THE HON'BLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.1462 of 2004
JUDGMENT:
This Second Appeal is filed against the Judgment of the First Appellate Court in A.S.No.6 of 1994, dated 29.1.1999, in which the Judgment of the trial Court in O.S.No.59 of 1987 dated 02.03.1994 was reversed.
2. Heard arguments of learned counsel for appellant. He stated that respondent No.1 died and her son was brought on record as respondent No.2, vide C.M.P.No.28418 of 2003 dated 19.11.2004, but he refused to take the notice and as such, heard the arguments of learned counsel for appellant.
3. One Venkateshwar Raju/plaintiff filed suit against Khaja Annapurnamma/defendant and others for permanent injunction and requested the Court to restrain the defendants from interfering with his possession of suit land bearing survey No. 287/1 admeasuring Ac.2.20 guntas of Mailaram sivar of Banswad Taluk.
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4. The parties hereinafter referred to as plaintiff and defendants as arrayed in the trial Court for the sake of convenience.
5. Plaintiff initially filed O.S.No.134 of 1983 in the court of District Munsif, Bodhan and after establishment of Court at Banswada, the said suit was transferred to that Court and numbered as O.S.No.59 of 1987. The land in survey No.287/1 admeasuring Ac.2.20 guntas was assigned to him by the Government vide proceedings A4/545/80, and that he was in possession of the suit land. He also filed Rythwari pass book and panchanama to establish his possession. He further stated that the defendants are not concerned with the suit land, and as they were interfering with his possession, he got surveyed and demarcated his suit land by the revenue authorities. Even as per the survey report, he is in possession of the suit land. As the defendants are interfering with his possession, he filed the suit for permanent injunction.
6. Defendant Nos.1, 3 and 4 were set exparte and only defendant No.2 contested the suit by filing written statement. In her written statement she stated that she is in possession of the suit land. Plaintiff has not filed any document to show that he is SA.No1462of 2004 3 in possession of Ac.2.20 guntas of land within the specific boundaries in the year 1980. He has not filed any document by way of Revenue Record of cultivation pertaining to the years 1980-81 and 1982-83 to show that he is in possession of some area in Sy.No.287/1. Rythwari passbook simply shows that it was an assigned land. In fact, Rythwari passbook and panchnama were prepared behind her back in the year 1983 and they are false and fictitious and there is no cause of action to the plaintiff to file the suit.
7. On behalf of the plaintiff, PW's1 to 4 were examined and Ex's.A1 to A15 were marked. On behalf of the defendants, DW's 1 to 3 were examined and Ex's.B1 to B12 were marked.
8. The trial Court on considering the entire evidence on record and on hearing the learned counsel for the parties, decreed the suit in favour of the plaintiff. However, the first appellate Court reversed the same.
9. PW1 is the General Power of Attorney of the plaintiff. Ex.A1 is certified copy of General Power of Attorney. Ex.A2 is the patta certificate of assignment. The name of plaintiff was mutated in the revenue records. Ex.A3 to A9 are the certified SA.No1462of 2004 4 copies of pahanies of suit land. Ex.A13 is the certified copy of panchnama through which the Government delivered possession of the suit land to the plaintiff. PW2 is Gumastha Patwari of Mailaram village for the period from 1964 to 1983. He stated that on 07.06.1983 he was present when the Deputy Tahsildar and Revenue Inspector conducted panchnama and that he attested Ex.A14. He clearly stated that the possession of the land was given to plaintiff in the presence of Bondla Gangaram, Seetaramaiah Raju and T.Pandari Goud, the then Sarpanch of Mailaram acted as panch witnesses. PW3 stated that surveyor demarcated the land assigned to the plaintiff and the panchnama was drafted and delivered possession to the plaintiff on which he affixed his signature. PW4 stated that the suit schedule land in survey 287/1 is to the extent of more than 100 acres and it is Charai land (Government land). The Government assigned Ac.2.20 guntas of land in two different places in Mailaram village and one piece of land consisting of 1.37 guntas and another piece of Ac.0.23 guntas. At the time of assignment he was working as Sarpanch of the Mailaram village and at the time of panchanama Tahsildar called him as he was Sarpanch and conducted the panchanama in the year 1983 and there was no crop at the time of assignment.
