Andhra Pradesh High Court - Amravati
The District Collector vs Sri V.Raghunathan on 15 September, 2023
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+ SECOND APPEAL No.1057 of 2016
Between:
#1. The District Collector,
Chittoor and 3 others.
... Appellants
And
$ 1. Sri V Raghunathan, S/o. Rangaswamy,
Hindu, Aged about 51 years, Advocate, Puttur,
Residing at Brahmin Street,
Puttur Town and Post,
Chittoor District and 2 others
Respondents
JUDGMENT PRONOUNCED ON 15.09.2023
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local
newspapers may be allowed to see
- Yes -
the Judgments?
2. Whether the copies of judgment may
be marked to Law Reporters/Journals - Yes -
3. Whether Their Ladyship/Lordship
wish to see the fair copy of the
- Yes -
Judgment?
___________________________________
DR.JUSTICE K. MANMADHA RAO
2
* THE HON'BLE DR.JUSTICE K. MANMADHA RAO
+ SECOND APPEAL No.1057 of 2016
% 15.09.2023
Between:
#1. The District Collector,
Chittoor and 3 others.
... Appellants
And
$ 1. Sri V Raghunathan, S/o. Rangaswamy,
Hindu, Aged about 51 years, Advocate, Puttur,
Residing at Brahmin Street,
Puttur Town and Post,
Chittoor District and 2 others
Respondents
! Counsel for the Appellants : Government Pleader for
Arbitration
Counsel for Respondent: Sri P. Chandra Mouli
Sri M.V.J. Kumar
<Gist :
>Head note :
?Cases referred :
1. 2001 (4 SCC 262
2. 2008 (1) ALD 113
3. 2006 (3) CivCC 404
4. (2007) 1 Supreme Court Cases 546
3
HON'BLE DR. JUSTICE K. MANMADHA RAO
SECOND APPEAL No.1057 of 2016
JUDGMENT:
The present Second Appeal is preferred by the
appellants aggrieved by the Decree and Judgment dated
09.09.2014 passed in A.S.No.1 of 2004 on the file of the
Principal Senior Civil Judge, Tirupathi, confirming the
decree and judgment dated 05.08.2002 passed in O.S No.49
of 1991 on the file of the Principal Junior Civil Judge,
Puttur.
2. The appellants herein are the defendants and the
respondent herein is the plaintiff in O.S.No.49 of 1991 on
the file of Principal Junior Civil Judge, Puttur (for short "the
trial Court").
3. For convenience the parties are hereinafter referred
to as arrayed before the Principal Senior Civil Judge,
Tirupathi (for short "the first appellate Court") in A.S.No.1 of
2004.
4. Brief facts of the case are that the plaintiff filed O.S
No.49 of 1991 before the trial Court for grant of declaration
declaring that the amendment made to the original
notification No.351, dated 03.08.1952 vide G.O.Ms.No.726
(Revenue) dated 10.08.1967 published in A.P. Gazette, dated
31.08.1967 as invalid and not binding upon the plaintiff and
also for granting permanent injunction restraining the
defendants and their sub-ordinates not to interfere with the
plaintiff's peaceful possession and enjoyment of the suit
properties.
5. Originally the suit schedule property is the
ancestral property of the plaintiff which was purchased by
his forefather's under the registered sale deed dated
27.09.1880 and since then they are in continuous
possession and enjoyment of the same. Subsequently, the
plaintiff got divided their entire properties by way of
partition decree in O.S No.64 of 1947 in which the subject
property is kept joint. Further, as the Government tried to
take over their property, the plaintiff and their family
members preferred O.S No.15 of 1958 before the District
Court, Chittoor for declaration of title and the same was
decreed on merits. Apart from the same, the mandatory
injunction was given to the Government for grant of permits
to the plaintiffs and accordingly the defendants No.3 and 4
have been granting Permits. Subsequently, the defendants
preferred an appeal vide A.S No.415 of 1959 before this
Court and the same was dismissed by this Court confirming
the judgment and decree passed in O.S No.15 of 1958.
