the I-Additional District Judge, Ranga Reddy District at L.B. Nagar.
2. The appellant-plaintiff filed a suit for declaration of title and
for consequential permanent injunction. The suit schedule properties
various survey numbers i.e. Sy. Nos.212, 213, 216 to 219 and 222 to
Reddy District. The respondents-defendants were none other than the
sisters of the appellant-plaintiff. The case of the plaintiff was that
belonged to their grandfather Chetkuri Shiva Reddy. After his death, his
defendants) succeeded to the entire estate. The father of the plaintiff
was having three sons and six daughters. He performed the marriages of
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.
son Hari Kishan Reddy. His daughters were living happily at their
respective in-laws houses. Subsequently, the elder son of Chetkuri
sons as his legal representatives. The father of the plaintiff also died 22
years ago. After the death of Ramachandra Reddy, the plaintiff, his
entire property among themselves. The plaintiff succeeded to the suit
schedule property along with other properties. Since then, he was in
possession and enjoyment of the schedule lands as owner and possessor.
possessory column for the past more than 16 years. The defendants
over the suit schedule land and never objected him. The defendants
schedule properties. But, their names were found in patta column from
the year 1987 onwards without any proceedings or sale documents. By
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AS No.267 of 2011 &
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elements. Immediately, the plaintiff resisted their illegal acts with the
help of his brother and other neighbours. The defendants damaged the
or other. Immediately, the plaintiff approached the Mandal Revenue
recorded in the patta column from the year 1987 onwards. Earlier to
that, their names were also found in possessory column. In fact, the
land at any point of time. As the defendants were time and again
Pahadishareef on 20.09.2005. But, neither they have taken any action
nor gave any acknowledgment receiving the complaint.
2.1. The plaintiff further submitted that the names of the
proceedings. The entries in the names of the defendants in the revenue
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the plaintiff. But, the defendants taking advantage of wrong entries
of land value in the said locality. The plaintiff being in peaceful
3. The defendant Nos.1 and 2 filed separate but identical written
statements. They contended that the suit lands were earlier owned and
original pattadars. The father of the defendants was the protected tenant
in respect of the land held by Fakir Mohammed and Mumtaz Abbas Ali.
Their father C. Ramachandra Reddy waived his claim as tenant in
favour of the pattadars by way of separate documents on 01.02.1955.
Thereafter, the said pattadars i.e. Fakir Mohammed and Mumaz Abbas
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AS No.267 of 2011 &
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Ali sold the suit properties to the defendants. The said transaction was
were the absolute properties of the defendants. Therefore, the question
arise. The relief of declaration was misconceived and not maintainable
in the eye of law. They further contended that the question of adverse
law. The defendants being the absolute owners and possessors in
arise. They contended that during the lifetime of their father, the said
agents. Their possession was not with an intention to own the suit
schedule property. The Government of Andhra Pradesh also granted
MRO, Maheswaram Mandal in their favour. The said lands were
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AS No.267 of 2011 &
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over the suit schedule properties. At no point of time, neither Shiva
as their property. Neither the plaintiff nor their father ever declared the
ownership either as pattadar or as protected tenant. The suit schedule
grandfather. The alleged entries in the revenue records did not confer
any title nor legally vested right in favour of the plaintiff in any manner.
4. Basing on the above pleadings, the trial court framed the issues
i) Whether the oral partition of properties pleaded by
the plaintiff at para No.3 of the plaint is true and
correct?
Dr.GRR,J
AS No.267 of 2011 &
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ii) Whether the plaintiff is the owner and is in
possession and enjoyment of the plaint schedule
properties since long time?
iii) Whether the plaintiff is entitled to a declaration of
his right and title over the plaint schedule properties?
iv) Whether the plaintiff is entitled to a decree of
perpetual injunction as prayed for?
v). To what relief?
5. The plaintiff examined himself as PW.1 and examined the
neighbouring land owners of the suit schedule properties as PWs.2 and
3. Exs.A1 to A29 were marked on behalf of the plaintiff. Defendant
Nos.1 and 2 were examined as DWs.1 and 2 and Exs.B1 to B40 were
marked on their behalf.
6. The trial court on considering the oral and documentary
evidence on record, dismissed the suit filed by the plaintiff observing
that though the oral partition of the properties pleaded by the plaintiff
was true and correct to the extent of non-suit schedule properties, as the
plaintiff miserably failed to prove the inclusion and allotment of the suit
schedule property to his share in the said partition, answered issue No.1
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AS No.267 of 2011 &
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against him. The trial court answered issue No.2 observing that no
doubt the plaintiff was in possession of the suit schedule land, but not in
the capacity as the owner. The trial court answered issue No.3
observing that the plaintiff had not challenged the pahanies before the
Revenue authorities. The plaintiff was not in possession of the suit
schedule property continuously from the date of filing of the suit as
such, he was not entitled to be declared as owner of the schedule
property by way of adverse possession and finally answered issue No.4
observing that the plaintiff was not entitled to seek equitable relief of
injunction on account of suppression of material facts and on his failure
to prove interference of the defendants over the schedule properties.
7. Aggrieved by the said judgment and decree passed by the
learned I-Additional District Judge, Ranga Reddy District on
07.02.2011, the plaintiff preferred this appeal.
8. The respondents also filed cross-objections contending that the
finding of the trial court in respect of issue No.2 to the extent that the
plaintiff was in possession of the suit schedule land was contrary to the
evidence on record and the same was liable to be set aside.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
9. Heard Sri M.V. Durga Prasad, learned Senior Counsel for the
appellant-plaintiff and Sri MVS Suresh Kumar, learned Senior Counsel
representing Sri Naraparaju Avaneesh, learned counsel on record for the
respondents-defendants.
10. The learned Senior Counsel for the appellant-plaintiff
contended that the trial court erred in dismissing the suit filed by the
plaintiff ignoring the material admissions of the defendants about the
possession of the plaintiff both in pleadings and evidence. The
defendants admitted the possession of the plaintiff, but stated in their
pleadings that the plaintiff was in possession as their agent, the proof of
which squarely would lie upon them, but they abandoned the said plea
while adducing their evidence. The defendants themselves denied their
own material defence of agency in view of the admitted open,
continuous and uninterrupted possession of the plaintiff for more than
the statutory period, which was adverse to the claim for the title of the
defendants. The trial court failed to see that the plaintiff was claiming
both possession and title as ancestral property through father and
grandfather and on the other hand, the defendants claimed title and
possession directly from the pattadar taking specific plea that the father
had surrendered his protected tenancy, but no such proceedings under
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AS No.267 of 2011 &
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Section 19 of the A.P. (Telangana Area) Tenancy and Agricultural lands
Act, 1950 were pleaded or filed. In view of the defendants' failure to
prove the surrender, the defendants' admission of protected tenancy and
possession of the father as protected tenant would support the case of the
plaintiff and would falsify the defendants plea of purchase from the
pattadar under Exs.B2 and B20. The trial court failed to look into the
documentary evidence adduced by both sides. The pahanies filed by
both the plaintiff and defendants right from 1954-55 Khasra Pahani
under Ex.A15 and B15 and pahanies from 1961-1962 under Ex.A16,
B.16, A17, B17 and A18 would show that only the plaintiff's father late
Ramachandra Reddy was always in possession even after the alleged
sale in their favour under the alleged unregistered sale deeds Exs.B2 and
B20 and thereafter, the plaintiff was in possession as evident from the
pahanies under EXs.A2 to A13 and Exs.B10 to B13, B26 to B28 and
therefore, the plaintiff was entitled for both backward and forward
presumption. The defendants had not made any attempt to rebut the
same. The trial court failed to see that the defendants' failure to prove
their defence of surrender of tenancy and the admitted possession of
their father was fatal to their case. The affidavits filed before the Land
Reforms Tribunal about the surrender were contrary to the record and
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AS No.267 of 2011 &
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could not have any evidentiary value. The defendants failed to explain
the possession from the beginning till the death of their father either
before or after proceedings of the Land Reforms Tribunal and the sales
under Exs.B4 and B22. The trial court committed serious irregularity in
ignoring Exs.A24 to A29 agreements and receipts in respect of the
payments made under agreement to the pattadar by late Ramachandra
Reddy which would falsify the case of the defendants. The trial court
failed to see that EXs.B2 and B20 were dated 03.03.1956. The
defendant No.1 was admittedly a minor by the date of execution of
Ex.B2 and B20. She was aged 10 years and was a married woman, but
her husband's name was not mentioned in Ex.B2 and as per Ex.A25 and
Ex.B39, the plaintiff proved the date of birth of defendant No.2 as
13.05.1956. Therefore, she was not even born by the date of Ex.B20
which was dated 03.03.1956. As such, the defendants were incapable of
knowing about the transactions under Exs.B2 and B20 and therefore,
they could not speak or depose about the same. They failed to lead any
independent evidence by examining any person, who had knowledge
about the transactions in 1956. The defendants did not choose to
examine any elder either in the village or in the relatives to prove
Exs.B2 and B20 nor the vendor or the legal heirs of the vendor. No
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AS No.267 of 2011 &
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attempts were made to prove the signatures in Exs.B2 and B20. As
such, Exs.B2 and B20 remained unproved. As the age of the defendant
No.2 as per Exs.A25 and B39 birth certificates was dated 13.05.1956,
she was not even born by the date of Ex.B20 under which she was
claiming the title. Therefore, it was impossible in the nature of things
that she could purchase the suit schedule property or there could have
been a sale in her favour before her birth. This itself would prove that
the document was a bogus one. Such bogus and fraudulent documents
could not have been regularized under Section 50-B of the Tenancy Act.
