Andhra Pradesh High Court - Amravati
R.Sikendar Died vs Syed Bavafakruddin Basha, on 15 September, 2023
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+ SECOND APPEAL No.1257 of 2012
Between:
#1. MR Sikendar (died),
S/o. R Dasthagiri Saheb,
R/o H.No.2-422-6-1, P&T Colony,
Madanapalle,
Chittoor District and another
... Appellants
And
$ 1. Syed Bavafakruddin Basha,
S/o. Syed Ghouse Saheb, R/o.Kotagaddaveedhi
Mandanapalle Town,
Chittoor District and another
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.1257 of 2012
% 15.09.2023
Between:
#1. MR Sikendar (died),
S/o. R Dasthagiri Saheb,
R/o H.No.2-422-6-1, P&T Colony,
Madanapalle,
Chittoor District and another
... Appellants
And
$ 1. Syed Bavafakruddin Basha,
S/o. Syed Ghouse Saheb, R/o.Kotagaddaveedhi
Mandanapalle Town,
Chittoor District and another
Respondents
! Counsel for the Appellants : Sri V.Venu Gopal Rao
Sri E.Sambasiva Prathap
Counsel for Respondent: Sri Md. Saleem
<Gist :
>Head note :
?Cases referred :
1. Indiankanoon.org/doc/1353917
2. (1997) 2 Supreme Court cases 203
3
HON'BLE DR. JUSTICE K. MANMADHA RAO
SECOND APPEAL No.1257 of 2012
JUDGMENT:
The present Second Appeal is preferred by the
appellant aggrieved by the Decree and Judgment dated
18.02.2010 passed in A.S.No.14 of 2011 on the file of the
Court of VII Additional District Judge (Fast Track Court),
Madanapalle, in reversing the Judgment and decree in
O.S.No.295 of 2008 dated 18.02.2010 on the file of the
Court of the Senior Civil Judge, Madanapalle.
2. For convenience the parties are hereinafter referred
to as arrayed before the VII Additional District Judge (Fast
Track Court), Madanapalle, in A.S.No.14 of 2011 (for short
"the first appellate Court").
3. Originally, the suit in OS No.295 of 2008 was filed
by the plaintiff before the Senior Civil Judge, Madanapalle,
for grant of mandatory injunction and for delivery of
possession of the suit schedule property. It is contended by
respondent/plaintiff that his father Dasthagiri Sab along
with his two brothers Reddy Sahebpeer Saheb Reddy
Sulaiman Saheb filed a suit in O.S No.314 of 1943 on the
file of District Munsif Court, Madanapalle for declaration
and permanent injunction against Syed Yakub Saheb and
his brothers. The said suit was decreed in favour of the
father of the plaintiff. It is also held in the said judgment
that the suit schedule property is a burial ground belonging
to ancestors of the family of the plaintiff. The plaint 'A'
schedule property is the property covered by the decree in
O.S.No.314 of 1943. The plaint schedule property is
situated in Pedda Bazaar Street of Madanapalle Town.
Towards the north of the suit schedule property there is a
bazaar street. Till date the tombs of the ancestors of the
plaintiff are being maintained in the schedule property. The
plaintiff had employed a person by name Jaffer Hussain to
safeguard the tombs. The said Jaffer Hussain has been
doing coconut business abutting the plaint schedule with
the permission of the plaintiff. The said Jaffer Hussain
became old and he was unable to continue his coconut
business. He has handed over the said business to his
nephew viz Syed Bavalakruddin, Sayyed Mahaboob Basha
i.e., defendants herein. About 4 years ago, they put up two
wooden bunks in the plaint 'B' schedule property which is
part of the plaint 'A' schedule property facing two northern
side and doing coconut and other business claiming adverse
interest against him in respect of plaint 'B' schedule
property. It is further stated that, the 1st defendant secured
license from the Municipality in his name and the name of
Jaffar Hussain in respect of plaint 'B' schedule property
claiming title over it against his interest and his family
members and that the defendants being trespassers
encroached upon the plaint 'B' schedule property. Hence
the plaintiff preferred the suit.
4. The defendants have filed written statements
contending that the suit is not maintainable and liable to be
dismissed in limini and the averments made in the plaint are
incorrect. The suit schedule property is a Government
poromboke land. The said property was occupied by one
Sayyed Saheb, S/o. late Imam Saheb in the year 1950 and
he put the wooden bunks. He has been doing coconut,
turmeric, kumkum business etc. In the year 1965, he
passed away. Later his brother Jaffer Hussain, S/o. Imam
Saheb continued the business in the sad premises till 1972.
