Smriti Debbarma (Dead) by LRs. v. Sri Prabha Ranjan Debbarma and Others 21 reiterated the said principle and held that:
"30. In the above factual background, for the plaintiff to succeed, she has to establish that she has a legal title to the Schedule 'A' property, and consequently, is entitled to a decree of possession. The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule 'A' property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot 21 Civil Appeal No.878 of 2009, dated 04.01.2023 38 Dr.GRR, J sa_161_2014 be passed in favour of the plaintiff on the ground that defendants 1 to 12 have not been able to fully establish their right, title and interest in the Schedule 'A' property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession."
48. When both the parties led evidence, the Court has to see who was having better title to the suit property. The documents produced by the appellants / defendants also would disclose that the plaintiff's grandfather was shown as pattadar throughout the record which could not be disputed nor displaced by any amount of oral evidence. The material produced on behalf of the plaintiff would clinchingly establish that plaintiff was the absolute owner of the property and was in possession of the property.
49. On a perusal of the judgment of the trial court, the trial court considered the evidence adduced by both the parties and held that:
"36. The above evidence adduced by the plaintiff, clearly reveals that the plaint schedule property originally belonged to Maddineni Chinna Appaiah, who is the grandfather of Rangaiah (PW.2) and father of M.Pentaiah. The name of M.Chinna Appaiah was shown as pattadar in the revenue records for the years 1978-79 to 1984-85 to an extent of Ac.-8-08gts. He was shown as pattadar for an extent of Ac.2- 08gts. for the years 1985-86 to 1992-93 and subsequently the name of M.Rangaiah (PW.2) was shown as pattadar for an extent of Ac.2- 33gts. situated in Survey No.246/E of Tirumalayapalem Village i.e. of the suit schedule property from 1994-1995 to 2002-2003 and for the years 2006-2007. The evidence of 39 Dr.GRR, J sa_161_2014 plaintiff further reveals that his paternal grandfather PW.2 has executed Ex.A1 registered Gift Deed dated 15.12.2006 gifting the suit schedule property to him and when brother of defendant No.1 interfered with his possession, he filed suit and obtained perpetual injunction against the said brother of defendant No.1. It further reveals that though he applied to the revenue authorities for issuance of pattadar passbook and title deed for the property gifted to him basing on Ex.A1 registered gift deed, the revenue authorities basing on the application submitted by defendant No.1 and after conducting enquiry, issued pattadar passbook and title deed in favour of defendant No.1 without issuing notice either to the plaintiff or to PW.2, though the name of PW.2 was mentioned in the revenue records as pattadar in the suit schedule property from 1994-1995 to 2002-2003 and 2006-2007 and though the name of M.Pentaiah was not shown as pattadar in the revenue records. It is also evident that no enquiry was conducted on the representation submitted by the plaintiff and only after passing of orders basing on the representation submitted by defendant No.1, plaintiff was informed that pattadar passbook and title deed were issued to defendant No.1 in respect of the suit schedule property and the plaintiff was informed to prefer appeal to defendant No.4. Accordingly, the plaintiff preferred appeal to defendant No.4 and the said appeal was allowed by Ex.A23 order dated 12.07.2011 and it appears that defendants 1 and 2 have preferred further appeal to the Joint Collector, Khammam.
37. The plaintiff has filed copies of relevant documents which were considered in the enquiry conducted by defendant No.5 on the application submitted by defendant No.1 and established that though Ex.A19 dated 10.04.1987 which is an agreement of sale said to have been executed by Sale Sundaraiah in favour of defendant No.1 for purchasing of Ac.2-00gts. of land in Survey No.246, the revenue authorities have wrongly treated the same as sada sale deed, though it is clearly recited in that document that it is an agreement of sale. Defendants 1 and 2 have filed the said agreement of sale, and it was 40 Dr.GRR, J sa_161_2014 marked as Ex.B11. DW.2 also filed copy of said document, it was marked along with another document as Ex.B26 and DW.2 admitted in her evidence that the said document is only an agreement of sale. DW.2 has also admitted that defendant No.1 shall pay stamp duty and registration fee and only thereafter, Tahsildar has to issue 13-B Certificate after considering entire record and the matter available in the enquiry. But, DW.2 admitted that Ex.B31 which is 13-B Certificate was issued on 15.03.2007 and it was mentioned therein that defendant No.1 has deposited Rs.3,210/- towards stamp duty and registration fee, but, in fact, defendant No.1 has paid said fee by way of two challans, dated 23.03.2007 i.e. eight (8) days after issuance of Ex.B31 Certificate. Thus, a careful scrutiny of the evidence adduced by both sides clearly establishes that the revenue authorities have violated the rules by not issuing notice to the plaintiff or his grandfather (PW.2), though their names were specifically mentioned in the application submitted by defendant No.1 as affected parties and without payment of stamp duty and registration fee, 13-B Certificate was issued and subsequently the stamp duty and registration fee were paid and all these circumstances would go to show that the revenue authorities have violated the rules framed under ROR Act, thereby causing injustice to the plaintiff and did favour to defendants 1 and 2 by violating the rules. Thus, the plaintiff by adducing evidence and by admissions made by DW.2, has established that defendants 1 and 2 have managed the revenue officials and got regularized one unregistered sale deed and one agreement of sale treating it as a sada sale deed and obtained 13-B Certificate in favour of defendant No.1 without payment of required stamp duty and registration fee.
