Purchasers of communal pasture land sought title, ryotwari patta and an injunction. The court upheld the land's communal character, rejected entitlement to patta, declaration and injunction, and dismissed the appeal. It nevertheless rejected the contention that civil court jurisdiction was excluded.
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 M. SATYANARAYANA MURTHY APPEAL SUIT No. 1665 OF 1995
JUDGMENT:
1. The unsuccessful plaintiffs in Original Suit No.30 of 1977 on the file of the Court of Additional District Judge, Nellore District (for short, ‘the trial Court’), preferred this Appeal challenging the decree and judgment dated 28.07.1995, wherein the suit filed by the plaintiffs, for declaration of title and other reliefs, was dismissed.
2. Appellants herein were the plaintiffs 2 to 8 and the 1st respondent herein was the defendant before the trial Court. For convenience of reference, the ranks given to the parties in O.S. No.30 of 1977 will be adopted throughout this judgment.
3. During pendency of the Appeal, respondents 2 and 3 were impleaded vide order of this Court in A.S.M.P. No.3178 of 1997, dated 19.03.2008.
4. The plaintiffs filed the suit against the defendant for declaration of title to the plaint schedule property and to set-aside the order dated 07.01.1975 of the Government of Andhra Pradesh in Reference No.1673-J1/69-31 and for permanent injunction restraining the defendant from interfering with their possession and enjoyment of the plaint schedule property alleging that they purchased the plaint schedule property of an extent of Ac.25.00 cents which is more fully described in the schedule annexed to the plaint bearing patta No.124 in Survey No.152, Resurvey Nos.2 and 3 of Vedayapalem village of erstwhile Nellore Taluk from Kailasam Veera Reddy under three different sale deeds dated 19.01.1961 and the vendor of the plaintiffs, who was in possession of the schedule property, delivered possession to the plaintiffs on the date of sale itself. According to the plaintiffs, Veera Reddy purchased the schedule property from different persons
in 1957, under various sale deeds, and that Veera Reddy being a ryot was in possession of the suit schedule property. It is further contended that schedule property is a ryoti land in Vedayapalem village, which is an estate village. The estate was abolished on 10.04.1961 under Act 26 of 1948; thereupon, the Assistant Settlement Officer who initiated enquiry made a reference to the Board of Revenue recommending grant of patta to the plaintiffs for the schedule property under the proviso to Section 11 of the Act 26 of 1948 as their vendor purchased the property after 01.07.1945. The Panchayat Board of Vedayapalem village objected for issue of patta in favour of the plaintiffs contending that the suit land is a communal land on the basis of registered agreement dated 04.03.1950 between eight representatives of the village ryots and the land holder of Vedayapalem. The Board of Revenue in its proceedings dated 25.02.1965 refused to grant patta. The plaintiffs preferred Revision before the State Government and the same was dismissed on 21.08.1966 confirming the Board Orders; thereupon, the plaintiffs filed Writ Petition No.4204 of 1968 before this Court challenging the order of the State Government and the Writ Petition was allowed remanding the matter to the Government for proper disposal, on being heard, in accordance with law. On remand, the State Government by order dated 07.01.1975 in Reference No.1673-J1/69-31 confirmed the orders of the Board of Revenue holding that there was no evidence of assignment of land in favour of the plaintiffs by land holder of Vedayapalem; thereupon, the plaintiffs filed another Writ Petition No.1392 of 1975 and the same was dismissed on the ground that the plaintiffs are entitled to avail an alternative remedy by way of civil suit; thereafter, the plaintiffs filed the suit before the trial Court for declaration of their title and to set-aside the order of the Government referred above and grant permanent injunction restraining the defendant and their men to interfere with the possession and enjoyment of the plaintiffs over the schedule property.
5. The defendant filed written statement denying material
allegations of the plaint inter-alia contending that the plaint schedule property and other land in Vedayapalem village is being used by the villagers as pasture land even prior to abolition and taken over; the land holder and ryots entered into the agreement dated 04.03.1950. As per the terms of agreement, the ryots are entitled to graze their cattle in the plaint schedule land and other land shown in B schedule annexed to the agreement dated 04.03.1950. Since then, the villagers were enjoying the said land for grazing purpose only and never cultivated the land by 1950 or even thereafter; therefore, the contention that the schedule property is a ryoti land and the vendor of the plaintiffs purchased the property enjoying the same as ryot is false.
6. The application of the plaintiffs for issue of patta under the proviso to Section 11 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, ‘the Act of 1948’) was sent to the Board of Revenue with recommendation of the Settlement Officer but the Board of Revenue rejected the claim of the plaintiffs under the proviso to Section 11 of the Act, 1948; Revision preferred against the order was confirmed by the Government. The order of Government was challenged by way of Writ Petition and the same was dismissed; therefore, the plaintiffs are bound by the decision of the Board and of the Government. The plaintiffs have no title or possession to the schedule property and as such not entitled to claim any patta either under the proviso to Section 11 of the Act, 1948 or as per G.O.Ms. No.95, dated 13.01.1960 the civil Court has no jurisdiction to go into the title to the suit land and the plaintiffs are not entitled to any relief and prayed for dismissal of the suit.
7. As the subject matter involved in O.S. No.30 of 1977 and O.S. No.15 of 1980 is one and the same, both the suits were clubbed and common evidence was recorded in O.S. No.15 of 1980.
8. On the basis of above pleadings, the trial court framed the
following issues in O.S. No.30 of 1977:
1. Whether the plaintiffs have title to the plaint schedule
property?
2. Whether this Court has no jurisdiction to go into the question of plaintiffs’ title to the suit lands and the suit is not maintainable as contended by the defendant?
3. Whether the plaintiffs cannot agitate their claims in a civil Court, as contended by the defendant?
4. Whether the plaint schedule lands are communal in character and, as such, the plaintiffs are not entitled to any relief?
5. Whether the plaintiffs are entitled for the declaration prayed for?
6. Whether the plaintiffs are entitled for the injunction prayed for?
7. To what relief?
9. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court initially dismissed both the suits on 31.01.1981. Aggrieved thereby, the matters were carried in Appeal to this Court, wherein this Court disposed of both the Appeals by common judgment dated 29.02.1988 and remanded the matters to the trial Court directing the parties to adduce additional evidence, by framing the following additional issues:
1. Whether the predecessor in title to the plaintiffs was admitted into possession of the suit schedule lands after 01.07.1945?
2. Whether the plaintiffs are entitled to the benefits of G.O.Ms. No.95, Revenue, dated 13.01.1960?
10. On behalf of the plaintiffs, before and after remand, PWs.1 to 5 were examined and Exs.A-1 to A-55 were marked; on behalf of the
defendant, DWs.1 and 2 were examined and Exs.B-1 and B-2 were marked.
