Telangana High Court
M.A. Samad vs The District Collector on 21 March, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.433 of 2023
JUDGMENT:
The present Second Appeal is filed questioning the judgment
and decree, dated 04.04.2023, passed by Principal District Judge,
Nirmal in AS.No.14 of 2019, whereunder and whereby the
judgment and decree dated 19.01.2019 passed by the Senior Civil
Judge, Nirmal in O.S.No.48 of 2008 was confirmed.
2. The appellants are the plaintiffs and the respondents are the
defendants in the suit. For convenience, hereinafter the parties are
referred to as they are arrayed in the suit.
3. The brief facts of the case, which led to filing of the present
Second Appeal, are that the plaintiffs had filed the suit for
declaration of title and recovery of possession in respect of suit
schedule property. It was averred in the plaint that plaintiffs are the
owners of the suit schedule property which was purchased by their
father by name Mohammed Jalal through the Sale Agreement from
its owner/pattadar-Iqbal Ali Khan in the year 1975 and thereafter,
he had been in continuous and uninterrupted possession of the said
property and that he established a Saw Mill, and the suit schedule
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property was under the use and occupation for storing the Timber
of Saw Mill.
3.1. It was further averred that in the year of 1991, their father
expired and thereafter, the plaintiffs being the only legal heirs,
succeeded to the said house and the suit schedule property and
became the owners and possessors thereof.
3.2. It was further averred that the political adversaries of the
plaintiffs' father, in order to take revenge, filed W.P.No.10146 of
2005 and the said case was disposed of 25.12.2005, without
prejudice to the rights of plaintiffs and to avail appropriate legal
remedy against the action taken by the Government authorities to
remove the encroachments. Further, M.R.O. Bhainsa also initiated
proceedings against the plaintiffs and issued a Notice under Section
7 of the Land Encroachment Act, 1905, to which plaintiff No.1,
who represented the plaintiffs, has submitted a reply with a request
to make proper enquiry, but, the M.R.O., Bhainsa, without issuing
any notice to the plaintiffs or to their counsel, caused erroneous
survey in absence of the plaintiffs and their counsel, and passed an
illegal order of eviction on the alleged ground that the land in
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occupation of the plaintiffs is situated in Sy.No.338 which is a
Government land.
3.3. The Plaintiffs further submitted that their father had
perfected his title to the suit land by adverse possession against the
pattadar of said land bearing Sy.No.337 and even against the
Government or any other persons claiming right over it. That
earlier, their father filed civil suit vide O.S.No.38 of 1992 before
the District Munsiff Court, Bhainsa for declaration of title in
respect of the suit land and the said suit was decreed in his favour,
vide judgment dated 25.11.1992 and therefore, the Government
erred in holding that the suit land which was under use and
occupation of the plaintiffs is Government Land bearing
Sy.No.338.
3.4. The plaintiffs further submitted that they are the exclusive
owners of the suit land and that defendant No.3, under
misconception, evicted the plaintiffs from the suit land believing it
to be the Government Land bearing Sy.No.338.
3.5. The Plaintiffs further submitted that as their title and
ownership was thrown into suspicion because of illegal order
passed by the defendant No.3, they got issued legal notices to the
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defendants No.1 to 3 on 03.04.2007 under Section 80 CPC with a
request to initiate proceedings to get technical survey and to
demarcate the suit land bearing Sy.Nos.337 and 338 of Bhainsa
village and to restore the possession of the suit land to the plaintiffs
and the said Legal Notices were duly served on the defendants, but
even after expiry of the stipulated period, the defendants did not
initiate any steps to rectify the mistake committed by them and
they have failed to restore the possession of the suit land to the
plaintiffs. Hence, the Plaintiffs filed the present suit for declaration
of title, demolition of structures raised by the defendants and
recovery of possession of the Suit Schedule property.
4. Defendant No.3 filed his written statement, which was
adopted by defendants Nos.1 and 2. The brief case of defendants
No.1 to 3 is that earlier, plaintiff No.1 had encroached land to an
extent of Ac.0.06 ½ guntas in Sy.No.338 situated at Bhainsa town
and thereafter, the legal action has been initiated under Section 7 of
the Land Encroachment Act, 1905 by issuing a notice dated
24.02.2005 as to why proceedings under Sections 5 and 6 of the
A.P. Encroachment Act, 1905 should not be initiated for eviction
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and that the said notice was served on the encroacher on
25.02.2005.
4.1. It was further stated that the plaintiff No.1 by way of
misrepresentation alleged that the suit land is not part of
Sy.No.338, but it is part and parcel of land in Sy.No.337. Hence,
the Deputy Inspector of Surveys, Nirmal was directed to demarcate
the Government land bearing Sy.No.338 and accordingly, the
Deputy Inspector of Surveys, Nirmal, in his report to the Revenue
Divisional Officer, Nirmal, submitted that the land an extent of
Ac.0.06 ½ guntas is under unauthorized occupation of plaintiff
No.1.
