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2003 DIGILAW 333 (AP)

Syed Mahboob Ali v. Kamareddy Municiaplity

2003-03-03

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD Sri B. Siva Reddy and Sri V. Viswanadham, the learned counsel representing the respective parties. This Court while admitting the Second Appeal on 12-2-1997 had framed the following substantial questions of law:1. Whether the Courts below were right in rejecting the proof of title of the plaintiff to the suit land claiming through one B. Narasaiah inspite of the Village records showing name of the same owner (however as Chinna Narasaiah) and in the absence of any material to show that the defendants-Gram Panchayat were the owners of the suit land. 2. Whether the Courts below were justified in rejecting the positive evidence of the appellant-plaintiff in regard to the title and possession of the suit land as on the date of the suit including the identity of the property based on the sale deed, Ex. A-1 supported by the entries in the revenue records. 3. Whether the Judgment and decree of the Courts below dismissing the suit deserved to be set aside. If so, to what extent? ( 2 ) THE unsuccessful plaintiff in both the Courts below is the appellant. The appellant/plaintiff had instituted a suit O. S. No. 33/85 on the file of District Munsif, Yellareddy for declaration of title relating to the suit land admeasuring 350 sq. yards at Kamareddy and for a permanent injunction restraining the respondents/defendants from interfering with his possession and enjoyment of the said property. The trial Court dismissed the suit holding that the plaintiff as well as defendants 1 and 2 in the suit also had not established their title relating to the plaint schedule property, but evidently in view of the fact that the burden is on the plaintiff, the suit was dismissed and as against the said Judgment and decree made in O. S. No. 33/85 on the file of District Munsif, Yella Reddy, the unsuccessful plaintiff had preferred an appeal A. S. No. 39/91 on the file of District Judge, Nizamabad and the appellate Court also had dismissed the Appeal and also the Cross-objections filed by the 2nd defendant, and aggrieved by the same the present Second Appeal is filed. The original plaintiff died pending the Second Appeal and appellants 2 and 3 are brought on record in C. M. P. No. 11527/2001 and at present the legal representatives are prosecuting the present Second Appeal. The original plaintiff died pending the Second Appeal and appellants 2 and 3 are brought on record in C. M. P. No. 11527/2001 and at present the legal representatives are prosecuting the present Second Appeal. It may not be out of context if it is mentioned that when the suit was instituted it was as against the Gram Panchayat, Kamareddy and now it is Municipality, Kamareddy represented by Commissioner, Kamareddy Municipality. Sri Siva Reddy, the learned counsel representing the appellants had taken me through the findings recorded by both the Courts and also had taken me through the evidence of PW-1 to PW-6 and DW-1 to DW-5 and Exs. A-1 to A-27, Ex. X-1 and also Exs. B-1 to B-18 and had contended that though the findings are concurrent findings, here is a case where the Court of first instance had disbelieved the version of the plaintiff and also the defendants as well and had negatived the relief mainly on the ground that the plaintiff was unable to establish his title to the plaint schedule property. The learned counsel also had pointed out to the Points which had been framed by the appellate Court for consideration and also had taken me through the findings recorded at paragraph 9 and had commented that the appellate Court having recorded a finding that the link between the schedule property and the boundaries is well established and regarding the identity of particular property no doubt it is established by boundaries, but in view of the disputed nature of the property held that there must be absolute evidence connecting the plaint schedule and the appellate Court in fitness of things, in view of the just missing connecting link, could have as well given an opportunity either remanding the matter or examining the concerned Revenue officials and the other witnesses either by calling upon the plaintiff to produce such evidence or by examining them as Court witnesses and instead of giving such opportunity, dismissing the suit and also holding the 1st defendant - Municipality, Kamareddy, as owner and in possession of the plaint schedule property, definitely is totally unsustainable especially in the absence of any cogent or convincing material placed before the Court on behalf of the 1st defendant/1st respondent. The learned counsel also had drawn my attention to Ex. A-1 sale deed, the presumption available in relation thereof and also Exs. The learned counsel also had drawn my