Telangana High Court

Veera Macheneni Ranga Rao vs The State Of A.P. on 27 September, 2021

Bench: T.Amarnath Goud

                                 1

          HON'BLE SRI JUSTICE T. AMARNATH GOUD

                     CCCA No.301 OF 2004

JUDGMENT:

1 Challenge in this appeal is to the judgment and decree dated

14.6.2004 passed in O.S.No.85 of 1995 on the file of the Court of

the I Senior Civil Judge, City Civil Court, Hyderabad wherein and

whereby the learned Judge dismissed the suit filed by the

appellant herein.

2 For the sake of convenience, parties to this appeal will

hereinafter be referred to as they were arrayed before the trial

Court.

3 The plaintiffs instituted the suit O.S.No.85 of 1995 on the

file of the court below stating that one Sheik Ahmed was pattedar

and possessor of land an extent of Ac.7.00 in Sy.No.403/1/Paiki

situated in Shaikpet village, Golconda Mandal, Ranga Reddy

District. Out of the said extent, the said Sheik Ahmed executed an

agreement of sale dated 25.8.1964 in favour of one Veera

Machaneni Prasada Rao - the father of the first plaintiff, agreeing

to sell Ac.1-25 guntas of land for Rs.8,000/- and received an

earnest money of Rs.2,500/-and the property was also delivered

possession of the property to the father of the first plaintiff.

However, soon after that, the said Sheik Ahmed died. As his legal

representatives were not coming forward to execute a regular sale

deed, the said Prasadarao filed O.S.No.69 of 1967 on the file of the

I Additional Judge, CCC, Hyderabad, for specific performance and

other reliefs, which was decreed on 26.3.1976 on contest by the

defendants therein. Subsequently the Court had executed a sale

deed in favour of the plaintiffs 2 to 7 and others on 18.02.1985

and under panchanama the Court Bailiff put the plaintiffs in

possession of the property on 03.9.1986.

4 It is the further case of the plaintiffs that the first plaintiff

noticed a compound wall in the portion of the Plaint schedule

property being raised by PWD department without permission or

consent of the plaintiffs. The PWD department officials are

claiming that the property belong to the Government. Even

assuming that at one point of time, the property belongs to the

Government, still the plaintiffs and their predecessors in title had

perfected their title to the suit schedule property by adverse

possession and the defendants cannot claim any right over the suit

schedule property or question the title of the plaintiffs or their

predecessors in title to the property. Since the defendants raised a

compound wall in the suit schedule property, the plaintiffs

amended their claim and sought recovery of possession also.

5 The defendants filed written statement denying the various

averments of the plaint. The defendants denied the existence of

Sy.No.403/1/Paiki, as per the revenue records, the Plaint schedule

property forms part of Sy.No.403, which is classified as

Government land and that as on the alleged date of agreement

dated 25.8.1964, the property it is in possession and enjoyment of

the Government. The decree passed in O.S.No.69 of 1967 on the

file of the I Additional Judge, CCC, Hyderabad, is not binding on

the defendants as they were not parties to the said suit. The land

in question was surveyed by the Town Survey Department and the

same was numbered as T.S.No.4/1/1 in Block 'G' and Ward No.10

and its extent is 9 Hectares 43.55 meters, which is classified as

Government land and correlate to Sy.No.403 of Shaikpet village or

any village map. The receipts produced by the plaintiff are

fabricated documents. The Government decided to allow a portion

of the said T.S. Number situated at Road No.10 to the PWD

department for construction of quarters to IAS officers.

Accordingly possession of Government land in TS No.4/1/1 to an

extent of Ac.94.355 sq. meters has been handed over to PWD

department and they constructed compound wall.

6 By way of additional written statement, the defendants

further submitted that the very fact of seeking recovery of

possession after eight years of filing the suit shows that the

plaintiffs were never in possession of the property. The Revenue

Divisional Officer, Hyderabad filed LGC No.21 of 1988 against one

L.L.Sudhakar Reddy who was claiming possession over the

Government land in the un-recognized Plot Nos.11, 12 and 13 of

Defunct Jubilee Hills Municipality and that the suit schedule

property is part of un-recognized Plot No.11 thereof, which is the

subject matter of the said LGC. The said LGC was allowed and

said judgment was upheld by the Hon'ble High Court in

W.P.No.9846 of 1989.