As such, Ex.B22 was ex-facie fraudulent. Exs.B4 and B22 or Ex.B.33
and B.34 affidavits would not disclose that the plaintiff or his father
were parties to the proceedings. Exs.B33 and B34 affidavits would not
disclose that the tenancy was sought to be surrendered in terms of
Section 19 of the Tenancy Act and no proceedings of the MRO were
filed accepting the surrender which was mandatory under the said
section.
10.1. Learned Senior Counsel for the appellant-plaintiff further
submitted that the oral partition after the death of C. Ramachandra
Reddy was admitted by the defendants in their cross-examination. As
such, the findings of the trial court that the plaintiff failed to prove that
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AS No.267 of 2011 &
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the suit schedule property fell to his share in the said partition were
contrary to record. The admitted facts would not need to be proved.
The trial court failed to see that the name of the plaintiff was deleted in
Exs.B9 to B17 pahanies without any proceedings. Further, Exs.B37 and
B38 would show alteration by adding the name of the defendants. In
Ex.B12 both patta and possessory columns were corrected. The said
entries were contrary to the admissions made in the written statements
of the defendants. The defendant No.2 as DW.2 herself admitted that
the name of the plaintiff was struck off in EXs.B10, B12, B13, B14 to
B25 and B28 at her request and on enquiry made by patwari without any
proceedings as required under the Act. Therefore, such alterations were
void and would have no legal effect. The trial court failed to see that the
plaintiff filed Exs.A18 to A23 cist receipts showing the cist paid by his
father and subsequent to the death of his father, by him as Kabjadar
(possessor). No evidence was filed by the defendants to rebut the same.
The trial court erroneously dismissed the suit inspite of the fact that the
defendants admitted the case of the plaintiff and his possession over the
suit schedule property and relied upon the judgment of the Hon'ble
Apex Court in Ramachandra Keshav Adke (dead) per LRs. and
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others v. Govind Joti Chavare and others1 on the requirements of a
valid surrender of tenancy.
10.2. He further relied upon the judgment of the Hon'ble Apex
Court in Babu Parasu Kaikadi (dead) by LRs. v. Babu (dead)
through LRs.2 wherein the judgment of the Hon'ble Apex Court in
Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Dubal
[(1994) 3 SCC 366] delivered without noticing the earlier binding
precedent of a coordinate Bench in Ramchandra Keshav Adke case (1
supra) was rendered per incuriam, as passed without considering the
mandatory provisions under Sections 15 and 29 of the Tenancy Act.
10.3. He further relied upon the judgment of the Hon'ble Apex
Court in Musunuri Satyanarayana v. Dr. Tirumala Indira Devi and
Others 3, wherein it was held that twin conditions are mandatory for
surrender of tenancy, firstly, three months' notice in writing to landlord
and to Special Officer about intention to surrender tenancy and
secondly, satisfaction recorded by the Special Officer in the order, about
the voluntary nature of surrender after due inquiry.
1975 (1) SCC 559
2004 (1) SCC 681
(2022) 11 SCC 410
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.
11. The learned Senior Counsel for the respondents contended
that the suit was filed by the appellant-plaintiff suppressing the
declaration filed by the plaintiff before the Land Reforms (Ceiling on
Agricultural Holdings) Act, 1973. In the said declaration marked under
Ex.B1, the suit schedule properties were not mentioned. The plaintiff
was a party to the order of Land Reforms (Ceiling on Agricultural
Holdings) Act, 1973 marked under Ex.B18. The said order would show
that the landlord sold the suit schedule properties in favour of
respondent Nos.1 and 2 herein and that they were issued 50-B
certificates by the Tahsildar, as such, the lands covered by the suit
schedule properties stood deleted from the holding of the declarants.
The plaintiff suppressed the above facts in his plaint. The plaintiff who
approached the court was bound to produce all the documents which
were relevant to the litigation and if he withheld vital documents to gain
advantage over the other side, he would be guilty of playing fraud on the
court as well as on the opposite party and relied upon the judgment of
the Hon'ble Apex Court in S.P. Chengalvaraya Naidu (dead) by LRs.
v. Jagannath (Dead) by LRs. and others4.
1994 (1) SCC 1
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AS No.267 of 2011 &
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.
11.1. Learned Senior Counsel for the respondents further
contended that the plaintiff approached the court with a false case that
the suit schedule properties fell to his share in the oral partition among
himself, his brother Hari Kishan Reddy and the legal representatives of
his deceased brother, namely, Dayanand Reddy @ Shiva Reddy. But, in
the light of Exs.B1, B4, B18 and B22, the plaintiff was liable to be non-
suited for setting up a false case. He further contended that the plaintiff
having derived an advantage under the order of the Land Reforms
Tribunal dated 10.04.1977 under Ex.B18 excluding the suit schedule
property from his family holdings, was not entitled to question 50-B
certificates issued to the defendant Nos.1 and 2 on the principles of
"approbate and reprobate" as laid down by the Hon'ble Apex Court in
Cauvery Coffee Traders, Mangalore v. Hornor Resources
(International) Company Limited5.
11.2. He further contended that the plaintiff, inspite of being
aware of 50-B certificates issued to defendant Nos.1 and 2 on
29.04.1976 had not chosen to question the said certificates by way of
filing appeal under Section 19 of the Telangana (Tenancy and
2011 (10) SCC 420
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AS No.267 of 2011 &
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.
Agricultural Lands) Act, 1950. He also did not choose to question the
said certificates in the suit filed by him for declaration of title. In fact,
there was no pleading in the plaint about 50-B certificates that were
issued to defendant Nos.1 and 2, which were to the knowledge of the
plaintiff as per Ex.B18, order of the Land Reforms Tribunal. In the
absence of any plea or prayer in the suit questioning 50-B certificates, it
was not open to the plaintiff to question the validity of the said
certificates. The possession of the plaintiff was only as an agent of
defendant Nos.1 and 2 and placed reliance upon the judgment of the
Hon'ble Apex Court in Maria Margarida Sequeira Fernandes and
Others v. Erasmo Jack De Sequeira (dead) through LRs.6.
