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2005 DIGILAW 281 (AP)

Boya Hari. Pedda Narsimlu, Boya Hari Chinnaiah v. N. Vasa Reddy

2005-03-23

P.S.NARAYANA

body2005
P. S. NARAYANA, J. ( 1 ) HEARD the learned counsel on record. ( 2 ) THE second appeal was admitted on 1-7-1987 framing the following substantial question of law:"whether the Courts below are justified in declaring the tide of the respondent-plaintiff solely on the basis of the entries in the revenue records" ( 3 ) SRI S. Venkateswara Reddy, learned Counsel representing the appellant had maintained that both the Courts below totally erred in declaring the title and also decreeing the suit of the plaintiffs. The learned Counsel had taken this Court through the relevant findings, which had been recorded in this regard. ( 4 ) THE Counsel representing the respondents on the other hand would maintain that in the light of the fact, that these are concurrent findings recorded by both the courts below the second appeal to be dismissed. ( 5 ) THE plaintiffs filed the suit in O. S. No. 40 of 1989 on the file of the District munsif, Athmakur, for declaration of the title and recovery of possession and mesne profits in relation to the land bearing Survey no. 150/1 of an extent of Ac. 3. 14 guntas dry Chittanoor Village of Narva Revenue mandal. ( 6 ) THE parties are referred to as plaintiffs and defendants. The appellant in the second appeal is the second defendant in the suit and first appeal in A. S. No. 3 of 1994 on the file of the Subordinate Judge at Gadwal. ( 7 ) IT is the case of the plaintiffs that the Plaintiffs Nos. 2 and 3 are brothers and the Plaintiff No. 1 is their cousin and the defendant Nos. 1, 2 and 3 are brothers, and there is no relationship between the plaintiffs and defendants. It is further pleaded that the Defendant No. 2 had purchased an extent of Ac. 3. 14 guntas of land from smt. Tarakamma, who was one of the shareholders along with the plaintiffs in the suit survey number under the registered sale deed about 8 years back. It has nothing to do with the suit land shown as blue colour sketch in the map. 3. 14 guntas of land from smt. Tarakamma, who was one of the shareholders along with the plaintiffs in the suit survey number under the registered sale deed about 8 years back. It has nothing to do with the suit land shown as blue colour sketch in the map. The plaintiffs are the real owners of the suit land on the basis of the registered sale deed, mutation was also effected in the revenue records and the defendants approached the plaintiffs to sell their share of land, and they refused to sell and hence the defendants forcibly occupied the plaint schedule lands in the last week of June, 1988 and raised paddy and groundnut crops by taking water from their well situate in the adjacent survey number. The plaintiffs also approached the village elders, but since the defendants were not interested in hearing the advise given by them, the suit was filed for declaration of title and for recovery of possession and mesne profits. ( 8 ) THE second defendant had taken a specific stand that he purchased an extent of Ac. 3. 14 guntas out of Ac. 7-30 guntas in Sy. No. 150/1 and the plaintiffs are not in possession of the suit land. The registered sale deed was obtained from smt. Tarakamma to avoid complication as per the elders advice and thus these defendants have been in continuous possession and enjoyment of the said land to the knowledge of one and all including ihe revenue authorities, and the revenue authorities without their knowledge, had made wrong entries and taking advantage of the same, the plaintiffs filed the present suit. ( 9 ) THE defendants also had taken a plea of adverse possession. The Court of first instance settled the following issues:"1. Whether the plaintiffs are entitled for recovery of possession and declaration? 2. Whether the suit is in time? 3. To what relief ?" ( 10 ) ON behalf of the plaintiffs, the third plaintiff was examined as P. W. 1, and one sri Balaiah was examined as P. W. 2 and exs. A. 1 to 21 were marked. The second defendant had examined himself as D. W. 1 and one Golla Chinna Narsappa was examined as D. W. 2, Narsi Reddy was examined as D. W. 3, Bheemanna was examined as D. W. 4, and Exs. B. 1 to B. 29 were marked. A. 1 to 21 were marked. The second defendant had examined himself as D. W. 1 and one Golla Chinna Narsappa was examined as D. W. 2, Narsi Reddy was examined as D. W. 3, Bheemanna was examined as D. W. 4, and Exs. B. 1 to B. 29 were marked. ( 11 ) THE Court of first instance, the district Munsiff, Athmakur in O. S. No. 40 of 1989, after hearing the rival contentions and on appreciation of the oral and documentary evidence of P. Ws. 1 and 2 and d. Ws. 1 to 4, Exs. A. 1 to A. 21 and also exs. B. 1 to B. 29, arrived at a conclusion that the plaintiff are entitled to the reliefs prayed for. But, however, no mesne profits had been granted. Aggrieved by the same, the matter was carried in appeal in a. S. No. 3 of 1994 on the file of the subordinate Judge, Gadwal and the learned judge framed the following points for consideration;"1. Whether the findings of the learned district Munsif are erroneous? 