11. Upon hearing argument of both the counsel considering oral and documentary evidence available on record, the trial Court again dismissed both the suits by common judgment dated 28.07.1995 holding that the ryots of Vedayapalem village are entitled to graze their cattle in B schedule annexed to the agreement dated 04.03.1950 and the right to graze the cattle is not the exclusive right of any individual in any specified extent and that too the vendor of the plaintiffs Veera Reddy was not inducted into possession as on 01.07.1945. The trial Court further dismissed the suits holding that the civil Court has no jurisdiction to try and decide the title of the plaintiffs and decide the legality of the order of the Board of Revenue and Government under the Act, 1948.
12. Aggrieved thereby, the plaintiffs in O.S. No.30 of 1977 preferred the instant Appeal raising the following contentions:
a) The trial Court did not consider the possession and enjoyment of the schedule property of the predecessors in title to the plaintiffs in view of Exs.A-41 to A-43 and it was initially a ryoti land prior to the alleged agreement. Therefore, the plaintiffs’ predecessor was inducted into possession as on 01.07.1945 but the trial Court did not consider the same in proper perspective; b) It is further contended that the land was originally a ryoti land but it was allegedly converted into pasture or grazing land for the purpose of grazing cattle by the ryots of Vedayapalem village and it was not in consonance with the provisions of the Act, 1948 and the ryots or land holder cannot convert any land from ryoti to pasture or grazing land; therefore, the conversion of ryoti land into
grazing land is against the provisions of the Act, 1948. On this ground alone the suit is liable to be decreed but the trial Court did not consider this contention in proper perspective;
c) The landholders i.e., shotriumdars were the owners of Ac.200.00 cents of land which was set apart at the request of the villagers for the purpose of grazing their cattle in proportion to their extent of land as per Ex.B-1 but that does not amount to conversion in terms of the provisions of the Act, 1948 and the trial Court failed to consider this contention in proper perspective; d) The trial Court did not consider the purport of G.O.Ms. No.95, Revenue dated 13.01.1960 since the land was brought under cultivation as on the notified date and complied the requirements under the G.O. but the trial Court on erroneous appreciation disallowed the claim of the plaintiffs;
e) During trial, notice was issued to the defendant to produce 10(1) account and SLR which is admittedly in possession of the defendant so as to enable the plaintiffs to prove the actual cultivation of the land by them and by their predecessors in title but the trial Court did not draw any adverse inference though the documents were not produced and it is an error; and
f) The trial Court also erroneously concluded that the jurisdiction of civil Court is ousted but, in fact, the civil Courts alone are competent to decide the nature of the land and the Settlement Officer is incompetent to decide the nature of the land in summary enquiry and, therefore, the civil Court has got jurisdiction. Hence, the decree and judgment passed by the trial Court are erroneous and prayed to set-aside the decree and judgment by
allowing this Appeal.
13. During course of argument, Sri P. Sridhar Reddy, learned counsel for the plaintiffs-appellants, would contend that the suit schedule property is a part of Ac.200.00 cents belonging to shotriumdars i.e., land holder in the estate village of Vedayapalem and it was never converted into a grazing or pasture land by following the procedure prescribed under Section 20-A of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 (for short, ‘the Act of 1908’) and in the absence of any conversion by the District Collector, the land shall not lose its original character as ryoti land and does not acquire the character of communal land; therefore, the conversion of ryoti land into communal land i.e., for the purpose of grazing cattle under Exs.B1, registered agreement dated 04.03.1950 between shotriumdars and ryots of Vedayapalem village is not sufficient to conclude that the schedule land is not ryoti land but the trial Court did not appreciate this contention in proper perspective. Further, it is contended that the voluminous evidence on record more particularly digging bore wells to cultivate the land, raising dry crops therein is sufficient to prove that the plaintiffs vendor was inducted into possession after a specified date but this fact was not appreciated; apart from that, a notice to produce certain documents was issued to the Government particularly 10(1) account and SLR but the defendant did not produce those documents; in which case, the trial Court, by drawing an adverse inference drawn under Section 114(g) of the Indian Evidence Act, 1872 (for short, ‘the Act of 1872’), can conclude that the land is in possession of the plaintiffs as their predecessors in title inducted them into possession after 01.07.1945 since the SLR and 10(1) adangals established the classification and cultivation of the land; moreover, the trial Court did not accept this contention on the ground that 10(1) account may at best show payment of land revenue and SLR is of no use to prove possession of the property by the plaintiffs and refused to draw adverse inference against the plaintiffs. He further contended that the
civil Court has got jurisdiction to decide the nature of the land but the trial Court did not appreciate this contention in proper perspective; however, in support of his contention, he has drawn the attention of this Court to several decisions of the Apex Court in Sree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Guru and others Vs. State of A.P. and others[1] , State of Tamil Nadu Vs. Ramalinga Samigal Mada m[2] and Dhulabhai Vs. State of M.P. and anothe r[3] and to a decision of this Court in Nallipattu Ramakrishna Reddy and another Vs. Kasala Balaiah and anothe r[4] and finally prayed to reappraise entire evidence available on record with reference to law declared by the Apex Court and this Court in the decisions referred supra, set-aside the decree and judgment, pass a decree in favour of the plaintiffs for the aforesaid reliefs.
14. Per contra, learned Government Pleader for Appeals argued totally in support of the finding recorded by the trial Court and contended that the land is a pasture or grazing land, ryots of Vedayapalem village are entitled to graze their cattle and it is a right of easement and such easementary right cannot be converted into absolute right in the property; thereby, question of exclusive possession and enjoyment of the property by the plaintiffs or their vendor does not arise since the title was with the land holder or shotriumdars of Vedavayapalem village. Therefore, the vendor of the plaintiffs had no right or title to the property; consequently, the plaintiffs are not entitled to claim exclusive right over the suit schedule property.
15. It is further contended that the civil Court has no jurisdiction to set-aside the order passed by the Government or Board of Revenue and declare the title of the plaintiffs to the schedule property under the Act, 1948 and as such the trial Court rightly concluded that the civil Court has no jurisdiction; that apart, the well reasoned order of the trial
Court with regard to proof of induction of vendor of the plaintiffs in possession was disbelieved and thereby, even after reappraisal of entire evidence, there is no need to accept the contentions of the plaintiffs about induction of predecessor in title of the plaintiffs’ after specified date to claim patta under the proviso to Section 11 of the Act, 1948.
16. No doubt, a notice was issued to the defendant for production of the documents before the trial Court but the defendant declined to produce the same; thereafter, no direction was given by the trial Court to the defendant to produce the documents, and in the absence of any order directing the defendant to produce the documents, non production of those documents would not result in drawing an adverse inference for withholding the best favourable evidence to the defendant and that too drawing presumption under Section 114(g) of the Act, 1872 is only optional in view of the law declared by the Apex Court. Thus, the trial Court rightly did not draw such adverse inference for non-production assigning specific reason in the judgment. In such case, only on the basis of non production of documents, the plaintiffs cannot be declared as owners of the schedule property and the order passed by the Government cannot be set-aside and prayed to dismiss the Appeal confirming the decree and judgment of the trial Court.