11.3. He further contended that the plaintiff having set up title
was not entitled to plead adverse possession as they were mutually
inconsistent. Adverse possession would not commence until the claim
for title is renounced and placed reliance upon the judgment of the
Hon'ble Apex Court in Karnataka Board of Wakf v. Government of
India and others 7.
(2012) 5 SCC 370
2004 (10) SCC 779
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
12. In the light of the pleadings and contentions raised by both
the learned counsel, now the points that arise for determination in this
appeal are:
1. Whether the appellant-plaintiff is entitled for the
relief of declaration of title and consequential
injunction as owner and possessor of the suit
schedule property, as prayed for?
2. Whether the appellant-plaintiff is entitled to claim
the alternative relief of declaration of his title by way
of adverse possession?
3. Whether the judgment of the trial court is in
accordance with law, weight of evidence or
probabilities of the case or whether the same is liable
to be set aside?
4. To what relief?
13. Point No.1:
Whether the appellant - plaintiff is entitled for the
relief of declaration of title and consequential injunction
as owner and possessor of the suit schedule property, as
prayed for?
In a suit for declaration of title, the burden heavily lies upon the
plaintiff to prove his title in respect of immovable properties. The
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.
plaintiff is not supposed to depend upon the weakness of the case set up
by the defendants.
14. The Hon'ble Apex Court in Moran Mar Basselios
Catholicos and Another v. Most Rev. Mar Poulose Athanasius and
Others 8 and also in Union of India and Others v. Vasavi Co-
operative Housing Society Limited and Others 9 held that in a suit for
declaration, if the plaintiffs are to succeed, they must do so on the
strength of their own title.
15. In Nagar Palika, Jind v. Jagat Singh, Advocate 10, the
Hon'ble Apex Court held that:
"The onus to prove title to the property in question was on the
plaintiff. In a suit for ejectment based on title it was
incumbent on the part of the court of appeal first to record a
finding on the claim of title to the suit land made on behalf of
the plaintiff. The court is bound to enquire or investigate that
question first before going into any other question that may
arise in a suit."
''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,
AIR 1958 SC 31
AIR 2014 SC 937
(1995) 3 SCC 426
Dr.GRR,J
AS No.267 of 2011 &
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.
irrespective of the question whether the defendants have
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 plaintiff's own title, plaintiff must be non-
suited."
16. Section 34 of the Specific Relief Act, 1963 enables a person
to have his right or legal character declared by a Court of Law, and thus
gets rid of the cloud about his legal character or right. The declaratory
relief under Section 34 of the Specific Relief Act, 1963 is in the nature
of equitable relief. Such declaration is in the discretionary power of the
Court and the discretionary power is to be exercised on sound judicial
principles. It is in the discretion of the Court to grant the relief. The
plaintiff has to substantially prove his rights as claimed by him. It is not
sufficient if the plaintiff proves that he is entitled to the legal character
or right to property. It is for him to convince the Court that the
defendant had denied or interested to deny the legal character or right of
the plaintiff, then only he could succeed in obtaining the declaration
sought.
17. As seen from the pleadings of the plaintiff, the plaintiff took
a specific stand that the suit schedule properties were his ancestral
properties i.e. they were the properties of his grandfather Sri Chetkuri
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AS No.267 of 2011 &
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.
Shiva Reddy and after the death of Shiva Reddy, the entire estate was
succeeded by his son Sri Ramachandra Reddy i.e. the father of the
plaintiff and the defendants. His further case was that after the death of
Ramachandra Reddy, the properties were partitioned amongst the
plaintiff, his brother Hari Krishna Reddy and legal heirs of his deceased
elder brother Sri C.Dayanand Reddy and in the said partition, the suit
schedule properties along with other properties fallen to his share and
since then, he was in possession and enjoyment as absolute owner and
possessor and his name was entered in the revenue records in the
possessory column.
18. The plaintiff got examined himself as PW.1 and two other
neighboring land owners as PWs.2 and 3. He had not examined any of
his family members in proof of the oral partition pleaded by him. He
did not examine his brother or his sister-in-law, who were parties to the
alleged oral partition. In his cross-examination, he stated that he could
not say the date of oral partition, but the oral partition took place in the
month of April or May of 1984. He stated that his elder brother Shiva
Reddy died in the year 1978 or 1979 and his father Ramachandra Reddy
died in the year 1982, April / May. He stated that apart from the suit
schedule properties, some other lands were also allotted to his share in
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AS No.267 of 2011 &
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.
the partition, but they were not described in the plaint. He further stated
that he had not made any application either to the Mandal Revenue
Officer or to any other revenue officer for mutation of lands in his name
after the oral partition and stated that he had not obtained either patta
passbook or title deed for the land that fell to his share till date. He
further added to the said statement that he obtained patta passbooks for
the lands that fell to his share, but the suit schedule lands were not
included in the said passbooks.
19. This admission made by the plaintiff in his cross-
examination raises a doubt about the suit schedule properties also being
partitioned and that they fell to the share of the plaintiff, because the
plaintiff admitted that apart from the suit schedule properties, there were
also other properties that fell to his share and he obtained patta
passbooks for the lands other than the suit schedule lands. He further
admitted that he came to know that the revenue authorities had issued
passbooks and title deeds for the plaint schedule property to the
defendants. But even after that, he did not approach the revenue
authorities for deletion of their names and inclusion of his name. He
further stated in his cross-examination that the original pattadars of
plaint schedule property were Fakir Mohammed and Mumtaz Ali, sons
Dr.GRR,J
AS No.267 of 2011 &
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of Mir Abbas Ali and that his father was having protected tenancy rights
for the lands possessed by Fakir Mohammed and Mumtaz Ali. This
admission made by the plaintiff was contrary to his pleadings that the
suit schedule property was the ancestral property belonging to his
grandfather and after his death, the same was succeeded by his father
Ramachandra Reddy. As such, the plaintiff is not having a right by birth
in the said property. Even to partition the same, he must prove that it
was the absolute property of his father and that his father died intestate.
There was no pleading to that effect.
20. In his further cross-examination, the plaintiff stated that he
did not know as to whether his father relinquished his protected tenancy
rights in favor of pattadars on 01.02.1955 since his father was having
protected tenancy rights more than the standard holding. He stated that
he did not know as to whether the MRO passed orders under Section 50-
B of the AP (Telangana Area) Tenancy and Agricultural Lands Act,
1950 on 29.04.1976 in favor of the defendants and stated that he did not
know as to whether his father pursued the revenue authorities and
obtained orders in favor of the defendants and denied that he was aware
of passing of the orders by the MRO and the same was also to the
knowledge of his other two brothers and father. He denied that his
Dr.GRR,J
AS No.267 of 2011 &
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.
father did not challenge the transaction in favor of the defendants and
his father pretty well knew about the sale transaction in favor of the
defendants. He admitted that his father filed declaration under Land
Ceiling Act and the certified copy of the declaration marked under
Ex.B1 would bear his signature. He admitted that he had shown the
lands possessed by his family members in Ex.B1 declaration and
claimed 1/4th share each to him, to his father and to his brothers and
claimed them as ancestral properties and the plaint schedule properties
were not mentioned as joint family properties in Ex.B1 declaration.
When he was confronted with the document and asked whether his
father filed counter in C.C.No.2665/1/75 on the file of the Land Reforms
Tribunal (South), Hyderabad, he stated that he did not know about the
same. He denied that being the brother of defendants 1 and 2, he looked
after the cultivation of the plaint schedule property on their behalf as
their agent. But the plaintiff admitted that he and his father or his other
brothers never questioned the orders of the Tribunal in C.C.Nos.2665,
2666 and 2667/1/75 dated 24.06.1977.
