The State Of Ap vs A.A.Balaraman
2023 Latest Caselaw 552 AP

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

                SECOND APPEAL No.1192 of 2013

JUDGMENT:

Defendants in the suit filed this second appeal under

Section 100 C.P.C. Respondent No.1 was the plaintiff in the

suit and respondent No.2 was defendant No.3 in the suit.

2. On 21.03.2014 a learned Judge of this Court admitted

this second appeal on the following substantial questions of law:

1. Whether the plaintiff has got right, title and interest in respect of Ac.0.69 cents of land in S.No.270/2? and

2. Whether findings of both Courts below are perverse on this aspect?

3. The facts leading to the present second appeal need be

noticed now:

Ac.0.69 cents of land in Survey No.270/2 in

Chinthalapatteda Village also called as Venkatarajuvaripeta

Village, Gundrajukuppam Revenue Village of Nagari Mandal,

Chittoor District is the property in dispute. Definite boundaries

on all the four sides are recorded for this piece of land described

in the plaint schedule. On two sides of this land a tank in

Survey No.270/1 is shown. On two sides of the plaint schedule

land of others are shown. The suit was filed as O.S.No.17 of

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2000 by the sole plaintiff seeking for declaration of title of the

plaintiff over the plaint schedule land and also for a permanent

injunction restraining the defendants and their men from

interfering with peaceful possession and enjoyment of plaintiff

over the plaint schedule property and for costs and such other

reliefs.

Claim of the plaintiff was that his father purchased the

plaint schedule property under a registered sale deed dated

01.07.1942. In addition to that Tirumala Tirupati Devasthanam

also granted a patta on 09.07.1943. Since those times the

property has been in possession and enjoyment of ancestors of

the plaintiff and thereafter it has been in the possession and

enjoyment of the plaintiff.

Defendant No.3 has no rights over the property.

Defendant Nos.1 and 2/Government has also no rights over the

property. However, under the influence of defendant No.3 the

Government authorities were trying to grant a patta in favour of

defendant No.3 over a part of the plaint schedule property. It is

further stated that Government authorities were claiming the

plaint schedule property as a poramboke land but such a claim

is against the entries in the revenue records. To the south and

Dr. VRKS, J S.A.No.1192 of 2013

east of the plaint schedule, there is a tank and that is in distinct

survey number and that has nothing to do with the plaint

schedule property. At para No.VIII of the plaint, it is stated that

defendant Nos.1 and 2 being public officials a petition under

Section 80(2) C.P.C. was filed dispensing with notice

contemplated under Section 80(1) C.P.C.

Defendant No.3 did not choose to appear and contest and

was set ex parte before the trial Court. On behalf of the

Government, 2nd defendant filed a written statement stating that

the suit that was filed without issuing notice under Section 80

C.P.C. is not maintainable and the suit is liable to be dismissed.

The entire pleaded case of the plaintiff is incorrect and false. At

para No.12 of the written statement, it is stated that land in

Survey No.270/2 was classified as Thangellagunta Tank. At

para No.11 of the written statement, it is stated that land in

Survey No.270/1 was classified as Thangellagunta Tank. Land

in Survey No.270/2 is classified as patta land. Extent of the

land in Survey No.270/2 is only Ac.0.44 cents and the patta

stands in the name of Sri Annamalai Mudali, who is the father

of the plaintiff. After the death of his father, plaintiff obtained

pattadar pass book for the land in Survey No.270/2. The claim

Dr. VRKS, J S.A.No.1192 of 2013

of the plaintiff for an additional extent of Ac.0.25 cents in the

said Survey No.270/2 is illegal and contrary to law. Therefore,

declaration and permanent injunction over such an extent of

land cannot be granted. Written statement further refers to a

fact that the land in Survey No.270/1, which was originally

classified as tank, was subsequently converted into house sites

and it went on referring to sub-divisions made in that portion of

the land and how certain portions of those sub-divided lands

were handed over to Zilla Parishad. It also refers to certain writ

petitions concerning Survey No.270/1. It sought for dismissal

of the suit.

4. On these rival pleadings, learned trial Court settled the

following issues for trial:

1. Whether the plaintiff has got right and title, in respect of the suit property?

2. Whether the plaintiff is in possession and enjoyment of the suit schedule property?

3. Whether the plaintiff is entitled for declaration of title in respect of the suit schedule property as prayed for?

4. Whether the plaintiff is entitled for perpetual injunction against the defendants in respect of the suit schedule property as prayed for?

5. To what relief?

Dr. VRKS, J S.A.No.1192 of 2013

5. In proof of his case, plaintiff testified as PW.1 and got

marked Exs.A.1 to A.7. On behalf of the Government/defendant

Nos.1 and 2, the Mandal Revenue Officer of Nagari Mandal,

Chittoor District testified as DW.1 and got marked Exs.B.1 to

B.4.