Because Jaffer Hussain has become old man he had handed
over the business to the defendants. Since 1972, the
defendants have been doing business in the said wooden
bunks. The plaintiff has nothing to do with the said
property. The plaintiff gave wrong picture to the Court with
false representation. It is further stated that the plaintiff has
no valid title and possession over the property. The
defendants acquired title over the property by adverse
possession because they have been doing business since
1972. It is also stated that the plaintiff was never in
possession of plaint 'B' schedule property. The defendants
made applications to the revenue authorities for issuance of
patta. But the said land is in Survey No. 178, Grama
Kantam and Peerla Chavidi, patta could not be given in the
name of the defendants. The defendants have established
their title not only against the plaintiff but against the
Government also by adverse possession. Hence, prayed to
dismiss the suit.
5. Basing on the pleadings of both parties, the trial
Court framed the following issues as under:-
1. Whether the plaintiff is the owner of the plaint
schedule property?
2. Whether the defendants have unlawfully occupied
the B schedule property?
3. Whether the plaintiff is entitled for declaration as
sought for?
4. Whether the plaintiff is entitled for recovery of B
schedule property?
5. To what relief?
6. During the course of trial, on behalf of the
plaintiff, P.Ws.1 to 3 were examined and marked Exs.A1 &
A2. On behalf of the defendant, D.Ws.1 and 2 were
examined and Exs.B1 & B2 were marked. Also Advocate
Commissioner who inspected the suit schedule property
submitted a report, is marked as Ex.C1.
7. Basing on the material available on record and
after going through the oral and documentary evidence, the
trial Court has decreed the suit in favour of the plaintiff.
Aggrieved against the same, the defendants preferred an
appeal vide A.S.No.14 of 2011 before the appellate Court.
8. After going through the evidence adduced by
both parties and on considering the submissions of both
counsels, the first appellate Court has framed the following
points for determination:
1. Whether the plaintiff is the absolute owner of the plaint
schedule property? If so, whether the plaintiff is
entitled for declaration and possession of the plaint 'B'
schedule property and the defendants are liable to
deliver vacant possession of the same to the plaintiff?
2. To what relief?
9. Basing on the facts and circumstances and also
considering the material available on record, the first
appellate Court allowed the appeal setting aside the trial
Court Judgment in O.S.No.295 of 2008. Challenging the
same, the present Second Appeal came to be filed.
10. This Court vide order, dated 19.10.2012, while
granting status quo, Admitted the appeal by considering
the clause (c ) of Ground No.14 of substantial question of
law, reads as under:
"Whether the judgment and decree passed in O.S.No.314
of 1943/Ex.A1 & A2, dated 14.11.1945 for grant of
declaration and permanent Injunction in respect of the
very same suit schedule property is binding upon the
respondents/defendants under law, when the said
decree is became final."
11. As seen from the proceeding sheet, as the sole
appellant died, the legal representative of the deceased sole
appellant is brought on record as 2nd appellant vide order
dated 28.10.2013.
12. Heard Sri V.Venu Gopal Rao, learned Senior
Counsel representing Sri E.Sambasiva Prathap, learned
counsel for the appellant and Sri Md.Saleem, learned
counsel for the respondents.
13. On hearing, learned Senior Counsel for the
appellant submitted that the lower appellate court set
aside the well considered judgment of the trial Court
without assigning any cogent reasons much less valid
reasons under law. The first appellate ought to have seen
that the subject property is a burial ground belonging to
the appellant/plaintiff family and the dead bodies of
ancestors of the appellant family were buried in the suit
schedule property and constructed tombs and the
appellant/plaintiff family members have been offering
prayers at the schedule property since time immemorial,
and the respondents/defendants were started coconut
business on northern side of suit schedule property and
subsequently encroached the B schedule property and
making temporary constructions at that stage the
appellant filed the suit O.S.No.295/2008 for grant of
mandatory injunction and for delivery of possession of the
suit schedule property and the said suit is maintainable
under law.
14. Learned Senior counsel mainly contended that
the first appellate court ought to have seen that in respect
of the very same suit schedule property in O.S No.295 of
2008 the father of appellant has filed suit in O.S No.314 of
1943 on the file of District Munsif, Madanapalle for
declaration and permanent injunction and the same was
decreed and it became final and the said judgment is
binding upon all the parties including respondents/
defendants. He further submits that the first appellate
Court ought to have seen that the respondents/defendants
admit that on the rear side of the wooden bunk their
graves, and the Commissioner also filed a detailed report
which was marked as Ex.C1 clearly speaks that the bunks
allegedly erected by the respondents have encroached
some piece of land of A schedule property on northern side
and they made wooden constructions in the suit schedule
property. And also ought to have seen that the appellant/
plaintiff proved and established the entire case by
producing necessary evidence and discharged his initial
burden under law and also as per the provisions of Indian
Evidence Act and the respondent did not file any iota of
evidence that he is having rights over the property but the
first appellate court erred in saying that the appellant is
not entitle the relief basing upon the weakness of the
respondent and the reasoning given by the lower appellate
court is contrary to law.