Thereafter, on 24.04.1991 the 4th defendant accumulated
some survey stones near the suit property in order to put
Khiran stones inside with an ulterior motive of annexing the
suit property with the reserve forest. In pursuance of the
same, the Government miserably failed to take over Kalyana
venkateswarapuram and Vidwat Sadasivapuram under the
first Notification No.351, dated 03.08.1952 vide
G.O.Ms.No.2210 Revenue dated 01.08.1952. Thereafter, the
defendants issued an amendment to the aforementioned
notification vide G.O.Ms.No.726 (Revenue) dated 10.08.1967
stating that the High Court while upholding the decree and
judgment of the trial Court and dismissing the Government
appeal observed that the suit property formed part of
Karvetinagar Zamindari and after Narayanavanam had been
auctioned and separately registered in Collector's office, that
they became ultimately part and parcel of the estate
Narayanavanam, as such, the two villages should be deemed
to have been taken over along with parent estate
Narayanavanam from 15.08.1950. In spite of said
amendment to original notification which was never acted
upon till now, the Government cannot and will not get over
or by pass the permanent injunction granted in CMP
No.3609 of 1953 in W.P.No.269 of 1953 by the High Court of
composite Madras State which was carried out in the decree
and judgment of the trial Court in O.S No.15 of 1958.
Therefore the plaintiff filed the suit.
6. The defendants No.1 and 2 filed written statements
and denied all the allegations made in the plaint. It is stated
that the Government vide G.O.Ms.No.796 dated 10.08.1967
issued an amendment to the original notification issued
under Section 1(5) of the Estate Abolition Act, 1948 thereby
Kalyana venkateswarapuram was deemed to have been
taken over long back with parent estate Narayanavanam
w.e.f. 15.08.1950 and was published in A.P. Gazette, dated
31.08.1967 and this notification has not been challenged by
the plaintiffs and their predecessors. The plaintiff's claim
for grant of Ryotwari Patta under Section 15(1) of the Estate
Abolition Act, 1948 was also rejected by the Asst. ASO.,
Chittoor vide proceedings in S.R No.77/UT/53, dated
29.04.1954 in suo moto proceedings. Therefore, the
plaintiffs have no right and are not in possession of any land
in the village. The entire area was forest as on 15.08/.1950.
7. The defendant No.3 also filed written statement
stating the defendant No.4 has every right to preserve the
forest land and the plaintiffs have no right to question his
acts, while discharging his official duties. The boundaries to
the suit lands are vague and incorrect. The suit land is
called "Enclosure" which is mentioned in the plan and is
surrounded on all sides by the forest lands. Taking undue
advantage of the enclosure being situated in the forest land
the plaintiff employed his men thereby entered into the
forest land and caused damage to the forest growth on
12.05.1991 and on 14.07.1991. The defendant has taking
steps for correct demarcation of enclosure with the help of
tie line and also with the help of Assistant Director of survey
and land records, Chittoor, and hence prayed to dismiss
the suit.
8. Basing on the above pleadings, the trial Court
framed the following issues:
1. Whether the plaintiff is in possession and enjoyment of the
suit property on the date of filing of the suit?
2. Whether the plaintiff is entitled for permanent injunction as
prayed for?
3. To what relief?
The following Additional issues were also framed:
4. Whether the plaintiff is entitled for declaration that
amendment made to original notification No.351, dated
03.08.1952 by issue of G.O.Ms.No.726 (Revenue) dated
10.08.1967 published in A.P. Gazette, dated 31.08.1967 as
invalid, in operative and not binding on the plaintiff?
5. Whether the schedule property vests in Government in view
of Section 3(B) of Estate Abolition Act?
6. Whether the schedule property was declared as Forest land
under Section 15 of A.P. Forest Act?
