Second appeal dismissed. Sixth Bench held courts below correctly appreciated evidence proving defendant title via revenue records while plaintiff failed to prove possession and entitlement for perpetual injunction.
Second Appeal dismissed. No order as to costs. Miscellaneous petitions closed.
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.
THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI SECOND APPEAL No.352 of 2008
JUDGMENT:
The unsuccessful plaintiffs 2 and 3 preferred this Second Appeal under Section 100 of the Code of Civil Procedure (for short, ‘the Code’) against the judgment dated 11.09.2007 passed in A.S. No.20 of 2003 by the learned Senior Civil Judge, Bhongir of Nalgonda District.
1. (a) The learned Senior Civil Judge while dismissing the said appeal preferred by the sole plaintiff (since died) had confirmed the judgment and decree dated 10.09.2003 of the learned Principal Junior Civil Judge, Bhongir passed in OS. No.1 of 2001 filed for perpetual injunction to restrain the defendants 1 to 3, their agents, servants and henchmen from ever interfering with the plaintiff’s peaceful possession and enjoyment over the land bearing survey No.1110/A/2 admeasuring Ac.1.20 guntas situated at Alair (Village and Mandal) of Nalgonda District more fully described in the scheduled annexed to the plaint.
2. At the time of admission of this Second Appeal, this Court had taken note of the following substantial questions of law mentioned in the ground no.7 of the grounds of objection:
(1) Whether the Judgment of the Appellate Court is correct in law when the learned appellate judge has failed to consider the oral evidence in the case stating in para 8 of his judgment that there is no need to consider oral evidence as the trial judge has considered at length?
(2) Whether the judgment of the court below in rejecting Exhibits A1 to A9 and dismissing plaintiff’s suit for injunction when the said documents prove plaintiff’s possession?
(3) Whether the courts below are right in law in accepting exhibit B15 proceeding of M.R.O, Alair in L.No.B/109/01 to prove that the plaintiff has no land in the suit survey number when the said document has not been proved according to law?
(4) Whether the courts below are right in their
judgments in relying on Exhibit B2 pattadar pass book of Defendant No.3 to come to the conclusion that the defendant is in possession of land which is not a document of title under law? [reproduced verbatim]
3. Be it noted that the suit was originally filed by the sole plaintiff. On the dismissal of his suit, the sole plaintiff had preferred the First Appeal. Since the sole plaintiff/appellant had died during the pendency of the First Appeal, his legal representatives were brought on record as the plaintiffs 2 and 3/appellants 2 and 3. On the dismissal of the First Appeal, the said plaintiffs 2 and 3, who are the legal representatives of the deceased sole plaintiff, had preferred this Second Appeal.
4. In this Second Appeal, the parties shall be referred to as the appellants/plaintiffs and the respondents/defendants for convenience and clarity.
5. To adjudicate the lis and answer the substantial questions of law, it is necessary to refer to the pleaded cases of both the sides.
6. The case of the plaintiff, in brief, is as follows: ‘The deceased plaintiff No.1 is the absolute owner and possessor and one of the Pattedars of the suit schedule agricultural land. The said plaintiff had got the same from his father who had actually purchased it in the year 1944 along with brothers. On the death of the father of the plaintiff by name Narsi Reddy long time back, the patta in respect of the plaint schedule land was transferred in the name of the plaintiff and his brothers. Though the patta stands in the name of all the legal heirs of Narsi Reddy, the plaint schedule land is in physical possession and enjoyment of the plaintiff as the brothers of the plaintiff are residing at various other places and are eking out their livelihoods. The plaintiff has been paying land revenue as and when levied by the Government. The plaint schedule land is kept fallow for grazing purposes. When the plaintiff was trying to clean the thorny bushes in
the schedule land, the defendants had unnecessarily tried to obstruct the plaintiff from doing so. The defendants are the owners of the land adjacent to the plaint schedule land. They have an eye on the plaint schedule land and had therefore, started interfering with the actual physical possession of the plaintiff over the plaint schedule land, without any manner of right or concern, only to cause loss to the plaintiff and with an intention to grab the plaint schedule land. The defendants had actually tried to interfere with the sole plaintiff’s peaceful possession and enjoyment of the plaint schedule land on 09.01.2001 but he could resist the said attempt of the defendants with the help of the village elders. Since the sole plaintiff is not in a position to resist the attempts of the defendants, who are in a large number and who are having support of unsocial elements, he apprehends that the defendants may take the law into their own hands and may try to interfere with his possession and enjoyment over the plaint schedule land. Hence, he is constrained to file the suit for perpetual injunction.’
