Telangana High Court
Sri Moizuddeen vs Md.Raheemuddeen on 11 September, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
SECOND APPEAL Nos.584, 594 of 2002 & CC(SR).No.2644 of 2012
COMMON JUDGMENT:
S.A.No.584 of 2002 is filed by the appellant - defendant No.2 aggrieved
by the common judgment and decree in A.S.No.37 of 1996 on the file of the
Additional District Judge, Nizamabad confirming the judgment of the Principal
District Munsif, Nizamabad in O.S.No.162 of 1992 dated 22.02.1996.
2. O.S.No.162 of 1992 is filed by the respondent - plaintiff seeking
declaration of title and injunction relating to Ac.3-00 guntas of land in Survey
No.54 situated at Singampally Village, Makloor Mandal, Nizamabad District
against the appellant herein. The said suit was filed on 12.05.1992. The
plaintiff contended that he was the eldest son of one Mr.Buranuddin, who was
the owner of the land comprised in Survey No.54 situated at Singampally
Village to an extent of Ac.3-00 guntas. Md.Buranuddin succeeded to the
property from his late father Sri Ahmed Hussain. In fact, the total extent of the
land in Survey No.54 was Ac.8-11 guntas. The defendant being the youngest
son of late Sri Ahmed Hussain was given an extent of Ac.2-11 guntas towards
his share by his late father. After the death of Ahmed Hussain, the plaintiff and
defendant were continuing their occupation, possession and ownership over
their respective shares. Till Mr.Buranuddin died, he used to look after the
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agricultural operations. After his demise in the year 1987, the plaintiff being
the eldest son succeeded to the property and was continuing his possession to an
extent of Ac.3-00 guntas. During the month of April, 1992, with an intention to
get his name mutated in place of his deceased father, the plaintiff submitted an
application to the concerned Mandal Revenue Officer (for short "MRO"). The
defendant submitted his objection for mutation and questioned the plaintiff's
possession and contended that he was the owner of the total land and claimed
that the plaintiff had no share in it. The revenue records would show that the
plaintiff was the owner and possessor to an extent of Ac.3-00 guntas. At no
point of time, the defendant was the owner of the land to the extent of Ac.3-00
guntas owned by the plaintiff. The father of the plaintiff was only raising the
crops by investing necessary amounts towards irrigation. Due to financial
hazards, the father of the plaintiff could not raise any crop during the year 1988-
89. As such, the land was left fallow. But after the death of the father of the
plaintiff, the plaintiff had sown maize crop. By engaging un-social elements,
the defendant damaged the standing crop. In the month of April, 1992, the
plaintiff again ploughed the land and while trying to make it useful for
cultivation, the defendant with a malafide intention tried to interfere into the
possession of the plaintiff. As such, the plaintiff filed the suit seeking
declaration of his title over the suit land and consequential relief of injunction to
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restrain the defendant from interfering with his possession over the suit land to
an extent of Ac.3-00 guntas in Survey No.54.
3. The defendant filed written statement contending that he was the owner
and possessor of the entire extent of Ac.8-11 guntas in Survey No.54 of
Singampally Village. In the year 1974-75, patta was granted in the name of the
defendant after completing all the formalities by the revenue authorities to the
entire extent of Ac.8-11 guntas in Survey No.54. He denied that he was given
only an extent of Ac.2-11 guntas in Survey No.54 by his late father and denied
that the plaintiff was in possession of Ac.3-00 guntas in Survey No.54 after the
death of late Ahmed Hussain and contended that it was only recently the
plaintiff managed to get his name entered in the revenue records in collusion
with the revenue officials without notice to the defendant. The fact of the
mutation and effect of patta in the name of the defendant in the year 1974-75
itself would disprove that the plaintiff's father looked after the agricultural
operations and also would disprove the factum of imaginary partition of Survey
No.54 at any time prior to or after the death of Buranuddin. The plaintiff was
never in possession of the suit land. It was the defendant who was in actual
possession as absolute owner of the suit property. The defendant objected to the
efforts of the plaintiff to knock up Ac.3-00 guntas of land in Survey No.54 and
prayed to dismiss the suit.
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4. Basing on the above pleadings, the trial court framed the issues as
follows:
(i) Whether the plaintiff is in possession and enjoyment of Ac.3-00 guntas of
land?
(ii) Whether the plaintiff is entitled to permanent injunction as prayed for?
(iii) To what relief?
An additional issue was framed on 02.02.1995 as whether the suit is
maintainable as to the pecuniary jurisdiction of the Court?
Another additional issue was framed on 20.04.1995 as to whether the
value of the suit property is correct?
Another additional issue was framed on 23.02.1996 as to whether the
plaintiff is the owner of the suit property to an extent of Ac.3-00 guntas of land
in Survey No.54 situated at Singampally Village, Makloor Mandal, Nizamabad
District?
5. S.A.No.594 of 2002 is filed by the appellant - plaintiff aggrieved by the
common judgment and decree in A.S.No.38 of 1996 on the file of the
Additional District Judge, Nizamabad confirming the judgment of the Principal
District Munsif, Nizamabad in O.S.No.170 of 1992 dated 22.02.1996.
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6. O.S.No.170 of 1992 was filed by the plaintiff seeking the relief of
perpetual injunction. The defendant in O.S.No.162 of 1992 is the plaintiff in
O.S.No.170 of 1992 and the plaintiff in O.S.No.162 of 1992 is the defendant
No.1 in O.S.No.170 of 1992. The plaintiff in O.S.No.170 of 1992 contended
that he was the owner, pattedar and possessor of the entire extent of Ac.8-11
guntas in Survey No.54 situated at Singampally Village, Makloor Mandal,
Nizamabad District. The patta of the land was sanctioned in his name after
completing requisite formalities by the revenue officials in the year 1974-75.
He was the absolute owner and exclusive possessor of entire Survey No.54 to an
extent of Ac.8-11 guntas. He was using the suit land for grazing his cattle.
Only once, he had sown maize in it. At no point of time, neither the defendants
1 and 2 nor their late father Md.Buranuddin ever raised any dry crop, maize or
grass in it. It was a dry land and only grass was raised used for grazing the
cattle of the plaintiff alone. The defendants to usurp an extent of Ac.3-00
guntas got entered their names in the pahani as cultivators in collusion with the
village officers whereas no crop of any kind was raised in it in any portion of
the suit land. However, the patta of the land was retained in the name of the
plaintiff. In order to deprive the plaintiff to an extent of Ac.3-00 guntas of land
in Survey No.54, the defendant tried to sell it on 15.05.1992 and tried to
dispossess the plaintiff from it. As such, he filed the suit for perpetual
injunction to restrain the defendants 1 and 2 from interfering with his possession
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over the entire extent of Ac.8-11 guntas in Survey No.54. The said suit was
filed on 18.05.1992 subsequent to the plaintiffs filing the suit in O.S.No.162 of
1992 for declaration of title and injunction.
