Telangana High Court
Smt. Maria vs G. Allen on 23 August, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
SECOND APPEAL Nos.94 OF 2009, 1332 1336, 1357 of 2008
COMMON JUDGMENT:
Aggrieved by the Judgment and Decree dated 20.10.2008
in A.S.No.8 of 2007 on the file of learned Senior Civil Judge at
Vikarabad District, these Second Appeals are filed by plaintiff,
defendant No.3, defendant Nos.8, 10 and 11 and defendant
No.9 respectively.
2. For the sake of convenience, the parties hereinafter are
referred to as they are arrayed before the trial Court.
3. The appellant in S.A.No.94 of 2003 i.e., the sole plaintiff
has filed O.S.No.54 of 1995 before the learned Junior Civil
Judge, Chevella for partition and separate possession in respect
of suit schedule 'A' and 'B' schedule properties against
defendant Nos.1 to 11. The suit was preliminarily decreed on
05.01.2007. Aggrieved by the same, defendant Nos.4 to 7 have
preferred A.S.No.8 of 2007 on the file of learned Senior Civil
Judge, Vikarabad, wherein the appeal was partly allowed by
setting aside the Judgment and Decree passed in O.S.No.54 of
1995 to the extent of 'A' schedule property. Aggrieved by the
judgment passed by the learned Senior Civil Judge, Vikarabad,
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the sole plaintiff, defendant No.3, defendant Nos.8, 10, 11 and
defendant No.9 have preferred the present Second Appeals to
set aside the impugned judgment passed by the learned Senior
Civil Judge, Vikarabad and confirm the judgment passed by the
learned Junior Civil Judge, Chevella.
4. Before going into the merits of the case, it is appropriate
to know the contentions of the respective parties as can be seen
from the pleadings placed before the learned Trial Court by both
the parties in O.S.No.54 of 1995.
5. The plaintiff filed O.S.No.54 of 1995 with the following
plaint averments:
a) The plaintiff, defendant Nos.1 and 3 and husband of
defendant No.2 by name G. Elia are real brothers. Their father
Gunjuru Venkaiah was the absolute owner, pattedar and
possessor of agricultural lands bearing sy.No.27 admeasuring
Ac.5.39 guntas, Sy.No.77 admeasuring Ac.16.06 guntas total
admeasuring Ac.22.05 guntas in residential house situated at
Kanakamamidi village, Moinabad Mandal, Ranga Reddy
District. Gunjuru Venkaiah died in the year 1976 leaving
behind the plaintiff, defendant Nos.1 and 3 and husband of
defendant No.2 by name G. Elia as his legal heirs and
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successors.
b) Thereafter, the plaintiff and his brothers were in joint
possession and enjoyment of the suit properties. Revenue
authorities granted succession and mutation of patta of
schedule "A" properties and implemented the same in paisal
patti for the year 1978-79. The second son of G. Venkaiah i.e.,
G. Elia died in the year 1989 leaving behind him, his widow
Smt. G. Rajamma, who is defendant No.2 as his legal heir.
c) Defendant No.1 having fabricated unregistered sale
document purported to the year of 1953 initiated proceedings
before the MRO, Moinabad for validation falsely claiming that
he purchased suit schedule property. After due enquiry, M.R.O.
rejected his claim file order dated 26.10.1994 in proceedings
No.B/5048/1989. In the presence of elders, he demanded the
defendants to effect partition of the suit schedule properties into
four equal shares. The defendant No.1 is making attempts to
alienate the suit schedule property to third parties. Hence, the
plaintiff filed the suit for partition of suit schedule 'A' and 'B'
schedule properties into four equal shares and for allotment of
one such share to the plaintiff.
6. During the pendency of the suit, defendant No.1 died and
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thereby his legal representatives were brought on record as
defendant Nos.4 to 6, which filed their written statement and
the brief averments of which are as under:
a) G. Venkaiah was an agricultural coolie having four sons
and four daughters. Defendant No.1 became a teacher in
Methodist Boys High School, Abids and with his earnings prior
to 1950 itself a stationary shop was established in the name of
G. Harris and Sons. The wife of defendant No.1 also worked as
Nurse in Nizam palace. With the earnings of wife and husband,
they purchased suit 'A' schedule property through an
unregistered sale agreement on 22.05.1953 from Konda
Satyanarayana Reddy for a sum of Rs.1800/-. Konda
Satyanarayana also gave an affidavit before the revenue
authorities stating that the suit 'A' schedule property was
purchased by G. Harris. Defendant No.1 used to cultivate the
lands and in possession and enjoyment of the suit 'A' schedule
property.
b) The grandfather of these defendants passed away in the
year 1976 leaving behind plaintiff, defendant No.1, husband of
defendant No.2, defendant No.3 and defendant nos.8 to 11.
Plaint 'A' schedule property is the self acquired property of G.
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Harris i.e., defendant No.1. The plaintiff is not having any
cause of action against these defendants and suit valuation and
court fee paid thereon is not correct and thus, prayed to
dismiss the suit.
7. Defendant No.7, who is another son of defendant No.1,
filed memo adopting the written statement filed by defendant
Nos.4 to 6.
8. Defendant Nos.8 to 11, who are the daughters of late G.
Venkaiah, were impleaded as parties to the suit by virtue of an
order dated 08.10.1989 in I.A.No.43 of 1998 and they filed their
written statement, the brief averments of which are as under:
a) Late G. Venkaiah, who was the owner and possessor of
plaint 'A' and 'B' schedule properties, died in the year 1976
leaving behind four sons and four daughters i.e., plaintiff,
defendant Nos.1, 3, husband defendant No.2 and defendant
Nos.8 to 11. The schedule properties are self acquired
properties of G. Venkaiah. After the death of G. Venkaiah, the
defendants along with the plaintiff are in joint possession and
enjoyment of schedule properties. A succession is granted in
respect of suit 'A' schedule property by MRO and the same was
implemented in the year 1978-79. Paisal Pathi is absolutely
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false. It seems by colluding with revenue officials, succession
order was obtained and as a matter of fact defendant Nos.8 to
11, who are daughters of G. Venkaiah also succeeded to the
suit schedule properties being the legal heirs but the MRO
without enquiring the matter properly passed the alleged
succession orders without any notice to the defendant Nos.8 to
11, as such, the alleged orders have no value and not binding
on these defendants.
b) Defendant Nos.8 to 11 being daughters of G. Venkaiah
are also entitled for their legitimate share i.e., 1/8th share to
each of these defendants. Plaintiff and defendant Nos.1 to 3
filed the above collusive suit with a view to deprive the
legitimate share of these defendants. The plaintiff never
approached these defendants nor demanded for any partition
and the alleged date of cause of action is only an imaginary one
for filing of the suit.
c) The valuation made by the plaintiff is incorrect and in fact
the suit lands are worth more than Rs.50,000/- per acre and
thus, prayed to dismiss the suit.
9. Based on the above pleadings, the learned trial Court
framed as many as five issues including two additional issues,
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which are as under:
"1. Whether the plaintiff is entitled for
partition of suit schedule property as prayed
for?
