Telangana High Court
M.A. Samad vs The District Collector on 21 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.433 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment and decree, dated 04.04.2023, passed by Principal District Judge, Nirmal in AS.No.14 of 2019, whereunder and whereby the judgment and decree dated 19.01.2019 passed by the Senior Civil Judge, Nirmal in O.S.No.48 of 2008 was confirmed.
2. The appellants are the plaintiffs and the respondents are the defendants in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present Second Appeal, are that the plaintiffs had filed the suit for declaration of title and recovery of possession in respect of suit schedule property. It was averred in the plaint that plaintiffs are the owners of the suit schedule property which was purchased by their father by name Mohammed Jalal through the Sale Agreement from its owner/pattadar-Iqbal Ali Khan in the year 1975 and thereafter, he had been in continuous and uninterrupted possession of the said property and that he established a Saw Mill, and the suit schedule 2 LNA, J S.A.No.433 of 2023 property was under the use and occupation for storing the Timber of Saw Mill.
3.1. It was further averred that in the year of 1991, their father expired and thereafter, the plaintiffs being the only legal heirs, succeeded to the said house and the suit schedule property and became the owners and possessors thereof.
3.2. It was further averred that the political adversaries of the plaintiffs' father, in order to take revenge, filed W.P.No.10146 of 2005 and the said case was disposed of 25.12.2005, without prejudice to the rights of plaintiffs and to avail appropriate legal remedy against the action taken by the Government authorities to remove the encroachments. Further, M.R.O. Bhainsa also initiated proceedings against the plaintiffs and issued a Notice under Section 7 of the Land Encroachment Act, 1905, to which plaintiff No.1, who represented the plaintiffs, has submitted a reply with a request to make proper enquiry, but, the M.R.O., Bhainsa, without issuing any notice to the plaintiffs or to their counsel, caused erroneous survey in absence of the plaintiffs and their counsel, and passed an illegal order of eviction on the alleged ground that the land in 3 LNA, J S.A.No.433 of 2023 occupation of the plaintiffs is situated in Sy.No.338 which is a Government land.
3.3. The Plaintiffs further submitted that their father had perfected his title to the suit land by adverse possession against the pattadar of said land bearing Sy.No.337 and even against the Government or any other persons claiming right over it. That earlier, their father filed civil suit vide O.S.No.38 of 1992 before the District Munsiff Court, Bhainsa for declaration of title in respect of the suit land and the said suit was decreed in his favour, vide judgment dated 25.11.1992 and therefore, the Government erred in holding that the suit land which was under use and occupation of the plaintiffs is Government Land bearing Sy.No.338.
3.4. The plaintiffs further submitted that they are the exclusive owners of the suit land and that defendant No.3, under misconception, evicted the plaintiffs from the suit land believing it to be the Government Land bearing Sy.No.338. 3.5. The Plaintiffs further submitted that as their title and ownership was thrown into suspicion because of illegal order passed by the defendant No.3, they got issued legal notices to the 4 LNA, J S.A.No.433 of 2023 defendants No.1 to 3 on 03.04.2007 under Section 80 CPC with a request to initiate proceedings to get technical survey and to demarcate the suit land bearing Sy.Nos.337 and 338 of Bhainsa village and to restore the possession of the suit land to the plaintiffs and the said Legal Notices were duly served on the defendants, but even after expiry of the stipulated period, the defendants did not initiate any steps to rectify the mistake committed by them and they have failed to restore the possession of the suit land to the plaintiffs. Hence, the Plaintiffs filed the present suit for declaration of title, demolition of structures raised by the defendants and recovery of possession of the Suit Schedule property.
4. Defendant No.3 filed his written statement, which was adopted by defendants Nos.1 and 2. The brief case of defendants No.1 to 3 is that earlier, plaintiff No.1 had encroached land to an extent of Ac.0.06 ½ guntas in Sy.No.338 situated at Bhainsa town and thereafter, the legal action has been initiated under Section 7 of the Land Encroachment Act, 1905 by issuing a notice dated 24.02.2005 as to why proceedings under Sections 5 and 6 of the A.P. Encroachment Act, 1905 should not be initiated for eviction 5 LNA, J S.A.No.433 of 2023 and that the said notice was served on the encroacher on 25.02.2005.
4.1. It was further stated that the plaintiff No.1 by way of misrepresentation alleged that the suit land is not part of Sy.No.338, but it is part and parcel of land in Sy.No.337. Hence, the Deputy Inspector of Surveys, Nirmal was directed to demarcate the Government land bearing Sy.No.338 and accordingly, the Deputy Inspector of Surveys, Nirmal, in his report to the Revenue Divisional Officer, Nirmal, submitted that the land an extent of Ac.0.06 ½ guntas is under unauthorized occupation of plaintiff No.1.