7. A common written statement was filed by defendants 1 and 2 contending
that the suit land was their ancestral property standing in the name of their
grandfather late Sri Ahmed Hussain. After the death of Ahmed Hussain, the
property was succeeded by the father of the defendants and other sons begotten
to late Ahmed Hussain through his first and second wives. Before the death of
the father of the defendants, there was an oral partition amongst all male family
members. In the said oral partition, out of the suit land Ac.3-00 acres was given
to the father of the defendants by name Buranuddin and another extent of Ac.3-
00 acres was given to the brother of the defendant's father by name
Mr.Habeebuddin and the remaining extent of Ac.2-11 guntas was given to the
plaintiff. Thus, the plaintiff was the owner of the land only to an extent of
Ac.2-11 guntas, but not Ac.8-11 guntas as claimed by him. The plaintiff was in
physical enjoyment of the suit land only to an extent of Ac.2-11 guntas. The
plaintiff never raised any crop in the total land so also in his own extent too. In
fact, the defendant No.1 used to cultivate maize crop and other seasonal crops in
his own land. After the death of the father of the defendants, the defendant
No.1 being the elder brother submitted an application for mutation of his name
in revenue records to the extent of his share of Ac.3-00 acres in Survey No.54.
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Acting upon the application submitted by defendant No.1, the MRO, Makloor
conducted an enquiry under ROR Act and issued proceedings on 30.04.1992
mutating Ac.3-00 acres of land in the name of defendant No.1. In the light of
revenue records also, the defendant No.1 was the absolute owner of an extent of
Ac.3-00 acres of land in Survey No.54. The defendant No.1 had already filed
O.S.No.162 of 1992 and obtained an injunction against the plaintiff in the
present suit. Hence, the subsequent suit would act as res judicata. In column
No.13 of the revenue records, to an extent of Ac.3-00 guntas, the name of
Buranuddin, the father of the defendants would appear. The defendant No.1
was the absolute owner and possessor of an extent of Ac.3-00 guntas of land in
Survey No.54 and plaintiff was not the owner of the total extent. The plaintiff
had got no title over the suit property nor possession as on the date of filing the
suit and the suit for injunction was liable to be dismissed. The plaintiff ought to
have filed the suit for declaration and prayed to dismiss the suit by awarding
exemplary costs.
8. Basing on the said pleadings, the following issues are settled for trial:
(i) Whether the plaintiff is in possession and enjoyment of Ac.8-11 guntas of
land in Survey No.54 situated at Singampally Village, Makloor Mandal,
Nizamabad District?
(ii) Whether the plaintiff is entitled to permanent injunction restraining the
defendants from selling or mortgaging the suit property?
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(iii) Whether the suit as framed is maintainable?
(iv) To what relief?
9. Both the suits are clubbed together and evidence was recorded in
O.S.No.162 of 1992 being a comprehensive suit.
10. The plaintiff in O.S.No.162 of 1992 was examined as PW.1. His brother-
in-law by name Mirza Khaleel Ahmed Baig was examined as PW.2. Exs.A1 to
A26 were marked on behalf of the plaintiff. The defendant in O.S.No.162 of
1992 and the plaintiff in O.S.No.170 of 1992 was examined as DW.1. Exs.B1
to B11 were marked on his behalf.
11. A common judgment was delivered by the learned Principal District
Munsif, Nizamabad in both the suits on 22.02.1996 decreeing the suit in
O.S.No.162 of 1992 and dismissing the suit in O.S.No.170 of 1992.
12. Aggrieved by the said common judgment and decree in both the suits, the
defendant in O.S.No.162 of 1992 and the plaintiff in O.S.No.170 of 1992
preferred A.S.No.37 of 1996 against the judgment and decree in O.S.No.162 of
1992 and A.S.No.38 of 1996 against the judgment and decree in O.S.No.170 of
1992.
13. The said appeals were heard by the learned Additional District Judge,
Nizamabad. Vide common judgment in A.S.No.37 of 1996 and A.S.No.38 of
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1996 dated 19.03.2002 dismissed both the appeals confirming the common
judgment and decree dated 22.02.1996 passed by the learned Principal District
Munsif, Nizamabad in O.S.No.162 of 1992 and O.S.No.170 of 1992 with costs.
14. Aggrieved by the dismissal of the appeals, the appellant preferred these
Second Appeals. This Court on 11.11.2002 admitted the Second Appeals on the
following substantial questions of law:
(a) Whether the judgment of the Lower Appellate Court was vitiated as contrary
to Order XLI Rule 31 of CPC? And whether the said judgment was not
defective even though as the final court of fact the Appellate Court was required
to adjudicate the appeal on all questions of law and fact?
(b) Whether the courts below were justified in decreeing the suit of the plaintiff
inspite of the categorical finding of the trial court that the plaintiff failed to
prove oral partition as pleaded and thereby the title pleaded by the plaintiff
under the said oral partition was negatived?
(c) Whether the courts below were justified in placing the burden of proof of
title on the defendant, even though the plaintiff failed to discharge his initial
burden?
15. Heard Smt.Manjari S.Ganu, learned counsel for the appellant and Sri
P.Giri Krishna, learned counsel for the respondent.
16. Learned counsel for the appellant contended that the suit of the
respondent for declaration was primarily based upon the alleged oral partition
pleaded by him and while the respondent - plaintiff failed to prove the oral
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partition, the courts below ought to have dismissed the suit. When the trial
court gave a categorical finding that the plaintiff failed to prove the oral
partition as pleaded by him, the Appellate Court had not touched upon the said
aspect at all. The trial court placed the burden of proof on the appellant i.e. the
defendant to prove title and possession. In the absence of any proof by the
plaintiff, placing the burden on the appellant was totally opposed to law. The
Lower Appellate Court also proceeded to think that the respondent / plaintiff's
suit deserved to be decreed as the appellant - defendant failed to prove his title.
