M. Venkata Narsaiah vs M. Pedda Narsimhulu
2022 Latest Caselaw 6170 Tel

           HON'BLE Smt. JUSTICE P.SREE SUDHA

                 APPEAL SUIT No.248 of 2007

                         JUDGMENT

1. This appeal is directed against the judgment and decree

dated 03.11.2006 passed in O.S.No.52 of 2001 on the file of the

learned IV Additional District and Sessions Judge, Fast Track

Court, Ranga Reddy District, wherein and whereby the suit filed

by the plaintiffs is dismissed.

2. Sons of Mr.Babaiah filed suit for declaration of title and

for perpetual injunction against the brother's children of Mr.

Babaiah. The case of the plaintiffs in brief is that M.Babaiah-

father of plaintiff Nos.1 to 4 was the pattadar and possessor of

the lands bearing Sy.Nos.5, 247, 250, 251, 253 and 254

admeasuring Ac.1.22 guntas, Ac.2.09 guntas, Ac.1.23 guntas,

Ac.0.06 guntas Ac.1.37 guntas and Ac.9.05 guntas respectively,

total admeasuring Ac.16.19 guntas, situated at Yapral Village,

Malkajgiri Mandal, Alwal Municipality, Ranga Reddy District.

The said M.Babaiah died intestate on 21.10.1982 leaving the

plaintiffs as his legal heirs. The said Babaiah during his life time

acquired the suit lands with his own funds and thus they are

the self acquired properties. The name of Babaiah was recorded

as pattadar and possessor since 1954-55 onwards in the

revenue records. After the death of Babaiah, the plaintiffs

became owners and possessors. They submitted an application

to the concerned Mandal Revenue Officer for mutation of their

names on 14.02.1994 in writing and orally requested on

03.09.1998, but the Mandal Revenue Officer without following

the rules and the procedure and in collusion with the

defendants issued ROR proceedings under ROR/Yapral/21/899

dated 20.06.1995 without any notice to the plaintiffs prior to

the passing of the proceedings. Aggrieved by the said

proceedings the plaintiffs preferred an Appeal before the

Revenue Divisional Officer, Chevella Division. By proceedings

No.C/1086/1996 dated 06.09.1999 the Revenue Divisional

Officer allowed the appeal and set aside the orders of the

Mandal Revenue Officer dated 20.06.1995 and directed them to

approach the competent civil Court. Aggrieved by the said order

the defendants preferred Revision Petition in D5/6986/1999

before the Joint Collector, Ranga Reddy District, and he

remanded the matter for de nova enquiry. As per Section 8(2)

the plaintiffs have got right to institute a suit against the

defendants who denied their title and an entry in record of

rights shall be amended in accordance with any such

declaration. As such the plaintiffs filed suit for declaration of

title, but the defendants in collusion with patwari and revenue

officials filed an application for mutation of suit schedule

property in their names claiming equal shares along with the

plaintiffs as per the family settlement deed dated 02.05.1975.

3. The defendants in their counter in the appeal stated that

M.Babaiah was not the exclusive owner of the suit lands. As

M.Babaiah was an elder member of the family, his name was

recorded in the revenue records and the suit lands are ancestral

properties but not self acquired properties of Babaiah and they

were acquired by the grandfather of the plaintiffs and Defendant

Nos.1, 2, 4 and late Anjaneyulu, the husband of D.3 and father

of Defendant Nos.4 and 5 and M.Narasimhulu father of

defendant No.7 and after the death of M.Narasimhulu the name

of Babaiah was recorded as pattadar on behalf of his brothers.