2. Whether the plaintiff is entitled to 1/4th
share claimed in the plaint?
3. To what relief?
4. Whether Exs.B1 to B3 are not admissible
on the ground of fabricated one?
5. Whether Ex.X-5 is admissible or not, by
way of mode of proof?"
10. On behalf of plaintiff, PWs 1 and 2 were examined and got
marked Exs.A1 to A19. On behalf of defendants, DWs 1 to 4
were examined and got marked Exs.B1 to B8. On behalf of
Court, Exs.X1 to X6 were marked. After considering the rival
contentions, the learned trial Court passed a preliminary decree
entitling plaintiff, legal heirs of defendant No.1 i.e., defendant
Nos.4 to 7, defendant No.2, Defendant No.3, defendant Nos.8 to
11 to 1/8th share each. Aggrieved by the same, the legal
representatives of defendant No.1 i.e., defendant Nos.4 to 7
have filed A.S.No.8 of 2007 on the file of learned Senior Civil
Judge, Vikarabad, wherein the preliminary decree passed by
the learned Junior Civil Judge, Chevella in O.S.No.54/1995 was
set aside to the extent of suit 'A' schedule property. Aggrieved
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by the same, the sole plaintiff, defendant No.3, defendant Nos.8,
10, 11 and defendant No.9 have preferred the present Second
Appeals to set aside the impugned judgment passed by the
learned Senior Civil Judge, Vikarabad and confirm the
judgment passed by the learned Junior Civil Judge, Chevella.
11. Substantial questions of law raised in S.A.No.94 of 2003
are as under:
a) Whether the appellate court is justified in
relying on Ex.B1, which is an unregistered deed for
the purpose of rebutting the presumption to be drawn
on the basis of Ex.A1.
b) In view of the finding of the learned Junior Civil
Judge that Ex.B1 is not admissible in evidence
whether the Appellate Court is justified in coming to a
conclusion that the suit schedule property is not a
joint family property.
c) The findings of the Appellate Court to the effect
that the suit schedule property is the self acquired
property of the father of the defendant Nos.4 to 7 is
perverse and contrary to the material on record.
12. Substantial questions of law raised in S.A.No.1332 of
2008 are as under:
a) The lower appellate court failed to see that late
Venkayya had perfected his title by adverse
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possession from 1953 onwards which is evident from
Faisalpatti of 1954 -1955. Late Venkayya has been
shown as pattadar in pahani, which is nothing but
title to the land has been recognized under Section 2
(11) of A.P. (Telangana Area) Land Revenue Act, 1917
Fasli.
b) The appellant and respondent No.1 and LRs of
late Harris and Elia also perfected their title through
their father Venkayya.
c) The lower appellate court erred in reversing the
finding of the Trial Court by holding that the schedule
property is the self acquired property of defendant
No.1, which is totally devoid of merits.
d) The lower appellate Court ought to have seen
that under Ex.A2 Pahani 1988-89, the respective
shares of four brothers were shown and recorded in
the revenue records, where equal shares are given to
brothers. The conduct of G. Harris also amounts to
estoppel and operates against him.
e) The lower appellate court failed to see that the
alleged agreement of sale Ex.B1, cannot be admitted
as document as it is suffering from the following
infirmities.
f) The purchaser name is not disclosed
g) The agreement not witnessed by any person.
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h) The document is unregistered.
i) The document does not contain any schedule
or boundaries or survey numbers.
j) The time fixed for registration i.e., 8 months
lapsed long back and any suit based on the said
document is barred by limitation.
k) The lower appellate court grossly erred in
relying on Ex.B1 an unregistered and void sale
agreement inadmissible in evidence by virtue of the
prohibition contained in Section 54 of the Transfer of
Property Act, 17 (b) and 49 of the Registration Act.
l) The lower appellate court erred in relying on
the declaration of Konda Satyanarayana Reddy filed
before MRO which cannot be treated as conferring
title, when the agreement of sale is unregistered.
13. Substantial questions of law raised in S.A.No.1336 of
2008 are as under:
a) Whether the document whose recitals do not
contain the name of the purchaser, seller,
consideration, boundaries of the schedule property
and the factum of delivery of possession of the
property which constitutes the essential ingredients
of sale can be termed as sale deed under the Transfer
of Property Act, and basing upon such documents,
whether title to property can be granted?
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b) Whether one son of a person, who died
intestate can exclude his own brothers and sisters for
succeeding to the property of their father under
Indian Succession Act, 1925?
14. Substantial questions of law raised in S.A.No.1357 of
2008 are as under:
a) That in a partition suit the burden of proving the
fact as to whether the suit schedule properties are self
acquired properties of the defendant lies on the
defendant or the plaintiff?
b) That a Court acting in its original jurisdiction
can record a finding on presumptions and
assumptions when the said finding is contrary to the
pleadings or not supported by any pleading?
c) Whether the entries in Khasra Pahani can be
overlooked on the basis of presumptions and
assumptions?
d) Whether the Ex.B1 can be admitted in evidence
for the purpose of deciding the title for want of
registration as required under Section 17 of the
Registration Act.?
e) The appellate Court erred in not considering the
fact that till the death of late Sri G. Venkaiah, the
entries in the revenue records reflected that he is the
pattedar?
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f) Whether Ex.B1 was proved in accordance with
the provision of the Indian Evidence Act, 1872?
g) Whether the appellate Court was justified in
reversing the judgment of the trial Court without even
discussing the oral evidence on record?
h) Whether Ex.B1 can be treated as Sale Deed even
though it does not satisfy the requirement as
contemplated under Section 5 of the Transfer of
Property Act, 1882?
i) Whether the appellate Court was justified in not
deciding the issue of admissibility and genuineness of
Exs.B1 to B3 even though a specific issue was framed
and decided by the trial Court?
15. Heard both sides and perused the record including the
grounds of Appeal.
16. As can be seen from the record, most of the substantial
questions of law raised by the appellants are with regard to
documents relied upon by the defendant No.1 and his legal
heirs. There is no dispute with regard to the relationship
between the parties. Though there are several parties in the
suit, they can be divided into two branches i.e., one branch
(defendant No.1 and his legal heirs) claiming that suit 'A'
schedule property is the self acquired property of defendant
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No.1 and the other branch (plaintiff, defendant No.2, defendant
No.3, defendant Nos.8 to 11 and their respective legal heirs)
claiming that suit 'A' schedule property is the self acquired
property of late G. Venkaiah. There is no dispute with regard
to the preliminary decree passed by the learned Trial Court in
respect of partition of suit 'B' schedule property between the
parties. Thus, we are only concerned with suit 'A' schedule
property in these appeals. Hence, now the only point to be
adjudicated in these appeals is whether suit 'A' schedule
property is self acquired property of defendant No.1 or the self
acquired property of late G. Venkaiah.
17. The crucial documents to resolve the above dispute
between the parties are Ex.A1 and Ex.B1. The plaintiff relied
upon Ex.A1 Khasra Pahani for the year 1954-55 to establish
that late G. Venkaiah is the owner and possessor of suit 'A'
schedule property. On the other hand, defendant No.1 relied
upon Ex.B1 unregistered sale agreement to show that
defendant No.1 purchased the suit schedule property from
Konda Satyanarayana.
