Telangana High Court
Podila Sailaja , Lakkineni Sailaja vs Podila Sasikala on 3 April, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ Appeal Suit No.150 OF 2021
i.
% 03.04.2024
# Between:
Podila Sailaja @ Lakkineni Sailaja
Appellant
Vs.
Podila Sasikala
Respondent
! Counsel for Appellants : Sri P. Vinayaka Swamy
^ Counsel for Respondents : Ms.Vedula Chitralekha
<GIST:
> HEAD NOTE:
? Cases referred :
1. 2023 Live Law (SC) 999
2. 2009 (7) SCC 363]
3. 2003 (5) ALD 654 (DB)
4. MANU/AP/0495/2007
5. MANU/AP/0667/2006
6. AIR 2019 Supreme Court 3827
7. MANU/SC/0399/1969
8. AIR 2014 Supreme Court 937
9. AIR 1974 Supreme Court 471
2
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THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
I.A.No.3 of 2021
In and
A.S.No.150 OF 2021
JUDGMENT:
Aggrieved by the judgment and decree dated 22.03.2021
in O.S.No.74 of 2018 (hereinafter will be referred as 'impugned
judgment') passed by the learned III Additional District and
Judge (FTC-II) at Khammam (hereinafter will be referred as 'trial
Court'), the plaintiff preferred the present appeal to set aside
the impugned judgment.
2. For the sake of convenience, the parties hereinafter are
referred to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the
appellant to file the present appeal, are as follows:
a) The sole plaintiff filed O.S.No.74 of 2018 against the sole
defendant for declaration and delivery of possession in respect
of suit schedule property. The brief averments of the plaint are
as under:
i) The plaintiff is the owner of suit schedule lands. The
defendant is the wife of plaintiff's elder brother. As the plaintiff
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is residing at Hyderabad along with her husband and two
daughters for their children's education, the defendant entered
her name in revenue pahanies in respect of suit schedule lands
illegally with the help of forged documents. The plaintiff never
executed any kind of document in favour of the defendant for
the suit schedule lands.
ii) The plaintiff came to know about the alleged fraud
committed by the defendant, when she visited Tahsild office at
Mudigonda, Khammam District along with her husband. The
defendant is also trying to sell away suit land to others to
deprive the rights of the plaintiff over the suit schedule lands
forever. Hence, this suit.
b) In reply to the plaint averments, the defendant filed
written statement, the brief averments of which are as under:
i) Due to the evil desire in view of hike of value of the
property, without there being any right whatsoever over the suit
schedule property, the plaintiff has filed the suit to grab away
the suit schedule property. The plaintiff has no valid title
whatsoever to file the suit and the petition affidavit filed in
support of the suit pleadings are nothing but to cause hardship
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and inconvenience to the defendant due to internal family
disputes. The plaintiff filed the suit in order to harass and
humiliate the defendant by way of hook or crook, as such, the
plaintiff has no locus standi to file the suit.
ii) The defendant purchased the suit schedule properties
from the plaintiff for valid consideration through agreement of
sale in the year 1999 and since then the defendant is in
peaceful possession and enjoyment over the petition schedule
property.
iii) The defendant paid requisite stamp duty to the Tahsildar,
Mudigonda over the suit schedule lands and the Tahsildar
issued 13-B Form under the Telangana Rights in Land and
Pattadar Pass Books Act (hereinafter will be referred as 'the Act')
vide C.No.104/ROR/2012 dated 01.02.2012 and thereafter the
defendant obtained ROR title deed and pattadar passbook
under the Act. Ever since the date of purchase, the defendant
is in peaceful possession and enjoyment over the same and
found the name of the defendant in the revenue records.
iv) The defendant also obtained passbook vide passbook
No.T26110090034 vide Katha Nol.104 in respect of suit
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schedule properties and also the Government of Telangana
issued Rythu Bandhu Scheme grant of Rs.49,900/- through
cheques. The plaintiff sold away the agricultural land as she is
not having any interest in the agricultural lands. The plaintiff
suppressed the material facts and filed the suit with unclean
hands.