21. The document filed by the defendants marked under Ex.B1
would disclose that the plaintiff himself filed a declaration under Land
Reforms (Ceiling on Agricultural Holdings) Act, 1973 declaring the
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AS No.267 of 2011 &
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property held by him and admitted in his cross-examination that the suit
schedule properties were not shown by him in the said declaration. This
admission made by him belies his contention that he was the owner of
the suit schedule properties. If he was the owner of the schedule
properties, he would have shown the same in the declaration made under
the above Act. He specifically stated in the above document on
10.04.1975 declaring that he had no other property except what he had
declared.
22. Ex.B4 is the certificate issued to defendant No.1 under
Section 50-B of the Telangana Tenancy and Agricultural Lands Act,
1950 in respect of Ac.12-01 guntas in Survey Nos.218, 219, 224, 225,
226 and 227 of Kongara Khurd village and Ex.B22 is the certificate
issued under Section 50-B of the Andhra Pradesh (Telangana Area)
Tenancy and Agricultural Lands Act, 1950 to defendant No.2 in respect
of Ac.12-38 guntas in Survey Nos.222, 223, 212, 213, 216 and 217 of
Kongara Khurd village. Ex.B18 is the order of the Land Reforms
Tribunal dated 24.06.1977 excluding the suit schedule property from the
holding of the plaintiff, his father and brother Hari Krishna Reddy
holding that 50-B certificates were issued to defendants 1 and 2. The
plaintiff was a party to the said order. It was mentioned in para No.5 of
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
the said order that Survey Nos.207, 209, 212, 213, 216 to 219, 222 to
227, 230 and 233 were said to be protected tenancy lands belonging to
Fakir Mohammed and others, who were the owners and the declarants
were said to be no more in the possession of the same and that the
landlord had sold those survey numbers to Smt.Damayanthi (defendant
No.2) and Savitramma (defendant No.1) and Dayanand Reddy, for
which 50-B certificates have also been issued by the Tahsildar.
Therefore the area of Ac.12-06 guntas + Ac.12-01 guntas + Acs.12-38
guntas shown in the said exhibits deserved to be deleted from the
holdings of the declarants. Ex.B7 and B8 are the pattadar passbook and
title deed issued to defendant No.1 and Exs.B23 and B24 are the
pattadar passbook and title deed issued to defendant No.2. The plaintiff
had suppressed filing of the declaration before the Land Reforms
Tribunal excluding the suit schedule property and that Section 50-B
certificates were issued in favor of the defendants 1 and 2 in the plaint
and approached the Court with a false case that the suit schedule
property fell to his share in the oral partition among himself, his brother
Harikrishna Reddy and the legal representatives of his elder brother
Dayanand Reddy @ Shiva Reddy.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
23. The Hon'ble Apex Court in S.P.Chengalvaraya Naidu
(dead) by LRs. v. Jagannath (dead) by LRs and others (4 supra),
held that:
"5. ... One who comes to the court, must come with clean-
hands. We are constrained to say that more often than not,
process of the court is being abused. Property-grabbers, tax-
evaders, bank loan dodgers and other unscrupulous persons
from all walks of life find the court process a convenient lever
to retain the illegal-gains indefinitely. We have no hesitation to
say that a person, whose case is based on falsehood, has no
right to approach the court. He can be summarily thrown out at
any stage of the litigation.
6. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on
the court. A fraud is an act of deliberate deception with the
design of securing something by taking unfair advantage of
another. It is a deception in order to gain by another's loss. It is
a cheating intended to get an advantage. Jagannath was working
as a clerk with Chunilal Sowcar. He purchased the property in
the court auction on behalf of Chunilal Sowcar. He had, on his
own volition, executed the registered release deed (Exhibit B-
1S) in favor of Chunilal Sowcar regarding the property in
dispute. He knew that the appellants had paid the total decretal
amount to his master Chunilal Sowcar. Without disclosing all
these facts, he filed the suit for the partition of the property on
the ground that he had purchased the property on his own
behalf and not on behalf of Chunilal Sowcar. Non-production
and even non-mentioning of the release deed at the trial is
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AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
tantamount to playing fraud on the court. We do not agree with
the observations of the High Court that the appellants-
defendants could have easily produced the certified registered
copy of Exhibit B-15 and non-suited the plaintiff. A litigant,
who approaches the court, is bound to produce all the
documents executed by him which are relevant to the litigation.
If he withholds a vital document in order to gain advantage on
the other side then he would be guilty of playing fraud on the
court as well as on the opposite party."
24. In the facts of the present case also, the plaintiff had
suppressed about the declaration made by him before the Land Reforms
Tribunal and issuance of Section 50-B certificates in favor of defendants
1 and 2. Having derived an advantage under the order of the Land
Reforms Tribunal dated 24.06.1977 under Ex.B18 excluding the suit
schedule property from the family holding, he is not entitled to be
declared as owner of the suit schedule properties.
25. The evidence of PW.2 is to the effect that he was the neighbor
to the suit schedule property. His lands in Survey Nos.272 and 274
were by the side of the suit schedule property and that the plaintiff was
in possession and enjoyment of the suit schedule property as absolute
owner and possessor and the defendants were never in possession of the
suit schedule property. But, however, in his cross-examination he stated
that he sold away his lands in Survey Nos.272 and 274 two years ago.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
He stated that the plaint schedule properties fell to the share of the
plaintiff in the partition between the plaintiff and his brothers. He had
gone through the partition deed, but could not say whether it was a
registered one or not. He stated that the partition deed was in the
custody of the plaintiff.
26. When the plaintiff pleaded that it was an oral partition, PW.2
stated that there was a written partition deed and the said written
partition deed was in the custody of the plaintiff. Thus, the evidence of
PWs.1 and 2 is contradictory. If there is a written partition deed, as to
why the plaintiff had not filed the same before the Court and whether
the suit schedule properties are included in it or not are the questions
unanswered by the plaintiff. If the suit schedule properties fell to his
share, as to why the plaintiff had not mutated his name in the revenue
records as pattadar for the said properties since the date of partition and
as to why he had not obtained the pattadar passbooks or title deeds for
these properties, when he could obtain patta passbooks for the lands that
fell to his share other than these suit schedule properties, are not
answered by the plaintiff.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
27. PW.3 in his evidence stated that he was the owner and
possessor of the land in Survey No.272 of Kongara Khurd "A" village
and that his property was nearer to the suit schedule property and he was
observing that the plaintiff was in possession and enjoyment of the suit
schedule property since his childhood. But in his cross-examination, he
admitted that he did not know as to how the plaintiff acquired the plaint
schedule property. He stated that as the villagers used to call the plaint
schedule land as belonged to the plaintiff, he mentioned the same in his
chief affidavit that the plaintiff was the owner of the said land, but he
did not know the source of acquisition. He further stated that he did not
know the details of the other lands possessed by the plaintiff, but was
aware that he was having some other properties. He stated that he did
not know as to how PW.1 acquired the other properties.
28. Thus, the evidence of PW.3 is no way useful to the plaintiff to
prove his title over the suit schedule property.
29. The possession of the plaintiff over the suit schedule property
was admitted by the defendants also in their written statement, but stated
that the same was in the capacity as their agent on their behalf. The case
of the defendants was that the suit schedule properties were purchased
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AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
by the defendants in their childhood through their father Sri
C.Ramachandra Reddy from the pattadars Fakir Mohammed and
Mumtaz Ali, sons of Mir Abbas Ali for a valid consideration in the year
1956. Their father Sri C.Ramachandra Reddy was the protected tenant
in respect of the lands owned by Fakir Mohammed and Mumtaz Ali and
as Sri C.Ramachandra Reddy was holding agricultural lands more than
the standard holding as required under the AP Land (Ceiling on
Agricultural Holdings) Act, 1973, therefore, their father relinquished his
protected tenancy rights in respect of the suit schedule properties and
some other properties. Thereafter, the said properties, which were
relinquished by Sri C.Ramachandra Reddy, were purchased not only by
the defendants, but the plaintiff also purchased some of his lands.