18. It is the contention of the plaintiff that Ex.B1, which is an
unregistered document, cannot be marked in evidence and even
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if marked in evidence by mistake, could not be acted upon. In
this connection, reliance is placed on a decision in
Krishnakumari v. K. Suresh Kumar 1, wherein the High Court
for the State of Karnataka at Bengaluru observed that there is a
complete and express bar under sub-section (1-A) of Section 17,
which requires that, in such agreement whereby physical
possession of the property is delivered, it would require to be
registered compulsorily. Further, it is the contention of the
plaintiff that immovable property worth more than Rs.100/- has
to be through registered documents and in this regard, reliance
is placed on decision of High Court of Madras in K.
Narayanaswamy Pillai v. Smt. Kannamal 2 and also the
decision of High Court of Karnataka in Shrishail v. Tippawwa
and others 3. Learned counsel for the plaintiff while relying
upon a decision of the Honourable Supreme Court in Suraj
Lamp Industries Private Limited v. State of Haryana 4
submitted that an Agreement of sale or AGPA does not confer
title over a property. Learned counsel for the plaintiff further
relied upon a decision in K. Seetharama Reddy and another
1 MANU/KA/0736/0015
2 2014 SCC Online Mad 1260
3 MANU/KA/2174/20174
4 MANU/SC/1222/2011
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v. Haasan Ali Khan and others 5, wherein it was observed by
the High Court for the erstwhile State of Andhra Pradesh that
under Section 5-A of the A.P. right in Land and Pattadar Pass
Books Act, 1971, an agreement of sale simplicitor is not enough
for regularisation of the document under Section 5-A of the said
Act. A similar view was taken by High court for the State of in
Makhala Kotilingam by LRs v. Joint Collector, R.R.
District 6. In Rangammal v. Kuppuswami and another 7 the
Honourable Supreme Court observed that the burden of proving
a fact always lies upon the person who asserts it and until such
burden is discharged, the other party is not required to be
called upon to prove his case.
19. There is absolutely no doubt in the principles laid down
in the above said decisions. It is the plaintiff, who has
approached the Court for partition of the properties claiming
that the suit schedule properties as joint family properties. It is
not the defendant No.1, who has filed the suit for declaration of
his title over the suit schedule 'A' property. Since it is a suit
brought up by the plaintiff for partition, the burden lies upon
him to establish that suit 'A' schedule property is joint family
5 2002 SCC Online AP 1036
6 2005 (2) ALD 838
7 (2011) 12 Supreme Court Cases 220
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property. A proof of the existence of a joint family does not lead
to the presumption that property held by any member of the
family is joint, and the burden rests upon anyone asserting that
any item of property was joint to establish the fact. But wherein
if it is established that the family possessed some joint property,
which from its nature and relative value may have formed the
nucleus from which the property in question may have been
acquired, the burden shifts to the party alleging self-acquisition
to establish affirmatively that the property was acquired without
the aid of the joint family property.
20. The Honourable Supreme Court in Bhagwan
Dayal v. Reoti Devi, Shrinivas Krishnarao Kango v. Narayan
Devji Kango 8 and D.S. Lakshmaiah v. V. Balasubramanyam 9,
observed that there is no presumption of a property being joint
family property only on account of existence of a joint Hindu
family. The one who asserts has to prove that the property is a
joint family property. If, however, the person so asserting proves
that there was nucleus with which the joint family property
could be acquired, there would be presumption of the property
being joint and the onus would shift on the person who claims
8 (1955) 1 SCR 1
9 (2003) 10 SCC 310
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it to be self-acquired property to prove that he purchased the
property with his own funds and not out of joint family nucleus
that was available. Therefore, the law is well settled that the
burden lies upon the person, who alleges the existence of the
Hindu undivided family to prove the same, and if the persons so
asserting proves that there was no nucleus with which the joint
family property could be acquired, there would be presumption
of the property being joint and the onus would shift on the
person who claims it to be self-acquired property to prove that
he purchased the property with his own funds and not out of
joint family nucleus that was available.
21. In the present case, the plaintiff asserts that suit 'A'
schedule property is self acquired property of G. Venkaiah and
after the demise of his father, suit 'A' schedule property is
inherited by the descendants of G. Venkaiah. In order to
establish the same, the only document, which is being relied
upon by the plaintiff is Ex.A1 Khasra Pahani for the year 1954-
55. At this juncture, learned counsel for the defendant Nos.4 to
7 relied upon a decision in Prabhagiya Van Adhikari Awadh
Van Prabhag v. Arun Kumar Bhardwaj (dead) through legal
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representatives and others 10 wherein the Honourable
Supreme Court observed that revenue record does not confer
title to the property nor day they have any presumptive value on
the title. In Union of India and others v. Vasavi Cooperative
Housing Society Limited and others 11 the Honourable
Supreme Court observed as under:
"This Court in several judgments has held that the revenue
records do not confer title. In Corpn. of the City of Bangalore v. M.
Papaiah this Court held that:
"5. .... It is firmly established that the revenue
records are not documents of title, and the question
of interpretation of a document not being a
document of title is not a question of law."
22. However, in Joint Collector Ranga Reddy v. D. Narsing
Rao 12 the Honourable Supreme Court observed that Khasra
Pahani is the basic record of rights prepared by the Board of
Revenue Andhra Pradesh in the year 1954-55 and as per
Regulation No.13 any entry in the said record of rights shall be
presumed to be true until the contrary is proved. In the 2nd
edition (1997) of "The Law Lexicon" by P.Ramantha Aiyer,
Khasra is described as register recording the incidents of tenure
and is a historical record and that it would serve the purpose of
a deed of title, when there is no other title deed. In G.
10 AIR 2021 Supreme Court 4739
11 (2014) 2 Supreme Court Cases 269
12 MANU/SC/0024/2015
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Satyanarayana v. Government of Andhra Pradesh 13 the High
Court for the erstwhile State of Andhra Pradesh observed as
under:
"From the lengthy discussion on the land tenures undertaken
hereinbefore, it could be deduced that the genesis of ones title is
traceable to his possession. A registered occupant of the land, both under
the ryotwari tenure and also under the estates, is recognised as a person
holding rights over the land. Subject to payment of land revenue till the
land is transferred to another person, a registered occupant was
conferred with the right of selling the land to any third party without
restrictions. Thus, the recognised possession can be said to be the source
of a persons title. The possession of a person is reflected in the records.