38. It is further evident that the evidence adduced by the plaintiff establishes that M.ChinnaAppaiah was the owner of total extent of Ac.8-08gts. situated in Survey No.246 of Tirumalayapalem Village, subsequently from the year 1994-1995, the name of PW.2 was shown as pattadar, and the name of M.Pentaiah (father of PW.2) was not found in any of the 41 Dr.GRR, J sa_161_2014 revenue records filed by defendants 1 and 2 also. In this context, DW.2 has admitted that the name of M.Pentaiah was not mentioned in any of the revenue records as pattadar of land in Survey No.246, the name of PW.2 was shown as pattadar for the suit schedule property and inspite of the same, the revenue authorities have not issued any notice either to the plaintiff or PW.2, though the application submitted by the plaintiff was pending by the date of passing of order by defendant No.5 deciding to issue pattadar passbook and title deed in favour of defendant No.1 for the suit schedule property."
50. On a careful consideration of the entire evidence adduced by both sides, the learned Senior Civil Judge, Khammam was of the opinion that the plaintiff has established that the plaint schedule property belong to PW.2, that PW.2 has settled the said property on him by way of executing Ex.A1 registered gift deed dated 15.12.2006. He has been in possession and enjoyment of the same from the date of Ex.A1 and defendants 1 and 2 have managed the revenue authorities and obtained pattadar passbook and title deed in favour of defendant No.1 for the suit schedule property. The plaintiff has further established that though his application for issuance of pattadar passbook and title deed for the schedule property was pending before defendant No.5, no enquiry was conducted and even no notice was issued either to the plaintiff or PW.2 in the enquiry conducted basing on the application submitted by defendant No.1 in respect of very same property. Therefore, the learned Senior Civil Judge was of the opinion that the plaintiff has established his case and the defendants 1 and 2 have failed to establish their case."
42
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51. Thus, the trial court on considering the entire evidence adduced by both the parties decreed the suit in favour of the plaintiff, but not casted the burden on the defendants. It only pointed out the violations committed by the defendants in managing the revenue officials for regularizing the unregistered sale deed and the other document titled as agreement of sale without following the rules framed under ROR Act.
52. The First Appellate Court observed that:
"the plaintiff's predecessor's interest in title was accepted by the defendants as the defendants claimed that they purchased the same through predecessors of plaintiff, it was the duty of the defendants to prove the said fact. Even subsequently, the evidence of DW.2 was clear that the defendants not only managed the revenue authorities, but also got some fictitious documents executed under Exs.B1 to B3 through PW.2, which reveals through the complaint filed by PW.2 under Ex.A28 in collusion with the defendants. The evidence of PW.2 would also show that the defendants were managing not only the revenue officials but also other officials for the sake of property. The defendants failed to adduce required evidence to prove their title and they managed revenue authorities. Once the name of M.Pentaiah was there in revenue records and subsequently Rangaiah name was included, now they were saying that M.Ganapathi's name was included, which would show that they were including the names of parties in the revenue records who were in their hands to get the properties wrongfully and such acts of revenue authorities could not be accepted. In view of the evidence of DW.2 that there were criminal cases pending against his predecessor regarding manipulation of records, the same supports the case of the 43 Dr.GRR, J sa_161_2014 plaintiff and as such does not find any merits to interfere with the observations of the trial court."
53. The appeal was dismissed not only due to the violations committed by the defendants, but as the plaintiff could establish that it was their ancestral property and the pahanies marked under Exs.A2 and A3 were showing the name of PW.2 as pattadar continuously from the year 1994 till the date of execution of gift deed in the year 2006.
P O I N T No.3:
Whether the courts below had misread and misconstrued the oral and documentary evidence on record by perverse appreciation?
54. The plaintiff got examined his father on whom he executed the GPA, as PW.1, his grandfather who executed the gift settlement deed in his favour as PW.2 and a lessor of the suit schedule property from 2001-2002 to 2003-2004 and 2006-2007 to 2007-2008 as PW.3. The case of the plaintiff was that his grandfather M.Rangaiah succeeded to the suit schedule property during partition. PW.2, M.Rangaiah also stated in his evidence that in the year 1994 his father Pentaiah died. There were six sons to his father including him. A partition took place between his father and all the sons. His father got 50 acres of land in partition in turn from his father. In the partition, each of the sons along with his father were allotted seven acres of land and he was given three acres of land by his paternal grandfather. He stated that his father sold away his 44 Dr.GRR, J sa_161_2014 share of seven acres of land approximately 15 years prior to 1994. He also stated that he knew defendant No.1 being his tenant.
55. Though, PW.2 stated in his evidence about the defendants 1 and 2 and son of defendant No.2 and their counsel along with his second son Maddineni Nageshwara Rao came to his house in Tirumalayapalem, played fraud on him and obtained cancellation of registered gift deed and on realizing the same, he lodged a police complaint against them, there was no cross-examination on these aspects.
56. The defendant No.1 was examined as DW.1. He stated about purchasing the property to an extent of Ac.1-20gts. vide unregistered sale deed from Maddineni Pentaiah, the father of PW.2 in Survey No.246 in the year 1979 and Ac.2-00gts. from Sale Sundaraiah through unregistered sale deed in the year 1987, but stated that he obtained title deed only to an extent of Ac.2-33gts. after excluding the land covered by donka.