It was also pleaded that prior to the family settlement between

the plaintiffs and the defendants, the suit schedule lands were

divided into five shares and were allotted each one including the

plaintiffs during the year 1960 and since then each family is in

possession and enjoyment of their respective shares. But in the

year 1975, Ac.20.00 guntas were acquired from the possession

of all the share holders by the Government for purpose of

defence quarters and as such the family settlement was written

in the year 1975 and in pursuance of the same compensation

was awarded for acquiring the land was to be distributed

equally in five shares and accordingly the amount was

apportioned and the Land Acquisition Officer was also passed

orders in the award. Aggrieved by the said award, the plaintiffs

and the defendants referred the matter to the civil Court for

enhancement of compensation and it is still pending. The

plaintiffs stated that the alleged settlement deed dated

02.05.1975 is not a genuine document. On 27.03.2001 and

21.05.2001 the defendants attempted to dispossess the

plaintiffs and also threatened to bring some more persons and

hence the plaintiffs filed the suit.

4. In the written statement filed by the defendants, they

denied the ownership and possession of late Babaiah and also

the acquisition of the properties by the said Babaiah with his

own funds and submitted that they are not the self acquired

properties. The defendants further stated that pending the

proceedings before the Mandal Revenue Officer, the plaintiffs

filed speculative suit to harass the defendants and that the

defendants prevented the interference of the plaintiffs in the suit

schedule property on 27.03.2001 and 21.05.2001. The

defendants would further submit that the suit schedule

properties originally belongs to Mandala Narasimhulu who died

in the year 1950 and he was survived by five sons. The details

are shown as follows:

MANDALA NARSIMULU Died in 1950

M.Babaiah Chinna M.C.Pentaiah Gandaiah M.Rana-

     died in 1992     Venkaiah      died in 1959   died in 1980   lingam
                    died in 1994
     V.Narsimha     M.Anjaneyulu    P.Narasimulu   Muralidhar
       Pratap          Krishna        Sudhakar
       Lingam

       Chinna
      Narsimha
       Srinivas     Swaroopa Rani
     Parvathamma       Swapna
                        Sagar

5. It was further stated that after the death of Mandala

Narasimhulu the lands were jointly cultivated by Babaiah and

his brothers and as he was eldest son he acted as Kartha of the

joint family. In the year 1960 the oral partition was effected,

which was reduced in the form of memo of past settlement in

the presence of mediators and also attested by the then

Sarpanch of the Village Yapral. Sy.No.16 alone was not

partitioned as tenant was in possession and they are all in joint

possession of the suit schedule properties and their names were

reflected in khasra pahani. In the year 1970 the Government

acquired the land for defence purpose including part of suit

schedule lands. As the lands were in the name of Mandala

Babaiah to pay compensation as per the shares, a draft for

clarification was drawn in the presence witnesses by the first

plaintiff with his own handwriting admitting and acknowledging

the past oral partition. In the land acquisition proceedings

Mandala Babaiah stated that the suit schedule properties are

joint family properties and they are partitioned by metes and

bounds and requested for apportionment of compensation as

per their shares and accordingly the Land Acquisition Officer

passed an award and it was not challenged and rythu pass

books were also issued to all the share holders and the

defendants are in possession of their respective shares. The

plaintiffs wrongly mentioned the boundaries of the suit lands

and the details of the shares of the plaintiffs and the defendants

were mentioned in detail. As the plaintiffs suppressed the facts,

they are not entitled for declaration and injunction and it was

also stated that in the year 1980 one Jagannadha Rao agreed to

purchase Ac.4.00 guntas of land in Sy.No.254 of Yapral Village

and a General Power of Attorney was executed in his favour but

it was cancelled by them.

6. The case of the defendants is that they filed an

application before the Mandal Revenue Officer for mutation of

their names in the revenue records, in which a notice was

issued, Grama Sabha was held and plaintiffs were present but

not objected, but started blackmailing the defendants

demanding money on the ground that they will help for

mutation. When the defendants refused to pay the amount, the

plaintiffs filed an application before the Revenue Divisional

Officer, East Division. The plaintiffs have sold away most of the

properties allotted to them and they are creating hurdles for

enjoyment of the properties allotted to the defendants and hence

requested the Court to dismiss the suit.

7. On behalf of the plaintiffs, the first plaintiff was examined

as P.W.1 and one K.Sudershan was examined as P.W.2. Exs.A1

to A5 were marked. The sixth defendant was examined as D.W.1

and Exs.B1 to B12 were marked on behalf of the defendants.

