Mr.Venkateswara Raju, S/O.Subba ... vs Smt.Kaja Annapurnamma Died
2023 Latest Caselaw 2207 Tel

        THE HON'BLE SMT. JUSTICE P.SREE SUDHA

             SECOND APPEAL No.1462 of 2004

JUDGMENT:

This Second Appeal is filed against the Judgment of the

First Appellate Court in A.S.No.6 of 1994, dated 29.1.1999, in

which the Judgment of the trial Court in O.S.No.59 of 1987

dated 02.03.1994 was reversed.

2. Heard arguments of learned counsel for appellant. He

stated that respondent No.1 died and her son was brought on

record as respondent No.2, vide C.M.P.No.28418 of 2003 dated

19.11.2004, but he refused to take the notice and as such,

heard the arguments of learned counsel for appellant.

3. One Venkateshwar Raju/plaintiff filed suit against Khaja

Annapurnamma/defendant and others for permanent

injunction and requested the Court to restrain the defendants

from interfering with his possession of suit land bearing survey

No. 287/1 admeasuring Ac.2.20 guntas of Mailaram sivar of

Banswad Taluk.

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4. The parties hereinafter referred to as plaintiff and

defendants as arrayed in the trial Court for the sake of

convenience.

5. Plaintiff initially filed O.S.No.134 of 1983 in the court of

District Munsif, Bodhan and after establishment of Court at

Banswada, the said suit was transferred to that Court and

numbered as O.S.No.59 of 1987. The land in survey No.287/1

admeasuring Ac.2.20 guntas was assigned to him by the

Government vide proceedings A4/545/80, and that he was in

possession of the suit land. He also filed Rythwari pass book

and panchanama to establish his possession. He further stated

that the defendants are not concerned with the suit land, and

as they were interfering with his possession, he got surveyed

and demarcated his suit land by the revenue authorities. Even

as per the survey report, he is in possession of the suit land. As

the defendants are interfering with his possession, he filed the

suit for permanent injunction.

6. Defendant Nos.1, 3 and 4 were set exparte and only

defendant No.2 contested the suit by filing written statement. In

her written statement she stated that she is in possession of the

suit land. Plaintiff has not filed any document to show that he is SA.No1462of 2004

in possession of Ac.2.20 guntas of land within the specific

boundaries in the year 1980. He has not filed any document by

way of Revenue Record of cultivation pertaining to the years

1980-81 and 1982-83 to show that he is in possession of some

area in Sy.No.287/1. Rythwari passbook simply shows that it

was an assigned land. In fact, Rythwari passbook and

panchnama were prepared behind her back in the year 1983

and they are false and fictitious and there is no cause of action

to the plaintiff to file the suit.

7. On behalf of the plaintiff, PW's1 to 4 were examined and

Ex's.A1 to A15 were marked. On behalf of the defendants, DW's

1 to 3 were examined and Ex's.B1 to B12 were marked.

8. The trial Court on considering the entire evidence on

record and on hearing the learned counsel for the parties,

decreed the suit in favour of the plaintiff. However, the first

appellate Court reversed the same.

9. PW1 is the General Power of Attorney of the plaintiff.

Ex.A1 is certified copy of General Power of Attorney. Ex.A2 is

the patta certificate of assignment. The name of plaintiff was

mutated in the revenue records. Ex.A3 to A9 are the certified SA.No1462of 2004

copies of pahanies of suit land. Ex.A13 is the certified copy of

panchnama through which the Government delivered

possession of the suit land to the plaintiff. PW2 is Gumastha

Patwari of Mailaram village for the period from 1964 to 1983. He

stated that on 07.06.1983 he was present when the Deputy

Tahsildar and Revenue Inspector conducted panchnama and

that he attested Ex.A14. He clearly stated that the possession of

the land was given to plaintiff in the presence of Bondla

Gangaram, Seetaramaiah Raju and T.Pandari Goud, the then

Sarpanch of Mailaram acted as panch witnesses. PW3 stated

that surveyor demarcated the land assigned to the plaintiff and

the panchnama was drafted and delivered possession to the

plaintiff on which he affixed his signature. PW4 stated that the

suit schedule land in survey 287/1 is to the extent of more than

100 acres and it is Charai land (Government land). The

Government assigned Ac.2.20 guntas of land in two different

places in Mailaram village and one piece of land consisting of

1.37 guntas and another piece of Ac.0.23 guntas. At the time of

assignment he was working as Sarpanch of the Mailaram village

and at the time of panchanama Tahsildar called him as he was

Sarpanch and conducted the panchanama in the year 1983 and

there was no crop at the time of assignment.

