The single judge dismissed second appeals in suits for perpetual injunction and partition. The court held plaintiffs failed to prove possession over vacant land decades after purchase and failed to show the disputed land remained unpartitioned without documentary evidence like adangals.
Second Appeal Nos. 4 and 5 of 1999 dismissed with no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE K.G. SHANKAR
Second Appeal Nos.4 and 5 of 1999
Date: 07.12.2012
S.A.No.4 of 1999:
Between:
Patta Byragi and another .. Appellants
AND
The Panchayat Samithi, Palakonda, rep.by the Block Development Officer, Palakonda and 12 others. .. Respondents
S.A.No.5 of 1999:
Patta Byragi and another .. Appellants
AND
Avala Pentamma and 31 others .. Respondents
HON’BLE SRI JUSTICE K.G. SHANKAR Second Appeal Nos.4 and 5 of 1999
COMMON JUDGMENT:
Both the appeals are disposed of through this common judgment. The appellants 1 and 2 are common in both the cases. Most of the respondents in Second Appeal No.4 of 1999 are also the respondents in Second Appeal No.5 of 1999. The property involved in both the cases more or less is one and the same. However, the causes of action in both the cases are different. Consequently, separate suits and separate appeals were filed wherefrom the two second appeals arose. The trial Court as well as the first appellate Court disposed of the suits simultaneously and disposed of the appeals simultaneously. However, as common facts run through the cases, I deem it appropriate to dispose of both the appeals, through this common judgment.
2. The plaintiffs in both the suits are common. It is the case of the plaintiffs that the predecessors of the plaintiffs purchased properties from one Prativadi Bhayankara Gopala Krishnamacharyulu on 14.06.1938.
The registration extract of the sale deed is Ex.A.1 in both the cases. The total extent of the property covered by the sale deed is Ac.1.25 cents.
3. Out of Ac.1.25 cents, Ac.0.80 cents were already covered by construction of houses. Out of the balance of Ac.0.45 cents, Ac.0.25 cents consists of temporary sheds. The plaintiffs claim that the balance of Ac.0.20 cents is vacant land and has been in use as a thrashing floor. The defendants started to interfere with the Ac.0.20 cents of land claiming that Gram Panchayat, Palakonda granted permission to them to construct a school building in the Ac.0.20 cents of site. Claiming that one Vempala Sankara Rao has been interfering with the possession of the plaintiffs over the vacant land, the plaintiffs filed O.S.No.115 of 1985 on the file of District Munsif’s Court, Palakonda seeking for a perpetual injunction against the Gram Panchayat and Vempala Sankara Rao. The learned District Munsif, Palakonda dismissed O.S.No.115 of 1985 on 25.04.1994. The plaintiffs preferred an appeal in A.S.No.16 of 1994 before the Sub-ordinate Judge’s Court, Rajam against the judgment and decree in O.S.No.115 of 1985. A.S.No.16 of 1994 was dismissed by the Sub-ordinate Judge, Rajam, through judgment, dated 14.02.1996. Assailing the same, S.A.No.4 of 1999 is laid.
4. The plaintiffs also filed O.S.No.167 of 1984 on
the file of the District Munsif’s Court, Palakonda seeking for partition of Ac.0.45 cents of land, out of Ac.1.25 cents covered by Ex.A.1 sale deed. The learned District Munsif, Palakonda dismissed O.S.No.167 of 1984 on 25.04.1994, i.e., on the same day on which O.S.No.115 of 1985 was dismissed. The plaintiffs consequently preferred A.S.No.11 of 1994 before the Sub-ordinate Judge’s Court, Rajam. The learned Sub-ordinate Judge, Rajam in his turn, dismissed A.S.No.11 of 1994 on 14.02.1996 on the same day on which A.S.No.16 of 1994 was dismissed. Second Appeal No.5 of 1999 is filed questioning the judgments of the trial Court and the appellate Court. Albeit many of the parties in both the suits, both the First Appeals and both the Second Appeals are common and the property is identical, the questions that arise for consideration in two second appeals are different. Although for the sake of convenience both the appeals are disposed of through this common judgment, I would prefer to give reasons separately for each case.
Second Appeal No.4 of 1999:
5. The trial Court inter alia dismissed the suit on the ground that the plaintiffs failed to establish their possession over the plaint schedule property. The substantial question of law that arises for consideration is whether the plaintiffs can be non-suited on the ground that the plaintiffs did not establish their
possession over vacant land.
6. The second defendant in O.S.No.115 of 1985 is a contractor working under the first defendant-Gram Panchayat. The plaintiffs claim that as many as about 22 persons purchased Ac.1.25 cents of dry land, through Ex.A.1 sale deed and that soon after purchase, they demarcated Ac.0.80 cents out of the same on the western side for construction of houses. They also claim that they retained the balance of Ac.0.45 cents on the eastern side, out of the purchased property for common use as a thrashing floor. It is further contended by the plaintiffs that some of the co-owners of the property raised temporary sheds in an extent of about Ac.0.25 cents, out of Ac.0.45 cents and that consequently, Ac.0.20 cents remained as vacant site for the thrashing floor.