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10. The defendant stated that she filed a petition before the Revenue Divisional Officer, Bodhan for mutation of the land in her name and accordingly, he issued proceedings under Ex.B9 through the Tahsildar, Banswada directing the said Tahsildar not to dispossess her from the land, if she is otherwise eligible. She filed pahanies of 1982-83 under Ex.B1. She also filed revenue land payment receipts for the year 1978-79, 1980-81, 1982-83 under Ex.B2 to B8. She further filed land payment receipts for the year 1983-84 to 1986-87 under Ex.B10 to Ex.B12. She stated that the entire extent of land in survey No.287/1 is of 100 to 120 acres, out of which 10 acres land is not assigned to any persons. It was suggested to her that Ex.B1 filed by her was not pertaining to her land and pertains to some other land and Ex.A2, A3, A6, A8 do not pertain to her land, but, she denied the same. DW2 is a neighbor of DW1, he is having 1 ½ acres of land by the side of DW1's land and he stated that she is in possession of land for the past 10 to 12 years. DW3 stated that he and his elder brother are having land adjacent to the land of DW1. She is not having any other land except the above land. Plaintiff filed IA No.268/1983 for grant of the temporary injunction, but it was dismissed on 24.11.1983, SA.No1462of 2004 6 against which the appeal was preferred and it was allowed on 04.09.1987. C.R.P.No.102 of 1985 was also filed and it was allowed by this Court in which it was held that the possession of Kaja Annapurnamma (defendant No.2) was not in dispute, as such there is no other alternative to the plaintiff except to amend the suit for declaration of title and for recovery of possession if legally his assignment was true and valid, but the plaintiff did not take legal steps and continued the suit for perpetual injunction. The trial Court observed in a suit for permanent injunction the possession of suit land on the date of suit will be considered irrespective of the ownership.
11. The trial court observed that admittedly land was assigned to the plaintiff vide proceedings No.A4/545/80 and he was in possession of the land since assignment and he filed Ex.A2 to A8 to prove his possession and also Ex.A13 panchanama which shows that defendant no.2 was not in possession of pahanies to show that he was cultivating the lands, but she had filed land receipts to show that her husband was cultivating the land and she did not show any pahani in that period except 1982-83. The Revenue Divisional Officer issued proceedings not to dispossess her from Survey No.287/1, SA.No1462of 2004 7 but the present extent is Ac.1.37 guntas it was also observed if at all defendant No.2 is in possession of Ac.1.32 guntas prior to 1980, she should have taken steps for cancellation of Ex.A2 and as she did not take any such steps, the trial Court decreed the suit in his favour. But the first appellant Court relied upon the observations of this Court in C.R.P. reversed the judgment of the trial Court, against which this appeal is preferred.
12. The appellant mainly contended that the trial Court rightly arrived at the conclusion that she is the possessor of the suit schedule property and also raised substantial question of law-Whether presumption be drawn contrary to entries under Record of Rights Act? He further stated that the pahanies pertains to the year 1983 and the suit was also filed in the same year. Therefore, the observation of the appellate Court that the pahanies showing the name of respondent as pattedar and possessor, has no relevance is not proper. He further submits that in view of the entry recording possession of the appellant in the pahani patrikas for the year 1983, presumption has to be drawn in his favour being in possession of the suit schedule property land. Therefore, he requested the Court to set aside the judgment and decree of the Appellate Court dated 29.01.1999 SA.No1462of 2004 8 passed in A.S.No.6 of 1994. Plaintiff filed suit for injunction and it is for him to prove that he is in possession of the suit schedule property as on the date of the filing the suit. Plaintiff filed Rythwari passbook, relevant pahani patrikas and also panchnama to show that the possession was handed over to him. Though defendant came up with the plea that she is in possession of the suit schedule property, she has not filed any suit for cancellation of documents. PW2 to PW4 are parties to Ex.A14 panchnama, in which the possession was handed over to the plaintiff. But the first appellate Court totally erred in appreciating the facts and reversed the Judgment of the trial Court, relying upon the observations of this Court in C.R.P., when once suit itself was decided on merits, is not proper. Therefore, this court feels that the Judgment of the First Appellate Court is not on proper appreciation of facts and is liable to be set aside.
13. In the result, second appeal is allowed by setting aside the Judgment passed by the Appellate Court in A.S.No.6 of 1994 dated 29.01.1999 and confirming the Judgment of the trial Court passed in O.S.No.59 of 1987, dated 02.03.1994. There shall be no order as to costs.
SA.No1462of 2004 9 Pending miscellaneous applications, if any, shall stand closed.
___________________________ JUSTICE P.SREE SUDHA Date: 11.09.2023 BV