6. On considering the oral and documentary evidence and

on considering the arguments advanced by both sides, learned

trial Court observed that the real matter in dispute was only

about total extent of land in Survey No.270/2. According to

plaintiff, it was Ac.0.69 cents, but according to defendants it

was only Ac.0.44 cents. On considering Ex.A.1-registered sale

deed dated 01.07.1942, it observed that land transacted was 10

guntas, which was almost equal to Ac.0.69 cents claimed by the

plaintiff and that was in possession of predecessors in interest

of the plaintiff and thereafter it is that extent of the land that

has been in possession of the plaintiff. It observed that while

the plaintiff has title over Ac.0.69 cents, he has been cultivating

only Ac.0.44 cents. The boundaries mentioned in Ex.A.1 and

the boundaries mentioned in the plaint schedule matched and

there has been no change in the boundaries since then till the

time of the suit. That the plaintiff proved his lawful possession

Dr. VRKS, J S.A.No.1192 of 2013

and enjoyment by virtue of Ex.A-Series documents. Referring to

Ex.B.1 and Ex.B.3 it observed that in one column they refer

Survey No.270/2 concerning Ac.0.44 cents as a patta land, but

at another column these very documents indicate Ac.0.69 cents

in the said survey number showing possession of the plaintiff.

With such observations it found all the issues in favour of the

plaintiff and decreed the suit.

7. Aggrieved by such judgment, defendant Nos.1 and 2

carried the matter in first appeal before the learned Senior Civil

Judge, Puttur in A.S.No.2 of 2008. Before the first appellate

Court the main contention was raised stating that while the

evidence indicated Ac.0.44 cents of land of plaintiff the trial

Court erroneously decreed it for Ac.0.69 cents of land, which is

against the entries in the revenue records. The learned first

appellate Court on considering the entire evidence and the

findings of the trial Court and on considering the arguments

advanced before it on both sides, independently scrutinized the

entire evidence and stated that according to Ex.A.1-registered

sale deed the land was almost Ac.0.69 cents and according to

Ex.A.2-Pre Abolition Adangal also the extent of the land was

Ac.0.69 cents. DW.1 admitted in his cross-examination that the

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Government authorities did not make any physical visit to the

suit property. Ex.B.4 does not relate to the suit schedule

property, but it is related to the tank in Survey No.270/1. It

further stated that Ex.A.2 dated 10.04.1996 was issued by

Mandal Revenue Officer, Nagari himself and in column No.11

the extent is mentioned as Ac.0.69 cents for Survey No.270/2.

It verified column No.25 of Ex.A.2 where it was mentioned as

Ac.0.44 cents as the extent of land in that survey number.

Coming to Ex.B.1 it stated that the date of issuance of Ex.B.1

was not mentioned though Ex.B.1 is settlement fair adangal.

On assessment of the above evidence, it came to a conclusion

that the findings of the trial Court were right and it agreed with

those findings and dismissed the appeal and thereby confirmed

the judgment of the trial Court.

8. It is against those judgments, the present second appeal

came to be filed.

9. During the course of arguments, learned Government

Pleader for Arbitration appearing for the appellants argued that

as per law a notice under Section 80 C.P.C. is mandatory and

plaintiff by his own showing disclosed that no such notice was

issued prior to the filing of the suit and that is fatal. On

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considering this submission it is to be stated that as noticed

earlier, in the plaint it is mentioned that notice under Section

80(1) C.P.C. was not given prior to the filing of the suit, but an

application under Section 80(2) C.P.C. was filed. Nothing is

brought to the notice of this Court about any incorrectness in

the said averment. Thus, an application under Section 80(2)

C.P.C. must have been filed by the original plaintiff before the

trial Court. Perhaps it is for that reason no issue was settled for

the purpose of trial though there was a specific stand taken in

the written statement that notice prior to the suit under Section

80 C.P.C. was not issued. A reading of the judgment of the trial

Court as well as the grounds of appeal and the arguments

advanced before the first appellate Court and the judgment of

the first appellate Court do not indicate any issue settled and

any argument advanced concerning maintainability of the suit

on the ground that Section 80(1) notice was not issued. Thus,

what transpires is that despite a contention being taken up in

the written statement on the question of maintainability of the

suit for want of notice under Section 80(1) C.P.C. no issue was

framed and never defendants moved any application for

amendment of issues and no arguments were submitted before

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the trial Court and thereby no finding was invited from the trial

Court on that question. Similar situation prevailed till the

matter was disposed of by the first appellate Court. When that

being the fact on record, now the point is whether an argument

based on omission to give notice under Section 80(1) C.P.C. can

be countenanced in this second appeal. In Paleti Sivarama

krishnaiah v. Executive Engineer, N.C. Canals

Sathenapalli1, this Court at para No.20 held that as long as no

issue was settled before the trial Court and no effort was made

for having an issue settled or framed before the trial Court and

having contested the suit which resulted in passing of a

judgment by the trial Court, taking an objection about notice

even before the first appellate Court could not be approved. On

that principle, which is squarely applicable to the facts on

record, the contention of the appellants has to be negatived.

10. Learned counsel for the appellants submit that there was

clear misappreciation of evidence by both the Courts below

leading to perverse findings.

