K.Erasan Died vs K.Narayana Swamy,
2022 Latest Caselaw 8091 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

               SECOND APPEAL No.109 of 2012

JUDGMENT:

The plaintiffs before the learned trial Court filed this

second appeal under Section 100 C.P.C. The respondents

herein are the defendants. O.S.No.1240 of 2002 was a suit for

granting permanent injunction restraining the defendants from

interfering with the peaceful possession and enjoyment of the

plaintiffs over the plaint schedule property. After due trial, the

learned II Additional Junior Civil Judge, Chittor decreed the suit

in favour of the plaintiffs and against the defendants. Aggrieved

defendants filed A.S.No.81 of 2006 and the learned Principal

District Judge, Chittoor allowed the appeal and set aside the

trial Court's judgment and as a consequence dismissed the suit.

2. It is against that, the plaintiffs have come up with this

second appeal. Originally, it was a suit filed by sole plaintiff as

against defendant Nos.1 and 2. During the pendency of the

suit, the original plaintiff died and his legal representatives

came on record and they pursued the litigation all throughout.

3. On 18.06.2012 this second appeal was admitted on the

substantial question of law as mentioned below:

"Whether on Exs.A.1 and A.2 the title and possession of the appellant can be accepted as true and real?"

Dr. VRKS, J S.A.No.109 of 2012

4. To appreciate the above substantial question of law, it is

relevant to notice the facts and law that unfurled before the

lower Courts. The suit was laid stating that Ac.0.33 cents of

land in Survey No.342/9 of Naragallu Revenue Village belonged

to the ancestors and from there it came to be owned and

possessed by sole plaintiff and after his death, on 25.04.2003 it

came to the ownership and possession of his successors, who

are plaintiff Nos.2 to 7. In recognition of the possession and

enjoyment, the Mandal Revenue Officer granted pattadar and

title deed pass books. The defendants are utter strangers to the

property. However, on 22.11.2002 at about 8:00 A.M. they

interfered with the ploughing activities of the deceased 1st

plaintiff in the suit land and the same was thwarted

successfully. They raised their voice saying that they would see

that the deceased 1st plaintiff would be dispossessed. In their

written statements, the defendants contended that the

boundaries mentioned and the survey number mentioned over

the plaint schedule property are incorrect. They gave a

schedule of property in the written statement and stated that

mother of defendant No.2 under a registered sale deed dated

05.10.1961 purchased the written statement schedule

mentioned property. The vendors were Periya Kolandiamma for

Dr. VRKS, J S.A.No.109 of 2012

herself and representing her minor son. That minor son is the

1st plaintiff (since deceased). It is also stated that while the

name of mother of 1st plaintiff is Periya Kolandiamma, it was

wrongly typed in the above referred sale deed as Peria

Govindamma. Having purchased the property, possession was

delivered to defendant No.2. Therefore, the deceased 1st plaintiff

has no right over the written statement schedule mentioned

properties. There was no valid cause of action for the suit. It is

also mentioned that the land covered under the sale deed dated

05.10.1961 referred earlier was surveyed and it was found to

include Survey No.342/6A. In recognition of right and

possession of defendant No.2, pattadar and title deed pass

books were given to defendant No.2 by the revenue authorities.

The boundaries mentioned in the plaint schedule would include

the lands covered by Survey No.342/6A. On those pleadings,

learned trial Court settled the following issues for trial:

"1. Whether the plaintiffs are entitled for grant of permanent injunction as prayed for?

2. To what relief?"

5. At the trial, PWs.1 and 2 were examined and Exs.A.1 and

A.2 were marked for plaintiffs. For defendants, DWs.1 to 3 were

examined and Exs.B.1 to B.3 were marked.