As noticed earlier, the A-Register/Diglot in Madras Presidency and the
Sethwar in Telangana Area was the mother of all the Registers. Though
the primary intention of preparing this Register was to classify the lands
according to the soil and potentiality and assess the revenue, recording
the names of the persons in occupation was an equally important object
in preparing this Register, for, without recording the names of the persons
in occupation, the Government will not be able to collect revenue. All the
revenue records such as Registers A to E and monthly and annual
Accounts No.1 to 4 and No.10 Accounts in Andhra area and Wasool
Baqui, Khasra Pahani, Pahani Patrik, Choufasla, Faisal patti etc.,
discussed hereinbefore, in Telangana Area are based on the basic
register of Diglot/Sethwar. Therefore, if a persons name is recorded as
an occupant or pattadar in these records, a necessary presumption
would arise in his favour or in favour of the persons who claim through
him that he holds title to the land. In case of a dispute between two
private parties, this presumption can be rebutted by the rival claimant by
producing better evidence, such as subsequent partitions, mutation in the
revenue record and registered sale transactions etc. In many cases, after
preparation of Diglot/Sethwar, changes in ownership of land may occur.
In such cases, a person who sets up rival claim must be able to show
that either he or his predecessor-in-title derived right through sale deeds
supported by entries in revenue record."
23. Further, in Shikharchand Jain v. Digamber Jain Praband
Karini Sabha and others 14 the Honourable Supreme Court observed
that Khasra is a record of right according to Section 45 (2) of the
Central Provinces Land Revenue Act, 1917 and Section 80 (3) of that
Act provides that entries in a record of right shall be presumed to be
13 MANU/AP/0431/2014
14 (1974) 1 Supreme Court Cases 675
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correct unless the contrary is shown. This provision raises a
presumption of correctness of Khasra entries. In Mylaram Lachaiah
and others v. Nafeezunnisa Begum and another 15 the High Court
for the erstwhile State of Andhra Pradesh observed that once it is
held that Khasra pahani of which the correction was sought by the
1st respondent is the record of rights prepared under the regulation,
the Collector under Section 15 (2) of the Regulation has the right to
correct the entries made in the record of rights. In Veera
Macheneni Ranga Rao v. State of A.P. 16 this Court observed as
under:
"As per the ratio laid down in G.Satyanarayana case (4
supra) while dealing with the Telangana Area Land Census
Rules, 1954, the erstwhile High Court of Andhra Pradesh held at
para No.83 as under:
83. These rules were made under Section 97 of
the Tenancy Act. Under these Rules, land census, as
defined by Rule 2(f) of the Rules, was taken up by the
Government. The important record i.e., Khasra Pahani
is a document prepared under these Rules. Rules 8 to
13 speak of provisional Khasra Pahani and Rule 14
speaks of fair copy of Khasra Pahani. The said record
is an important record and entry as pattadar in the
same would confer absolute title over the land
occupied."
24. In view of the principle laid down in the above said
decisions, it is clear that a Khasra Pahani would serve the
purpose of a deed of title, when there is no other title deed and
that entries in a record of right shall be presumed to be correct
15 (1972) ILR 652
16 (2021) 09 TEL CK 0063
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unless the contrary is shown. In Partap Singh (dead) through
legal representatives and others v. Shiv Ram (dead through
legal representatives 17 the Honourable Supreme Court
observed that the presumption of truth attached to the record of
rights can be rebutted only if there is a fraud in the entry or the
entry was surreptitiously made or that prescribed procedure
was not followed. It was further observed that it will not be
proper to rely on the oral evidence to rebut the statutory
presumption as the credibility of oral evidence vis-a-vis
documentary evidence is at a much weaker level.
25. The plaintiff, who was examined as PW1, deposed that
suit schedule properties are self acquired properties of his late
father having been acquired from one Satyanarayana Reddy.
But as seen from Ex.A1 Khasra Pahani, the father of PW1 was
shown as occupier of the suit 'A' schedule property but not as
purchaser of suit 'A' schedule property. As per the admission of
PW1, Konda Satyanarayana Reddy is the original pattedar of
suit 'A' schedule property. Further, the person from whom the
father of PW1 alleged to have purchased suit 'A' schedule
property i.e., Konda Satyanarayana Reddy declared in the
17 (2010) 11 Supreme Court Cases 242
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proceedings before the Mandal Revenue Officer that he
alienated suit 'A' schedule property to defendant No.1. Though
PW1 deposed that his father purchased the suit 'A' schedule
property from one Satyanarayana Reddy, he failed to adduce
any evidence as to when (date/month/year) the said land was
purchased, what was the sale consideration amount involved in
the said transaction and what was the mode of acquisition etc.
If at all father of PW1 purchased the suit 'A' schedule property
from Satyanarayana Reddy, there could have been some
material under which the sale transaction took place between
PW1 and Satyanarayana Reddy. PW1 pleaded ignorance about
execution of any document at the time of purchase of suit 'A'
schedule property.
26. It is to be observed that column No.14 of a Khasra Pahani
shall reveal the way in which the occupant in column No.13
came to hold the land. In the present case, as can be seen from
Ex.A1, column No. 14 discloses that G. Venkaiah is the
pattedar. There is no mention as to how he became pattedar of
the said land. When G. Venkaiah came into possession of the
said land by way of purchase from the original pattedar, then
column No. 14 of Ex.A1 ought to have revealed that G.
Venkaiah came to hold the land as 'purchaser' but not as
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
'pattedar'. As per the instructions issued by the Board of
Revenue (Land Reforms), care must be taken to show how the
occupant's right is derived from pattedar. The transactions of
sale, gift, partition etc., which might have taken place before the
right finally devolved upon the occupant of column No. 13
should be indicated. But in the present case, there is no
indication or mention either shortly or briefly as to how G.
Venkaiah came to hold the land from the original pattedar. In
fact, G. Venkaiah, himself was shown as pattedar at column
No.14. Further, entry should show whether the transaction is
covered by a registered or an unregistered document. The
names of persons from whom the right is derived and the
amount of consideration paid should also be indicated. If the
ownership of a certain land changes, the name of previous
owner may be cancelled by drawing vertical parallel lines across
the entry and the name of new owner shall be written below it.
In the present case, there is no mention as to how the sale
transaction took place between original pattadar Konda
Satyanarayana Reddy and G. Venkaiah and as to what is the
sale consideration for the said transaction. Ex.A1 does not even
disclose the name of the vendor from whom G. Venkaiah alleged
to have purchased the suit 'A' schedule property.
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
27. In case, where the right or title cannot be ascertained by
production of any document, but where the land is
undisputedly in possession of the occupant, the words 'by long
standing wahiwat or usage' or 'title not known' shall be added.
In the case on hand, at one instance it is being contended that
the sale was oral and at another instance it is being contended
that the sale was by way of registered document and moreover
no material is filed on behalf of the plaintiff to any extent to
show that G. Venkaiah purchased the suit 'A' schedule property
from Konda Satyanarayana Reddy, who is the original pattedar.
It is also to be noted that if there are any oral transactions,
special care is needed to be taken because such oral
transactions can only be recognised if clearly and undisputedly
admitted by all parties concerned specially by the person whose
right is adversely affected. In such cases, the words 'by oral
agreement' should be written. In the present case, the parties
concerned, especially the person, whose right is adversely
affected, is not admitting the sale. Even for the sake of
arguments, if such interested person has agreed, there is no
mention of "by oral agreement" in Ex.A1 Khasra Pahani to
establish that a sale took place orally between G. Venkaiah and
Konda Satyanarayana Reddy, who is the original pattedar.