57. The sada sale deed executed by M.Pentaiah in favour of defendant No.1 was marked as Ex.B10 and the sada sale deed executed by Sale Sundaraiah in favour of defendant No.1 was marked as Ex.B11. The sada sale deed executed by Daravath Desya, Dharma and Badhya in favour of Sale Santamma, W/o.Sale Sundaraiah was marked as Ex.B12 and the sada sale deed executed by Maddineni Srinivasa Rao in favour of Sale Santamma was marked as Ex.B13. 45
Dr.GRR, J sa_161_2014 The written statement filed by defendant No.2 adopted by defendant No.1 would not disclose the names of Daravath Desya, Dharma and Badhya and they executing the sale deed in favour of Sale Santamma and as to how the above people acquired the property. It was also not pleaded that Maddineni Srinivasa Rao executed a sale deed in favour of Sale Santamma. In his cross- examination, he admitted that the boundaries mentioned in Exs.B12 and B13 are one and the same, though they were for the two different extents of lands of one acre each. It was also not explained as to how when the sada sale deeds were executed by Maddineni Srinivasa Rao (DW.9) in favour of Sale Santamma and by Daravath Desya, Dharma and Badhya in favour of Sale Santamma, Sale Sundaraiah executed the sale deed in favour of defendant No.1 under Ex.B11. PW.1 admitted in his cross-examination that Sale Sundaraiah died and the statement of Sale Santamma was recorded by the MRO while regularizing the sale deed as per the proceedings of the MRO. When Sale Santamma was alive, it was not explained as to how Sale Sundaraiah could execute the sale deed in favour of defendant No.1 under Ex.B11.
58. DW.1 also stated in his cross-examination that his father K.Rama Rao purchased the property from Pentaiah during his childhood when he was a minor, in his name. He stated that after he attained majority, he purchased two acres from Sundaraiah vide unregistered sale deed and admitted that the pattadar passbooks were issued only to an extent of Ac.2-30gts., though he purchased 46 Dr.GRR, J sa_161_2014 Ac.3-20gts. He stated that he did not know the extents for which he sought pattadar passbook while filing the application before the revenue authorities. It was suggested to him that the plaintiff was holding a registered gift deed by the time of his filing the application before the revenue authorities and that the name of Sundaraiah was not there in the revenue records and his vendors Maddineni Pentaiah and Maddineni Srinivasa Rao have no right or title over the schedule properties. The defendant No.1 failed to file any document to show that the names of Pentaiah or Srinivasa Rao or Sundaraiah was recorded in the revenue records as pattadars of the schedule property or were having any right and title over the property to execute the sale deeds in his favor.
59. The Tahsildar, Tirumalayapalem, the defendant No.5 was examined as DW.2. DW.2 stated in her evidence that defendant No.1 (DW.1) made an application with the then Tahsildar on 12.12.2005 for issuance of pattadar passbooks and ROR title deeds, and enclosed two sada sale deeds dated 14.05.1979 and 10.04.1987 showing that he purchased an extent of Ac.1-20gts. from one Maddineni Pentaiah, S/o.Maddineni Chinna Appaiah and an extent of Ac.2-00gts. from Sale Sundaraiah pertaining to Survey No.246 of Tirumalayapalem Village. Upon which, the then Tahsildar ordered for enquiry directing the Mandal Revenue Inspector to conduct an enquiry. The Tahsildar received an application dated 15.12.2005 from Maddineni Ganapathi objecting issuance of pattadar passbooks and ROR title deeds in favour of Kampati 47 Dr.GRR, J sa_161_2014 Venkateshwarulu (defendant No.1) stating that no sale took place as alleged by defendant No.1. The enquiry report of Mandal Revenue Inspector revealed that Maddineni Family had no land as stated by said Maddineni Ganapathi. He also recorded the statements of adjoining pattadars and ryots by names (Dondeti Babu Rao, Kalvakuntla Veeranna, Boda Veeranna, Sale Santamma, Maddineni Kotaiah, Pusuluri Ramaiah, Pusuluri Haranath, Kampati Venkateswarulu, Rayala Nageswara Rao, Kalluri Vassaiah, and Kammakomati Nageswar Rao) and they all deposed more or less stating that the Kampati Family was cultivating the land and were raising chillies and other crops. She further stated that after coming to know that the plaintiff was gifted suit schedule property by Maddineni Rangaiah, the defendant No.1 approached defendant No.4 on 23.01.2007. Upon which, the defendant No.4 (RDO) informed defendant No.5 (the Tahsildar, Tirumalayapalem) to enquire into the matter. Defendant No.5 reported defendant No.4 that Maddineni Pentaiah long back had disposed the lands. Defendant No.4 directed the defendant No.5 to inform the parties interested about the contents of enquiry and to proceed accordingly. The then Tahsildar referred the application to Sub-Registrar, Kusumanchi for payment of stamp duty and registration fee and issued pattadar passbooks and title deeds in favour of defendant No.1 without there being any payment made towards stamp duty and issued 13-B Certificate in favour of Kampati Venkateshwarlu on 15.03.2007, however the challan paid was of 23.03.2007. 48
