A.R.Mubarak vs The Government Of Andhra Pradesh,
2022 Latest Caselaw 6624 AP

          THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                       Appeal Suit No.275 of 2012

JUDGMENT:

This appeal, under Section 96 CPC, aggrieved by the decree &

judgment, dated 08.08.2007, passed in O.S.No.9 of 2002 on the file

of the Court of V Additional District Judge, Tirupathi.

2. Heard Sri A.Chandraiah Naidu, learned counsel for the

appellant/plaintiff, learned Government Pleader for Appeals

appearing for respondents 1 to 7, and Sri J. Ugranarasimha, learned

counsel for respondent No.10. Though notice was served on

respondent No.9, no appearance was made. Notice sent to

respondent No.8 was returned un-served. Since respondent No.8

remained ex parte in the suit, notice to him is dispensed with.

3. The case of the plaintiff, in brief, is that defendants 8 and 9

were arrack contractors for excise year 1992-93 in Chittoor District,

Nagari group, Palasamudram Mandal unit for 36 shops. The plaintiff

was a minor during the year 1992-93 as he did not complete even

15 years of age by then, and he never submitted any tenders for

any arrack licence as he did not have any capacity to carry on

arrack business. The plaintiff recently came to know that the plaint

schedule property was brought to sale and the 10th defendant

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became successful bidder and knocked away the property for a

paltry sum of Rs.1,40,500/-, vide orders of the RDO, Chittoor, dated

10.04.1995. The plaintiff was a minor even on the date of the

alleged order. Such auction proceedings are arbitrary and confer

any conclusive right or title to the 10 th defendant in the property of

the plaintiff. The plaintiff came to know about the auction when he

was served with conditional attachment order, dated 27.10.1999

issued under Section 8 of the Revenue Recovery Act for realization

of the alleged excise rent arrears of revenue to a sum of

Rs.90,53,543/-. The said order is unjust, arbitrary and is not

binding on the plaintiff as the plaintiff was a minor at that time.

The plaintiff is not liable to pay any such amount. The plaintiff

never stood as arrack contractor. He never had any licence. He

never submitted any tenders. In the said circumstances, the

plaintiff got issued a notice under Section 80 CPC. Respondents 1

to 9 received the notice. The 6th respondent issued reply notice

with false allegations. The 10th respondent evaded to receive the

notice. The plaintiff was a minor and came to know of the facts

recently and therefore, he is entitled to sue the respondents.

Hence, the suit.

4(a) The 6th defendant filed written statement with the following

averments:

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The plaintiff filed a sworn affidavit in Form A.2 as required

under Rule 5(ii) of the A.P Excise Rules, 1999 on judicial stamp

paper worth Rs.100/- declaring his immovable properties, viz.,

Ac.8.56 cents valued at Rs.3,91,000/-, Ac.7.64 cents at Nagari

valued at Rs.7,00,000/- before a Gazetted Officer, Nagari, that is,

before S.Gangulu, Lecturer in Chemistry, Government Degree

College, Nagari, on 08.09.1992. The plaintiff has also filed a

declaration in form A.1 declaring that he was aged 21 years. The

said declaration was executed before the Assistant Excise

Superintendent, Chittoor, on 09.09.1992. After complying the

requisite formalities, the plaintiff obtained Hall Ticket to participate

in the auction proceedings for the excise year 1992-93 for Nagari

town unit for 36 shops. The Nagari Group consisting of 36 arrack

shops was knocked down in favour of defendants 8 &9 and the

plaintiff on a monthly rent of Rs.12,31,786/- for the Excise Year

1992-93. After complying with the requisite formalities as required

under Rules 16, 18 and 19 of the Rules and after executing

counterpart agreement, as required under Rule 21, licences were

granted to the defendants 8, 9 and to the plaintiff. Thus, the

allegation of the plaintiff that he was a minor by then was false.

The further allegation that the plaintiff did not have the capacity to

carry on arrack business along with defendants 8 &9 is false. Due

to non-payment of rent from the beginning of the lease year 1992-

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93, the shop licences of Nagari group of arrack shops were

cancelled and the shops were run departmentally as per the orders

of the District Collector, Chittoor, with effect from 11.05.1993. The

defendants 8 & 9 and plaintiff fell in arrears to a tune of

Rs.91,94,043/-, as on 30.09.93. The immovable properties of

defendants 8 & 9 and plaintiff were attached. The plaintiff was

served with D.4 notice on 06.01.1994 and the served copies were

sent to the M.R.O., Nagari. The information regarding sale of

immovable properties was published in Chittoor District Gazette

No.5, dt.5.5.1994, after due service of notice in Forms D.4, D.5,

D.7 and D.7A, dated 4.4.1994. Hence, the version of the plaintiff is

not correct. The sale conducted by the M.R.O, Nagari, on

09.02.1995 for Rs.1,40,500/- in favour of the 10 th defendant was

confirmed by the R.D.O, vide proceedings, dated 10.04.1995, and

the lands were transferred in the name of the 10th defendant. The

action of the 2nd defendant in conducting the sale of the immovable

properties of the plaintiff is as per rules. Defendants 8 & 9 are still

due to the Government to a tune of Rs.90,53,543/- together with

interest accrued thereon. The plaintiff is aware of the disposal of

the movable and immovable properties and he is liable to pay due

amount of Rs.90,53,543/- together with interest to the

Government. The plaintiff is trying to evade payment of the dues.