7. On the other hand, the defendants contended that village Nandivada Koorma Rajapuram was an inam village and that after the abolition of the inams and estates, the disputed plaint schedule property was classified as village poramboke and was assigned survey number as 26/3. As the property is poramboke, Gram Panchayat is the owner of the same according to the defendants. They further contend that the disputed property is not part of plaint schedule property and the plaintiffs consequently cannot seek for perpetual injunction over the plaint schedule property.
8. A substantial question of law has been raised by the plaintiffs as to whether the finding of the trial Court and the appellate Court hat the property is available for partition has not been made out by the plaintiffs is a perverse finding, so much so, the plaintiffs are entitled to decree of the partition as prayed for.
9. The learned counsel for the plaintiffs pointed out that the plaint schedule property is vacant land and that it is not justified in insisting the plaintiffs to establish their possession through specific documentary evidence. He contended that the principle “possession follows title” squarely applies to the present case and that where there is no contrary evidence, the title of the plaintiffs automatically implies that the plaintiffs have been in possession of the plaint schedule property.
It may be recalled that it is not the case of the plaintiffs that the plaintiffs purchased the plaint schedule property or the total extent of Ac.1.25 cents. It is their case that their predecessors purchased the property under Ex.A.1 sale deed. The plaintiffs claim that they inherited the property from the vendee under Ex.A.1 was in 1938.
The present suit was laid in 1985. I am afraid that the plaintiffs cannot invoke the principle of possession follows title, when the title deed and the date of the suit were intervened by nearly half a century. The plaintiffs must
produce some other reasonable and cogent evidence to raise the presumption of their possession.
In view of the date of the sale deed under Ex.A.1 and the date of the suit, I am not prepared to draw a presumption that the plaintiffs have established their possession by virtue of their title and that unless the defendants negate the same, the possession of the plaintiffs shall stand established. In the absence of such presumption, there is no other evidence to show that the plaintiffs are in possession of the plaint schedule property to seek a perpetual injunction.
10. There is another dimension in this case. If not explicitly, by indirect implication, the defendants are not disputing the title of the plaintiffs over the property covered by Ex.A.1 sale deed. It may also be assumed that the possession of the plaintiffs over the property covered by Ex.A.1 is also not disputed by the defendants. The defendants on the other hand contended that the plaint schedule property is not the property covered by Ex.A.1 sale deed. Despite such a contention on the part of the defendants, the plaintiffs did not choose to get their properties localized to prove that the plaint schedule properties are part and parcel of the properties covered by Ex.A.1. Thus, the plaintiffs failed in establishing their possession over the plaint schedule property and also failed in showing that they have title over the plaint
schedule property. The trial Court consequently was perfectly justified in dismissing the suit for perpetual injunction holding that the plaintiffs failed to establish their possession over the plaint schedule property.
11. The substantial question of law deserves to be answered in favour of the defendants and against the plaintiffs. Consequently, the second appeal ahs no merits and deserves to be dismissed.
Second Appeal No.5 of 1999:
12. As many as seven plaintiffs laid O.S.No.167 of 1984 seeking for partition of Ac.0.45 cents, out of Ac.1.25 cents of dry land into 19 equal shares and for allotment of one such share in favour of each of the plaintiffs. During the pendency of the suit itself, the fourth plaintiff died. His legal representatives were brought on record before the trial Court as plaintiffs 8 to 10.
13. The defendants 3, 10 and 13 died during the pendency of the suit. Defendants 20 and 21 are the legal representatives of defendant No.3. Defendant No.22 is the legal representative of defendant No.10. Defendants 23 and 24 were added as legal representatives of defendant No.13. Defendants 16 to 19 were added as supplementary defendants.
14. The plaintiffs claimed that some of the plaintiffs,
their ancestors and the ancestors of the defendants purchased Ac.1.25 cents of dry land in Nandivada Kumara Rajapuram, Palakonda under the original of Ex.A.1 from Prativadi Bhayankara Gopala Krishnamacharyulu in 1938. The plaintiffs, defendants 10 and 11 and the predecessors of defendants 1 to 9 and 11 constructed houses in the area of Ac.0.80 cents of this land on the western part of the property. The remaining extent of Ac.0.45 cents on the eastern part of the property has not been partitioned by them as vacant land and as thrashing floor. The plaintiffs, their predecessors, defendants 1 to 12 and their predecessors have been enjoying the vacant property. The plaintiffs have 7/19th share in the Ac.0.45 cents constituting the plaint schedule property. The plaintiffs consequently demand for partition of the plaint schedule property into 19 equal shares and allotment of such shares in favour of plaintiffs 1 to 7. This is the basic case of the plaintiffs.