2. If so, the decree and judgment in O. S. No. 40 of 1989, dated 22-12-1993 are liable to be set aside". ( 12 ) THE appellate Court had recorded the reasons in detail in Para No. 7 and ultimately dismissed the appeal confining the findings recorded by the Court of first instance. It may be appropriate to have a look at the findings recorded by the appellate court at Para No. 7 and the said findings read as hereunder:"the chief contention of the appellants/ defendants is that the sale deed obtained for Tarakamma for an extent of Ac. 3-14 gts of total extent of Ac. 7-30 gts in sy. No. 150/1 by the Defendant No. 2 along with others were in continuous possession for entire extent in the suit survey number and this document Smt. Tarakamma, was obtained only to avoid complications on the advice of the elders. The present suit before the Trial Court was filed by the respondents, who were the plaintiffs, was for recovery of possession to the extents occupied by the defendants illegally over the suit land, which according to them belongs to the plaintiffs themselves in an extent of Ac. The present suit before the Trial Court was filed by the respondents, who were the plaintiffs, was for recovery of possession to the extents occupied by the defendants illegally over the suit land, which according to them belongs to the plaintiffs themselves in an extent of Ac. 3-36 gts in spite of the appellants contending that they purchased entire land from its real owner Raghava reddy, they have not filed the original sale deed or certified copy thereof before the trial Court and it was also observed by the Trial Court that nothing prevented the appellants herein from filing the said document. To prove the case the plaintiff has filed certified copies of Khasra pahany and subsequent pahanies and so also, the defendants to prove their case of possession. However, the khasra pahany and other pahanies especially Ex. A. 20 and Ex. B. 26 show the possession and enjoyment of the plaintiffs along with the defendants. In the year 1983-84 (Ex. B. 26), for the suit land ac. 3-36 gts and it is the specific contention of the plaintiffs that they were forcibly dispossessed by the defendants from the suit land and all the pahanies exhibited by both the plaintiffs and the defendants coupled with the evidence of P. W. 3 go to show that the plaintiffs are owners of the suit land and possession of the defendants prior to filing of the suit was only illegal. The only explanation offered by the appellants herein is that the entries in the pahanies were wrongly made by the revenue authorities but to substantiate this claim, they have neither filed any petitions before the competent revenue authority to correct these entries nor the plea set up by them regarding adverse possession could be substantiate, by their own documents which are the certified copies of pahanies issued by the revenue authorities. The learned district Munsif, considering all these aspects especially the oral evidence of D. W. 1 and specifically the evidence of D. W. 3 and the documents Exs. A. 2 to A. 21 and the documents Exs. B. 25 to B. 29, rightly concluded that the plaintiffs are entitled for declaration of title and possession over the suit land, and had rightly decreed the suit in favour of the plaintiff. A. 2 to A. 21 and the documents Exs. B. 25 to B. 29, rightly concluded that the plaintiffs are entitled for declaration of title and possession over the suit land, and had rightly decreed the suit in favour of the plaintiff. As regards the mesne profits, the learned district Munsif, negatived the claim of the plaintiffs on the ground that there is no evidence of defendants raising crops in the suit land after filing of the suit, land further there being no cross-appeals on this finding, and in view of my above discussion, i have no hesitation to conclude that there are no merits in this appeal to interfere with the findings of the learned District munsif. " ( 13 ) NO doubt, an attempt had been made to convince the Court that on the basis of the mere entries in pahanies, the title cannot be declared. It is no doubt true that on the mere revenue entries, the title cannot be declared but, however, the court of first instance appreciated the evidence of P. Ws. 1 and 2 and also Exs. A. 1 to 21, and also the evidence adduced on behalf of the appellant herein, D. Ws. 1 to 4, and Exs. B. 1 to 29 and came to the conclusion that the plaintiffs are entitled to the reliefs prayed for, however, in the facts and circumstances the relief of mesne profits had been negatived. The said findings recorded in detail had been confirmed in the appeal. This Court is well satisfied that the findings recorded are neither perverse nor erroneous and such findings had been recorded concurrently by both the Courts below on appreciation of the evidence available on record. Even otherwise, the question, which had been framed by this Court on a glance would definitely reflect that the same is not a substantial question of law and merely a question of fact or at the best mixed question of fact and law. In the light of the concurrent findings, which had been recorded by both the Courts, this Court is of the considered opinion that it is not a fit matter to be interfered within the second appeal, especially in the light of the limitations imposed on this Court regarding re- appreciation of evidence under Section 100 cpc. ( 14 ) IN view of the same, the second appeal shall stand dismissed. No costs.