c) The defendant filed additional written statement, the brief
averments of which are as under:
i) Soon after purchase of the property, the defendant raised
mango groove over the suit schedule property and now the age
of mango groove is of more than 20 years, which clearly shows
that the defendant in possession and enjoyment as rightful
owner of the suit schedule property.
ii) The suit is barred by limitation and since the defendant
herself raised the mango groove over the suit schedule property,
which is now aged about 20 years that manifestly speaks that
since the date of planting of mango groove by the defendant, the
plaintiff lost her possession.
iii) There is no suit schedule property in existence as per the
boundaries furnished in the suit schedule property by the
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plaintiff, as such, the suit is neither maintainable in law nor on
facts. Thus, the defendant prayed to dismiss the suit.
d) Based on the pleadings of both the sides, the trial Court
has framed the following issues:
1. Whether the plaintiff has got title over the plaint schedule
property?
2. Whether the defendant had purchased the plaint schedule
properties from the plaintiff in the year 1999 under
agreement of sale?
3. Whether the plaintiff is entitled for declaration and
possession of the plaint schedule property?
4. Whether the defendant has perfected her title by way of
valid mutation in revenue records with possession?
5. Whether the suit is barred by limitation?
6. To what relief?
e) The plaintiff, in support of her contentions, examined
herself as PW1 and got marked Exs. A1 to A4. On the other
hand, the defendant got examined DWs 1 to 3 and got marked
Exs.B1 to B7. The trial Court on appreciating the evidence on
record, has dismissed the suit.
4. Aggrieved by the judgment and decree, the plaintiff filed
the present appeal to set aside the impugned judgment.
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5. Heard both sides and perused the record including the
grounds of appeal.
6. The first and foremost contention of the learned counsel
for the plaintiff is that the defendant failed to produce the
alleged agreement of sale entered with the plaintiff in the year
1999. It is further contended that the trial Court ought to have
disbelieved the version of the defendant regarding validation of
the alleged agreement of sale, instead of registered sale deed
when the parties are close relatives and always available. It is
pertinent to note that the trial Court has not considered the
documentary evidence adduced by the defendant as the
documents relied upon by the defendant are only revenue
records, which do not confer any title.
7. The trial Court in the impugned order observed that the
mutation entries do not by themselves confer title, which has to
be established independently in a declaratory suit. It is to be
seen that both the parties are relying on revenue records to
claim their ownership over the suit schedule properties. The
plaintiff in support of her contention relied upon Exs.A1 to A3
i.e. pahanies for the years 2009-2010 and Ex.A4 i.e., market
value certificate in respect of suit schedule properties. On the
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other hand, the defendant relied upon Exs.B1 to B4 i.e., 13B
Namoona, Pahani, IB Namoona, pattadar passbook. In P.
Kishore Kumar v. Vittal K. Patkar 1 the Honourable Apex
Court observed as under:
"11. It is trite law that revenue records are not documents of
title.
12. This Court in Sawarni vs. Inder Kaur and Ors.2 held that
mutation in revenue records neither creates nor extinguishes title, nor
does it have any presumptive value on title. All it does is entitle the
person in whose favour mutation is done to pay the land revenue in
question.
13. This was further affirmed in Balwant Singh & Ors vs.
Daulat Singh (Dead) by LRs and Ors.3 wherein this Court held that
mere mutation of records would not divest the owners of a land of their
right, title and interest in the land.
14. In Jitendra Singh vs. State of Madhya Pradesh and Ors. 4 ,
this Court after considering a catena of judgments, reiterated the
principle of law as follows: "6. ***mutation entry does not confer any
right, title or interest in favour of the person and the mutation entry in
the revenue record is only for the fiscal purpose."
8. In view of principle laid down in the above said citation, it
is evidently clear that entries in revenue records do not confer
any valid title over the immovable property. In the case on
hand, the defendant is none other than the wife of plaintiff's
elder brother and thus, they are closely related. The defendant
in her written statement admitted that the plaintiff was the
1 2023 Live Law (SC) 999
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owner of the suit schedule properties.
9. It is the contention of the defendant that the plaintiff has
no interest in agricultural lands and thus, sold away the
properties to her under valid sale consideration. There is no
averment on behalf of the defendant as to what is the sale
consideration. The defendant is heavily relying on the
agreement of sale, through which, she alleged to have
purchased the suit schedule properties from the plaintiff.
