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2002 DIGILAW 637 (AP)

Chenna Reddy v. P. Ram Reddy

2002-06-04

G.YETHIRAJULU

body2002
G. YETHIRAJULU, J. ( 1 ) THIS appeal is directed against the judgment and decree in A. S. No. 14 of 1989 on the file of the Subordinate Court, vikarabad preferred against the judgment and decree in O. S. No. 121 of 1981 on the file of the District Munsif, Chevalla,. ( 2 ) THE appellants are the defendants and respondents are the plaintiffs in the suit. The plaintiffs filed the suit for recovery of possession of the suit lands. According to the plaintiffs they are the owners of the suit schedule property. The defendants are their cousin brothers and the lands were given to them on battai for a period of two years commencing from June 1978. After the end of the agricultural season, the plaintiffs asked the defendants to hand over possession of the suit lands, but the defendants failed to do so. Hence the suit for recovery of the suit lands. ( 3 ) THE defendants while resisting the suit denied the lease of the suit lands on battai basis and pleaded exchange of the suit schedule lands in their favour on their giving two items of property to the plaintiffs in exchange. They also pleaded that in pursuance of an arbitration agreement dated 25-7-1979, the arbitrators gave a decision on 9-9-1979 regarding the disputes between the parties, including the dispute regarding the suit lands. Since both the parties accepted the decision of the arbitrators, it is binding on the plaintiffs and they are estopped from acting contrary to it. Therefore the plaintiffs cannot maintain the suit for recovery of possession and the same is liable to be dismissed with costs. ( 4 ) ON the basis of the pleadings, the trial court framed appropriate issues. ( 5 ) THE plaintiffs in order to prove their case examined P. Ws. l and 2 and marked exs. A-1 to A-8. The defendants examined d. Ws. 1 to 3 and marked Exs. X-1 to X-10 were marked through D. W. 2. ( 6 ) AFTER considering the oral and documentary evidence adduced by both parties the trial court dismissed the suit holding that the plaintiffs are not entitled for recovery of possession of the suit schedule lands through its judgment dated 4-4-1989. 1 to 3 and marked Exs. X-1 to X-10 were marked through D. W. 2. ( 6 ) AFTER considering the oral and documentary evidence adduced by both parties the trial court dismissed the suit holding that the plaintiffs are not entitled for recovery of possession of the suit schedule lands through its judgment dated 4-4-1989. ( 7 ) THE plaintiffs being aggrieved by the judgment and decree of the trial Court preferred A. S. No. 14 of 1989 challenging its validity and legality. ( 8 ) THE 1st appellate court after considering the material available on record and after going through the judgment of the trial court reversed the same by allowing the appeal holding that the plaintiffs are entitled for recovery of possession of the suit schedule properties as prayed for through its judgment dated 30-12-1993. ( 9 ) THE defendants being aggrieved by the judgment and decree of the 1st appellate court preferred this appeal challenging its validity and legality. ( 10 ) AFTER going through the Memorandum of Appeal, the only substantial question of law that has to be considered by this court is: whether the judgment of the 1st appellate court is perverse, not based on the evidence available on record and whether the same is liable to be interfered by this Court? ( 11 ) POINT:the plaintiffs are claiming that they are the owners of three items of land viz. , 12 guntas in Sy. No. 20/aa, 24 guntas out of ac. 1. 09 guntas in Sy. No. 20/aa, 30 guntas out of Ac. 1. 19 guntas in Sy. No. 22/e. The plaintiffs alleged to have purchased 29 guntas out of Ac. 1. 19 guntas in sy. No. 22/aa and 22 guntas out of ac. 1. 22 guntas in Sy. No. 22/e from sri K. Ramachandra Reddy and sri Ramakrishna Reddy. They are therefore claiming that they are the owners of an extent of Ac. 3-00 of land in total. The defendants conceded that the plaintiffs got the suit lands in partition towards the share of the 1st plaintiff. The defendants pleaded that there was exchange of the suit schedule lands with two items belonging to them viz. They are therefore claiming that they are the owners of an extent of Ac. 3-00 of land in total. The defendants conceded that the plaintiffs got the suit lands in partition towards the share of the 1st plaintiff. The defendants pleaded that there was exchange of the suit schedule lands with two items belonging to them viz. , 82-AA and 39-E. Therefore the burden is on them to prove that as to when the exchange of the lands taken place, since how long they are in possession and enjoyment of the suit lands and in what capacity, and whether they are in continuous enjoyment of the suit property for more than the statutory period of twelve years. According to the defendants, the exchange of the lands was oral by mutual consent of the parties. The suit lands, according to them, came to their possession as a result of such exchange in lieu of some other lands given to the plaintiffs. As per the evidence of D. W. I, the partition took place between their father, the plaintiff s father and another brother about 30 years prior to the evidence. He further deposed that they have taken the suit lands in exchange from the 1st plaintiff about 12 years prior to his evidence. ( 12 ) THE 1st appellate court observed