9. After careful appreciation on record the trial Court
decreed the suit as prayed for. Aggrieved by the same, the
defendants preferred A.S No.1 of 2004 before the first
appellate Court stating that the trial Court has not
considered the evidence and probabilities of the case facts
and has not properly appreciated the contention of the
defendants and the defendants had ample power to amend
the notification in view of the observations made by this
Court in A.S No.415 of 1959. The first appellate Court has
dismissed the said appeal stating that the finding of the trial
Court by settling the issues in favour of the plaintiff need
not be interfered in the appeal as the findings are in
accordance with law and on appreciation of evidence on
record. Challenging the same, the present second appeal
came to be filed.
10. This Court, vide order, dated 21.08.2023 in I.A
No.5 of 2018 has permitted to implead the proposed
respondents No.2 and 3 in the main S.A.No.1057 of 2016.
11. Heard learned Government Pleader for Arbitration
appearing for the appellants and Sri P. Chandra Mouli and
Sri M.V.J. Kumar, learned counsels appearing for the
respondents,
12. Learned counsel for the appellants has urged in
the grounds of appeal as the following substantial questions
of law arisen for determination of the second appeal :
a) Whether the judgment and decree of Lower Appellate
court in confirming the judgment and decree of the trial
court is correct, without framing necessary point for
consideration without following the fundamental
provisions of CPC enumerated under Order 41 Rule 31?
b) Whether the Courts below have jurisdiction to entertain
the suit in view of the fact that property is incapable of
valuation?
C) whether the judgments of the Court below are sustainable
in view of the judgment rendered by this Court in the
State of A.P. vs. Kothacheruvu Plantations and Industries
Pvt. Ltd., reported in 2014 (4) ALT 380?
d) Whether the Courts below are right in declaring the
G.O.Ms.No.796 dated 10.8.1967 as invalid in view of the
fact that after the Estates Abolition Act, 1948 came into
force Kalyana Venkateswarapuram and
Vidwatsadasivapuram villages included in the
Narayanavanam Forest block of Puttur Revenue Mandal
which were notified as under Tenure Estates and were
taken over by the State on 3.9.1952 under the provisions
of Estates Abolition Act?
13. This Second Appeal is filed under Section 100
CPC on the ground that the judgment and decree of both
courts below is totally basing on the presumption, surmises
and conjectures, ignoring the material facts available on
record and interpretation of law.
14. There cannot be any dispute that, under the
amended Section 100 C.P.C., a party aggrieved by the decree
passed by the first appellate court has no absolute right of
appeal. He can neither challenge the decree on a question
of fact or on a question of law. The second appeal lies only
where the High Court is satisfied that the case involves a
substantial question of law. The word 'substantial' as
qualifying 'question of law', means and conveys - of having
substance, essential, real, or sound worth, important,
considerable, fairly arguable, in contradiction with -
technical, formal, or no substance, no consequence or
academic only. A substantial question of law should directly
and substantially affect the rights of the parties. A question
of law can be said to be substantial between the parties if
the decision in appeal turns one way or the other on the
particular view of law. But, if the question does not affect
the decision, it cannot be said to be substantial question
between the parties. Recording a finding without any
evidence on record; disregard or non consideration of
relevant or admissible evidence; taking into consideration
irrelevant or inadmissible evidence; perverse finding- are
some of the questions, which involve substantial questions
of law.
15. According to Section 100 CPC, a definite
restriction on to the exercise of jurisdiction in a second
appeal so far as the High Court is concerned. Needless to
record that the Code of Civil Procedure introduced such an
embargo for such definite objectives and since the Courts
are required to further probe on that score and the Courts
while detailing out, but the fact remains in second appeal
finding of fact, even if erroneous, will generally not be
disturbed but where it is found that the findings stand
vitiated on wrong test and on the basis of assumptions and
conjectures and resultantly there is an element of perversity
involved therein, the High Court will be within its
jurisdiction to deal with the issue. The High Court can
interfere with such finding recorded by the trial Court
though not on law in view of judgment reported in Kulavant
Kaur v Gurdial Singh Mann1
16. Keeping in mind the scope of Section 100 CPC, I
would like to decide the present appeal at the stage of
admission.