15. The plaintiffs examined the first plaintiff as PW.1. It would appear that the first plaintiff was about five years old at the time of the purchase of the property under Ex.A.1. The evidence of PW.1 consequently is of no significance.
16. The extent of property which the plaintiffs seek for partition is Ac.0.45 cents out of Ac.1.25 cents. It is said to be the eastern part of Ac.1.25 cents.
The defendants on the other hand contended that the disputed Ac.0.45 cents of land is not part of the land covered by Ex.A.1 and that neither the defendants 1 to 12 nor the plaintiffs have title to the disputed Ac.0.45 cents of land. The Gram Panchayat lays claim over this property.
17. It may, however, be noticed that the plaintiffs and the defendants admitted that the disputed property was purchased under Ex.A.1. The defendants, however, alleged that the total extent of the property covered by Ex.A.1 was not Ac.1.25 cents and that the recital in Ex.A.1 shows that the property was sold without measurements and that the extent as shown in the sale deed was a mere approximation. They further contend that the entire extent of property purchased under Ex.A.1 was partitioned among the co-owners. The trial Court and the appellate Court pointed out that it is for the plaintiffs to show that the plaint schedule property has not been partitioned.
18. The learned counsel for the plaintiffs contended that it is unjust to ask the plaintiffs to produce negative proof that there is no partition and that the defendants who set up partition in fact should prove their case. Where the defendants contended that the entire property purchased under Ex.A.1 was partitioned between the co-owners and where the plaintiffs claim that only Ac.0.80 cents out of the total property covered by Ex.A.1 was partitioned, the trial
Court and the appellate Court rightly placed the onus on the plaintiffs to prove that the plaint schedule property had not been partitioned.
19. The learned counsel for the plaintiffs inter alia submitted that the concept of burden of proof losses its efficacy once both sides let in evidence. It is now well settled law that when both sides let in evidence, the concept of burden of proof losses its significance. Be that as it is, when the plaintiffs themselves admit that Ac.0.80 cents out of Ac.1.25 cents had already been partitioned, it is for them to show that Ac.0.45 cents constituting the plaint schedule property had not been partitioned. No cogent reason is forthcoming from the plaintiffs as to why Ac.0.45 cents was not partitioned if the other properties were partitioned by metes and bounds.
The non-acceptance of the jointness of the property by the trial Court and the appellate Court is more reasonable than accepting the case of the plaintiffs that only Ac.0.80 cents out of Ex.A.1 was partitioned leaving the rest of the properties joint.
20. Curiously, the plaintiffs admit that the defendants have raised sheds in Ac.0.25 cents out of Ac.0.45 cents of vacant site. It is evident that the plaintiffs allegedly did not raise any protest when the defendants raised sheds in Ac.0.25 cents of vacant land.
21. The trial Court and the appellate Court concluded that the defendants failed to show that the disputed property is government poramboke. At the same time, the plaintiffs have failed to establish their possession and title to Ac.0.45 cents of plaint schedule property. The learned counsel for the plaintiffs contended that the insistence upon Fair adangals and No.10 (1) account to show the title of the plaintiff is unjust. I am afraid that where the original title is of the year 1938 and where the defendants have raised a two-fold contention that the entire property was already partitioned and that the disputed property was poramboke, it is quite justified in expecting the plaintiffs to prove their case clinchingly by producing Fair adangals and No.10 (1) account. While No.10 (1) account would have established title of the plaintiffs, the Fair adangals would have shown as to who is in possession of the property as on today. The plaintiffs did not establish their title to the plaint schedule property either through documentary evidence or through oral evidence. In that view of the matter, I consider that the trial Court and the appellate Court were perfectly justified in dismissing the suit for partition.
22. I, therefore, do not consider the finding of the trial Court and the appellate Court to be perverse in any manner. I see no merits in this appeal. This appeal deserves to be dismissed.
Conclusion:
23. For the reasons set out, Second Appeal Nos.4 and 5 of 1999 are found to be devoid of merits and are accordingly dismissed. No costs.
_________________ K.G. SHANKAR, J Date: 07.12.2012 Isn
3 issues framed by the court
Whether plaintiffs can claim possession over vacant land solely based on title after nearly half a century without establishing possession through other evidence.
Whether the onus was correctly placed on plaintiffs to prove that the disputed land had not been partitioned among co-owners.
Whether the trial and appellate courts were justified in dismissing the suit for partition as the plaintiffs failed to establish their title by producing Fair adangals and No.10(1) accounts.
Patta Byragi
Unknown Second
The Panchayat Samithi, Palakonda
Avala Pentamma
K.G. SHANKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