Admittedly, the defendant has not filed the agreement of sale
through which she is claiming ownership over the suit schedule
property. The defendant has not even disclosed as to what is
the sale consideration under which she alleged to have
purchased the suit schedule property from the plaintiff. The
defendant has not even disclosed the specific date on which the
plaintiff alleged to have executed the agreement of sale in favour
of the defendant, much less the specific month. In Suraj
Lamps and Industries Private Limited v. State of Harayana
and others 2 the Honourable Supreme Court observed as under:
"16. We therefore reiterate that immovable property can be
legally and lawfully transferred/conveyed only by a registered deed of
conveyance. Transactions of the nature of `GPA sales' or
`SA/GPA/WILL transfers' do not convey title and do not amount to
transfer, nor can they be recognized or valid mode of transfer of
immoveable property. The courts will not treat such transactions as
2 2009 (7) SCC 363]
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completed or concluded transfers or as conveyances as they neither
convey title nor create any interest in an immovable property. They
cannot be recognized as deeds of title, except to the limited extent
of section 53A of the TP Act. Such transactions cannot be relied upon or
made the basis for mutations in Municipal or Revenue Records. What is
stated above will apply not only to deeds of conveyance in regard to
freehold property but also to transfer of leasehold property. A lease can
be validly transferred only under a registered Assignment of Lease. It
is time that an end is put to the pernicious practice of SA/GPA/WILL
transactions known as GPA sales."
10. The learned counsel for the plaintiff further relied upon a
decision in Konkana Ravinder Goud and others v.
Bhavanarish Cooperative House Building Society,
Hyderabad and others 3 wherein the High Court for the
erstwhile State of Andhra Pradesh observed as under:
"62. Agreement to sell does not convey any right, title or
interest in the property. Supreme Court in K. Seetharama Reddy and
Anr. v. Hassan Ali Khan, , examined the effect of execution of an
agreement of sale. It was argued before the Supreme Court that in
India also like England on execution of agreement of sale equitable
interest in the property is created. Repelling this argument, it was held
that the English doctrine of conversion of realty into personality cannot
be bodily lifted from its native English soil and transplanted in statute-
bound India law. But, we have to notice that many of the principles of
English Equity have taken statutory form in India and have been
incorporated in occasional provisions of various Indian statutes such
as the Indian Trusts Act, the Specific Relief Act, Transfer of Property
Act etc. and where a question of interpretation of such Equity based
statutory provisions arises we will be well justified in seeking aid from
the Equity source. The concept and creation of duality of ownership,
legal and equitable, on the execution of an agreement to convey
immoveable property, as understood in England is alien to Indian Law,
3 2003 (5) ALD 654 (DB)
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which recognises one owner i.e. the legal owner. Relying upon the
decisions in Rambaran Prosad's case (supra) and Narandas
Karsondas case (supra) and, referring to Section 54 of Transfer of
Property Act, Apex Court held that ultimate paragraph of Section 54 of
the Transfer of Property Act enunciates that a contract of the sale of
immovable property does not, of itself, create any interest in or charge
on such property. The ultimate and penultimate paragraphs of Section
40 of the Transfer of Property Act create an obligation, annexed to the
ownership of immovable property, not amounting an interest in the
property. Thus, the only right a person acquires by execution of
agreement is not an interest in the property but a right to seek
enforcement of the agreement by resorting to provisions of the Specific
Relief Act and filing a suit to enforce the agreement of sale."
11. In view of the principle laid down in the above said
decisions, it is clear that a person cannot acquire rights over
the property merely by execution of agreement of sale. Even
otherwise, if at all the defendant has purchased the schedule
property from the plaintiff under agreement of sale, the
defendant ought to have requested the plaintiff or sent a legal
notice to come forward and executed the registered sale deed
and on the failure of the plaintiff to come forward for execution
of such sale deed, the defendant was at liberty to file a suit for
specific performance of agreement. But the defendant did not
choose any of the remedies available to her and instead she
mutated her name in the revenue records by suppressing the
real facts. It is not the case of the defendant that she has
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contacted the plaintiff and that the plaintiff refused to come
forward for execution of the sale deed.