7 Basing on the above pleadings, the trial Court framed the

following issues for trial:

1) Whether the plaintiffs are entitled to the suit schedule property from the defendants?

2) To what relief?

8 The trial Court also framed the following additional issues:

1) Whether the plaintiffs are entitled to restore the possession from the defendants?

2) Whether the plaintiffs have perfected their title to the suit property by adverse possession?

9 During the course of trial, on behalf of plaintiffs the first

plaintiff himself got examined as P.W.1 and got exhibited Exs.A.1

to A.26 and on behalf of the defendants, D.Ws.1 to 3 were

examined and Exs.B.1 to B.8 were marked.

10 Giving an elaborate discussion on Issue No.1, the trial Court

held that as the plaintiffs failed to prove their title and ownership

over the suit schedule property as their vendor himself has no

better title and accordingly held this issue against the plaintiffs.

11 On Additional Issue No.1 the trial Court held that since the

plaintiffs failed to establish their title to the suit schedule property,

they are not entitled to the relief of recovery of possession and

accordingly answered this issue also against the plaintiffs.

12 On Additional Issue No.2 which is with regard to the adverse

possession, the trial Court held this issue also against the

plaintiffs in view of short period of possession over the property

from 03.9.1986 i.e. the date on which the bailiff alleged to have

delivered possession of the property to the plaintiff till 30.01.1995

i.e. the date of filing of the suit. Accordingly, the trial Court

dismissed the suit.

13 As stated supra, aggrieved by the said decree and judgment,

the unsuccessful plaintiffs filed the present appeal.

14 Sri D. Prakash Reddy, the learned senior counsel appearing

for the plaintiffs submitted that the trial Court ought not to have

dismissed the suit after holdling that the defendants admitted the

entries in Khasara Pahani and Vasool Baki register and that the

trial Court ought to have drawn adverse inference for non-

production of revenue records and khasara pahani by the

defendants in whose possession the original documents are. He

further submitted that trial Court having held that there is

S.No.403/1/Paiki, ought not to have held that the plaintiffs have

not produced patta certificate of Shaik Ahmed in respect of the suit

property. He further submitted that in view of Exs.A.17 and 18,

the trial Court ought to have drawn presumption that the plaintiffs

have perfected their title to the property and ought to have decreed

the suit. He further submitted that in view of Exs.A.1 and A.2 the

trial Court ought to have held that the vendor of the plaintiffs was

in possession of and has clear title to the subject property.

15 The learned Government Pleader appearing for the

respondents submitted that the Special Court has categorically

found fault with the respondents therein on the ground that they

are land grabbers and decreed the LGC No.21 of 1988 in favour of

the applicant / Government. He further submitted that the land in

Sy.No.403/1/Paiki does not exist as per the revenue records and

there is a discrepancy in survey numbers more so the said extent

of Sy.No.403/1/Paiki falls in Road No.10 and Road No.12 of

Banjara Hills, Hyderabad on three different portions in three

different areas and thus the claim of the plaintiffs is unjust and

the appeal is liable to be dismissed.

16 In reply to the above argument of the learned Government

pleader, the learned senior counsel submitted that no amount of

evidence can be looked into upon a plea which was never put

forward and referred to the judgment of the Privy Council in

Siddik Mahomed Shah V. Mt. Saran1.

17 The contention of the plaintiffs is twofold; viz., firstly, by

virtue of the specific performance suit being decreed in their

favour, the plaintiffs are the absolute owners and they are in

peaceful possession and enjoyment of the property since they are

the bona fide purchase of the property. Secondly, or in alternative,

for the last 30 years, they have been in adverse possession and

enjoyment of the property till filing of the suit and thus they

perfected their title to the property.

18 On the other hand, the case of the Government is that the

subject land is Government property and thus they are making

constructions and it does not belong to the plaintiff. It is their

further case that Shaik Ahmed is a land grabber and several land

grabbing cases were against him and the Special Court under the

Land Grabbing Act in LGC No.45 of 1991 held against the

respondents therein that the Government as owner of the property.