17. Learned Government Pleader for the appellants
contended that first appellate Court confirming the
judgment of the trial Court besides being unjust, illegal and
contrary to law, as such, the same is liable to be set aside
and the suit is liable to be dismissed. He mainly submitted
that the Courts below miserably failed to appreciate the
contention of the appellants raised in the written statement
2001 (4 SCC 262
and utterly failed to appreciate the oral and documentary
evidence adduced on behalf of the appellants. The first
appellate court utterly failed to keep in mind the basic
principles of CPC more particularly the provisions of Order
41 Rule 31 CPC while sitting in appeal that the points for
consideration in the appeal have to be framed for deciding
the case, but in the instant case, no such exercise has been
done but adopted normal procedure as in the original suit
under Order 14 Rule 1 CPC which is impermissible under
law. He further submits that the Courts below erred in
holding on additional issue against the appellants in view of
the fact that the civil court has no jurisdiction to declare
that the government orders issued under the provisions of
Estates Abolition Act as ultra vires and unconstitutional.
He mainly contended that the courts below utterly failed to
keep it in mind that there is no specific schedule lands
mention in the schedule attached to the plaint and as such
the relief sought and granted is unsustainable and contrary
to law and facts. He further submitted that the Courts
below ought not to have entertained the suit since the
courts below has no pecuniary jurisdiction and as well as
territorial jurisdiction to entertain the suit in view of the fact
that the decree of the trial Court clearly says that the
property is incapable of valuation and as such the impugned
judgments are liable to be set aside.
18. Per contra, learned counsel for the respondents
argued that about Ac.1000.00 cents land (Private forest) in
block No.202 of K.V Puram of Puttur Mandal were acquired
by the ancestor Sri Singarachari under four(4) registered
sale deeds dated 26.07.1880, 02.08.1880, 03.08.1880 and
04.08.1880 respectively. The respondent/plaintiff purchased
about Ac 600.00 cents of lands (private forest) in Block
No.199 of V.S.puram under a registered sale deed, dated
17.02.1928 and since then he has been in possession and
enjoyment of the said lands by collecting manure leaves,
wood and by grazing the cattle. While so, the
respondent/plaintiff has leased out the right to collect the
manure leaves etc., as stated supra in favour of others
under registered lease deeds dated 25.05.1912, 22.04.1915,
19.08.1915, 22.03.1918, 27.10.1953 and 15.06.1954
respectively and leases ended by 1979. He further submits
that the Governmetn vide notification No.351 published in
Part-I of For.St.George Gazette, dated 13.08.1952 notifying
the above lands as under Tenure Estates within the
meaning of Section 2(15) of Madras Estate Abolition Act
1948. Thereupon two of the joint owners of the Estate viz.
V. Narasimhachari and V. Raghavachari successors in
interest of Sri Singarachari filed a suit in O.S No.15 of 1958
before the Additional District Judge, Chittoor for grant of
declaration and the same was allowed vide decree and
judgment dated 31.10.1958 and set aside the notification
stated supra. Aggrieved by the same, the Government
preferred appeal before the High Court of AP and the same
was dismissed. He further submitted that, later, the
Government issued GO.Ms.No.796 dated 10.08.1967
making an amendment to the original notification No.351
dated 03.08.1952, stated that while dismissing the appeal in
A.S.No.415 of 1959 observed that the suit property formed
part of Karvetinagaram Zamindari and therefore after
Narayanavanam had been auctioned and separately
registered in collector office, the two suit villages became
ultimately part and parcel of the estate of Narayanavanam
and as such the two suit villages should be deemed to have
been taken over along with present estate of
Narayanavanam. Challenging the said auction, the
respondent/plaintiff filed suit in O.S No.49 of 1991 against
the District collector and other for declaration and the same
was allowed and against the same the Government preferred
an appeal in A.S.No.1 of 2004 before the first appellate court
and the same was also confirmed the judgment of the trial
Court. Therefore, learned counsel submits that as there are
no merits in the present appeal, prayed to dismiss the same.
