Telangana High Court

Parvathaneni Jayakumar vs Miryala Seshamma on 21 September, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                SECOND APPEAL No.1090 of 2001
JUDGMENT :

The present Second Appeal is arising out of the judgment

and decree in A.S.No.15 of 1995 dated 26.06.2001 on the file of

Senior Civil Judge, Kothagudem.

2. For the sake of convenience, the parties shall be arrayed as

in the suit. Plaintiff is the appellant.

3. Initially, the plaintiff has filed a suit against the defendant

seeking declaration that she is the owner, Pattadar and possessor of

the suit schedule land admeasuring Ac.9-05 gts in Sy.No.25 of

Gundepudi Village, Julurpad Mandal and for declaration that

entries in Khasra pahanies and other pahanies from the year 1954

onwards alleging to be tampered and liable to be rectified and for

consequential relief of perpetual injunction restraining the

respondent/defendant from interfering with the peaceful possession

over the suit schedule land.

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4. It is the further case of the plaintiff she sold away the land to

an extent of Ac.2-33 gts to one Amruthlal through a registered sale

deed dated 14-08-1948. Later, she came to know that the name of

the defendant was entered falsely in the revenue records for the

entire land to an extent of Ac.11-38 gts instead of her name under

the guise of the sale of land to an extent of Ac.2-33 gts. As

defendant is trying to interfere with the peaceful possession and

enjoyment of the suit schedule property, the plaintiff is constrained

to file the suit and prayed to pass decree in his favour.

5. On the other hand, the defendant denied entire allegations of

the suit and contended that the suit is not maintainable as the

plaintiff was not in possession of the suit schedule property as on

the date of institution of the suit and further, on 30.08.1954, the

plaintiff sold the entire suit schedule land to one Amruthlal under a

agreement of sale and delivered physical possession and also at the

request of the plaintiff, the revenue authorities entered the name of

Amruthlal in Khasrapahanies. Therefore, now she cannot file a

suit for the relief claimed by her. Further the written statement

discloses that Court has no jurisdiction to grant reliefs for

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rectification of revenue records as there is special procedure under

A.P.Land Rights in Land and Pattadar Passbooks Act, 1971.

Further, the suit is barred by limitation as the plaintiff was not in

possession of the suit schedule land for 12 years prior to the filing

of the suit.

6. Basing on the pleadings, the trial Court has framed the

following issues:

1. Whether the plaintiff is entitled for declaration of his title over the suit schedule property and consequential relief of injunction?

2. Whether the agreement of sale dated 25.12.1967 is true and valid?

3. Whether this Court has got jurisdiction to decide that the entries in Khasra of Pahani are tampered and the entries in pahanies from the year, 1954 onwards are illegal?

4. To what relief?

7. On behalf of the plaintiff, PW.1 to 7 were examined and

Exs.A-1 to A-10 were got marked and on behalf of the defendant

DWs.1 to 8 were examined and Exs.B-1 to B-10 were got marked.

8. On considering the entire evidence on record, the trial Court

has dismissed the suit. Aggrieved by the same, the plaintiff has

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filed appeal in A.S.No.15 of 1995 before the Senior Civil Judge,

Kothagudem.

9. The first appellate Court, basing on the rival contentions of

the parties, has framed the following points for consideration :

1. Whether the suit for declaration that the entires in Khasra pahani and other pahanies from 1954 onwards are tampered and as such are illegal and liable to be rectified?

2. Whether the respondent/defendant and his alleged predecessor in title acquired any right and title to the suit schedule land?

3. Whether the appellant/plaintiff has been possession and enjoyment of the suit schedule land?

4. Whether the suit relief for declaration of title is barred by limitation?

5. Whether the appellant/plaintiff is entitled for declaration that the entires in Khasra Pahani and other pahanies from 1954 onwards are tampered and as such illegal and liable to be rectified?

6. To what relief?

10. On considering the entire oral and documentary evidence on

record, the first appellate Court has allowed the appeal by setting

aside the decree and judgment of the trial Court in O.S.No.78 of

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1992 dated 03.08.1995 and consequently, the suit was decreed

declaring the plaintiff as Pattadar, owner and title holder of the suit

schedule property, relief for perpetual injunction was granted and

also declared that the entries in Khasrapahanies and other pahanies

from 1954 onwards were tampered, and as such, the same are

illegal and they are liable to be rectified in favour of the

plaintiff/appellant.