7. Per contra, the defence of the 3rd defendant in brief, is as follows: ‘The plaintiff is the owner of the plaint schedule land is false. The plaint schedule is incorrect. The map and suit schedule are imaginary and are created. The plaintiff is in possession of the suit land and that patta was mutated in his name consequent to the death of his father and that he is paying land revenue is incorrect. The plaintiff has no land in survey no.1110/A/2 as he had already sold away his share of land to third parties and the third parties are in physical possession of the same and hence the name of the plaintiff was removed from the revenue records. The revenue records filed by the plaintiff are manipulated and fabricated. No agricultural land is available as per the documents filed by the plaintiff and the entire land in suit survey number was converted in ‘Abadi’ (residential locality). The suit schedule land is not part of S.No.1110/A/2 and in fact it is a part and parcel of the land covered by S.No.1110/A/1. This defendant is the absolute owner of land admeasuring Ac.3.07 guntas in
S.No.1110/A/1 and major portion of the said land was converted into residential locality. The house of this defendant located in a land of about Ac.1.10 guntas bears door no.8-101 and it is in possession of this defendant and the land on the Western side of the house is shown in green colour in the map annexed to the written statement. The house of this defendant and the houses of others which are located in S.No.1110 are shown in the map. The plaintiff has no manner of right, title and possession over the suit land and the suit land belongs to this defendant. The plaintiff’s father purchased the suit land in the year 1944 is false. The plaintiff has sold away his share of land in S.No.1110/A/2 to Eggidi Bayanna, Beerappa and Botla Raju and he had also constructed his own house in some extent and as such there is no land in S.No.1110/A/2 and therefore the allegations that the land is kept for grazing purpose and that the defendants are trying to grab the same are false.’
8. The defendants 1 and 2 while adopting the written statement of defendant no.3 had raised the following additional defence: ‘The third defendant is in possession of her aforementioned land till 19.03.2001 as its owner. She had later sold the land in an extent of Ac.1.35 guntas in S.No.1110/A/1 to the defendants 1 and 2 and another for a consideration of Rs.23,000/- under a sale deed bearing document no.674 of 2001 dated 19.03.2001 and therefore, the defendants 1 and 2 are in possession of the said land and the property is mutated in their names in the revenue records; and the pattadar pass books and the revenue records filed disclose the said fact. The plaintiff had not filed revenue records relating to the relevant suit year and the date of the filing of the suit to show his alleged possession as owner of the suit land. Since there is a dispute of identity, the plaintiff ought to have filed a suit for declaration of title. The plaintiff is not entitled to the equitable relief. Therefore, the suit for perpetual injunction is not maintainable.’
9. Taking into consideration the above pleadings, the trial
Court had framed the following issues and additional issues:
(1) Whether the plaintiff is entitled for perpetual injunction as prayed? (2) To what relief? Additional issues
(1) Whether the plaintiff has shown false boundaries and filed false map of sy.no.1110(A)/1 to knock away the land of D1 & 2?
(2) Whether no land is available in sy.no.1110/(A)/2 and the revenue records filed by plaintiff clearly shows the said sy.no. as ‘Abaadi’?
(3) To what relief?
10. During the course of trial, PWs 1 to 3 were examined and exhibits A1 to A9 were marked on the side of the sole plaintiff (since died). DWs 1 to 4 were examined and exhibits B1 to B15 and X1 were marked on the side of the defendants. As already noted, the trial Court had dismissed the suit of the sole plaintiff. The First Appeal of the appellants herein, who are the legal representatives of the sole plaintiff, was also dismissed. Therefore, the unsuccessful plaintiffs 2 and 3/appellants 2 and 3 are before this Court.
11. Now the substantial questions are taken up.
11. (a) Though the Courts below have recorded concurrent findings of fact on various issues and additional issues involved in the suit, the appellants/plaintiffs now contend that the First Appellate Court did not at all consider the oral evidence by observing that there is no need to consider the oral evidence and that the Court below did not independently examine the oral evidence and that the Court below did not also appreciate properly exhibits A1 to A9, which are filed to prove the plaintiff’s possession, and that the Courts below erred in accepting exhibit B15 proceedings of the M.R.O to come to an incorrect conclusion that the plaintiff has no land in the suit survey number and that the Courts below had erroneously relied upon exhibit B2-pattedar pass book of the third defendant to come to a conclusion that the third
defendant is in the possession of the plaint schedule land though a document like exhibit B2, which is pattedar pass book, is not a document of title. A plain reading of the contents of the substantial questions of law would make it clear that there are no questions of law much less substantial questions of law raised in this Second Appeal.