that though the defendants set up the defence of exchange, they did not mention the date, month and year. D. W. I in his cross- examination stated that about two years prior to the arbitration the exchange had taken place. Since the arbitration was held in 1979, the exchange might have taken place only in 1977. ( 13 ) THE defendants in order to prove their possession did not produce any pahani patrikas or land revenue receipts. They did not file any documents to prove that a particular land was in possession of a particular party, as a result of exchange. The 1st appellate court further observed that the defendants could not prove the said exchange. No documents have been executed at the time of exchange. No one was examined to support the defendants version about the exchange of lands; The 1st appellate court further observed that unless the exchange is evidenced by a registered document, it couldn t be accepted. The 1st appellate court further observed that the defendants could not prove the said exchange. No documents have been executed at the time of exchange. No one was examined to support the defendants version about the exchange of lands; The 1st appellate court further observed that unless the exchange is evidenced by a registered document, it couldn t be accepted. The 1st appellate court further observed that the defendants failed to mention in the written statement as to how much land was given to the plaintiffs in exchange. The exchange of property of Rs. 100/- or more value must be through a registered document under sections 118 and 54 of the Transfer of property Act. The 1st appellate court held that since the defendants did not get the exchange through a registered document and as they failed to give the particulars of the dates, extents etc. , the plea of exchange made by the defendants couldn t be accepted. ( 14 ) REGARDING a decision said to be given by the Arbitrators on 9-9-1979 the 1st appellate court observed that the award is not on stamped paper and it is mot a registered one. It is not filed into court to make it a Rule of court and no decree was obtained. No document was executed as per the terms of the alleged award. The 1st appellate court further observed that even if it is assumed that the award is a genuine one, the defendants failed to prove that it was acted upon. ( 15 ) THE alleged award was given in 1979. As per the said award the mediators alleged to have directed the defendants to give 10 guntas of land to the plaintiffs. No evidence was placed by the defendants to hold that while enforcing the award they delivered 10 guntas of lnd to the plaintiff. The 1st appellate court further held that the defendants also failed to prove the arbitration award. ( 16 ) ACCORDING to the admitted version of the defendants, the partition between the plaintiff s fattier and the defendant s father took place about 30 years prior to the suit. Therefore Ihe fdaintiffs were in enjoyment of the suit adtedple lands till about 3 or 4 years prior to tiniate of filing the suit. ( 16 ) ACCORDING to the admitted version of the defendants, the partition between the plaintiff s fattier and the defendant s father took place about 30 years prior to the suit. Therefore Ihe fdaintiffs were in enjoyment of the suit adtedple lands till about 3 or 4 years prior to tiniate of filing the suit. It is the admittmon of D. W. I that the ejhange tpopace about 2 years prior to the date ol ffoitration and the alleged arbitration took place in 1979. Therefore there is no scope for the defendants to take a plea that they were in possession and enjoyment of the suit lands uninterruptedly for more than 12 years, which disentitles the plaintiffs seeking a relief of recovery of possession. In the. absence of proof of exchange and enforcement of the alleged arbitration award and in the absence of continuous possession of the defendants for more than 12 years, the defendants are not entitled to resist the suit on the alleged local arrangement. So long as there is no dispute from the party who agreed for exchange of lands, the respective parties who took the lands in exchange may continue in possession of those properties, but when once the legality of such possession is questioned, unless and until the defendants establish that the title over the suit lands was transferred to them, either under transfer of Property Act or on account of continuous possession over such lands for more than 12 years they are not entitled to get valid title over the suit properties. On account of absence of such proof, the 1st ppellate court rightly held that the plaintiffs are entitled for recovery of I possession of the suit lands. ( 17 ) THE learned counsel for the appellants cited the following decisions to impress upon this court that in view of the plea of lease on battai basis pleaded by the plaintiffs the civil court has no jurisdiction to entertain the suit. (i) In Kathala Yellaiah and others v. Kathala Chandraiah1 a single Bench of this Court held that Section 99 of a. P. (Telangana Area) Tenancy on agricultural Lands Act, 1950 completely ousted the jurisdiction of the Civil Court to settle, decide or deal with any question which is required to be settled, decided or dealt with by the Tahsildar, tribunal, Collector or Board of revenue. The Civil Court cannot undertake to resolve, settle, or decide any dispute which falls within the exclusive jurisdiction of the Tahsildar, Tribunal or Collector. (ii) In