12. It is the contention of the plaintiff that the agreement of
sale was of the year 1999 but the revenue certificate is of the
year 2012 and whereas the pahanies filed by the defendant
were of the year 2018. As rightly submitted by the learned
counsel for the plaintiff, though the defendant obtained
agreement of sale pertaining to the year 1999, the defendant
relied upon documentary evidence pertaining to the year 2012
and 2018 to 2020. If at all the defendant has really purchased
the suit schedule lands from the plaintiff in the year 1999, the
defendant could have mutated her name in the revenue records
immediately after 1999 and she could have filed documents
pertaining to the years immediately after 1999. Even otherwise,
the name of the plaintiff continued in revenue records under
Exs.A1 to A3 till the year 2009-2010. If at all, the plaintiff has
really alienated the suit schedule property to the defendant in
the year 1999 itself, the probability of continuance of the name
of the plaintiff in the revenue records in respect of suit schedule
property till the year 2009-2010 does not arise. There is no
dispute that the plaintiff and defendant are close relatives. In
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such circumstances, the probability of defendant obtaining sale
deed from the plaintiff is very high, however, there is no
explanation on the part of the defendant, as to why she could
not initiate steps for obtaining sale deed in respect of suit
schedule lands from the plaintiff, more particularly, when the
defendant alleged to have purchased the suit schedule property
from plaintiff in the year 1999.
13. It is the contention of the defendant that the agreement of
sale was executed in the year 1999 in the presence of elders
and in support of this contention, defendant got examined DWs
2 and 3. DW2 is the owner of the land adjacent to the suit
schedule lands. DW3 is the father of the plaintiff and father-in-
law of the defendant. DW2 in his cross examination deposed
that he do not remember the date of purchase of the property
by the defendant from the plaintiff. He further admitted that he
is not aware whether the sale transaction was a registered or
not. Though DW2 admitted that negotiation and sale
transaction took place in his presence, he did not whisper
anything about the quantum of sale consideration. DW2 has
pleaded ignorance as to whether the document, under which
the defendant is claiming her rights over the suit schedule
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property, was registered or not. DW3 in his cross examination
admitted that defendant purchased the property from the
plaintiff in the year 1999 but not under the Act. However, he
changed his version in the remaining part of cross examination
by admitting that the defendant purchased the property
through ROR. Thus, DW3 changed his version completely
according to the situation. Though DW3 stated to have been
present at the time of transaction, his presence was not
deposed by DW1 at the time of alleged transaction. Thus, the
evidence of DWs 2 and 3 is not of much help to the defendant.
14. Even for the arguments sake, if it is presumed that the
property was purchased by the defendant under the Act, as per
Section 5 (3) of Andhra Pradesh Rights in Land and Rules a
duty is cast on recording authority to issue notice in writing to
all persons whose names were entered in Record of Rights and
who were interested in or affected by proposed amendment. In
Chinnam Pandurangam v. The Mandal Revenue Officer,
Serilingampally Mandal and others 4 the High Court for the
erstwhile State of Andhra Pradesh observed as under:
"11. From the above discussion, it is clear that the requirement
of issuing notice in writing to all persons whose names are entered in
4 MANU/AP/0495/2007
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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 Rule 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 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."
15. There is no record before this Court to establish that the
plaintiff, who is alleged to have interest over the suit schedule
property, was served notice as required under Section 5(3) read
with Rule 19 and 5(2) of the Rules. There is no record before
this Court to establish that whether the MRO has conducted a
thorough enquiry as required under the Act. Thus, considering
the principle laid down in the above said citation, this Court is
of the opinion that the validity of Form - 13 (B) under the Act
i.e., Ex.B1 is doubtful.