attention to Ex. A-1 sale deed, the presumption available in relation thereof and also Exs. A-2, A-3, A-4 - pahani patrikas showing the vendor s name as pattedar. The learned counsel also had pointed out to Ex. A-7, Ex. A-8 and Ex. A-9 and also Ex. A-5. The oral and documentary evidence available on record had been analysed and ultimately the learned counsel concluded submitting that no doubt this is a Second Appeal arising out of the concurrent findings recorded by both the courts, but in view of the very findings recorded by the appellate Court, the appellants are bound to succeed or in the alternative it is a fit matter where an opportunity be given to the appellants to prove the alleged missing link. ( 3 ) PER contra Sri Viswanadham, the learned counsel representing the 1st respondent/1st defendant Municipality in all fairness had taken me through the findings recorded by the Court of first instance and also by the findings recorded by the appellate Court and had submitted that it is no doubt true that the Court of first instance had recorded findings that not only the plaintiff, the 1st defendant and also the 2nd defendant had failed to establish their title or ownership relating to the plaint schedule property, but in view of the fact that the plaintiff had failed to establish the title since the plaintiff had approached the Court, the plaintiff was non-suited. The learned counsel also had taken me through the Judgments of both the Courts below and the findings recorded by both the Courts and had also taken me through the evidence of DW-1 to DW-5 and also Exs. B-1 to Ex. B-18. The learned counsel also had pointed out that in view of the discrepancies Ex. A-1 cannot be relied upon and the presumption also is not available in the case of such a document which was not proved in accordance with law. The learned counsel also had placed reliance on BACHALA ANJAIAH AND ANOTHER Vs. ABDUL QAYYUM, S. ERAKKA Vs. K. ABDUL RAHMAN, KONDIBA DAGADU KADAM Vs. SAVITRIBAI SOPAN GUJAR, UNION OF INDIA AND OTHERS Vs. B. DEV. The factual matrix as reflected from the respective pleadings of the parties, in brief, may be specified as hereunder. The learned counsel also had placed reliance on BACHALA ANJAIAH AND ANOTHER Vs. ABDUL QAYYUM, S. ERAKKA Vs. K. ABDUL RAHMAN, KONDIBA DAGADU KADAM Vs. SAVITRIBAI SOPAN GUJAR, UNION OF INDIA AND OTHERS Vs. B. DEV. The factual matrix as reflected from the respective pleadings of the parties, in brief, may be specified as hereunder. ( 4 ) IT is pleaded that the plaintiff is the owner and possessor of the suit land admeasuring 350 sq. yards situated at Kamareddy and he gave the boundaries. It is also stated that the suit land was originally agricultural land bearing Sy. No. 928 admeasuring 0-26 guntas (wet irrigation) under a kunta known as "pitiri Kunta". It is also stated that the said survey number is having Sy. No. 927 on the East, Sy. No. 929 on the South and Sy. No. 939 on the West. It is stated that this land originally belonged to one Bhairam Chinna Narsinga of Kamareddy. It is further alleged that the father of the plaintiff by name Syed Washed Ali purchased the entire survey number on 4-2-1931 for a total consideration of Rs. 46/- and from then onwards the plaintiff and his brothers were in continuous possession and enjoyment of the same. It was also stated that number of houses were built and the members of the family lived independently and some of the houses were sold to different persons and the persons who purchased the old houses constructed new houses. Now this entire area is with full of buildings except the suit land. It was also stated that the plaintiff is having temporary shed in the suit land. He gave it on rent to one Pippiri Narayana who was having a Rahat manufacturing workshop in it. It was further stated that the 1st defendant - Gram Panchayat, Kamareddy had notified for public auction the suit land as one of the places to be sold. Then the plaintiff questioned the 1st defendant about the sale auction and as the 1st defendant refused to consider the request of the plaintiff, he filed W. P. No. 1777/81 and the said Writ Petition was disposed of by the orders dated 4-8-1981 stating that the plaintiff can approach the Civil Court. Hence the suit. ( 5 ) THE 1st defendant had filed a written statement pleading that the suit site is not part of Sy. Hence the suit. ( 5 ) THE 1st defendant had filed a written statement pleading that the suit site is not part of Sy. No. 928 and Bhairam Chinna Narasaiah has nothing to do with the suit site and it is not irrigated under "pitiri kunta". It was further stated that the alleged sale deed in favour of the plaintiff is a bogus document and at no point of time the plaintiff or his brothers had any title or possession to this property. The 1st defendant is in possession of the property. It was further pleaded that the suit