Dr. VRKS, J S.A.No.109 of 2012

6. Both sides' witnesses gave evidence in support of the

respective pleadings of the parties. PW.2 was a neighbouring

ryot, who spoke about possession of suit schedule property by

1st plaintiff and the interference on part of the defendants that

occurred on 22.11.2002 and as to how he and others prevented

the defendants from unlawful interference. During the evidence

of PW.1, the title deed and pattadar pass books-Exs.A.1 and A.2

were marked. Learned trial Court on considering all that

evidence found that the plaintiffs have been in possession and

enjoyment of the suit schedule properties and there was

unlawful interference on part of the defendants. Another aspect

that is to be noticed from the trial Court's judgment is that the

defendants by their pleadings denied the correctness of

boundaries as well as survey number of the plaint schedule and

in the written statement they gave another survey number and

another schedule and another extent of property. Thereafter, it

compared the boundaries claimed by the defendants through

the evidence of DW.2 and found them do not tally with the

plaint schedule boundaries. It perused Ex.B.2-pattadar pass

book of defendants and that shows about properties mentioned

in the written statement schedule but not the plaint schedule

properties. Similar was the case with Ex.B.3 and after

Dr. VRKS, J S.A.No.109 of 2012

discussing evidence, it recorded that Exs.B.1 to B.3 do not have

relationship with plaint schedule property. At para No.25 in the

impugned judgment, the learned trial Court recorded the

arguments on both sides and mentioned that learned counsel

for defendants mainly argued that the plaint schedule property

does not belong to the defendants, but the plaintiffs under the

guise of injunction have been trying to interfere with the

property of the defendants mentioned in the written statement

schedule. At para No.21 in the impugned judgment, the

statements made by DW.1 during trial were recorded and it was

mentioned that the property claimed by plaintiffs and property

claimed by defendants are different. It was on those factual

observations, the learned trial Court found possession and

enjoyment of plaint schedule properties by the plaintiffs and it

granted the injunction.

7. In the first appeal, learned Principal District Judge, on

the same evidence, reached to different conclusions. With

reference to Exs.A.1 and A.2, which are pattadar and title deed

pass books, which were accepted by the trial Court as

documents indicative of possession of agricultural land, the

learned first appellate Court recorded a finding that the said

observation is illegal and incorrect. It placed reliance on a

Dr. VRKS, J S.A.No.109 of 2012

decision in Yeluru Vijayabharathi v. Yeluri Manikyamma1 to

substantiate that conclusion. It made a mention that in the

written statement, the defendants contended that Exs.A.1 and

A.2 were not granted by the revenue authorities and they were

fabricated. Despite that contention, the plaintiffs did not

examine any revenue authorities to prove the genuineness of

Exs.A.1 and A.2. It was for those reasons, it excluded Exs.A.1

and A.2 from consideration. It further stated that those Exs.A.1

and A.2 were granted to the plaintiffs on 21.11.1997, but the

suit was filed on 25.11.2002 and thus, there was a time gap of

five years between them and the plaintiffs could have produced

best evidence, namely, cultivation accounts for these five years

and they failed to file them. With those reasons it concluded

that they failed to prove their possession. With reference to

interference of defendants with the possession of plaintiffs,

which was concluded based on the evidence of PW.2 by the trial

Court, the observation of the first appellate Court at para No.21

is that PW.2 in his evidence stated that when the deceased 1st

plaintiff was getting the plaint prepared he was also there with

him. It was this piece of evidence, which the learned first

appellate Court viewed and commented saying that PW.2 is an

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Dr. VRKS, J S.A.No.109 of 2012

interested witness and therefore, cannot be relied. With these

observations, it upset the trial Court's judgment. It is in the

above referred context, the substantial question of law has come

up for consideration.

8. Learned counsel for appellants submitted that the legal

view taken by the learned first appellate Court concerning

Exs.A.1 and A.2-pattadar and title deed pass books is against

law and cited a judgment in M.Varthamma v. Kannappa

(died)2.

9. As against it, learned counsel for respondents submit that

the view taken by the first appellate Court was right and placed

reliance on a judgment in Vedantham Satyavathi v.

P.Venkataratnam3. One could notice from the description

property as mentioned in the suit schedule and the pleadings

on both sides and the evidence on both sides that the property

in dispute is an agricultural land. That is a fact that was

recorded by both the Courts below.

