Andhra Pradesh High Court - Amravati
B.Guruvulu,Boorjavalasa,Vizianagaram5 vs A.Narasimham,Chowdantivalasa,Vizianagarm on 2 November, 2021
Bench: R Raghunandan Rao
HON'BLE SRI JUSTICER. RAGHUNANDAN RAO
APPEAL SUIT No.859 of 1997
JUDGMENT:
This appeal is filed by defendants 1, 2, 4, 6, 7 and 14 in the suit
against the judgment and decree of the District Judge, Vizianagaram in
O.S.No.55 of 1996, dated 25.02.1997.
2. The suit was originally filed as O.S.No.31 of 1986 on the file
of the Sub-Court, Parvathipuram and renumbered as O.S.No.144 of 1987
when it was transferred to the Sub-Court Bobbili. Thereafter, it was
renumbered as O.S.No.71 of 1989 when it was transferred to the Sub-
Court, Vizianagaram, and finally as O.S.No.55 of 1996 when it was
withdrawn to the District Court at Vizianagaram.
3. For the ease of convenience, the parties to the appeal are
referred to as they are arrayed in the suit.
4. The suit was filed by the plaintiffs for recovery of possession
over three items of property set out in the schedule attached to the plaint
and for mesne profits thereon. Item-1 relates to Ac.5.00 of land in
Sy.No.41/1P. Item-2 relates to Ac.0.30 cents of land in Sy.No,.41/2 (new
R.S.No.41/3). Item-3 relates to Ac.5.00 of land in Sy.No.41/2 (new
R.S.No.42/1). An extent of Ac.4.52 cents in Sy.No.10/5 (new R.S.No.10/6)
has also been set out as Item-4. However, no relief is sought against
Item-4. All these lands fall within Borrajavalasa village. The lands falling
within Items-1 to 3 in the schedule are referred to as schedule lands.
5. The 2nd plaintiff is the widow of the younger brother of the
1st plaintiff. The case of the plaintiffs was that the 1st plaintiff and late
Akundi Perisastry are brothers. Defendants 8 to 10 are sons of the 1 st
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plaintiff and defendants 11 to 13 are the sons of the 2nd plaintiff. Various
extents of land including the schedule lands had been purchased, in
Borrajavalasa Agraharam, which was declared as an Inam Estate, by late
Akundi Narayana, who was the father of the 1st plaintiff and late Akundi
Perisastry. After the abolition of Estates under the Madras Estates
Abolition Act, the entire Borrajavalasa Agraharam vested in the State
Government on 25.02.1959. Thereafter, a survey was conducted of the
lands in the said village and, according to the plaintiffs, the schedule
lands and other lands belonging to the plaintiffs‟ family were categorised
as "Gayali" lands (waste lands). The plaintiffs‟ family had been given D-
form pattas in relation to the lands belonging to the plaintiffs‟ family other
than the schedule lands. As no pattas had been granted in connection
with the schedule lands, applications were made by the 1st plaintiff and his
late brother late Akundi Perisastry to the Settlement Officer,
Visakhapatnam, under Section 15 of the Madras Estate Abolition Act and
the same was accepted by the Settlement Officer, who ordered issuance
of pattas in favour of the 1st plaintiff and his brother in relation to Items-1
to 3 and also in relation to Item-4 of the plaint schedule. However, land
admeasuring Ac.2.14 cents in R.S.No.41/1 and Ac.0.40 cents in R.S.No.42
were given to the members of the Bonu family by way of D-form patta.
The plaintiffs were in possession and enjoyment of the land since then.
The pattas were given in the names of various members of the family, but
it is the common case of the plaintiffs as well as the other members, who
are arrayed as defendants, that the property remained the property of the
joint family of the plaintiffs.
