Telangana High Court
Nakka.Narsaiah vs Reddy Malla Reddy on 15 October, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr.JUSTICE G. RADHA RANI
SECOND APPEAL No.802 of 2002
JUDGMENT:
This Second Appeal is filed by the appellants, who are defendants
in the suit, aggrieved by the judgment and decree dated 23.09.2002 in
A.S No.22 of 2001 passed by the Senior Civil Judge at Siddipet
confirming the judgment and decree dated 21.04.2001 in O.S No.62 of
1997 passed by the Junior Civil Judge at Siddipet.
2. The respondent No.1- plaintiff died and his legal representatives
were brought on record as respondent Nos.2 to 4 as per the order dated
30.10.2023 in I.A No.05 of 2023.
3. The parties are hereinafter referred as arrayed before the trial court
as 'plaintiff' and 'defendants'.
4. The plaintiff filed a suit for declaration of title and recovery of
possession and to declare the ROR proceedings in File No.B/2029/91 as
null and void and not binding on him. The plaintiff contended that he
was the owner of the agricultural land to an extent of Acs.2-25 gts., in
Sy.No.357/2 situated at Peddakodur Village, Chinnakodur Revenue
Mandal of Medak District. Originally, a total extent of Acs.9-28 gts., in
the suit schedule survey number was standing in the name of the
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plaintiff's elder paternal uncle, by name, Reddy Ramaiah. In family
partition between brothers, the suit schedule land fell to the share of the
plaintiff's father, by name, Narsa Reddy called as Narsaiah. After death
of plaintiff's father, the plaintiff became the owner of the suit schedule
land as sole legal heir of his father. The suit schedule land was mutated
in the name of the plaintiff and he was in possession and enjoyment of
the same till the second week of November, 1990. The defendants 1 and
2 were brothers and they were having land adjoining the suit schedule
land in another survey number at North East corner. Due to some
disputes over the boundary line between the plaintiff and defendants and
passing of cattle, the defendants high handedly interfered and tried to
evict the plaintiff from the suit land and another land in Sy.No.354.
Finally in the rainy season of 1990, the defendants directly interfered
with the possession of the plaintiff by obstructing operation of
agricultural work. As such, the plaintiff filed a suit for perpetual
injunction, which was numbered as O.S No.123 of 1990 and got ex-parte
interim orders in I.A No.295 of 1990 and protected his possession. The
defendants filed counter and written statement in the above suit denying
the ownership and possession of the plaintiff, contending that their father
purchased the suit schedule property from the plaintiff's father in the year
1960. No valid document was filed by the defendants to show their
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possession in respect of the suit schedule land. The court vacated the ex-
parte injunction order on 19.09.1990. The plaintiff gave instructions to
his counsel to prefer an appeal over the said order. In the meanwhile, the
defendants approached the extremists and got a direction that they would
decide the matter. Due to apprehension, the plaintiff did not prefer the
C.M.A. and not proceeded with the suit. As such, the suit was dismissed
for default on 26.06.1993. The extremists neither decided the matter nor
refused. Meanwhile, they went underground. The suit schedule land was
kept fallow. The defendants kept quiet for two and half years after
dismissal of the suit. Again in the month of April, 1996, they claimed
themselves as owners of the suit schedule land and that they got
passbooks. The plaintiff enquired the matter in MRO office and came to
know that pending the suit, the defendants got ex-parte order from ROR
Authority under File No.B/2029/91 without following the procedure laid
down in the Rights in Land and Pattedar Passbooks Act, 1971 (for short
'ROR Act').
4.1. The plaintiff further submitted that his father never sold the suit
schedule land to the defendants' father. The alleged sale deed was bogus,
fabricated and forged, neither the defendants nor their father were in
possession at any point of time. Taking advantage of the plaintiff's
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poverty and ignorance, the defendants high handedly managed the
revenue authorities and got favourable orders. Neither the defendants
made the plaintiff as party to the proceedings nor ROR Authority issued
notice to the plaintiff before passing any order. As such, regularization
of unregistered sale deed in favour of the defendants under File
No.B/2029/91 was null and void and not binding on the plaintiff. Further
the plaintiff filed an application for certified copy of proceedings of ROR
Authority in File No.B/2029/91, but the MRO issued a memo stating as
not available, which would show that the said proceedings of ROR
Authority were bogus. The plaintiff and defendants were not cultivating
the suit schedule land since the direction of the extremists. But, the
defendants clandestinely got a favourable order by the ROR Authority
and their names were mentioned in the relevant columns of pahanies
without deleting the name of the plaintiff. The plaintiff obtained certified
copies in the month of April, 1996 and prepared to file a suit.
Meanwhile, the defendants offered for compromise, but dodged the
matter. In the month of June, 1997, the defendants refused for amicable
settlement as offered by them and tried to alienate the suit schedule land.
As such, the plaintiff filed the suit.
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5. The defendants filed written statement contending that the
plaintiff's father Sri Reddy Narsaiah sold the suit land to an extent of
Acs.2.22 gts., in Sy.No.357 to the defendants father late Narayana under
simple sale deed executed by him on Ashada Shudda Vidiya of Sharvari
Nama Samvastara in the year 1960 for a consideration of Rs.350/- and
inducted him into possession thereof. After the death of said Narayana,
in partition among his sons, the defendants got suit land towards their
share and had been in exclusive possession thereof with personal
cultivation. During the lifetime of Narayana and subsequently,
inadvertently his name and the names of the defendants were being
recorded in cultivation in respect of Sy.No.358 instead of Sy.No.357 till
1990. In fact, neither late Reddy Narsaiah nor did his sons had any
concern with the land in Sy.No.358 recorded in their names. Sy.No.358
actually belonged to M/s.Narayana Reddy, Yerra Yellaiah, Vajravva,
Kummari Ramulu. The revenue authorities also issued rythu passbooks
to the defendants in the years 1979-80 showing their names in respect of
Sy.No.358. The defendants filed a petition for rectification of entries and
got the simple sale deed regularized under ROR Act. After due enquiry,
the authorities collected the stamp duty and issued 13-B certificate in the
names of the defendants besides title and pattedar passbooks. The
plaintiff had not approached the court with clean hands. He suppressed
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the real facts and filed a frivolous litigation. The plaintiff was not in
possession of the suit land for the past three and half decades. The suit
for recovery of possession was barred by limitation. The plaintiff's rights
if any in the suit land had become extinct by efflux of time. The
defendants were entitled to continue over the suit land under Section 53-
A of TP Act besides being issued patta passbooks. The plaintiff had not
correctly valued the suit, and prayed to dismiss the suit.
6. Basing on the said pleadings, the trial court framed the issues as
follows:
1) Whether the plaintiff is the owner of the suit schedule property.
2) Whether the R.O.R. proceedings in favour of defendants are null
and void and not binding on the plaintiff.
3) Whether the defendants were in possession as per their alleged
agreement of sale or sale deed on the suit schedule land.
4) Whether the plaintiff is entitled for declaration of title and
recovery of possession of the suit schedule property.
5) Whether the suit is properly valued and the court fee paid is
sufficient.
6) Whether the suit is attracted by the principles of resjudicata.
7) Whether the suit is barred by limitation.
8) To what relief?
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7. The plaintiff examined himself as PW.1 and got examined his farm
servant as PW.2 on his behalf and got marked Exs.A1 to A21. The
defendant No.1 was examined as DW.1. The scribe of the simple sale
deed marked under Ex.B1 was examined as DW.2. The attestor of the
sale deed was examined as DW.4 and a neighbouring land owner was
examined as DW.3. Exs.B1 to B14 were marked on behalf of the
defendants.