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
28. On a careful perusal of Ex.A1 Khasra Pahani, it does not
disclose most of the details as per the prescribed procedure.
Except the name of pattedar, extent, survey number, nature of
land, most of the columns are kept blank. In view of the above
facts and circumstances, any amount of suspicion arises about
the genuineness of Ex.A1, more particularly, when the plaintiff
and his other brothers failed to establish as to how their father
acquired the suit 'A' schedule property. It appears that the said
Khasra Pahani might have been prepared without following the
due procedure prescribed under the Act without even inspecting
the schedule land by the concerned officials.
29. Except filing of revenue records, plaintiff did not file any
other document to establish that the suit 'A' schedule property
is self acquired property of his father. It is the contention of the
plaintiff that the names of plaintiff, husband of defendant No.2,
defendant No.3 were recorded as pattedars and possessor of
plaint 'A' schedule property by virtue of the orders passed by
the MRO, Moinabad in the year 1989 on the ground that
plaintiff, husband of defendant No.2, defendant No.3 being legal
representatives of their father G.Venkaiah have their respective
shares in suit schedule 'A' property. If such is the case, then
the name of defendant No.1, who is one of the sons of G.
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
Venkaiah is also liable to be entered in the revenue records in
respect of property held by G. Venkaiah. Admittedly defendant
No.1 was not even served with any notice as required under the
A.P. ROR Act in the said proceedings before the MRO,
Moinabad, which is against one of the prime principles of 'audi
alteram pattm".
30. Though the application of defendant No.1 for
regularisation of unregistered sale deed and updation of his
name in records vide proceedings No.B/5048/1989 was
rejected, the defendant No.1 preferred an appeal before the
Revenue Divisional Officer, Chevella and accordingly the matter
was remanded to the Mandal Revenue Officer, Moinabad for
conducting a detailed enquiry.
31. The cross examination of PW1 conducted on 07.08.2003
by learned counsel for defendant Nos.4 to 7 discloses that PW1
knew the fact of purchase of suit 'A' schedule property by his
father from Konda Satyanarayana Reddy prior to 1953. But in
the cross examination of PW1 conducted on 22.01.2004 by
learned counsel for defendant Nos.4 to 7, PW1 deposed that his
father purchased the plaint 'A' schedule property from K.
Sathyanarayana Reddy in the year 1953. At one point of time
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
PW1 deposed that his father cultivated the lands of Konda
Satyanarayana Reddy. There is no clarity as to whether father
of PW1 has cultivated the lands of Konda Satyanarayana Reddy
on lease or purchased the lands from Konda Satyanarayana
Reddy. Thus, the very own versions of PW1 on different dates of
his cross examination are contradicting with each other. In
Ramesh Kumar and another v. Furu Ram and another 18, the
Honourable Supreme Court observed that it is well settled that
no amount of evidence contrary to the pleadings can be relied
on or accepted. It was further observed that different versions
clearly demonstrate fraud and misrepresentation.
32. PW1 is aware that from 1980-86 the name of defendant
No.1 is entered in the revenue records as pattadar. But PW1
along with husband of defendant No.2 and defendant No.3 filed
application before the ROR authority in the year 1988-89
during jamabandi of Kanakamamidi Village asking as to why
their names were not entered in the revenue records. There is
no explanation from plaintiff, as to what prevented him from
taking steps immediately against entering the name of
defendant No.1 in the revenue records in respect of suit 'A'
18 (2011) 8 Supreme Court Cases 613
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
schedule property. PW1 admitted that he has not filed any
written application for mutation of their names in the revenue
records. If entering the name of defendant No.1 in the revenue
records as pattadar from 1980-86 in respect of suit 'A' schedule
property is illegal as per the version of PW1, then certainly PW1
alleging to have share in suit 'A' schedule property, would have
filed an application for mutation of his names and names of
other defendants in revenue records.
33. Defendant No.10, who is sailing with plaintiff, was
examined as DW1 and she gone to the extent of deposing that
there is a document to establish that plaint 'A' schedule
property belongs to his father having been purchased under
registered sale deed from Konda Satyanarayana. But the
plaintiff contends that the sale of suit 'A' schedule property took
place between G. Venkaiah and Konda Satyanarayana under
oral agreement. It is the contention of the plaintiff that the
statements of Konda Satyanarayana and others before the
Mandal Revenue Officer cannot be taken into consideration as
the said statements are not admissible as per the provisions of
Evidence Act. In Partap Singh's case (supra) the Honourable
Supreme Court observed as under:
"The proceedings before the Revenue Officer for correction
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
of revenue record are summary in nature. The statements
recorded by the Revenue Officer during the proceedings for
correction of revenue record are not per se admissible in evidence.
May be the evidence of the witnesses could be used to confront
the witness being a previous statement if such a statement is
made on oath. Therefore, the reference of corrections of Khasra
girdawari proceedings is wholly unwarranted when such entries
are not proved to be incorrect."
34. In general, the reason for not considering the statements
recorded before the Mandal Revenue Officer, Moinabad is that
the said statements will be recorded without administering oath
and the said statements will not be subjected to cross
examination. It is not the case of the plaintiff and other
defendants that they are not aware of the proceedings before
the Mandal Revenue Officer, Moinabad. The evidence of PW1
discloses that though he and defendant No.3 participated in the
proceedings, they did not avail an opportunity to engage an
advocate to contest the said proceedings. The statements of
Konda Satyanarayana, Mallamma, Ramaiah and Veeraiah were
recorded before the Mandal Revenue Officer, Moinabad. The
defendant Nos.4 to 7 got examined one P. Narayana as DW3,
who was the then Mandal Revenue Officer, Moinabad, wherein
the original pattadar Konda Satayanarayana Reddy gave
statement under Ex.X2. DW3 deposed that Ex.X2 statement
was given by Konda Satyanarayana Reddy before him and the
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
same was recorded by him in his own hand writing and
similarly he has recorded the statement of Mallamma, Veeraiah,
Ramaiah under Ex.X5. Though plaintiff contended that Exs.X2
and X5 cannot be considered as admissible evidence, by
considering the evidence of DW3, it can be said that Exs.X2 and
X5 are genuine. Through this witness defendant Nos.4 to 7
intended to prove that defendant No.1 has filed an application
for regularisation of agreement sale under Section 5-A of the
ROR Act. At the cost of repetition, it is made it clear that this
court is not here to decide the title or ownership of defendant
No.1 over suit 'A' schedule property. The application of
defendant No.1 for regularisation of agreement of sale was filed
before the MRO, Moinabad and the said application was
rejected and aggrieved by the same, defendant No.1 preferred
an appeal before the Revenue Divisional Officer, wherein the
matter was remanded back to Mandal Revenue Officer,
Moinabad for deciding the matter afresh based on the record.
However, this Court has no jurisdiction to make comment on
the above said aspects, more particularly in a suit filed by the
plaintiff for partition.