19 With regard to the above contention of the Government, as

can be seen from the material papers placed on record, in LGC

No.45 of 1991 filed before the Special Court under the Andhra

Pradesh Land Grabbing (Prohibition) Act, Hyderabad, the son of

Shaik Ahmed by name Shaik Ismail was shown as 8th respondent.

1 AIR 1930 P.C. 57

It is to be seen further that as against the finding given by the

Special Court holding that the respondents therein are land

grabbers, batch of Writ Petitions were filed before the Hon'ble High

Court of erstwhile State of Andhra Pradesh viz., Writ Petition

Nos.22323, 22334, 23999 of 1996 and 28402 of 1998. A Division

Bench of the Hon'ble High Court allowed all the Writ Petitions,

setting aside the judgment of the Special Court, holding that the

findings of the Special Court on the validity of the applications filed

by the State under Section 8 of the Land Grabbing Act and the

correctness of the stand taken by the State is contrary to the law

and that the petitioners by giving both oral and documentary

evidence proved their possession through their predecessors-in-

title for a long period and that they also established the identity of

the property which the Special Court failed to notice. The Division

Bench further clearly stated that the purchasers are not land

grabbers. Thus, the ambiguity with regard to the existence of

Sy.No.403/1/Paiki is cleared.

20 Exs.A.1 and A.2 are the certified copies of pahani patrika for

the years 1959-60 and 1963-64. In Exs.A.1 and A.2 the name of

Shaik Ahmed was shown as pattadar and the entire extent was

Ac.7.00. The said Sheik Ahmed executed an agreement of sale

dated 25.8.1964 in favour of one Veera Machaneni Prasada Rao -

the father of the first plaintiff and that the father of the first

plaintiff was also put in possession of the property on the even

date. The Government repeatedly stated that the documents relied

on by the plaintiffs are fabricated and false. The said allegation of

the Government has been appreciated and considered by the trial

Court but miserably failed in pointing out as to what is the

fabrication and which document is fabricated is not explained.

Admittedly, the documents which are placed on record are

Government records and entries are there from the year 1959 and

the agreement of sale is of the year 1964 and the suit for specific

performance was of the year 1967 and the said suit was decreed in

1967. When all through the documents were in the custody of the

Government, the issue of fabrication does not arise. The said

fabrication of documents is not established and proved.

21 Further, since the judgment in the LGC was set aside by a

Division Bench of the Hon'ble High Court, it is not open for the

defendants / Government to rely on the observations made in the

order passed by the Special Court.

22 The plaintiffs were put in possession of the property under a

valid panchanama by the Court Bailiff through Court proceedings

in pursuance of the decree passed in a suit for specific

performance. In the said suit neither the court nor the defendants

therein have taken a plea with regard to the title of late Shaik

Ahmed.

23 With regard to the boundaries of the subject property, P.W.1

in his cross examination has categorically stated the boundaries of

the same. The schedule of property shown in Ex.A.6 registered sale

deed executed by the Court in O.S.No.69 of 1967 shows the land in

extent of Ac.1-25 guntas in Sy.No.403/1/Paiki situated in

Shaikpet village in Road No.10, Banjara Hills, Hyderabad, with

specific boundaries. In fact, the trial Court had accepted the

contention of the plaintiffs about the existence of the

Sy.No.403/1/Paiki. Therefore, the contention of the defendants on

this aspect is liable to be brushed aside. Ex.A.5 which is of the

year 1981 shows the name of the father of the first plaintiff.

Moreover, the argument that property cannot be in Road Nos.10,

12, Banjara Hills, Hyderabad cannot be accepted as the

description in revenue records is Shakikpet.

24 The trial Court relying on the judgment between in Soora

Begum V. State of Andhra Pradesh2 observed that Entries in

TSLR are not conclusive proof of title. Though the defendants have

neither filed village map of Shaikpet nor the record showing the

correlative survey numbers from the beginning till the assignment

of T.P.No.4/1/1 Block 'G' Ward '10' Shaikpet village. The

defendants failed to prove that the suit schedule property forms

part of Sy.No.403 of Shaikpet Village which is classified as

Government Poramboke land. In such a situation, the trial Court

ought to have drawn an inference that since it is the case of the

plaintiffs that they were put in possession of the property by late

Shaik Ahmed in the year 1964 itself, the existence of

Sy.No.403/1/Paiki is in existence.