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60. In her cross-examination, she admitted that as per revenue laws, without payment of challan, 13-B certificate shall not be issued. She also made several admissions which are fatal to the case of the defendants. She stated that in the document related to the year 1979 (sadabainama - Ex.B10), there was no mention that the entire consideration was paid there under and so also in the document sadabainama dated 10.04.1987 (Ex.B11). She further stated that in the document dated 10.04.1987 beneath the signature, the date was mentioned as 30.04.1984. The said document was executed by Sale Sundaraiah. No document was filed to show that Sundaraiah got title over the property. One Maddineni Ganapathi put an objection by way of letter dated 12.04.2005. She admitted that she did not file any document to show that any notice was given to M.Ganapathi to summon him for enquiry. She admitted that for the years 2005- 2006 and 2006-2007, Maddineni Rangaiah was the pattadar to the plaint schedule property, but no notice was issued to him and as per their revenue records, Maddineni Pentaiah was never shown as pattadar. She also admitted that there was no mention of survey numbers in the sale deeds dated 21.03.1985 (Exs.B12 and B13) and for both the sale deeds, the boundaries were one and the same and there were no link documents to those sale deeds. She admitted that there was no document filed before their Office to show how Sale Sundaraiah got the property. She admitted that the wife of Sundaraiah by name Santamma was alive and the property stands in the name of Santamma. She admitted that 49 Dr.GRR, J sa_161_2014 there was no mention of survey numbers and the witness column was left blank in the document dated 21.03.1985, there was no link document showing the title of Santamma. She also admitted that all the documents submitted by defendant No.1 are sale agreements, but not registered sale deeds. She admitted that the plaintiff put an application before their Office prior to defendant No.1 making an application on 12.12.2005 for issuance of pattdar passbooks in his favour, but there was no document to show that they issued notice to the plaintiff before issuance of pattadar passbooks to the defendants. She also admitted that as per the revenue records, Maddineni Pentaiah was never shown as pattadar, but was only shown as possessor from 1976 -1977 onwards upto 1984-1985 and as per the revenue records, Maddineni Chinna Appaiah was the pattadar and later Maddineni Rangaiah was the pattadar.
61. Thus, the evidence of DW.2 goes against the case of the defendants.
62. The defendant No.2 was examined as DW.3. DW.3 admitted in his cross- examination that he had not obtained Encumbrance Certificate before purchase of the suit schedule property from defendant No.1. This admission is fatal to consider him as a bonafide purchaser. He also admitted that he had not filed any document to show that Maddineni Pentaiah was the pattadar and that Sale Sundaraiah purchased two acres of land. He denied that in collusion with defendant No.1 and revenue officials, he managed the revenue records by 50 Dr.GRR, J sa_161_2014 paying stamp duty and regularizing the sale, but it was a collusive transaction. He also admitted that the RDO cancelled the pattadar passbooks granted in his favour and so also in favour of defendant No.1. He further admitted that in the revenue records filed by him, Maddineni Rangaiah was the pattadar. It was suggested to him that he managed the younger son of Maddineni Rangaiah and obtained the signatures of Maddineni Rangaiah and fabricated the documents dated 12.12.2011 marked as Exs.B1 to B3 and created the document dated 09.09.2012 and another document dated 12.12.2011. It was suggested to him that he was behind the back of the entire litigation and prosecuted the suit through defendant No.1 and prosecuted the dispute before the Revenue Court for wrongful gain taking advantage of the lease held by defendant No.1 and fabricated all the documents.
63. The attestor of the unregistered sale deed dated 21.03.1985 through which Sale Santamma purchased one acre of land in Survey No.246 from Daravath Desya, Dharma and Badhya, was examined as DW.4.
64. One Daravath Desya who alleged to have sold one acre of land in Survey No.246 to Sale Santamma through unregistered sale deed dated 21.03.1985 was examined as DW.5. DW.5 in his cross-examination admitted that he did not know the boundaries and survey number of the properties sold by them. Though, he stated initially that his father cultivated the property as lessee under 51 Dr.GRR, J sa_161_2014 Maddineni Pentaiah, again stated that his father purchased the property from Maddineni Pentaiah. He stated that he along with his brothers sold the property to Sale Sundaraiah, but they have no document to show that they were the owners to the schedule property.
65. Admittedly, no document was filed by the defendants to show that the name of this witness or their father was recorded as pattadar or possessor in the revenue records. The unregistered sale deed dated 21.03.1985 through which this witness and his brothers sold one acre of land to Sale Santamma in Survey No.246 was not regularized.
66. The scribe of the unregistered sale deed dated 14.05.1979 alleged to have been executed by Maddineni Pentaiah in favour of defendant No.1 was examined as DW.6. He stated that on 14.05.1979, an amount of Rs.4,000/- was paid by defendant No.1 towards sale consideration to M.Pentaiah and possession was also delivered on the same day. The remaining sale consideration was agreed to be paid in two installments. He stated that he scribed the agreement of sale on a white paper.
67. Thus, the entire sale consideration was not paid on 14.05.1979 and no receipts were filed to show that the balance sale consideration was paid.