The judgments of both the courts below were vitiated on account of the
aforesaid error in placing an uncalled for burden on the defendant - appellant,
when the plaintiff failed to prove his basic case of oral partition and title there
under. Both the courts proceeded to consider the respondent's suit as if it was
merely a suit for injunction. The possession without title would not entitle the
respondent - plaintiff to succeed in a suit for declaration of his title. Even the
finding with respect to possession was incorrect and the suit for declaration of
title could not have been decreed merely on the same. There was no
consideration of all these aspects by the Lower Appellate Court. As a final
Court of fact, the Lower Appellate Court was required to look into all the issues
of fact and law by framing appropriate points for consideration and relied upon
the judgments of the Hon'ble Apex Court in United Engineers and
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Contractors v. Secretary to Government of Andhra Pradesh and Others 1,
H.Siddiqui (Dead) by LRs. v. A.Ramalingam 2, Madhukar and Others v.
Sangram and Others 3, Shasidhar and Others v. Smt.Ashwini Uma Mathad
and Another4 on the scope of Order XLI Rule 31 of CPC. She relied upon the
judgment of the Hon'ble Apex Court in Rajasthan State Road Transport
Corporation & another v. Bajrang Lal 5 on the aspect that there is no
prohibition for the High Court to entertain the Second Appeal even on question
of fact where factual findings are found to be perverse.
17. Learned counsel for the respondent on the other hand contended that the
appellant was claiming to be the owner of the entire extent of Survey No.54
admeasuring Ac.8-11 guntas situated at Singampally Village, Makloor Mandal,
Nizamabad District on the basis of patta without bothering to file the mutation
proceedings which gave rise to granting of patta. Before a patta was granted,
there must be mutation proceedings of the revenue authorities. But no such
mutation proceedings of the revenue authorities had been filed by the appellant.
Before granting a patta to an individual, notices had to be given to all the
effected parties as per Rule 5(3) of AP Rights in Land and Pattedar Pass Books
Act, 1971, especially co-sharers. But in this case, no such proceedings were
1
AIR 2013 SC 2239
2
AIR 2011 SC 1492
3
(2001) 4 SCC 756
4
AIR 2015 SC 1139
5
(2014) 4 SCC 693
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placed on record by the appellant. Even assuming that any such patta was
issued in favor of the appellant, the same would be null and void in view of the
law laid down by this Court in Chinnam Pandurangam, S/o. Late Maniah v.
Mandal Revenue Officer, Serilingampally Mandal and Others 6. The suit
filed by the appellant was a counter blast to the suit filed by the respondent
Md.Raheemuddin. The appellant was relying upon the orders of the Revenue
Divisional Officer (for short "RDO") dated 04.05.1995 vide Proceedings
No.B4/5592/93 and the respondent Md.Raheemuddin was relying on the
proceedings of the Joint Collector, Nizamabad vide proceedings No.A7/2929/95
dated 20.07.1996. Once the Civil Court was seized of the matter, the revenue
authorities could not adjudicate the same as per Rule 9(1)(c)(ii) of AP Rights in
Land and Pattedar Pass Books Act, 1971. The revenue authorities ought to have
waited for the result of the suit before taking any further action. But the RDO
and the Joint Collector continued to pass orders even after filing of the suit
which was impermissible in view of the law laid down by this Court in
K.Pratap Reddy & Others v. Joint Collector, Rangareddy District &
Others 7. As such, the proceedings before the revenue authorities had to be
ignored and they were of no consequence. The appellant had not amended his
plaint to include any subsequent events. As the plaint had not been amended,
the events which took place after filing of the plaint could not be looked into.
6
AIR 2008 AP 15
7
2008 SCC Online AP 784
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The law was well settled that in the absence of pleadings, no amount of
evidence would help the party in view of the law laid down by the Hon'ble
Apex Court in Biraji @ Brijraji & another v. Surya Pratap & Others8. The
case of the appellant rested on some entries in the revenue records. The revenue
records by themselves would not confirm any title. They were only meant to
enable the Government to collect land revenue from the person whose name
appeared in the revenue records and relied upon the judgment of the Hon'ble
Apex Court in Balwant Singh & Another v. Daulat Singh (dead) by LRs. &
others9.
18. He further contended that the courts below were justified in decreeing the
suit filed by the respondent in O.S.No.162 of 1992 as the version of the
respondent that his father Sri Buranuddin inherited Ac.3-00 guntas in Survey
No.54 from his grandfather i.e. Sri Ahmed Hussain would appear to be more
probable than the improbable claim of the appellant being the owner of the
entire extent of land admeasuring Ac.8-11 guntas in Survey No.54.
19. He further contended that the courts below did not place the burden of
proof on the appellant. The courts merely examined the untenable claim of the
appellant being the owner of the entire extent of land admeasuring Ac.8-11
guntas and came to the conclusion that the said claim was without any legal or
8
(2020) 10 SCC 729
9
1997 (7) SCC 137
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factual basis. None of the grounds urged by the appellant would fall within the
scope and ambit of the substantial questions of law and relied upon the
judgments of the Hon'ble Apex Court in Biswanath Ghosh (Dead) by LRs.
and Others v. Gobinda Ghosh @ Gobinda Chandra Ghosh & Others 10,
Santosh Hazari v. Purushottam Tiwari (dead) by LRs. 11 , Dnyanoba
Bhaurao Shemade v. Maroti Bhaurao Marnor12, Gurdev Kaur & Others v.
Kaki & Others 13.
20. He further contended that Exs.A4 to A19 would show that the
respondent's father Mr.Buranuddin was in possession of Ac.3-00 guntas of land
in Survey No.54 and on that premise, the suit was decreed in favor of the
respondent Mr.Raheemuddin and as Mr.Moizuddin, the appellant failed to show
any evidence that his father gifted the entire extent of Ac.8-11 guntas in his
favor. The declaration filed by Mr.Buranuddin before the Agriculture Land
Ceiling Authority would show that he was in possession of Ac.3-00 guntas of
land. Even the land revenue receipts issued by the office of MRO were in the
name of Mr.Raheemuddin. All these factors would go in favor of
Mr.Raheemuddin. Taking all these aspects into consideration, both the trial
court and the Appellate Court ruled in favor of the respondent Mr.Raheemuddin
and against the appellant Mr.Moizuddin. There were no palpable infirmities in
10
2014 (11) SCC 605
11
2001 (3) SCC 179
12
(1999) 2 SCC 471
13
2007 (1) SCC 546
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the judgments rendered by both the courts warranting interference by this Court
and prayed to dismiss the Second Appeals, as the grounds urged would not fall
within the parameters of the substantial questions of law.
21. The 3-Judge Bench of the Hon'ble Apex Court in Santosh Hazari v.
Purushottam Tiwari (dead) by LRs. (cited supra) delineated the scope of
Section 100 of CPC as follows:
"12. The phrase substantial question of law, as
occurring in the amended Section 100 is not
defined in the Code. The word substantial, as
qualifying question 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 & Anr. Vs.