35. According to the evidence of plaintiff/PW1, during
Jamabandi of Kanakamamidi, Konda Satyanarayana made a
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
statement to the effect that since G.Venkaiah died, the land is
to be given to his four sons and based on the said statement the
names of four sons of G. Venkaiah were entered in revenue
records. But surprisingly, the plaintiff failed to produce the said
statement alleged to have been given by Konda Satyanarayana
before the Mandal Revenue Officer, Moinabad. It is the
contention of the plaintiff that after recording the statement of
K. Satyanarayana Reddy, their names were entered and at that
time defendant No.1 was not called. In Chinnam
Pandurangam v. Mandal Revenue Officer, Serilingampally
Mandal and others 19 the High Court for erstwhile State of
Andhra Pradesh observed that 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. In the present case,
though defendant No.1 has interest over suit schedule 'A'
property, notice was not issued to him before entering the
names of plaintiff and his other brothers in the revenue records
19 AIR 2008 Andhra Pradesh 15
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
in respect of suit schedule 'A' property, which is nothing but
violation of principles of natural justice. On the other hand, the
defendant No.1 could produce the statement under Ex.X2 given
by original pattadar of plaint 'A' schedule property i.e., Konda
Satyanarayana before the Mandal Revenue Officer, Moinabad,
wherein it was stated that he alienated plaint 'A' schedule
property to defendant No.1 for a sale consideration of Rs.1800/-
36. In the present case, despite participating in the
proceedings before the Mandal Revenue Officer, Moinabad, the
plaintiff failed to adduce any material to show that the
statement given by Konda Satyanarayana under Ex.X2 is not
true. Though Exs.X2 and X5 cannot be considered as
substantial evidence, they can be considered for corroborating
or confronting it to the witnesses to elicit certain information.
Though the plaintiff contended that they did not get any
opportunity to deny the statement given by Konda
Satyanarayana under Ex.X2, the plaintiff got addressed a letter
to the Mandal Revenue Officer, Moinabad under Ex.X1 not to
consider the statement of Konda Satyanarayana. Though
plaintiff/PW1 admitted in his initial part of cross examination
that he does not know whether K. Satyanarayana Reddy gave
any evidence before the MRO stating that he has sold the
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
property to Defendant No.1 for Rs.1800/-, when PW1 was
confronted with statement of K. Satyanarayana Reddy under
Ex.X2, he admitted that in response to Ex.X2 he along with
defendant No.3 submitted Ex.X1 to the Mandal Revenue Officer,
Moinabad not to consider Ex.X2. Thus, it cannot be said that
plaintiff was not having an opportunity to deny the statement
given by Konda Satyanarayana under Ex.X2.
37. The plaintiff as PW1 pleaded ignorance about the revenue
records to show that his father cultivated the lands of Konda
Satyanarayana Reddy on lease. PW1 does not know the name
of his grandfather. PW1 does not know the age of his father at
the time of death of his father. PW1 does not know as to what
was the sale consideration paid by him for purchase. PW1
admitted that he came to know about the said facts on his own
as he has observed during his school going days. Giving
importance to reiteration of observations during school days of
a person at the age of 75 years is of no use, more particularly,
when the plaintiff/PW1 has pleaded ignorance of most of the
relevant facts. Moreover, the evidence of PW1 is filled with lot of
omissions and contradictions and apart from that such
evidence is also not being corroborated with the evidence of
PW2 and DW1.
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
38. Now coming to the financial capacity of G. Venkaiah to
purchase the suit schedule 'A' property, PW1 admitted that his
father was an agriculturist and his father has no lands of his
own prior to the subject lands and that his father was
cultivating the lands of K. Satyanarayana Reddy on lease. If at
all father of PW1 has purchased suit 'A' schedule property from
K. Satyanarayana Reddy, there was no necessity for father of
PW1 to cultivate the lands of K. Satyanarayana Reddy on lease
and in fact he could have cultivated plaint 'A' schedule property.
Furthermore, plaintiff/PW1 categorically admitted that he has
not filed any document to show that his father had capacity to
purchase suit 'A' schedule property. Moreover, PW1 admitted
that defendant No.1 and his wife were employees and earning
sufficient amount. When father of PW1 is not having financial
capacity to purchase suit 'A' schedule property, the probability
or the presumption of imagining that G. Venkaiah i.e., father of
PW1 has purchased suit 'A' schedule property from Konda
Satyanarayana Reddy is very remote, more particularly, when
original pattedar Konda Satyanarayana Reddy gave statement
before Mandal Revenue Officer that he has alienated the suit 'A'
schedule property to defendant No.1 for a valid sale
consideration. Apart from that PW1 also deposed that one of
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
the attestors to Ex.B1 i.e., Kattula Ramaiah is his relative. In
such circumstances, there is no necessity for Kattula Ramaiah
to stand against plaintiff, wife of defendant No.2 and defendant
No.3, more particularly when he is relative to PW1. Further,
Konda Satyanarayana Reddy, who is the original pattedar of
suit 'A' schedule property and also a third party to the suit, has
no necessity to speak falsehood against the plaintiff. Since
Konda Satyanarayana Reddy has received sufficient sale
consideration from defendant No.1, he was compelled to state
before the Mandal Revenue Officer about the transaction
between himself and defendant No.1. However, Konda
Satyanarayana Reddy was not alive by the time of trial.
Perhaps that might be the reason why his evidence could not be
secured by the trial Court. In such circumstances, the
statement of Konda Satyanarayana Reddy was considered for
corroborative purpose.
39. When it is the specific contention of the plaintiff that suit
schedule 'A' property was acquired by his father from Konda
Satyanarayana, the plaintiff ought to have mentioned in the
plaint about the said aspect. Though the plaintiff admitted in
his cross examination that he disclosed in his pleadings about
the purchase of 'A' schedule property from K. Satynarayana
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
Reddy, on careful perusal of the entire plaint, there is no such
whisper. Further, the plaintiff averred in the plaint that
defendant No.1 has created unregistered sale deed. However,
the plaintiff did not make any efforts to file any rejoinder to
deny the above said two aspects and thereby make averments
in the rejoinder that Konda Satyanarayana Reddy has alienated
the suit 'A' schedule property to G. Venkaiah and that his
brother defendant No.1 has created unregistered sale deed. It is
settled law that no amount of evidence, on a plea that is not put
forward in the pleadings, can be looked into.
40. It is the specific contention of the appellants herein that
the suit schedule properties are self acquired properties of G.
Venkaiah. It is pertinent to note that plaintiff admitted in his
cross examination that during the life time of his father, they
had raised the issue of partition. When the suit schedule
properties are self acquired properties of a father, it is very
strange and surprising as to how a son can seek partition of self
acquired properties of his father that too during the life time of
his father.
41. A self acquired property can become ancestral property if
it is thrown into the pool of ancestral properties and enjoyed in
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
common. But no proof is filed by the plaintiff to show that suit
schedule 'A' property was purchased by G. Venkaiah and after
his demise the said property was being enjoyed by all the
descendants of G. Venkaiah jointly. PW1 admitted in his cross
examination that as the name of Venkaiah is shown as pattadar
in the revenue records, he filed the suit for partition basing on
the orders of the MRO. But in the cause of action para in the
plaint, it was averred that the cause of action arose on
23.04.1995 and whereas the plaint was filed in the year 1999.