17. Considering rival contentions, perusing the decree and judgment under challenge, oral and documentary evidence available on record, the points that arise for consideration are:
1. Whether classification of Ac.200.00 cents of land at Vedayapalem village, in which the schedule property is part, is a communal land? If so, whether it is in accordance with Section 20-A of the Act, 1908?
2. Whether Kailasam Veera Reddy, predecessor in title of the plaintiffs, was inducted into possession of the
property after 01.07.1945? If so, the plaintiffs being the successors of Veera Reddy are entitled to claim patta under the proviso to Section 11 of the Act, 1948?
3. Whether the plaintiffs be declared as absolute owners of the schedule property?
4. Whether the order dated 07.01.1975 passed in Ref.No.1673-JI/69-31 by the Government of Andhra Pradesh is valid? If not, liable to be set-aside?
5. Whether the plaintiffs are in possession and enjoyment of the schedule property as on the date of filing the suit? If so, whether the defendant made any attempt to infringe or invade the legal right of the plaintiffs and, whether the plaintiffs are entitled to permanent injunction restraining the defendant and their men from interfering with their peaceful possession and enjoyment of the suit schedule property?
18. POINT No.1: The first and foremost contention of the plaintiffs from the beginning is that the suit schedule property which is a part of Ac.200.00 cents of Vedayapalem village is a ryoti land and the alleged conversion of ryoti land into communal land is not in accordance with law and thereby it retained the character of ryoti land. Therefore, the plaintiffs being the purchasers are entitled to claim patta and the civil Court alone is competent to decide the nature of land; whereas, the Government contends that the land in question is a communal land i.e., for grazing cattle by the villagers in Ac.200.00 cents of land in which the schedule property is part. In view of this controversy, it is the duty of this Court to decide whether the schedule property is a ryoti land or communal land.
19. Communal land is not defined anywhere either in the Act, 1948 or in the Act, 1908 but ryoti land is defined under Section 3(16) of the Act, 1908, which reads as follows:
“Ryoti land” means cultivable land in an estate other than private land but does not include(a) beds and bunds of tanks and of supply, drainage surplus or irrigation channels (substituted for original clause (11) by Section 4(5) of Act VIII of 1934;
(b) threshing-floor, cattle-stands, village-sites and other lands situated in any estate which are set apart for the common use of the villagers;
(c) land granted on service tenure either free of rent or on favourable rent if granted before the passing of this Act or free of
20. From the definition of ‘ryoti land’ under Section 3(16) of the Act, 1908, it does not include a village site or site set apart for the common use of the villagers. Undoubtedly, Vedavayaplem village was initially an estate village and it was taken over under the provisions of Act 26 of 1948 on 10.04.1961. Therefore, the ryoti land shall not include a land for the common use of the villagers or village site. According to the contention of the defendant-Government, it is set apart for grazing purpose for the cattle of the villagers. So, it comes within the definition of Section 3(16)(b) of the Act, 1908 but the contention of the plaintiffs is that the land still remains its original character as ryoti land and it would not change the nature on account of execution of agreement dated 04.03.1950 between eight representatives of the village and the land holder, unless the Collector by exercising power under Section 20-A of the Act, 1908 changed the nature of land. Undoubtedly, the land holder and the village representatives entered into an agreement dated 04.03.1950 setting apart Ac.200.00 cents and the schedule property is a part of it for the benefit of the villagers to graze their cattle in the land. Grazing cattle is only a customary easement under Section 18 of the Indian Easements Act, 1882 (for short, ‘the Act of 1882’).
21. According to Section 18 of the Act, 1882 an easement may be acquired by virtue of a local custom. Such easements are called customary easements. Illustration (a) to Section 18 clearly says that by
the custom of a certain village, every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A person having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom. Right to pasture or right to graze cattle claimed by a whole body of the villagers are not easements in proper sense but they come under a class of rights intermediate between public and private rights attached to certain classes of persons or portions of the public and ordinarily have their own origin by custom.
22. The right of pasturage based on lost grant cannot be sustained, in case of indefinite number of persons belonging to different villages. When a similar question came up for consideration before a Division Bench of Madras High Court in Tiruvadipuram Lakshmi Kumara Akkulnayanam Varu Vs. Palleti Chinna Narayanappa Naidu and others[5] , it was held as follows:
“2. …………….All these documents clearly show that during the whole period under reference the tenants used always to apply to the landlord formally for permission to graze the cattle and such permission was granted on terms agreed to between the landlord and the tenants. How, in these circumstances, any right in the defendants would come to be recognized, or how any customary right to graze cattle in these kanchalands on payment of a customary rent of Rs.170/- can be established, it is impossible to conceive. No doubt, such a right can be established by proper evidence if it is made out that from time immemorial the tenants have enjoyed it as of right and if from the circumstances it could be gathered that the right was enjoyed by them customarily or might be due to a lost grant. But in a case of this sort, where the rent has been increased within living memory, really within a few years, and where on every occasion on which the landlord grants permission to the tenants to graze the cattle they have had to apply for it and obtain such permission, it is impossible to find any right in the defendants as established.”
23. In view of the principle laid down in the above decision, the
custom claimed by the villagers to graze cattle in the land in view of the agreement dated 04.03.1950, which is within the short time before taking over the village i.e., 10.04.1961 the same cannot be considered as customary easement. In any view of the matter, there is a grant by the land holder in favour of the representatives of the Vedayapalem village creating a right to graze cattle in the land in an extent of Ac.200.00 cents, in which the schedule property is part. Therefore, such right cannot be treated as a customary right but it is a right to graze by agreement or by a grant. In any view of the matter, a right is conferred under a grant i.e., agreement dated 04.03.1950 is in favour of the villagers to graze their cattle, before taking over the said village on 10.04.1961.
24. The main endeavour of learned counsel for the plaintiffsappellants is that the original character of the land is ryoti land and unless it is changed by following procedure under Section 20-A of the Act, 1908 the Government is not entitled to raise a contention that it is a communal land.
25. Section 20(1) and 20-A of the Act, 1908 are the relevant provisions, which require consideration at this stage. Section 20(1) deals with the power of the Collector to decide whether land is communal land or not and the customary right in any such land. The Collector may on the application of the land holder or other person interested, decide any question as to whether any land is or is not of description mentioned in sub-clauses (a), (b) or (c) of Clause (16) of Section (3), or as to the customary rights in the user of any land which is of any such description, as existing at the commencement of this Act.