T. Ram Ditta, AIR 1928 Privy Council 172, the
phrase substantial question of law as it was
employed in the last clause of the then
existing Section 110 of the C.P.C. (since omitted
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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 as between the
parties. In Sir Chunilal V. Mehta & Sons Ltd.
v. The Century Spinning and Manufacturing
Co., Ltd., [(1962) Supp (3) SCR 549], the
Constitution Bench expressed agreement with
the following view taken by a Full Bench of
Madras High Court in Rimmalapudi Subba
Rao Vs. Noony Veeraju, ILR 1952 Madras
264:-
..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 view, then the
question would be a substantial
question of law. On 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
fact of the case it would not be a
substantial question of law.
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and laid down the following test as proper test,
for determining whether a question of law raised
in the case is substantial:-
The proper test for determining
whether a question of law raised
in the case is substantial would,
in our opinion, be whether it is of
general public importance or
whether it directly and
substantially affects the rights of
the parties and if so whether it is
either an open question in the
sense that it is not finally settled
by this Court or by the Privy
Council or by the Federal Court
or is not free from difficulty or
calls for discussion of alternative
views. If the question is settled
by the highest Court or the
general principles to be applied in
determining the question are well
settled and there is a mere
question of applying those
principles or that the plea raised
is palpably absurd the question
would not be a substantial
question of law.
14. A point of law which admits of no two
opinions may be a proposition of law but cannot
be a substantial question of law. To be
substantial, a question of law must be debatable,
not previously settled by law of the land or a
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binding precedent, and must have a material
bearing on the decision of the case, if answered
either way, in so far as the rights of the parties
before it are concerned. To be a question of law
involving 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 court of facts and it
must be necessary to decide that question of law
for a just and proper decision of the case. 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. It
will, therefore, depend on the facts and
circumstances of each case whether a question
of law is a substantial one and involved in the
case, or not; the paramount overall consideration
being the need for striking a judicious balance
between the indispensable obligation to do
justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis."
22. In Gurdev Kaur & Others v. Kaki & Others (cited supra), the 2-Judge
Bench of the Hon'ble Apex Court by referring to its earlier case
in Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762], held
that:
"53. The High Court in its jurisdiction
under Section 100 C.P.C. was not justified in
interfering with the findings of fact. The Court
observed that to say the least the approach of the
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High Court was not proper. It is the obligation of
the Courts of law to further the clear intendment
of the legislature and not frustrate it by
excluding the same. This Court in a catena of
decisions held that where findings of fact by the
lower appellate Court are based on evidence, the
High Court in second appeal cannot substitute
its own findings on re-appreciation of evidence
merely on the ground that another view was
possible.
62. The question could perhaps be asked, why
the litigant who wishes to have justice from the
highest Court of the State should be denied the
opportunity to do so, at least where there is a
flaw in the conclusion on facts reached by the
trial Court or by the Court of first appeal. The
answer is obvious that even litigants have to be
protected against too persistent a pursuit of their
goal of perfectly satisfactory justice. An
unqualified right of first appeal may be
necessary for the satisfaction of the defeated
litigant; but a wide right of second appeal is
more in the nature of a luxury.
70. Now, after 1976 Amendment, the scope of
Section 100 has been drastically curtailed and
narrowed down. The High Courts would have
jurisdiction of interfering under Section
100 C.P.C. only in a case where substantial
questions of law are involved and those
questions have been clearly formulated in the
memorandum of appeal. At the time of
admission of the second appeal, it is the
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bounden duty and obligation of the High Court
to formulate substantial questions of law and
then only the High Court is permitted to proceed
with the case to decide those questions of law.
The language used in the amended section
specifically incorporates the words as
"substantial question of law" which is indicative
of the legislative intention. It must be clearly
understood that the legislative intention was
very clear that legislature never wanted second
appeal to become "third trial on facts" or "one
more dice in the gamble". The effect of the
amendment mainly, according to the amended
section, was:
(i) The High Court would be justified in
admitting the second appeal only when a
substantial question of law is involved;
(ii) The substantial question of law to precisely
state such question;
(iii) A duty has been cast on the High Court to
formulate substantial question of law before
hearing the appeal;
(iv) Another part of the Section is that the appeal
shall be heard only on that question.
23. In Biswanath Ghosh (Dead) by LRs. and Others v. Gobinda Ghosh
@ Gobinda Chandra Ghosh & Others (cited supra), another 2-Judge Bench
of the Hon'ble Apex Court after extracting Section 100 of CPC, held that:
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"From a bare reading of the aforesaid provision
it is manifestly clear that an appeal shall lie to
the High Court from an appellate decree only if
the High Court is satisfied that the case involves
a substantial question of law. It further mandates
that the memorandum of appeal should precisely
state the substantial question of law involved in
the appeal. If such an appeal is filed, the High
Court while admitting or entertaining the appeal
must record its satisfaction and formulate the
substantial question of law involved in the
appeal. The appeal shall then be heard on the
questions so formulated and the respondent shall
be allowed to argue only on those substantial
questions of law. However, the proviso to this
section empowers the court to hear on any
substantial questions of law not formulated after
recording reasons."
In the light of these principles, the substantial questions of law admitted
by this Court need to be answered.
Substantial Question No.1:
Whether the judgment of the Lower Appellate Court is vitiated as contrary
to Order XLI Rule 31 of CPC? And whether the said judgment is not
defective even though as the final court of fact the Appellate Court was
required to adjudicate the appeal on all questions of law and fact?
24. The scope of Order XLI Rule 31 of CPC was also stated by the Hon'ble
Apex Court in several cases. If the First Appellate Court decides the appeal
22
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without following the procedure required under Order XLI Rule 31 of CPC, the
High Court can interfere in the Second Appeal. Order XLI Rule 31 of CPC
provides guidelines for the Appellate Court as to how the Court has to proceed
and decide the case. The Hon'ble Apex Court in Thakur Sukhpal Singh v.
Thakur Kalyan Singh & another14 and Girija Nandini Devi & Others v.
Bijendra Narain Choudhary 15, held that:
"It must be evident from the judgment of the
appellate court that the court has properly
appreciated the facts/evidence, applied its mind
and decided the case considering the material on
record. It would amount to substantial
compliance of the said provisions if the
appellate court's judgment is based on the
independent assessment of the relevant evidence
on all important aspects of the matter and the
findings of the appellate court are well founded
and quite convincing. It is mandatory for the
appellate court to independently assess the
evidence of the parties and consider the relevant
points which arise for adjudication and the
bearing of the evidence on those points. Being
the final court of fact, the first appellate court
must not record mere general expression of
concurrence with the trial court judgment rather
it must give reasons for its decision on each
point independently to that of the trial court.