4.2. It is further stated that on 18.03.2005, the Assistant
Director of Survey and Land records, Adilabad has inspected the
spot and submitted a report along with location sketch and the
same was allotted to B.C. Boys hostel which is part and parcel of
Sy.No.338 and that there is an encroachment of Ac.0.06 ½ guntas
by the plaintiff No.1 and on the basis of the said report, plaintiff
No.1 and his agents were evicted from land under Section 6(1) of
the A.P. Land Encroachment Act, 1905, vide eviction order
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No.B/389/2005, dated 23.12.2005 passed by the M.RO Bhainsa,
after duly conducting Panchanama.
4.3. It was further submitted that the suit land is Government
land which is part and parcel of Sy.No.338 which was allotted to
B.C. Boys Hostel, Bhainsa and hence, the contention of the
plaintiffs that the suit land is located in Sy.No.377 is baseless and
as such, the question of inheritance of the same by the Plaintiffs
does not arise.
4.4. Defendant No.3 further submitted that the orders passed by
the District Munsiff Court, Bhainsa in O.S.No.38/1992 dated
25.11.1992 is not binding on the defendants since the suit land is
part and parcel of Sy.No.338 which was allotted to B.C. Boys
hostel, Bhainsa and the reports submitted by the Assistant Director
(S&LR) Adilabad, Deputy Inspector of Surveys and the Mandal
Surveyor, Bhainsa, clearly establish the said fact.
4.5. It was further submitted that the erstwhile Hon'ble High
Court of A.P. in its Judgment dated 29.12.2005 in
W.P.No.10146/2005 upheld the action taken by the M.R.O.
Bhainsa, vide eviction order dated 23.12.2005 with a direction to
the District Collector, Adilabad and authorities concerned to take
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all necessary steps including the use of Police protection to protect
the land of B.C. Boys hostel. Hence, the defendants prayed to
dismiss the suit with costs.
5. Basing on the above rival pleadings, the following issues
were framed for trial:-
"1. Whether the plaintiffs are entitled for declaration as
owners of the suit land and for delivery of possession by
evicting defendant Nos.1 to 3 therefrom?
2. Whether the plaintiffs are entitled for direction to
demolish construction raised by defendants on suit
land?
3. To what relief?"
6. To substantiate their case, on behalf of the plaintiffs, PWs. 1
to 5 were examined, but the evidence of PW3 was eschewed and
Exs.A-l to Ex.A-39 were marked. On behalf of defendants, DW1
examined and no documents were marked.
7. During pendency of the appeal, an Advocate Commissioner
was appointed who filed report and he was examined as CW1 and
Exs.C1 and C2 were marked by the plaintiffs as additional
evidence.
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8. The trial court after considering oral and documentary
adduced by both the parties and on hearing the contentions of
learned counsel for both the parties, dismissed the suit vide its
judgment dated: 19.01.2019. The trial Court observed that there is
total change of boundaries of three sides of the property described
in Ex.Al with the suit schedule property and in these
circumstances, there is no convincing explanation from the
plaintiffs as to why there is a change of three side boundaries of
suit schedule property herein with the suit property covered in
Ex.A1. This aspect certainly throws any amount of suspicion over
the case of the plaintiffs which go to the root of the case.
8.1. The trial Court further observed as under:
"It is pertinent to note that P.Ws.4 and 5 in their cross
examination admitted that the B.C. hostel is in Sy.No.338
which is surrounded by compound wall and the above said
suggestion which is placed by the learned counsel for the
plaintiffs before DW1 that the compound wall was
constructed by vacating the plaintiffs in Sy.No.337 is
appears to be inconsistent with the testimonies of PWs. 4
and 5."
9. As regards the revenue records filed by the plaintiffs and
their plea of adverse possession, the trial Court observed as under:-
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"It is settled law that the entries made in the records of
revenue such as pahanies cannot by themselves confer
ownership or title and such entries made by the State in
its publication without any legal basis and without
verifying the necessary title and ownership. Hence, the
same have no legal sanctity to prove the title or
ownership of the plaintiffs. In the present case on hand,
except the revenue records and Ex.Al which is a certified
copy of concerned judgment and decree, no other
documents have been filed by the plaintiffs to substantiate
their claim to prove that the husband of PW1 acquiring
title and possession over the suit schedule property.
Further, Ex.A3 which is certified copy of pahani
did not disclose the name of the said Md. Jalal either in
the column of Pattdar or Possessor. In view of the
circumstances, I hold that the Plaintiffs have failed to
make out their case by way of adverse possession.
Though the plaintiffs have relied on several
revenue records, but as stated above, the entries in
revenue records will not confer any title in respect of
property mentioned therein and they are not the
documents of title. Further, Ex.B1 judgment and decree
has been relied on by the plaintiffs will not bind the
defendants since the defendants are not the parties to the
said suit."