19. To support his contentions, learned counsel for
the respondents has placed reliance on the judgment of
High Court of Judicature, Andhra Pradesh at Hyderabad,
reported in Vegesna Ratnamma v. Chinta Venkateswarlu2,
wherein it was held that:
In the normal course, the judgment of the appellate Court should
state the points for determination and decision thereon. The
judgment shall also state the reasons for the decision. The first
appellate Court has to consider all the disputed questions of fact
and law and record its findings thereon.
9. In Girijanandini v. Bijendra Narain AIR 1967 SC 1124 the
Supreme Court held as follows:
We are unable to hold that the learned Judges of the High Court
did not, as is contended before us, consider the evidence. It is not
the duty of the appellate Court when it agrees with the view of the
trial Court on the evidence either to restate the effect of the
2008 (1) ALD 113
evidence or to reiterate the reasons given by the trial Court.
Expression of general agreement with reasons given by the Court
decision of which is under appeal would ordinarily suffice.
. In the light of the above legal position, it can be concluded
that if the judgment reflects the application of mind to the evidence
available on record and if the appellate Court discusses various
points raised by the parties by answering the rival contentions, it
is not necessary that the judgment should record all the facts in
detail and should deal mechanically with all points. It would be
sufficient if the Court renders its independent judgment on the
basis of the material available on record and if there is slight
deviation to the requirements of Order 41, Rule 31 CPC that itself
is not a ground to hold that the judgment is vitiated.
20. Learned counsel for the respondents has also
placed reliance on the decisions of Hon'ble Supreme Court
reported in (i) G. Amalorpavam vs. R.C. Diocese of
Madurai3, wherein the Hon'ble Apex Court held that :
The question whether in a particular case there has been a
substantial compliance with the provisions of Order 41 Rule 31
CPC has to be determined on the nature of the judgment delivered
in each case. Non-compliance with the provisions may not vitiate
the judgment and make it wholly void, and may be ignored if there
has been substantial compliance with it and the second appellate
Court is in a position to ascertain the findings of the lower
appellate Court. It is no doubt desirable that the appellate court
should comply with all the requirements of Order 41 Rule 31 CPC.
But if it is possible to make out from the judgment that there is
substantial compliance with the said requirements and that justice
has not thereby suffered, that would be sufficient. Where the
appellate court has considered the entire evidence on record and
discussed the same in detail, come to any conclusion and its
findings are supported by reasons even though the point has not
been framed by the appellate Court there is substantial compliance
with the provisions of Order 41 Rule 31 CPC and the judgment is
not in any manner vitiated by the absence of a point of
determination. Where there is an honest endeavour on the part of
the lower appellate court to consider the controversy between the
2006 (3) CivCC 404
parties and there is proper appraisement of the respective cases
and weighing and balancing of the evidence, facts and the other
considerations appearing on both sides is clearly manifest by the
perusal of the judgment of the lower appellate court, it would be a
valid judgment even though it does not contain the points for
determination. The object of the Rule in making it incumbent upon
the appellate court to frame points for determination and to cite
reasons for the decision is to focus attention of the Court on the
rival contentions which arise for determination and also to provide
litigant parties opportunity in understanding the ground upon
which the decision is founded with a view to enable them to know
the basis of the decision and if so considered appropriate and so
advised to avail the remedy of Second Appeal conferred by Section
100 CPC.
(ii) In a case of Gurdev Kaur and others versus Kaki
and others4, wherein the Hon'ble Apex Court held that:
"Now, the High Courts can interfere thereunder only where
substantial questions of law are involved and have been
formulated in the memorandum of appeal- Moreover, High Court
must first formulate the questions of law and only thereafter it can
proceed to decide them. The amendment clearly indicates that the
legislature never intended the second appeal to become a third
trial on facts. Hence, justice should be administered in accordance
with law and not according to judge's whim, desire and notion of
justice. Hence, where the will bequeathed the entire inheritance of
the testator to only one of several heirs and the courts below
recorded a concurrent finding that the will was a genuine and
valid document, held, High Court erred in setting aside the same
on the ground that in normal circumstances a prudent man would
have bequeathed the property in favour of his legal heirs."