Thus, the entire evidence must be considered
14
AIR 1963 SC 146
15
AIR 1967 SC 1124
23
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and discussed in detail. Such exercise should be
done after formulating the points for
consideration in terms of the said provisions and
the court must proceed in adherence to the
requirements of the said statutory provisions."
25. The Hon'ble Apex Court in H.Siddiqui (Dead) by LRs. v.
A.Ramalingam (cited supra) while referring to its earlier judgment in
B.V.Nagesh & another v. H.V.Sreenivasa Murthy [JT (2010) 10 SC 551],
held that:
"The appellate Court has jurisdiction to reverse
or affirm the findings of the trial Court. The first
appeal is a valuable right of the parties and
unless restricted by law, the whole case therein
is open for re-hearing both on questions of fact
and law. The judgment of the appellate Court
must, therefore, reflect its conscious application
of mind and record findings supported by
reasons, on all the issues arising along with the
contentions put-forth and pressed by the parties
for decision of the appellate Court. Sitting as a
court of appeal, it was the duty of the High
Court to deal with all the issues and the evidence
led by the parties before recording its findings.
The first appeal is a valuable right and the
parties have a right to be heard both on
questions of law and on facts and the judgment
in the first appeal must address itself to all the
issues of law and fact and decide it by giving
reasons in support of the findings."
24
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26. The Hon'ble Apex Court in Rajasthan State Road Transport
Corporation & another v. Bajrang Lal (cited supra) held that:
"19. ... There is no prohibition for the High
Court to entertain the Second Appeal even on
question of fact where factual findings are found
to be perverse.
20. In Union of India v. Ibrahim Uddin
[(2012) 8 SCC 148], this Court held:
"65. In Suwalal Chhogalal v.
CIT, (1949) 17 ITR 269 (Nag)
the Court held as under: (ITR p.
277)
"... A fact is a fact irrespective of
evidence by which it is proved.
The only time a question of law
can arise in such a case is when it
is alleged that there is no material
on which the conclusion can be
based or no sufficient material.
67. There is no prohibition to
entertain a second appeal even on
question of fact provided the
Court is satisfied that the findings
of the courts below were vitiated
by non-consideration of relevant
evidence or by showing
erroneous approach to the matter
and findings recorded in the court
below are perverse.
25
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[Vide Jagdish Singh v. Natthu
Singh, AIR 1992 SC 1604,
Prativa Devi v. T.V. Krishnan,
(1999) 5 SCC 353, Satya Gupta
v. Brijesh Kumar, (1998) 6 SCC
423, Ragavendra Kumar v.
Firm Prem Machinery &
Co., AIR 2000 SC 534, Molar
Mal v. Kay Iron Works (P)
Ltd., AIR 2000 SC 1261,
Bharatha Matha v. R. Vijaya
Renganathan, (2010) 11 SCC
483 and Dinesh Kumar v. Yusuf
Ali, (2010 12 SCC 740]
68. In Jai Singh v. Shakuntala
[(2002) 3 SCC 634, this Court
held that (SCC p. 638, para 6) it
is permissible to interfere even on
question of fact but it may be
only in "very exceptional cases
and on extreme perversity that
the authority to examine the same
in extenso stands permissible --
it is a rarity rather than a
regularity and thus in fine it can
be safely concluded that while
there is no prohibition as such,
but the power to scrutiny can
only be had in very exceptional
circumstances and upon proper
circumspection".
26
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Similar view has been taken
in Kashmir Singh v. Harnam
Singh, AIR 2008 SC 1749."
(Emphasis in original)
27. In Shasidhar and Others v. Smt.Ashwini Uma Mathad and Another
(cited supra), the Hon'ble Apex Court held that:
12. The powers of the first appellate Court,
while deciding the first appeal under Section 96
read with Order XLI Rule 31 of the Code, are
indeed well defined by various judicial
pronouncements of this Court and are, therefore,
no more res integra.
13. As far back in 1969, the learned Judge - V.R.
Krishna Iyer, J (as His Lordship then was the
judge of Kerala High Court) while deciding the
first appeal under Section 96 of the CPC
in Kurian Chacko vs. Varkey Ouseph, AIR
1969 Kerala 316, reminded the first appellate
Court of its duty as to how the first appeal
under Section 96 should be decided. In his
distinctive style of writing and subtle power of
expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in
two Courts, has come up here
aggrieved by the dismissal of his
suit which was one for
declaration of title and recovery
of possession. The defendant
27
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disputed the plaintiff's title to the
property as also his possession
and claimed both in himself. The
learned Munsif, who tried the
suit, recorded findings against the
plaintiff both on title and
possession. But, in appeal, the
learned Subordinate Judge
disposed of the whole matter
glibly and briefly, in a few
sentences.
2. An appellate court is the final
Court of fact ordinarily and
therefore a litigant is entitled to a
full and fair and independent
consideration of the evidence at
the appellate stage. Anything less
than this is unjust to him and I
have no doubt that in the present
case the learned Subordinate
Judge has fallen far short of what
is expected of him as an appellate
Court. Although there is furious
contest between the counsel for
the appellant and for the
respondent, they appear to agree
with me in this observation....."
(Emphasis supplied)
14. This Court in a number of cases while
affirming and then reiterating the aforesaid
principle has laid down the scope and powers of
28
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the first appellate Court under Section 96 of the
Code.
28. Applying the aforesaid principles to the facts of the case, it is observed
that the judgment of the lower Appellate Court is a cryptic judgment. Up to
Para 11, the lower Appellate Court had referred to the pleadings, evidence and
judgment of the trial court, from Para Nos.12 to 20 mentioned about filing of
the appeal and the contentions of both the parties and in Para No.21 mentioned
about filing of I.A.No.1392 of 1996 under Order XLI Rule 27 of CPC by the
respondent and marking of Ex.A27, the order of the Joint Collector dated
20.07.1996. Only in Para Nos.22 and 23, the reasons for dismissing the appeal
are given which are only in one page. The lower Appellate Court had
mentioned that the respondent filed the suit for simplicitor injunction against
the appellant in Para No.22, which was incorrect. The respondent infact had
filed the suit for declaration of title and injunction relating to Ac.3-00 guntas of
land in Survey No.54. The respondent who was the plaintiff in O.S.No.162 of
1992 had got the plaint amended and added the relief of declaration. The same
was not observed by the lower Appellate Court. The lower Appellate Court had
not given any finding relating to the aspect of oral partition pleaded by the
plaintiff, on the basis of which, the plaintiff claimed to be the owner of the
Ac.3-00 guntas of land out of Ac.8-11 guntas. The lower Appellate Court
merely stated that the documents filed by the respondents i.e. Exs.A4 to A19
29
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were categorically supporting that he was in possession and enjoyment of Ac.3-
00 guntas of land in Survey No.54 and on that basis dismissed both the appeals.