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10. The trial Court, by observing thus, held that the plaintiffs
who filed the suit for declaration of title and recovery of possession
have failed to make out their case.
11. On appeal, the first Appellate Court, being the final fact-
finding Court, on re-appreciation of the entire evidence and the
material available on record, confirmed the judgment of the trial
court, vide its judgment dated 04.04.2023. The first appellate Court
observed as hereunder:-
"The plaintiffs have not filed any of their title document
to establish their title over the suit schedule property. As
per the contention of the plaintiffs, the father of the
plaintiffs purchased the suit schedule property under
sale agreement from original pattadar, but plaintiffs did
not file sale agreement and the plaintiffs did not explain
what happened to said sale agreement. It is also
contended by the plaintiffs that the pahanies filed by
them would establish their title over the suit schedule
property. The Revenue Records produced by the
plaintiffs does not confer title over the plaintiffs and
same was held in a decision reported in 2002 (2) ALD
436 Sajana Granites, Madras And Another Vs. Manduva
Srinivasa Rao And Others"
12. While adjudicating the plea of adverse possession raised by
the plaintiffs, the First Appellate court held as under:-
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"The another contention of the plaintiffs is that by
longstanding possession they have perfected their title
over the suit schedule property by way of adverse
possession. The plaintiffs on one hand are claiming the
suit schedule property under an agreement of sale, on the
other hand, they contended that they perfected their title
they over the schedule property by adverse possession.
The process of acquisition of title by adverse
possession brings into action essentially by default or
inaction of the owner. A person who pleads adverse
possession cannot claim the title simultaneously.
If any person claims the property by way of adverse
possession, he cannot say that he purchased property from
rightful owner. If a person pleads perfecting the title by
way of adverse possession, it deems that they are
accepting and admitted title of the other side. Unless, the
plaintiffs admits title of the defendants/government, they
cannot plead perfecting their title by way of adverse
possession. So, the plea raised by the plaintiffs that they
perfected their title by way of adverse possession is not
acceptable as rightly observed by the trial court. The
plaintiffs have to establish continues and uninterrupted
possession over the suit schedule property for a period of
30 years as the plaintiffs are claiming title by way of
adverse possession against the Government.
The plaintiffs claimed their title over the suits
schedule property on the ground that their father
Mohammed Jalal had purchased suit schedule property
from original pattadar, but they failed to prove the
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purchase of the suit schedule property by Muhammad
Jalal from the original owner. The plaintiffs also contends
that Ex. Al would establish the title over the suit schedule
property. The judgment and decree under Ex.A1 is the
consent decree filed against the third parties, which is not
binding on the defendants. So, it does not establish the
title of the plaintiffs.
The plaintiffs have pleaded perfecting their title by
way of adverse possession, but the plaintiffs failed to
prove that they are in continuous and uninterrupted
possession of the suit schedule for more than 30 years
over the suit schedule property and the revenue records
produced by the plaintiffs does not confer any title on the
suit schedule property. So, the plaintiffs failed to prove
their contention of perfecting their title by way of adverse
possession."
13. The first appellate court accordingly held that the trial court
after considering both oral and documentary evidence adduced by
both the parties and also law on the subject matter, rightly
dismissed the suit with costs which is sustainable under law and on
facts and there is necessity to interfere with the judgment and
decree passed by the trial Court.
14. Heard Sri G.Vasantha Rayudu, learned counsel for the
appellants and learned Government Pleader for Arbitration
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appearing counsel for the respondents. Perused the entire material
available on record.
15. A perusal of the record discloses that both the Courts below
concurrently held that the plaintiffs failed to establish their title in
respect of the suit schedule property and accordingly, declined to
grant the reliefs sought for by the plaintiffs.
16. Learned counsel for appellants argued that the trial Court
dismissed the suit without proper appreciation of the evidence and
the first Appellate Court also committed an error in confirming the
judgment and decree passed by the trial Court.
17. Learned counsel for appellants failed to raise any substantial
question of law to be decided by this Court in this Second Appeal.
In fact, all the grounds raised in this appeal are factual in nature
and do not qualify as the substantial questions of law in terms of
Section 100 C.P.C.
18. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings on
facts arrived at by the Courts below, which are based on proper
appreciation of the oral and documentary evidence on record.
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19. Further, in Gurdev Kaur v. Kaki 1, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fell for
consideration.
20. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C. Moreover, the grounds raised by the appellant are factual in
nature and no question of law much less a substantial question of
law arises for consideration in this Second Appeal.
21. Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
22. Pending miscellaneous applications, if any, shall stand
closed.
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JUSTICE LAXMI NARAYANA ALISHETTY
Date:21.03.2024
dr
(2007) 1 Supreme Court Cases 546