6. According to the plaintiffs, Defendants 1 to 7 believing the
words of certain persons, who were inimical to the family of the plaintiffs
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that the lands covered in Items-1 to 3 of the plaint schedule are Gayali
lands and they would be entitled to possession of the land being weaker
sections, had made attempts to trespass into the land and take over
possession of the lands. The plaintiffs, and defendants 8 to 13, having
recognised this intention of defendants 1 to 7, had got issued a notice
dated 16.03.1986 to defendants 1 to 7 that the lands in Items-1 to 3 of
the plaint schedule belong to the family of the plaintiffs and defendants 1
to 7 should not disturb their possession over the land. However,
defendants 1 to 7, despite receiving the said notice, entered into the
plaint schedule lands in the 1st week of April, 1986 and started agricultural
operations in the land. In view of the illegal occupation of the land by
defendants 1 to 7, the plaintiffs had filed the present suit for eviction of
defendants 1 to 7 from Items-1 to 3 of the plaint schedule and for mesne
profits from defendants 1 to 7 on account of the illegal use and
occupation of the land.
7. Defendants 1 to 7 filed a written statement in which they
took the plea that the lands shown in Items-1 to 3 of the plaint schedule
were waste banjar lands and had never been cultivated by any member of
the family of the plaintiffs. The nature of the land shown in the records
under the A.P. (A.A) Estates (Abolition and Conversion into Ryotwari) Act,
1948 (for short „the Estates Abolition Act‟) was correct as the said lands
were waste lands. The defendants and their predecessors had entered
into the plaint schedule lands more than 25 years before filing of the suit
and had brought these lands under cultivation even before 1962. The
plaintiffs, knowing fully well that all these lands and the neighbouring
lands were waste lands, had applied and obtained D-form pattas and
again applied under the Estates Abolition Act for grant of ryotwari pattas
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in relation to the lands mentioned in the plaint schedule. The defendants
were not made party to any of the proceedings under which the plaintiffs
had obtained D-form pattas or ryotwari pattas, and as such, these pattas
were not binding on the defendants and do not make out any case or title
to the plaintiffs. The Settlement Officer could not have granted any such
ryotwari patta, as it was beyond his jurisdiction and the Court should
examine the correctness of the order of the Settlement Officer and declare
the same as nullity as the Settlement Officer had violated the principles of
natural justice. Defendants 1 to 7 had acquired adverse possession to the
suit schedule lands on account of their possession openly and peacefully
against the rights of the plaintiffs and hostile to everybody including the
plaintiffs for more than 12 years before filing of the suit.
8. Defendants 1 to 7 also took the plea that the suit is barred
by time and for non-joinder of parties, as the State of A.P is a necessary
party since the plaintiffs are now requiring assigned lands to be treated as
patta lands.
9. On the basis of the above pleadings, the following issues
were framed by the trial Court, prior to the trial.
1. Whether the plaintiff is entitled to recovery of
possession of items 1 to 3 of the plaint schedule?
2. Whether the suit relief is barred by time?
3. Whether the suit is liable to be dismissed for non-
joinder of necessary parties to the suit?
4. Whether the plaintiff is entitled to mesne profits as
prayed for?
5. Whether the suit is barred for not seeking declaration
of title?
10. Thereafter the following additional issue was also framed.
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"Whether the suit stands abated on account of non-
impleading of the legal representatives of the fifth
defendant who died pending the suit?
11. The plaintiffs examined the 1st plaintiff as PW.1 and two
other persons as PWs.2 and 3. Exs.A.1 to A.35 were marked on behalf of
the plaintiffs. Similarly, the 2nd defendant was examined as DW.1 and a
neighbour in the area was examined as DW.2. Exs.B.1 to B.3 were
marked on behalf of the defendants.
12. After an elaborate trial and hearing, the trial Judge had
allowed the suit by way of the judgment and decree dated 25.02.1997
directing defendants 1 to 4, 6, 7, 14 and 16 to deliver possession of the
plaint schedule Items-1 to 3 and further proceedings to be initiated for
determination of mesne profits. Aggrieved by the same defendants 1 to 4,
6, 7 & 14 have filed the present appeal.
