Telangana High Court
Kampati Venkateswrlu And Another vs Maddineni Sravan Kumar And 4 Others on 27 December, 2023
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
SECOND APPEAL No.161 of 2014
JUDGMENT:
This Second Appeal is filed by the appellants, who are the defendants 1
and 2 in O.S.No.206 of 2007 aggrieved by the judgment and decree dated
31.01.2014 in A.S.No.106 of 2013 on the file of the Court of the I Additional
District Judge, Khammam confirming the judgment and decree dated
31.10.2013 in O.S.No.206 of 2007 on the file of the Court of the Senior Civil
Judge, Khammam.
2. The appellant No.1 died during the pendency of the appeal and the
appellants 3 to 5 were brought on record as legal representatives of the deceased
appellant No.1 vide order dated 23.08.2022 in S.A.M.P.No.2322 of 2016.
3. The respondent No.1 - plaintiff filed a suit for declaration and injunction,
for correction of entries in the revenue records and cancellation of registered
sale deed document No.2265 of 2007 dated 14.05.2007 executed by the
appellant No.1 - defendant No.1 in favour of appellant No.2 - defendant No.2.
4. The parties are hereinafter referred as arrayed in O.S.No.206 of 2007 for
the sake of convenience.
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5. The case of the plaintiff was that the suit schedule property i.e.Ac.2-
33gts. of land in Survey No.246/E of Tirumalayapalem Village and Mandal,
Khammam District was the ancestral property of Maddineni Family and the
plaintiff's grandfather succeeded to the property during partition. The pahani
copies for the years 1994 to 2003 and 2006-2007 issued by revenue authorities
would confirm the title of the grandfather of the plaintiff. The suit schedule
property was a dry land. The land was kept fallow for several years due to
severe drought conditions. One Kampati Anjaiah, the brother of defendant No.1
and R/o.Pindiprolu village, developed greedy eye over the suit schedule
property, since the land was situated near R&B road and insisted the
grandfather of the plaintiff to sell the same at a cheaper rate and when the
grandfather of the plaintiff refused to sell the same, he started creating troubles.
The grandfather of the plaintiff by name Maddineni Rangaiah executed a gift
deed in favor of plaintiff vide document No.4004 of 2006 dated 15.12.2006 and
registered the same in the Office of the Sub-Registrar, Kusumanchi. Since the
date of execution of the said gift deed, the plaintiff was in possession and
enjoyment of the same. The plaintiff had applied to the revenue authorities in
the month of December, 2006 for issuance of pattadar passbook and title deed in
his favour. After execution of the gift deed by Maddineni Rangaiah in favour of
the plaintiff, Kampati Anjaiah the brother of the defendant No.1 started
interfering with the possession and enjoyment of the plaintiff. As such, the
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plaintiff filed a suit before the Principal Junior Civil Judge, Khammam vide
O.S.No.1228 of 2006 against Kampati Anjaiah, seeking the relief of perpetual
injunction and obtained ad interim injunction order. Kampati Anjaiah after
entering appearance did not choose to file written statement and counter.
Finally, he was set ex-parte and the suit was decreed in favour of the plaintiff on
05.06.2007. During the pendency of the said suit, the plaintiff having noticed
that Kampati Anjaiah, the brother of the defendant No.1 was making hectic
efforts to manipulate the revenue records in collusion with defendant No.5, filed
an application vide I.A.No.587 of 2007 to summon the Mandal Revenue Officer
to produce the relevant records from the year 1990 up to date. The respondent
therein, Kampati Anjaiah without filing counter dragged the matter and finally
got manipulated the records and obtained pattadar passbook and title deed in
favour of his brother, the defendant No.1 herein. The defendant No.5 i.e. the
Mandal Revenue Officer (Tahsildar, Tirumalayapalem) without issuing notice
as contemplated under the Record of Rights (for short "ROR") Act and its Rules
to the affected parties including the plaintiff and his grandfather who were in
possession of the land and without considering and disposing of the application
filed by the plaintiff in December, 2006 for issuance of pattadar passbook and
title deed, issued pattadar passbook and title deed in favour of defendant No.1 in
the month of March, 2007 by making false entries in the records. The plaintiff
after suspecting the malafides of the defendant No.1, obtained certified copies
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of the relevant records and found that the 1st defendant in collusion with
defendant No.5 manipulated the records by making some wrong entries and got
filed an objection petition from Maddineni Family by one M.Ganapathi, as if he
had got objection to issue passbook in favour of defendant No.1 and the
defendant No.5 without issuing notice to the affected parties i.e. the plaintiff or
his grandfather, knowing fully well that he was the title holder of the property
and without conducting proper enquiry as to the possession of the land as
contemplated under the ROR Act and Rules, passed a cryptic order unilaterally
concluding that defendant No.1 was the rightful owner and requested defendant
No.4 to accord permission to issue passbook and title deed vide letter
R.C.No.ROR/62/2005 dated 26.02.2007. Immediately, on the next date i.e. on
27.02.2007, the defendant No.4 without going through and verifying the records
accorded permission to issue passbook and title deed in favour of defendant
No.1. The plaintiff contended that Maddineni Ganapathi was no way concerned
and was having no right and interest in the suit schedule property.
5.1. The plaintiff further submitted that defendant No.1 immediately after
obtaining passbook and title deed fraudulently sold the property in favour of
defendant No.2 vide registered sale deed document No.2265 of 2007 dated
14.05.2007 of Sub-Registrar, Kusumanchi without any valid title. Under the
guise of the registered sale deed executed by defendant No.1, the defendant
No.2 in collusion with defendant No.1 was trying to interfere with the
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possession and enjoyment of the plaintiff over the suit schedule property and on
25.06.2007, the defendants 1 and 2 threatened the plaintiff and his father with
dire consequences and obstructed them from entering into the suit schedule
property. The plaintiff approached defendant No.5 for correction of entries in
the ROR by filing representation. But, the authorities instead of enquiring into
the matter, informed the plaintiff to prefer an appeal before higher authorities to
decide the matter. The plaintiff preferred appeal before the Revenue Divisional
Officer (for short "RDO"). The plaintiff contended that defendants 1 and 2
without any manner of right over the suit schedule property, taking undue
advantage of false entries being made in the revenue records were claiming
possession over the suit schedule property. As such, he was entitled to seek
declaratory relief under Section 34 of the Specific Relief Act, 1963 to declare
his right and title to the property and questioning the validity and legality of the
entries made in the revenue records, as such filed the suit seeking the reliefs i)
to declare him as an absolute owner in respect of the suit schedule property and
ii) consequentially to direct the defendants 1 and 2 and all other persons
claiming through them not to interfere with his peaceful possession and
enjoyment over the suit schedule property by way of perpetual injunction, iii) to
direct the defendants 3 to 5 for effecting correction of entries in the revenue
records by deleting the names of defendants 1 and 2 and to incorporate the name
of the plaintiff in respect of the suit schedule property and iv) for cancellation of
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the registered sale deed bearing document No.2265 of 2007 dated 14.05.2007
executed by defendant No.1 in favour of defendant No.2.
6. The defendant No.2 filed written statement and the same was adopted by
defendant No.1. The defendant No.2 contended that originally Maddineni
Pentaiah was the pattadar of land in Survey No.246 and he sold an extent of
Ac.1-20gts. of land through an unregistered sale deed to defendant No.1 in the
year 1979 and the remaining land of Ac.2-00gts. was sold to Sale Sundaraiah
and Sale Sundaraiah in turn sold it to defendant No.1 through an unregistered
sale deed in the year 1987. As Sale Sundaraiah died, the statement of his wife
Sale Santamma was recorded and both the unregistered sale deeds were
regularized under the ROR Act. Therefore, the defendant No.1 became the
pattadar of the entire land and after excluding the land covered by donka, the
title deed was issued to an extent of Ac.2-33gts. and the same was purchased by
defendant No.2 through registered sale deed document No.2265 of 2007 dated
14.05.2007. All the said extents were formed into a single compact block on
the spot within the boundaries mentioned in the sale deed executed by defendant
No.1 in favour of defendant No.2. The possession of defendant No.1 was
recorded in the pahani. In the pattadar column, the name of Maddineni Pentaiah
continued until 1993-94, as the defendant No.1 did not approach the authorities
under the ROR Act for regularization of sales made in his favour out of sheer
ignorance. The defendant No.1 was under the bonafide belief that since
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possession was given to him on the respective dates of sale, no further action
was necessary to be taken by him. Without notice to anyone, all of a sudden the
name of Maddineni Pentaiah was removed and the name of Maddineni
Rangaiah was written in column No.11 and after defendant No.1 approached the
authorities under ROR Act for regularization of the sales made in his favour by
the original owners, the revenue authorities regularized the same by collecting
the stamp duty after thorough enquiry, recording the statements and after
verifying the physical possession of defendant No.1, issued title deed and
pattadar passbook in favour of defendant No.1 in respect of Survey No.246/E
and defendant No.1 in turn sold the said property in favour of defendant No.2
through a registered sale deed bearing document No.2265 of 2007 dated
14.05.2007 and ever since the purchase made through the above said document,
the defendant No.2 was in possession and enjoyment of the same.
6.1. He further contended that after the land was sold by Maddineni Pentaiah
and Maddineni Srinivasa Rao, neither Pentaiah nor Srinivasa Rao nor any
member of the Maddineni Family entered into the land at any point of time and
therefore, the question of anyone cultivating the land would not arise. The
plaintiff filed the suit against K.Anjaiah, who was a stranger to the suit schedule
property and might have obtained an ex-parte decree, which was not binding on
defendant No.1. Maddineni Rangaiah, the grandfather of the plaintiff was no
way concerned with the suit schedule property. The authorities under the ROR
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Act regularized the sales made by Maddineni Pentaiah, father of Maddineni
Rangaiah and the sale made by Maddineni Srinivasa Rao, the brother of
Maddineni Rangaiah by collecting stamp duty and after verifying the
unregistered sale deeds as per the powers vested with them under ROR Act.
There was no necessity to issue any notice to a stranger to a property like
Maddineni Rangaiah. The order passed by defendant No.5 issuing title deed
and pattadar passbook in favour of defendant No.1 was a reasoned order. The
name of Maddineni Rangaiah was not mentioned as pattadar in the confirmed
ROR Act. On the other hand, Maddineni Rangiah had manipulated the records.
The order of defendant No.5 was legally valid and title to the property was
rightly conferred on defendant No.1 and the sale made by defendant No.1 in
favour of defendant No.2 was perfectly valid. The defendant No.2 was in
possession of the suit schedule property even before the suit was filed and
therefore the question of threatening the plaintiff and his father for entering into
the suit land would not arise. It was the plaintiff and his grandfather, who had
brought into existence illegal documents and filed a false suit for extracting
money from defendant No.2. The defendant No.1 was contesting the appeal
pending before the RDO, Khammam. The gift deed executed by Maddineni
Rangaiah in favour of the plaintiff was a void document. The possession of
defendant No.1 over the suit schedule property ever since he purchased the
same was also supported by electricity service connection given in the name of
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his wife to an electric pump set in the field of defendant No.1 since a decade
back. After purchasing the suit schedule property, the defendant No.2 erected
barbed wire fencing around the entire land and raised cotton crop which was
standing in the suit schedule property and contended that the plaintiff had no
cause of action to file the suit and that the suit was barred by limitation and
prayed to dismiss the suit.
7. The defendant No.5 filed written statement submitting that the defendant
No.1 submitted an application to defendant No.5 along with claim Form No.10
on 12.12.2005 with a request to issue pattadar passbook and title deed in his
favour for the land in Survey No.246/E admeasuring Ac.2-33gts. situated at
Tirumalayapalem Village and Mandal, Khammam District and as per the claim
form and statement, it was observed that defendant No.1 purchased an extent of
Ac.2-00gts. from Sale Santamma during the year 1987 and remaining land to an
extent of Ac.1-20gts. from Late Maddineni Pentaiah (pattadar / share holder)
during the year 1979 for a considerable value paid by him and cultivating the
same since long time and his name was recorded during the year 1980-81,
1981-82 and 1982-83 in the revenue records. But later on, his name was not
found. After receipt of the application and claim form No.10 from defendant
No.1, the defendant No.5 directed the Mandal Revenue Inspector to conduct
enquiry into the matter for issuance of pattadar passbook to the ryots.