Therefore, the plaintiff, their father, nor grandfather were not having any
right, title or interest in the suit schedule properties and the suit schedule
properties were their absolute properties.
30. The defendants in proof of their contention had examined
themselves as DWs.1 and 2 and got marked Exs.B1 to B40. Ex.B2 is
the agreement of sale and Ex.B3 is its translation. Ex.B3 - translation
would disclose that the land owners Fakir Mohammed and Mumtaz Ali
had executed the said document. They stated that Chetkuri
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AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
Ramachandra Reddy, the father of the plaintiff and defendants was the
protected tenant of their lands and in view of their request, the above
named Reddy waived his claim as tenant in their favor through a
separate document executed on 01.02.1955 and they agreed to sell the
same to Smt.Savitramma (defendant No.1), D/o.Lachamma, for a sale
consideration of Rs.333-5-6/- and received half of the sale consideration
amount in cash in lump sum and handed over free and vacant possession
of the aforesaid lands in Survey Nos.218, 219, 224, 225, 226 and 227
admeasuring Ac.12-01 guntas to the said Savitramma (defendant No.1).
In a similar manner, they also executed Ex.B20 agreement of sale in
favor of defendant No.2. Ex.B21 is its translation.
31. Learned Senior Counsel for the appellant - plaintiff contended
that the surrender of the tenancy by Sri C.Ramachandra Reddy in favor
of the landlords was not in accordance with Section 19 of the Tenancy
and Agricultural Lands Act, 1950. The above documents under Exs.B2
and B20 were brought into existence. They could not have been
validated under Section 50-B of the Tenancy Act after 31.03.1972 and
relied upon the judgment of the Hon'ble Apex Court in Ramchandra
Keshav Adke (dead) by LRs. and others v. Govind Joti Chavare and
others (1 supra), wherein it was held that:
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
"A surrender of tenancy by a tenant in order to be valid and
effective must fulfill these requirements: Firstly, it must be in
writing; Secondly, it must be verified before the mamlatdar;
thirdly, while making such verification the mamlatdar must
satisfy himself in regard to two things, namely, (a) that the
tenant understands the nature and consequences of the
surrender, and (b) that it is voluntary, and fourthly, the
mamlatdar must endorse his finding as to such satisfaction upon
the document of surrender.
The language of Section 5(3)(b) and Rule 2-A of the Bombay
Tenancy and Agricultural Lands Act, 1948 was absolute,
explicit and peremptory. The words "provided that" read with
words "shall be", repeatedly used in Section 5(3)(b), make the
termination of tenancy by surrender entirely subject to the
imperative conditions laid down in the proviso. This proviso
throws a benevolent ring of protection around tenants. It is
designed to protect a tenant on two fronts against two types of
dangers - one against possible coercion, undue influence and
trickery proceeding from the landlord, and the other against the
tenant's own ignorance, improvidence and attitude of helpless
self-resignation stemming from his weaker position in the
tenant-landlord relationship.
Thus, the imperative language, the beneficent purpose and
importance of these provisions for efficacious implementation
of the general scheme of the Act, all unerringly lead to the
conclusion that they were intended to be mandatory. Neglect of
any of these statutory requisites would be fatal. Disobedience
of even one of these mandates would render the surrender
invalid and ineffectual.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
On facts, the requirement as to the recording of its satisfaction
by the authority in the manner prescribed by the rule, was the
substance of the matter and not an empty formality. In the
absence of the requisite endorsement, therefore, it cannot be
said that there has been even a substantial compliance with the
statutory requirements.
Where a power is given to do a certain thing in a certain way,
the thing must be done in that way or not at all and other
methods of performance are necessarily forbidden. Intention of
the legislature to prohibit the verification of the surrender in a
manner other than the one prescribed, is implied in these
provisions. Failure to comply with these mandatory provisions,
therefore, had vitiated the surrender and rendered it nonest for
the purpose of Section 5(3)(b)."
32. Learned Senior Counsel for the appellant further relied upon
the judgment of the Hon'ble Apex Court in Babu Parasu Kaikadi
(dead) by LRs. v. Babu (dead) through LRs. (2 supra), wherein it was
held that:
"6. Section 29 of the Act, as noticed hereinbefore, postulates
taking over of possession by the landlord from the tenant only
in accordance with procedure prescribed therefor. In the event,
the surrender made by the predecessor-in-interest of the
appellant in favor of the respondent is found to be invalid; the
possession thereof obtained by the later pursuant to or in
furtherance thereof shall also be invalid. In such an event,
although the landlord takes physical possession of the land, the
right to possess the same, remains with the tenant. He could
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AS No.267 of 2011 &
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.
recover possession of the said land in accordance with law. The
said Act is a beneficent statute. It should be construed in favor
of the tenant and against the landlord. The protection given to
the tenant in terms of the said Act must be given full effect. So
construed, the expression possession' would also include right
of possession. The view which we have taken is fortified by the
decisions of this Court in Ramchandra Keshav Adke (dead)
by Lrs & Ors. v, Govind Joti Chavare & Ors., [1975] 1 SCC
559; Bhagwant Pundalik & Anr. v. Kishan Ganpat
Bharaskal & Ors., [1971] 1 SCC 15 and in Abdul Ajij
Shaikh Jumma & Anr. v. Dashrath Indas Nhavi & Ors.,
AIR (1987) SC 1626 and thus the consistent view had been that
the surrender by the tenant for being legal must be in
conformity with the provisions contained in Sections
15 and 29 of the Act.
7. In Ram Chandra Keshav Adke (supra) the question arose
for consideration was whether the alleged surrender by the
tenant was valid. This Court after interpreting Section 5 (3)
(b) and Rule 2-A was of the view that the amendment was
brought with a view to protecting the tenant on two fronts
against two types of danger - one against possible coercion,
undue influence and trickery proceedings from the landlord and
other against the tenant's own ignorance, improvidence and
attitude of helpless self- resignation stemming from his weaker
position in the tenant-landlord relationship and,
therefore, Sections 15 and 29 are mandatory in nature and any
departure from this would make the surrender invalid. It was
also held that the imperative language, the beneficent purpose
and importance of these provisions for efficacious
implementation of the general scheme of the Act; - all
unerringly lead to the conclusion that they were intended to be
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AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
mandatory. Neglect of any of these statutory requisites would
be fatal. Disobedience of even one of these mandates would
render the surrender invalid and ineffectual and the
consequence of the violation of the mandatory provisions
namely Sections 15 and 29 would be that the surrender would
be rendered nonest for the purpose of Section 5(3)(b) and Rule
2-A.
13. The learned Judges although touched upon the question as
regards obtaining legal possession, unfortunately failed" to
notice the mandatory provisions of Sections 15 & 29 of the Act.
Once it is held that the provisions of Sections 15 & 29 are
'mandatory, it goes without saying that possession obtained by
the landlord in violation of such mandatory provisions would
be illegal. A Statute, as is well known, must be read in its
entirety. The expression "Dispossession'' having regard to the
text and context of the Act cannot be given its natural meaning.
The High Court arrived at a finding of fact that the appellant
herein had satisfied all the requirements as contained in Section
32 (1-B) of the Act. The High Court, however, relying on or on
the basis of the decision of this Court in Dhondiram Totoba
Kadam v. Ramchandra Balwantrao Dubal [(1994) 3 SCC
366], dismissed the appeal of the appellant. The High Court, as
noticed hereinbefore, however, felt that the question raised is of
great general importance.
18. Furthermore, this Court, while rendering judgment
in Dhondiram Totoba Kadam (supra), was bound by its
earlier decision of Co-ordinate Bench in Ramchandra Keshav
Adke (supra). We are bound to follow the earlier judgment
which is precisely on the point in preference to the later
judgment which has been rendered without adequate argument
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
at the bar and also without reference to the mandatory
provisions of the Act.