16. It is the contention of the defendant that based on
unregistered agreement of sale, she paid requisite stamp duty to
the Tahsildar, Mudigonda over the suit schedule lands and the
Tahsildar issued 13-B Form under the Act vide
C.No.104/ROR/2012 dated 01.02.2012 and thereafter the
defendant obtained ROR title deed and pattadar passbook
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under the Act. However, it is the contention of the plaintiff that
MRO is not competent to impose stamp duty and penalty even
the RDO is also not competent to do so and only the District
Collector is competent to impose stamp duty and penalty on
any unregistered sale deed and regularise it by issuing 13-B
certificate. In G. Ramesh v. Revenue Divisional Officer 5 the
High Court for the erstwhile State of Andhra Pradesh held that
Government or the Chief Controlling Revenue Authority have
not issued any notification authorising the Revenue Divisional
Officer to exercise powers exercisable by the District Collector
under Sections 33, 38 and 40 of the Stamp Act. In view of the
principle laid down in the above said citation, it is clear that the
Revenue Divisional Officer has no authority to impound a
document and any enquiry contemplated or being conducted by
the Revenue Divisional Officer in this regard is without
jurisdiction. However, it is to be seen that as per section 5 (2) of
the Act, the MRO may require the alienee or transferee to
deposit to deposit in the office of the Mandal Revenue Officer an
amount equal to the registration fees and the stamp duty that
would have been payable had the alienation or transfer been
effected by a registered document in accordance with the
5 MANU/AP/0667/2006
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provisions of the Registration Act, 1908 as fixed by the
registering officer on a reference made to him by the Mandal
Revenue Officer on the basis of the value of the property arrived
at in such manner as may be prescribed.
17. It is the contention of the defendant that soon after
purchase of the property, the defendant raised mango groove
over the suit schedule property and now the age of mango
groove is of more than 20 years, which clearly shows that the
defendant in possession and enjoyment as rightful owner of the
suit schedule property. On the other hand, the learned counsel
for the plaintiff contended that by virtue of Exs.A1 to A3, till
2011 the name of the plaintiff was appearing in the adangal and
thus, the plaintiff has perfected her title over the suit schedule
property by way of adverse possession. In Ravinder Kaur
Grewal and others v. Manjit Kaur and others 6, it was
observed by the Honourable Supreme Court that Article 65 of
the Limitation Act shows that the plea of adverse possession is
available only to a defendant against a plaintiff. In this regard,
the learned counsel for the plaintiff relied upon an authority in
6 AIR 2019 Supreme Court 3827
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Somnath Burmna v. S.P. Raju and others 7 the Honourable
Supreme Court held that Section 9 of the Specific Relief Act is
in no way inconsistent with the position that as against a wrong
doer, prior possession of the plaintiff, in an action of ejectment,
is sufficient title, even if the suit be brought more than six
months after the act of dispossession complained of and that
the wrong-doer cannot successfully resist the suit by showing
that the title and right to possession are in a third person. In
the case on hand, there is no dispute that plaintiff was in
possession of the suit schedule property till 2011 by virtue of
Exs.A1 to A3 being the original owner. Hence, the above
contention of the defendant does not hold water. Furthermore,
the above said decisions were relied upon by the plaintiff and
defendants in connection with adverse possession. It is
pertinent to note that the plaintiff has not filed the suit based
on her adverse possession as evident from the plaint pleadings.
It is settled law that without pleadings any amount of evidence
to establish an aspect is futile exercise.
18. It is further contention of the plaintiff that though the
trial Court observed in the impugned judgment that Court is
7 MANU/SC/0399/1969
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not inclined to believe that the defendant has purchased the
suit schedule property and that it cannot be taken for granted
that she has purchased the same since simply she is in
possession of the suit schedule property, erred in dismissing
the suit. It is settled law that in a suit for declaration of title
the plaintiff needs to establish her /his own case but shall not
depend upon the weakness of the opponents. When the
plaintiff failed to establish her own case through cogent and
convincing evidence, the trial Court has no other option except
dismissing the suit rather than decreeing the suit relying on the
latches or loopholes on the part of the defendant.
19. The learned counsel for the defendant relied upon a
decision in Union of India v. Vasavi Cooperative Housing
Society Limited and others 8 wherein the Honourable Supreme
Court observed as under:
"The legal position, therefore, is clear that the plaintiff in a suit
for declaration of title and possession could succeed only on the
strength of its own title and that could be done only by adducing
sufficient evidence to discharge the onus on it, irrespective of the
question whether the defendants have proved their case or not. We
are of the view that even if the title se up by the defendants is found
against, in the absence of establishment of plaintiff's own title, the
plaintiff must be non -suited."