Meanwhile, one Maddineni Ganapathi approached defendant No.5 with an
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objection that the said land was not sold to any one and it was under their
possession till date and the name of Maddineni Durgabayamma was figured in
the pahani. The defendant No.1 approached defendant No.4 to consider the
issue and to settle by issuing pattadar passbook and title deed and the said
petition was forwarded to the Office of defendant No.5 with a request to enquire
in detail and verify the revenue records and to obtain the statements of adjacent
pattadars and to submit a detailed report. As per the directions of defendant
No.5, the Mandal Revenue Inspector inspected the suit schedule property and
recorded the statements of the adjoining pattadars and the statements of ryots.
As per the statements of the adjoining pattadars and ryots, it was found that
Sri Dondeti Babu Rao had signed on the sada sale deed at the time of payment
of value of the land purchased from late Sale Sundaraiah dated 10.04.1987
admeasuring Ac.2-00gts. in Survey No.246 for a sale consideration of
Rs.11,000/- and the said Dondeti Babu Rao deposed that the Maddineni Family
was no way concerned for the land purchased from Sale Sundaraiah, since
already the land was sold by Maddineni Pentaiah. Further Sri Kalvakuntla
Veeranna of Tirumalayapalem Village deposed that he was having agricultural
land very nearer to Survey No.246. The defendant No.1 and his father Ramaiah
were cultivating the said lands for the past 15 years and he also deposed that he
was using the well water of Kampati Venkateshwarlu since 15 years and the
said well was digged in Survey No.246 by Kampati Family to raise chillies and
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other crops. He also stated that the possession of Maddineni Family over the
land would not arise. Smt. Sale Santamma of Yedulla Cheruvu Village had
deposed that her husband purchased the land on 21.03.1985 from Daravath
Desya, Dharma, Sons of Badhya, R/o. of Tirumalayapalem and thereafter her
husband sold the said land to defendant No.1 on 10.04.1987 and since then, the
defendant No.1 was in possession and enjoyment of the said land. As per the
statement of Sri Maddineni Kotaiah, he was cultivating his own land to the east
side of the land belonging to the respondent No.1 since 20 to 25 years back and
Maddineni Ganapathi and his family were no way concerned with the said land.
On thorough enquiry through Village Revenue Officer and Mandal Revenue
Inspector, Tirumalayapalem Village and basing on the documents produced by
defendant No.1, the defendant No.5 found that Maddineni Pentaiah and
Maddineni Durgabayamma expired long back. The name of Maddineni
Durgabayamma finds no place anywhere in the revenue records. Moreover, on
verification of the copies of documents of sada sale deeds and local enquiry
revealed that late Maddineni Pentaiah sold away his land during his life time
and subsequent change of land from one to another also took place through sada
sale deeds. As per the above findings, the defendant No.5 addressed a letter to
defendant No.4 vide proceedings in R.C.No.ROR/62/2005 dated 26.02.2007 to
accord permission to process the issuance of pattadar passbook and title deed as
per the Rules in vogue under ROR Act. After receipt of the said proceedings
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from defendant No.5, in turn, the defendant No.4 addressed a letter informing
the defendant No.5 to inform the facts of the enquiry to the complainant and to
take further course of action in the file as per record, enquiry and rules in vogue
under ROR Act. Later, the case had been referred to the Sub-Registrar,
Kusumanchi to furnish the necessary stamp duty and registration fee. The Sub-
Registrar, Kusumanchi furnished the said details. Subsequently, after
conducting due enquiry and after examination of the entire revenue records, the
defendant No.4 issued 13-B Namuna document vide C.No.62/ROR/2005 dated
15.03.2007, wherein it was clearly mentioned about the payment of stamp duty
and penalty. Further, the defendant No.5 also issued ROR title deed and
pattadar passbook in favour of defendant No.1 in respect of the suit schedule
property.
8. The defendant No.5 contended that as per their enquiry, the defendant
No.1 has been in possession and enjoyment of the suit schedule property. At
the time of issuing ROR title deeds and pattadar passbooks as per the statements
of the neighbouring ryots, they found that defendant No.1 had been in
possession over the suit schedule property since long time and purchased the
same through sada sale deeds. Therefore, the allegation of the plaintiff that he
was the owner and possessor of the suit schedule property through a gift deed
dated 15.12.2006 executed by Maddineni Rangaiah was false and baseless. The
defendant No.5 was not aware of the filing of the suit vide O.S.No.1228 of 2006
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against the brother of defendant No.1 and also not aware of the passing of
decree in favour of the plaintiff. As per physical verification of the said land,
the defendant No.1 was in possession of the land. The defendant No.5 was also
not aware of the alienation of the suit schedule property in favour of defendant
No.2 and prayed to dismiss the suit. The said written statement of defendant
No.5 was also adopted by defendants 3, 4 and 6.
9. Basing on the said pleadings, the following issues were settled for trial:
i) Whether the plaintiff is entitled for declaration as prayed for?
ii) Whether the plaintiff is entitled for consequential relief of permanent
injunction as prayed for?
iii) To what relief?
The following additional issues were also framed:
i) Whether the plaintiff is entitled to the relief of direction to the defendants
3 to 5 for effecting correction of entries in the revenue records by deleting the
names of defendants 1 and 2 by cancelling ROR passbook and title deeds issued
to defendant No.1 and to incorporate the name of the plaintiff in respect of the
suit schedule property?
ii) Whether the plaintiff is entitled to the relief of cancellation of registered
sale deed bearing document No.2285 of 2007 dated 14.05.2007 executed by
defendant No.1 in favour of defendant No.2?
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10. On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A1 to A29
were marked. On behalf of the defendants, DWs.1 to 9 were examined and
Exs.B1 to B32 were marked.
11. On considering the oral and documentary evidence on record, the learned
Senior Civil Judge, Khammam decreed the suit granting all the reliefs as prayed
for.
12. Aggrieved by the said judgment and decree dated 31.10.2013 the
defendants 1 and 2 preferred A.S.No.106 of 2013. The same was heard by the I
Additional District Judge, Khammam and vide judgment dated 31.01.2014
dismissed the appeal confirming the judgment and decree passed in O.S.No.206
of 2007 by the Senior Civil Judge, Khammam.
13. Aggrieved further, the defendants 1 and 2 preferred this Second Appeal.
The following substantial questions of law are formulated by this Court on
01.09.2014:
1) Whether declaring title of the respondent No.1 over the suit schedule
property on the ground that pahanis for the years 1994 to 2007 indicate the
name of his predecessor-in-title and grandfather, M.Rangaiah, as pattadar, is
contrary to the settled legal proposition that mere entries in the revenue records
do not confer title on any person?
2) Whether the 1st appellant has perfected title over the suit schedule property
by way of adverse possession?
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3) Whether framing an issue as to whether the 1st respondent is entitled to the
consequential relief of permanent injunction upon declaration of title, by the
trial court, is contrary to the settled legal proposition that the relief of permanent
injunction is not automatic and consequential upon the declaration of title and
that the possession of the plaintiff as on the date of filing of the suit is decisive
to grant the said relief of permanent injunction?
4) Whether the courts below committed substantial error in granting the relief of
permanent injunction in favour of the 1st respondent on the basis of the pahani
for the year 2006-07 (Ex.A3), which indicates the name of the predecessor-in-
title and grandfather of the 1st respondent, M.Rangaiah, as pattadar and
possessor of the suit schedule property, in as much as the said pahani was issued
by the Village Panchayat Officer, who is not the competent authority to issue
pahanis?
14. Heard Sri Syed Ghouse Basha, learned counsel for the appellants and the
learned Senior Counsel Sri Vedula Srinivas for respondent No.1, who is
representing Miss.Vedula Chitralekha, the counsel for respondent No.1 on
record and the Government Pleader for Appeals for respondents 2 to 5.
15. The learned counsel for the appellants contended that the case of the
respondent - plaintiff was that he acquired the property through a registered gift
deed executed by his grandfather Maddineni Rangaiah. The basis for the gift
deed was a pahani for the year 2006-2007 issued by the Panchayat Secretary,
Tirumalayapalem. The Joint Collector, Khammam had passed order in
Revision Petition No.18 of 2011, which was a revision against the order passed
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by the RDO, Khammam dated 12.07.2011. In the said order, the Joint Collector
held that the pahani for the year 2006-2007, which would form the basis for
creation of the gift deed bearing No.4004 of 2007, was without any record and
illegal. The said order became final, as the same was not challenged in any
Court. The order of the Joint collector was filed as additional evidence in
S.A.M.P.No.1438 of 2017. Maddineni Rangaiah was never shown to be the
possessor except shown as pattadar for the years 1994 - 1995 to 2004 - 2005.
PW.1 categorically admitted in his cross-examination that no document was
filed to show that there was any partition, which was the case of the plaintiff.
As per the plaint, Maddineni Rangaiah succeeded to the property during
partition. The mode of acquisition of property by Maddineni Rangaiah was not
stated by the plaintiff. No document was filed and no evidence was led to show
that Maddineni Rangaiah had got title to the property. Admittedly, Maddineni
Rangaiah was never shown to be in possession of the property as per Exs.A1 to
A28. It was not the case of the plaintiff that Maddineni Rangaiah had inherited
the property from his father Maddineni Pentaiah. As per the plaint, Maddineni
Rangaiah got the property directly from his grandfather Maddineni Chinna
Appaiah. The basis for the plaintiff to support his case was the revenue record
marked under Ex.A2, wherein Maddineni Rangaiah was shown as pattadar only
and not possessor from 1994 - 1995 to 2004 - 2005. The mode of acquisition
was not shown in Ex.A2. Ex.A2 could not convey title on M.Rangaiah for the
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simple reason that M.Chinna Appaiah had two sons M.Pentaiah and
M.Veerabadraiah, and M.Pentaiah had six children M.Rangaiah, M.Harinath,
M.Ganapathi, M.Srinivas, M.Venkateshwarlu and M.Haragopal. M.Rangaiah
had two sons M.Venkateshwarlu and M.Nageshwar Rao. The plaintiff was the
son of M.Venkateshwarlu. As such, by including the name of M.Rangaiah in
pattadar column illegally would not confer any title to M.Rangaiah in view of
the settled law that revenue entries would not create any title.
16. He further contended that the finding of the trial court was that the name
of M.Pentaiah was not found in the revenue records. But, in fact as per the
statements submitted as additional evidence in S.A.M.P.No.114 of 2006,
M.Pentaiah was shown to be the possessor till the year 1983-84 along with
others including the name of the father of the 1st defendant
Kampati Ramaiah. The name of the father of the 1st defendant was reflected in
the possessor column from the year 1980. Ex.A1 was based upon Ex.A3.
Ex.A3 was proved to be forged and illegal document as per the order of the
Joint Collector in Revision Petition No.18 of 2011. Ex.A2 was without any
basis and would not convey any title. As such, suit for declaration could not be
decreed on the basis of weakness of the case of the defendants. But the courts
below had appreciated the evidence in a perverse manner. Without considering
the case of the plaintiff, considered the case of the defendants. The trial court
granted the relief of injunction as a consequential relief on the basis of
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declaration granted to the plaintiff without considering the admissions made by
PW.1 and the documents filed by the appellants. PW.2 also admitted that it was
defendant No.1 who was cultivating the property as tenant. As per the contents
of the plaint, the suit schedule property was kept fallow.
17. He further contended that the first appellate court by perverse
appreciation of evidence had held that no appeal was filed against the order of
the RDO, which was against the record. Thus, the final court of fact had
committed a grave factual mistake. The first appellate court in ignorance of the
facts held that the defendants claimed the right through the predecessor of the
plaintiff and placed the burden upon the defendants and came to a wrong
conclusion without framing proper issues and proper appreciation as
contemplated under Order XLI Rule 31 of CPC.