26. As per Section 20(1), the power is conferred only on the District Collector to decide the nature of the land only on the application of land holder or other person interested. In the present case, the land holder did not make any application to the Collector to decide the
nature or character of the land as defined under Section 3 sub-clauses (a) and (b) of clause 16 or whether it comes under sub-clauses (a) and (b) of clause 16 or any other customary right of the users. Therefore, in the absence of any application either by the land holder or by the person interested, the Collector is not under obligation to decide the nature or character of the land in question. Even the plaintiffs did not make any application under Section 20(1) of the Act, 1908. If any application is made and the Collector decides the nature of land, exercising power under Section 20(1) of the Act, 1908, the aggrieved person may, within a period of one year from the date of such order, institute a suit in a civil Court to establish the right claimed by him in respect of such land but subject to the result of the suit, if any, the Collector’s decision shall be final. Taking advantage of Section 20(2) of the Act, 1908, learned counsel for the plaintiffs-appellants would contend that the civil Court alone is competent to decide the nature or character of the land in dispute, placed reliance on the decision of the Apex Court in Ramalinga Samigal Madam2 , wherein the Apex Court while discussing about the jurisdiction of civil Court to decide the nature of land with reference to Section 3(15) and 3(16) regarding exclusion of civil Courts jurisdiction held that adjudication of real nature of the land by the civil Court is not barred. In Nallipattu Ramakrishna4 , this Court held that civil Court has jurisdiction to decide the question arising under Section 11 of the Act, 1948 notwithstanding any earlier decision of the settlement authority as to the persons entitled to grant patta under Section 11 of the Act but the principle laid down by this Court has no direct application to the present facts. However, in view of the principle laid down by the Apex Court in Ramalinga Samigal Madam2 , the civil Court is competent to decide the nature of land and any person, if aggrieved by the decision of the Collector, under Section 20(1) of the Act, 1908 has to establish his right claimed in the land, the Court can decide such questions but in the present case, the plaintiffs or their predecessors in title or the
land holder did not approach the Collector or make any application under Section 20(1) of the Act, 1908 to determine the nature or character of the land in dispute. Therefore, the question of deciding the nature or character of the land in a suit filed by a person, aggrieved by the order passed by the Collector, under sub-section (1) of Section 20 does not arise. In fact, none of the parties did approach the Collector for such determination.
27. One of the major contentions of learned counsel for the plaintiffs-appellants is that as per Section 20-A(1)(a) of the Act, 1908 the District Collector alone is competent to declare that any land or any portion of any land which is set apart for the purposes referred to in sub-clauses (a) and (b) of clause (16) of Section 3 is no longer required for its original purpose. As per Section 20-A(1)(b)(i) of the Act, on an application of the land holder, a ryot or any other person interested by order in writing direct that any such land or portion in respect of which such declaration is made be used for any other specified communal purpose; or (ii) if such land or portion is not required for any communal purpose, that it be converted into ryotwari land or land holder’s ryot land according as the reversionary rights in such land vest under the terms, express or implied, of the sanad, title deed or other grant in the Government or in the land holder. Clause (2) of Section 20-A further says that without the written order of the District Collector under clause (b) of sub-section (1), no land which is set apart for any of the purposes referred to in sub-clauses (a) and (b) of Clause (16) of Section 3 shall be assigned or used for any other purpose.
28. It is clear from the language used under Section 20-A of the Act, 1908, only on the application made by the land holder, a ryot or any other person interested, the Collector may declare any land set apart for the purposes referred to under Section 3 Clause (16)(a) and (b) the land is no longer required for the original purpose. This section does not confer any power on the Collector to convert a ryoti land into
communal land for the use of villagers as a whole or a class of the villagers. Therefore, the contention of learned counsel for the plaintiffsappellants that in the absence of any order under Section 20-A of the Act, 1908 the original character of the land would retain i.e., ryoti land is without any substance. The power conferred under Section 20-A of the Act, 1908 is only for declaring the land mentioned in sub-clauses (a) and (b) of Clause 16 of Section 3 under conversion of ryoti land into communal land.
29. The contention of the learned Government Pleader for Appeals is that the civil Court has no jurisdiction is no more res-integra in view of the decisions of the Apex Court and this Court referred supra. Therefore, the contention that the jurisdiction of the civil Court is ousted is without any legal force. Hence, the same is hereby rejected.
30. Turning to the evidence adduced by the plaintiffs, the main documents they relied are the sale deeds executed in their favour and in favour of their vendor but they are not relevant to decide the nature of land, however, the agreement marked as Ex.B-1 dated 04.03.1950 is worth reference at this stage to decide the nature of land. Ex.B-1 is an agreement between the land holder and ryots of Vedayapalem village, wherein the ryots of the village were given right to graze their cattle. In the body of the document, there is a reference about the previous litigation between the land holder in O.S. No.418 of 1927 but it was compromised in 1930 and the schedule property was allotted to the land holder in the compromise decree and delivered vacant possession of the same to the land holder. It further goes to show that the village ryots are entitled to graze their cattle in proportion to their land within the boundaries mentioned therein, without conferring any right to alienate the property or to continue in possession and enjoyment of the schedule property. Therefore, the right conferred on the ryots is only to graze cattle and they were not allowed to continue in possession and enjoyment of the property or to alienate the same to
any third party. Therefore, they are not entitled to continue in possession and enjoyment of the property with absolute right; thereby, they cannot transfer or alienate any part of the schedule property to third parties, except to enjoy the property for grazing purpose. The plaintiffs mostly relied on Ex.A-55 adangal which shows that for the fasli 1370, K. Veera Reddy and G. Venkata Subba Reddy are in possession of Ac.3.00 cents in R.S. No.152-A and B respectively. Fasli 1370 is equivalent to agricultural year 1960. Therefore, this document is of no use to establish the nature of the land. Even the other documents marked on behalf of the plaintiffs i.e., sale deeds are of no use to establish the property in dispute is a ryoti land as contended, but there is a vague observation in the order passed by the Assistant Settlement Officer under the original of Ex.A-54 and, according to it, the schedule property is only a private land of land holder but this was not objected by Board of Revenue and the Government. Therefore, basing on Ex.A-54, it is difficult to conclude that the schedule property was classified as ryoti land and not communal land i.e., grazing land for the villagers.
31. Turning to the evidence on record, PW.1 the 1st plaintiff asserted that he purchased the land from his predecessor in title Veera Reddy under Ex.A-1 and his brother purchased Item 2 of the schedule property under Ex.A-2. In the examination-in-chief, PW.1 made a crucial admission about the nature of land and it is extracted hereunder for better appreciation:
“By the time we purchased these lands, they were pasture lands. After the purchase, we reclaimed the land and made it fit for cultivation. We got two wells dug in these two plots. We spent about Rs.50,000/- to repair this land to make it fit for cultivation.”