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10. The defendant stated that she filed a petition before the

Revenue Divisional Officer, Bodhan for mutation of the land in

her name and accordingly, he issued proceedings under Ex.B9

through the Tahsildar, Banswada directing the said Tahsildar

not to dispossess her from the land, if she is otherwise eligible.

She filed pahanies of 1982-83 under Ex.B1. She also filed

revenue land payment receipts for the year 1978-79, 1980-81,

1982-83 under Ex.B2 to B8. She further filed land payment

receipts for the year 1983-84 to 1986-87 under Ex.B10 to

Ex.B12. She stated that the entire extent of land in survey

No.287/1 is of 100 to 120 acres, out of which 10 acres land is

not assigned to any persons. It was suggested to her that Ex.B1

filed by her was not pertaining to her land and pertains to some

other land and Ex.A2, A3, A6, A8 do not pertain to her land,

but, she denied the same. DW2 is a neighbor of DW1, he is

having 1 ½ acres of land by the side of DW1's land and he

stated that she is in possession of land for the past 10 to 12

years. DW3 stated that he and his elder brother are having land

adjacent to the land of DW1. She is not having any other land

except the above land. Plaintiff filed IA No.268/1983 for grant of

the temporary injunction, but it was dismissed on 24.11.1983, SA.No1462of 2004

against which the appeal was preferred and it was allowed on

04.09.1987. C.R.P.No.102 of 1985 was also filed and it was

allowed by this Court in which it was held that the possession of

Kaja Annapurnamma (defendant No.2) was not in dispute, as

such there is no other alternative to the plaintiff except to

amend the suit for declaration of title and for recovery of

possession if legally his assignment was true and valid, but the

plaintiff did not take legal steps and continued the suit for

perpetual injunction. The trial Court observed in a suit for

permanent injunction the possession of suit land on the date of

suit will be considered irrespective of the ownership.

11. The trial court observed that admittedly land was

assigned to the plaintiff vide proceedings No.A4/545/80 and he

was in possession of the land since assignment and he filed

Ex.A2 to A8 to prove his possession and also Ex.A13

panchanama which shows that defendant no.2 was not in

possession of pahanies to show that he was cultivating the

lands, but she had filed land receipts to show that her husband

was cultivating the land and she did not show any pahani in

that period except 1982-83. The Revenue Divisional Officer

issued proceedings not to dispossess her from Survey No.287/1, SA.No1462of 2004

but the present extent is Ac.1.37 guntas it was also observed if

at all defendant No.2 is in possession of Ac.1.32 guntas prior to

1980, she should have taken steps for cancellation of Ex.A2 and

as she did not take any such steps, the trial Court decreed the

suit in his favour. But the first appellant Court relied upon the

observations of this Court in C.R.P. reversed the judgment of

the trial Court, against which this appeal is preferred.

12. The appellant mainly contended that the trial Court

rightly arrived at the conclusion that she is the possessor of the

suit schedule property and also raised substantial question of

law-Whether presumption be drawn contrary to entries under

Record of Rights Act? He further stated that the pahanies

pertains to the year 1983 and the suit was also filed in the same

year. Therefore, the observation of the appellate Court that the

pahanies showing the name of respondent as pattedar and

possessor, has no relevance is not proper. He further submits

that in view of the entry recording possession of the appellant in

the pahani patrikas for the year 1983, presumption has to be

drawn in his favour being in possession of the suit schedule

property land. Therefore, he requested the Court to set aside the

judgment and decree of the Appellate Court dated 29.01.1999 SA.No1462of 2004

passed in A.S.No.6 of 1994. Plaintiff filed suit for injunction and

it is for him to prove that he is in possession of the suit

schedule property as on the date of the filing the suit. Plaintiff

filed Rythwari passbook, relevant pahani patrikas and also

panchnama to show that the possession was handed over to

him. Though defendant came up with the plea that she is in

possession of the suit schedule property, she has not filed any

suit for cancellation of documents. PW2 to PW4 are parties to

Ex.A14 panchnama, in which the possession was handed over

to the plaintiff. But the first appellate Court totally erred in

appreciating the facts and reversed the Judgment of the trial

Court, relying upon the observations of this Court in C.R.P.,

when once suit itself was decided on merits, is not proper.

Therefore, this court feels that the Judgment of the First

Appellate Court is not on proper appreciation of facts and is

liable to be set aside.

13. In the result, second appeal is allowed by setting aside the

Judgment passed by the Appellate Court in A.S.No.6 of 1994

dated 29.01.1999 and confirming the Judgment of the trial

Court passed in O.S.No.59 of 1987, dated 02.03.1994. There

shall be no order as to costs.

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Pending miscellaneous applications, if any, shall stand

closed.

___________________________ JUSTICE P.SREE SUDHA Date: 11.09.2023 BV