18. He further contended that both the courts below failed to appreciate that
the appellants were paying electricity charges since more than two decades
exhibiting their possession and ignored the admissions made by PW.1 that the
defendants were in possession of suit schedule property and that he should file a
suit for recovery of possession. It was the case of no evidence, as the plaintiff
had not entered the witness box and the General Power of Attorney (for short
"GPA") holder, who gave evidence as PW.1 had not filed any GPA on behalf of
the plaintiff and no permission was obtained as per rules. Nowhere in the entire
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chief affidavit of PW.1, he stated that he had personal knowledge of all the
events. It was settled law that in a suit for declaration of title, the case has to be
decided on the basis of oral and documentary evidence adduced by the plaintiff
without looking into the case of the defendants. The plaintiff could not take
advantage of the weakness of the case of the defendants. Except Exs.A1 to A3
and the evidence of PWs.1 to 3, there was nothing on record to prove the case of
the plaintiff. The evidence of PWs.1 and 2 disproves the evidence of PW.3 and
relied upon the judgment of the Hon'ble Apex Court in Union of India and
Others v. Vasavi Cooperative Housing Society Limited and Others 1, on the
aspect that burden lies upon the plaintiff to establish his case irrespective of
whether defendants prove their case or not and that entries in the revenue
records would not confer any title.
19. The learned counsel for the appellants also relied upon the judgments of
the Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) by LRs. and
Others v. K.V.P.Shastri (Dead) by LRs. and Others 2, Ishwar Das Jain
(Dead) by LRs v. Sohan Lal (Dead) by LRs. 3 dated 29.11.1999, Abdul
Raheem v. The Karnataka Electricity Board and Others 4 and Leela Soni
and Others v. Rajesh Goyal and Others 5 on the aspect that substantial
(2014) 2 SCC 269
Civil Appeal No.6183 of 2001 dated 10.12.2013
(2000) 1 SCC 434
Civil Appeal No.5320 of 2007 dated 20.11.2007
Civil Appeal No.6116 of 2000 dated 03.09.2001
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questions of law would arise when the findings of the courts below were
contrary to the record and perverse.
20. He also relied upon the judgment of the Hon'ble Apex Court in
Yabdyarlaros Dajiba Shrawane (Dead) v. Magniolrasl Harakchand Shah
(Dead) 6 on the aspect that when the judgment of the final court of fact was
based on misinterpretation of documentary evidence or on consideration of
inadmissible evidence or ignoring material evidence, the High Court in Second
Appeal is entitled to interfere with the judgment. The finding of fact ignoring
the admissions or concessions was vitiated in law and can be interfered with by
the High Court in the Second Appeal.
21. He also relied upon the judgments of the Hon'ble Apex Court in Janki
Vasudeo Bhojwani & Another v. Indusind Bank Limited 7 and also relied
upon the judgment of the High Court of Telangana in N.Narasing Rao
v.Gomathy B.Kumar 8, on the aspect that a General Power of Attorney Holder
cannot be allowed to appear as a witness on behalf of the plaintiff in the
capacity of the plaintiff.
22. He also relied upon the judgment of the High Court of Andhra Pradesh at
Hyderabad in K.Mallikarjuna Vara Prasad v. K.Purnachander Rao (Dead)
Civil Appeal No.1798 of 1991 dated 02.08.2002
(2005) 2 SCC 217
Civil Revision Petition No.6642 of 2018 dated 19.11.2018
Dr.GRR, J
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and Others 9 in Second Appeal No.693 of 1994 on the aspect that the power of
attorney is not a substitute for a party and he could not speak about the facts
which were exclusively within the knowledge of the party concerned, who was
his principal.
23. He also relied upon the judgment of the Hon'ble Apex Court in
Mohinder Kaur v. Sant Paul Singh 10 on the aspect that where a party to the
suit does not appear in the witness box and states his own case on oath, a
presumption would arise that the case set up by him was not correct
24. He also relied upon the judgment of High Court of Kerala in Nalini and
Others v. Padmanabhan Krishnan and Others 11 on the aspect that the maxim
"possession follows title" is applicable in cases where it has been proved that
the person having the title was once in actual possession and the application of
the principle is based on the presumption of the continuance of that possession.
25. The learned counsel for the respondent - plaintiff on the other hand
contended that the appeal was filed against the concurrent judgments and
decrees of the courts below. Both the courts below had recorded categorical
findings that the entries in the revenue records were manipulated and were not
genuine and that the pattadar passbook and title deed relied by the appellants
(2006) 6 ALD 333
(2019) 9 SCC 358
AIR 1994 Kerala 14
Dr.GRR, J
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were obtained behind the back of the plaintiff, without notice to the plaintiff and
without any enquiry and without following the procedure established by law.
26. Having come to know of the illegally obtained pattadar passbook and title
deed by the appellants, the respondent - plaintiff filed an appeal before the
RDO and the said appeal was allowed. A revision petition was filed by the
appellants questioning the order of the RDO and the revision petition was
disposed observing that there was a serious title dispute between both the parties
and as the second appeal was pending, gave a direction to the parties in whose
favour the High Court decides the Second Appeal to approach the Tahsildar,
Tirumalayapalem for making necessary amendments in the entries made in the
revenue records, as such the appellants could not rely upon the entries made by
the Tahsildar or by the pattadar passbooks and title deeds issued to defendant
No.1. Basing on the pattadar passbook and title deed issued to defendant No.1,
defendant No.1 i.e. the appellant No.1 sold the property to the appellant No.2.
Only if the appellant No.1 (defendant No.1) was the owner of the property, he
would be entitled to sell the property to appellant No.2. The sadabainamas on
which the defendant No.1 was relying were created and concocted documents.
As the entire revenue records relied by the appellants - defendants got washed
away and the plaintiff established a superior title over the appellants -
defendants, the Second Appeal was liable to be dismissed.
Dr.GRR, J
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27. He further contended that the respondent - plaintiff based his claim on a
registered gift deed. The name of the grandfather of the plaintiff by name
M.Rangaiah was recorded as pattadar for more than ten years in the revenue
records, the suit schedule property was ancestral in nature. There were no sale
deeds in the hands of the family members. The contention of the plaintiff was
that partition took place between the sons of M.Pentaiah and the suit schedule
property came to the share of M.Rangaiah, the grandfather of the plaintiff.
M.Srinivasa Rao (S/o.M.Pentaiah & B/o.M.Rangaiah) was examined as DW.9.
He also admitted in his cross-examination about the family partition and each
member getting five acres of land. The appellants - defendants were bound by
the admissions made by their own witnesses. The plaintiff got examined his
grandfather who executed the gift deed in his favour as PW.2. Exs.B1 to B3
were immediately contradicted by PW.2. The sada bainamas were not even
unregistered sale deeds, but were only agreements of sale. No survey numbers
and boundaries were mentioned in the said documents. They could not be
regularized. In Ex.B12, the survey number was left blank. The Tahsildar
validated them without issuing notice to PW.2. The High Court may look into
evidence when both the courts wrongly determined the issues and relied upon
the judgments of the Hon'ble Apex Court in S.Subramanian v. S.Ramasamy
Dr.GRR, J
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and Others 12 and in K.N.Nagarajappa and Others v. H.Narasimha Reddy 13
on the scope of Second Appeal.
28. He further contended that PW.1 took leave of the Court before giving
evidence and filed I.A.No.1572 of 2011 to permit him to appear on behalf of the
plaintiff as his GPA holder and to act on behalf of the plaintiff. The said
petition was allowed on 16.11.2011. PW.1 being the father of the plaintiff had
personal knowledge of all the facts of the case and was entitled to depose and
relied upon the judgment of the Hon'ble Apex Court in Man Kaur (Dead) by
LRs. v. Hartar Singh Sangha 14.
29. He also relied upon the judgment of the Hon'ble Apex Court in Poona
Ram v. Moti Ram (Dead) by LRs. and Others 15 on the aspect that in the
absence of proof of better title, possession or prior peaceful settled possession
was itself evidence of title. Law presumes possession to go with the title unless
rebutted.
30. He also relied upon the judgment of the High Court of Karnataka in
Smt.Jayamma Venkatram and Others v. Smt.Ashraf Jahan Begum and
Others 16 on the aspect that whenever a person has been in possession of an
immovable property, especially ancestral in character, for quite a long time, and
AIR 2019 SC 3056
AIR 2021 SC 4259
(2010) 10 SCC 512
AIR 2019 SC 813
ILR 2021 Karnataka 3559
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revenue entries stand in the lineage of his family continuously without any
challenge to it, or if challenged, the same being overruled or rejected; and being
not in a position to produce any document conferring title other than revenue
records, there was no impediment to declare title based on possession which
was otherwise called possessory title.
31. He also relied upon the judgment of the High Court of Andhra Pradesh in
Chinna Pandurangam v. Mandal Revenue Officer, Serilingampally
Mandal, Rangareddy District and Others 17 on the aspect that proceedings in
ROR without issuing notice on whose names the entries already exist was a
nullity and void ab initio.
32. He relied upon the judgment of the High Court of Andhra Pradesh in Sri
Bhavana Rushi Cooperative Housing Building Society v. Joint Collector,
Rangareddy District and Others 18 on the aspect that an agreement of sale
could not be regularized by the Mandal Revenue Officer and prayed to dismiss
the Second Appeal.
33. Under Section 100 of CPC after the 1976 Amendment, it is essential for
the High Court to formulate substantial questions of law. There are two
2007 (6) ALT 134 (F.B.)
2008 (3) ALD 629
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situations in which interference with findings of fact is permissible. The
Hon'ble Apex Court in Jagdish Singh v. Natthu Singh 19 , held that:
"where the findings by the Court of facts are
vitiated by non-consideration of relevant
evidence or by an essentially erroneous
approach to the matter, the High Court is not
precluded from recording proper findings."
34. The Hon'ble Apex Court in Sebastio Luis Fernandez (Dead) by LRs.
and Others v. K.V.P.Shastri (Dead) by LRs. and Others (2 supra)
summarized the principles relating to Section 100 of CPC as follows:
"24. The principles relating to Section 100 of
CPC case may be summarized thus:
"i) An inference of fact from the recitals or
contents of a document is a question of fact. But
the legal effect of the terms of a document is a
question of law. Construction of a document
involving the application of any principle of law,
is also a question of law. Therefore, when there
is misconstruction of a document or wrong
application of a principle of law in construing a
document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the
case involves a substantial question of law, and
not a mere question of law. A question of law
having a material bearing on the decision of the
case (that is, a question, answer to which affects
the rights of parties to the suit) will be a
substantial question of law, if it is not covered
by any specific provisions of law or settled legal
principle emerging from binding precedents,
and, involves a debatable legal issue. A
substantial question of law will also arise in a
contrary situation, where the legal position is
clear, either on account of express provisions of
law or binding precedents, but the court below
1992 (1) SCC 647
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has decided the matter, either ignoring or acting
contrary to such legal principle. In the second
type of cases, the substantial question of law
arises not because the law is still debatable, but
because the decision rendered on a material
question, violates the settled position of law.
(iii) The general rule is that High Court will not
interfere with the concurrent findings of the
courts below. But it is not an absolute rule.
Some of the well-recognized exceptions are
where
(i) the courts below have ignored material
evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts
by applying the law erroneously; or (iii) the
courts have wrongly cast the burden of proof.
When we refer to "decision based on no
evidence", it not only refers to cases where there
is a total dearth of evidence, but also refers to
any case, where the evidence, taken as a whole,
is not reasonably capable of supporting the
finding."
35. In Abdul Rahim v. The Karnataka Electricity Board and Others
(4 supra), the Hon'ble Apex Court observed that:
"Moreover, although, a finding of fact can be
interfered with when it is perverse, but, it is also
trite that where the courts below have ignored
the weight of preponderating circumstances and
allowed the judgment to be influenced by
inconsequential matters, the High Court would
be justified in considering the matter and in
coming to its own independent conclusion."