32. The admission of PW.1 is suffice to conclude that the land was pasture land and this is supported by original of Ex.B-1 wherein the ryots of Vedayapalem village were permitted to graze their cattle under
the agreement between them and land holder of Vedayapalem. In the cross-examination, PW.1 admitted that he does not know at what time the ryots sold pieces of land to Veera Reddy. The vendor of PW.1, who is the plaintiff in O.S. No.15 of 1980, had been in possession and enjoyment of the land and he did not enquire it. At page 4 of the crossexamination, PW.1 admitted that he did not make any application before the Settlement Officer to grant patta to him but the Settlement Officer conducted a suo-motu enquiry and was told that patta granted to ryots was subsequently cancelled by the Government. At the instance of the government, the Revenue Divisional Officer and Tahsildar inspected the land. This also clinches the issue that he did not apply for issue of ryotwari patta to the concerned authorities. If really, he is in possession and enjoyment of the property, being the land holder, he is supposed to make an application for issue of patta in pursuance of Ex.A-1 and A-2, if it is a ryoti land. The conduct of the plaintiffs is improbable to the circumstances of the case. Cancellation of patta granted to ryots by the Government is also another strong circumstance to believe that the land in question was not ryoti land.
33. PW.2 is the 1st plaintiff in O.S. No.30 of 1997. According to PW.2, himself and two others purchased Ac.25.00 cents of land in Vedayapalem village under 3 separate sale deeds marked as Exs.A41 to A-43 and the land purchased by PW.1 and PW.2 from Veera Reddy is in same survey number. Ex.A-5 to A-35 are the title deeds of Veera Reddy. In the examination-in-chief itself, PW.2 admitted that by the time he purchased the land, the land was dry land. A portion of the land was converted into wet land and dug three wells for irrigation purpose. In the cross-examination, he further admitted that by the time of purchase a part of the land was not being cultivated but he cannot say how much extent was not under cultivation and expressed his inability to say whether the suit land was under cultivation since 1950 or not. Therefore, the evidence of PW.2 is not consistent to prove that
the land is a ryoti land being cultivated by any of the ryots unlawfully or by the land holder.
34. PW.3 is the vendor of the plaintiffs who purchased the schedule property under Ex.A-6 to A-35. Strangely, he testified that at the time of purchase of land, the ryots were raising dry crop in the land and after purchase he continued to raise dry crops in the land. In the crossexamination, he admitted that he did not verify the village accounts to know whether the land sold to him was under cultivation and cultivation of the land was not mentioned in the sale deeds and also expressed his inability to say whether the description of the land was given as beedu (pasture). If really, the evidence of PW.3, vendor of the plaintiffs, is true, the question of PWs.1 and 2 testifying that by the date of their purchase the land was a pasture land and their reclaiming the land and bringing it to cultivation does not arise. Therefore, the testimony of PW.3 is only an after thought due to invention so as to establish that the land is a ryoti land and it is under cultivation. If really, the land was under cultivation, the village account i.e., cultivation account would disclose the nature of the crop raised and the quantum of yield etc., in the village accounts but none of the village accounts were brought on record to establish that the land was under cultivation and the ryots of PW.3 used to raise dry crops in the land. In the absence of any documentary proof to establish raising crop in the suit schedule property, the evidence of PW.3 is not worthy of consideration since his evidence is inconsistent to the evidence of plaintiffs, PWs.1 and 2 regarding nature of land.
35. One Varadaiah, former village Sarpanch was examined as PW.4 and according to him, the estate was abolished by the Government in 1961 and the Vedayapalem village has become part of Nellore municipality in the year 1978 and that there was an agreement between the land holder and the village ryots on 04.03.1950. The ryots signed on behalf of the villagers on Ex.B-1. He further admitted
that there was a pasture land in the village known as cheruvukinda beedu, which is to the west of the trunk road. The total extent of the pasture land is about Ac.250.00 cents; Even from Ac.250.00 cents, Ac.50.00 cents were taken by the shotriumdars and west of Ac.200.00 cents were given to the ryots in the village to graze cattle in the said land. The ryots took possession of the land and grazed cattle in the said land for some time. This piece of evidence, at best, is useful to prove execution of original of Ex.B-1 and grazing of cattle by ryots. However, at the beginning of Page 3, PW.4 clearly asserted that PW.1 and Devarajulu took possession of the property on the date of their purchase.
36. When I adverted to the cross-examination of PW.4 dated 04.08.1992, he admitted that the land holder conferred right on the ryots of Vedayapalem village to graze cattle in the said Ac.200.00 cents of land and, as per the terms of original of Ex.B-1, the ryots are not entitled to cultivate the land and further admitted that the land is vacant and left fallow. Therefore, this piece of evidence, at best, is useful to substantiate the contention of the defendant and not the plaintiffs. Even if the evidence of PW.4 is accepted on the face of it, his evidence would clinchingly establish that the suit schedule property is a pasture land and the vendors of Veera Reddy, were given right to graze cattle in the land without creating any interest in the property and they were not entitled to cultivate the land and alienate the property. Therefore, the testimony of PW.4 is sufficient to conclude that the suit schedule property is only a pasture land meant for grazing the cattle in Vedayapalem village. In those circumstances, it is difficult to accept the contention of the plaintiffs that the land in question is a ryoti land since evidence adduced by the plaintiffs goes against their contention.
37. PW.5 is the clerk working under plaintiffs 1 to 3, who obtained copies of cultivation account in Survey No.152 of Vedayapalem village and produced Ex.A-55 but his evidence of no assistance to the
plaintiffs to prove the nature of land. The plaintiffs further produced the cist receipts, account books and correlation registers but they are of no use to prove the nature of land. Therefore, the consistent evidence on record adduced by the plaintiffs is that the land was a pasture land initially as on the date of their purchase under Exs.A-1 to A-3 and the nature of the land was not changed by the Collector, exercising power under Section 20-A of the Act, 1908. Therefore, mere cultivation of the property subsequent to purchase of the land by the plaintiffs would not change its original nature of the land i.e., pasture land for communal purpose. Therefore, the contention of the plaintiffs that the land in question is a ryoti land cannot be accepted. The trial Court appreciated the evidence on record with reference to relevant provisions in the Act and rightly concluded that the suit schedule property is only a communal land given to the ryots of Vedayapalem village by the land holder for the purpose of grazing their cattle without conferring any right to alienate the property and such right is only a customary right. Therefore, the trial Court did commit no error in rejecting the plea of the plaintiffs.
38. One of the major contentions of the plaintiffs-appellants is that they issued notice to produce inam fair adangal which contains the nature of the land but the defendant did not produce the same but the trial Court did not draw any adverse inference against the defendant for non production of the document under Section 114(g) of the Act, 1872 since the document would not disclose the nature of land.