Though the affidavit of D.W.1 was filed on 18.04.2006 in lieu of

chief-examination, documents were marked on 25.04.2006 and

it was represented that there is likelihood of compromise the

subject matter of the suit in question and on that ground

several adjournments were granted. On 29.08.2006 a

conditional order was passed and the evidence of defendants

was closed and the matter is posted for arguments on

12.09.2006. As no one appeared on that day the case is

reserved for judgment. The trail Court held that the burden lies

on the defendants to prove Issue Nos.1 and 2. But D.W.1 failed

to appear and he was not subjected to cross examination and as

such his evidence and the documents were not proved and

hence it was held that the said issues are not proved. In so far

as Issue Nos.3 and 4 are concerned, the burden lies on the

plaintiffs. During the cross-examination of P.W.1, Exs.B1 to B3

were marked by confronting to the witness. In the said

documents, the name Mandala Babaiah was mentioned as

pattadar and column No.13 it was mentioned as Mandala

Babaih Modalaguvaru and in the pahani for the year 1958-59 in

column No.11 and 16 it was mentioned as Mandala Babaiah

and vagairalu and under Ex.B2 pahani patrikas in column

No.11 it was mentioned as Mandala Babaiah and thammulu. In

Ex.B2 the name of Mandala Babaiah was mentioned as pattadar

and in cultivation column the names of Venkaiah, Rajalingam,

Pochaiah and Gandaiah were recorded as cultivators. Ex.B3 is

the certified copy of claim petition filed before the Land

Acquisition Officer and it is filed in respect of acquisition of land

in an extent of Ac.10.19 guntas in Sy.No.245 and Ac.9.16

guntas in Sy.No.247 in which Mandala Babaiah claimed 1/5th

share in the lands. In the cross-examination of P.W.1 when it

was suggested that the defendants are the brothers of Babaiah,

he denied the same but admitted regarding receiving of

compensation by all the brothers. P.W.1 also admitted that in

the year 1995 the Mandal Revenue Officer, Malkajgiri, issued

pattadar pass books to the defendants to the extent of their

shares and he further stated that he do not know how his father

acquired the properties. The plaintiffs filed copy of Chowfasla

and phanies. In view of admissions made by P.W.1 in his cross-

examination it was held that the evidence proves the

relationship between the plaintiffs and the defendants as

co-shareres. The plaintiffs failed to examine the person who

made the entries in the revenue records. P.W.2 simply stated

that the suit schedule properties are self acquired properties of

the plaintiffs' father and as such they are in possession of the

same. As the evidence of P.Ws.1 and 2 is not supported by the

documentary evidence, the trial Court observed that the

plaintiffs cannot depend upon the weaknesses of the defendants

and they failed to prove their case and accordingly dismissed

the same.

8. Aggrieved by the said judgment, this appeal is preferred

by the plaintiffs. The learned counsel for the appellants-

plaintiffs would mainly contend that though D.W.1 did not turn

up for cross-examination, the oral evidence of the plaintiffs was

unrebutted, the trail Court erred in appreciating the same.

Learned counsel would further assert that there is no evidence

before the trail Court to show whether the lands purchased by

Babaiah were from any ancestral property or out of the funds

provided by the joint family and that the trial Court considered

Exs.B1 to B3 though they have no bearing on the claim of the

appellants. Mere mentioning of the names of the brothers of late

Babaiah as cultivators will not give them any right except

tenancy right. Learned counsel would also assert that even in

the absence of contrary evidence by the defendants, the trial

Court erred in stating that the burden of the plaintiffs was not

discharged. Learned counsel would also argue that mere entries

in the revenue records, without any basis, do not confer any

right or entitlement to the parties. The trial Court erred in

considering the fact that the evidence of P.Ws.1 and 2 is not

supported by documentary evidence and also failed to consider

Exs.A4 and A5. Learned counsel would also assert that Exs.B4

to B12 were marked and not subjected to cross-examination

and as the evidence of D.W.1 was eschewed, the evidence of

P.Ws.1 and 2 was not appreciated in proper perspective and

therefore requested the Court to set aside the judgment of the

trial Court.