29. The contention of the learned counsel for the appellant was that the
appellant had taken ground Nos.2 and 6 in the grounds of appeal before the First
Appellate Court relating to decreeing of the suit filed by the respondent in
O.S.No.162 of 1992. However inspite of the plaintiff i.e. the respondent herein
not proving oral partition in pursuance of which he claimed that his father had
got Ac.3-00 guntas of land out of Ac.8-11 guntas in Survey No.54, the
Appellate Court did not even frame a point for consideration relating to the said
ground taken by the appellant and not made any discussion thereon. The
Appellate Court which was the final Court of facts failed to follow the
procedure prescribed under Order XLI Rule 31 of CPC while dismissing the
first appeal. The First Appellate Court has to go into the entire oral and
documentary evidence filed before the trial court and discuss all the points
elaborately after framing points for consideration and then arrive at a finding
relating to the said points framed by it by giving independent reasons to that of
the trial court as observed by the Hon'ble Apex Court in the above cases.
30. The record would disclose that the First Appellate Court failed to frame
proper points for consideration and only framed a single point for consideration
as to whether the judgment and decree passed by the learned Principal District
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Munsif, Nizamabad in O.S.No.162 of 1992 and O.S.No.170 of 1992 dated
22.02.1996 is proper and correct or the same is liable to be set aside? It had not
discussed the oral and documentary evidence filed before the trial court and had
not given independent reasons for arriving at the finding and even failed to
consider the nature of the suits filed by the parties and made factually incorrect
observations stating that the respondent filed the suit for simplicitor injunction
though he filed the suit for declaration of title and consequential injunction and
held that the documents filed by the respondent were categorically supporting
that he was in possession and enjoyment of the suit schedule property in Survey
No.54 to an extent of Ac.3-00 guntas without considering whether the
respondent was having title over the suit schedule property or not and made an
observation that the appellant, who filed the suit for injunction had not placed
any oral evidence to substantiate that he was the absolute owner of Survey
No.54 to an extent of Ac.8-11 guntas without considering that the point to be
considered in the said case was with regard to the possession of the appellant at
the time of filing the suit. As such, this Court considers that the First Appellate
Court failed in its obligation to follow the procedure prescribed under Order
XLI Rule 31 of CPC. As such, the substantial question No.1 is answered
holding that the judgment of the Lower Appellate Court is contrary to Order
XLI Rule 31 of CPC and as a final Court of fact failed to adjudicate the appeal
on all questions of fact and law.
31
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Substantial Question No.2:
Whether the courts below were justified in decreeing the suit of the
plaintiff inspite of the categorical finding of the trial court that the plaintiff
failed to prove oral partition as pleaded and thereby the title pleaded by
the plaintiff under the said oral partition was negatived?
31. As seen from the judgment of the trial court, the trial court rightly
considered that as the suit was filed by the respondent - plaintiff in O.S.No.162
of 1992 was for declaration of title and for consequential relief of perpetual
injunction, the plaintiff has to prove that there was oral partition as contended
by him during the lifetime of his grandfather late Ahmed Hussain in respect of
Ac.8-11 guntas of land in Survey No.54 and that the plaintiff's father
Buranuddin, his brother Habeebuddin and the defendant were allotted Ac.3-00
guntas, Ac.3-00 guntas and Ac.2-11 guntas each respectively. The trial court
observed that the evidence of PW.1, the plaintiff and the evidence of PW.2, the
brother-in-law of the plaintiff was only adduced to prove the oral partition and
no elder member of the family was examined to speak about the oral partition
by late Ahmed Hussain. It also observed that PW.2 was not a competent person
to speak about the oral partition that took place during the lifetime of Ahmed
Hussain somewhere prior to the year 1974, his knowledge about his father-in-
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law being in possession of Ac.3-00 guntas of land in Survey No.54 is only after
his marriage and considering the evidence of PW.2 that he did not know as to in
whose name the patta stands for all the Ac.8-11 guntas of land in Survey No.54
and in whose name the patta passbook was given, rejected the evidence of PW.2
as not satisfactory.
32. The trial court also observed that the exhibits filed by the plaintiff did not
speak about the oral partition pleaded by the plaintiff in respect of Ac.8-11
guntas in Survey No.54, however, held that the plaintiff by examining himself
and marking the pahanies under Exs.A4 to A19 proved that his father was in
possession and enjoyment of Ac.3-00 guntas of land in Survey No.54 and after
his death he was in possession and enjoyment of the suit property. Even
though, the plaintiff failed to show the oral partition, the long possession of the
plaintiff to the extent of Ac.3-00 guntas of land and considering the nature of
the property as the ancestral property held that the plaintiff perfected his right
and title to an extent of Ac.3-00 guntas of land in Survey No.54. The trial court
further observed that the plaintiff enjoyed the suit land openly, uninterruptedly,
exclusively to himself, without any plea of adverse possession taken by the
plaintiff, which finding was erroneous.
33. The trial court while dismissing the suit in O.S.No.170 of 1992 filed by
the appellant stated in Para No.20 that the plaintiff (appellant) has to prove his
33
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title to the suit property along with possession and that the documents marked
as Exs.B8 to B10 would not show his possession to the suit land even in the
year 1974-75 to 1976-77 over the entire extent of Ac.8-11 guntas. As such, he
was not entitled for permanent injunction as prayed for in O.S.No.170 of 1992.
The said finding of the trial court was also incorrect on facts and on law.
Placing the burden of proof on the appellant to prove his title in a suit for
perpetual injunction and even without any evidence of title adduced by the
respondent - plaintiff in O.S.No.162 of 1992, which was filed for declaration of
title and consequential injunction, decreeing the said suit is considered as
against the principles of law. The First Appellate Court confirming the said
judgment of the trial court without considering the nature of the suits filed by
the parties and without discussing the oral and documentary evidence adduced
by the parties and without discussing about the oral partition raised by the
respondent - plaintiff is considered as improper.
Substantial Question No.3:
Whether the courts below were justified in placing the burden of proof of
title on the defendant, even though the plaintiff failed to discharge his
initial burden?