But even as per the plaintiff, the name of G. Venkaiah is
appearing in the revenue records since 1954-1955. If at all the
contention of plaintiff that the suit filed by him was based on
the entry of name of his father in revenue records, then plaintiff
ought to have filed the suit for partition immediately after the
demise of his father G. Venkaiah in the year 1976 but there is
no such instance. Even as per the own document of plaintiff
under Ex.A15 pahani patrika for the year 1988-89 the name of
defendant No.1 along with his brothers were shown and the
nature of property was shown as self acquired. Further, Ex.A5
produced by the plaintiff discloses the name of defendant No.1
and the nature of the property was shown as self acquired.
42. The sole plaintiff relied upon the evidence of PW2 to
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
establish his case. PW2 is the farm servant of Konda
Satyanarayana Reddy and served for 25 years. In the chief
examination, PW2 deposed that he came to know that PW1
purchased the suit land from Konda Satyanarayana Reddy.
This statement of PW2 is quite contrary to the contention of the
plaintiff that the suit 'A' schedule property was purchased by
his father G. Venkaiah. The evidence of PW2 also disclose that
as defendant No.1 and his wife were doing jobs in city, they
used to look after plaintiff, wife of defendant No.2, defendant
No.3 and also defendant Nos.8 to 11. Further, DW1, who is
sailing along with plaintiff, admitted that he heard about Konda
Satyanarayana Reddy giving a statement before MRO that he
sold 'A' schedule property to defendant No.1. Thus, the
evidence of DW1 is supporting the case of defendant No.1 rather
than the case of plaintiff and other defendants. There was no
document to show the transfer of ownership of title and
possession of the suit 'A' schedule property from Konda
Satyanarayana Reddy to G. Venkaiah i.e., father of
PW1/plaintiff.
43. Though it was argued by learned counsel for the appellant
in S.A.No.1336 of 2008 that Konda Satyanarayana Reddy being
a Village Patwari, he got created the documents in his favour,
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
no evidence is adduced to that extent. Admittedly, Konda
Satayanarayana Reddy is the original pattadar of suit schedule
'A' property and he is a third party to the suit. G. Venkaiah and
his son i.e., defendant No.1 are third parties to Konda
Satyanarayana Reddy. In such circumstances, he is least
bothered as to whom the property is to be sold. He is only
concerned with the person, who is ready and willing to pay sale
consideration to purchase his property. Since defendant No.1
paid sale consideration, Konda Satyanarayana Reddy stood in
favour of defendant No.1.
44. In his cross examination, PW1 admitted that basing on
the orders of MRO, he has filed the suit. As per the version of
plaintiff, name of G. Venkaiah is shown as occupier of suit
schedule property in Ex.A1 and there is also no doubt that
Khasra Pahani would serve the purpose of a deed of title. When
the name of G. Venkaiah is reflected in Khasra Pahani, which is
equivalent title deed under Ex.A1 since 1953-54, there is no
explanation on behalf of plaintiff as to what prevented him to
wait till passing of the orders by MRO in filing the present suit.
The plaintiff ought to have filed the suit much prior to passing
of the orders by MRO by relying on Ex.A1 rather than filing the
suit based on MRO proceedings. This intention of plaintiff
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
waiting till passing of orders by MRO to file partition suit, draws
an adverse inference against him about genuineness of Ex.A1.
45. Learned counsel for the appellants in S.A.No.1357 of
2008 relied upon a decision in Yadarao Dajiba Shrawane
(dead) by LRs v. Nanilal Harakchand Shah (dead) and
others 20 wherein the Honourable Apex Court observed that
when the judgment of the final court of fact is based on
misinterpretation of documentary evidence or not consideration
of inadmissible evidence or ignoring material evidence, the High
Court in second appeal is entitled to interfere. It is settled that
admission of parties or their witnesses are relevant pieces of
evidence and should be given due weightage by court. A finding
of fact ignoring such admissions or concessions is vitiated in
law and can be interfered with by the High Courts in second
appeal. A similar view was taken by the Honourable Apex Court
in Krishna Mohan Kul alias Nani Charan Kul and another v.
Pratima Maity and others 21. Learned counsel for the plaintiff
while arguing that when findings of the court below are based
upon inadmissible evidence, a substantial question of law arises
and in such case interference with findings of facts is permitted,
20 (2002) 6 Supreme Court Cases 404
21 (2004) 9 Supreme Court Cases 468
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
relied upon decisions of the Honourable Supreme Court in
Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) by
LRs 22, P. Chandrashekaran and others v. S. Kanakarajan
and others 23, Hero Vinoth v. Seshammal 24, Boodireddy
Chandraiah and others v. Arigela Laxmi and others 25 and
State of Rajasthan and others v. Shiv Dayal and others 26. In
Malluru Mallappa v. Kuruvathappa 27 the Apex Court observed
that even when the first appellate court affirms the judgment of
the trial court, it is required to comply with the requirement of
Order 41 rule 31 and non-observance of this requirement leads
to infirmity in the judgment of the first appellate court. No
doubt, when the appellate court agrees with the views of the
trial court on evidence, it need not restate effect of evidence or
reiterate reasons given by the trial court. Expression of a
general agreement with the reasons given by the trial court
would ordinarily suffice.
46. In Municipal Committee, Hoshiarpur v. Punjab State
Electricity Board and others 28 the Honourable Supreme Court
observed that if a finding of fact is arrived at by ignoring or
22 MANU/SC/0747/1999
23 2007 (5) SCC 669
24 MANU/SC/2774/2006
25 MANU/SC/3839/2007
26 MANU/SC/1092/2019
27 (2020) 4 Supreme court Cases 313
28 (2010) 13 Supreme Court Cases 216
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
excluding relevant material or by taking into consideration
irrelevant material or if the finding so outrageously defies logic
as to suffer from 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 procedure 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.
47. In Abdul Ghani Memorial Trust and others v. Bihar
State Sunni Wakf Board and others 29 the Honourable Apex
Court observed that if the findings passed by the first appellate
court are vulnerable, it is open to the High Court in the course
of exercise of powers under Section 100 of the CPC to set aside
the findings and it is always open to the High Court to call for a
finding from the lower Appellate Court whilst retaining the
appeal with itself if it is considered necessary adduce further
29 MANU/SC/0027/1987
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
evidence. It was further observed that if the additional evidence
which the High Court considers it appropriate to receive even at
the stage of a second appeal in accordance with law is in the
form of a document and does not require any formal proof, the
High Court can receive additional evidence itself and proceed to
determine the matter in accordance with law. But in the
present case, there is no instance of any additional evidence
and the only issue to be dealt in these Appeals is whether the
plaintiff could establish on his own strength that suit 'A"
schedule property is self acquired property of G. Venkaiah.
Thus, the facts stated in the above said decision cannot be
made applicable to the facts of the present case.