8 AIR 2014 Supreme Court 937
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20. In the case on hand, the plaintiff is depending upon the
weakness of the defendant. Merely because the defendant
admitted that she purchased the suit schedule property from
the plaintiff, it cannot be declared that plaintiff is the owner of
the suit schedule property. As stated supra, the plaintiff needs
to establish her own case through proper oral and documentary
evidence.
21. The learned counsel for the plaintiff relied upon a
decision of the Honourable Supreme Court in Nagindas
Ramdas v. Dalpatram Locharam @ Brijram and others 9
wherein it was observed as under:
"Admissions in pleadings or judicial admissions, admissible
under s. 58 of the Evidence Act, made by the parties or their agents at
or before the hearing of the case, stand on a higher footing than
evidentiary admissions. The former class of admissions are fully
binding on the party that makes them and constitute a waiver of proof.
They by themselves can be made the foundation of the rights of the
parties On the other hand evidentiary admissions which are receivable
at the trial as evidence, are by themselves, not conclusive. They can be
shown to be wrong."
22. In the written statement, the defendant has clearly
admitted that she purchased the suit schedule property from
the plaintiff, who is alleged to be owner of the suit schedule
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property having acquired by the plaintiff as her ancestral
property. But as seen from the record, the plaintiff has not
pleaded anywhere in the plaint as to how she acquired the suit
schedule property. Except stating that she is the owner and
pattadar of the suit schedule property, the plaintiff has not
pleaded as to how she became owner of the suit schedule
property. In the chief examination, the plaintiff as PW1
deposed that she acquired the property by way of Will from her
paternal grandmother. But on perusal of entire pleadings, the
plaintiff has not stated this aspect in the plaint or in her chief
examination. In fact, the plaint averments were very vague
without disclosing any of the crucial aspects relating to the
relief sought by the plaintiff.
23. It is the contention of the defendant that after paying
proper stamp duty, she regularized her possession over the suit
schedule property through Ex.B1 and her name got mutated in
revenue records. As per section 4 (1) of the Act, any person
acquiring by succession, partition, purchase, mortgage etc. any
right as owner, pattadar, mortgagee, occupant etc. shall
intimate in writing his acquisition to the M.R.O. within 90 days
from the date of such acquisition. In the case on hand, though
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the defendant alleged to have purchased the land in the year
1999 from the plaintiff, she kept quiet for 13 years and filed the
application beyond the period as stipulated in the Act. When
the defendant failed to file the application under Section 5-A of
the Act to the MRO within the time stipulated under the Act,
certainly Ex.B1 cannot be considered as valid.
24. On perusal of cross examination of PW1, it is evident that
the defendant is trying to disprove the ownership and title of
plaintiff over the suit schedule property. It is surprising to note
that on one hand the defendant is claiming rights over the suit
schedule proeprty through plaintiff and on the other hand the
defendant is denying the ownership of the plaintiff over the suit
schedule property. The documents under Exs.A1 to A3 relied
upon by the plaintiff cannot be treated as title deeds and they
are mere revenue entries useful for the purpose of collecting
revenue but cannot be acted upon to declare the plaintiff as
owner or possessor of the suit schedule property. It is not
always possible for a person to acquire the immovable property
only through title deeds/sale deeds. Sometimes, more
particularly in respect of agricultural lands, a person may
acquire the immovable property by way of inheritance through
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Will, partition or gift or by settlement or by grant. In the case
on hand, the plaintiff alleged to have acquired the suit schedule
property through Will, which is not filed before the Court and
not even pleaded in the pleadings.