8. On considering the oral and documentary evidence on record, the
trial court held that the plaintiff was the owner of the suit schedule
property as the defendants also admitted in their written statement that
the father of the defendants purchased the suit schedule property from
the father of the plaintiff, admitting the ownership of the father of the
plaintiff. The ROR proceedings in favour of the defendants in File
No.B/2029/91 of the Mandal Revenue Office, Chinnakodur were null and
void and not binding on the plaintiff as the defendants failed to show that
any notice was given to the plaintiff by revenue authorities before issuing
pattedar passbook in favour of the defendants and that a memo was
issued by the MRO office stating that the said file was not available. The
trial court considering the certified copies of the pahanies filed by the
plaintiff marked under Exs.A1 to A15 observed that plaintiff was in
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possession of the property from 1974-75 to 1993-94 and cultivated the
same and as the evidence would not disclose that the defendants or their
father were occupants of the land in Sy.No.357 as on the date of the ROR
proceedings and no notice in writing was given to the plaintiff as
contemplated under Rule 22(3) of A.P. Rights in land and pattedar
Passbooks Rules, 1989, held that the defendants were not the occupants
of the land covered by Exs.B2, B3 prior to the ROR proceedings in their
favour for validation of transaction under Ex.B1. As such, the said
proceedings in File No.B/2029/91 was not in accordance with the
provisions of the A.P. Rights in Land and Pattedar Passbooks Act, 1971
and therefore, null and void and not binding on the plaintiff. With regard
to issue No.(3), the trial court observed that there was no recital in
Ex.B1/sale deed with regard to delivery of possession to the father of
defendants and a new plea was taken by the defendants in their evidence
that the father of the defendants was already in possession of the suit land
as on the date of Ex.B1, since the suit land was mortgaged in his favour
by the father of the plaintiff, but, no document was filed by the
defendants to show that their father was in possession of the suit land
prior to execution of Ex.B1 in the capacity of mortgagee or that their
father was in possession of the suit land immediately after execution of
Ex.B1 and there were no pleadings with regard to the mortgage prior to
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Ex.B1 and the documents marked under Ex.B4 to B7 also would not
show the possession of the defendants in Sy.No.357, but would only
disclose that their father was pattedar in respect of Acs.3-22 gts of land in
Sy.No.357/1 but one Vajravva was in possession of the suit land and no
land revenue receipts were filed by the defendants to prove that they were
in enjoyment of the suit land and were paying land revenue either before
execution of Ex.B1 and subsequent thereto, gave a categorical finding
that the father of the defendants was not in possession of the suit land in
pursuance of the transaction under Ex.B1. The trial court held issue
No.(4) in favor of the plaintiff holding that the plaintiff was entitled for
declaration of title and recovery of possession. With regard to issues (5)
and (6), the trial court noted that no arguments were advanced by the
counsel for the defendants and as such, treated them as not pressed and
no findings were given on them. With regard to issue No.(7) 'whether
the suit was barred by limitation', the trial court held that the burden
would lie upon the defendants and that the case would fall under Article
65 of Limitation Act and the period of limitation for filing the suit for
declaration based on title was 12 years, but not 3 years under Article 58
of the limitation Act and held that the suit was not barred by limitation.
With regard to the additional issue, 'whether the defendants were entitled
to protect their possession under Section 53-A of Transfer of Property
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Act', the trial Court held that in view of finding on issue No.(3) that the
defendants were not in possession of the suit land in pursuance of the
transaction under Ex.B1, it could not be said that there was part
performance of the contract in terms of Section 53-A of Transfer of
Property Act and decreed the suit in favour of the plaintiff with costs and
directed the MRO, Chinnakodur to make necessary entries in the
records.
9. Aggrieved by the said judgment and decree passed by the learned
Junior Civil Judge, Siddipet, the defendants preferred an appeal. The
appeal was heard by the learned Senior Civil Judge, Siddipet vide A.S
No.22 of 2001 and vide judgment and decree dated 23.09.2002, the first
appellate court dismissed the appeal confirming the judgment and decree
in O.S No.62 of 1997 passed by the learned Junior Civil Judge, Siddipet.
10. Aggrieved by the same, the defendants preferred this second
appeal by raising the following substantial questions of law.
1. Whether the trial court is justified in holding that it could not
consider the evidence of DW2 and DW4 in the absence of
plea of mortgage in the written statement of the appellants
when Ex.B1 which is filed along with the written statement
filed in the present suit as well as in O.S.No.123 of 1980 on
the file of the court of the Junior Civil Judge at Siddipet,
contains the recitals of earlier mortgage of the suit schedule
land by the father of the respondent herein in favour of the
father of the appellants?
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2. Whether the trial court is justified in holding that the
evidence of DW3 is vague without there being any basis?
3. Whether the Lower Appellate Court is justified in not at all
considering the evidence of DW2 to DW4 when the
evidence of DW3 and DW4 is to the effect that the
appellants herein are in continuous possession and
enjoyment of the suit schedule property since the date of
mortgage as well as Ex.B1 till date.
4. Whether the courts below are justified in placing reliance on
pahanies when they do not create or destroy the independent
rights of the parties nor they are reliable to show the
possession of the property?
5. Whether the courts below are justified in setting aside
Exhibits B3, B9, B19, B11 and B12 when they are evidence
of title under Section 5-A clause 4 of A.P.Rights in Land
and Pattedar Passbooks Act, 1971 in the present suit and in
the present contentions involved in the suit?
6. Whether the courts below are justified in decreeing the suit
when the person obtaining possession of the property in part
performance of the Agreement of sale under Sec.53-A of the
Transfer of Property Act and who performed his part of
contract can defend his possession in suit for recovery of
possession filed by the transferor or by any subsequent
transferee of the property claiming under him, even if a suit
for specific performance of Agreement of Sale has become
barred by limitation and as such in view of Ex.B1 the
respondent herein is not entitled for the reliefs granted by
the courts below?
7. Whether the trial court is justified in holding at para 18 of
the Judgment "since sale transaction under Ex.B1 is not
proved" without discussing the genuineness of Ex.B1?
8. Whether the courts below are justified in holding that the
appellants herein failed to prove their possession in
pursuance of Ex.Bl without properly discussing the evidence
of DW1 to DW4 and Exhibits B1 to В14.
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9. Whether the courts below are justified in not drawing
presumption of genuineness of Ex.B1 under Sec. 90 of the
Indian Evidence Act?
10.Whether the courts below are justified in decreeing the suit
when the plaint of the respondent herein is silent about the
alleged dispossession of the respondent by the appellants
and the period of such dispossession?
11. This Court on 08.10.2002 admitted the second appeal on Ground
No.13 (1 to 10) mentioned in the grounds of appeal.
Further I.A No.01 of 2024 was also filed by the appellants to frame
two more additional substantial questions of law as follows:
a) Whether the trial court and appellate court were justified
in granting a relief to the plaintiff against the MRO,
Chinnakodur without arraying him as a party in O.S No.62
of 1997 on the file of the learned Junior Civil Judge,
Siddipet?
b) Whether the suit filed by the plaintiff in O.S No.62 of
1997 on the file of the learned Junior Civil Judge is liable to
be dismissed for non joinder of necessary party?