Islamia Arabic College, Kurnool p. , balram Singh and others2, a Division bench of this court held that the question whether a person is a protected tenant or not is a matter to be decided exclusively by the tribunals constituted under the a. P. (Telangana Area) Tenancy and agricultural Lands Act and the jurisdiction of the Civil Court to go into the said question is expressly barred under Section 99 of the Act. ( 18 ) THE learned Counsel for the appellants further submitted that the 1st appellate court allowed the appeal by considering the weaknesses in the evidence of the defendants instead of considering the matter on the basis of the strength of the evidence adduced by the plaintiff and in support of the above plea he relied on the following ruling of this Court: in K. Venkata Subbareddi v. Bayragi ramayya a Single Judge of this Court held that the plaintiff must succeed by establishing his own title and he cannot succeed on the weakness of the defendant s case. When the plea of lack of jurisdiction was raised by the appellants counsel in the second appeal, the learned counsel for the respondents submitted that since the appellants did not take the plea of lack of jurisdiction to a Civil Court, either in the trial court or in the 1st appellate court, the appellants cannot raise the said plea for the first time in the second appellate court, the learned counsel for the appellants cited the following ruling of the Gujarat High Court in support of his contention: in Bharvad Chhota Bhaga v. Bharvad Jaga dahya a Single Judge of the Gujarat High court while considering the jurisdiction of a civil Court under Sections 9,47 and 100 of c. P. C. , held that the plea of lack of jurisdiction to a civil court can be raised at any time even in second appeal, so also on the execution side. The learned Counsel for the appellants also relied on the above decision that the jurisdiction of the court is to be determined on the basis of the allegations made in the plaint. The learned Counsel for the appellants also relied on the above decision that the jurisdiction of the court is to be determined on the basis of the allegations made in the plaint. The pith and substance of the plaint allegations have to be kept in mind, so also the pith and substance of the relief sought and it is the choice of the plaintiff to choose his forum. Though there is no dispute regarding the principles laid down in the above rulings, it has to be considered whether the principles laid down in the above rulings are applicable to the facts of the present case. ( 19 ) THE defendants were harping upon two irreconcilable pleas, firstly that they are not the tenants and secondly that the civil court has no jurisdiction to try the suit and it has to be filed before a Tribunal constituted under the Tenancy Act. ( 20 ) THE learned Counsel for the appellants have drawn the attention of the court to various provisions of the Tenancy act. On careful consideration of the ruling and the provisions of the Act, I am of the view that the special enactment is meant to settle the disputes between the landlords and tenants. But, since the defendants have taken a definite plea that there was no landlord and tenant relationship between themselves and the plaintiffs, and when they specifically denied the plaintiffs plea of lease on battai basis and when they pleaded that they became the owners of the suit lands by exchange, the question of filing the matter before the Special Tribunal does not arise. The defendants did not admit the said plea. They pleaded that they became the owners of the suit lands in exchange. So long as there is landlord and tenant relationship between the plaintiffs and the defendants, the Special Tribunal gets the power to adjudicate the matter. But, when once there is no such relationship, the civil court is the best forum for the parties to agitate their rights. ( 21 ) THE object of conferring jurisdiction on regular courts or Special Tribunals is to reduce the multiplicity of litigation and to enable the respective parties to have redressal from the respective forums without any loss of time. ( 21 ) THE object of conferring jurisdiction on regular courts or Special Tribunals is to reduce the multiplicity of litigation and to enable the respective parties to have redressal from the respective forums without any loss of time. The defendants, while pleading that they are not the tenants and claiming title over the suit property on the basis of the alleged exchange, are not entitled to plead that the civil court has no jurisdiction to entertain the suit. With due respect I should say that the principles laid down in the above decisions are not applicable to the facts of the present case. I am therefore of the considered view that the 1st appellate court was right in coming to a conclusion on the basis of the evidence available on record that the plaintiffs are entitled for recovery of the suit schedule properties. Accordingly the 1st appellate court was right in allowing the appeal by setting aside the judgment and decree of the trial court. I do not find any perversity in the findings of the 1st appellate court and i have no hesitation to hold that there are no grounds to interfere with the judgment and decree of the. 1st appellate court and this appeal must fail. ( 22 ) IN the result, the appeal is dismissed with costs by confirming the judgment and decree of the 1st appellate court in a. S. No. 14 of 1989.