48. In Santosh Hazari v. Purushottam Tiwari (deceased) by
LRs 30 the Honourable Supreme Court observed that the first
appellate court is also a final court of law in the sense that its
decision on a question of law even if erroneous may not be
vulnerable before the High Court in second appeal because the
jurisdiction of the High Court has now ceased to be available to
correct the errors of law or the erroneous findings of the first
appellate court even on question of law unless such question of
30 (2001) 3 Supreme Court Cases 179
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
law be a substantial one. In Somakka (dead) by legal
representatives v. K.P. basavaraj (dead) by legal
representatives 31 the Honourable Supreme Court observed
that the judgment of the appellate court shall be in writing and
would include the points for determination, the decision
thereon, the reasons for the decision and where the decree is
reversed or varied, the relief to which the appellant is entitled.
Though several grounds were raised by the appellants, none of
the grounds were appearing to be based on substantial question
of law, more particularly, when the appellants failed to establish
that suit 'A' schedule property is a joint family property and
liable for partition. Though, it is contended by the appellants
that the learned first appellate Court has passed the impugned
Judgment only based on inadmissible under Exs.B1, B2, X1,
X2, X3 and X5, such judgment is appearing to have been
passed in proper perspective as the said judgment is based on
valid and sufficient grounds/reasons and all other relevant
aspects.
49. In Suresh Lataruji Ramteke v. SAU. Sumanbai
31 (2022) 8 SCC 261
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
Pandurang Petkar and others 32 the Honourable Apex Court
observed that jurisdiction under second appeal not to be
exercised merely because an alternate view is possible. It was
observed in Hamida v. Mohd. Khalil 33 that while exercising
jurisdiction under Section 100 of the Code of Civil Procedure,
cannot reverse the findings of the lower appellate court on facts
merely on the ground that on the facts found by the lower
appellate court another view was possible. This position was
reiterated by Avtar Singh and Others v. Bimla Devi and
others 34. However, there are certain exceptions to the rule as
pointed out by the Apex Court in Nazir Mohamed v. J.
Kamala 35 as under:
"33.4. The general rule is, that the High Court will not
interfere with the concurrent findings of the courts below. But it is
not an absolute rule. Some of the well recognised 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. A decision based on no evidence,
does not refer only to cases where there is a total dearth of
evidence, but also refers to case, where the evidence, taken as a
whole, is not reasonably capable of supporting the finding."
50. In a second appeal, the jurisdiction of the High Court
being confined to substantial question of law, a finding of fact is
not open to challenge in second appeal, even if the appreciation
32 2023 Live Law (SC) 821
33 (2010) 12 SCC 740
34 (2021) 13 SCC 816
35 (2020) 19 SCC 57
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
of evidence is palpably erroneous and the finding of fact
incorrect as held in V. Ramachandra Ayyar v. Ramalingam
Chettiar 36.
51. It is to be seen that in the present Appeals, it is not the
case of 'concurrent findings' but in fact it is 'reversing finding'.
There is no doubt that the first appellate court has given
credence to Exs.B1 and B2 while passing the judgment in
A.S.No.8 of 2007. Ex.B1 being an agreement of sale not duly
stamped is inadmissible in evidence to consider the title of a
party over immovable property. But as can be seen from Ex.B1,
possession of suit schedule 'A' property was not delivered by
Konda Satyanarayana Reddy to defendant No.1. The High
Court for the erstwhile State of Andhra Pradesh in B. Bhaskar
Reddy v. Bommireddy Pattabhi Rami Reddy (died) per LRs
and others 37 observed that wherever the agreement holder is
not in possession of the property under agreement of sale, even
though there is a recital in the agreement as to delivery of
possession, he need not pay proper stamp duty as required.
Even otherwise, as discussed supra, this Court is not here to
decide the ownership of defendant No.1 over suit 'A' schedule
36 AIR 1963 SC 302
37 2010 (6) ALD 307
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
property. Though the learned first appellate gone to the extent
of deciding the ownership of defendant No.1 based on Exs.B1
and B2, the only point that is to be adjudicated is whether suit
'A' schedule property is joint family property or not, more
particularly, in a suit for partition filed by the plaintiff. It is
settled law that plaintiff has to stand or fall on his own legs and
he cannot rely on the weakness of the defendants in
establishing his case.
52. The background of the defendants disputing Khasra
Pahani and the subsequent documents by contending that G.
Venkaiah has no financial capacity to purchase the said land
and there is any amount of suspicion about the entries in the
said documents, the initial burden is always on the plaintiff to
establish to the satisfactorion of the Court that the said land
which is 'A' schedle property has been purchaseed by late G.
Venkaiah in his name from its original owner/pattedar.
However, to establish and substantiate that aspect of the
matter, the plaintiff for the reasons best known to him has not
placed any acceptable material on record to demonstrate that
late G. Venkaiah entered into any agreement of sale (either oral
or written) with Konda Satyanarayana Reddy to purchase the
said land for a valid sale consideration. Further, except Ex.A1
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
Khasra Pahani, no other regular registered sale deed is filed by
the plaintiff to show that suit 'A' schedule property has been
purchased by late G.Venkaiah in his name by way of registered
sale deed. Moreover, the original owner of the said land by
name Konda Satyanarayan Reddy gave statement before the
Mandal Revenue Officer under Ex.X2 and specifically stated
that he sold the property in favour of defendant No.1 for a sale
consideration and also delivered possession of the property.
The testimony of original owner has not been specifically
contradicted by the plaintiffs nor any admissions are elicited
that the said property was not sold to defendant No.1.
53. When the plaintiff on whom the burden lies has failed to
establish as to the mode of purchase of the said land by late G.
Venkaiah from Konda Satyanarayana Reddy, the appellants
herein cannot claim suit 'A' schedule property as joint family
property. It is no doubt true that Khasra Pahani can be
considered as title deed, but having regard to the peculiar
circumstances of this case and in the background of the strong
defence put forth by the defendants, so also the testimony of
Satyanarayana Reddy, this Court is not inclined to place any
reliance on Exs.A1, A13 and A14 and as a consequence thereof,
the only inevitable inference that can be drawn is that the
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
plaintiff failed to establish that his father G. Venkaiah has
purchased suit 'A' schedule proeprty from his own funds.
Moreso, when there is no proof of the financial capacity or
source of income of G. Venkaiah to purchase plaint 'A' schedule
property, this Court is not inclined to believe the verson of the
plaintiff that plaint 'A' schedule property is also joint family
property and is liable for partition. The first appellate court has
considered the entire gamet of the controversy with reference to
the material available on record in proper perspective and has
rightly held that schedule 'A' property is not joint family
property. Therefore, even though there is no regular registered
sale deed obtained by defendant No.1 in pursuance of Ex.B1
but by that itself it would not establish the case of the plaintiff
that plaint 'A' schedule property is a joint family property.
54. Having considered the entire material available on record,
rival contentions and also the findings recorded by the learned
first Appellate Court, this Court finds no ground or reason
warranting interference with the said findings in an Appeal filed
under Section 100 of the Code of Civil Procedure. Hence, these
Second Appeals deserve to be dismissed as devoid of merits.
55. In the result, these second appeals are dismissed. There
MGP, J
sa_94_2009, 1332, 1336 & 1357_2008
shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 23.08.2024
AS