22. In view of our findings that the decision in Dhondiram
Totoba Kadam (supra) had been rendered per incuriam and
did not create a binding precedent, the judgment of the High
Court having been rested solely thereon cannot be sustained. It
is set aside accordingly. For the aforementioned reasons, the
appeal deserves to be allowed. The appeal is allowed
accordingly, judgment under challenge is set aside. There shall
be no order as to costs."
33. Learned Senior Counsel for the appellant further relied upon
the judgment of the Hon'ble Apex Court in Musunuri Satyanarayana
v. Dr.Tirumala Indira Devi and others (3 supra), wherein it was held
that:
"40, An identical view was expressed by a Full Bench of the
Bombay High Court, in Madhao Tatya Sonar v.
Maharashtra Revenue Tribunal Nagpur & Ors [1969 SCC
OnLine Bom 100 : 1970 Mah LJ 991] while interpreting
provisions of Sections 20 and 36 Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act (Bombay XCIX of
1958). Again, later, in Ramchandra Keshav Adke & Ors vs
Govind Joti Chavare [(1975) 1 SCC 559], the primacy, and
imperative nature of such provisions was underlined, by this
Court in the following terms:
"12. It will be seen from a combined reading of these
provisions that a surrender of tenancy by a tenant in
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AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
order to be valid and effective must fulfill these
requirements: (1) It must be in writing. (2) It must be
verified before the Mamlatdar. (3) While making such
verification the Mamlatdar must satisfy himself in
regard to two things, namely, (a) that the tenant
understands the nature and consequences of the,
surrender, and (b) that it is voluntary. (4). The
Mamlatdar must endorse his finding as to such
satisfaction upon the document of surrender.
***
24. Next point to be considered is, what is the
consequence of noncompliance with this mandatory
procedure?
25. A century ago, in Taylor v. Taylor (1875 LR 1
ChD 426), Jassel M. R. adopted the rule that where a
power is given to do a certain thing in a certain way,
the thing must be done in that way or not at all and
that other methods of performance are necessarily
forbidden. This rule has stood the test of time. It was
applied by the Privy Council, in Nazir Ahmed v
Emperor (AIR 1936 P. C. 253) and later by this Court
in several cases (Rao Shiv Bahadur Singh v. State of
Vindhya Pradesh [1954] 1 S.C.R. 1098; Deep
Chand v State of Rajasthan [1962] S.C.R. 662), to a
Magistrate making a record under Sections
164 and 364 of the Code of Criminal Procedure, 1898.
This rule squarely applies "where, indeed, the whole
aim and object of the legislature would be plainly
defeated if the command to do the thing in a particular
manner did not imply a prohibition to do it in any
other.(Maxwell's Interpretation of Statutes, 11th Edn.,
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
pp, 362-363). The rule will be attracted with full force
in the present case because non-verification of the
surrender in the requisite manner would frustrate the
very purpose of this provision. Intention of the
legislature to prohibit the verification of the surrender
in a manner other than the one prescribed, is implied
in these provisions. Failure to comply with these
mandatory provisions, therefore, had vitiated the
surrender and rendered it nonest..."
34. But, however, the protected tenant Ramachandra Reddy never
questioned the sale transactions entered by the defendants nor raised any
claim as a protected tenant during his lifetime. The counter filed by him
in C.C.No.2665/1/75 before the Land Reforms Tribunal (South),
Hyderabad, marked under Ex.B19 on the other hand would disclose that
he stated that:
"8. Further, the declarant is not concerned with Survey
Nos.207, 209, 212, 213, 216, 217, 222, 223, 218, 219, 224,
225, 226 and 227 situated at Kongara Khurd village and 50-B
certificate was issued in the names of Dayanand Reddy,
Savitramma and Damayanthamma."
35. Thus, he stated that he was not concerned with the above lands
and admitted about the 50-B certificates issued in the names of
defendants 1 and 2. Thus, the protected tenant Ramachandra Reddy
never raised any objection for the sale of the said properties, as he was
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
holding more than the ceiling limit and he himself got the properties
purchased in the name of the defendants, none other than his daughters
with a view to retain the properties in his family.
36. Ex.B5, the Faisal Patti, reflected the transactions entered by
the pattadars Fakir Mohammed and Mumtaz Ali. As per the above
document, Fakir Mohammed and Mumtaz Ali also alienated Survey
Nos.210, 211, 253, 259, 260, 261 and 262 apart from the suit schedule
properties i.e. Survey Nos.212, 213, 216, 217, 218, 219, 222, 223, 224,
225, 226 and 227. In Ex.B6, which was also Faisal Patti for the year
1985-86, the purchases made by the defendants were shown and the
purchase of Survey Nos.210, 211, 253, 259, 260 and 261 in the name of
the plaintiff i.e. C.Madhav Reddy, S/o.Ramachandra Reddy, was also
shown which would disclose that, not only the defendants but the
plaintiff also purchased the protected tenancy lands from Fakir
Mohammed and Mumtaz Ali and obtained sale certificates regularizing
the said sale. In Exs.B5 and B6, the sale certificate numbers obtained
under Exs.B4 and B22 were also recorded, which would disclose that the
plaintiff was well within his knowledge with regard to the purchases
made by the defendants by 1985-86 itself as per the Faisal Patti of the
said years. But surprisingly, the plaintiff had pleaded in his plaint that
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AS No.267 of 2011 &
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.
he came to know about the entry of the names of the defendants in the
revenue records only when he approached the MRO, Maheshwaram
Mandal after the interference by the defendants through their respective
sons on 17.09.2005.
37. In Ex.B1 declaration made by the plaintiff with regard to
the lands held by him and his family under AP Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973, the schedule properties in Survey
Nos.212, 213, 216, 217, 218, 219, 222, 223, 224, 225, 226 and 227 were
not shown either as ancestral properties or lands held by Ramachandra
Reddy as a protected tenant. But, he declared the purchase of lands by
him as per the entries in Exs.B5 and B6. If at all the suit schedule
properties were the properties of Sri C. Ramachandra Reddy and held by
him as a protected tenant, certainly the plaintiff would have declared the
said properties as family properties. Survey Nos.210, 211, 253, 259,
260, 261 and 262 were shown as purchases made by him. He had shown
the other properties of the family.
38. Under Exs.B33 and B34, the document styled as affidavit
filed by Ramachandra Reddy, he submitted that his daughters
Smt.Damayanthamma and Savitramma applied for validation of sale of
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
lands in Survey Nos.212, 213, 216, 217, 218, 219, 222, 223, 224, 225,
226 and 227 situated at Kongara Khurd village under Section 50-B of
the Tenancy and Ceiling on Agricultural Lands Holding Act, and he had
no objection for validation of the sale. If at all, C.Ramachandra Reddy
had not relinquished his protected tenancy rights certainly he would not
have any occasion to give such an affidavit before the revenue
authorities.
39. Further Exs.B35 and B36 are the applications made by the
defendants dated 14.12.1966 for grant of 50-B certificate. The said
certificates were received by the plaintiff himself on 26.05.1976 as per
the endorsement made on them. The same would disclose that the
plaintiff himself received the validation of sale certificate under Section
50-B of the Act on behalf of the defendants. The names of the
defendants were entered in the revenue records as pattadars and it was
never questioned by Ramachandra Reddy or the plaintiff. Admittedly,
the plaintiff had not pleaded about the invalidity of the surrender of
protected tenancy rights by his father Ramachandra Reddy under Section
19 of the Tenancy and Agricultural Lands Act. No rejoinder was filed by
the plaintiff when the defendants filed their written statement pleading
about the same. No issue was framed and no evidence was led by the
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AS No.267 of 2011 &
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.
plaintiff in support of the said plea. As such, the contention raised by
the learned Senior Counsel for the appellant - plaintiff with regard to the
invalidity of surrender of protected tenancy rights by the protected tenant
as required under Section 19 of Tenancy and Agricultural Lands Act,
would not stand to ground, as the protected tenant never raised such
objection during his lifetime and never challenged the 50-B certificates
issued in favor of his daughters. As such, the objection raised by the
learned counsel for the appellant - plaintiff fails.