13. Sri O. Manohar Reddy, learned counsel appearing for the
appellants in the appeal assailed the judgment and decree on various
grounds. The said grounds can be summarised in the following manner.
a) The plaintiffs had never been in possession of the land and it
was defendants 1 to 7 who were cultivating the suit schedule land. He
relied upon the cross-examination of PW.1 where PW.1 had stated that
defendants 1 to 7 had earlier cultivated the lands on behalf of the
plaintiffs‟ family. He would submit that PW.1 while admitting that the
defendants were in possession of the land, sought to claim that this
possession was a permissive possession on behalf of the plaintiffs without
any material to demonstrate the above permissive nature of the
possession. He would also rely upon Ex.B.1, which is the certified copy of
the counter filed by the Tahsildar in the proceedings, filed for grant of
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ryotwari pattas. In this affidavit, the Tahsildar had stated that the
plaintiffs were not in possession of the lands in which they were seeking
ryotwari pattas (these lands correspond to Items-1 to 3 of the schedule
lands).
b) The lands in question had been categorised as waste lands
in the proceedings under the Estates Abolition Act. In such a situation, the
lands would vest absolutely in the Government under Section 3 of the
Estates Abolition Act and the question of grant of ryotwari pattas under
the other provisions of the Estates Abolition Act would not arise. Apart
from this, the Tahsildar himself had stated that these lands were not in
the possession of the plaintiffs. For both these reasons, grant of ryotwari
pattas is illegal and without jurisdiction as such the grant runs contrary to
the requirements of the provisions of the Estates Abolition Act.
c) The plaintiffs except stating that they were in possession of
the land have not demonstrated any such possession and the claim of the
plaintiffs that they were dispossessed from the lands in April, 1986 is also
not supported by any material or evidence. The alleged cist receipts
marked as Exs.A.3 to A.34 are documents prepared on white papers and
the internal differences in ink and writing in these documents clearly
demonstrate that these are got up documents and that the plaintiffs were
never in possession of the suit schedule lands. In such a situation,
keeping in view the fact that PW.1 himself had admitted the possession of
the defendants over the suit lands, the suit is barred by limitation.
d) As grant of ryotwari pattas/D-form pattas is illegal and has
to be discarded, the Government, which is the owner of the land, was a
necessary party and non-joinder of necessary party is a fatal to the suit.
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A.S.No.859 of 1997
14. Sri Ch. Dhanamjaya, learned counsel appearing for the
plaintiffs/respondents 1 and 2 would submit that the D-form pattas and
the ryotwari pattas given by the Government, and which have been
,marked as Exs.A.1, Adangals marked as Ex.A.2 and A.3 and the land
revenue receipts marked as Exs.A.4 to A.34 would clearly show that the
plaintiffs were the owners of the suit schedule lands and that they had
been in possession of the land and had been paying the land revenue for
all the period right up to the filing of the suit itself. Even though, the
Tahsildar had filed an affidavit stating that the plaintiffs were not in
possession of the suit schedule land, the Settlement Officer in his
proceedings marked as Ex.A.1 dated 09.05.1975 had recorded that the
plaintiffs were in possession of the suit schedule lands. As this proceeding
of the Settlement Officer had never been disputed or challenged, the said
findings are final. Sri Ch. Dhanamjaya also submits that as long as the
said orders of the Settlement Officer are not set aside, defendants 1 to 7
cannot contend that this Court should discard the title granted to the
plaintiffs by virtue of the said proceedings.
Consideration of the Court:
15. The admitted facts in the present case are that the plaintiffs
have been granted ryotwari pattas over the suit schedule lands.
Defendants 1 to 7 did not have any document of title recognising their
ownership or possession over the said lands. The case of the defendants
is fully dependent upon the statements of the Tahsildar in the counter
filed under the proceedings of the Estate Abolition Act and the admissions
that are said to have been elicited from PW.1 regarding the possession of
the land by defendants 1 to 7.
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16. The trial Court had framed five issues and an additional
issue (the said additional issue, which has been decided in favour of the
plaintiffs, is not assailed in the course of arguments).
17. The controversy boils down to two issues:-
1. Whether the plaintiffs have title over Items-1 to 3 of the suit
schedule lands; and
2. Whether the defendants have been able to demonstrate their
possession over the land to dispute the contention of the
plaintiffs that they had been in possession of the lands and had
been dispossessed in April, 1986.