25 On the point of evidentiary value of revenue records, the

learned senior counsel relied on the following judgments:

Shikhar Chand Jain V. Digamber Jain3, G.Satyanarayana V.

Government of Andhra Pradesh4, Commissioner of Survey &

2 2002 (1) AWR 131 (DB) AP 3 (1974) 1 SCC 675 4 2014 (4) ALD 358

Settlement V. G.Padmavathi5 Union of India V. Vasavi Co-operative

Housing Society Ltd.6, Kasturchand & Ors. V. Harbilash & Ors.7

and Joint Collector V. D.Narsing Rao8.

26 As per the ratio laid down in G.Satyanarayana case (4 supra)

while dealing with the Telangana Area Land Census Rules, 1954,

the erstwhile High Court of Andhra Pradesh held at para No.83 as

under:

83. These rules were made under Section 97 of the Tenancy Act. Under these Rules, land census, as defined by Rule 2(f) of the Rules, was taken up by the Government. The important record i.e., Khasra Pahani is a document prepared under these Rules. Rules 8 to 13 speak of provisional Khasra Pahani and Rule 14 speaks of fair copy of Khasra Pahani. The said record is an important record and entry as pattadar in the same would confer absolute title over the land occupied.

27 In D.Narsing Rao case (8 supra) the Hon'ble apex Court held

at para No.13 and 14 as under:

13. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs Regulation, 1358 fasli. 'Khasra Pahani' is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It was gazetted under Regulation 4 of the A.P. (Telangana Area) Record of Rights in Land Regulation 1358F. As per Regulation No.13 any entry in the said record of rights shall be presumed to be true until the contrary is proved. The said Regulation of 1358-F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on 15.8.1978. In the 2nd edition (1997) of "The Law Lexicon" by P. Ramanatha Aiyer (at page 1053) 'Khasra' is described as follows: "Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed."

14. Admittedly, the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 pertaining to Survey Nos.36 and 37 of Gopanpally village. The purchase of the said lands by the respondents from them under registered sale deeds are also not seriously disputed. The further fact is that they have been regularly paying land revenue continuously since the year 1954. The appellants herein issued the impugned notice dated 31.12.2004 under Section 166B of A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of entries in the

5 1999 (4) ALD 61 6 2002 (5) ALD 532 7 (2000) 7 SCC 611 8 (2015) 3 SCC 695

Khasra Pahani of the year 1953-54, by fixing the date of inquiry as 5.2.2005 and that notice is the subject matter of challenge here.

28 As could be seen from the record, from 1954 onwards the

name of the vendor of the plaintiffs is recorded. The name of the

predecessor - in - title has not been rebutted. Therefore, the trial

Court is in error in asking the plaintiffs to prove ownership of their

predecessor-in-title. As stated supra, in the earlier round of

litigation, i.e. O.S.No.69 of 1967 neither the court nor the

defendants therein have taken a plea with regard to the title of late

Shaik Ahmed. Therefore, presumption under Section 114 of the

Indian Evidence Act has to be drawn.

29 The learned counsel for the plaintiffs relied on the ratio laid

down in Union of India V. Ibrahim Uddin9 wherein the Hon'ble

apex Court held at para Nos.6, 12 and 25 as under:

6. The registered partition deed stood duly proved and it was the proof of the title of the plaintiff/respondent no.1. The plaintiff/respondent no.1 made an application for inspection of the record before the officers of the appellant/defendant no.1 but perusal of the record was not permitted. The appellant/defendant no.1 did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn against it in view of the provisions of Section 114 clause(g) of the Indian Evidence Act, 1872 (hereinafter called the Evidence Act). The Will, taken on record as an additional evidence at appellate stage stood proved and thus, contents thereof automatically stood proved.

12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126).

9 (2012) 8 SCC 148

25. In the instant case, admittedly, the plaintiff/respondent no.1 during the pendency of his suit had made an application before the authorities under the control of the appellant/defendant no.1 to make the inspection. However, he was not permitted to have any inspection. The plaintiff/respondent no.1 did not submit any interrogatory statement or an application for making inspection or for production of the document as provided under Order XI CPC. In such a fact-situation, in view of the law referred to hereinabove, it is not permissible for the first appellate Court or the High Court to draw any adverse inference against the appellant/defendant no.1.