36. The Hon'ble Apex Court in S.Subramanian v. S.Ramasamy and
Others (12 supra), held that:
"As per catena of decisions of this Court and
even as provided under Section 100 of the CPC,
the Second Appeal would be maintainable only
Dr.GRR, J
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on substantial question of law. The Second
Appeal does not lie on question of facts or of
law. The existence of 'a substantial question of
law' is a sine qua non for the exercise of the
jurisdiction under Section 100 of the CPC. As
observed and held by this Court in the case of
Kondiba Dagadu Kadam [AIR 1999 SC 2213],
in a second appeal under Section 100 of the
CPC, the High Court cannot substitute its own
opinion for that of the First Appellate Court,
unless it finds that the conclusions drawn by the
lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the
applicable law; or
(ii) Contrary to the law as pronounced by the
Apex Court; or
(iii) Based on inadmissible evidence or no
evidence.
It is further observed by this Court in the
aforesaid decision that if the First Appellate
Court has exercised its discretion in a judicial
manner, its decision cannot be recorded as
suffering from an error either of law or of
procedure requiring interference in Second
Appeal. It is further observed that the Trial
Court could have decided differently is not a
question of law justifying interference in Second
Appeal.
8.3 When a substantial question of law can be
said to have arisen, has been dealt with and
considered by this Court in the case of Ishwar
Dass Jain [AIR 2000 SC 426]. In the aforesaid
decision, this Court has specifically observed
and held:
"Under Section 100 CPC, after
the 1976 amendment, it is
essential for the High Court to
formulate a substantial question
of law and it is not permissible to
reverse the judgment of the first
appellate court without doing so.
There are two situations in which
interference with findings of fact
is permissible. The first one is
Dr.GRR, J
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when material or relevant
evidence is not considered which,
if considered, would have led to
an opposite conclusion. The
second situation in which
interference with findings of fact
is permissible is where a finding
has been arrived at by the
appellate court by placing
reliance on inadmissible evidence
which if it was omitted, an
opposite conclusion was possible.
In either of the above situations, a
substantial question of law can
arise.
37. In K.N.Nagarajappa v. H.Narasimha Reddy (cited supra), the Hon'ble
Apex Court held that:
"14. Undoubtedly, the jurisdiction which a High
Court derives under Section 100 is based upon
its framing of a substantial question of law. As
a matter of law, it is axiomatic that the findings
of the first appellate court are final. However,
the rule that sans a substantial question of law,
the High Court cannot interfere with findings of
the lower court or concurrent findings of fact, is
subject to two important caveats. The first is
that, if the findings of fact are palpably perverse
or outrage conscience of the court; in other
words, it defies on the face of logic that given
the facts on the record, interference would be
justified. The other is where the findings of fact
may call for examination and be upset, in the
limited circumstances spelt out in 103 of CPC.
15. Section 103 of CPC reads as follows:
"103. Power of High Court to determine
issues of fact:
In any second appeal, the High Court may, if the
evidence on the record is sufficient, determine
any issue necessary for the disposal of the
appeal,-
Dr.GRR, J
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(a) which has not been determined by the lower
Appellate Court or both by the Court of first
instance and the lower Appellate Court, or
(b) which has been wrongly determined by such
Court or Courts reason of a decision on such
question of law as is referred to in Section 100."
16. In the judgment reported as Municipal
Committee, Hoshiarpur v. Punjab State
Electricity Board [(2010) 13 SCC 216], this
Court held as follows:
"26. Thus, it is evident that
Section 103 of CPC is not an
exception to Section 100 of CPC
nor is it meant to supplant it,
rather it is to serve the same
purpose. Even while pressing
Section 103 of CPC in service,
the High Court has to record a
finding that it had to exercise
such power, because it found that
finding(s) of fact recorded by the
court(s) below stood vitiated
because of perversity. More so,
such power can be exercised only
in exceptional circumstances and
with circumspection, where the
core question involved in the case
has not been decided by the
court(s) below.
27. There is no prohibition on
entertaining a second appeal even
on a question of fact provided the
court is satisfied that the findings
of fact recorded by the courts
below stood vitiated by non-
consideration of relevant
evidence or by showing an
erroneous approach to the matter
i.e. that the findings of the fact
are found to be perverse. But the
High Court cannot interfere with
the concurrent findings of fact in
a routine and casual manner by
substituting its subjective
satisfaction in place of that of the
Dr.GRR, J
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lower courts. (vide Jagdish
Singh v. Natthu Singh [(1992) 1
SCC 647], Karnataka Board of
Wakf v. Anjuman-E-Ismail
Madris-Un-Niswan [(1999) 6
SCC 343], Dinesh Kumar v.
Yusuf Ali [(2010) 12 SCC 740].
28. If a finding of fact is
arrived at by ignoring or
excluding relevant material or by
taking into consideration
irrelevant material or if the
finding so outrageously defies
logic as to suffer from the vice of
irrationality incurring the blame
of being perverse, then the
finding is rendered infirm in the
eye of the law. If the findings of
the Court are based on no
evidence or evidence which is
thoroughly unreliable or evidence
that suffers from the vice of
procedural irregularity or the
findings are such that no
reasonable person would have
arrived at those findings, then the
findings may be said to be
perverse. Further if the findings
are either ipse dixit of the Court
or based on conjecture and
surmises, the judgment suffers
from the additional infirmity of
non-application of mind and thus,
stands vitiated. (Vide Bharatha
Matha v. R.Vijaya
Renganathan [(2010) 11 SCC
483]."
38. Under Section 100 of CPC, there is no restriction on the High Court to
frame any additional substantial questions of law or to reformulate the existing
substantial questions of law, if it is satisfied that the said substantial questions of
Dr.GRR, J
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law are involved in the case. As such, it is considered fit to reformulate the
substantial questions of law as follows:
1. Whether PW.1 is competent to enter the witness box as the GPA holder
of the plaintiff and to give evidence as a substitute for him?
2. Whether the courts below wrongly casted the burden on the defendants in
a suit for declaration of title and basing on the weakness in the case of the
defendants, had decreed the suit in favour of the plaintiff?
3. Whether the courts below had misread and misconstrued the oral and
documentary evidence on record by perverse appreciation?
4. Whether the consequential relief of permanent injunction can be granted
without the plaintiff proving that he was in possession of the suit schedule
property as on the date of filing the suit?
P O I N T No.1:
Whether PW.1 is competent to enter the witness box as the GPA holder of
the plaintiff and to give evidence as a substitute for him?
39. As seen from the facts of the case, the father of the plaintiff examined
himself as PW.1 in the capacity of the GPA holder of the plaintiff. Though the
appellants contended that PW.1 had not obtained permission of the Court to
examine as GPA of the plaintiff, the record would disclose that he filed the
necessary petition vide I.A.No.1572 of 2011 along with the GPA executed by
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the plaintiff in his favour on 01.09.2011. As per the GPA, the plaintiff stated
that he acquired the suit schedule property through Gift Settlement deed vide
document No.4004 of 2006 dated 15.12.2006 in Book No.1 of Sub-Registrar
Office, Kusumanchi and he was appointing his father to look after all his
immovable properties. He specifically mentioned that the schedule property
was under civil dispute vide O.S.No.206 of 2007 on the file of the Senior Civil
Judge, Khammam and stated that the GPA holder has to appear on his behalf to
engage any advocate or attorney for the purpose and to appear and represent
him in all the Courts, Civil, Criminal or Revenue including labour Tribunals
(Original, revisional or appellate), in any registration offices and also to present
appeals in any Court and to accept services of all summons, notices and other
processes of law as his GPA.
40. Thus, the GPA was specifically given by the plaintiff asking his father to
appear and to represent him before all the Courts and to present appeals. Being
the father of the plaintiff and the son of M.Rangaiah, who executed the gift deed
in favour of the plaintiff, PW.1 had personal knowledge of all the transactions
and was capable to give evidence.
41. The contention of the learned counsel for the appellants was that power of
attorney holder of a party can appear only as a witness in his personal capacity,
but he could not appear as a witness on behalf of the principal and relied upon
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the judgments of the Hon'ble Apex Court in Vidhyadhar v. Manikrao and
Another 20, wherein 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 was not correct."
42. He also relied upon the judgment of the Hon'ble Apex Court in
Mohinder Kaur v. Sant Paul Singh (10 supra), wherein it was held that:
"7. In Janki Vashdeo [(2005) 2 SCC 217], it
was held that a power of attorney holder, who
has acted in pursuance of the said power, may
depose on behalf of the principal in respect of
such acts but cannot depose for the principal for
the acts done by the principal and not by the
power of attorney holder. Likewise, the power
of attorney holder cannot depose for the
principal in respect of matters of which the
principal alone can have personal knowledge
and in respect of which the principal is entitled
to be cross-examined. In our opinion, the failure
of the respondent to appear in the witness box
can well be considered to raise an adverse
presumption against him.
43. The learned counsel for the respondent - plaintiff on the other hand relied
upon the judgment of the Hon'ble Apex Court in Man Kaur (Dead) by LRs. v.
Hartar Singh Sangha (14 supra), wherein the position as to who could give
evidence when the parties are represented by GPA is summarized by the
Hon'ble Justice Raveendran as follows:
(1999) 3 SCC 573
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"(a) An attorney holder who has signed the
plaint and instituted the suit, but has no personal
knowledge of the transaction can only give
formal evidence about the validity of the power
of attorney and the filing of the suit.
(b) If the attorney holder has done any act or
handled any transactions, in pursuance of the
power of attorney granted by the principal, he
may be examined as a witness to prove those
acts or transactions. If the attorney holder alone
has personal knowledge of such acts and
transactions and not the principal, the attorney
holder shall be examined, if those acts and
transactions have to be proved.
(c) The attorney holder cannot depose or give
evidence in place of his principal for the acts
done by the principal or transactions or dealings
of the principal, of which principal alone has
personal knowledge.
(d) Where the principal at no point of time had
personally handled or dealt with or participated
in the transaction and has no personal
knowledge of the transaction, and where the
entire transaction has been handled by an
attorney holder, necessarily the attorney holder
alone can give evidence in regard to the
transaction. This frequently happens in case of
principals carrying on business through
authorized managers/attorney holders or persons
residing abroad managing their affairs through
their attorney holders.
(e) Where the entire transaction has been
conducted through a particular attorney holder,
the principal has to examine that attorney holder
to prove the transaction, and not a different or
subsequent attorney holder.
(f) Where different attorney holders had dealt
with the matter at different stages of the
transaction, if evidence has to be led as to what
transpired at those different stages, all the
attorney holders will have to be examined.
(g) Where the law requires or contemplated the
plaintiff or other party to a proceeding, to
establish or prove something with reference to
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his `state of mind' or `conduct', normally the
person concerned alone has to give evidence and
not an attorney holder. A landlord who seeks
eviction of his tenant, on the ground of his `bona
fide' need and a purchaser seeking specific
performance who has to show his `readiness and
willingness' fall under this category. There is
however a recognized exception to this
requirement. Where all the affairs of a party are
completely managed, transacted and looked after
by an attorney (who may happen to be a close
family member), it may be possible to accept the
evidence of such attorney even with reference to
bona fides or `readiness and willingness'.
Examples of such attorney holders are a
husband/wife exclusively managing the affairs
of his/her spouse, a son/daughter exclusively
managing the affairs of an old and infirm parent,
a father/mother exclusively managing the affairs
of a son/daughter living abroad."
44. In the present case, the GPA holder is none other than a close family
member i.e. the father of plaintiff, who is having personal knowledge of all the
acts and transactions made by the plaintiff. As such, he is also permitted to give
evidence with regard to the state of mind or conduct of the plaintiff. But, in the
present case no such evidence with regard to the state of mind or conduct was
required. As such, PW.1 is competent to enter into the witness box as the GPA
holder of the plaintiff and to give evidence in his place.
P O I N T No.2:
Whether the courts below wrongly casted the burden on the defendants in
a suit for declaration of title and basing on the weakness in the case of the
defendants, had decreed the suit in favour of the plaintiff?
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45. As per Section 101 of the Indian Evidence Act, the burden of proof to
establish a title lies on the plaintiff as he is the one who is asserting the
existence of particular state of things basing on which he is claiming the relief.
Section 101 of the Indian Evidence Act states that burden of proving the facts
vests with the party who substantially asserts in the affirmative and not on the
party which is denying it.