land was a ditch and the same was filled up by the 1st defendant and the 1st defendant leased out small extents of the suit land to various persons viz. , Mohd. Sirajuddin in the year 1975, N. S. Venkateswar Rao in the year 1975, T. Narayana in the year 1977, A. Seshadri in 1978, Mohammed in 1978, D. Laxman in 1978, K. Somallal in 1979 for the installation of Khokas. The said Pippiri Narayana applied to the 1st defendant for lease which shows that the plaintiff has nothing to do but it is only the 1st defendant. The said petition was rejected as the suit property belongs to Gram Panchayat. The 2nd defendant who had impleaded himself as a party filed a written statement stating that the suit lands belong to Bhairam Chinna Narsaiah, but neither the plaintiff nor the 1st defendant were in possession of the suit land at the time of filing of the suit and the land was originally a pit and he is in possession and enjoyment of the same. He was rearing ducks. According to him, he purchased the land of 0-04 guntas from his original pattedar on 10-5-1955 and he is in actual possession and enjoyment of the same and he lived in the same and when the 1st defendant tried to encroach the said land, he approached the Government and got stay orders dated 23-3-1981. Defendants 3 to 8 also got impleaded as necessary parties to the suit. They also filed a written statement denying the right, title and possession of the plaintiff over the plaint schedule property. Defendants 3 to 8 also got impleaded as necessary parties to the suit. They also filed a written statement denying the right, title and possession of the plaintiff over the plaint schedule property. It was pleaded that patta of the suit land was originally in the name of Bhairam Narsaiah and Narsaiah was the elder brother of the father of the 3rd defendant and after the death of Bhairam Narsaiah, Bhairam Chinna Narsaiah was in possession of the property and after the death of Bhairam Chinna Narsaiah, defendants 3 to 8 had inherited the suit land as legal representatives and therefore they have right and title over the said property. Before the trial Court, the following Issues were settled: 1. Whether the plaintiff is the owner and possessor of the suit plot? 2. Whether the plaintiff is entitled for perpetual injunction? 3. Whether the suit is correctly valued and the Court fee paid thereon is sufficient? 4. Whether the defendant has perfected his title by way of adverse possession ? 5. To what relief ? ( 6 ) ON behalf of the plaintiff, PW-1 to PW-6 were examined and Exs. A-1 to A-27 and Ex. X-1 were marked. On behalf of the defendants, DW-1 to DW-5 were examined and Exs. B-1 to B-18 were marked in the trial Court. As already referred to supra, in both the Courts the plaintiff was unsuccessful and hence he had preferred the present Second Appeal and since he died pending the Second Appeal, his legal representatives are brought on record and they are prosecuting the present Second Appeal. The plaintiff who was examined as PW-1 had deposed about all the details. PW-2 is another witness who deposed about his purchase of land from the wife of one Bhaqur Ali in 1950 and his subsequent selling in which he gave boundaries to show that there is land of the plaintiff. PW-3 is another witness who had deposed that he sold the house showing the boundary of the plaintiff s land. But however, this witness was not available for cross-examination and hence his evidence may not be of any value. PW-4 had deposed that he had taken the suit land along with the tin shed on lease from the plaintiff. PW-5 is ex-patwari of Kamareddy who had deposed about the ownership of Bhairam Narsaiah. But however, this witness was not available for cross-examination and hence his evidence may not be of any value. PW-4 had deposed that he had taken the suit land along with the tin shed on lease from the plaintiff. PW-5 is ex-patwari of Kamareddy who had deposed about the ownership of Bhairam Narsaiah. PW-6 also deposed that he knows Bhairam Chinna Narsaiah and the suit land belonged to him. DW-1 is the Town Planning Officer of the Municipality and DW-2 is the Sanitary Inspector. ( 7 ) NO doubt, the Sanitary Inspector deposed that pit was filled up by the Municipality. DW-3 is the Executive Officer who deposed that the suit land belongs to Gram Panchayat. DW-4 is the 2nd defendant in the suit and no doubt he had deposed about his case stating that he had purchased the property under Ex. B-14. DW-5 had supported the version of the 2nd defendant. As already referred to supra, the Cross-Objections of the 2nd defendant also had been dismissed by the appellate Court and the same became final and hence now the controversy is between the legal representatives of the deceased plaintiff - appellants and the Gram Panchayat, Kamareddy - at present Municipality, Kamareddy. Both the Courts had recorded findings