68. One Dondeti Babu Rao who attested the unregistered sale deed dated 10.04.1987 executed by Sale Sundaraiah in favour of defendant No.1 was 52 Dr.GRR, J sa_161_2014 examined as DW.7. He stated that along with him one Rama Narasimha Reddy also attested the unregistered sale deed and the said document was scribed by one Kammakomati Rangaiah, who was no more. He stated in his cross- examination that the agreement of sale was executed in the house of Kammokomati Rangaiah. He stated that the said Rangaiah died, Sale Sundariah also died, Rama Narasimha Reddy, who was present and attested was alive but was residing at Hyderabad. He stated that he did not know how Sundaraiah got the property. Out of consideration of Rs.11,000/-, only an amount of Rs.2,000/- had been paid.
69. Thus, in this case also, the entire sale consideration was not paid and DW.7 stated that he was called to execute the agreement of sale.
70. A neighbour to the suit schedule property by name Maddineni Kotaiah was examined as DW.8. He stated that defendant No.1 cultivated the land as the owner from the year 1985 and the plaintiff's grandfather was never in possession of the suit land at any point of time. The defendant No.2 was in settled possession of the suit schedule property as owner, having purchased the land through registered sale deed from defendant No.1. In his cross- examination, he stated that he was not doing cultivation for the past 30 years, though he was having five acres of land at Tirumalayapalem and he was not doing agriculture personally for the past four years. 53
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71. Maddineni Srinivasa Rao, the younger brother of Maddineni Rangaiah (PW.2), was examined as DW.9 by the defendants. He stated that he sold one acre of land out of the suit schedule property to Sale Santamma through unregistered sale deed (Ex.B8) dated 21.03.1985 and he received the sale consideration from Sale Santamma. The document bears his signature as executant and the said extent of land sold by him was his patta land which he got in oral partition. He also admitted in his cross-examination that their joint family had 50 acres and including him, they were 6 brothers. He was allotted five acres in the partition. At the time of partition, his grandfather was no more. He admitted that he was having no document to show that he was having right over the property at the time of sale to Santamma. He admitted that Ex.B8 was scribed on a white paper and stated that he did not know who scribed Ex.B8, he was working at Kodad at that time. He stated that Sale Santamma never came to his house. It was her husband Sale Sundariah, who alone came to his house.
72. The RDO, Khammam in his proceedings marked as Ex.A23 observed that:
"As per the contention of the appellant (the plaintiff herein) he acquired the land to an extent of Ac.2-33gts. in Survey No.246/E through registered Gift Settlement Deed bearing No.4004 of 2006 dated 15.12.2006 having executed by his grandfather Maddineni Rangaiah who happens to be pattadar and possessor of the land. On verification of the pahanies submitted by the Tahsildar, for the years 1980-81 to 2006-07, Maddineni Chinna 54 Dr.GRR, J sa_161_2014 Appaiah is the pattadar for the land to an extent of Ac.8-08gts. in Survey No.246 and names of Maddineni Pentaiah, Maddineni Rangaiah, Harinadh, Sreenivasa Rao, Chilumalreddy Veeraiah, Daravath Badya and Kampati Ramulu as occupants for the years 1980-81, 81-82, 82- 83, 83-84. The name of Kampati Ramulu shows as occupant for the year 1980-81, 81-82 and for the year 83-84, it was written as Kampati. From 1994-95 onwards, the name of Maddineni Rangaiah has shown in the pattadar column and names of Maddineni Venkateswarlu, S/o.Rangaiah and Maddineni Durgabayamma as occupants. Name of Kampati Venkateswarlu shown as occupant only for the year 1992-93, 93-94 and 2004-05, 2006-2007. As per the contention of the respondent, he purchased the land to an extent of Ac.1-20gts. from Maddineni Pentaiah through unregistered sale deed, Ac.2-00gts. from Sale Santamma, who purchased from Maddineni Sreenivasa Rao and Daravath Desya.
As per the ROR proceedings submitted by the Tahsildar, pattadar passbook and title deed was issued basing on the unregistered sale deed dated 14.05.1979 executed by Maddineni Pentaiah and 10.04.1987 and 10.07.1986 executed by S.Sundaraiah in favour of Kampati Venkateswarlu. On perusal of the pahanies, no where the name of Kampati Venkateswarlu shown after 1979 except three or four years. If really Kampati Venkateswarlu purchased in the year 1979, definitely his name should be entered in the occupant column. More so, the document dated 14.05.1979 is agreement of sale and sale is not completed. That the appellant disputed the document dated 14.05.1979 stating that the document is fabricated one and there is no validity.
On verification of sale deed dated 10.04.1987 and 10.07.1986 submitted for regularization before Mandal Revenue Officer, evidencing that the sale deed was executed by S.Sundaraiah.
Whereas, as per the counter averments of respondent, he purchased from Sale Santhamma, W/o.Sundaraiah, but the document shows that S.Sundaraiah executed the same and 55 Dr.GRR, J sa_161_2014 nowhere in the revenue records, neither the name of Santhamma nor Sundaraiah find place.
As seen from the above, the Mandal Revenue Officer has regularized the said sale deeds submitted by the respondent without having any possession over the schedule land and who has no title nor competent to execute the sale deeds. As per the pahanies submitted by the appellant and Tahsildar, it shows Maddineni Rangaiah, the pattadar and possessor of the land in Survey No.246/E and the sada sale deeds regularized by the Tahsildar, are not corroborating with the physical possession and the revenue records.