39. During argument, learned counsel for the plaintiffs-appellants insisted this Court to draw an adverse inference for non-production of the document since the document, if produced, would prove the nature of the land and that the defendant withhold the best evidence available to the plaintiffs. No doubt, withholding of a document permits the Court to draw an adverse inference under Section 114(g) of the Ac, 1872 but unless there is a direction from the Court to produce certain document,
the Court cannot draw an adverse inference and that apart drawing an adverse inference is optional and not mandatory. It is settled law that drawing of adverse inference is discretion of the Court. Merely, because the document was not produced, the Court cannot draw an adverse inference.
40. In Mahendra L. Jain and others Vs. Indore Development Authority and others[6] , the Apex Court held as follows:
“Mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so.”
41. In Mahendra L. Jain6 , the Apex Court relying on its earlier [7] decision in Muncipal Corporation, Faridabad Vs. Siri Niwas , held as follows:
“A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional nonproduction, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds. In the instant case, the Industrial Tribunal did not draw any adverse inference against the Appellant. It was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the Respondent."
42. In view of the law declared by the Apex Court in the decisions referred supra, it is difficult to accept the contention of the plaintiffs to draw adverse inference against the defendant for non-production of the document. Hence, this contention holds no substance.
43. One of the contentions of the plaintiffs is that unless the ryoti land is converted into communal land by exercising power under Section 20-A of the Act, 1908, the land can be said to be a ryoti land but, as discussed in the earlier paragraphs, this contention holds no substance in view of the limited power conferred on the Collector under Section 20-A of the Act, 1908. Therefore, I hold that the land in dispute is only a pasture land given by the land holder to the ryots of Vedayapalem village to graze their cattle. Accordingly, the point is held in favour of the defendant and against the plaintiffs.
44. POINT No.2: The main contention of learned counsel for the plaintiffs-appellants is that when the land in question is a ryoti land, the person in occupation is entitled to a patta under the proviso to Section 11 of the Act, 1948 subject to his induction into possession of the property as per G.O.Ms. No.95, dated 13.01.1960. In the enquiry, the Settlement Officer opined that the plaintiffs were in possession of the property and recommended for grant of patta in their favour with the aid of proviso to Section 11 of the Act, 1948 but the Board of Revenue declined to grant patta in their favour. Aggrieved by the same, Revision preferred there against before the Government, which is competent to exercise power under the proviso to Section 11 of the Act; ended in dismissal confirming the order of the Board of Revenue, declining to grant a patta under the proviso to Section 11 of the Act, 1948; however, the order of the Government was challenged in the Writ Petition wherein a direction was given to the Government to reconsider the matter and pass appropriate orders. Accordingly, on remand, a fresh order in memorandum No.1673-JI/69-31 dated 07.01.1975 was passed by the State Government which is marked as Ex.A-37 before the trial Court. Against the order passed in Memorandum referred above by the Government, W.P. Nos.1392 and 3806 of 1975 were preferred before this Court. Ex.A-38 is the common order wherein the Writ Petitions were dismissed on 04.04.1997 directing the petitioners
therein to approach civil Court. Accordingly, the plaintiffs approached the civil Court; however, the trial Court did not accept the contention assigning its own reasons including lack of jurisdiction to grant a patta under the proviso to Section 11 of the Act, 1948 and dismissed the suit, which finding is challenged in the instant Appeal. The relevant finding for decision in the present point is with regard to occupation of the property to claim patta under the proviso to Section 11 of the Act, 1948. According to Section 11, when a person is admitted into possession of any land by a landholder on or after 01.07.1945, he is not entitled to claim ryotwari patta in respect of such land except where the Government, after an examination of all the circumstances otherwise direct. Therefore, from a bare reading of the proviso to Section 11, it is clear that to claim benefit under the proviso to G.O.Ms. No.95, dated 13.01.1960, the plaintiffs or their predecessors have to prove their occupation of the land and cultivation of the same on or after 01.07.1945. Even if the plaintiffs proved that they came into possession of the property after 01.07.1945, the Government may on satisfaction direct to grant a patta but it is purely discretionary. When similar question came up for consideration before this Court in Srinadhu Mallappa Vs. Board of Revenue[8] , this Court ruled that the grant under the proviso to Section 11 of the Madras Estates Abolition Act, 1948 is a statutory power and the grant has to be made by the Government. No doubt, the Settlement Officer has to make enquiry but the power of granting is vested on the Government under the said proviso. This power has been delegated to the Board of Revenue, under the Rules. As against any order passed by the Board of Revenue, a Revision has been provided to the Government by the Rules made under the G.O.Ms. No.1044 (Revenue) dated 17.06.1961. This being a statutory provision, the Board of Revenue once it has passed an order granting patta, it had become functus officio and no power of revision is vested in it and unless it be a ground of fraud, misrepresentation or other similar grounds, if could not review its own
orders.
45. The 1st part of the decision clearly indicated that the Government alone is competent to grant patta under the proviso to Section 11 which is similar to the Act, 1948 but under the Madras Act, such power is delegated to the Board of Revenue. Similar is the situation in Andhra Pradesh; even then, the Board of Revenue alone is competent to grant a patta by exercising power under the proviso to Section 11 of the Act, 1948. Therefore, in the present case, by exercising power under the proviso to Section 11, the Board of Revenue rejected grant of patta to the purchasers i.e., plaintiffs and the same was upheld by the Government by passing an order dated 25.02.1963, Ex.A-36.
46. It is no doubt true that the civil Court jurisdiction is not ousted and the civil Court is competent to go into the correctness of determination of nature of land under Section 11 by Settlement Officer as held by this Court in K.V. Krishnaiah Vs. M.S. Reddy[9] and the same is reiterated in Nallipattu Ramakrishna4 , wherein this Court differed with the opinion expressed by the Division Bench of this Court in Jaya Syamala Rao Vs. Sri Radhakantha Swam i[10] , by following the principle laid down in Ramalinga Samigal Madam2 , wherein the Apex Court held that the order passed by the settlement authority either granting or refusing to grant ryotwari patta to the ryots under the proviso to Section 11 of the Act must be regarded as having been passed to achieve the purposes of the Act as mentioned in Section 64C and that must have reference only to the purpose of revenue collection and therefore any decision rendered by the Settlement Officer while taking a decision for the aforesaid purpose is not final and is subject to the decision of the civil Court. It was pointed out that there was a distinction between the proceedings under Section 11 of the Act
on the one hand and the proceedings under Sections 12, 13 and 14 of the Act. In respect of Section 11, there is no express provision for any enquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant whereas the specific provision for such enquiry is made in Sections 12 to 14 of the Act. The decision arrived at under Section 11 of the Act is summary in nature for the purpose of granting or refusing patta while considering the question of payment of assessment. A summary decision of this type in an enquiry conducted for revenue purposes cannot be regarded as final or conclusive so as to constitute a bar to the jurisdiction of the civil Court in adjudicating upon the same issue arising in a suit filed by a ryot on the basis of his title and long and un-interrupted possession. Further, the Apex Court held that the Tribunal constituted under the Act do not have power to grant various reliefs which can be granted by the civil Court.