46. In terms of Section of 102 of the Indian Evidence Act, if both the parties
failed to adduce evidence, the suit must fail. In a suit for title and possession,
the burden of proof lies on the plaintiff and the same would be discharged only
when he is able to prove his title. The weakness of the case of the defendants
could not be a justification to decree the suit.
47. The Hon'ble Apex Court in Smt. Smriti Debbarma (Dead) by LRs. v.
Sri Prabha Ranjan Debbarma and Others 21 reiterated the said principle and
held that:
"30. In the above factual background, for the
plaintiff to succeed, she has to establish that she
has a legal title to the Schedule 'A' property,
and consequently, is entitled to a decree of
possession. The defendants cannot be
dispossessed unless the plaintiff has established
a better title and rights over the Schedule 'A'
property. A person in possession of land in the
assumed character as the owner, and exercising
peaceably the ordinary rights of ownership, has
a legal right against the entire world except the
rightful owner. A decree of possession cannot
Civil Appeal No.878 of 2009, dated 04.01.2023
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be passed in favour of the plaintiff on the ground
that defendants 1 to 12 have not been able to
fully establish their right, title and interest in the
Schedule 'A' property. The defendants, being in
possession, would be entitled to protect and save
their possession, unless the person who seeks to
dispossess them has a better legal right in the
form of ownership or entitlement to possession."
48. When both the parties led evidence, the Court has to see who was having
better title to the suit property. The documents produced by the appellants /
defendants also would disclose that the plaintiff's grandfather was shown as
pattadar throughout the record which could not be disputed nor displaced by any
amount of oral evidence. The material produced on behalf of the plaintiff
would clinchingly establish that plaintiff was the absolute owner of the property
and was in possession of the property.
49. On a perusal of the judgment of the trial court, the trial court considered
the evidence adduced by both the parties and held that:
"36. The above evidence adduced by the
plaintiff, clearly reveals that the plaint schedule
property originally belonged to Maddineni
Chinna Appaiah, who is the grandfather of
Rangaiah (PW.2) and father of M.Pentaiah. The
name of M.Chinna Appaiah was shown as
pattadar in the revenue records for the years
1978-79 to 1984-85 to an extent of Ac.-8-08gts.
He was shown as pattadar for an extent of Ac.2-
08gts. for the years 1985-86 to 1992-93 and
subsequently the name of M.Rangaiah (PW.2)
was shown as pattadar for an extent of Ac.2-
33gts. situated in Survey No.246/E of
Tirumalayapalem Village i.e. of the suit
schedule property from 1994-1995 to 2002-2003
and for the years 2006-2007. The evidence of
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plaintiff further reveals that his paternal
grandfather PW.2 has executed Ex.A1 registered
Gift Deed dated 15.12.2006 gifting the suit
schedule property to him and when brother of
defendant No.1 interfered with his possession,
he filed suit and obtained perpetual injunction
against the said brother of defendant No.1. It
further reveals that though he applied to the
revenue authorities for issuance of pattadar
passbook and title deed for the property gifted to
him basing on Ex.A1 registered gift deed, the
revenue authorities basing on the application
submitted by defendant No.1 and after
conducting enquiry, issued pattadar passbook
and title deed in favour of defendant No.1
without issuing notice either to the plaintiff or to
PW.2, though the name of PW.2 was mentioned
in the revenue records as pattadar in the suit
schedule property from 1994-1995 to 2002-2003
and 2006-2007 and though the name of
M.Pentaiah was not shown as pattadar in the
revenue records. It is also evident that no
enquiry was conducted on the representation
submitted by the plaintiff and only after passing
of orders basing on the representation submitted
by defendant No.1, plaintiff was informed that
pattadar passbook and title deed were issued to
defendant No.1 in respect of the suit schedule
property and the plaintiff was informed to prefer
appeal to defendant No.4. Accordingly, the
plaintiff preferred appeal to defendant No.4 and
the said appeal was allowed by Ex.A23 order
dated 12.07.2011 and it appears that defendants
1 and 2 have preferred further appeal to the Joint
Collector, Khammam.
37. The plaintiff has filed copies of relevant
documents which were considered in the enquiry
conducted by defendant No.5 on the application
submitted by defendant No.1 and established
that though Ex.A19 dated 10.04.1987 which is
an agreement of sale said to have been executed
by Sale Sundaraiah in favour of defendant No.1
for purchasing of Ac.2-00gts. of land in Survey
No.246, the revenue authorities have wrongly
treated the same as sada sale deed, though it is
clearly recited in that document that it is an
agreement of sale. Defendants 1 and 2 have
filed the said agreement of sale, and it was
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marked as Ex.B11. DW.2 also filed copy of said
document, it was marked along with another
document as Ex.B26 and DW.2 admitted in her
evidence that the said document is only an
agreement of sale. DW.2 has also admitted that
defendant No.1 shall pay stamp duty and
registration fee and only thereafter, Tahsildar
has to issue 13-B Certificate after considering
entire record and the matter available in the
enquiry. But, DW.2 admitted that Ex.B31
which is 13-B Certificate was issued on
15.03.2007 and it was mentioned therein that
defendant No.1 has deposited Rs.3,210/-
towards stamp duty and registration fee, but, in
fact, defendant No.1 has paid said fee by way of
two challans, dated 23.03.2007 i.e. eight (8)
days after issuance of Ex.B31 Certificate. Thus,
a careful scrutiny of the evidence adduced by
both sides clearly establishes that the revenue
authorities have violated the rules by not issuing
notice to the plaintiff or his grandfather (PW.2),
though their names were specifically mentioned
in the application submitted by defendant No.1
as affected parties and without payment of
stamp duty and registration fee, 13-B Certificate
was issued and subsequently the stamp duty and
registration fee were paid and all these
circumstances would go to show that the
revenue authorities have violated the rules
framed under ROR Act, thereby causing
injustice to the plaintiff and did favour to
defendants 1 and 2 by violating the rules. Thus,
the plaintiff by adducing evidence and by
admissions made by DW.2, has established that
defendants 1 and 2 have managed the revenue
officials and got regularized one unregistered
sale deed and one agreement of sale treating it as
a sada sale deed and obtained 13-B Certificate in
favour of defendant No.1 without payment of
required stamp duty and registration fee.
38. It is further evident that the evidence
adduced by the plaintiff establishes that
M.ChinnaAppaiah was the owner of total extent
of Ac.8-08gts. situated in Survey No.246 of
Tirumalayapalem Village, subsequently from
the year 1994-1995, the name of PW.2 was
shown as pattadar, and the name of M.Pentaiah
(father of PW.2) was not found in any of the
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revenue records filed by defendants 1 and 2 also.
In this context, DW.2 has admitted that the name
of M.Pentaiah was not mentioned in any of the
revenue records as pattadar of land in Survey
No.246, the name of PW.2 was shown as
pattadar for the suit schedule property and
inspite of the same, the revenue authorities have
not issued any notice either to the plaintiff or
PW.2, though the application submitted by the
plaintiff was pending by the date of passing of
order by defendant No.5 deciding to issue
pattadar passbook and title deed in favour of
defendant No.1 for the suit schedule property."
50. On a careful consideration of the entire evidence adduced by both sides,
the learned Senior Civil Judge, Khammam was of the opinion that the plaintiff
has established that the plaint schedule property belong to PW.2, that PW.2 has
settled the said property on him by way of executing Ex.A1 registered gift deed
dated 15.12.2006. He has been in possession and enjoyment of the same from
the date of Ex.A1 and defendants 1 and 2 have managed the revenue authorities
and obtained pattadar passbook and title deed in favour of defendant No.1 for
the suit schedule property. The plaintiff has further established that though his
application for issuance of pattadar passbook and title deed for the schedule
property was pending before defendant No.5, no enquiry was conducted and
even no notice was issued either to the plaintiff or PW.2 in the enquiry
conducted basing on the application submitted by defendant No.1 in respect of
very same property. Therefore, the learned Senior Civil Judge was of the
opinion that the plaintiff has established his case and the defendants 1 and 2
have failed to establish their case."
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51. Thus, the trial court on considering the entire evidence adduced by both
the parties decreed the suit in favour of the plaintiff, but not casted the burden
on the defendants. It only pointed out the violations committed by the
defendants in managing the revenue officials for regularizing the unregistered
sale deed and the other document titled as agreement of sale without following
the rules framed under ROR Act.
52. The First Appellate Court observed that:
"the plaintiff's predecessor's interest in title was
accepted by the defendants as the defendants
claimed that they purchased the same through
predecessors of plaintiff, it was the duty of the
defendants to prove the said fact. Even
subsequently, the evidence of DW.2 was clear
that the defendants not only managed the
revenue authorities, but also got some fictitious
documents executed under Exs.B1 to B3
through PW.2, which reveals through the
complaint filed by PW.2 under Ex.A28 in
collusion with the defendants. The evidence of
PW.2 would also show that the defendants were
managing not only the revenue officials but also
other officials for the sake of property. The
defendants failed to adduce required evidence to
prove their title and they managed revenue
authorities. Once the name of M.Pentaiah was
there in revenue records and subsequently
Rangaiah name was included, now they were
saying that M.Ganapathi's name was included,
which would show that they were including the
names of parties in the revenue records who
were in their hands to get the properties
wrongfully and such acts of revenue authorities
could not be accepted. In view of the evidence
of DW.2 that there were criminal cases pending
against his predecessor regarding manipulation
of records, the same supports the case of the
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plaintiff and as such does not find any merits to
interfere with the observations of the trial court."
53. The appeal was dismissed not only due to the violations committed by the
defendants, but as the plaintiff could establish that it was their ancestral
property and the pahanies marked under Exs.A2 and A3 were showing the name
of PW.2 as pattadar continuously from the year 1994 till the date of execution
of gift deed in the year 2006.
P O I N T No.3:
Whether the courts below had misread and misconstrued the oral and
documentary evidence on record by perverse appreciation?
54. The plaintiff got examined his father on whom he executed the GPA, as
PW.1, his grandfather who executed the gift settlement deed in his favour as
PW.2 and a lessor of the suit schedule property from 2001-2002 to 2003-2004
and 2006-2007 to 2007-2008 as PW.3. The case of the plaintiff was that his
grandfather M.Rangaiah succeeded to the suit schedule property during
partition. PW.2, M.Rangaiah also stated in his evidence that in the year 1994
his father Pentaiah died. There were six sons to his father including him. A
partition took place between his father and all the sons. His father got 50 acres
of land in partition in turn from his father. In the partition, each of the sons
along with his father were allotted seven acres of land and he was given three
acres of land by his paternal grandfather. He stated that his father sold away his
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share of seven acres of land approximately 15 years prior to 1994. He also
stated that he knew defendant No.1 being his tenant.
55. Though, PW.2 stated in his evidence about the defendants 1 and 2 and
son of defendant No.2 and their counsel along with his second son Maddineni
Nageshwara Rao came to his house in Tirumalayapalem, played fraud on him
and obtained cancellation of registered gift deed and on realizing the same, he
lodged a police complaint against them, there was no cross-examination on
these aspects.
56. The defendant No.1 was examined as DW.1. He stated about purchasing
the property to an extent of Ac.1-20gts. vide unregistered sale deed from
Maddineni Pentaiah, the father of PW.2 in Survey No.246 in the year 1979 and
Ac.2-00gts. from Sale Sundaraiah through unregistered sale deed in the year
1987, but stated that he obtained title deed only to an extent of Ac.2-33gts. after
excluding the land covered by donka.
57. The sada sale deed executed by M.Pentaiah in favour of defendant No.1
was marked as Ex.B10 and the sada sale deed executed by Sale Sundaraiah in
favour of defendant No.1 was marked as Ex.B11. The sada sale deed executed
by Daravath Desya, Dharma and Badhya in favour of Sale Santamma, W/o.Sale
Sundaraiah was marked as Ex.B12 and the sada sale deed executed by
Maddineni Srinivasa Rao in favour of Sale Santamma was marked as Ex.B13.