The suit is barred by limitation. There is no cause of action to file

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the suit and the alleged cause of action is false and baseless. This

Court has no jurisdiction to try the suit and the suit is liable to be

dismissed.

(b) Defendants 1 to 5 and 7 adopted the written statement of the

6th defendant.

(c) The 10th defendant filed written statement alleging that this

defendant is a bona fide purchaser of the plaint schedule property in

the revenue auction conducted by the 2nd defendant and the

plaintiff was present at the time of the said auction and he has also

put his signature in all the auction proceedings. In fact, a prior

notice of the auction was issued to the plaintiff before conducting

the auction and the same was published in Chittoor District Gazette,

dated 05.05.1994. The plaintiff never raised any objection for the

said auction of the plaint 'A' schedule property. The plaintiff

suppressed all the facts pleading ignorance and filed the suit with

false allegations. The suit is not maintainable and is barred under

the provisions of the Revenue Recovery Act. The suit is barred by

time. This defendant is the absolute owner and possessor the plaint

'A' schedule property. The suit is liable to be dismissed.

5. Basing the above pleadings, the following issues were framed

for trial:-

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(i) Whether the plaintiff is entitled for declaration that the attachment and sale, dt.09.02.1995 and confirmation thereof the plaint 'A' schedule property are arbitrary, collusive, invalid and illegal and not binding on him?

(ii) Whether the plaintiff is entitled for permanent injunction as prayed for?

(iii) Whether this Court has got jurisdiction to try this case?

(iv) To what relief?

6. During trial, the plaintiff examined PWs 1 to 3 and marked

exhibits A1 to A16. The defendants examined DWs 1 and 2 and

marked exhibits B1 to B10.

7. On considering the material on record and on hearing the

submissions of both the sides, the trial Court dismissed the suit with

costs holding that the plaintiff failed to establish that he was minor

on the date of auction of Nagari Group 36 arrack shops that he has

not submitted tenders and that he has not participated in the

auction.

8. Aggrieved thereby, the plaintiff preferred this appeal raising

the following grounds in the grounds of appeal:- That the trial Court

ought to have seen that when the main contention of the plaintiff is

that he was a minor at the time of execution of exhibits B1 to B4

and he never participated in the alleged auction held for allotting

the group of arrack shops at Nagari, it ought to have framed an

issue in that regard, that the trial Court miserably failed to

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appreciate the documentary evidence, that the trial Court

erroneously disbelieved exhibit A1 on the ground that the Transfer

Certificate was signed by the Principal, Junior College, Nagari

whereas the plaintiff studied 7th class in the year 1989-90, that the

trial Court miserably failed to appreciate the fact that the defendant

failed to produce the lease/rental agreement, that the trial Court

ought to have appreciated that exhibit A2 issued by the District

Educational Officer coupled with exhibit A1 clearly establishes that

the plaintiff was a minor on the date of conducting the auction of

the plaint schedule property, that the trial Court miserably failed to

appreciate the documentary evidence and erroneously came to the

conclusion that the plaintiff failed to prove his date of birth as

20.10.1977, that the trial Court erred in holding that the suit is

barred by limitation. The decree and judgment, if allowed to

continue, it would occasion in failure of justice and the apeplant will

be put to hardship and irreparable loss.

9. The main contention of the appellant is that he was minor as

on the date of the alleged transaction of allotment of group of

arrack shops at Nagari, while denying the allotment itself by stating

that he has never participated in the alleged auction for allotment of

arrack shops.

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10. Firstly, coming to the aspect that he was a minor, to prove

that he was born on 20.10.1977, he lays his emphasis on Transfer

Certificate filed by him, under exhibit A1, and proceedings of

exemption given for appearing to write examination of SSC filed

under exhibit A2, besides his own oral evidence and also the

evidence of PWs 2 & 3.