Issue No.1:
18. On the question of title or ownership over the land, the
plaintiffs are relying upon the proceedings of the Settlement Officer
granting ryotwari pattas to the plaintiffs in respect of Items-1 to 3 of the
plaint schedule. Prima facie, this creates sufficient title in favour of the
plaintiffs. However, these proceedings are disputed by defendants on two
grounds. Firstly, on the ground that no ryotwari pattas could have been
granted as the lands have been declared as waste lands, and secondly on
the ground that the plaintiffs were never in possession of the said lands.
The question of possession is being dealt with under the second issue.
19. Section 3 of the Estates Abolition Act sets out the
consequences of notification of an Estate under the Act. Upon such
notification, the entire estate included in the assets of the "Zamindari"
estate including waste lands etc., shall stand transferred to the
Government and vest in the Government free of all encumbrances.
Thereafter, ryotwari pattas can be granted under Section 11 to every ryot
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A.S.No.859 of 1997
in relation to the lands which were included in his holding; under Section
12 to the land holder in relation to the land which was the private land of
the land holder; under Section 13 to the land holder of an Inam estate.
This would mean that pattas would be granted only to those persons, who
fall into the above categories, in relation to the lands which were in their
possession and cultivation. As the lands, which are not in cultivation,
would be treated as waste lands, grant of ryotwari pattas may not arise.
In the present case, the Settlement Officer had accepted the contention of
the plaintiffs that they were in occupation and cultivating the lands. This
finding of the Settlement Officer has not been set aside. In such a
situation, the plea of the defendants that the ryotwari pattas could not
have been granted by the Settlement Officer has to be rejected as the
Settlement Officer had considered this and had taken the view that the
plaintiffs were in possession of the land as cultivators of the land. As a
consequence, the pattas granted to the family members of the plaintiffs
cannot be set aside and must be accepted as creating a title in favour of
the plaintiffs.
Issue No.2:
20. Coming to the second issue, defendants 1 to 7 have not
been able to place any material on record to show that they were in
possession of the land. They are depending on the admissions said to
have been made by PW.1, the statements of the Tahsildar in his counter
in the proceedings under Estates Abolition Act and the deposition of DW2.
As far as the affidavit of the Tahsildar is concerned, the same has not
been accepted by the Settlement Officer whose orders have become final.
As such this Court cannot depend upon the said statements of the
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Tahsildar to hold that the defendants were in possession of the land. It
must also be noted that the Settlement Officer had taken into account the
cist receipts produced by the plaintiffs to hold that the plaintiffs were in
possession and cultivating the suit schedule lands. In the circumstances,
the contention of the defendants that the plaintiffs were never in
possession of the suit schedule lands cannot be accepted.
21. As far as the admissions of PW.1 are concerned, a perusal of
the said statement would show that the statement of PW.1 is to the effect
that defendants 1 to 7 had been in possession of the said lands as
tenants/cultivators engaged by the plaintiffs. As such, there is no clear cut
unequivocal admission by PW.1 that the defendants were in independent
possession of the land.
22. The defendants had examined a neighbour as DW2.This
witness had said that the schedule lands were in the possession of the
defendants for quite some time. However, in the course of cross
examination the following was elicited from DW2:
"Apart from disputed property for some property D
form Patta was granted to D1 to D7. D1 to D7 were given
2-50 and 1-50 cents as a D form patta near the suit lands.
The suit schedule property is itself that land."
23. This witness is not clear whether the defendants 1 to 7 were
in possession of the schedule lands or the lands for which the defendants
1 to 7 had D form pattas and as such much reliance cannot be placed on
this witness.
24. It must be held that the plaintiffs had possession of the land
and there is no proof of possession of the defendants over the schedule
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land, except the statement of the plaintiffs that they had been
dispossessed by the defendants in April 1986.
25. In the circumstances, there are no merits in the appeal and
the same is accordingly dismissed, with costs. However, the proceedings
for mesne profits may go on. As a sequel, pending miscellaneous
petitions, if any, shall stand closed.
________________________
R. RAGHUNANDAN RAO, J
2nd November, 2021
Js
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A.S.No.859 of 1997
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
APPEAL SUIT No.859 of 1997
2nd November, 2021
Js