11. Being aggrieved by the said order, the defendant has

preferred this Second Appeal with the following substantial

questions of law:-

a. Whether the lower appellate court acted perversely decreeing the appeal and reversing the well considered judgment of trial Court?

b. The respondent having admitted in plaint that the appellant had trespassed into suit land on 18.05.1992 and respondent not being thus in possession could maintain suit for declaration and injunction without asking for recovery of possession?

c. Whether the lower appellate court erred in holding that the suit is not barred by limitation as relief of declaration is sought 38 years after the entries are made in revenue records/pahanies (since 1954) and

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under Art.113 of Limitation Act, 1963 only 3 years time is granted for filing of suit?

d. Whether lower appellate court acted perversely in not holding that appellant was in possession since 1967 and respondent's suit is barred by limitation? e. Whether the lower appellate court acted perversely in declaring title of respondent even though her title stood extinguished in 1966 itself under S.27 of Limitation Act, 1963?

f. Whether the lower appellate court in holding that suit for declaration of recitification of entries in revenue records is maintainable in view of S.8(1) of A.P.rights in Land & Pattadar Pass Books Act, 1971 without making state government a party to the suit and without original of revenue records being summoned by respondent?

g. Whether the lower appellate Court erred in applying "presumption of possession following title" to hold respondent that in possession when as per pleading of respondent in plaint, appellate trespassed into suit property and dispossessed him on 18-05-92?

12. When the matter came up for hearing, it is urged by the

learned counsel for the appellant that the Civil Court has no

jurisdiction to try the subject matter as the subject land falls within

scheduled area. Admittedly, the trial Court has dismissed the suit

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and appellate Court has set aside the orders of the trial Court and

granted decree in favour of the plaintiff which is a reversing

judgment.

13. But in the Second Appeal, the question that arose is that

whether the Civil Court has jurisdiction to try the subject

matter which falls under the jurisdiction of

Scheduled Agency area. Admittedly, the suit schedule land to an

extent of Ac.11-38 gts is situated in Sy.No.25 of Gundepudi

Village, Julurpad Mandal, Khammam District, which is notified

under Scheduled Agency area.

14. Heard the learned counsel for the appellant and the learned

counsel for the respondent.

15. Learned counsel for the appellant contend that suit schedule

land falls under the scheduled area and the Civil Court has no

jurisdiction to try the matter and all the orders, judgments and

decrees which are pronounced by the Civil Court become null and

void in view of the notification. It is further contended by the

learned counsel for the appellant that for administrative

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convenience, notification has been issued basing on the

Presidential Order and the suit schedule property falls under

scheduled area.

16. On the other hand, learned counsel for the respondent

contend that writ petitions i.e., W.P.Nos.34827 of 2016 and

W.P.No.33558 of 2017 filed against the Presidential notification

for inclusion of subject properties in the scheduled area, are

pending for adjudication, whereas, learned counsel for the

appellant reported that on the same subject matter, W.P.No.1554 of

2016 and W.A.No.373 of 2020 were dismissed by the Single Judge

and Division Bench of this Court. It is contended by the counsel

for respondent that SLP has been preferred against the orders of

this Court and requested not to dispose of the appeal till the

disposal of SLP.

17. It is the specific contention of the counsel for the appellant

that as per the Presidential Notification, Gundepudi village comes

under the scheduled area, and thus, the orders of the Civil Court are

to be declared as null and void. It is further contended by the

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learned counsel for the appellant that the Presidential Notification

was issued on 07.12.1950 in which the village Gundepudi was

included and vide Notification dated 21.04.1950 issued by the

Government of Hyderabad under the provisions of the Hyderabad

Land Revenue Act (Act No.8 of 1317 Fasli). Moreover, as per the

Gazette Notification issued by the Governor of the State of Andhra

Pradesh as well as the provisions of the A.P. Civil Courts Act

clearly disclose that the said Act is not extended to the scheduled

areas of the State, and therefore, the Civil Courts have no

jurisdiction to entertain the suits relating to such properties.

17. It is the specific contention of the learned counsel for the

appellant that vide G.O.Ms.No.1573, dated 30.12.1972, the

following Notification was published in the Gazette

"in exercise of powers conferred under Sub-Section (3) of Section (1) of A.P.Civil Courts Act, 1972, the Governor of Andhra Pradesh hereby appoints the 1st day of November 1972, as the date on which all the provisions of the said Act shall come into force in the whole of the State of Andhra Pradesh except in the Scheduled Areas of the State."