12. Heard Sri Sripada Prabhakar, learned Senior Counsel representing
Sri.N.Krishna Kumar, counsel for the appellants on record and Sri
S.Srinivasa Rao, learned counsel representing Sri L.Prabhakar Reddy,
counsel on record for the respondents.
13. Learned Senior Counsel for the appellants - defendants contended
that though the defendants were adjoining land owners, the plaintiff
deliberately not stated about the survey numbers of the land of the
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defendants, no pattedar passbooks were filed by the plaintiff for survey
No.357 and under what proceedings the land in Sy.No.357 was mutated
in their name was not stated in the plaint. The plaintiff though contended
that he was dispossessed in the year 1990, but filed pahanies up to the
year 1993-94. The plaint or the evidence of PW.1 was silent as to who
was in possession of the suit schedule property from 1990-96. No legal
notice was issued by the plaintiff and no criminal case was filed by him.
In a suit for recovery of possession, the date of dispossession had to be
specifically pleaded and relied upon the judgment of the High Court of
Madhya Pradesh in Shanti Bai, W/o.Babulal and others Vs. Haimen
Bai (dead), W/o.Mustafa Khan and others 1, the judgment of the High
Court of Calcutta in Ramesh Chand Koiri Vs Chandan Koiri and
others2 and the judgment of the Hon'ble Apex Court in B.Arvind
Kumar Vs. Government of India and others3, on the aspect that the
suit for possession could not be decreed without any specific date of their
dispossession in the pleading so as to compute the period of limitation.
2009 (4) MPLJ 133
2018 SCC OnLine Cal 6471
(2007) 5 SCC 745
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13.1. He further contended that the issue on declaration and recovery of
possession ought not to have been clubbed. No issue was framed when
the plaintiff was in possession and when he was dispossessed. The
plaintiff did not choose to prefer any appeal available under Section 5B
of the ROR Act. The Record of Rights in Land and Pattadar Pass Books
Act, 1971 was a quasi judicial Law where the provision of appeal and
revision were also provided. Without pursuing the said remedies, the
plaintiff preferred the civil suit challenging the proceedings issued by the
MRO under Section 5A of ROR Act. No decree could be passed against
the MRO without making him as a party. There was a presumption under
Section 114(e) of Indian Evidence Act that judicial and official Acts had
been regularly performed. As such, it had to be presumed that Exs.B2
and B3 were issued after conducting an enquiry. Without looking into
these documents, the courts below erred in concluding that the enquiry
was farcical. Ex.B1 was a document pertaining to the year 1960, which
was an unregistered sale deed. DW.2, the scribe of the document, aged 75
years and DW.4 one of the attestors of the said document, aged 85 years
were examined in proof of the same. DW.2 also stated about the MRO
conducting enquiry. The trial court invalidated the orders of MRO
without any pleadings and evidence against it. The trial court observed
that the persons in occupation of the land by virtue of alienation of
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transfer under registered document alone were entitled for validation of
the transaction. There was no need to regularize the registered sale
deeds. Thus, the findings of the trial court were unsatisfactory. The trial
court discarded the evidence of DWs.3 and 4 stating that they were vague
without assigning proper reasons. The trial court wrongly placed the
burden on the defendants on the issue of limitation. The burden always
would lie on the plaintiff to prove that the suit was filed within the period
of limitation. For the relief of declaration, the suit had to be filed within
three years under Article 58 of Limitation Act, but the suit was filed after
6 ½ years. The trial court applied Article 65, but the same was not
applicable to the facts of the case. No plea of adverse possession was
taken by the plaintiff in the plaint. As such, applying Article 64 was not
proper and relied upon the judgments of the Hon'ble Apex Court in
Rajpal Singh Vs Saroj (deceased) through legal representatives and
another4 and in Hardesh Ores (P) Ltd. Vs.Hede and Company 5.
13.2. He further contended that the plea of limitation could be taken at
any stage and relied upon the judgment of Privy Council reported in Law
(2022) 15 SCC 260
(2007) 5 SCC 614
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Weekly in Lachhmi Sewak Sahu Vs. Ram Rup Sahu and others 6 and
the judgment of Hon'ble Apex Court in Abdul Raheem Vs. Karnataka
Electricity Board and others 7 and in Yadarao Dajiba Shrawane
(dead) by LRs. Vs. Nanilal Harakchand Shah (dead) and others8 and
in Vijay Pullarwar and others Vs. Shri Hanuman Deostan, A Public
Trust through its Trustees9 and in Krishna Mohan Kul alias Nani
Charan Kul and another Vs. Pratima Maity and others 10, on the
aspect that consideration of irrelevant facts and non- consideration of
relevant facts would give rise to a substantial question of law, and on the
aspect that, whether the trial court and/or and first appellate court
misdirected themselves in appreciating the questions of law and placed
the onus on the wrong party, certainly there was scope for interference
under Section 100 CPC after formulating a substantial question of law.
13.3. He also relied upon the judgment of the Hon'ble Apex Court in
Anil Rishi Vs. Gurbaksh Singh11 and in Gian Chand and brothers
1943 SCC Online PC 49
AIR 2008 SC 956
(2002) 6 SCC 404
(2019) 11 SCC 718
(2004) 9 SCC 468
(2006) 5 SCC 558
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and another Vs. Rattan Lal alias Rattan Singh12, on the aspect that the
burden of proving the fact rests on the party who substantially asserts the
affirmative issues and not on the party who denies it.
14. Learned counsel for the respondent, on the other hand, contended
that in the month of April, 1996, the defendants claimed that they
purchased the suit land from the father of the plaintiff and obtained
pattedar passbooks behind the back of the plaintiff by setting up an
unregistered and unstamped sale deed and got the same regularized and
obtained 13-B certificate without any notice to the plaintiff in an
improper and illegal manner, though he was in possession and his name
was shown in the revenue records as pattedar and possessor. The
documents filed by the appellants-defendants marked under Exs.B2 and
B3 (13-B and 13-C certificates), alleged to have been issued by the MRO
Chinnakodur in favour of Nakka Narayana, father of D1, were issued in
respect of Acs.3-22 gts in Sy.No.357, which was different from the suit
schedule property Acs.2-25 gts in Sy.No.357/2. Ex.B1, the alleged
simple sale deed was never acted upon or seen the light of the day till
July, 1991. No explanation was offered by the defendants as to why they
kept silent during the life time of their father Nakka Narayana and during
(2013) 2 SCC 606
Dr.GRR,J
the life time of the father of the plaintiff. As per Section 5-A of AP
Rights in land and Pattedar Passbooks Act, 1971 read with Rule 22 made
thereunder only a person in occupation was required to make an
application in Form No.(x). On the date of the alleged application in
July, 1991, defendant Nos.1 and 2 were not in possession nor their names
were shown in the revenue records. It was a mandatory requirement,
which was a condition precedent. No material was filed by the appellants
to show that the defendants were in possession as on the date of the
alleged application filed seeking regularization. The MRO neither issued
any notice to the plaintiff as per the mandatory requirement under Rule
22 (3) of the Rules in Form No.XI nor conducted any enquiry as required
under Rule 22(4) of the Rules made thereunder. Non-compliance of the
mandatory requirement of giving notice and conducting enquiry would
entitle to declare Ex.B2 as null and void and relied on the Full Bench
judgment of this Court in Chinnam Pandurangam Vs. Mandal
Revenue Officer, Serilingampally Mandal & Ors13.