11. (b) Be that as it may, the sole plaintiff, who is the predecessor in the interest of the appellants herein, brought the suit against the defendants for perpetual injunction on the specific plea that he is the owner and possessor of the plaint schedule land having got it from his father, who had purchased it in the year 1944 with his brothers, and that after the death of his father the patta was transferred in his name and the names of his brothers and that he is alone in actual physical possession of the plaint schedule land as his brothers are residing elsewhere eking out their livelihoods. It is the further case of the plaintiff that he is using the plaint schedule land for grazing purposes and that the cause of action had arisen for filing the suit for perpetual injunction when the defendants had tried to interfere with his possession over the schedule land when he was preparing to clean the bushes in the plaint schedule land. It is to be noted that in the schedule of the plaint the survey number of the plaint schedule land was mentioned as survey No.1110/A/2.
11. (c) In a suit of this nature, the initial onus of the proof and the legal burden, which never shifts, are on the plaintiff. I have gone through the entire oral and documentary evidence on record. The plaintiff while asserting his case in his oral testimony had exhibited exhibits A1 to A9 and had further examined PWs 2 and 3, the supporting witnesses. PW3 is none other than the Son of the third defendant. In his cross examination, PW1 had stated that the patta for plaint schedule land was mutated in the names of his brothers individually after the death of his father. However, he had stated that no division or sub division numbers were given in the revenue record
to each bit of land. Further, it is not the case of the plaintiff that all his brothers had obtained pattedar and title deed books for their respective portions of land out of the plaint schedule land. Coming to the documentary evidence, the plaintiff had only filed exhibits A1 to A3, which are the certified copies of Pahanies for the years 1997-98, 199899 and 1999-2000, though the suit is filed in the year 2000-2001. Thus, the copy of Pahani for that suit year is not filed. On the other hand, the specific defence of the defendants is that while showing the survey number 1110/A/2 the plaintiff is wrongly claiming their land which is in survey No.1110/A/1 and that the plaintiff had sold away his land in S.No.1110/A/2 to the persons mentioned in the defence and that he had constructed a house in some extent of his land and that there is no land left to the plaintiff for being retained for grazing purposes and that after such sales by the plaintiff, the names of purchasers are entered in revenue record after removing the name of the plaintiff. Therefore, the identity of the suit schedule property with reference to its survey number was also in issue in the suit. Exhibits A1 to A3 on a perusal would show that the plaintiff and his brothers are the pattedars of the properties mentioned therein and that some extent is sold for house site and the remaining property is being used as a land. Exhibit A4 is the copy of the sketch map got prepared by the plaintiff. It being a rough sketch and a plan got prepared by the plaintiff, is not having much of a probative value. Exhibit A5 is the certified copy of the order dated 18.01.1994 passed by the M.R.O concerned. The said document of the year 1994 would show that the plaintiff and the husband of the third defendant have got land in survey No.1110 of Alair village but in this order there is no reference to sub division numbers of the said survey number. Exhibit A6 is the book containing tax receipts and all the tax receipts pertain to the survey no.1110 of Alair village upto the year 1978. Even in these tax receipts, there is no reference to any sub-division numbers obviously as the sub-division of this survey number might have been done subsequently. Exhibits A6 to A9 are the land ceiling declarations of
the year 1976 and the orders passed in land ceiling proceedings long time back, in the year 1976. Even in these orders, there is no reference to sub-division numbers. However, it is borne out by record that the total extent of survey No.1110 is Ac.6.14 guntas and the same was purchased by the father of the plaintiff and the husband of the third defendant jointly and that later they have partitioned the said land equally. It is not the pleaded case of the plaintiff that the husband of the third defendant had alienated his share of entire land to some thirdparties. Further, though the sole plaintiff had deposed that the husband of the third defendant has sold his entire share of land to some persons, he did not produce any documents supporting his statement. The defence of the defendants 1 and 2 is that they had purchased the land in an extent of Ac.1.35 cents in survey no.1110/A/1 from the third defendant under a registered sale deed dated 19.03.2001 i.e., exhibit B1. Exhibit B2 is the pattedar pass book and it stands in the name of the third defendant and the same on a perusal would show that she has got right and interest over the property covered by survey No.1110/A/1. Exhibits B3 and B4 