10. Since it is an agricultural land and since the prayer is for

injunction, the prime question that always falls for

2013 (5) ALT 241

1988 (1) ALT 915 (AP)

Dr. VRKS, J S.A.No.109 of 2012

consideration is "whether the plaintiffs were in possession of the

property by the time of the suit." To prove possession, plaintiffs

relied on oral evidence in the form of PWs.1 and 2 as well as

documentary evidence in the form of Exs.A.1 and A.2- pattadar

and title deed pass books. The defendants, who claimed to have

got this property under Ex.B.1-registered sale deed dated

05.10.1961, also produced Exs.B.2 and B.3, which are pattadar

and title deed pass books. Since a suit for injunction is to be

decided based on the strength of the case of the plaintiffs and

not on the weaknesses of the defendants, it was right on part of

the Courts below to scrutinize the legal validity of Exs.A.1 and

A.2-pattadar and title deed pass books so as to find out whether

they could lend support concerning possession to the oral

evidence of PWs.1 and 2. The trial Court accepted the legal

effect of those two documents. The first appellate Court

negatived that and placed reliance on a decision in Yeluru

Vijayabharathi's case (supra 1). Learned first appellate Court

stated that in that ruling, this Court had laid down that entries

in pattadar pass books have no corroborative value regarding

possession of a party in regard to an immovable property (para

No.24) of the judgment of the first appellate Court. On reading

of the above ruling one would see, that was a case where a

Dr. VRKS, J S.A.No.109 of 2012

larger extent of land was claimed to be in possession by the

plaintiffs and on evidence it was found that under partition deed

there was partition of properties and only a smaller extent of

property should have come to the share of plaintiffs and it was

in such circumstances, despite the fact that pattadar and title

deed pass books, which were issued earlier to it, disclosed the

larger extents mentioned in the name of plaintiffs, the same

could not enure to the benefit of the plaintiffs by virtue of proof

of partition and getting lesser extent of property in that

partition. It was in those circumstances, the presumption

raised under Section 6 of the Andhra Pradesh (Record of) Rights

in Land and Pattadar Pass Books Act, 1971 (for short, 'Act,

1971') about the correctness of entries in such pass books stood

rebutted because of partition deed. Thus, in the given facts and

circumstances, the evidential burden, the presumptions and

how it was rebutted based on evidence were considered and

decided by this Court. If any such circumstances available in

the litigation before the lower Courts, then the above ruling

would be there to lend assistance. But the facts on record have

no semblance of proximity to the facts that were available before

this Court in the cited ruling. In the case at hand what is

pleaded in the plaint and what is deposed by PWs.1 and 2 and

Dr. VRKS, J S.A.No.109 of 2012

what is there in Exs.A.1 and A.2 is same. The evidence led by

the defendants and argued by their learned counsel indicated

that they had no connection over the plaint schedule property

as such and their anxiety was only about a different property,

which they described in the written statement schedule.

Therefore, the statutory presumption contained in Section 6 of

the Act, 1971 held its ground and it was not rebutted. One

would notice that learned trial Court was right in observing that

all that evidence oral and documentary brought by defendants

were concerning a different property. Thus, what was litigated

in the suit was not their property. The first appellate Court did

not upset that finding. The defendants, who pleaded and

proved about their rights and possession etc., over a different

property cannot by their claims negate the validity of the claim

and evidence led by plaintiffs. Thus there is clear error on part

of the first appellate Court in discounting Exs.A.1 and A.2 with

its erroneous appreciation of the law in the cited ruling.

Therefore, there is a clear error of law on part of the first

appellate Court. Learned counsel for appellants brought my

attention to M.Varthamma's case (supra 2), wherein at para

No.15, this Court had stated that a pattadar pass book and title

deed pass book issued under the Act, 1971 carry with them a

Dr. VRKS, J S.A.No.109 of 2012

presumption as to existence of title. Those of the people who

question the correctness of them should avail the remedy of

appeal or revision as provided in Act, 1971. It is only when

such documents are set aside either in appeal or revision or by

a Court of law such documents could be ignored. Thus, Exs.A.1

and A.2-pattadar and title deed pass books, which were relied

upon by the trial Court, carry with them the statutory

presumption of title and the law is clear that possession follows

title and in that view of the matter, the trial Court was right in

finding possession based on Exs.A.1 and A.2. It is never the

case of the defendants that they challenged the correctness of

Exs.A.1 and A.2 either in the revision or in the appeal or

through any Court of law. In the absence of such things, the

first appellate Court's reluctance to accept Exs.A.1 and A.2 is

incorrect and against law.