Maddineni Rangaiah, S/o. Pentaiah is the pattadar and possessor of the land in Survey No.246/E and he inherited from his father and accordingly in the year 1994-95, his name was mutated as pattadar. Later on said Maddineni Rangaiah gifted the land to his grandson i.e. appellant (plaintiff herein) through registered Gift Settlement Deed bearing No.4004 of 2006 dated 15.12.2006. Accordingly, Maddineni Sravan Kumar, the appellant herein submitted an application dated 30.12.2006 for issuance of pattadar passbook and title deed before MRO, Tirumalayapalem. Also, Maddineni Rangaiah has filed objection before MRO, Tirumalayapalem on 31.10.2006 requesting not to issue passbook and title deed to anyone for the land in Survey No.246/E to an extent of Ac.2-33gts.
The respondent Kampati Venkateswarlu also submitted application in Form No.10 for issuance of pattadar passbook and title deed for the land to an extent Ac.3-20gts. in Survey No.246 on 12.02.2007. It seems, though Maddineni Sravan Kumar submitted application for issuance of pattadar passbook and title deed, keeping pending the application, the Tahsildar has considered the application submitted by the respondent Kampati Venkateswarlu without considering the application filed by the appellant. It is the duty of the Tahsildar to make proper enquiry when two persons are claiming the same property and to decide the matter.56
Dr.GRR, J sa_161_2014 As per the record submitted by the appellant, the respondent has submitted Form No.10 for the land in Survey No.246 to an extent of Ac.2- 00gts. through sale deed dated 10.04.1987 and Ac.1-20gts. dated 14.05.1979 but the Tahsildar had issued notices under Section 22(3) of ROR Act for the land to an extent of Ac.2-33gts.
only. The pahanies shows the name of Maddineni Rangaiah as pattadar and possessor and Tahsildar has not issued any notices specifically to the interested persons as required under Rule 22(3) of ROR Act.
Further, as per ROR rules, after completion of the enquiry under sub rule (4), the MRO shall require the alienee or the transferee under Section 5(A) of the Act, to deposit through a challan in the treasury an amount equal to the registration fee and stamp duty and on deposit of the amount through a challan in the treasury, the Mandal Revenue Officer shall issue a certificate in form 13(B) as required under Sub- Section (4) of Section 5(A) of the Act to alienee or the transferee declaring that alienation or transfer is valid from the date of issue of certificate. But here, the Tahsildar had issued 13(B) certificate on 15.03.2007 before payment of challan as required. The amount was deposited as required on 23.03.2007, which is against the rules prescribed under the ROR Act.
As per the above, it seems Tahsildar has not followed the rules as prescribed in the Act.
As seen from the documents submitted by the appellant and Tahsildar, it shows that Maddineni Rangaiah was the pattadar and possessor of the land and the appellant has acquired through registered gift settlement deed. The Tahsildar, without issuing notices to the pattadar Maddineni Rangaiah and interested persons and without conducting proper enquiry and also without observing the records, validated the sale deed and issued pattadar passbook and title deed to Kampati Venkateswarlu.
In view of the above, it is clear that the issuance of pattadar passbook and title deed in favour of 57 Dr.GRR, J sa_161_2014 respondent for the land in question is against law. Further issuance of passbook and title deed in favour of R.Om Narayana by effecting the mutation of sale deed while having knowledge of the appeal is pending before the Revenue Divisional Officer, Khammam is also not correct.
For the aforesaid reason, I am of the opinion that the action of the Tahsildar, Tirumalayapalem in issuing pattadar passbook and title deed in favour of Kampati Venkateswarlu by regularizing the sale deeds alleged to have executed by Maddineni Pentaiah and S.Sundaraiah, who had no valid title and possession and subsequent mutation and issuance of passbook and title deed in favour of R.Om Narayana is illegal and without proper enquiry and jurisdiction.
73. Thus, the proceedings of the RDO, Khammam would disclose that the name of defendant No.1 was not there in the pahanies after 1979 except for three or four years.
74. As per the judgment of the Hon'ble Apex Court relied by the learned counsel for the respondent - plaintiff in Poona Ram v. Moti Ram (Dead) by LRs. and Others (15 supra), it was held that:
"11. It was also observed by this Court in Nair Service Society Ltd (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably possession prior to the plaintiff's, and thus be able to raise a presumption prior in time."58
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75. Thus, the name of defendant No.1 was not recorded continuously even as a possessor of the suit schedule property. Even if his name was recorded, he would be having a good title against the entire world except the rightful owner. It was further held in the above judgment that:
"13. A person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.
76. The Full Bench of this Court in Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal, Rangareddy District and Others (17 supra) held that before amending the Record of Rights, the recording authority shall issue a notice in writing individually to all persons whose names 59 Dr.GRR, J sa_161_2014 are entered in the Record of Rights and who are interested in or affected by the proposed amendment besides publishing notice in Form-VIII.
77. Though, the plaintiff had made an application prior to the defendant No.1 for issuing pattadar passbook and title deed on 12.12.2005 and the defendant No.1 made an application subsequently on 12.02.2007, without issuing notice to the plaintiff, the MRO caused enquiry and by examining some persons whose names were not there in the revenue records, issued pattadar passbook and title deed in favour of defendant No.1 without following the procedure laid down under AP Rights in Land and Pattadar Passbooks Act, 1971 and the Rules framed there under.