15. To support his contentions, learned Senior
Counsel for the appellant placed reliance on a decision of
Hon'ble Supreme Court reported in Anil Rishi vs.
Gurbaksh Singh1, wherein it was held that :
The initial burden of proof would be on the plaintiff in view
of Section 101 of the Evidence Act, which reads as under:-
"Sec. 101. Burden of proof. Whoever desires any Court to give
judgment as to any legal right or liability dependent on the
existence of facts which he asserts, must prove that those facts
exist.
When a person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person."
In terms of the said provision, the burden of proving the fact
rests on the party who substantially asserts the affirmative
issues and not the party who denies it. The said rule may not be
universal in its application and there may be exception thereto.
The learned trial Court and the High Court proceeded on the
basis that the defendant was in a dominating position and there
had been a fiduciary relationship between the parties. The
appellant in his written statement denied and disputed the said
averments made in the plaint.
Pleading is not evidence, far less proof. Issues are raised on the
basis of the pleadings. The defendant-appellant having not
admitted or acknowledged the fiduciary relationship between the
parties, indisputably, the relationship between the parties itself
Indiankanoon.org/doc/1353917
would be an issue. The suit will fail if both the parties do not
adduce any evidence, in view of Section 102 of the Evidence Act.
Thus, ordinarily, the burden of proof would be on the party who
asserts the affirmative of the issue and it rests, after evidence is
gone into, upon the party against whom, at the time the question
arises, judgment would be given, if no further evidence were to be
adduced by either side.
There is another aspect of the matter which should be borne in
mind. A distinction exists between a burden of proof and onus of
proof. The right to begin follows onus probandi. It assumes
importance in the early stage of a case. The question of onus of
proof has greater force, where the question is which party is to
begin. Burden of proof is used in three ways : (i) to indicate the
duty of bringing forward evidence in support of a proposition at
the beginning or later; (ii) to make that of establishing a
proposition as against all counter evidence; and (iii) an
indiscriminate use in which it may mean either or both of the
others. The elementary rule is Section 101 is inflexible. In terms
of Section 102 the initial onus is always on the plaintiff and if he
discharges that onus and makes out a case which entitles him to
a relief, the onus shifts to the defendant to prove those
circumstances, if any, which would disentitle the plaintiff to the
same.
In a suit for recovery of possession based on title it is for the
plaintiff to prove his title and satisfy the court that he, in law, is
entitled to dispossess the defendant from his possession over the
suit property and for the possession to be restored to him.
However, as held in A. Raghavamma v. A. Chenchamma there is
an essential distinction between burden of proof and onus of
proof: burden of proof lies upon a person who has to prove the
fact and which never shifts. Onus of proof shifts. Such a shifting
of onus is a continuous process in the evaluation of evidence. In
our opinion, in a suit for possession based on title once the
plaintiff has been able to create a high degree of probability so as
to shift the onus on the defendant it is for the defendant to
discharge his onus and in the absence thereof the burden of
proof lying on the plaintiff shall be held to have been discharged
so as to amount to proof of the plaintiff's title."
16. Learned Senior Counsel has placed another
reliance on a decision of Hon'ble Supreme Court reported
in Madhavkrishna and another versus Chandra Bhaga
and others2, wherein it was held that :
The doctrine of adverse possession would arise only when the
party has set up his own adverse title disclaiming the title of the
plaintiff and established that he remained exclusively in
possession to the knowledge of the appellant's title hostile to
their title and that the appellant had acquiesced to the same.
Since there is no plea that he had claimed any hostile title
against Mansaram, the owner of the property, the earlier decree
operates as res judicata. The present suit was filed within 12
years from date of the demise of Mansaram; hence, it was
obvious that no adverse possession has been perfected against
the appellant. Moreover, as against Mansaram, the predecessor
in title of the appellant, the earlier decree operated as
constructive res judicata. The present suit was filed within 12
years from the date of the demise of Mansaram; hence, it
was obvious that no adverse possession had been perfected
against the appellant. Moreover, as against Mansaram, the
predecessor in the title of the appellant, the earlier decree
operates as constructive res judicata of the principle of might and
ought. The High Court, obviously, was incorrect in its finding
that the respondents had perfected their title by adverse
possession.