14.1. He further contended that Ex.B1 was a sada binama. Without
impounding it, the same could not be looked into. It was an invalid
(2007) 6 ALD 348
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document and could not be used as proof of sale transaction. DW.1
stated that the entries in the pahanies were wrongly made with regard to
their possession as Sy.No.358 instead of 357. But, admittedly no steps
were taken for correction of the alleged wrong entries. There were
inconsistencies in the statements of DWs.1 and 2 with the written
statement filed by the defendants. The plaintiff upon coming to know
about the manipulation of regularization proceedings by the defendants,
approached the MRO and sought for copies of regularization
proceedings. The office of the MRO issued Ex.A20 stating that no such
file was available in the office of the MRO. In the absence of any steps
taken by the defendants to summon the original record of regularization
pertaining to File No.B1/2029/91 or to summon any witness from the
office of the MRO, the defendants failed to discharge the burden of
proving the regularization proceedings. Therefore, the existence of
Exs.B1 to B3 was doubtful and could not be looked into. The
regularization proceedings filed by the defendants were not pertaining to
the suit schedule property. The defendants alleged to have approached
the MRO for regularization after more than 31 long years and got
regularized the simple sale deed. The extent of land mentioned in survey
number of the simple sale deed and regularization proceedings in 13-B
certificate were not tallying with that of the suit schedule property. In the
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absence of any counter claim by the defendants and in the absence of any
evidence co-relating the extent and survey number of the suit schedule
property, the defendants miserably failed to establish their claim over the
suit schedule property.
14.2. He further contended that both the trial court and first appellate
court after taking note of the pleadings, evidence and appreciation of case
law, gave categorical findings on all issues in favour of the plaintiff. The
concurrent findings of the court below would not require any interference
by this Court in exercise of its jurisdiction under Section 100 of CPC and
relied upon the judgments of the Hon'ble Apex Court in:
1. Nazir Mohamed Vs J.Kamala and others 14
2. Gurdev Kaur and others Vs Kaki and others 15
3. Gurnam Singh (D) by Lrs. And othes Vs.Lehna Singh
(D) by Lrs.16
4. Ramji Singh Patel Vs.Gyan Chandra Jaiswal 17
5. Narendra and others Vs Ajabrao (dead) through legal
representatives18
(2020)19 SCC 57
(2007) 1 SCC 546
AIR 2019 SCC 1441
(2018) 14 SCC 120
(2018) 11 SCC 564
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6. T.Ramalingeswara Rao (dead) through Lrs. and
another Vs.N.Madhava Rao and others 19
15. The Hon'ble Apex Court in Nazir Mohamed Vs J.Kamala and
others (14 supra) held that:
"22. A second appeal, or for that matter, any appeal
is not a matter of right. The right of appeal is
conferred by statute. A second appeal only lies on a
substantial question of law. If statute confers a
limited right of appeal, the court cannot expand the
scope of the appeal. It was not open to the
respondent-plaintiff to reagitate facts or to call upon
the High Court to reanalyse or reappreciate evidence
in a second appeal.
23. Section 100 CPC, as amended, restricts the right
of second appeal, to only those cases, where a
substantial question of law is involved. The
existence of a "substantial question of law" is sine
qua non for the exercise of jurisdiction under
Section 100 CPC.
27. In Hero Vinoth v. Seshammal (2006 5 SCC
545), this Court referred to and relied upon Chunilal
V. Mehta and Sons Ltd(AIR 1962 SC 1314) and
other judgments and summarised the tests to find out
whether a given set of questions of law were mere
questions of law or substantial questions of law. The
relevant paragraphs of the judgment of this Court in
Hero Vinoth³ are set out herein below:
"21. The phrase "substantial question of
law", as occurring in the amended Section
100 CPC is not defined in the Code. The
word substantial, as qualifying "question
AIR 2019 SC (1777)
Dr.GRR,J
of law", means - of having substance,
essential, real, of sound worth, important
or considerable. It is to be understood as
something in contradistinction with -
technical, of no substance or consequence,
or academic merely. However, it is clear
that the legislature has chosen not to
qualify the scope of "substantial question
of law" by suffixing the words "of general
importance" as has been done in many
other provisions such as Section 109 of
the Code or Article 133(1)(a) of the
Constitution. The substantial question of
law on which a second appeal shall be
heard need not necessarily be a substantial
question of law of general importance. In
Guran Ditta v. Ram Ditta(1928 SCC
onlinePC 31: (1927-28) 55 IA 235: AIR
1928 PC 172) the phrase "substantial
question of law" as it was employed in the
last clause of the then existing Section 100
CPC (since omitted by the Amendment
Act, 1973) came up for consideration and
their Lordships held that it did not mean a
substantial question of general importance
but a substantial question of law which
was involved in the case. In Chunilal case,
the Constitution Bench expressed
agreement with the following view taken
by a Full Bench of the Madras High Court
in Rimmalapudi Subba Rao v. Noony
Veeraju (1951 SCC online Mad 100):
'5.... when a question of law is
fairly arguable, where there is
room for difference of opinion on
it or where the Court thought it
necessary to deal with that
question at some length and
discuss alternative views, then
the question would be a
substantial question of law. On
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the other hand if the question was
practically covered by the
decision of the highest court or if
the general principles to be
applied in determining the
question are well settled and the
only question was of applying
those principles to the particular
facts of the case it would not be a
substantial question of law."
28. To be "substantial", a question of law must be
debatable, not previously settled by the law of the
land or any binding precedent, and must have a
material bearing on the decision of the case and/or
the rights of the parties before it, if answered either
way.
29. To be a question of law "involved in the case",
there must be first, a foundation for it laid in the
pleadings, and the question should emerge from the
sustainable findings of fact, arrived at by courts of
facts, and it must be necessary to decide that
question of law for a just and proper decision of the
case.
30. Where no such question of law, nor even a
mixed question of law and fact was urged before the
trial court or the first appellate court, as in this case,
a second appeal cannot be entertained, as held by
this Court in Panchugopal Barua v. Umesh Chandra
Goswami((1997) 4 SCC 713).
31. Whether a question of law is a substantial one
and whether such question is involved in the case or
not, would depend on the facts and circumstances of
each case. The paramount overall consideration is
the need for striking a judicious balance between the
indispensable obligation to do justice at all stages
and the impelling necessity of avoiding prolongation
in the life of any lis. This proposition finds support
Dr.GRR,J
from Samtosh Hazari v. Purushottam Tiwari ((2001)
3 SCC 179).
32. 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 of evidence is
palpably erroneous and the finding of fact incorrect
as held in V. Ramachandra Ayyar v. Ramalingam
Chettiar(AIR 1963 SC 302). An entirely new point,
raised for the first time, before the High Court, is not
a question involved in the case, unless it goes to the
root of the matter.
33.2. The High Court should be satisfied that the
case involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that is,
a question, answer to which affects the rights of
parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue."
16. The Hon'ble Apex Court in Gurnam Singh (D) by Lrs. and
others Vs.Lehna Singh (D) by Lrs., (15 supra) held that:
"14. When a substantial question of law can be said
to have arisen, has been dealt with and considered
by this Court in the case of Ishwar Dass Jain (AIR
2000 SC 426) (Supra). In the aforesaid decision, this
Court has specifically observed and held:
"Under Section 100 CPC, after the 1976
amendment, it is essential for the High
Court to formulate a substantial question
of law and it is not permissible to reverse
the judgment of the first appellate court
without doing so. There are two
situations in which interference with
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findings of fact is permissible. The first
one is when material or relevant
evidence is not considered which, if
considered, would have led to an
opposite conclusion. The second
situation in which interference with
findings of fact is permissible is where a
finding has been arrived at by the
appellate court by placing reliance on
inadmissible evidence which if it was
omitted, an opposite conclusion was
possible. In either of the above
situations, a substantial question of law
can arise."