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The written statement filed by defendant No.2 adopted by defendant No.1
would not disclose the names of Daravath Desya, Dharma and Badhya and they
executing the sale deed in favour of Sale Santamma and as to how the above
people acquired the property. It was also not pleaded that Maddineni Srinivasa
Rao executed a sale deed in favour of Sale Santamma. In his cross-
examination, he admitted that the boundaries mentioned in Exs.B12 and B13
are one and the same, though they were for the two different extents of lands of
one acre each. It was also not explained as to how when the sada sale deeds
were executed by Maddineni Srinivasa Rao (DW.9) in favour of Sale Santamma
and by Daravath Desya, Dharma and Badhya in favour of Sale Santamma, Sale
Sundaraiah executed the sale deed in favour of defendant No.1 under Ex.B11.
PW.1 admitted in his cross-examination that Sale Sundaraiah died and the
statement of Sale Santamma was recorded by the MRO while regularizing the
sale deed as per the proceedings of the MRO. When Sale Santamma was alive,
it was not explained as to how Sale Sundaraiah could execute the sale deed in
favour of defendant No.1 under Ex.B11.
58. DW.1 also stated in his cross-examination that his father K.Rama Rao
purchased the property from Pentaiah during his childhood when he was a
minor, in his name. He stated that after he attained majority, he purchased two
acres from Sundaraiah vide unregistered sale deed and admitted that the pattadar
passbooks were issued only to an extent of Ac.2-30gts., though he purchased
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Ac.3-20gts. He stated that he did not know the extents for which he sought
pattadar passbook while filing the application before the revenue authorities. It
was suggested to him that the plaintiff was holding a registered gift deed by the
time of his filing the application before the revenue authorities and that the
name of Sundaraiah was not there in the revenue records and his vendors
Maddineni Pentaiah and Maddineni Srinivasa Rao have no right or title over the
schedule properties. The defendant No.1 failed to file any document to show
that the names of Pentaiah or Srinivasa Rao or Sundaraiah was recorded in the
revenue records as pattadars of the schedule property or were having any right
and title over the property to execute the sale deeds in his favor.
59. The Tahsildar, Tirumalayapalem, the defendant No.5 was examined as
DW.2. DW.2 stated in her evidence that defendant No.1 (DW.1) made an
application with the then Tahsildar on 12.12.2005 for issuance of pattadar
passbooks and ROR title deeds, and enclosed two sada sale deeds dated
14.05.1979 and 10.04.1987 showing that he purchased an extent of Ac.1-20gts.
from one Maddineni Pentaiah, S/o.Maddineni Chinna Appaiah and an extent of
Ac.2-00gts. from Sale Sundaraiah pertaining to Survey No.246 of
Tirumalayapalem Village. Upon which, the then Tahsildar ordered for enquiry
directing the Mandal Revenue Inspector to conduct an enquiry. The Tahsildar
received an application dated 15.12.2005 from Maddineni Ganapathi objecting
issuance of pattadar passbooks and ROR title deeds in favour of Kampati
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Venkateshwarulu (defendant No.1) stating that no sale took place as alleged by
defendant No.1. The enquiry report of Mandal Revenue Inspector revealed that
Maddineni Family had no land as stated by said Maddineni Ganapathi. He also
recorded the statements of adjoining pattadars and ryots by names (Dondeti
Babu Rao, Kalvakuntla Veeranna, Boda Veeranna, Sale Santamma, Maddineni
Kotaiah, Pusuluri Ramaiah, Pusuluri Haranath, Kampati Venkateswarulu,
Rayala Nageswara Rao, Kalluri Vassaiah, and Kammakomati Nageswar Rao)
and they all deposed more or less stating that the Kampati Family was
cultivating the land and were raising chillies and other crops. She further stated
that after coming to know that the plaintiff was gifted suit schedule property by
Maddineni Rangaiah, the defendant No.1 approached defendant No.4 on
23.01.2007. Upon which, the defendant No.4 (RDO) informed defendant No.5
(the Tahsildar, Tirumalayapalem) to enquire into the matter. Defendant No.5
reported defendant No.4 that Maddineni Pentaiah long back had disposed the
lands. Defendant No.4 directed the defendant No.5 to inform the parties
interested about the contents of enquiry and to proceed accordingly. The then
Tahsildar referred the application to Sub-Registrar, Kusumanchi for payment of
stamp duty and registration fee and issued pattadar passbooks and title deeds in
favour of defendant No.1 without there being any payment made towards
stamp duty and issued 13-B Certificate in favour of Kampati
Venkateshwarlu on 15.03.2007, however the challan paid was of 23.03.2007.
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60. In her cross-examination, she admitted that as per revenue laws, without
payment of challan, 13-B certificate shall not be issued. She also made several
admissions which are fatal to the case of the defendants. She stated that in the
document related to the year 1979 (sadabainama - Ex.B10), there was no
mention that the entire consideration was paid there under and so also in the
document sadabainama dated 10.04.1987 (Ex.B11). She further stated that in
the document dated 10.04.1987 beneath the signature, the date was mentioned
as 30.04.1984. The said document was executed by Sale Sundaraiah. No
document was filed to show that Sundaraiah got title over the property. One
Maddineni Ganapathi put an objection by way of letter dated 12.04.2005. She
admitted that she did not file any document to show that any notice was given to
M.Ganapathi to summon him for enquiry. She admitted that for the years 2005-
2006 and 2006-2007, Maddineni Rangaiah was the pattadar to the plaint
schedule property, but no notice was issued to him and as per their revenue
records, Maddineni Pentaiah was never shown as pattadar. She also admitted
that there was no mention of survey numbers in the sale deeds dated 21.03.1985
(Exs.B12 and B13) and for both the sale deeds, the boundaries were one and the
same and there were no link documents to those sale deeds. She admitted that
there was no document filed before their Office to show how Sale Sundaraiah
got the property. She admitted that the wife of Sundaraiah by name Santamma
was alive and the property stands in the name of Santamma. She admitted that
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there was no mention of survey numbers and the witness column was left blank
in the document dated 21.03.1985, there was no link document showing the title
of Santamma. She also admitted that all the documents submitted by defendant
No.1 are sale agreements, but not registered sale deeds. She admitted that the
plaintiff put an application before their Office prior to defendant No.1 making
an application on 12.12.2005 for issuance of pattdar passbooks in his favour,
but there was no document to show that they issued notice to the plaintiff before
issuance of pattadar passbooks to the defendants. She also admitted that as per
the revenue records, Maddineni Pentaiah was never shown as pattadar, but was
only shown as possessor from 1976 -1977 onwards upto 1984-1985 and as per
the revenue records, Maddineni Chinna Appaiah was the pattadar and later
Maddineni Rangaiah was the pattadar.
61. Thus, the evidence of DW.2 goes against the case of the defendants.
62. The defendant No.2 was examined as DW.3. DW.3 admitted in his cross-
examination that he had not obtained Encumbrance Certificate before purchase
of the suit schedule property from defendant No.1. This admission is fatal to
consider him as a bonafide purchaser. He also admitted that he had not filed
any document to show that Maddineni Pentaiah was the pattadar and that Sale
Sundaraiah purchased two acres of land. He denied that in collusion with
defendant No.1 and revenue officials, he managed the revenue records by
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paying stamp duty and regularizing the sale, but it was a collusive transaction.
He also admitted that the RDO cancelled the pattadar passbooks granted in his
favour and so also in favour of defendant No.1. He further admitted that in the
revenue records filed by him, Maddineni Rangaiah was the pattadar. It was
suggested to him that he managed the younger son of Maddineni Rangaiah and
obtained the signatures of Maddineni Rangaiah and fabricated the documents
dated 12.12.2011 marked as Exs.B1 to B3 and created the document dated
09.09.2012 and another document dated 12.12.2011. It was suggested to him
that he was behind the back of the entire litigation and prosecuted the suit
through defendant No.1 and prosecuted the dispute before the Revenue Court
for wrongful gain taking advantage of the lease held by defendant No.1 and
fabricated all the documents.
63. The attestor of the unregistered sale deed dated 21.03.1985 through which
Sale Santamma purchased one acre of land in Survey No.246 from Daravath
Desya, Dharma and Badhya, was examined as DW.4.
64. One Daravath Desya who alleged to have sold one acre of land in Survey
No.246 to Sale Santamma through unregistered sale deed dated 21.03.1985 was
examined as DW.5. DW.5 in his cross-examination admitted that he did not
know the boundaries and survey number of the properties sold by them.
Though, he stated initially that his father cultivated the property as lessee under
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Maddineni Pentaiah, again stated that his father purchased the property from
Maddineni Pentaiah. He stated that he along with his brothers sold the property
to Sale Sundaraiah, but they have no document to show that they were the
owners to the schedule property.
65. Admittedly, no document was filed by the defendants to show that the
name of this witness or their father was recorded as pattadar or possessor in the
revenue records. The unregistered sale deed dated 21.03.1985 through which
this witness and his brothers sold one acre of land to Sale Santamma in Survey
No.246 was not regularized.
66. The scribe of the unregistered sale deed dated 14.05.1979 alleged to have
been executed by Maddineni Pentaiah in favour of defendant No.1 was
examined as DW.6. He stated that on 14.05.1979, an amount of Rs.4,000/- was
paid by defendant No.1 towards sale consideration to M.Pentaiah and
possession was also delivered on the same day. The remaining sale
consideration was agreed to be paid in two installments. He stated that he
scribed the agreement of sale on a white paper.
67. Thus, the entire sale consideration was not paid on 14.05.1979 and no
receipts were filed to show that the balance sale consideration was paid.
68. One Dondeti Babu Rao who attested the unregistered sale deed dated
10.04.1987 executed by Sale Sundaraiah in favour of defendant No.1 was
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examined as DW.7. He stated that along with him one Rama Narasimha Reddy
also attested the unregistered sale deed and the said document was scribed by
one Kammakomati Rangaiah, who was no more. He stated in his cross-
examination that the agreement of sale was executed in the house of
Kammokomati Rangaiah. He stated that the said Rangaiah died, Sale Sundariah
also died, Rama Narasimha Reddy, who was present and attested was alive but
was residing at Hyderabad. He stated that he did not know how Sundaraiah got
the property. Out of consideration of Rs.11,000/-, only an amount of Rs.2,000/-
had been paid.
69. Thus, in this case also, the entire sale consideration was not paid and
DW.7 stated that he was called to execute the agreement of sale.
70. A neighbour to the suit schedule property by name Maddineni Kotaiah
was examined as DW.8. He stated that defendant No.1 cultivated the land as
the owner from the year 1985 and the plaintiff's grandfather was never in
possession of the suit land at any point of time. The defendant No.2 was in
settled possession of the suit schedule property as owner, having purchased the
land through registered sale deed from defendant No.1. In his cross-
examination, he stated that he was not doing cultivation for the past 30 years,
though he was having five acres of land at Tirumalayapalem and he was not
doing agriculture personally for the past four years.
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71. Maddineni Srinivasa Rao, the younger brother of Maddineni Rangaiah
(PW.2), was examined as DW.9 by the defendants. He stated that he sold one
acre of land out of the suit schedule property to Sale Santamma through
unregistered sale deed (Ex.B8) dated 21.03.1985 and he received the sale
consideration from Sale Santamma. The document bears his signature as
executant and the said extent of land sold by him was his patta land which he
got in oral partition. He also admitted in his cross-examination that their joint
family had 50 acres and including him, they were 6 brothers. He was allotted
five acres in the partition. At the time of partition, his grandfather was no more.
He admitted that he was having no document to show that he was having right
over the property at the time of sale to Santamma. He admitted that Ex.B8 was
scribed on a white paper and stated that he did not know who scribed Ex.B8, he
was working at Kodad at that time. He stated that Sale Santamma never came
to his house. It was her husband Sale Sundariah, who alone came to his house.