25. It is further contention of the plaintiff that she filed
petitions to lead additional evidence and reopen the suit with
material documents but the trial Court dismissed the same on
the ground that the plaintiff did not explain the reason for delay
in filing the documents. As seen from the record, the plaintiff
filed I.A.No.5 of 2021 under Section 151 of the Code of Civil
Procedure and I.A.No.6 of 2021 under order VIII Rule 3 of the
CPC to receive the documents and I.A.No.7 of 2021 to mark the
documents, however, the trial Court dismissed those three
applications. The plaintiff filed I.A.No.3 of 2021 before this
Court under XLI Rule 27 of the Code of Civil Procedure to
receive additional documents. The defendant filed detailed
counter opposing the petition to receive additional documents
by mainly contending that the proposed documents should
have nexus to the grounds taken in the appeal and the present
set of documents are no way different from the documents
already filed by the plaintiff. The general rule is that the
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appellate Court should not look beyond the evidence presented
in the lower court's record and cannot take any additional
evidence on appeal. However, Order XLI 41 Rule 27 of the CPC
makes an exception that permits the appellate court to take
additional evidence in special circumstances, where the
additional evidence sought to be adduced removes the cloud of
doubt over the case and the evidence has a direct and
important bearing on the main issue in the suit and interest of
justice clearly renders it imperative that it may be allowed to be
permitted on record, such application may be allowed. Even,
one of the circumstances in which the production of additional
evidence under Order 41 Rule 27 CPC by the appellate court is
to be considered is, whether or not the appellate court requires
the additional evidence so as to enable it to pronounce
judgment or for any other substantial cause of like nature.
26. The plaintiff has relied upon certified copy of Form 1B
register of Tahsildar Office, Mudigonda, Khammam, certified
copies of pahani for the years from 1996-1997 to 2008-2009 in
respect of suit schedule properties. As seen from Form 1B
register, it is evident that the name of the plaintiff and nature of
possession as 'ancestral' are rounded up and the name of
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defendant is written as if she attained possession in view of
Form 13-B patta in respect of suit schedule properties. Thus, it
is clear that prior to the name of defendant, it is the name of
plaintiff appearing in the Form 1B register and
pahenies/adangals. But again it is to be noted that the
documents that are intended to be produced as additional
evidence by the plaintiff at this stage are only revenue entries,
which do not confer any title or ownership. Thus, as stated
supra, additional evidence can be permitted at the appellate
stage, only when such additional evidence removes the cloud of
doubt over the case. But the additional evidence intended to be
produced before this Court does not clear the cloud of doubt
over the case. Except stating that she could not trace the
documents at the relevant point of time, plaintiff could not
satisfy this Court to accept the additional evidence at this
appellate Stage. The additional evidence intended to be
produced before this Court are only certified copies of revenue
records, which can be obtained by the plaintiff by applying for
certified copies in the concerned department. But for the
reasons best known to the plaintiff, she did not make any such
efforts to produce the documents at the relevant point of time.
Even for the sake of arguments, if we consider those additional
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documents, there is nothing to improve in the case of plaintiff.
Hence, there are no merits to consider the petition filed under
Order XL Rule 27 of the Code of Civil Procedure i.e., I.A.No.1 of
2023, as such, it is liable to be dismissed and accordingly
dismissed.
27. In the cross examination, PW1 admitted that she has not
filed any application before the Revenue Authorities challenging
the mutation of revenue records in the name of the defendant.
When the plaintiff is aggrieved by the mutation of name
defendant in the revenue records, the appropriate remedy is to
approach Revenue Authorities and seek redressal of her
problem but not to approach the Civil Court seeking declaration
of her title over the suit schedule property, more particularly,
when she has not filed any title deeds in support of her
contention that she is the owner of the suit schedule property.
The plaintiff admitted that she never cultivated the said land at
any point of time. The plaintiff pleaded ignorance as to whether
there are two wells in the suit schedule property or not. The
plaintiff pleaded that she does not know the present physical
features of the suit schedule property. Thus, the plaintiff, who
is seeking declaration in respect of suit schedule property, does
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not even know the basic information about the suit schedule
property.
28. In view of the above facts and circumstances, this Court
is of the opinion that the trial Court has rightly dismissed the
suit of the plaintiff as the plaintiff could not establish through
convincing and cogent evidence that she is the owner of the suit
schedule property. The trial Court has rightly observed in the
impugned judgment that both the parties failed to establish
their respective contentions. Therefore, viewed from any angle
there is no illegality or irregularity committed by the trial Court
while passing the impugned judgment. The plaintiff failed to
establish any of the grounds in the appeal and thus, the appeal
is devoid of merits and it is liable to be dismissed.
29. In the result, this appeal is dismissed. There shall be no
order as to costs.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 03.04.2024
Note: LR Copy to be marked.
B/o. AS