9. Learned counsel for the appellants would rely upon the

case law reported in UTTARADI SRIVAISHNAVA MUTT V/s.

THE COLLECTOR1 in which it was held that "where a party to

the suit does not appear into the witness box and states his own

case on oath and does not offer himself to be cross examined by

the other side, a presumption would arise that the case set up

by him is not correct." Learned counsel for the appellants-

plaintiffs would also argue that as D.W.1 has not entered into

the witness box and not presented himself for cross-

examination, an adverse presumption has to be drawn against

him on the basis of the principle contained in Section 114 of the

Evidence Act.

10. Perusal of the record shows that the appellants herein

filed written arguments before the Revenue Divisional Officer in

which they stated that the respondents kept quiet for thirty five

years without claiming any rights. As per revenue records from

MANU/AP/0694/2022

1954-55 onwards till 1994-95 the name of Babaiah was

recorded as pattadar and possessor and after his death the

names of the appellants were recorded and under the guise of

ROR orders, the Mandal Revenue Officer issued pass books and

they are liable to be cancelled. The appellants also contended

that the recording authority or the Mandal Revenue Officer has

no power for dividing the entire land and allowing the shares

except civil Court. The appellants stated that as per the khasra

pahani 1954-55 the name of Babaiah was recorded as pattadar

and it clearly shows that the lands are self acquired properties

of Babaiah and thus respondents have no right. From 1954-55

till 1994-95 the name of the father of the respondents or the

respondents were not recorded as pattadars and as such they

have no right in the said lands. The appellants herein filed an

application before the Mandal Revenue Officer for grant of

succession after the death of their father but the respondents

have not filed any succession proceedings. Even without any

succession proceedings, ROR authority came to the conclusion

that the appellants and respondents are only parties and the

said conclusions are void and illegal as per the Succession Act,

1956, if at all it is an ancestral property, all the co sharers

including the daughters of late Babaiah were also entitled to the

shares and it is to be decided by the civil Court. It was also held

that though respondents stated that there was a family

settlement on 02.05.1975, the said document is not filed.

Moreover, it requires stamp duty and registration otherwise it is

inadmissible in evidence and cannot be relied upon. They

further stated that respondents have not filed any documents to

show that late Narasimhulu was the pattadar and possessor of

the land at any point of time and also disputed the sale of land

in Sy.No.16. They further stated that the family settlement

between Babaiah and his brothers is not valid as it was not

signed by the major sons of Babaiah. They further stated that

the Land Acquisition Officer has given Ac.6.15 guntas towards

compensation to Babaiah and to the others to an extent of

Ac.3.15 guntas.

11. Considering the above said arguments the Revenue

Divisional Officer, stated that the order of the recording

authority cannot stand to the legal scrutiny and is to be set

aside and the pattadar pass books issued are to be cancelled.

As the partition of immovable properties is in dispute, the

parties are advised to seek remedy available to them before the

competent civil Court.

12. Aggrieved by the said order the respondents in the suit

filed an appeal against the order of the Revenue Divisional

Officer before the Joint Collector in which they filed written

arguments along with certain documents. They mainly

contended that there was a family settlement dated 02.05.1975

and it was signed by Babaiah and his son Venkata Narsaiah.

They also stated that the Mandal Revenue Officer after verifying

physical possession and records in the Grama Sabha held in the

Village with the knowledge of the respondents passed the

orders, but they kept quiet till 1999 and filed appeal before the

Revenue Divisional Officer. The Revenue Divisional Officer

instead of remanding the matter for proper scrutiny instructed

them to approach the civil Court. It seems that they also filed

implead applications, but they were dismissed.