17. The Hon'ble Apex Court in Narendra and others Vs Ajabrao
(dead) through legal representatives (18 supra), held that:
"The interference in the second appeal with
finding of fact is permissible where such finding is
found to be wholly perverse to the extent that no
judicial person could ever record such finding or
where that finding is found to be against any settled
principle of law or pleadings or evidence".
18. The Hon'ble Apex Court in T.Ramalingeswara Rao (dead)
through Lrs and another Vs.N.Madhava Rao and others (19 supra)
held that:
"12. When the two Courts below have recorded
concurrent findings of fact against the plaintiffs,
which are based on appreciation of facts and
evidence, in our view, such findings being
concurrent in nature are binding on the High Court.
It is only when such findings are found to be against
any provision of law or against the pleading or
evidence or are found to be wholly perverse, a case
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for interference may call for by the High Court in its
second appellate jurisdiction."
19. On the other hand, in the judgment relied by the learned counsel
for the appellants in Yadarao Dajiba Shrawane (dead) by LRs. Vs.
Nanilal Harakchand Shah (dead) and others (8 supra), it was held
that:
"31. .......The position is well settled that when the
judgment of the final court of fact is based on mis-
interpretation of documentary evidence or on
consideration of inadmissible evidence or ignoring
material evidence, the High Court in second appeal
is entitled to interfere with the judgment. The
position is also well settled that admission of parties
or their witnesses are relevant pieces of evidence
and should be given due weightage by courts. A
finding of fact ignoring such admissions or
concessions is vitiated in law and can be interfered
with by the High Court in second appeal."
20. The learned counsel for the appellants also relied upon the
judgment of the Hon'ble Apex Court in Abdul Raheem Vs.Karnataka
Electricity Board and others (7 supra) on the aspect that:
"(12)........... consideration of irrelevant fact and non-
consideration of relevant fact would give rise to a substantial
question of law. Reversal of a finding of fact arrived at by
the First Appellate Court ignoring vital documents may also
lead to a substantial question of law".
Dr.GRR,J
21. He also relied upon the judgment of the Hon'ble Apex Court in
Krishna Mohan Kul alias Nani Charan Kul and another Vs.
Pratima Maity and others (10 supra) where in it was held that:
"9. Though, as rightly contended by the learned
counsel for the appellants, the scope for interference
with concurrent findings of fact while exercising
jurisdiction under Section 100 CPC is very limited,
where the trial court and/or the first appellate court
misdirected themselves in appreciating the question
of law and placed the onus on the wrong party,
certainly there is a scope for interference under
Section 100 CPC after formulating a substantial
question of law.
11. In Neelakantan v. Mallika Begum ((2002) 2 SCC
440), it was held that findings of fact recorded must
be set aside where the finding has no basis in any
legal evidence on record or is based on a misreading
of evidence or suffers from any legal infirmity
which materially prejudices the case of one of the
parties."
22. In the light of these principles reiterated by the Hon'ble Apex
Court the substantial questions of law admitted in this second appeal
need to be answered.
23. The learned counsel for the appellants had contended that the
issue of limitation was a core issue and that the plea of limitation could
be taken at any stage and relied upon the judgment of Privy Council
reported in Law Weekly in Lachhmi Sewak Sahu Vs Ram Rup Sahu
and others (6 supra) wherein it was held that:
Dr.GRR,J
"Though the issue of limitation was not taken at any
stage of the proceedings in either of the Indian
Courts but, it was prima facie admissible even in a
Court of last resort."
24. In the present case, an issue was framed on the aspect of limitation
by the trial court basing on the pleadings raised by the parties. The
appellants - defendants stated in their written statement that the plaintiff
was not in possession of the suit land for the past three and half decades,
as such, the suit for recovery of possession was barred by limitation and
that the defendants were entitled to continue in possession of the suit
land under Section 53-A of the Transfer of Property Act. The issue
No.(7) was framed as 'whether the suit was barred by limitation'. The
burden of proving the said issue was placed on the defendants, which
was vehemently opposed by the learned counsel for the appellants -
defendants.
24.1. The burden of proof typically would lie on the plaintiff to
demonstrate that their suit was filed within the statutory period of
limitation. It is a fundamental requirement under the Limitation Act that
the issue of limitation shall be examined by the courts even if the same
was not explicitly raised as a defence and the said aspect must be
addressed regardless of whether it is pleaded by the defendants or not. If
the plaintiff fails to demonstrate that the suit was filed within the
Dr.GRR,J
limitation period, the suit is barred and the court shall not consider the
merits of the case. Failure to meet the burden results in the dismissal of
the suit regardless of its merits. The trial court committed an error in
placing the burden of proving the limitation aspect on the defendants.
24.2. As seen from the plaint, the plaintiff admitted about filing of O.S
No.123 of 1990 on the file of the District Munsiff, Siddipet on
26.06.1990 seeking injunction simplicitor against the appellants herein in
respect of Acs.3-32 gts., Acs.1-17 gts., in Sy.No.353/3 and Acs.2-25 gts.,
in Sy.No.357/2 situated at Peddakodur Village, Chinnakodur Revenue
Mandal of Medak District. The defendants filed written statement in the
said suit on 16.07.1990 contending that the plaintiff was never in
possession of the suit schedule property and took the plea that the father
of the plaintiff Sri Reddy Narsaiah had sold Acs.2-25 gts., in Sy.No.357
of Peddakodur Village to the father of the defendants Sri Narayana under
a simple sale deed executed in the year 1960 on Ashada Shudda Vidiya
of Sharvari Nama Samvastara i.e., on 26.06.1960 for a consideration of
Rs.350/-. The said simple sale deed was also filed in the court and the
same was marked as Ex.B1. In the said suit the plaintiff initially obtained
exparte injunction vide I.A No.295 of 1990. The said injunction was
vacated on 19.09.1990. O.S No.123 of 1990 was dismissed for default
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on 22.06.1993 and the plaintiff filed the present suit O.S No.62 of 1997
on the file of the District Munisiff, Siddipet on 14.07.1997 i.e. after more
than nearly six (06) years of the specific denial of the plaintiff's title by
the defendants by filing written statement in O.S No.123 of 1990 on
16.07.1990.
24.3. The present suit O.S No.62 of 1997 was filed seeking the
following reliefs:
a) To declare the plaintiff as absolute owner of the suit schedule
land.
b) a decree for delivery of the possession of the suit schedule land
to the plaintiff after evicting the defendants 1 and 2 therefrom.
c) a decree to declare the proceeding of ROR bearing file
No.B/2029/91 passed in favour of the defendants by the recording
authority/MRO, Chinnakodur as null and void and not binding on the
plaintiff.
d). a decree directing the recording authority/MRO, Chinnakodur
for making necessary changes in all the revenue records.
24.4. As per the Limitation Act, 1963, the reliefs of declaration are
placed in Part-III, consisting of Articles 56, 57 and 58. Article 56
pertains to forgery of an instrument. Article 57 pertains to declaration
regarding the adoption being invalid. Article 58 is the residuary article
pertaining to any other declaration. Thus, the relief of declaration falls
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within article 58 of the Limitation Act. The limitation period for
obtaining the said relief is three (03) years.