47. Turning to the facts of the present case, Ex.B-1 is the agreement between land holder and eight representatives of Vedayapalem village whereby the villagers are permitted to graze their cattle in proportion to the land held by them. A bare look at the recitals of Ex.B-1, a right was created to graze the cattle to the representatives of Vedayapalem village and it is only a customary right by grant created by the land holder. It is not clear that whether the ryots were in possession and enjoyment of the property as on 01.07.1945 when the Act, 1948 came into force. Even assuming for a moment that the ryots started cultivating the land in pursuance of Ex.B-1, still their occupation is subsequent to 01.07.1945. In such a case, the Government has to satisfy but such occupier of land assuming that it is a ryoti land but without conceding about the nature, the plaintiffs are not entitled to claim any patta unless the Government otherwise directs but here the Government did not issue any direction for issue of patta exercising power under the proviso to Section 11 of the Act. This proviso is totally silent as to what are the requirements to satisfy the Government to
direct otherwise. Therefore, when the Government declined to grant patta under Section 11, even if the land retained its original character as ryoti land, the plaintiffs are not entitled to claim any patta in their favour under the proviso to Section 11 of the Act.
48. Veera Reddy allegedly purchased the property under Exs.A-6 t o A-35 from different ryots of Vedayapalem village for different amount. All these sale deeds were obtained on different dates commencing from 05.08.1957. Even assuming that the Veera Reddy, predecessor in title of the plaintiffs came into possession of the property as on the date of obtaining sale deeds marked as Exs.A-6 to A-35 and since then the plaintiffs are continuing in possession of the same, the plaintiffs are not entitled to claim the benefit under the proviso to Section 11 of the Act, 1948. The crucial date to avail the benefit under the proviso is 01.07.1945. Even otherwise, the original of Ex.B-1 was obtained in the year 04.03.1950. Thus, the ryots of Vedayapalem village or their predecessors were not in possession and enjoyment of the property on 01.07.1945 but were permitted to graze the cattle, such grazing cattle cannot be construed as possession. In such case, the plaintiffs are not entitled to claim benefit under the proviso to Section 11 of the Act, 1948. Consequently, the contention that the plaintiffs are entitled to claim the benefit under the proviso to Section 11 of the Act, 1948 holds no substance and this contention was rightly rejected by the trial Court. Even after reappraisal of the facts with reference to law, I find no substance in this contention. Accordingly, the point is held in favour of the defendant and against the plaintiffs.
49. POINT No.3: The plaintiffs claimed declaration of their title to the schedule property as absolute owners. Admittedly, the land originally belongs land holder of Vedayapalem village and consequent on taking over the estate of Vedayapalem, the land would
vest on the Government under the Act, 1948 and the land holder or the occupiers are at best entitled to claim a ryotwari patta under Section 11 of the Act, 1948 but no patta was granted till date and even the recommendation made by the Assistant Settlement Officer to the Board of Revenue for issue of patta is only recommendatory in nature and it would not create any right or title over the schedule property. Even otherwise, the Government alone is competent to issue patta under the proviso to Section 11 of the Act but the Government declined to grant patta under the proviso to Section 11 of the Act, 1948 of the Act assigning its own reasons. Apart from that, the plaintiffs or their predecessors in title failed to establish that they were in possession and enjoyment of the property as on the notified date i.e., 01.07.1945 in the absence of which they are not entitled to the benefit of proviso to Section 11 of the Act, 1948.
50. The plaintiffs claimed relief under Section 34 of the Specific Relief Act, 1963 (for short, ‘the Act of 1963’) which is purely discretionary in nature. Unless patta was granted in their favour under Section 11 of the Act, 1948, consequent upon taking over of estate of Vedayapalem village, the plaintiffs are not entitled to claim an absolute right or interest in the schedule property and since the relief of declaration is discretionary, the plaintiffs have to establish their lawful title to the property by producing cogent and satisfactory evidence and they are not entitled to take advantage of the weakness in the defence set-up by the defendant as per the settled law laid down by the Apex Court in T.K. Mohammed Abubucker (dead) through L.Rs., and
others Vs. P.S.M. Ahamed Abdul Khader and others[11] and Union of India and others Vs. Vasavi Co-operative Housing Society Limited and Others[12] .
51. In Union of India12 , the Apex Court held as follows:
plaintiff to make out and establish her case for granting such declaration and the weakness if any in the case set up by the defendants would not be a ground to grant relief of declaration. The legal position is therefore clear that the plaintiff in a suit for declaration of title and possession and possession would succeed only on the strength of its own case and that could be done by adducing sufficient evidence to discharge onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against them, in the absence of establishment of plaintiff's own title, the plaintiff must be non-suited.”
52. In Baba Kartar Singh Bedi Vs. Dayal Das and Others[13] , the
Privy Council held as follows:
“When a suit for possession against the person in possession by a person who is out of possession as on the date of filing the suit after so many years prior to filing of the suit, he can succeed only on the strength of his own title but not on the weakness of his opponents.”
53. In P.H. Dayanand Vs. S. Venugopal Naidu and others[14] , the Apex Court, in Para No.11, held as follows:
“When the suit is filed for declaration and possession on the basis of title, the defendant set up his rival title, the burden is on the plaintiff to establish the title. In appreciating the case of title set up by the plaintiff, the trial court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by him, does not entitled the plaintiff to a decree."
54. In Union of India Vs. Ibrahim Uddin and anothe r[15] , the Apex Court held as follows:
“In a suit for declaration of title or ownership of land, burden of proof should have been exclusively on the plaintiff to prove his/her own case.”
55. This Court, in Gorige Ailamma Vs. Utkoori Somaiah and others[16] , relying on Sebastiao Luis Fernandes (dead) through
L.R., and others Vs. K.V.P. Shastri (dead) through L.Rs., and others[17] held as follows:
“Where a party is seeking declaration of title and recovery of possession, burden lies on such party to adduce satisfactory evidence to prove his title and possession.”
56. In view of the law declared by the Apex Court and this Court in the decisions referred supra, the plaintiffs have to stand on their own legs to claim the discretionary relief under Section 34 of the Act, 1963 and unless they prove their title, they are disentitled to claim such relief under Section 34 of the Act, 1963. In the present case, the plaintiffs miserably failed to establish their lawful title; consequently, they are disentitled to claim the discretionary relief under Section 34 of the Act, 1963. Accordingly, the point is answered in favour of the defendant and against the plaintiffs.