13. The Joint Collector observed that as per the revenue

records i.e. setwar and wasoolbqui for the year 1953 regarding

the lands of the appellants in the said survey numbers, patta

was in the name of Mandala Babaiah Vagairalu and even in the

Khasra Pahani 1954-1955 and the pahani for the year 1958-59,

1962-63 and 1969-70 it was recorded as Mandala Babaiah

Vagairalu/Mandala Babaiah Modalaguvaru. In other pahanies

for the years 1970-71, 1974-75, 1978-79, 1992-93 and 1994-95

the name of Mandala Babaiah was recorded as pattadar and the

name of the respondents was shown as occupants. It clearly

shows that the brothers of Babaiah are also coparceners and

were in possession and enjoyment of the said lands. As per the

partition deed executed on 02.05.1975 there was an amicable

settlement between Mandal Babaiah and his brothers and they

have partitioned their properties about fifteen years back among

five brothers and they were in possession and enjoyment of the

lands. Ac.20.00 guntas was acquired by the Government and an

Award was passed on 29.07.1981. As the Mandala Babaiah got

Jeshta Bhagam, the compensation was awarded for an extent of

Ac.6.15 guntas in his favour and Ac.3.15 guntas in favour of

others and apart from that they also mentioned regarding the

subsequent sales. Basing on the arguments of both sides, the

Joint Collector observed that the Mandal Revenue Officer has

not issued notice to the respondents and when there were more

claims for similar property, the Mandal Revenue Officer should

have given an opportunity to the sons of deceased pattadars

and their statement was also not recorded before allowing the

shares of the revision petitioners. The copy of the alleged

partition deed executed in the year 1975 is available in the file

and that the Revenue Divisional Officer failed to record the

statement of the shareholders and then he should have passed

orders granting succession-cum-partition if there was no

dispute. As per the partition deed all the shareholders are not

having shares in all the lands and they have to demarcate the

lands to the extent of their shares according to their possession

and as such the matter was remanded to the Mandal Revenue

Officer with a direction to follow the procedure and decide the

matter as per their physical possession by metes and bounds as

all the parties are the coparceners of the joint family property

after thorough enquiry by not only giving notices but also

hearing them personally in an order dated 05.03.2001.

14. The appellants herein are sons of plaintiff. They stated

that their father alone was pattadar of the suit schedule

property and the lands are his self acquired properties. As he

died intestate, being his legal representatives they are entitled

for the entire property. Whereas the respondents stated that the

properties are ancestral properties of late Mandala Narsimhulu

and Mandala Babaiah was his eldest son. Mandala Babaiah

along with other brothers entered into a partition deed way back

in the year 1975 and divided the lands into five equal shares as

Babaiah was kartha of the family. Even when the land of

Ac.20.00 guntas was acquired by the Government, he got

Jeshta Bhagam for an extent of Ac.6-15 guntas and other

brothers got Ac.3-15 guntas and in the pahani patrikas filed

before the authorities not only the name of Babaiah but also his

brothers' names were mentioned as possessors or cultivators of

the land.

15. Considering the arguments of both the parties, the Joint

Collector remanded the matter to the Mandal Revenue Officer

with a direction to give due opportunity to both sides,

demarcate the lands and thereafter allot the same to the

respective parties.

16. No doubt, the plaintiffs herein filed suit when the

mutation orders were affected by the Mandal Revenue Officer in

favour of the respondents herein apart from preferring an

appeal before the Revenue Divisional Officer, but it is for them

to establish their case as they filed suit for declaration of

property and injunction it is for the plaintiffs to establish their

case and they cannot simply rely upon the weaknesses of the

defendants. Therefore, the argument of the learned counsel for

the appellants that in spite of the fact that D.W.1 did not enter

into one witness box, the trial Court dismissed their suit

erroneously is not tenable. The trial Court rightly appreciated

the evidence of plaintiffs and held that they failed to prove their

case and accordingly dismissed the suit. There is no infirmity in

the judgment of the trial Court and it needs no interference.

17. In the result, the appeal is dismissed by confirming the

judgment of the trial Court. However, there shall be no order as

to costs.

18. Miscellaneous Petitions, if any, pending in this appeal

shall also stand dismissed in the light of this final order.

____________________ P.SREE SUDHA, J.

25th NOVEMBER, 2022.

PGS