17. Learned Senior counsel while relying upon the
above citations, submits that in terms of Section 102 the
initial onus is always on the plaintiff and if he discharges
that onus and makes out a case which entitles him to a
relief, the onus shifts to the defendants to prove those
circumstances, if any, which would disentitle the plaintiff
to the same. He further submits that the appellant and
their fore fathers have been using the suit schedule
property as burial ground and their rights were already
(1997) 2 Supreme Court cases 203
decided in earlier round of litigation in respect of the very
same property and competent civil court declaring that the
father of the plaintiff is absolute owner and possessor of
the suit schedule property. Therefore, learned counsel
contended that the first appellate Court discarded the
parameters in deciding the first appeal as laid down by the
Hon'ble Apex Court as well as this Court. Hence requests
to set aside the impugned judgment and pass appropriate
orders.
18. Per contra, learned counsel appearing for the
respondents submits that the plaintiff has no manner of
right or title over the plaint schedule property because it is
a gramakantam poramboke, and that the plaintiff is none
other than the son-in-law of Jaffar Hussain, S/o Syed
Saheb, who occupied in the year 1950. He further submits
that the plaintiff has no valid title and possession over the
said property. Further, the defendants/respondents have
approached the revenue authorities and made inquiries
regarding the properties situated in S.No.178, that it is a
grama kantam poramboke and also peerala chavidi being
used as burial ground and no patta was granted to
anybody. Hence, prayed to dismiss the appeal.
19. On a perusal of the entire material available on
record, this Court observed that the appellant/plaintiff is
not the absolute owner of the plaint 'A' schedule property,
and therefore, the plaintiff is not entitled for declaration
and possession of the plaint 'B' schedule property and the
defendants are not liable to deliver vacant possession of
the same to the appellant/plaintiff. It is relevant to
discuss about the examination of witnesses.
20. PW.1 in his examination stated that in the year
1943, the family members belonged to Syed Yakub Sab
and his brothers objected the utilization of the properties
as sacred place by his father and his brothers and
therefore this father and his brothers filed OS No.314 of
1943 on the file of District Munisif Court, Madanapalle and
the said suit was contested by Syed Yakub Sab and his
brothers. Except Ex.A.1 to Ex.A3, no other registered
document filed on his behalf to show that the property in
question originally belonged to his ancestors.
21. It is an admitted fact that the plaint 'B' schedule
property is in possession of the defendants. PW.1 stated
that the 1st defendant filed a suit in O.S No.498 of 2008 on
the file of I Additional Junior Civil Judge's Court,
Madanapalle for grant of permanent injunction in respect
of plaint 'B' schedule property with wrong measurements.
Since the suit in OS No.295 of 2008 is not clubbed with
the suit on hand, the merits of the present suit alone can
be decided and the plaintiff cannot be declared as absolute
owner of the property in question on the basis of Ex.A1 to
Ex.A3, because it is the specific plea taken by the 1st
defendant that the property in question is the Government
land and paramount owner of the said property is only the
Government. PW.1 admitted that neither the defendants
nor their forefathers were parties to the suit in OS No.314
of 1943, and that he did not possess any other record
pertaining to plaint schedule property except Ex.A1 to
Ex.A3.
22. PW.2 is the daughter of R.Dasthagiri Saheb
who died in the year 1963, that her marriage was
performed in the year 1957 and that the plaint schedule
property is burial ground where her grandfather, her
grandmother and other family members were buried. She
admitted that she does not have any recorded evidence to
prove that every year she has been visiting the plaint
schedule property and she has been offering prayers
therein. She also admitted that the decree in OS No.314 of
1943 is not against the defendants. PW.2 is the third
party to the suit. He stated that plaint schedule property
is burial ground and it belonged to the plaintiff.
23. DW.1 is the 1st defendant in the suit. He stated
that the plaint schedule property is situated in S No.178
and it is grama kantam poramboke and adjacent to it one
peerla chavidi was being used as burial ground. In his
cross examination he revealed that he is doing coconut
business since 192, and that his maternal uncle is Jaffar
Saheb and he has not executed any document in his
favour allowing him to do coconut business, that Jaffar
Hussain is alive, that he conducted coconut business for
sometime and later he reacted two bunks and encroached
into the land of graveyard, and that the Municipality has
not issued door numbers to the bunks.
24. It is the contention of the plaintiff that he is the
owner of the suit schedule property wherein the dead
bodies of his ancestors were buried and since decades
together his family members have been offering prayers int
eh suit schedule property. When the ancestors of the
defendants have questioned the rights of the plaintiff's
father viz Reddy Dasthagiri Sab, he along with his two
brothers had filed OS No.314 of 1943 on the file of District
Municif Court, Madanapalle for declaration and injunction.