57. POINT No.4: The plaintiffs questioned the order passed by the Government of Andhra Pradesh dated 07.01.1975 in Reference No.1673-JI/69-31 on the ground that the Government rejected patta though a recommendation was made by the Assistant Settlement Officer to the Board of Revenue without any reasons. To claim patta under the proviso to Section 11 of the Act, 1948, the plaintiffs must prove that they are in possession and enjoyment of the property and that their predecessors were in possession and enjoyment of the property on or after the notified date i.e., 01.07.1945 and that the land in dispute is a ryoti land, which vested on the Government consequent upon taken over of the estate of Vedayapalem village. Here, taking over of the Vedayapalem estate is not in dispute but the nature of the land is in dispute. According to the plaintiffs, it is a ryoti land whereas the Government claimed that it is a communal land meant for grazing cattle given by the land holder under the original of Ex.B-1. Execution of Ex.B-1 is also not in dispute, however, the nature of the land is in dispute but, in view of my finding on point No.1, the land in question is
only a communal land meant for grazing cattle of Vedayapalem ryots and it was not converted into ryoti land by the Collector, exercising power under Section 20-A of the Act, 1908. In the absence of proof of conversion of communal land into ryoti land, the land would not vest on the Government and the plaintiffs are disentitled to claim patta under the proviso to Section 11 of the Act.
58. Even assuming for a moment that the land is a ryoti land, it is for the plaintiffs to establish their possession as on the notified date. As per my finding on Point No.2, the plaintiffs miserably failed to establish the possession of their predecessors, on and after the notified date, they are disentitled to claim patta under the proviso to Section 11 of the Act, 1948. The Government after considering the material available on record, more particularly failure of the plaintiffs to prove their possession or the possession of their predecessors on and after the notified date, declined to grant patta under the proviso to Section 11 of the Act, 1948. Therefore, the order passed by the Government of Andhra Pradesh dated 07.01.1975 in reference No.1673-JI/69-31 is totally in accordance with law as the plaintiffs failed to establish the requirements to grant patta under the proviso to Section 11 of the Act, 1948. Therefore, the reasoned order passed by the Government needs no interference. Hence, I hold that the order passed by the Government of Andhra Pradesh dated 07.01.1975 in Reference No.1673-JI/69-31 is valid and not required to be interfered with. Accordingly, the point is answered in favour of the defendant and against the plaintiffs.
59. POINT No.5: The plaintiffs also claimed a permanent injunction restraining the defendant and their men from interfering with their peaceful possession and enjoyment of the schedule property alleging that they are in possession and enjoyment of the property as on the date of filing suit and that the defendant made attempt to infringe or invade their legal right to continue in possession of the property. No doubt, a person in lawful possession is entitled to claim a perpetual
injunction under Section 38 of the Act, 1963, if there is any attempt to infringe or invade his legal right. In the present case, the possession of the plaintiffs, if any, is not lawful since no patta was granted by the Government under the proviso to Section 11 of the Act, 1948 and that too the ryots of Vedayapalem village are only entitled to graze cattle in the property, in view of the original of Ex.B-1 agreement and, contrary to this, if the property is sold by the ryots to Veera Reddy PW.3, the sale in favour of Veera Reddy is not valid since the executants are not the owners. Since the ryots are not competent to convey title in the schedule property to Veera Reddy, Veera Reddy is also incompetent to convey title to the plaintiffs by executing Exs.A-1 to A-3. Therefore, possession of the plaintiffs is unlawful and thereby the plaintiffs, who are in unlawful possession, are not entitled to claim the discretionary relief of perpetual injunction under Section 38 of the Act, 1963 though there is an attempt to interfere with their possession by the defendant.
60. As per my finding on above points, the possession of the plaintiffs is not lawful and they are not entitled to claim patta under the proviso to Section 11 of the Act and as such not entitled to claim the relief of declaration of their title. Consequently, the plaintiffs are not entitled to claim the discretionary relief of perpetual injunction under Section 38 of the Act, 1963. Hence, I find no ground to grant perpetual injunction in favour of the plaintiffs, restraining the defendant and their men from interfering with the peaceful possession and enjoyment of the schedule property. Accordingly, the point is answered in favour of the defendant and against the plaintiffs.
In the result, the Appeal Suit is dismissed confirming the decree and judgment dated 28.07.1995 passed in Original Suit No.30 of 1977 by the learned Additional District Judge, Nellore.
In consequence, miscellaneous petitions, if any, pending in this Appeal, shall stand dismissed. No order as to costs.
________________________________ M. SATYANARAYANA MURTHY, J Date: 11-12-2015. Dsh
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
98
18012016
APPEAL SUIT No. 1665 OF 1995
Date. 11-12-2015
DSH
3 issues framed by the court
Was the disputed land communal pasture land rather than ryoti land, and did Section 20-A require an order converting ryoti land into communal land?
Were the purchasers entitled to ryotwari patta under the proviso to Section 11 and to challenge the Government's refusal?
Had the purchasers established lawful title and possession sufficient for declaration and permanent injunction?
Colour shows how this judgement treated each authority
State of Tamil Nadu Vs. Ramalinga Samigal MadamRelied on¶63
AIR 1986 SC 794 · Who else cites this
Dhulabhai Vs. State of M.P. and anotherReferred¶36
AIR 1969 SC 78(1) · Who else cites this
Nallipattu Ramakrishna Reddy and another Vs. Kasala Balaiah and anotherDistinguished¶63
1987 (1) ALT 120
Tiruvadipuram Lakshmi Kumara Akkulnayanam Varu Vs. Palleti Chinna Narayanappa Naidu and othersApplied¶56
AIR 1928 Madras 799 · Who else cites this
Mahendra L. Jain and others Vs. Indore Development Authority and othersRelied on¶86
2005 (1) SCC 639 · Who else cites this
Muncipal Corporation, Faridabad Vs. Siri NiwasRelied on¶88
JT 2004 (7) SC · Who else cites this
Srinadhu Mallappa Vs. Board of RevenueRelied on¶93
1966 (1) AnWR 157
K.V. Krishnaiah Vs. M.S. ReddyRelied on¶96
1990 (1) ALT 163
Jaya Syamala Rao Vs. Sri Radhakantha SwamiReferred¶96
1984 (1) ALT 286
Union of India and others Vs. Vasavi Co-operative Housing Society Limited and OthersRelied on¶105
2014 (2) SCC 269 · Who else cites this
Baba Kartar Singh Bedi Vs. Dayal Das and OthersRelied on¶108
AIR 1939 PC 201 · Who else cites this
P.H. Dayanand Vs. S. Venugopal Naidu and othersRelied on¶111
2009 (1) Cvl.C.C. 0493 (SC)
Union of India Vs. Ibrahim Uddin and anotherRelied on¶113
2012 (8) SCC 148 · Who else cites this
Gorige Ailamma Vs. Utkoori Somaiah and othersRelied on¶115
2015 (2) ALT 467
Sebastiao Luis Fernandes (dead) through L.R., and others Vs. K.V.P. Shastri (dead) through L.Rs., and othersReferred¶116
2014 (1) ALT 51 (SC)
9 provisions across 5 enactments
Government of Andhra Pradesh
M. SATYANARAYANA MURTHY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