34. Even though, the plaintiff had taken the plea of oral partition and failed to
discharge the initial burden laid upon him, the trial court even on coming to the
conclusion that the plaintiff failed to prove the oral partition, decreeing the suit
34
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on the basis of the long standing possession of the plaintiff without any plea of
adverse possession taken by the plaintiff and placing the burden of proving the
title upon the appellant - defendant in O.S.No.162 of 1992 is considered as
unjustified. The First Appellate Court confirming the said judgment of the trial
court without assessing the oral and documentary evidence independently and
confirming the said judgment of the trial court is considered as illegal.
35. All the documents filed by the appellant as well as the respondent
(Exs.A4 to A19 & Exs.B1, B8 to B10) would show the name of the appellant as
pattedar to an extent of Ac.8-11 guntas. As seen from the evidence of the
witnesses, the suit schedule properties are dry lands and were left fallow. The
name of the respondent - plaintiff or the name of his father entered in the
pahani relating to person in actual possession when the land was kept fallow or
vacant, would not help him in establishing his possession. The question as to
who was in possession of the land kept fallow or vacant mainly has to be
decided on title. Pahanies are maintained mainly for the purpose of revenue
collection and statistics as to who raised what crop and on what extent of land.
Therefore, when a land is kept fallow or vacant, column regarding possession
should not be filled in as the name of the person who actually cultivated the
land. So merely because a person who is not the owner could manage to get his
name entered in the pahani, when the land is kept fallow or when it is a vacant
land, without establishing or proving his positive overt act of possession
35
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thereon cannot be held that he was in possession of such vacant land of which
he was not the owner. As such, recording the name of the respondent -
plaintiff or his ancestors in the possessory column in some of the pahanies when
the land is kept fallow would not establish or prove his possession
thereon.
36. In the result, both the Second Appeals are allowed setting aside the
common judgments passed in A.S.Nos.37 and 38 of 1996 dated 19.03.2002 by
the Additional District Judge, Nizamabad and in O.S.Nos.162 and 170 of 1992
dated 22.02.1996 by the Principal District Munsif, Nizamabad and the suit filed
by the respondent - plaintiff in O.S.No.162 of 1992 is dismissed and the suit
filed by the appellant in O.S.No.170 of 1992 is allowed.
No order as to costs.
As a sequel, miscellaneous applications pending in these appeals, if any
shall stand closed.
C.C.(SR).No.2644 OF 2012:
O R D E R:
This Contempt Case is filed by the petitioner - appellant to punish the
respondents - contemnors under Sections 10 and 12 of the Contempt of Courts
Dr.GRR, J
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Act for willfully and wantonly disobeying the orders dated 11.11.2002 passed in
S.A.No.584 of 2002.
2. Heard the learned counsel for the petitioner - appellant and the learned
counsel for the respondent No.1.
3. Learned counsel for the petitioner submitted that the petitioner filed the
Second Appeal challenging the decree and judgment in A.S.No.37 of 1996,
which was dismissed by the Lower Appellate Court confirming the judgment
and decree passed by the Principal District Munsif, Nizamabad in O.S.No.162
of 1992. The respondent No.1 - plaintiff filed O.S.No.162 of 1992 for
declaration of title and permanent injunction against the petitioner. The
petitioner filed O.S.No.170 of 1992 against the respondent No.1 herein for
permanent injunction. Both the suits were tried together and the suit filed by
the respondent No.1 was decreed and the suit filed by the petitioner was
dismissed. Aggrieved by the common judgment, the petitioner preferred two
First Appeals vide A.S.Nos.37 and 38 of 1996. The Lower Appellate Court
confirmed the decree passed by the trial court. During the pendency of the suits
as well as during the pendency of the appeals, the petitioner - appellant was in
possession of the suit schedule property and injunction was granted in his favor.
Aggrieved by the common judgment of the Additional District Judge,
Nizamabad in A.S.Nos.37 and 38 of 1996, the petitioner preferred two Second
Appeals vide S.A.Nos.584 and 594 of 2002. This Court passed an interim order
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in C.M.P.No.14208 of 2002 in S.A.No.584 of 2002 staying the operation of the
decree in O.S.No.162 of 1992. The petitioner on apprehension that the
respondent No.1 might apply for deleting the name of the petitioner and adding
his name, gave a representation to the Joint Collector on 22.03.2004. The
petitioner also gave a representation to Tahsildar on 16.07.2011 and also on
09.01.2012. The petitioner recently came to know that the entry in the pahani
for the year 2011-12 had been changed and the name of respondent No.1 was
recorded without giving any opportunity and without issuing any notice to the
petitioner. Inspite of a subsisting stay order by this Court, the respondent No.4
made corrections in the pahanies on 02.01.2012 on the basis of decree in
A.S.No.37 of 1996, which was not permissible in law in view of the stay
granted by this Court. The petitioner's name was recorded in the pahanies for
the past several years. The pahanies for the years 2002-03, 2008-09, 2009-10,
2010-11 would show the name of the petitioner herein as pattedar for total
extent of Ac.8-11 guntas, whereas in the pahanies for the year 2011-12, the
name of respondent No.1 was shown as pattedar for Ac.3-00 guntas. Inspite of
giving representation to the Tahsildar, the respondent No.4 willfully violated the
orders of this Court and changed the names in the pahanies on 02.01.2012
without giving any notice to the petitioner and prayed to punish respondents 1
to 4 for violation of the orders of this Court in C.M.P.NO.14208 of 2002 in
S.A.No.584 of 2002 dated 11.11.2002.
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4. Learned counsel for the respondent No.1 on the other hand contended that
parallel proceedings have run before the Revenue Authorities for rectification of
records. The Mandal Revenue Officer (for short "MRO"), Makloor passed
orders dated 30.04.1992 for mutation of the name of the respondent No.1 in
respect of Ac.3-00 guntas in Survey No.54 as successor of late Buranuddin.
Prior to 30.04.1992, the petitioner obtained patta in respect of entire extent of
Ac.8-11 guntas in his name on 30.01.1978. In revenue records, the name of the
father of the respondent was shown as possessor to an extent of Ac.3-00 guntas
and the name of late Habeebuddin was shown as possessor to an extent of Ac.3-
00 guntas, though the name of the petitioner was shown as pattedar. The
petitioner's name was shown as possessor to an extent of Ac.2-11 guntas only.