The plaintiff ought to have filed a suit to declare himself as the
owner of the suit schedule property on or before 16.07.1993 i.e., within
three (03) years of the filing of the written statement in O.S No.123 of
1990 on the file of the District Munsiff, Siddipet. But the trial court
considered that the relevant article for determining the relief of
declaration is Article 65 and not Article 58 of the Limitation Act.
Article 65 of the limitation Act falls under Part-IV. It deals with suits for
possession or dispossession based on title. It deals with the recovery of
immovable property based on adverse possession. The period of
limitation is 12 years.
Article 65 reads as follows:
"For possession of immovable property or any
interest therein based on title, the period of
limitation is 12 years, when the possession of the
defendants becomes adverse to the plaintiff."
24.5. In cases coming within the purview of Article 65, the burden is on
the defendants to prove adverse possession affirmatively and the
defendants must show that their possession was hostile to the real owner
and amounted to denial of the owners title. The trial court applied this
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provision and placed the burden upon the defendants by relying upon the
Division Bench judgment of the High Court of Andhra Pradesh in Pavan
Kumar and another Vs.K.Gopala Krishna and another (AIR (1998)
AP 247), wherein it was held that:
"12. The suit is essentially and primarily a suit for
possession based on title. The mere fact that the
declaration of title is also sought for therein does not
bring it within Art. 58 or 113 so as to attract the
three years period of limitation, as observed by the
learned single Judge. There is practically no
controversy as to title for the simple reason that the
defendants recognize the plaintiff as the
predecessor-in-title and it is the specific case of the
defendants that the plaintiff sold the property to
Choudary Rajanna, who in turn effected the sale to
them. As already noticed, the sale by Gopal Krishna
to Choudary Rajanna was disbelieved by the trial
Court. Under these circumstances, as far as the title
of the plaintiff is concerned, there could hardly be
any controversy that a formal declaration of title
from the Court was sought for, may be by way of
caution. Realizing the difficulty in pursuing the
argument as regards inapplicability of Art. 65, the
learned counsel for the appellants has chosen the
obvious course of highlighting the alternative
argument that even if Art. 65 applies, the suit is
barred.
14. It is now settled law that in a case falling under
Art. 65, the burden lies on the defendants, who
would like to defeat the plaintiff's title, to establish
that they remained in adverse possession for 12
years."
Dr.GRR,J
24.6. In the present case also the defendants recognized the father of the
plaintiff as the predecessor in title and contended that the father of the
plaintiff sold the suit schedule property to the father of the defendants
and the said sale was disbelieved by the trial court.
24.7. The contention of the learned Senior Counsel for the appellants
was that the relief of declaration was different and distinct from the relief
of recovery of possession and the trial court ought not to have clubbed
both the reliefs and brought the same under Article 65 of the Limitation
Act. His contention was that the relief seeking for declaration of title was
a substantive prayer and the relief seeking recovery of possession was a
consequential relief and relied upon the judgment of the Hon'ble Apex
Court in Rajpal Singh Vs. Saroj (deceased) through legal
representatives and another (4 supra) wherein it was held that:
"14. The submission on behalf of the original
plaintiff (now represented through her heirs) that the
prayer in the suit was also for recovery of the
possession and therefore the said suit was filed
within the period of twelve years and therefore the
suit has been filed within the period of limitation,
cannot be accepted. Relief for possession is a
consequential prayer and the substantive prayer was
of cancellation of the sale deed dated 19-4-1996 and
therefore, the limitation period is required to be
considered with respect to the substantive relief
claimed and not the consequential relief. When a
composite suit is filed for cancellation of the sale
deed as well as for recovery of the possession, the
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limitation period is required to be considered with
respect to the substantive relief of cancellation of the
sale deed, which would be three years from the date
of the knowledge of the sale deed sought to be
cancelled. Therefore, the suit, which was filed by the
original plaintiff for cancellation of the sale deed,
can be said to be substantive therefore the same was
clearly barred by limitation. Hence, the learned trial
court ought to have dismissed the suit on the ground
that the suit was barred by limitation. As such the
learned first appellate court was justified and right in
setting aside the judgment and decree passed by the
learned trial court and consequently dismissing the
suit. The High Court has committed a grave error in
quashing and setting aside a well-reasoned and a
detailed judgment and order passed by the first
appellate court dismissing the suit and consequently
restoring the judgment and decree passed by the trial
court."
24.8. He also relied upon the judgment of the Hon'ble Apex Court in
Hardesh Ores (P) Ltd. Vs. Hede and Company (5-Supra) where in it
was held that:
"Omitting to claim foundational relief and claiming
the consequential relief only to get around the bar of
limitation was impermissible".
24.9. Thus, as seen from the judgments of the Hon'ble Apex Court,
declaration of title is a substantive relief and as the relief of recovery of
possession is a consequential relief, the limitation period is required to
be considered with respect to the substantive relief. As the suit for
declaration of title has to be filed within three years from the date when
the right to sue first arises and as the appellants - defendants denied the
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right and title of the plaintiff over the suit schedule property in their
written statement in O.S No.123 of 1990 dated 16.07.1990, the suit
ought to have been filed within three years from the date of filing of the
written statement in O.S No.123 of 1990 by the appellants - defendants
i.e., on or before 16.07.1993, as such the suit was barred by limitation.
The trial court erred in considering the relevant Article on the aspect of
limitation and placing the burden of proving the said limitation aspect on
the defendants, which was totally perverse. Even if the defendants are
set exparte, the suit could not be decreed mechanically by the trial court
without examining the aspect of limitation. This aspect was neither
appreciated by the trial court nor by the lower appellate court. The lower
appellate court failed to consider the aspect of limitation at all and made
an observation that there was no serious contest between the parties with
regard to issues 5 to 7, which was incorrect. Thus, both the courts below
committed an error in deciding the issue of limitation and to consider
whether the suit was filed within the period of limitation or not.
25. In a suit for declaration of title heavy burden rests upon the
plaintiff to prove his title. The plaintiff is not supposed to depend upon
Dr.GRR,J
the weakness of the case set up by the defendants. The Hon'ble Apex
Court in Nagar Palika, Jind vs Jagat Singh, Advocate20, held that:
"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
had proved their case or not. We are of the view that
even if the title set up by the defendants is found
against, in the absence of establishment of plaintiffs
own title, plaintiffs must be non suited."
25.1. The plaintiff pleaded that originally Sy.No.357 situated at
Peddakodur Village, Chinnakodur Revenue Mandal of Medak District
consisting of Acs.9-28 gts., was in the name of the plaintiff's elder
paternal uncle, by name, Reddy Ramaiah, S/o.Muthaiah and that in the
family partition between the brothers, the suit schedule property fell to
the share of the plaintiff's father, by name, Narsa Reddy called as
Narsaiah. After the death of his father, the plaintiff became the owner of
the suit schedule land as a sole legal heir to his father. He further
pleaded that the suit schedule land got mutated in his name and he was in
20 1995 SCC (3) 426
Dr.GRR,J
possession and enjoyment of the suit schedule land till the 2nd week of
November, 1990.
25.2. The case of the defendants was that the father of the plaintiff had
sold the suit schedule property to the father of the defendants by means
of unregistered sale deed dated 26.06.1960 and delivered the possession
of the same to him vide Ex.B1.