that Ex. A-1 is an unregistered document and no survey number had been mentioned. The appellate Court while recording findings had doubted the title of the plaintiff - appellants mainly on the ground that the connecting link relating to Sy. No. 928 is missing and the revenue officials are the proper persons who are competent to depose about this aspect. It is pertinent to extract the findings of the appellate Court in this regard, which are as hereunder:". . . . . THAT is the reason in the beginning of my discussion it was stated that the proper, necessary and correct persons to identify the suit schedule land as formed part of Sy. No. 928 are the Revenue official/department and that was not established by the plaintiff by examining the said witness and producing the record from the Revenue Department to show that the suit schedule property is situated in Sy. No. 928 first and then that property was sold by Bhairam Narsaiah under Sy. No. 928. Therefore, the evidence of PW-6 mostly goes to show that the plaintiff is not able to establish the connections between Sy. No. 928 first and then that property was sold by Bhairam Narsaiah under Sy. No. 928. Therefore, the evidence of PW-6 mostly goes to show that the plaintiff is not able to establish the connections between Sy. No. 928 and scheduled land, that is the exactly reason stated discussing the evidence of PW-6 earlier than the other witness. Admitting the evidence of PW-1, his evidence is mostly unsatisfactory. He filed Ex. A-5, the suit schedule map. It is self-serving testimony and therefore is has no evidentiary value. Coming to the sale deeds Exs. A-7, A-8 and the mortgage Ex. A-9, there is no whisper in these documents about the Sy. No. 928. Simply there is a reference to the land of the plaintiff s father and other boundaries cannot be taken as a proof that they were referred to the present schedule property. The other documents filed by the plaintiff Exs. A-20, A-21, A-22, A-23, A-24, A-25 and A-26 would not refer to the suit schedule property. The link between the schedule property and the boundaries is well established. Regarding the identity of the particular property, no doubt it is established by the boundaries but in view of the disputed nature of the property here there must be an absolute evidence connecting the plaint schedule. . . . ". ( 8 ) THE appellate Court having observed so, could have remanded the matter to the Court of first instance to afford opportunity, but instead proceeded further and discussed about the oral and documentary evidence and ultimately came to the conclusion that the 1st defendant Municipality is the owner and in possession of the plaint schedule property. The findings recorded by the Court of first instance are clear and categorical to the effect that the 1st defendant was unable to establish the title over the plaint schedule property. The findings recorded by the Court of first instance are clear and categorical to the effect that the 1st defendant was unable to establish the title over the plaint schedule property. In the light of those findings, especially in the light of rejecting the Cross-Objections of the 2nd defendant and also in view of the documentary evidence clearly showing that the alleged vendor of the plaintiff was the original owner, atleast shown to be the original owner, as pattedar in the revenue records, the appellate Court definitely had erred in recording a finding that the 1st respondent/1st defendant is the owner of the suit property and definitely it is just and proper to afford an opportunity to the appellants to establish the connecting link which had been observed by the appellate Court in the peculiar facts and circumstances of the case. In the light of the views expressed by me, it is not essential to discuss the other oral and documentary evidence which had been elaborately argued by both the counsel. Hence, for the purpose of establishing the connecting link relating to the survey number and also Ex. A-1 in relation to the revenue records, the appellants are at liberty to adduce necessary evidence by examining the concerned Revenue officials and also summoning the official Revenue records also if they feel that those records are essential for establishing the same and also produce the other evidence and for this purpose in the facts and circumstances of the case the Judgments and decrees of the Courts below are hereby set aside and the matter is remanded to the appellate Court for the purpose of affording opportunity to the appellants and also the 1st respondent/1st defendant to adduce further evidence if any to substantiate their respective stands relating to the survey number and the identity of the plaint schedule property. To the extent mentioned above, the Appeal is allowed. ( 9 ) BUT however, in view of the order of remand made, each party to bear their own costs.