11. Learned counsel for respondents argued that since they

challenged the correctness and genuineness of Exs.A.1 and A.2,

plaintiffs ought to have examined the revenue authorities and

since they failed in that regard, the view taken by the trial Court

should be upheld. In the first place, it should be borne out of

the record that there was a genuine reason for the defendants

and there should be facts available with the defendants to

Dr. VRKS, J S.A.No.109 of 2012

question the genuineness of Exs.A.1 and A.2. Neither the

pleadings nor evidence was made available in that regard before

the lower Courts. Thus, a bald contention was raised saying

that Exs.A.1 and A.2 were fabricated. Judgments of both the

Courts below do not indicate as to how the defendants were able

to show to either of the Courts that Exs.A.1 and A.2 were

fabricated documents. On the other hand, the material on

record enables the trial Court to record that they were

statutorily issued documents. In the suit for injunction that

much was enough. Revenue authorities are not part of

litigation and nobody raised any litigation before the revenue

authorities. In such circumstances, the Court of law should act

upon the available evidence. Since the trial Court found

physical possession of property by the 1st plaintiff by the time of

the suit, it found gainful support from Exs.A.1 and A.2 also.

Coming to proof of a document, since learned counsel for

respondents relied on Vedantham Satyavathi's case (supra 3),

this Court has to state that, that was a suit for rendition of

accounts in which sister was the plaintiff and brother was the

defendant and there were certain letters in Exs.A.4 to A.6 and

A.10 written by the daughters of the defendant and when it

came to genuineness of the contents of those letters, this Court

Dr. VRKS, J S.A.No.109 of 2012

had to record the statue, record the precedent and state that

when such letters were filed and when the truth of the contents

of those letters were denied by the opposite party it was

incumbent on the person, who propounded those letters to

prove the correctness of the averments in those letters by

examining the authors of those letters. Thus, that was a case

about proof of contents of letters among relatives and as to how

they should be proved. That ruling has not dealt with any

statutorily issued document such as pattadar and title deed

pass books. As it seems, those documents bear the stamp

signature of the statutory authorities, the lower Court was right

in considering such documents and acting upon them. That

cannot be found fault with especially when nothing was placed

before the Courts below to suspect the genuineness of such

documents. Therefore, the approach of the first appellate Court

in stating that in a suit for injunction also even without any

tangible material, a peasant has to toil to secure revenue

authorities to speak on statutorily issued proceedings.

Therefore, the ruling cited by learned counsel for respondents is

not pertinent for the facts and law that is required to be

considered in this case. In that view of the matter, the finding

of the first appellate Court cannot be supported.

Dr. VRKS, J S.A.No.109 of 2012

12. While the evidence of PW.2 was accepted by trial Court as

believable, the first appellate Court discarded it only because

PW.2 was there with the deceased 1st plaintiff when the

advocate drafted the plaint. On that basis, a very curious

conclusion was reached saying that PW.2 is an interested

witness. Learned first appellate Court failed to realize that

affinity does not bring someone in the concept of interested

witness as long as enmity for him as against the opposite party

is not shown. What would PW.2 gain by speaking falsehood and

what was the cause for him to speak falsehood against the

defendants was neither referred to by the first appellate Court

nor could be gathered from the discussion of the judgment of

the trial Court. Therefore, castigating a neutral witness and

branding him as an interested witness especially without any

discussion is not acceptable. Therefore, that observation of the

first appellate Court does not stand for scrutiny. Strictly

speaking the question of title was never made an issue in the

suit for injunction. Both the Courts properly appreciated that

only possession was at dispute. However, in the ruling cited

above one would notice that Section 6 of the Act, 1971 keeps a

presumption of title and once title deed and pattadar pass

books (Exs.A.1 and A.2) were issued. There is no evidence on

Dr. VRKS, J S.A.No.109 of 2012

record rebutting that presumption. Therefore, the approach of

the trial Court in accepting them as proof of possession

supporting the parole evidence is a right approach. The first

appellate Court went by incorrect appreciation of law and

evidence. The appellants are right in canvassing that their

claim could be safely rested on Exs.A.1 and A.2. Since the first

appellate Court committed grave errors on all fronts, the same

shall be set aside. The substantial question of law is answered

in favour of appellants.

13. In the result, this Second Appeal is allowed setting aside

the judgment and decree dated 18.02.2011 of learned District

Judge, Chittoor in A.S.No.81 of 2006. There shall be no order

as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 31.10.2022 Ivd

Dr. VRKS, J S.A.No.109 of 2012

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

SECOND APPEAL No.109 of 2012

Date: 31.10.2022

Ivd