25.3. As the defendants admitted ownership of the father of the plaintiff
over the suit schedule property and considering the pahanies marked by
the plaintiff under Ex.A1 to A15, the trial court answered the issue
holding that the plaintiff was the owner of the suit schedule property.
25.4. The contention of the appellants - defendants was that they were
in continuous possession of the suit schedule property for a period of
more than three and half decades. Even prior to the unregistered sale
deed dated 26.06.1960, the father of the defendants was in possession of
the suit schedule property, as the father of the plaintiff had borrowed
some money from the father of the defendants by creating a mortgage
and as he failed to clear the dues, he sold the property to the father of the
defendants.
Dr.GRR,J
25.5. To prove the unregistered sale deed, the defendants got examined
DWs.2 and 4. DW.2 was the scribe of Ex.B1. DW.2 was aged 75 years.
DW.4 was an attestor to the simple sale deed, he was aged 85 years.
Both these witnesses stated that the plaintiff's father had sold the
property to the defendants' father by means of a simple sale deed and
since then the father of the defendants and subsequently, the defendants
were in possession of the suit schedule property. Both these witnesses
were thoroughly cross examined but nothing was elicited in their cross
examination to cast a doubt about the fact that the plaintiff's father
executed a simple sale deed. The English translation of the sale deed
speaks of the delivery of the suit schedule property. The defendants also
got examined a neighbouring land owner as DW.3. DW.3 also stated
that neither the plaintiff nor his father were in possession of the suit
schedule property and the father of the defendants, subsequently the
defendants were in possession of the said land. The plaintiff also stated
in his plaint that the defendants were having land adjoining the suit
schedule property on the North East corner without mentioning the
survey number. The sketch filed along with the plaint also would show
the land of the defendants on the North East corner without mentioning
the survey number. The defendants had filed the pattedar passbooks and
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title deeds (marked under Exs.B9 & B10) to establish their title over the
suit schedule property.
25.6. The plaintiff who was examined as PW.1 in his cross examination
stated that even though the pattedar passbook and title deeds were issued
to him in 1997-1998, the suit schedule property in Sy.No.357 was not
mentioned in the said passbook. The said admission made by the
plaintiff was significant as it probablises that the suit schedule property
seized to be in the possession of the plaintiff's father from 1960 and for
the said reason Sy.No.357 was not mentioned in his passbook. The
evidence of the plaintiff also would disclose that he obtained loan by
mortgaging his agricultural lands in other Sy.Nos.354 and 358 but he did
not mortgage the land in Sy.No.357. The plaintiff though contended that
the land was mutated in his name, but failed to give the particulars the
date on which it was mutated or the proceedings by which it was mutated
in his name.
25.7. The contention of the defendants was that even though the
plaintiff's father conveyed the land in Sy.No.357 by means of a simple
sale deed in 1960, in the revenue records the land in possession of the
defendants was wrongly shown as in Sy.No.358. Their contention was
that the land in Sy.No.358 actually belonged to Narayana Reddy, Yerra
Dr.GRR,J
Yellaiah, Vajravva and Kummari Ramulu and they were no way
concerned with the said land. The plaintiff also admitted in his cross
examination that the land in Sy.No.358 belonged to the above referred
persons. This admission made by the plaintiff is also crucial to consider
that the entries in the pahanies were not recorded accurately. The
defendants further contended that on noticing the error, they submitted
an application to the MRO for correction of entries and the entries were
corrected in the pahanies from 1990 onwards.
25.8. Except the certified copies of pahanies from the years 1974-75,
1993-94 marked under Exs.A1 to A15, the plaintiff failed to file any
other document to show that he or his father exercised their ownership
rights over the suit schedule property since 1960 onwards. Mere entries
in the pahanies do not establish the title of the plaintiff. The entries in
the pahanies are erroneous as evident from the fact that the plaintiff was
shown as in possession of the suit schedule property in the certified
copies of pahanies 1992-93 and 1993-94, whereas, his own case was that
he was dispossessed in the year 1990. The entries in the pahanies alone
were unreliable to prove that the plaintiff was exercising his right of
ownership over the suit schedule property even after 1960. The trial
court placed the burden on the defendants to prove that they were in
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possession of the suit schedule property rather than asking the plaintiff to
prove that he was in possession of the suit schedule property. The trial
court also mis-read Ex.B1 observing that there was no delivery of
possession of the suit schedule property mentioned in it. The lower
appellate court admitted the contention of the counsel for appellants that
the transfer of ownership in favor of vendee by the vendors vested with
absolute rights certainly would amount to delivery of possession of the
land without reserving any right and also admitted that if the land was
already put in possession of the vendee since mortgaged to him, still it
had to be presumed that the vendee was inducted into possession with
absolute rights from the date of the actual transaction of sale and then he
is entitled to seek protection under Section 53-A of Transfer of Property
Act as the defendants performed part performance.
25.9. On one side admitting that the transfer of ownership would
amount to delivery of possession of the land without reserving any right,
on the other hand, the lower appellate court as well as the trial court
observed that there was no evidence adduced by the defendants that their
father was inducted into possession of the suit property in pursuance to
Ex.B1 or by earlier proceedings of the mortgage of the same property.
The trial court focused its attention on the previous mortgage executed
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by the plaintiff's father in favour of the defendants' father and drawn an
adverse inference because of the non filing of the previous mortgage
deed. When the plaintiff's father had sold the property to the
defendants' father there is no need for defendants to still retain the
previous mortgage deed as it is a document of no consequence. The trial
court focused its attention on the previous mortgage aspect even though
there was no issue in the said regard and failed to appreciate the evidence
of DW.2 and DW.4 who clearly stated that the defendants' father was in
possession of the suit schedule property. The trial court erred in terming
the evidence of DW.3 as vague, even though it was specific and erred in
overlooking the evidence of DW.2 on flimsy grounds.
26. With regard to the relief of recovery of possession, the plaintiff
has to establish that he was in possession of the suit schedule property
and that he was dispossessed by the defendants high handedly. A careful
reading of the plaint would show that the plaintiff had not pleaded when
the defendants dispossessed him from the suit schedule property. The
plaintiff merely pleaded that "the suit schedule land was mutated in the
name of the plaintiff and he was in possession and enjoyment of the suit
schedule land till 2nd week of November, 1990".
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26.1. If at all the defendants had actually dispossessed the plaintiff
from the suit schedule property in November, 1990, he should have filed
a suit for recovery of possession under Section 6 of the Specific Relief
Act within six months or ought to have given a legal notice or lodged an
FIR against the defendants for trespass or criminal intimidation, but
leisurely filed the suit in July, 1997 seeking delivery of possession. The
conduct of the plaintiff in keeping quiet for 6 ½ years was unnatural and
suspicious. The averments in the plaint lack basic particulars regarding
the dispossession of the plaintiff. Learned counsel for the appellants
relied upon the judgment of the High Court of Madhya Pradesh in
Shanti Bai, W/o. Babulal and others Vs. Haimen Bai (dead), W/o.
Mustafa Khan and others (1 supra) on the aspect that to obtain a decree
of possession of an immovable property, plaintiff must plead on which
date he was dispossessed from the suit property so as to compute the
period of limitation. As the plaintiffs have not pleaded any specific date
of their dispossession in the entire suit, their suit for possession cannot
be decreed.