21. In the light of the above legal position, it can be
concluded that if the judgment reflects the application of
mind to the evidence available on record and if the appellate
court discusses various points raised by the parties by
answering the rival contentions, it is not necessary that the
(2007) 1 Supreme Court Cases 546
judgment should record all the facts in detail and should
deal mechanically with all points. It would be sufficient, if
the Court renders its independent judgment on the basis of
the material available on record and if there is slight
deviation to the requirements of Order 41 Rule 31 CPC that
itself is not a ground to hold that the judgment is vitiated.
22. It is no doubt desirable that the first appellate
Court should comply with all the requirements of Order 41
Rule 31 CPC. But if it is possible to make out from the
judgment that there is substantial compliance with the said
requirements and that justice has not thereby suffered, that
would be sufficient. Where the appellate court has
considered the entire evidence on record and discussed the
same in detail, come to any conclusion and its findings are
supported by reasons even though the point has not been
framed by the appellate court there is substantial
compliance with the provisions of Order 41 Rule 31 CPC and
the judgment is not in any manner vitiated by the absence
of a point of determination. It is also observed that where
there is an honest endeavour on the part of the lower
appellate court to consider the controversy between the
parties and there is proper appraisement of the respective
cases and weighing and balancing of the evidence, facts and
the other considerations appearing on both sides is clearly
manifest by the perusal of the judgment of the lower
appellate court, it would be a valid judgment even though it
does not contain the points for determination.
23. The object of the rule in making it incumbent
upon the appellate court to frame points for determination
and to cite reasons for the decision is to focus attention of
the court on the rival contentions which arise for
determination and also to provide litigant parties
opportunity in understanding the ground upon which the
decision is founded with a view to enable them to know the
basis of the decision and if so considered appropriate and so
advised to avail the remedy of second appeal conferred by
Section 100 CPC.
24. On perusing the material available on record, it is
observed that, the trial Court is appreciated the evidence on
record that in O.S No.15 of 1958 on the file of Additional
District Court, Chittoor, declared that Vidyut
Sadasivapuram and Kalyanavenkateswara puram are not
under the tenure estates within the meaning of Section 2(15)
of the Madras Estates Abolition Act XXVI of 1948 and as
such the Notification No.351 issued under Madras Act XXVI
of 1948 issued in respect of two clauses is illegal and
without jurisdiction and the same was confirmed by this
Court in A.S No.415 of 1959. Therefore, it is clear that the
issue with regard to notification No.351 issued under
Madras Act XXVI of 1948 is illegal and it is also observed
that against that judgment no appeal was preferred by the
defendants questioning the judgment in A.S. No.415 of 1959
so also O.S No.15 of 1958. Therefore, amendment of such
illegal notification i.e., No. 351 in G.O.Ms.No.726, dated
10.08.1967 is also invalid and not binding on the plaintiffs
as settled by the trial Court.
25. In the light of the settled position of law and in
the light of the concurrent findings of fact given by the
Courts below, and as there is no other substantial question
of law to be considered by this Court, I do not find any valid
ground either to remand the matter to the first appellate
court or to set aside the judgments of the courts below.
26. For the above-mentioned reasons, I do not find
any reason to interfere with the well-considered judgments
of the Courts below.
27. Accordingly, the Second Appeal is dismissed at
the stage of admission. No order as to costs.
As a sequel, all the pending miscellaneous
applications shall stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 15 -09-2023
Note : L. R copy to be marked.
(b/o)Gvl
HON'BLE DR. JUSTICE K. MANMADHA RAO
SECOND APPEAL No.1057 of 2016
Date : 15 .09.2023
Gvl