78. The violations committed by the MRO are clearly pointed out by the RDO in his proceedings marked under Ex.A23.
79. The Full Bench in the above judgment after analyzing the relevant statutory provisions held that:
"11. From the above discussion, it is clear that the requirement of issuing notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment is independent of the requirement of publication of notice in accordance with the second part of Section 5(3) read with Rules 19 and 5(2) of the Rules. The language of Form-VIII in which the notice is required to be published cannot control the interpretation of the substantive provision contained in Section 5(3), which, as mentioned above, casts a duty on the recording authority to 60 Dr.GRR, J sa_161_2014 issue notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the proposed amendment."
80. This High Court in Writ Petition No.2383 of 2000 in Sri Bhavana Rushi Cooperative Housing Society Limited v. Joint Collector, Rangareddy District and Others (18 supra), held that an 'agreement of sale' cannot be regularized by the MRO in exercise of powers under Section 9. It observed that:
"18. The only question that fell for consideration was, as to whether the agreement of sale can be regularized by the Mandal Revenue Officer, in exercise of power under Section 9. The answer given by the Division Bench, based on the various judgments of this Court, was, that an agreement of sale is not an 'alienation' or the 'transfer' of property, and there was no mechanism provided for under Section 5(A), to deal with the agreement of sales, and that Section 5(A) provides for regularization of unregistered sale deeds of alienations, but not agreement of sales, and in view of the aforesaid circumstances, I am of the opinion that the only remedy available to the petition, to resolve the dispute before the appropriate forum, was, either by way of filing a civil suit for specific performance, or any other recourse under Section 8(2) of the Act.
81. Thus, an agreement of sale cannot be regularized by the MRO as the same is not an alienation or transfer of property. The revenue authorities are entitled to regularize the sale deed in terms of Form-IX under Rule 22(1) read with Section 5(A) of ROR Act which contemplates grant of patta on the basis 61 Dr.GRR, J sa_161_2014 that the person claiming was a recorded occupant in the adangal or pahani patrika or in the ROR by virtue of an alienation or transfer made or affected otherwise than by registered document, etc. But, the documents filed by the defendants marked under Exs.B10 to B13 would not satisfy the above requirements. Further, the claim was also to be made on the basis of a notification issued by the MRO and within the prescribed period. However, the facts of the case or the evidence of the witnesses would not disclose that any notification was issued by the MRO and any time limit was prescribed by him for making an application in this regard by the parties herein and the parties had made the application within the prescribed period.
82. The learned counsel for the appellants had stated that he filed an application for receiving additional evidence and to mark the same as Exs.B33 to B50 vide S.A.M.P.No.114 of 2016 and he also filed the order of the Joint Collector, wherein the proceedings of the RDO were set aside. But none of the documents filed by the petitioners - appellants were prior to the year 2006. Additional evidence can be allowed by the appellate court only in the circumstances contemplated under Order XLI Rule 27 of CPC. The material now produced partly pertains to the revenue enquiry and all the documents filed were subsequent to the filing of the suit. Hence, it is considered not fit to allow the application at this stage.
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83. The observation of the Joint Collector with regard to 'mutating the name of Maddineni Rangaiah from 1994-1995 was without any basis and without any proceedings and the same was without following the rules under ROR Act' was incorrect as in the case of family partition, no notice would be given to the parties. However, the observation of the Joint Collector that there was a serious title dispute between the parties regarding the petition schedule land and the Revenue Court has got no jurisdiction to decide the title and a Civil Court is alone competent is proper.
84. As seen from the evidence of the witnesses adduced by both the parties and the documents marked on their behalf, this Court is of the opinion that both the courts below had rightly appreciated the oral and documentary evidence on record. This Court does not find any perversity in the appreciation of the evidence.
P O I N T No.4:
Whether the consequential relief of permanent injunction can be granted without the plaintiff proving that he was in possession of the suit schedule property as on the date of filing of the suit?
85. The contention of the learned counsel for the appellants was that the relief of permanent injunction was not consequential upon the declaration of title and possession of the plaintiff as on the date of filing of the suit was decisive to 63 Dr.GRR, J sa_161_2014 grant the relief of permanent injunction. His further contention was that the courts below failed to record any finding as to who was in possession of the suit schedule property as on the date of filing of the suit, the courts below erred in relying on the pahani during the year 2006-2007 (Ex.A3) which shows that the grandfather of respondent No.1, M.Rangaiah was the pattadar and possessor of the suit schedule property ignoring the fact that the said pahani was issued by the Village Panchayat Officer, who was not the competent authority to issue the pahani. The Joint Collector in his order also pointed out the same. The lower appellate court erred in not relying on the pahani for the year 2006-2007 issued by respondent No.4, which would indicate the name of appellant No.1 as possessor of the suit schedule property, even though the same was received as additional evidence in the appeal. The courts below failed to consider the admissions of PWs.1 and 2 that for the years 1998-2004 and for the years 2004- 2006, the suit schedule property was leased out to appellant No.1 by them. By virtue of the aforesaid admissions, the appellant No.1 enjoys the status of a tenant and possession of any agricultural land could only be resumed by the land holder from the tenant on the orders of the concerned Tahsildar. PW.1 admitted in his cross-examination that no document was filed to show that appellant No.1 surrendered his possession over the schedule property as on the date of filing the suit. As such, the respondent No.1 was not entitled to the relief of permanent injunction. He further contended that the lower appellate 64 Dr.GRR, J sa_161_2014 court also failed to see that the trial court rightly refused to grant temporary injunction in favour of the first respondent in I.A.No.776 of 2007, as no document was filed to evidence the possession of the plaintiff over the suit schedule property. The courts below failed to appreciate the documentary evidence marked under Exs.B16 to B19. The resolution passed by the Gram Panchayat, Tirumalayapalem assigning House No.3-82/A to appellant No.1 for construction of a house in the suit schedule property (Ex.B16), house tax payment receipt (Ex.B17) and the receipt issued by APSPDCL in proof of payment of electricity charges for House No.3-82/A (Ex.B18) and the certificate issued by APSPDCL (Ex.B19) and the electricity bill marked under Ex.B23 would prove that the house was constructed by appellant No.1 in the suit schedule property and appellant No.1 was in possession of the suit schedule property for more than 20 years, adverse to the knowledge of respondent No.1. As such, the appellant No.1 perfected his title over the suit schedule property by way of adverse possession.