26.2. The plaintiff examined his farm servant as PW.2. The evidence
of PW.2 would not suggest that PW.1 was dispossessed by the
defendants. Plaintiff in his deposition had given different dates
Dr.GRR,J
regarding his alleged dispossession. In his chief examination, he
referred to 1990 as the year of dispossession. At another place he stated
that the defendants were in possession of the suit land since 1996. The
lower appellate court assumed that the plaintiff claimed that he was
dispossessed by the defendants during the year 1993 and gave a
speculative finding in para 16 of its judgment that:
"but the possibility of taking over the possession
of the suit land by the defendants when it was left
abandoned by not cultivating by the plaintiff is not
completely ruled out."
26.3. The said plea was not even taken by the plaintiff and it was not
understood as to how the lower appellate court could have given such
finding without even a pleading on this aspect by the plaintiff. Both the
courts below failed to appreciate the evidence of DWs.2 and 4 who
stated that possession was already delivered by the plaintiff's father to
the defendants' father.
26.4. Learned counsel for the appellants relied upon the judgment of
the Hon'ble Apex Court in Anil Rishi Vs. Gurbaksh Singh (11 supra)
on the aspect that the burden of proving the facts rests on the party who
substantially asserts the affirmative issues and not on the party who
denies it. As the plaintiff is asserting that he was dispossessed by the
defendants he need to state the specific date on which he was
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dispossessed and should prove the same but failed to give even a specific
date and failed to adduce any evidence to show that since when he was
dispossessed.
26.5. The learned counsel for the appellants relied upon the judgment of
the Hon'ble Apex Court in Gian Chand and brothers and another Vs.
Rattan Lal alias Rattan Singh (12 supra) on the aspect that a person
who asserts a particular fact is required to affirmatively establish it.
Thus, when the plaintiff failed to plead and prove that the defendants
dispossessed him from the suit schedule property, the said issue ought
not to have been held in favour of the plaintiff.
27. With regard to the issue whether the Record of Right proceedings
in favour of the defendants are null and void and not binding on the
plaintiff, the proceedings under Section 5-A of the record of rights under
the AP Rights in land and Pattedar Passbooks Act, 1971 are quasi
judicial. They confer title of the land to those persons who were having
unregistered sale deed. The MRO on receipt of an application by a
person who was in possession of an unregistered sale deed has to make
an enquiry as to whether the simple sale deed was actually executed or
not. As per Rule 22 of A.P. Rights in Land and Pattedar Passbooks
Rules, 1989, the MRO after hearing the parties and on examining the
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documents and witnesses and after being satisfied that the alienation is
not in contravention of laws shall complete the enquiry. The MRO is
also expected to conduct local enquiry and to obtain corroborative
evidence from the neighbouring ryots and village elders. After
completion of enquiry, the MRO would call upon the transferor to
deposit challan in the treasury an amount equal to the registration fee and
stamp duty. Thereafter, the MRO proceeds to issue a certificate in
Form-XIII (B) and subsequently issues title and passbook to the
occupant in the category of owner/pattedar. The MRO under Rule 22 (3)
has to issue a notice to the transferor in Form-XI specifying therein the
date on which and the time at which he proposes to enquire into the
application and shall also issue notice in Form-XII to all the persons
believed to be interested in the land specifying therein the date, time and
place at which he proposes to enquire into the application.
27.1. The plaintiff had assailed the proceedings in File No.B/2029/91
dated 24.07.1991 making allegations that the simple sale deed Ex.B1
was a bogus and fabricated one, but had not sought for cancellation of it
under Section 31 of the Specific Relief Act, 1963. The plaintiff pleaded
that the defendants managed the revenue authorities and got favourabale
orders and further pleaded that the revenue authorities did not issue
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notice to him before passing the order under Section 5-A of the Record
of Rights under the AP Rights in land and Pattedar Passbooks Act. The
date of the proceedings in File No.B/2029/91 issued by the MRO
Chinnakodur Mandal, would disclose that they were issued on
24.07.1991. The plaintiff sought for invalidation of the said proceedings
by filing the suit O.S No.62 of 1997 on 14.07.1997 i.e., after almost six
years. The plaintiff sought to declare the said proceedings as null and
void and contended that it was a bogus and fabricated one basing on a
memo marked under Exs.A20 and 21, wherein the Mandal Revenue
Officer, Chinnakodur Mandal stated that the records of the proceedings
dated 24.07.1991 were not available. The plaintiff ought to have made
the MRO, Chinnakodur Mandal as defendant in the suit, as he sought for
proceedings No.B/2029/91 dated 24.07.1991 issued by the MRO,
Chinnakodur Mandal to be declared as invalid, but failed to join him as a
necessary party. The plaintiff also failed to examine any official from
the office of the MRO, Chinnakodur Mandal as a witness nor summoned
the documents from the office of the MRO, Chinnakodur Mandal from
the court. As per Section 5-B of the Record of Rights under the AP
Rights in land and Pattedar Passbooks Act, an appeal lies to RDO within
30 days from the orders passed by the MRO/Tahsildar under Section 5-A
and a revision lies before the Collector under Section 9. The plaintiff did
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not chose to file any appeal under Section 5-B of the Record of Rights
under the AP Rights in land and Pattedar Passbooks Act, and a revision
under Section 9.
28. The appellants filed I.A No.01 of 2024 for raising additional
substantial question of law as to whether a declaration regarding the
ROR proceedings of the MRO bearing File No.B/2029/91 dated
24.07.1991 can be declared as null and void without the said MRO,
Chinnakodur, being arrayed as a defendant in the suit.
28.1. DW.2 stated about the revenue authorities visiting the village and
conducting the enquiry at the time of issuing passbooks. DW.3 also
stated about the MRO visiting village along with the Revenue Inspector
and that five other villagers were also present in the enquiry. Thus, two
independent witnesses deposed that the MRO, Chinnakodur conducted
an enquiry under Section 5-A of the Record of Rights under the AP
Rights in land and Pattedar Passbooks Act.
28.2. According to Section 114 of Indian Evidence Act, 1872, the court
may presume existence of certain facts. As per Section 114(e) it can be
presumed that judicial and official acts have been regularly performed.
The said presumption can be rebutted by the plaintiff by adducing
evidence but except filing the memos marked under Exs.A20 and A21,
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the plaintiff failed to implead the MRO as party to the proceedings or
failed to summon the MRO or the File No.B/2029/91 dated 24.07.1991.
As such, the trial court erred in declaring the said proceedings as null
and void. The lower appellate court failed to discuss about the said issue
itself. As such, both the courts below failed to scrutinize and examine
the evidence of the witnesses carefully and came to an erroneous
conclusion that the proceedings in File No.B/2029/91 dated 24.07.1991
of the MRO, Chinnakodur Mandal is null and void. The trial court
committed a grave error in observing that Section 5-A of the Record of
Rights under the AP Rights in land and Pattedar Passbooks Act,
proceedings could only be in respect of alienation or transfer of a
registered document, whereas, the legislative intent was only to provide
a remedy to those persons who were having unregistered sale deeds. As
such, on these grounds, the orders of both the trial court and lower
appellate court need to be set aside.
29. In the result, the Second Appeal is allowed by setting aside the
judgments of the trial court in O.S No.62 of 1997 dated 21.04.2001 and
the lower appellate court in A.S No.22 of 2001 dated 23.09.2002. The
suit filed by the plaintiff is dismissed. All the substantial questions of
law are answered against the plaintiff and in favour of the appellants-
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defendants including the additional substantial questions of law raised by
the appellants - defendants in I.A No.01 of 2024.
There shall be no order to costs.
Pending miscellaneous applications, if any, shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date:15.10.2024
dsv