All the pahanies prior to 30.04.1992 continued in the name of the father of the
respondent No.1 by name late Buranuddin in respect of Ac.3-00 guntas of land
in Survey No.54 as possessor. Later, the MRO passed orders mutating the name
of the respondent - plaintiff and granting patta in his name to an extent of
Ac.3-00 guntas by order dated 30.04.1992. The respondent filed O.S.No.162 of
1992 for declaration of title in respect of Ac.3-00 guntas of land on 12.05.1992
and the petitioner filed O.S.No.170 of 1992 on 19.05.1992 for perpetual
injunction in respect of entire extent of Ac.8-11 guntas. Both the suits were
clubbed together and a common judgment was passed on 22.02.1996 decreeing
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the suit filed by the respondent - plaintiff and dismissing the suit filed by the
petitioner - appellant herein.
5. He further submitted that while so, the petitioner preferred appeal in
April, 1993 against the orders of MRO dated 30.04.1992. The Revenue
Divisional Officer (for short "RDO") allowed the appeal ex-parte on
04.05.1995. The respondent preferred revision before the Joint Collector,
Nizamabad in May, 1995 and the same was allowed on 20.07.1996. The
Additional Chief Judge, Nizamabad dismissed both the appeals A.S.Nos.37 and
38 of 1996 by common judgment dated 19.03.2002. Since then, the respondent
was pursuing the Revenue Authorities to mutate his name in the pahani /
adangal in pursuance of the orders of the Joint Collector, Nizamabad dated
20.07.1996. After obtaining stay orders dated 11.11.2002 in C.M.P.No.14208
of 2002, the petitioner in the Contempt Case approached the Revenue
Authorities and got mutated his name in the pahanies for the year 2002-03 in the
possessor's column to an extent of Ac.8-11 guntas. In fact, there was no order
from this Court to mutate the petitioner's name in the possessor's column. The
order of the court dated 11.11.2002 would only show that the operation of the
decree in O.S.No.162 of 1992 on the file of the Principal District Munsif,
Nizamabad was stayed. The Joint Collector, Nizamabad passed orders on
20.07.1996, which was admittedly after the date of decree in O.S.No.162 of
1992 dated 22.02.1996. The respondent under the impression that the Revenue
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Proceedings were separate, approached authorities to implement the Joint
Collector order dated 20.07.1996. As the petitioner got mutated his name in the
possessor column after obtaining stay order dated 11.11.2002 in the pahanies,
the respondent approached the Revenue Authorities for mutation of his name.
But the respondent had no intention to disobey the orders of the Court. In case,
the action of the respondent comes under the Contempt of Court order, the
action of the petitioner would also come under the Contempt of Court and
further submitted that in case, the Court comes to a conclusion that the
respondent acted contrary to the orders of the Court, the respondent was
tendering his un-conditional apologies to the Court and prayed to excuse his
mistake.
6. The respondent No.2 filed counter submitting that the copy of the interim
directions issued in C.M.P.No.14208 of 2002 dated 11.11.2002 of this Court
was not received in the Office of the Tahsildar, Makloor. Neither the petitioner
nor the respondent had filed the copy of the interim directions issued by this
Court and hence the Office of the Tahsildar, Makloor was unaware of the
interim directions issued by the Court and implemented the orders passed by the
lower Court i.e. the learned Additional District Judge, Nizamabad. The
respondent No.1, who was working in Government Service filed a petition
before the RDO, Nizamabad for implementing the orders passed by the District
Court hiding the facts of the case that this Court have issued interim directions
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on the orders of the District Court, Nizamabad. The petitioner filed a copy of
the interim directions in the Office of the Tahsildar, Makloor on 16.07.2011.
The Tahsildar, Makloor implemented the orders of the Additional District
Judge, Nizamabad issued in A.S.Nos.37 and 38 of 1996 without knowing the
interim directions issued by this Court and prayed to close C.C. (SR).No.2644
of 2012.
7. An additional counter affidavit was also filed by respondent No.2
tendering his un-conditional apology and submitted that he retired from the post
of Tahsildar, Makloor Mandal and that he was also suffering from ill-health and
prayed to take a lenient view and close the Contempt Case.
8. The respondents 2 to 4 filed a memo vide U.S.R.No.11315 of 2018 dated
26.02.2018 stating that they committed mistake of altering the entry from the
name of Moizuddin to the name of Raheemuddin. But they rectified the said
mistake and once again mentioned the name of the appellant as pattedar and
possessor to the entire extent of Ac.8-11 guntas of land and filed appropriate
copies of the proceedings vide U.S.R.No.11315 of 2018 dated 26.02.2018.
9. Learned counsel for the petitioner submitted that the matter came up
before the Hon'ble Justice Dr.B.Siva Shankar Rao on 24.01.2019 and his
Lordship proposed to close the Contempt Case against all the respondents
subject to respondent No.1 paying costs of Rs.2,000/- to the Army Welfare
Dr.GRR, J
sa_584 & 594_2002 & cc (sr)_2644_2012
Fund, but, as the respondent No.1 was not willing to pay costs, as such his
Lordship proceeded to close the Contempt Case against the Official
Respondents keeping the same pending against respondent No.1 and prayed to
punish respondent No.1.
10. As seen from the counter affidavit filed by respondent No.1, he stated that
he was under the impression that the Revenue Proceedings were separate and as
such approached the authorities to implement the orders of the Joint Collector
dated 20.07.1996. However, the pahani for the year 2011-12 would disclose
that the correction was made in pursuance of the order passed in A.S.Nos.37
and 38 of 1996, but not as per the orders of the Joint Collector dated
20.07.1996. The affidavit filed by the official respondent No.2 also would
disclose that the respondent No.1 filed a petition before the RDO, Nizamabad
for implementing the orders passed by the District Court hiding the stay order
passed by this Court. As such, this Court is of opinion that the respondent No.1
violated the orders passed by this Court in C.M.P.No.14208 of 2002 in
S.A.No.584 of 2002 dated 11.11.2002. The respondent No.1 being in
Government Service was aware of the implications of violation of the orders
passed by this Court. Though this Court had granted opportunity to him to
close the Contempt Case on payment of costs of Rs.2,000/- to the Army
Welfare Fund, he did not choose to pay the costs. Hence, it is considered fit to
sentence the respondent No.1 to suffer imprisonment for a period of 30 days and
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to pay a fine of Rs.2,000/-. The petitioner is directed to pay subsistence
allowance @ Rs.200/- per day to the respondent No.1 / contemnor during the
period of his detention in civil prison within four (04) weeks from today.
11. In the result, the Contempt Case is allowed with the above directions.
As a sequel, miscellaneous applications pending in this petition, if any
shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 11th September, 2024
Nsk.