72. The RDO, Khammam in his proceedings marked as Ex.A23 observed
that:
"As per the contention of the appellant (the
plaintiff herein) he acquired the land to an
extent of Ac.2-33gts. in Survey No.246/E
through registered Gift Settlement Deed bearing
No.4004 of 2006 dated 15.12.2006 having
executed by his grandfather Maddineni
Rangaiah who happens to be pattadar and
possessor of the land. On verification of the
pahanies submitted by the Tahsildar, for the
years 1980-81 to 2006-07, Maddineni Chinna
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Appaiah is the pattadar for the land to an extent
of Ac.8-08gts. in Survey No.246 and names of
Maddineni Pentaiah, Maddineni Rangaiah,
Harinadh, Sreenivasa Rao, Chilumalreddy
Veeraiah, Daravath Badya and Kampati Ramulu
as occupants for the years 1980-81, 81-82, 82-
83, 83-84. The name of Kampati Ramulu
shows as occupant for the year 1980-81, 81-82
and for the year 83-84, it was written as
Kampati. From 1994-95 onwards, the name of
Maddineni Rangaiah has shown in the pattadar
column and names of Maddineni
Venkateswarlu, S/o.Rangaiah and Maddineni
Durgabayamma as occupants. Name of
Kampati Venkateswarlu shown as occupant
only for the year 1992-93, 93-94 and 2004-05,
2006-2007. As per the contention of the
respondent, he purchased the land to an extent
of Ac.1-20gts. from Maddineni Pentaiah
through unregistered sale deed, Ac.2-00gts.
from Sale Santamma, who purchased from
Maddineni Sreenivasa Rao and Daravath Desya.
As per the ROR proceedings submitted by the
Tahsildar, pattadar passbook and title deed was
issued basing on the unregistered sale deed
dated 14.05.1979 executed by Maddineni
Pentaiah and 10.04.1987 and 10.07.1986
executed by S.Sundaraiah in favour of Kampati
Venkateswarlu. On perusal of the pahanies, no
where the name of Kampati Venkateswarlu
shown after 1979 except three or four years. If
really Kampati Venkateswarlu purchased in the
year 1979, definitely his name should be entered
in the occupant column. More so, the document
dated 14.05.1979 is agreement of sale and sale
is not completed. That the appellant disputed
the document dated 14.05.1979 stating that the
document is fabricated one and there is no
validity.
On verification of sale deed dated 10.04.1987
and 10.07.1986 submitted for regularization
before Mandal Revenue Officer, evidencing that
the sale deed was executed by S.Sundaraiah.
Whereas, as per the counter averments of
respondent, he purchased from Sale
Santhamma, W/o.Sundaraiah, but the document
shows that S.Sundaraiah executed the same and
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nowhere in the revenue records, neither the
name of Santhamma nor Sundaraiah find place.
As seen from the above, the Mandal Revenue
Officer has regularized the said sale deeds
submitted by the respondent without having any
possession over the schedule land and who has
no title nor competent to execute the sale deeds.
As per the pahanies submitted by the appellant
and Tahsildar, it shows Maddineni Rangaiah,
the pattadar and possessor of the land in Survey
No.246/E and the sada sale deeds regularized by
the Tahsildar, are not corroborating with the
physical possession and the revenue records.
Maddineni Rangaiah, S/o. Pentaiah is the
pattadar and possessor of the land in Survey
No.246/E and he inherited from his father and
accordingly in the year 1994-95, his name was
mutated as pattadar. Later on said Maddineni
Rangaiah gifted the land to his grandson i.e.
appellant (plaintiff herein) through registered
Gift Settlement Deed bearing No.4004 of 2006
dated 15.12.2006. Accordingly, Maddineni
Sravan Kumar, the appellant herein submitted
an application dated 30.12.2006 for issuance of
pattadar passbook and title deed before MRO,
Tirumalayapalem. Also, Maddineni Rangaiah
has filed objection before MRO,
Tirumalayapalem on 31.10.2006 requesting not
to issue passbook and title deed to anyone for
the land in Survey No.246/E to an extent of
Ac.2-33gts.
The respondent Kampati Venkateswarlu also
submitted application in Form No.10 for
issuance of pattadar passbook and title deed for
the land to an extent Ac.3-20gts. in Survey
No.246 on 12.02.2007. It seems, though
Maddineni Sravan Kumar submitted application
for issuance of pattadar passbook and title deed,
keeping pending the application, the Tahsildar
has considered the application submitted by the
respondent Kampati Venkateswarlu without
considering the application filed by the
appellant. It is the duty of the Tahsildar to make
proper enquiry when two persons are claiming
the same property and to decide the matter.
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As per the record submitted by the appellant,
the respondent has submitted Form No.10 for
the land in Survey No.246 to an extent of Ac.2-
00gts. through sale deed dated 10.04.1987 and
Ac.1-20gts. dated 14.05.1979 but the Tahsildar
had issued notices under Section 22(3) of ROR
Act for the land to an extent of Ac.2-33gts.
only. The pahanies shows the name of
Maddineni Rangaiah as pattadar and possessor
and Tahsildar has not issued any notices
specifically to the interested persons as required
under Rule 22(3) of ROR Act.
Further, as per ROR rules, after completion of
the enquiry under sub rule (4), the MRO shall
require the alienee or the transferee under
Section 5(A) of the Act, to deposit through a
challan in the treasury an amount equal to the
registration fee and stamp duty and on deposit
of the amount through a challan in the treasury,
the Mandal Revenue Officer shall issue a
certificate in form 13(B) as required under Sub-
Section (4) of Section 5(A) of the Act to alienee
or the transferee declaring that alienation or
transfer is valid from the date of issue of
certificate. But here, the Tahsildar had issued
13(B) certificate on 15.03.2007 before payment
of challan as required. The amount was
deposited as required on 23.03.2007, which is
against the rules prescribed under the ROR Act.
As per the above, it seems Tahsildar has not
followed the rules as prescribed in the Act.
As seen from the documents submitted by the
appellant and Tahsildar, it shows that
Maddineni Rangaiah was the pattadar and
possessor of the land and the appellant has
acquired through registered gift settlement deed.
The Tahsildar, without issuing notices to the
pattadar Maddineni Rangaiah and interested
persons and without conducting proper enquiry
and also without observing the records,
validated the sale deed and issued pattadar
passbook and title deed to Kampati
Venkateswarlu.
In view of the above, it is clear that the issuance
of pattadar passbook and title deed in favour of
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respondent for the land in question is against
law. Further issuance of passbook and title deed
in favour of R.Om Narayana by effecting the
mutation of sale deed while having knowledge
of the appeal is pending before the Revenue
Divisional Officer, Khammam is also not
correct.
For the aforesaid reason, I am of the opinion
that the action of the Tahsildar,
Tirumalayapalem in issuing pattadar passbook
and title deed in favour of Kampati
Venkateswarlu by regularizing the sale deeds
alleged to have executed by Maddineni Pentaiah
and S.Sundaraiah, who had no valid title and
possession and subsequent mutation and
issuance of passbook and title deed in favour of
R.Om Narayana is illegal and without proper
enquiry and jurisdiction.
73. Thus, the proceedings of the RDO, Khammam would disclose that the
name of defendant No.1 was not there in the pahanies after 1979 except for
three or four years.
74. As per the judgment of the Hon'ble Apex Court relied by the learned
counsel for the respondent - plaintiff in Poona Ram v. Moti Ram (Dead) by
LRs. and Others (15 supra), it was held that:
"11. It was also observed by this Court in Nair
Service Society Ltd (supra) that a person in
possession of land in assumed character of
owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title
against the entire world except the rightful
owner. In such a case, the defendant must show
in himself or his predecessor a valid legal title
and probably possession prior to the plaintiff's,
and thus be able to raise a presumption prior in
time."
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75. Thus, the name of defendant No.1 was not recorded continuously even as
a possessor of the suit schedule property. Even if his name was recorded, he
would be having a good title against the entire world except the rightful owner.
It was further held in the above judgment that:
"13. A person who asserts possessory title over a
particular property will have to show that he is
under settled or established possession of the
said property. But merely stray or intermittent
acts of trespass do not give such a right against
the true owner. Settled possession means such
possession over the property which has existed
for a sufficiently long period of time, and has
been acquiesced to by the true owner. A casual
act of possession does not have the effect of
interrupting the possession of the rightful owner.
A stray act of trespass, or a possession which
has not matured into settled possession, can be
obstructed or removed by the true owner even
by using necessary force. Settled possession
must be (i) effective, (ii) undisturbed, and (iii) to
the knowledge of the owner or without any
attempt at concealment by the trespasser. There
cannot be a straitjacket formula to determine
settled possession. Occupation of a property by a
person as an agent or a servant acting at the
instance of the owner will not amount to actual
legal possession. The possession should contain
an element of animus possidendi. The nature of
possession of the trespasser is to be decided
based on the facts and circumstances of each
case.
76. The Full Bench of this Court in Chinnam Pandurangam v. Mandal
Revenue Officer, Serilingampally Mandal, Rangareddy District and Others
(17 supra) held that before amending the Record of Rights, the recording
authority shall issue a notice in writing individually to all persons whose names
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are entered in the Record of Rights and who are interested in or affected by the
proposed amendment besides publishing notice in Form-VIII.
77. Though, the plaintiff had made an application prior to the defendant No.1
for issuing pattadar passbook and title deed on 12.12.2005 and the defendant
No.1 made an application subsequently on 12.02.2007, without issuing notice to
the plaintiff, the MRO caused enquiry and by examining some persons whose
names were not there in the revenue records, issued pattadar passbook and title
deed in favour of defendant No.1 without following the procedure laid down
under AP Rights in Land and Pattadar Passbooks Act, 1971 and the Rules
framed there under.
78. The violations committed by the MRO are clearly pointed out by the
RDO in his proceedings marked under Ex.A23.
79. The Full Bench in the above judgment after analyzing the relevant
statutory provisions held that:
"11. From the above discussion, it is clear
that the requirement of issuing notice in writing
to all persons whose names are entered in the
Record of Rights and who are interested in or
affected by the amendment is independent of
the requirement of publication of notice in
accordance with the second part of Section 5(3)
read with Rules 19 and 5(2) of the Rules. The
language of Form-VIII in which the notice is
required to be published cannot control the
interpretation of the substantive provision
contained in Section 5(3), which, as mentioned
above, casts a duty on the recording authority to
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issue notice in writing to all persons whose
names are entered in the Record of Rights and
who are interested in or affected by the
proposed amendment."
80. This High Court in Writ Petition No.2383 of 2000 in Sri Bhavana Rushi
Cooperative Housing Society Limited v. Joint Collector, Rangareddy
District and Others (18 supra), held that an 'agreement of sale' cannot be
regularized by the MRO in exercise of powers under Section 9. It observed
that:
"18. The only question that fell for consideration
was, as to whether the agreement of sale can be
regularized by the Mandal Revenue Officer, in
exercise of power under Section 9. The answer
given by the Division Bench, based on the
various judgments of this Court, was, that an
agreement of sale is not an 'alienation' or the
'transfer' of property, and there was no
mechanism provided for under Section 5(A), to
deal with the agreement of sales, and that
Section 5(A) provides for regularization of
unregistered sale deeds of alienations, but not
agreement of sales, and in view of the aforesaid
circumstances, I am of the opinion that the only
remedy available to the petition, to resolve the
dispute before the appropriate forum, was, either
by way of filing a civil suit for specific
performance, or any other recourse under
Section 8(2) of the Act.
81. Thus, an agreement of sale cannot be regularized by the MRO as the
same is not an alienation or transfer of property. The revenue authorities are
entitled to regularize the sale deed in terms of Form-IX under Rule 22(1) read
with Section 5(A) of ROR Act which contemplates grant of patta on the basis
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that the person claiming was a recorded occupant in the adangal or pahani
patrika or in the ROR by virtue of an alienation or transfer made or affected
otherwise than by registered document, etc. But, the documents filed by the
defendants marked under Exs.B10 to B13 would not satisfy the above
requirements. Further, the claim was also to be made on the basis of a
notification issued by the MRO and within the prescribed period. However, the
facts of the case or the evidence of the witnesses would not disclose that any
notification was issued by the MRO and any time limit was prescribed by him
for making an application in this regard by the parties herein and the parties had
made the application within the prescribed period.
82. The learned counsel for the appellants had stated that he filed an
application for receiving additional evidence and to mark the same as Exs.B33
to B50 vide S.A.M.P.No.114 of 2016 and he also filed the order of the Joint
Collector, wherein the proceedings of the RDO were set aside. But none of the
documents filed by the petitioners - appellants were prior to the year 2006.