11. On other hand, the defendants relied on declaration form

under exhibit B1, affidavit in form A.2, under exhibit B2, and Hall

ticket, under exhibit B3, contending that he was a major and was

aged 21 years as on the date of allotment of arrack shops. Learned

counsel for the appellant contended that exhibits A1 and A2 are

public documents and that presumption has to be drawn under

Section 79 of the Indian Evidence Act, 1872, about their

genuineness and moreover, Transfer Certificate is a valid document

to prove the date of birth and placed reliance on the decision of the

Supreme Court in State of Punjab v. Mohinder Singh 1 . The

respondents/defendants have not disputed the proposition that the

date of birth reflected in the Transfer Certificate is not proof

sufficient to establish date of birth of a person. It is mainly

contended that exhibit A1 is not a valid document. The trial Court

also found fault in the genuineness of the document observing that

the name of the school where the plaintiff studied is not mentioned

AIR 2005 SC 1868

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in exhibit A1, but it was issued by the Principal of a Junior College,

whereas, Class VII would be pursued in a school, but not in a

college. The plaintiff has not stated in the plaint or in his affidavit

in chief examination, which is just a replica of plaint, as to where he

studied. A perusal of exhibit A1 shows that it was issued by the

Principal of a Junior College. The column meant for the 'name of

the school' in the Transfer Certificate is left blank. Learned counsel

for the appellant submitted that the school was upgraded. In the

absence of any evidence, oral submissions would not justify in the

matter of fact to be established and it is not a matter which can be

judicially taken note by the Court. Even in relation to exhibit A2, as

rightly pointed out by the trial Court, there is no signature of the

District Educational Officer who is said to be author of the said

proceeding. But, it was issued by the Head Master of ZPP High

School, Ekambarapuram. There is no endorsement that it is a true

copy of the original. In case of an attested copy also, if at all there

is signature of the DEO, it will be shown as "Sd/-". Therefore, this

Court also does not see any authenticity of document under exhibit

A2.

12. Coming to the oral evidence of the plaintiff, his oral

submission alone, in the absence of any valid documentary

evidence, be taken as gospel truth of the date of birth spoken by

him. DWs 2 & 3 who are not family members of the plaintiff have

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spoken about the specific date of birth of the plaintiff. They do not

know even their dates of birth or the date of birth of their own

family members as per their admissions in the cross-examination.

Under these circumstances, their evidence as to the specific date of

birth of the plaintiff is unbelievable. The trial Court has also rightly

rejected their evidence in this regard. No actual date of birth

certificate is produced. No reason is stated as to why it could not

be filed. It is also no where stated that the birth was not

registered. Neither of the parents of the plaintiff was examined to

speak about the date of birth. Thus, the plaintiff failed to establish

his date of birth so as to prove that he was a minor as alleged by

him. On the other hand, DW1 filed exhibits B1 to B3 to show that

the plaintiff gave declaration that he was aged 21 years as on the

date of its issue. Exhibit B1 is form No.A1, exhibit B2 is affidavit

form No.A2, exhibit B3 is a declaration form submitted by the

plaintiff to issue Hall ticket for participation in the auction for

allotment of arrack shop declaring amongst other things that he is

aged 21 years. It is pertinent to mention that in the cross-

examination of DW1, not even a single suggestion was given

denying or disputing exhibits B1 and B2. Even with regard to

exhibit B3, except that he has not asked for issuance of Hall ticket,

no statement is made denying exhibit B3. A perusal of exhibits B1

to B3 shows there is identical nature of the signature. Moreover,

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his signature on his written statement and evidence are

substantially the same. Thus, the defendants could establish that

the plaintiff himself has given a declaration that he was aged 21

years old as by then. As such, the very basis of the claim for

seeking the relief in the suit has been scuttled down by the

defendants.

13. The defendants challenged the suit on the ground of limitation

as well. It is contended that as per Section 59 of the A.P. Revenue

Recovery Act, a suit must be filed within six months from the date

of auction and therefore, the suit ought to have been filed on or

before 09.08.1995, whereas, the suit was filed in the year 2000,

and thus, barred by limitation. Since these dates are not in dispute,

the suit is ex facie barred by limitation. For arguments sake, even if

it is considered that the plaintiff was a minor having born on

20.10.1979, he becomes major by 20.10.1995. Section 6 of the

Limitation Act says that where a person entitled to institute a suit or

make an application for the execution of a decree is, at the time

from which the prescribed period is to be reckoned, a minor or

insane, or an idiot, he may institute the suit or make the application

within the same period after the disability has ceased, as would

otherwise have been allowed from the time specified therefor in the

third column of the Schedule. The exemption given under Section 6

of the Limitation Act is in relation to the period of limitation

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specified in the Limitation Act itself. Whereas, the limitation period

of six months is under a separate Act, i.e., Section 59 of the A.P.

Revenue Recovery Act. The same has to be reckoned from the date

when the auction was conducted. Even if the period of 6 months is

reckoned from the date he allegedly became major, the suit was

filed far beyond limitation. As such, the suit is also beyond limitation

and is not maintainable.

14. Thus, there is no merit in the appeal. The trial Court has

rightly dismissed the suit.

15. In the result, the appeal is dismissed.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

________________ B.S BHANUMATHI, J 09th September, 2022 RAR