86. The learned counsel for the respondent - plaintiff on the other hand contended that the plea of adverse possession was not taken by the appellants either before the trial court or before the appellate court and it was taken for the first time before this Court. Without any plea and without any evidence, the said aspect cannot be considered at this stage. The possession of appellant No.1 with regard to the suit schedule property was only sporadic. It was not 65 Dr.GRR, J sa_161_2014 continuous. PWs.1 and 2 only admitted that appellant No.1 was a tenant for some period in the suit schedule property. They cannot claim ownership over the property basing upon their possession. The possessor will have rights over the property with respect to all the persons except against the true owner. The possession was restored to the respondent - plaintiff as per the judgments of the courts below and the Telangana Government had issued pattadar passbook and title deed to the respondent - plaintiff. Subsequently, the name of the respondent - plaintiff was also entered in Dharani Portal and he was also issued amounts under raithu bandu scheme and filed documents in proof of it. He also contended that the refusal to grant injunction during the pendency of the suit have no relevance, as the trial court disposed the suit decreeing it in favour of the plaintiff and the lower appellate court also confirmed the said judgment. The statusquo order passed during the pendency of the second appeal was vacated by this Court vide orders in Criminal S.A.M.P.No.416 of 2014 dated 25.09.2014 and the Hon'ble Apex Court also dismissed the Special Leave Petition (for short "SLP") filed against the said order. As such, the possession of the respondent - plaintiff was protected by the courts
87. Now, the substantial question of law formulated by this Court is whether permanent injunction can be granted as a consequential relief in a suit for declaration of title or whether is it necessary for the plaintiff to prove that he 66 Dr.GRR, J sa_161_2014 was in possession of the suit schedule property as on the date of filing of the suit.
88. The Hon'ble Apex Court in Padhiyar Prahladji Chenaji (deceased) through LRs. V. Maniben Jagmalbhai (deceased) through LRs. and Others 22, answered this aspect holding as follows:
"11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief.
Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is "not legal or authorized by the law", the plaintiff shall not be entitled to any permanent injunction.22
Civil Appeal No.1382 of 2022 dated 03.03.2022 67 Dr.GRR, J sa_161_2014 11.1. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to dispossess him, except by due process of law.
12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No.1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except by due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jackde Sequeira [(2012) 5 SCC 370] is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-
"79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the 68 Dr.GRR, J sa_161_2014 moment rights of the parties are adjudicated upon by a competent court."
In the said decision, this Court has approved the following findings of the HighCourt of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial [(2006) 88 DRJ 545]:-
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction 69 Dr.GRR, J sa_161_2014 action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
89. In the present case also, the relief of permanent injunction sought for is consequential to the relief of declaration of title of the plaintiff to the suit schedule property and the same was granted by the trial court as a consequential relief.
90. Once, the respondent - plaintiff is declared as owner of the suit schedule property, the true owner cannot be restrained by way of an injunction against him. Once, the dispute with respect to the title is settled and it is held against the defendants, the relief of permanent injunction is not maintainable against the true owner, as injunction cannot be issued against a true owner or title holder. As the defendants raised a dispute with regard to the title of the plaintiff and raised a cloud over the title of the plaintiff, as such, the plaintiff filed the suit for declaration claiming the relief of permanent injunction consequential to it.
91. The Hon'ble Apex Court in the above case had also referred to its earlier case in A.Subramanian v. R.Pannerselvam 23, wherein it was held that a person in possession of land in the assumed character of owner and exercising 23 (2021) 3 SCC 675 70 Dr.GRR, J sa_161_2014 peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. As such, the appellants are not entitled to any injunction against the rightful owner. More particularly, when they failed to get the declaratory relief and the dispute with respect to the title comes to an end. The possession of the appellants cannot be said to be "lawful possession", and they were not entitled to any permanent injunction against the true owners. As such, this substantial question of law is answered holding that the respondent - plaintiff is entitled to the consequential relief of permanent injunction, as it is not simpliciter suit for declaration of title alone.
92. In the result, the Second Appeal is dismissed confirming the judgments of the courts below. However, in the facts and circumstances of the case, there would be no order to as to costs.
As a sequel, miscellaneous applications pending in this appeal if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 27th December, 2023 Nsk.