As per the said G.O., the subject village was also covered under

Scheduled Area and Civil Courts have no jurisdiction to try or

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entertain the suits relating to the properties which fall under such

Scheduled Areas, and hence, the judgments and decrees passed by

the trial Court as well as the first appellate Court, are null and void

in the eye of law, and therefore, he prayed to set aside the

judgments and decrees of both the Courts below.

18. In order to support his contention, the learned counsel for the

appellant has relied on the judgment of Hon'ble Apex Court in

Nagarjuna Grameena Bank & others v. Medi Narayana &

others1, wherein, their Lordships have held at paras 4 and 9 as

under:

"4. In the midst of hearing these appeals, a peculiar problem has been brought to our notice by the learned counsel appearing for the parties that under Andhra Pradesh Civil Courts Act, 1972 (hereinafter for short 'Act 19 of 1972'), a notification has been issued by the Governor in exercise of powers under sub-Section (3) of Section (1) of the Act 19 of 1972 by which, the jurisdiction of the Civil Courts have come into force in the whole of State of Andhra Pradesh except in Scheduled Areas of the State."

It is contended by Mr. P.S. Narsimha, learned counsel appearing for the appellant(s) that even before coming into force of the Act, the Civil Courts had been established in the Scheduled Areas and they have been functioning since 1950. The appellant(s), decree-holders, obtained a decree from the Civil Court in the Scheduled

(2013) 11 SCC 362

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Areas, however, since the operation of Act No.19 of 1972 is excluded from the Scheduled Areas of the State, they are unable to execute the decree. The High Court, in its impugned judgment, held that as the Act itself is not applicable in the Scheduled Areas, the decree passed by the Civil Court is null and void and inexecutable. It has been brought to our notice that now many non-Scheduled people are residing in the Scheduled Areas of the State including owners of commercial and business houses.

That apart, many banks have been established including the appellant banks, who are non- Scheduled people and they are being deprived of resolution of the disputes through the Civil Courts. Even in those cases which have been decided by the Civil Courts, the decrees could not be executed because the Civil Courts Act is not applicable and the decree passed by the Civil Courts in Scheduled Areas has been declared null and void. These are the contentions over which we have given our serious consideration.

A dispute may arise between the people of Scheduled Areas and non-Scheduled Areas in which case, in our view, the people of non-Scheduled Areas cannot be subjected to the methodology and the procedure adopted while resolving the dispute between the people of Scheduled Areas.

In our view, therefore, a mechanism has to be evolved in a case where the dispute involved is between the people of Scheduled Areas and non-Scheduled areas. One way of resolving this problem is by either issuing a notification or by an amendment in the Act to the extent that the Civil Courts Act shall be extended to the Scheduled Areas of the State except where the dispute involved is between people Of Scheduled and non- Scheduled Areas. While saying this we also took note of the observation made by the High Court. The High Court, while allowing the petition, also took note the submission of the counsel for the appellant that it is necessary to confer the jurisdiction over the Scheduled Areas on the Civil Courts also. The High Court observed that it is for the State Government to take expeditious steps as early as

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possible to issue a notification extending the provisions of Civil Courts Act even with retrospective effect in the Scheduled Areas for the peace and good government and for the speedy disposal of the civil cases in the Scheduled Areas. Copy of the High Court order was also directed to be endorsed to Home Department, Government of Andhra Pradesh. It is unfortunate that no steps appears to have been taken pursuant to such observation.

In this view of the matter, we are now of the view that the matter requires serious consideration of the State Government at the earliest in terms of our suggestions as noted above. Mr. H.S. Gururaja Rao, learned senior counsel appearing for the State prays for three months' time for taking necessary steps in the matter and issuing appropriate notification in this regard.

List these matters after three months. Registry shall send a copy of this order to Registrar General of the Andhra Pradesh High Court who shall coordinate with the State Government for doing the needful."

Pursuant to the above order, the State Government started deliberating on the issues raised by this Court."

9. We have carefully considered the matter and we are satisfied that the judgments under challenge in this group of civil appeals do not require any interference."

19. The above judgment squarely applies to the facts and

circumstances of the present case. Without going into the merits of

the case, as the suit schedule properties come under Scheduled area

and further the Gazette Notification issued by the Governor of the

State of Andhra Pradesh as well as the Notification issued under

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A.P.Civil Courts Act clearly disclose that the said Act is not

extended to the Scheduled Areas of the State, it can be construed

that the Civil Courts have no jurisdiction to entertain the suits, and

as such, the judgment and decree of the trial Court i.e. the Principal

District Munsiff, Kothagudem in O.S.No.78 of 1992, dated

03.08.1995 and the judgment dated 26.06.2001 in A.S.No.15 of