4.2. It is further stated that on 18.03.2005, the Assistant Director of Survey and Land records, Adilabad has inspected the spot and submitted a report along with location sketch and the same was allotted to B.C. Boys hostel which is part and parcel of Sy.No.338 and that there is an encroachment of Ac.0.06 ½ guntas by the plaintiff No.1 and on the basis of the said report, plaintiff No.1 and his agents were evicted from land under Section 6(1) of the A.P. Land Encroachment Act, 1905, vide eviction order 6 LNA, J S.A.No.433 of 2023 No.B/389/2005, dated 23.12.2005 passed by the M.RO Bhainsa, after duly conducting Panchanama.
4.3. It was further submitted that the suit land is Government land which is part and parcel of Sy.No.338 which was allotted to B.C. Boys Hostel, Bhainsa and hence, the contention of the plaintiffs that the suit land is located in Sy.No.377 is baseless and as such, the question of inheritance of the same by the Plaintiffs does not arise.
4.4. Defendant No.3 further submitted that the orders passed by the District Munsiff Court, Bhainsa in O.S.No.38/1992 dated 25.11.1992 is not binding on the defendants since the suit land is part and parcel of Sy.No.338 which was allotted to B.C. Boys hostel, Bhainsa and the reports submitted by the Assistant Director (S&LR) Adilabad, Deputy Inspector of Surveys and the Mandal Surveyor, Bhainsa, clearly establish the said fact. 4.5. It was further submitted that the erstwhile Hon'ble High Court of A.P. in its Judgment dated 29.12.2005 in W.P.No.10146/2005 upheld the action taken by the M.R.O. Bhainsa, vide eviction order dated 23.12.2005 with a direction to the District Collector, Adilabad and authorities concerned to take 7 LNA, J S.A.No.433 of 2023 all necessary steps including the use of Police protection to protect the land of B.C. Boys hostel. Hence, the defendants prayed to dismiss the suit with costs.
5. Basing on the above rival pleadings, the following issues were framed for trial:-
"1. Whether the plaintiffs are entitled for declaration as owners of the suit land and for delivery of possession by evicting defendant Nos.1 to 3 therefrom?
2. Whether the plaintiffs are entitled for direction to demolish construction raised by defendants on suit land?
3. To what relief?"
6. To substantiate their case, on behalf of the plaintiffs, PWs. 1 to 5 were examined, but the evidence of PW3 was eschewed and Exs.A-l to Ex.A-39 were marked. On behalf of defendants, DW1 examined and no documents were marked.
7. During pendency of the appeal, an Advocate Commissioner was appointed who filed report and he was examined as CW1 and Exs.C1 and C2 were marked by the plaintiffs as additional evidence.
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8. The trial court after considering oral and documentary adduced by both the parties and on hearing the contentions of learned counsel for both the parties, dismissed the suit vide its judgment dated: 19.01.2019. The trial Court observed that there is total change of boundaries of three sides of the property described in Ex.Al with the suit schedule property and in these circumstances, there is no convincing explanation from the plaintiffs as to why there is a change of three side boundaries of suit schedule property herein with the suit property covered in Ex.A1. This aspect certainly throws any amount of suspicion over the case of the plaintiffs which go to the root of the case. 8.1. The trial Court further observed as under:
"It is pertinent to note that P.Ws.4 and 5 in their cross examination admitted that the B.C. hostel is in Sy.No.338 which is surrounded by compound wall and the above said suggestion which is placed by the learned counsel for the plaintiffs before DW1 that the compound wall was constructed by vacating the plaintiffs in Sy.No.337 is appears to be inconsistent with the testimonies of PWs. 4 and 5."
9. As regards the revenue records filed by the plaintiffs and their plea of adverse possession, the trial Court observed as under:- 9
LNA, J S.A.No.433 of 2023 "It is settled law that the entries made in the records of revenue such as pahanies cannot by themselves confer ownership or title and such entries made by the State in its publication without any legal basis and without verifying the necessary title and ownership. Hence, the same have no legal sanctity to prove the title or ownership of the plaintiffs. In the present case on hand, except the revenue records and Ex.Al which is a certified copy of concerned judgment and decree, no other documents have been filed by the plaintiffs to substantiate their claim to prove that the husband of PW1 acquiring title and possession over the suit schedule property.