40. Learned Senior Counsel for the respondents - defendants
relied upon the judgment of the Hon'ble Apex Court in M/s.Cauvery
Coffee Traders, Mangalore v. M/S.Hornor Resources (International)
Company Limited (5 supra) on the aspect that the plaintiff, who had
taken the advantage under the order of the Land Reforms Tribunal, is not
entitled to question the 50-B certificates issued to the defendants on the
principles of approbate and reprobate. In the above judgment, the
Hon'ble Apex Court by placing reliance upon its earlier judgment, held
that:
"33. In R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352, this
Court has observed as under:-
"10. Law does not permit a person to both approbate
and reprobate. This principle is based on the doctrine
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AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
of election which postulates that no party can accept
and reject the same instrument and that "a person
cannot say at one time that a transaction is valid and
thereby obtain some advantage, to which he could
only be entitled on the footing that it is valid, and then
turn round and say it is void for the purpose of
securing some other advantage."
34. A party cannot be permitted to "blow hot and cold", "fast
and loose" or "approbate and reprobate". Where one knowingly
accepts the benefits of a contract or conveyance or an order, is
estopped to deny the validity or binding effect on him of such
contract or conveyance or order. This rule is applied to do
equity, however, it must not be applied in a manner as to
violate the principles of right and good conscience. (Vide:
Nagubai Ammal& Ors. v. B. Shama Rao & Ors., AIR 1956
SC 593; C.I.T. Vs. MR. P. Firm Maur, AIR 1965 SC 1216;
Maharashtra State Road Transport Corporation v. Balwant
Regular Motor Service, Amravati & Ors., AIR 1969 SC 329;
P.R. Deshpande v. Maruti Balaram Haibatti, AIR 1998 SC
2979; Babu Ram v. Indrapal Singh, AIR 1998 SC 3021;
Chairman and MD, NTPC Ltd. v. Reshmi Constructions,
Builders & Contractors, AIR 2004 SC 1330; Ramesh
Chandra Sankla& Ors. v. Vikram Cement & Ors., AIR
2009 SC 713; and Pradeep Oil Corporation v. Municipal
Corporation of Delhi & Anr., (2011) 5 SCC 270).
35. Thus, it is evident that the doctrine of election is based on
the rule of estoppels - the principle that one cannot approbate
and reprobate inheres in it. The doctrine of estoppel by election
is one of the species of estoppels in pais (or equitable estoppel),
which is a rule in equity. By that law, a person may be
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precluded by his actions or conduct or silence when it is his
duty to speak, from asserting a right which he otherwise would
have had."
41. The principle stated by the Hon'ble Apex Court in the above
case is aptly applicable to the facts of this case. The plaintiff cannot be
permitted to blow hot and cold or approbate and reprobate after taking
advantage under the order of the Land Reforms Tribunal. As such, he is
not entitled to question the 50-B certificates issued to the defendants 1
and 2.
42. As such, point No.1 is answered holding that the plaintiff is
not entitled for the relief of declaration of title and consequential
injunction as owner and possessor of the suit schedule properties, as
prayed by him.
43. Point No.2:
Whether the appellant - plaintiff is entitled to claim the
alternative relief of declaration of his title by way of
adverse possession?
The plaintiff pleaded that he was in long and continuous
possession of the suit schedule properties for more than 16 years and
perfected his title by way of prescription by adverse possession. To seek
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
title by way of adverse possession, one has to establish that he has been
in continuous uninterrupted possession of property for more than 12
years to the knowledge of the true owner. He must also assert hostile
title to the knowledge of the true owner. The plea of adverse possession
itself pre-suggests that he was admitting the ownership of the adverse
party over the suit schedule properties. Except the bald statement that he
was in continuous possession for more than 16 years and perfected his
title by way of adverse possession, nothing was pleaded by the plaintiff
as to when he came into possession of the property, when his attitude
became hostile to the knowledge of the true owner nor established any
overt acts to show that he squatted over the property with an intention to
claim prescriptive title by adverse possession.
44. The plaintiff filed Exs.A1 to A13 pahani patrikas to prove his
possession. Exs.A1 to A13 pahanies would show that the names of the
defendants 1 and 2 were recorded in the pattadar column and in some of
the pahanies i.e. Ex.A3 the pahani for the year 2000-01, the column of
possessor was recorded as "nil" and in the pahani for the year 1999-
2000, the name of the plaintiff was struck off and in the pahani for the
year 1998-99 and 1992-93, the name of his younger brother Harikrishna
Reddy was also shown as in possession of the suit schedule properties.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
45. Thus Exs.A1 - A13 would not show the continuous
uninterrupted possession of the plaintiff over the suit schedule
properties. The plaintiff had not challenged the act of the revenue
authorities when his name was rounded off by them. Exs.B30 and B31
and the pahani patrikas filed by the defendants for the years 2004-05 and
2005-06 would establish that the defendants were shown as pattadars
and possessors of the suit schedule properties. The said entries were
never questioned by the plaintiff nor he led any evidence to disprove the
same.
46. Learned Senior Counsel for the respondents relied upon the
judgment of the Hon'ble Apex Court in Karnataka Board of Wakf v.
Government of India and Others (7 supra), wherein it was held that:
"11. In the eye of law, an owner would be deemed to be in
possession of a property so long as there is no intrusion. Non-
use of the property by the owner even for a long time won't
affect his title. But the position will be altered when another
person takes possession of the property and asserts a right over
it. Adverse possession is a hostile possession by clearly
asserting hostile title in denial of the title of true owner. It is a
well- settled principle that a party claiming adverse possession
must prove that his possession is 'nec vi, nec clam,
necprecario', that is, peaceful, open and continuous. The
possession must be adequate in continuity, in publicity and in
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
extent to show that their possession is adverse to the true
owner. It must start with a wrongful dispossession of the
rightful owner and be actual, visible, exclusive, hostile and
continued over the statutory period. (See : S M Karim v. Bibi
Sakinal [AIR 1964 SC 1254], Parsinni v. Sukhi [(1993) 4
SCC 375 and D.N.Venkatarayappa v. State of Karnataka,
[(1997) 7 SCC 567). Physical fact of exclusive possession and
the animus possidendi to hold as owner in exclusion to the
actual owner are the most important factors that are to be
accounted in cases of this nature. Plea of adverse possession is
not a pure question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession should
show (a) on what date he came into possession, (b) what was
the nature of his possession, (c) whether the factum of
possession was known to the other party, (d) how long his
possession has continued, and (e) his possession was open and
undisturbed. A person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the rights of
true owner, it is for him to clearly plead and establish all facts
necessary to establish his adverse possession. (Dr. Mahesh
Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC128).
12. A Plaintiff filing a title suit should be very clear about the
origin of title over the property. He must specifically plead it.
(See: S M Karim v. Bibi Sakinal [AIR 1964 SC 1254]. In P
Periasami v. P Periathambi (1995) 6 SCC 523 this Court
ruled that -
"Whenever the plea of adverse possession is projected,
inherent in the plea is that someone else was the owner
of the property."
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
The pleas on title and adverse possession are mutually
inconsistent and the latter does not begin to operate until the
former is renounced. Dealing with Mohan Lal v. Mirza Abdul
Gaffar (1996) 1 SCC 639 that is similar to the case in hand,
this Court held:
"4. As regards the first plea, it is inconsistent with the
second plea. Having come into possession under the
agreement, he must disclaim his right there under and
plead and prove assertion of his independent hostile
adverse possession to the knowledge of the transferor
or his successor in title or interest and that the latter
had acquiesced to his illegal possession during the
entire period of 12 years, i.e., up to completing the
period his title by prescription nec vi, nec clam,
necprecario. Since the appellant's claim is founded on
Section 53-A, it goes without saying that he admits by
implication that he came into possession of land
lawfully under the agreement and continued to remain
in possession till date of the suit. Thereby the plea of
adverse possession is not available to the appellant."