The said suit was contested tooth and nail by the
ancestors of the defendants and others. Eventually the
suit was decreed observing that the plaintiff's father is the
owner of the suit site with the tombs therein and the
defendants therein were restrained from interfering with
the possession of the plaintiff.
25. As seen from the judgment of the trial Court, it
is observed that, a competent court of law has thoroughly
gone through the evidence adduced on behalf of the
plaintiff's father and the defendants ancestors and
categorically held that the father of the plaintiff is the
absolute owner of the plaint schedule property along with
the tombs. There is no record placed before the trial Court
as to whether the said judgment was challenged before the
appellate court. Further, in view of the judicial
pronouncement under Ex.A1 and Ex.A2 the plaintiff
became the owner of the suit schedule property. During
pendency of the said suit, an Advocate Commissioner was
appointed and filed his report and it clearly speaks that
there are tombs in the suit site and the said area has ben
covered by putting iron bars as a fence and as per his
opinion, they are nearly 50 years old.
26. It is the contention of the defendants that the
suit schedule property is Governmetn poramboke. Except
a bald contention the defendants could not produce any
authenticated document to show that the suit schedule
property was recorded in any revenue records as
Governmetn poramboke. The defendants further
contended that in view of their long occupation when they
demanded the Government and Municipality to issue patta
certificate, the same could not be issued contending that it
is property situate within the Grama kantam. This
admission made by the defendants is sufficient to say that
they are not owners of the suit schedule property. They
have taken the plea of adverse possession. When the
defendants contended that the suit schedule property is a
Governmetn porambok the adverse possession can be
sought against the Government but not against the
plaintiff. Contrary to the contention of the defendants in
the earlier suit also the plaintiffs have proved that it is the
private burial ground belonging to the plaintiff's family.
27. It is also observed that the defendants failed to
produce any documentary evidence to substantiate their
contention that they got the property from the real owner
by virtue of any particular document. When the
defendants are not the owners of that particular land how
they came into possession of that property is necessarily to
be explained by the defendants. There is no iota of
evidence supporting the contention of the defendants that
they are the owners and possessors of the said land. On
the other hand, DW.1 in his cross examination admitted
that the defendants got the bunk through their ancestors.
28. On a perusal of the above discussion, it is
observed that, the learned District Munisif in the judgment
in OS No.314/1943 dated 14.11.1945 considered E.A1 the
copy of decree in OS No.314/1943 on the file of District
Muncisif Court, Madanapalle and Ex.A2, the copy of
judgment in OS No.314/1993 and Ex.A3 a copy of the
commissioner's report filed before the lower courtin the
suit, and observed that the property in question was being
used as burial ground by the ancestors of the plaintiff and
there are 12 tombs in the site and it becomes a scared
place of worship to which all Muslims have got the right.
29. It is not sufficient to declare the title of the
plaintiff to the property in question, because the source of
title of plaintiff's vendor is not at all referred in the
judgment in OS No.314/1993. It is further observed that
the when the judgment and decree not binding and when
no registered document is referred in the judgment, it can
be said that the plaintiff cannot acquire title to the
property in question by virtue of the judgment and decree
passed in O.S No.314/1993 on the file of District Munsif
court, Madanapalle dated 14.11.1945 and the first
appellate Court is competent to examine the correctness of
the findings of the District Municif Court, Madanapalle in
the judgment in OS No.314 of 1943 dated 14.11.1945.
30. The observation of the lower court is that it is
the burden on the part of the defendants to establish as to
when they have established the bunk in the plaint 'B'
schedule property is also not justified because the question
of shifting such burden arises only when the plaintiff
succeeds in showing his title to the property in question.
Though the payment of electricity tariff on which the
defendants relied on, does not establish their title, they
disclose their business in the plaint 'B' schedule property.
Further, though the defendants did not put forward any
documentary evidence to show that the property in
question is belonging to the Governmetn and the
Government is the paramount owner of the property in
question, it cannot be said that the plaintiff succeeds in
the suit in showing their title to the property in question.
31. Therefore, the finding given by the first appellate
Court is proper and correct and warrants no interference
by this Court and hence I do not find any reason to
interfere with the well-considered judgment and decree of
the first appellate Court. Therefore, finding no merit in the
instant second appeal and devoid of merits, the same is
liable to be dismissed.
32. Accordingly, the Second Appeal is dismissed. No
order as to costs.
33. 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.1257 of 2012
Date : 15 .09.2023
Gvl