are the pattedar pass books which stand in the name of the defendants 1 and 2. It is the further case of the defendants that the plaintiff had alienated the entire property, which belonged to him, and that he had constructed a house in some extent and that he is not having any landed property in the suit survey number for being left for grazing purposes. The said aspect was put to the plaintiff in his oral evidence. Further the exhibits B5 to B7 and X1 were also marked on the side of the defence. The said documents on a perusal would show that the plaintiff has got land in survey No.1110/A/2 and that he had sold the said land under the originals of exhibits B5 to B7 and X1. Exhibit B5 is a copy of sale deed dated 13.04.1978 bearing document No.530 of 1978 where under the sole plaintiff had sold an extent of Ac.0.03 guntas of land in suit survey no.1110/A/2 to one Y.Baiyamma. Similarly, he had sold under exhibit B6, the copy of sale deed dated 13.04.1978 bearing document No.529 of 1978, Ac.0.06 guntas of land in suit survey no.1110/A/2 to one
Y.Beerappa. Exhibit B7 is a copy of the registration extract of a document bearing No.4878 of 1981 where under the deceased sole plaintiff and one Nagireedy had together sold Ac.0.21 guntas of land in the suit survey number to one Botla Raju. Exhibit B8 is the adangal pahani for the years 2000-2001 and 2001-2002 would show that the defendants/respondents 1 and 2 own and possess lands of extents of Ac.0.25 cents each in survey no.1110/A/8 and 1110/A/9 respectively. Similarly exhibit B9 which is the adangal pahani for the year 20002001 also would show that some 3rd parties own different extents of land like Ac.0.26 ½ cents, Ac.0.21 cents, Ac.0.03 cents, Ac.0.06 cents, Ac.0.03 cents, Ac.0.03 ½ cents, Ac.0.13 cents, Ac.0.13 cents, Ac.0.12 cents, Ac.0.12 cents, Ac.0.04 cents, Ac.0.03 cents, Ac.0.03 cents and Ac.0.04 cents in the survey nos.1110/A/2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18 and 19 respectively and that the said third parties are Y.Ramakotireddy, B.Raju, Y. Jayamma, Y.Beerappa, M.Mohanreddy, M.Gopal Reddy, M. Satyanarayana Reddy, M.Rama Krishna Reddy, M.Venkat Reddy, M.Madhava Reddy, M.Ramana Reddy, M.Raghava Reddy, M. Ravinder Reddy and M. Veera Reddy. Exhibits B10, B11, B12, B13 and B14 which are the true copies of village Account No.3 adangal pahanies respectively for the years 1995-96, 1996-97 and 1997-98, 1998-99 and 1999-2000 would show that the 3rd defendant/3rd respondent Ramulamma is the owner and possessor of Ac.3.07 cents in S.No.1110/A/1. Thus a careful analysis of the exhibits and the discussion coupled with reasons supra with reference to the documents exhibited would show that the plaintiff could not prove his entitlement to possession of the suit schedule land or actual physical possession thereof as on the date of the suit and at all relevant times and on the other hand, the defendants by filing their pattadar passbooks under exhibits B2 to B4 and the copies of adangals proved their entitlement and lawful possession of their respective lands in S.No.1110 with the sub division numbers. They had also filed documents to show that the plaintiff had alienated some of his
properties in the suit survey number and that the adangal pahanies do not show the name of the plaintiff either as owner or possessor of any land particularly the suit schedule land. As referred to supra, the revenue records filed by the defendants would show the names of the purchasers from the plaintiff. Therefore, on a careful analysis of the evidence, this court finds that the plaintiff could not establish his lawful possession of the suit land as on the date of the suit and at all relevant times and therefore, he is not entitled to a perpetual injunction as prayed for as rightly held by the courts below. On careful analysis of the oral and documentary evidence, this court finds that the trial court had properly appreciated the oral and documentary evidence and that the court of first appeal having found that the trial court had properly appreciated the oral evidence had further adverted to the documentary evidence and appreciated the evidence on record in proper perspective. Therefore, the concurrent findings of fact recorded on proper appreciation of the oral and documentary evidence do not call for interference in this second appeal.
12. Viewed thus, this court finds that there is no substance in the substantial questions of law and the second appeal is devoid of merit.
13. In the result, the Second Appeal is dismissed. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this second appeal shall stand closed.
Date: 15.12.2014 MVA
_______________________ M. SEETHARAMA MURTI, J
3 issues framed by the court
Whether courts below erred in relying on oral and documentary evidence to negate plaintiff's possession and grant injunction?
Whether substantial questions of law raised regarding non-consideration of oral evidence are valid?
Whether evidence proved plaintiff sold land and is no longer entitled to possession for injunction?
1 provisions across 1 enactments
Legal Representatives of Deceased Sole Plaintiff
Defendants 1 and 2
Defendant 3
M SEETHARAMA MURTI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