Additional evidence can be allowed by the appellate court only in the
circumstances contemplated under Order XLI Rule 27 of CPC. The material
now produced partly pertains to the revenue enquiry and all the documents filed
were subsequent to the filing of the suit. Hence, it is considered not fit to allow
the application at this stage.
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83. The observation of the Joint Collector with regard to 'mutating the name
of Maddineni Rangaiah from 1994-1995 was without any basis and without any
proceedings and the same was without following the rules under ROR Act' was
incorrect as in the case of family partition, no notice would be given to the
parties. However, the observation of the Joint Collector that there was a serious
title dispute between the parties regarding the petition schedule land and the
Revenue Court has got no jurisdiction to decide the title and a Civil Court is
alone competent is proper.
84. As seen from the evidence of the witnesses adduced by both the parties
and the documents marked on their behalf, this Court is of the opinion that both
the courts below had rightly appreciated the oral and documentary evidence on
record. This Court does not find any perversity in the appreciation of the
evidence.
P O I N T No.4:
Whether the consequential relief of permanent injunction can be granted
without the plaintiff proving that he was in possession of the suit schedule
property as on the date of filing of the suit?
85. The contention of the learned counsel for the appellants was that the relief
of permanent injunction was not consequential upon the declaration of title and
possession of the plaintiff as on the date of filing of the suit was decisive to
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grant the relief of permanent injunction. His further contention was that the
courts below failed to record any finding as to who was in possession of the suit
schedule property as on the date of filing of the suit, the courts below erred in
relying on the pahani during the year 2006-2007 (Ex.A3) which shows that the
grandfather of respondent No.1, M.Rangaiah was the pattadar and possessor of
the suit schedule property ignoring the fact that the said pahani was issued by
the Village Panchayat Officer, who was not the competent authority to issue the
pahani. The Joint Collector in his order also pointed out the same. The lower
appellate court erred in not relying on the pahani for the year 2006-2007 issued
by respondent No.4, which would indicate the name of appellant No.1 as
possessor of the suit schedule property, even though the same was received as
additional evidence in the appeal. The courts below failed to consider the
admissions of PWs.1 and 2 that for the years 1998-2004 and for the years 2004-
2006, the suit schedule property was leased out to appellant No.1 by them. By
virtue of the aforesaid admissions, the appellant No.1 enjoys the status of a
tenant and possession of any agricultural land could only be resumed by the
land holder from the tenant on the orders of the concerned Tahsildar. PW.1
admitted in his cross-examination that no document was filed to show that
appellant No.1 surrendered his possession over the schedule property as on the
date of filing the suit. As such, the respondent No.1 was not entitled to the
relief of permanent injunction. He further contended that the lower appellate
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court also failed to see that the trial court rightly refused to grant temporary
injunction in favour of the first respondent in I.A.No.776 of 2007, as no
document was filed to evidence the possession of the plaintiff over the suit
schedule property. The courts below failed to appreciate the documentary
evidence marked under Exs.B16 to B19. The resolution passed by the Gram
Panchayat, Tirumalayapalem assigning House No.3-82/A to appellant No.1 for
construction of a house in the suit schedule property (Ex.B16), house tax
payment receipt (Ex.B17) and the receipt issued by APSPDCL in proof of
payment of electricity charges for House No.3-82/A (Ex.B18) and the certificate
issued by APSPDCL (Ex.B19) and the electricity bill marked under Ex.B23
would prove that the house was constructed by appellant No.1 in the suit
schedule property and appellant No.1 was in possession of the suit schedule
property for more than 20 years, adverse to the knowledge of respondent No.1.
As such, the appellant No.1 perfected his title over the suit schedule property by
way of adverse possession.
86. The learned counsel for the respondent - plaintiff on the other hand
contended that the plea of adverse possession was not taken by the appellants
either before the trial court or before the appellate court and it was taken for the
first time before this Court. Without any plea and without any evidence, the
said aspect cannot be considered at this stage. The possession of appellant No.1
with regard to the suit schedule property was only sporadic. It was not
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continuous. PWs.1 and 2 only admitted that appellant No.1 was a tenant for
some period in the suit schedule property. They cannot claim ownership over
the property basing upon their possession. The possessor will have rights over
the property with respect to all the persons except against the true owner. The
possession was restored to the respondent - plaintiff as per the judgments of the
courts below and the Telangana Government had issued pattadar passbook and
title deed to the respondent - plaintiff. Subsequently, the name of the
respondent - plaintiff was also entered in Dharani Portal and he was also issued
amounts under raithu bandu scheme and filed documents in proof of it. He also
contended that the refusal to grant injunction during the pendency of the suit
have no relevance, as the trial court disposed the suit decreeing it in favour of
the plaintiff and the lower appellate court also confirmed the said judgment.
The statusquo order passed during the pendency of the second appeal was
vacated by this Court vide orders in Criminal S.A.M.P.No.416 of 2014 dated
25.09.2014 and the Hon'ble Apex Court also dismissed the Special Leave
Petition (for short "SLP") filed against the said order. As such, the possession
of the respondent - plaintiff was protected by the courts
87. Now, the substantial question of law formulated by this Court is whether
permanent injunction can be granted as a consequential relief in a suit for
declaration of title or whether is it necessary for the plaintiff to prove that he
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was in possession of the suit schedule property as on the date of filing of the
suit.
88. The Hon'ble Apex Court in Padhiyar Prahladji Chenaji (deceased)
through LRs. V. Maniben Jagmalbhai (deceased) through LRs. and
Others 22, answered this aspect holding as follows:
"11. From the impugned judgment and order
passed by the High Court, it appears that the
High Court has not properly appreciated the
distinction between a substantive relief and a
consequential relief. The High Court has
observed that in the instant case the relief of
permanent injunction can be said to be a
substantive relief, which is clearly an erroneous
view. It is to be noted that the main reliefs
sought by the plaintiff in the suit were
cancellation of the sale deed and declaration and
the prayer of permanent injunction restraining
defendant No.1 from disturbing her possession
can be said to be a consequential relief.
Therefore, the title to the property was the basis
of the relief of possession. If that be so, in the
present case, the relief for permanent injunction
can be said to be a consequential relief and not a
substantive relief as observed and held by the
High Court. Therefore, once the plaintiff has
failed to get any substantive relief of
cancellation of the sale deed and failed to get
any declaratory relief, and as observed
hereinabove, relief of injunction can be said to
be a consequential relief.
Therefore, the prayer for permanent injunction
must fail. In the instant case as the plaintiff
cannot be said to be in lawful possession of the
suit land, i.e., the possession of the plaintiff is
"not legal or authorized by the law", the
plaintiff shall not be entitled to any permanent
injunction.
Civil Appeal No.1382 of 2022 dated 03.03.2022
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11.1. An injunction is a consequential relief and
in a suit for declaration with a consequential
relief of injunction, it is not a suit for
declaration simpliciter, it is a suit for declaration
with a further relief. Whether the further relief
claimed has, in a particular case as
consequential upon a declaration is adequate
must always depend upon the facts and
circumstances of each case. Where once a suit
is held not maintainable, no relief of injunction
can be granted. Injunction may be granted even
against the true owner of the property, only
when the person seeking the relief is in lawful
possession and enjoyment of the property and
also legally entitled to be in possession, not to
dispossess him, except by due process of law.
12. Now, so far as the submission on behalf of
the plaintiff that even if the plaintiff failed to get
the declaratory relief and relief for cancellation
of registered sale deed and her suit for the said
reliefs came to be dismissed and the plaintiff is
found to be in possession and therefore, the only
remedy available to the defendant No.1 would
be to file a substantive suit to get back the
possession is noticed only to be rejected
outright. It is the contention on behalf of the
plaintiff that once the plaintiff is found to be in
possession, her possession cannot be disturbed
except by due process of law and the defendant
No.1 though may be the true owner has to file a
substantive suit for recovery of possession.
While considering the aforesaid submission, the
decision of this Court in the case of Maria
Margarida Sequeira Fernandes Vs. Erasmo
Jackde Sequeira [(2012) 5 SCC 370] is
required to be referred to. What is meant by due
process of law has been explained by this court
in paragraph 79, which reads as under:-
"79. Due process of law means that nobody
ought to be condemned unheard. The due
process of law means a person in settled
possession will not be dispossessed except by
due process of law. Due process means an
opportunity to the defendant to file pleadings
including written statement and documents
before the court of law. It does not mean the
whole trial. Due process of law is satisfied the
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moment rights of the parties are adjudicated
upon by a competent court."
In the said decision, this Court has approved the
following findings of the HighCourt of Delhi in
Thomas Cook (India) Ltd. Vs. Hotel Imperial
[(2006) 88 DRJ 545]:-
"28. The expressions 'due process of law', 'due
course of law' and 'recourse to law' have been
interchangeably used in the decisions referred to
above which say that the settled possession of
even a person in unlawful possession cannot be
disturbed 'forcibly' by the true owner taking
law in his own hands. All these expressions,
however, mean the same thing -- ejectment
from settled possession can only be had by
recourse to a court of law. Clearly, 'due process
of law' or 'due course of law', here, simply
mean that a person in settled possession cannot
be ejected without a court of law having
adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course'
condition is satisfied the moment the rights of
the parties are adjudicated upon by a court of
competent jurisdiction. It does not matter who
brought the action to court. It could be the
owner in an action for enforcement of his right
to eject the person in unlawful possession. It
could be the person who is sought to be ejected,
in an action preventing the owner from ejecting
him. Whether the action is for enforcement of a
right (recovery of possession) or protection of a
right (injunction against dispossession), is not of
much consequence. What is important is that in
either event it is an action before the court and
the court adjudicates upon it. If that is done
then, the 'bare minimum' requirement of 'due
process' or 'due course' of law would stand
satisfied as recourse to law would have been
taken. In this context, when a party approaches
a court seeking a protective remedy such as an
injunction and it fails in setting up a good case,
can it then say that the other party must now
institute an action in a court of law for enforcing
his rights i.e. for taking back something from
the first party who holds it unlawfully, and, till
such time, the court hearing the injunction
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action must grant an injunction anyway? I
would think not. In any event, the 'recourse to
law' stipulation stands satisfied when a judicial
determination is made with regard to the first
party's protective action. Thus, in the present
case, the plaintiff's failure to make out a case for
an injunction does not mean that its consequent
cessation of user of the said two rooms would
have been brought about without recourse to
law."
89. In the present case also, the relief of permanent injunction sought for is
consequential to the relief of declaration of title of the plaintiff to the suit
schedule property and the same was granted by the trial court as a consequential
relief.
90. Once, the respondent - plaintiff is declared as owner of the suit schedule
property, the true owner cannot be restrained by way of an injunction against
him. Once, the dispute with respect to the title is settled and it is held against
the defendants, the relief of permanent injunction is not maintainable against the
true owner, as injunction cannot be issued against a true owner or title holder.
As the defendants raised a dispute with regard to the title of the plaintiff and
raised a cloud over the title of the plaintiff, as such, the plaintiff filed the suit for
declaration claiming the relief of permanent injunction consequential to it.
91. The Hon'ble Apex Court in the above case had also referred to its earlier
case in A.Subramanian v. R.Pannerselvam 23, wherein it was held that a
person in possession of land in the assumed character of owner and exercising
(2021) 3 SCC 675
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peaceably the ordinary rights of ownership has a perfectly good title against all
the world but the rightful owner. As such, the appellants are not entitled to any
injunction against the rightful owner. More particularly, when they failed to get
the declaratory relief and the dispute with respect to the title comes to an end.
The possession of the appellants cannot be said to be "lawful possession", and
they were not entitled to any permanent injunction against the true owners. As
such, this substantial question of law is answered holding that the respondent -
plaintiff is entitled to the consequential relief of permanent injunction, as it is
not simpliciter suit for declaration of title alone.
92. In the result, the Second Appeal is dismissed confirming the judgments of
the courts below. However, in the facts and circumstances of the case, there
would be no order to as to costs.
As a sequel, miscellaneous applications pending in this appeal if any,
shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 27th December, 2023
Nsk.