AIR 1978 AP 389/1978 SCC Online AP 2015

Dr. VRKS, J S.A.No.1192 of 2013

11. As against it, learned counsel for respondent No.1 argued

that it was based on evidence, both oral and documentary, the

learned Courts below concurrently reached to findings of facts

and this Court sitting in second appeal should decide the

dispute based on those findings on facts and should not

reappreciate the evidence.

12. The claim of title and possession of the

plaintiff/respondent No.1 is about a piece of land. Its

descriptive particulars include the extent, boundaries on all four

sides, survey number. Indicating ownership and possession

over such a piece of land since the time of his ancestors till the

date of presentation of the suit certain documents were filed.

Oldest among them is Ex.A.1, which is a registered sale deed

dated 01.07.1942 and thereafter Ex.A.2, which is a certified

copy of survey and settlement register for the fasali 1363

equivalent to the year 1955 and Ex.A.3, which is an old revenue

record of the fasali 1366 equivalent to 1958. All those

documents indicate ownership and possession over Ac.0.69

cents of land. The evidence of plaintiff as PW.1 and Mandal

Revenue Officer as DW.1 is in unison that for the piece of land

of plaintiff/respondent No.1 on south and east it is

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Thangellagunta Tank. On north and west there is land of

others. From the averments in the written statement, it is clear

that Thangellagunta Tank is now no more a tank and it was

converted into habitable land and was dealt with accordingly by

the Government. Throughout the period of this litigation both

parties did not choose to have an advocate commissioner taken

out to measure the extent of the disputed property. The fact

that for about more than seven decades the predecessors in

interest and thereafter the plaintiff/respondent No.1 has been

in possession and exercising rights of ownership over the

claimed property is not in dispute. It is not the case of

appellants in their written statement that the plaintiff ever

encroached into property of others. It is in the context of these

aspects, the contentions raised in the appeal are to be

considered. The stand of the appellants before the trial Court

indicate that at one breath it was stated that there was no land

for the plaintiff and it was a poramboke land and at another

breath, they stated that plaintiff had land, but it was only

Ac.0.44 cents since that Survey No.270/2 has only an extent of

Ac.0.44 cents. Such a contention based merely on an extent in

survey number it is not possible to hold that the property owned

Dr. VRKS, J S.A.No.1192 of 2013

and possessed by plaintiff in an extent of Ac.0.69 cents is

incorrect. Law has been that survey number is a matter of mere

description for the purpose of identity and in considering the

extent of land it has always been recognized that the boundaries

to the land prevail over rest of the descriptions since it is

physical existence of these boundaries, which were agreed upon

between parties as the parcel of land that was dealt with. At

para No.11 of the written statement, these appellants pleaded

that plaintiff obtained pattadar passbook for Ac.0.44 cents.

However, Government did not choose to exhibit it. DW.1 in his

examination in chief stated that survey and settlement officer

conducted an enquiry and on 22.06.1956 it was declared that

Survey No.270/2 is patta land in an extent of Ac.0.44 cents

belonging to Sri Adili Annamalai Modali (father of plaintiff).

However, such proceedings indicting about such enquiry and

issuance of any proceedings dated 22.06.1956 were not brought

on record by the Government/appellants. Why these

documents were not produced has never been explained. When

the registered sale deeds and the revenue records furnished by

the plaintiff/respondent No.1 indicated his title and possession

over Ac.0.69 cents of land, unless there is evidence indicating

Dr. VRKS, J S.A.No.1192 of 2013

that the recitals in Ex.A.1-registered sale deed and the entries

in revenue records are incorrect and false, it is not possible to

deny the relief that was prayed for by the plaintiff. The suit is

not one to decide whether in Survey No.270/2 the existing

extent was only Ac.0.44 cents or Ac.0.69 cents. The suit is

about Ac.0.69 cents of land over which plaintiff claimed title

and possession. If on ground Ac.0.69 cents spreads beyond

Survey No.270/2, it was for the defendants to show to what

extent and to which survey numbers such extra extent fell.

Instead of helping a citizen in having peaceful enjoyment of his

own property, the Government has been merely contending and

raising a question about extent of land that was there in a

particular survey number. Even if it is to be recorded that in

Survey No.270/2 there is only Ac.0.44 cents that by itself do not

lead to denial of title declaration for the plaintiff by virtue of oral

and documentary evidence he adduced. In these

circumstances, the final conclusions reached by both the

Courts below shall be upheld as valid and the contention that

the appreciation of evidence is perverse is one without merit.

Dr. VRKS, J S.A.No.1192 of 2013

13. In Kondiba Dagadu Kadam v. Savitkibai Sopan

Gujar2, the Hon'ble Supreme Court of India held that

concurrent findings of fact, however erroneous, cannot be

normally disturbed by the High Court while considering the

appeal under Section 100 C.P.C. Second appeal cannot be

decided merely on equitable grounds. In the light of the above

law and the material on record, points are answered against the

appellants.

14. In the result, this Second Appeal is dismissed. 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: 02.02.2023 Ivd

1999 (3) SCC 722

Dr. VRKS, J S.A.No.1192 of 2013

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

SECOND APPEAL No.1192 of 2013

Date: 02.02.2023

Ivd