30 In the instant case it is the specific evidence of D.W.1 that he

is unable to produce the relevant record before the Court. On the

other hand, the plaintiffs showing their title to the property filed

several applications before the Mandal Revenue Officer and

Revenue Divisional Officer under Order 11 Rule 16 CPC for calling

the records. But the competent authorities did not furnish even

certified copies of the relevant documents to the plaintiffs. It means

the defendants have intentionally withheld from filing the original

Khasra pahani and other revenue records to the Court.

31 More so, it is not the case of the defendants that the father of

the first plaintiff obtained the decree for specific performance by

playing fraud on the part of the Court. Right from the beginning,

the plea of the plaintiffs was that Shaik Ahmed, having received

earnest money from the father of the first plaintiff, put him in

possession of the property. The defendants have not rebutted the

same by letting cogent and convincing evidence.

32 In Chief Conservator of Forests V. Collector and Others10

the Hon'ble apex Court held that Section 110 of the Evidence Act

embodies the principle that possession of a property furnishes

prima facie proof of ownership of the possessor and casts burden of

10 (2003) 3 SCC 472

proof on the party who denies his ownership. The presumption

which is rebuttable, is attracted when the possession is prima facie

lawful and when the contesting party has no title.

33 Having regard to the facts and circumstances of the case and

the principle enunciated in the cases cited supra, this Court is of

the view that the trial Court erred in holding the Issue No.1 against

the plaintiffs. Therefore, this Court has no hesitation to hold that

the plaintiffs are owners of the suit schedule property having

obtained a valid decree from their vendors. Accordingly, the Issue

No.1 is answered in favour of the plaintiffs and against the

defendants.

34 On Issue No.1 this Court held that the plaintiffs have

perfected their title to the property having purchased the same

under registered sale deed by way of decree in a suit for specific

performance. The judgment and decree passed in the earlier suit

i.e. O.S.No.69 of 1967 was not challenged before the appellate

court. Hence the findings and observations whatever made in the

said judgment have become final. Of course, the plea of the

defendants is that the defendants in the said suit are land

grabbers and hence they cannot pass a better title. However, it is

to be seen that a Division Bench of the High Court dismissed the

findings of the LGC Court. Hence the father of the first plaintiff

has obtained a valid title. In that view of the matter, certainly, the

plaintiffs are entitled for recovery of possession. The Additional

Issue No.1 is answered accordingly.

35 On Additional Issue No.2 which is with regard to the adverse

possession, it is the case of the plaintiffs that by virtue of

agreement of sale entered into with Shaik Ahmed in the year 1964,

they are in possession of the suit property even prior to the bailiff

put them in possession of the same through court proceedings.

However, the trial Court took a view that the father of the first

plaintiff came into possession of the suit property on 06.8.1986 by

virtue of the sale deed executed by the trial Court in O.S.No.69 of

1967 and the present suit was filed in the year 1995 which is nine

years after they came into possession of the property and since the

period of limitation is 30 years, the plaintiffs failed to establish the

plea of adverse possession.

36 On this point, the learned counsel for the plaintiffs relied on

the ratio laid down in Ravinder Kaur Grewal V. Manjit Kaur11

wherein the Hon'ble apex Court held at para Nos.60 to 62 as

under:

60. The adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonym with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

61. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected

11 (2019) 8 SCC 729

right which cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.

62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.

37 Further, as per the evidence of D.W.1, the defendants started

constructing compound wall in the suit schedule property in the

year 1992. But he could not say the exact date of delivery of the

property to the R&B department, the G.O. number and extent of

area for construction of Government quarters. Of course, the

plaintiff has to succeed his case on his own merits but not on the

weaknesses of the defendants. In the instant case, the plaintiffs

perfected their title to the property by way of a decree in a suit for

specific performance, that too, executed through process of Court.

In the said suit the father of the plaintiff took the plea of

possession over the property in the year 1964. Since the said

decree and judgment have become final, a presumption can be