47. The plaintiff failed to prove that he was in open and
continuous possession of the suit schedule property and he has animus
possidendi to hold as owner in exclusion to the defendants. He failed to
show that he asserted hostile title in denial of the title of the defendants.
As such, the plaintiff is also not entitled to claim the alternate relief of
declaration of his title by way of adverse possession.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
48. Point No.3:
Whether the judgment of the trial court is in accordance
with law, weight of evidence or probabilities of the case
and whether the same is liable to be set aside?
This Court does not find any illegality in the judgment of the trial
court in appreciating the oral and documentary evidence on record with
regard to the aspect of declaration of title or seeking the alternative relief
of adverse possession. The trial court also rightly considered that the
plaintiff is not entitled to the decree of perpetual injunction, as he failed
to prove the interference of the defendants over the schedule property
and also that due to the suppression of the material facts, he was not
entitled to seek the equitable relief.
49. But, however, the trial court made an observation while
answering issue No.2 that he was in possession of the suit schedule
property, but not in the capacity as owner, for which Cross-Objections
(SR) No. 8551 of 2011 were raised by the respondents-defendants.
50. Learned Senior Counsel for the respondents - defendants
relied upon the judgment of the Hon'ble Apex Court in Maria
Margarida Sequeira Fernandes and others v. Erasmo Jack De
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
Sequeira (dead) through LRs (6 supra), wherein the Hon'ble Apex
Court held that:
"63. Possession is important when there are no title documents
and other relevant records before the Court, but, once the
documents and records of title come before the Court, it is the
title which has to be looked at first and due weightage be given
to it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person, other
than the owner, if at all it is to be called possession, is
permissive on behalf of the title-holder. Further, possession of
the past is one thing, and the right to remain or continue in
future is another thing. It is the latter which is usually more in
controversy than the former, and it is the latter which has seen
much abuse and misuse before the Courts.
66. A title suit for possession has two parts - first, adjudication
of title, and second, adjudication of possession. If the title
dispute is removed and the title is established in one or the
other, then, in effect, it becomes a suit for ejectment where the
defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable
property, or for protecting possession thereof, upon the legal
title to the property being established, the possession or
occupation of the property by a person other than the holder of
the legal title will be presumed to have been under and in
subordination to the legal title, and it will be for the person
resisting a claim for recovery of possession or claiming a right
to continue in possession, to establish that he has such a right.
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
To put it differently, wherever pleadings and documents
establish title to a particular property and possession is in
question, it will be for the person in possession to give
sufficiently detailed pleadings, particulars and documents to
support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to
give all details of pleadings with particulars. Once the title is
prima facie established, it is for the person who is resisting the
title holder's claim to possession to plead with sufficient
particularity on the basis of his claim to remain in possession
and place before the Court all such documents as in the
ordinary course of human affairs are expected to be there. Only
if the pleadings are sufficient, would an issue be struck and the
matter sent to trial, where the onus will be on him to prove the
averred facts and documents.
70. It would be imperative that one who claims possession must
give all such details as enumerated hereunder. They are only
illustrative and not exhaustive:
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he
purchased the property or inherited or got the same in
gift or by any other method;
(g) in case he purchased the property, what is the
consideration; if he has taken it on rent, how much is the
rent, license fee or lease amount;
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
(h) If taken on rent, license fee or lease - then insist on
rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or
otherwise living with him, in what capacity; as family
members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have
extinguished his entitlement to possession or caused
shift therein; and
(k) basis of his claim that not to deliver possession but
continue in possession.
71. Apart from these pleadings, the Court must insist on
documentary proof in support of the pleadings. All those
documents would be relevant which come into existence after
the transfer of title or possession or the encumbrance as is
claimed. While dealing with the civil suits, at the threshold, the
Court must carefully and critically examine pleadings and
documents.
94. This Court in Puran Singh v. The State of Punjab (1975)
4 SCC 518 held that:
"12. ... an occupation of the property by a person as
an agent or a servant at the instance of the owner will
not amount to actual physical possession."
96. In Sham Lal v. Rajinder Kumar & Others 1994 (30) DRJ
596, the High Court of Delhi held thus:
"12. On the basis of the material available on record,
it will be a misnomer to say that the plaintiff has
been in 'possession' of the suit property. The plaintiff
is neither a tenant, nor a licensee, nor a person even
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
in unlawful possession of the suit property.
Possession of servant is possession of the real owner.
A servant cannot be said to be having any interest in
the suit property. It cannot be said that a servant or a
chowkidar can exercise such a possession or right to
possession over the property as to exclude the master
and the real owner of the property from his
possession or exercising right to possession over the
property.
13. Possession is flexible term and is not necessarily
restricted to mere actual possession of the property.
The legal conception of possession may be in various
forms. The two elements of possession are the corpus
and the animus. A person though in physical
possession may not be in possession in the eye of
law, if the animus be lacking. On the contrary, to be
in possession, it is not necessary that one must be in
actual physical contact. To gain the complete idea of
possession, one must consider:
(i) The person possessing,
(ii) The things possessed,
(iii) The persons excluded from
possession.
A man may hold an object without claiming any
interest therein for himself. A servant though holding
an object, holds it for his master. He has, therefore,
merely custody of the thing and not the possession
which would always be with the master though the
master may not be in actual contact of the thing. It is
in this light in which the concept of possession has to
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
be understood in the context of a servant and &
master."
The ratio of this judgment in Sham Lal (supra) is
that merely because the plaintiff was employed as a
servant or chowkidar to look after the property, it
cannot be said that he had entered into such
possession of the property as would entitle him to
exclude even the master from enjoying or claiming
possession of the property or as would entitle him to
compel the master from staying away from his own
property.
97. Principles of law which emerge in this case are
crystallized as under:-
1. No one acquires title to the property if he or
she was allowed to stay in the premises
gratuitously. Even by long possession of years
or decades such person would not acquire any
right or interest in the said property.
2. Caretaker, watchman or servant can never
acquire interest in the property irrespective of
his long possession. The caretaker or servant has
to give possession forthwith on demand.
3. The Courts are not justified in protecting the
possession of a caretaker, servant or any person
who was allowed to live in the premises for
some time either as a friend, relative, caretaker
or as a servant.
4. The protection of the Court can only be
granted or extended to the person who has valid,
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
subsisting rent agreement, lease agreement or
license agreement in his favor.
5. The caretaker or agent holds property of the
principal only on behalf of the principal. He
acquires no right or interest whatsoever for
himself in such property irrespective of his long
stay or possession."
51. Thus, as seen from the guidelines provided by the Hon'ble
Apex Court in the above case, the care taker / agent holds the property of
the principal only on behalf of the principal and he acquires no right or
interest whatsoever for himself in such property irrespective of his long
stay or possession. As such, the observation of the trial court to the
extent that the plaintiff is in possession of the suit schedule land is illegal
and the same is liable to be set aside.
52. Point No.4:
To what relief?
In the result, the Appeal Suit is dismissed confirming the
judgment and decree of the trial court dated 07.02.2011 passed in
O.S.No.347 of 2005 by the learned I Additional District Judge,
Rangareddy District at L.B.Nagar. The Cross-Objections filed by the
respondents - defendants are allowed setting aside the observation of the
Dr.GRR,J
AS No.267 of 2011 &
X-Obj (SR) No.8551 of 2011 (I.A. No.4 of 2011)
.
trial court to the extent that the plaintiff is in possession of the suit
schedule property. No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if
any, shall stand closed.
_____________________
Dr. G.RADHA RANI, J
March 24th, 2025
KTL/NSK