Further, Ex.A3 which is certified copy of pahani did not disclose the name of the said Md. Jalal either in the column of Pattdar or Possessor. In view of the circumstances, I hold that the Plaintiffs have failed to make out their case by way of adverse possession.
Though the plaintiffs have relied on several revenue records, but as stated above, the entries in revenue records will not confer any title in respect of property mentioned therein and they are not the documents of title. Further, Ex.B1 judgment and decree has been relied on by the plaintiffs will not bind the defendants since the defendants are not the parties to the said suit."10
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10. The trial Court, by observing thus, held that the plaintiffs who filed the suit for declaration of title and recovery of possession have failed to make out their case.
11. On appeal, the first Appellate Court, being the final fact- finding Court, on re-appreciation of the entire evidence and the material available on record, confirmed the judgment of the trial court, vide its judgment dated 04.04.2023. The first appellate Court observed as hereunder:-
"The plaintiffs have not filed any of their title document to establish their title over the suit schedule property. As per the contention of the plaintiffs, the father of the plaintiffs purchased the suit schedule property under sale agreement from original pattadar, but plaintiffs did not file sale agreement and the plaintiffs did not explain what happened to said sale agreement. It is also contended by the plaintiffs that the pahanies filed by them would establish their title over the suit schedule property. The Revenue Records produced by the plaintiffs does not confer title over the plaintiffs and same was held in a decision reported in 2002 (2) ALD 436 Sajana Granites, Madras And Another Vs. Manduva Srinivasa Rao And Others"
12. While adjudicating the plea of adverse possession raised by the plaintiffs, the First Appellate court held as under:- 11
LNA, J S.A.No.433 of 2023 "The another contention of the plaintiffs is that by longstanding possession they have perfected their title over the suit schedule property by way of adverse possession. The plaintiffs on one hand are claiming the suit schedule property under an agreement of sale, on the other hand, they contended that they perfected their title they over the schedule property by adverse possession.
The process of acquisition of title by adverse possession brings into action essentially by default or inaction of the owner. A person who pleads adverse possession cannot claim the title simultaneously.
If any person claims the property by way of adverse possession, he cannot say that he purchased property from rightful owner. If a person pleads perfecting the title by way of adverse possession, it deems that they are accepting and admitted title of the other side. Unless, the plaintiffs admits title of the defendants/government, they cannot plead perfecting their title by way of adverse possession. So, the plea raised by the plaintiffs that they perfected their title by way of adverse possession is not acceptable as rightly observed by the trial court. The plaintiffs have to establish continues and uninterrupted possession over the suit schedule property for a period of 30 years as the plaintiffs are claiming title by way of adverse possession against the Government.
The plaintiffs claimed their title over the suits schedule property on the ground that their father Mohammed Jalal had purchased suit schedule property from original pattadar, but they failed to prove the 12 LNA, J S.A.No.433 of 2023 purchase of the suit schedule property by Muhammad Jalal from the original owner. The plaintiffs also contends that Ex. Al would establish the title over the suit schedule property. The judgment and decree under Ex.A1 is the consent decree filed against the third parties, which is not binding on the defendants. So, it does not establish the title of the plaintiffs.
The plaintiffs have pleaded perfecting their title by way of adverse possession, but the plaintiffs failed to prove that they are in continuous and uninterrupted possession of the suit schedule for more than 30 years over the suit schedule property and the revenue records produced by the plaintiffs does not confer any title on the suit schedule property. So, the plaintiffs failed to prove their contention of perfecting their title by way of adverse possession."
13. The first appellate court accordingly held that the trial court after considering both oral and documentary evidence adduced by both the parties and also law on the subject matter, rightly dismissed the suit with costs which is sustainable under law and on facts and there is necessity to interfere with the judgment and decree passed by the trial Court.
14. Heard Sri G.Vasantha Rayudu, learned counsel for the appellants and learned Government Pleader for Arbitration 13 LNA, J S.A.No.433 of 2023 appearing counsel for the respondents. Perused the entire material available on record.
15. A perusal of the record discloses that both the Courts below concurrently held that the plaintiffs failed to establish their title in respect of the suit schedule property and accordingly, declined to grant the reliefs sought for by the plaintiffs.
16. Learned counsel for appellants argued that the trial Court dismissed the suit without proper appreciation of the evidence and the first Appellate Court also committed an error in confirming the judgment and decree passed by the trial Court.
17. Learned counsel for appellants failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
18. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record. 14
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19. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
20. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal.
21. Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
22. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:21.03.2024 dr 1 (2007) 1 Supreme Court Cases 546