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2006 DIGILAW 696 (AP)

MEKA SURAMMA v. SURABATHULA MURALIDHARA RAO

2006-06-21

L.NARASIMHA REDDY

body2006
L. NARASIMHA REDDY, J. ( 1 ) THIS second appeal is filed by the defendants in O. S. No. 1310 of 1980 on the file of the III Additional District Munsif, Rajahmundry. The sole respondent filed the suit for eviction of the appellants, from the suit schedule property. The trial Court dismissed the suit on 29. 01. 1988. Aggrieved thereby, the respondent filed A. S. No. 37 of 1988 in the Court of the II Additional District Judge, Rajahmundry. The appeal was allowed on 04. 02. 1994. Hence, the second appeal. ( 2 ) THE respondent pleaded that he purchased an extent of Acs. 8. 77 cents of land in Sy. Nos. 69 and 73 of Bommuru village, Rajahmundry taluq from one Azimunnisa Begum for a consideration of Rs. 9,998/- under an agreement of sale, dated 21. 09. 1966, and thereafter, obtained a sale deed, dated 12. 07. 1972. According to him, the land was under cultivation of one Vasireddi Yerrayya as a tenant and that he handed over the possession of the land on 27. 08. 1971 under a letter of acknowledgement. ( 3 ) HE further pleaded that out of the land purchased by him, he leased an extent of Ac. 1. 00 to one Mohd. Baba for establishing a cinema theatre, in the year 1977, and when the said Baba went to the site to take possession, the appellants were found to have encroached upon it, by raising huts. It was alleged that when attempts were made to evict them, the appellants became aggressive and the same resulted in filing of c. C. No. 258 of 1978 on the file of the IV Additional Judicial Magistrate of I class, Rajahmundry. With these allegations, the respondent sought eviction of the appellants from the suit schedule property and for recovery of mesne profits at the rate of Rs. 600/- per year. ( 4 ) THE appellant No. 12 herein filed a written statement and the same was adopted by others. According to them, neither the respondent nor his vendor Azimunnisa Begum had any title over the land, at any point of time. They pleaded that the suit schedule property is part of a Jamindari and consequent upon the enactment of the Andhra Pradesh (Andhra Area)Estates (Abolition and Conversion into Ryotwari) Act (for short the Act), the land stood vested with the Government. They pleaded that the suit schedule property is part of a Jamindari and consequent upon the enactment of the Andhra Pradesh (Andhra Area)Estates (Abolition and Conversion into Ryotwari) Act (for short the Act), the land stood vested with the Government. It was alleged that once the land vested in the Government, the alleged agreement, dated 21. 09. 1966 or the subsequent sale deed, dated 12. 07. 1972, are of no consequence. They further contend that unless the respondent or his vendor were issued any pattas under Section 11 of the Act, they cannot derive any title or right vis-a-vis the and. ( 5 ) AS observed earlier, the trial Court dismissed the suit and on an appeal, the lower appellate Court decreed it. Sri G. Rama Rao, the learned counsel for the appellants, submits that admittedly, the land was part of Jaminidari and the only way any individual can get title or right over such land, is by obtaining the patta under Section 11 of the Act. He contends that being aware of his weakness, the respondent did not seek the relief of declaration of title and once the relief of recovery of possession was not coupled with the declaration Of title, the respondent was under obligation to establish his possessory title, twelve years prior to the filing of the suit. He further contends that even on this front, the respondent failed and the lower appellate Court We s not justified in reversing the well-considered judgment of the trial Court. ( 6 ) SRI P. Sree Rama Murthy, the learned counsel for the respondent, on the other hand submits that the appellants had encroached upon the suit land without any legal right and that the lower appellate Court ordered their eviction, strict y, in accordance with law. On the basis of the pleadings before it, the trial Court framed the following issues: 1) Whether the plaintiff has title to the plaint schedule land? 2) Whether the defendants perfected their title by adverse possession? 3) Whether the plaintiff is entitled to possession? 4) Whether the plaintiff is entitled to past and future profits? 5) To what relief? to support his plea, the respondent examined P. Ws. 1 to 7 and marked Exs. A1 to A21. On behalf of the appellants, D. Ws. 1 and 2 were examined and Exs. EB1 to B5 were marked. 3) Whether the plaintiff is entitled to possession? 4) Whether the plaintiff is entitled to past and future profits? 5) To what relief? to support his plea, the respondent examined P. Ws. 1 to 7 and marked Exs. A1 to A21. On behalf of the appellants, D. Ws. 1 and 2 were examined and Exs. EB1 to B5 were marked. ( 7 ) THE respondent filed the suit for recovery of possession, without seeking any declaration of his title over the suit schedule property. According to him, the land was the subject matter of an agreement of sale deed, dated 21. 09. 1966, marked as Ex. A1 It was pleaded that on account of pendency of the suit for partition between Azimunnisa Begum and her family members, the execution of the sale deed was delayed. It was only on 12. 07 1972, a sale deed, Ex. A2, was executed. The respondent also filed the link document, Ex. A4, a sale deed, dated 28. 07. 1962 in favour of Azimunnisa Begum and other documents marked as Exs. A6 and A7. Had the land been not part of any estate or Jamindari, the sale deeds referred to above would certainly have the effect of conferring title upon the respondent and in a way, he would have been entitled to maintain the suit without the formal necessity of seeking the relief of declaration of title. In the instant case, it is not in dispute that the land was part of a Jamindari. But, the publication of notification under the Act, the jamindari stood abolished and the land became vested in the government. The persons in possession of such lands were entitled to be granted Ryotwari Pattas under Section 11 of the Act. If, in fact, the respondent was in possession and enjoyment of the land either on the strength of Exs. A1 and A2 or any other documents, it was open to him to substantiate his claim under Section 11 of the Act and to get a Ryotwari patta. For reasons best known to them, neither the respondent nor his vendor, had recourse to such an exercise. The fact remains that they were not granted any Ryotwari Patta in respect of the suit schedule property or the land covered by Ex. A2 under Section 11 of the Act. Therefore, the respondent cannot be said to have derived any title over the land. The fact remains that they were not granted any Ryotwari Patta in respect of the suit schedule property or the land covered by Ex. A2 under Section 11 of the Act. Therefore, the respondent cannot be said to have derived any title over the land. In that view of the matter, the suit must be taken to be the one for recovery of possession on the basis of possessory title. ( 8 ) EVEN according to the averments in the plaint, the land was under the possession of a tenant by name Vasireddi Yerrayya by the time the property was purchased under Ex. A2. The possession is said to have been recovered about one month after the execution of the same. The said Yerrayya was examined as P. W. 3. Except his self-serving statement that he was a tenant, Yerrayya did not state as to how and when he was inducted as tenant, and by whom. Contrary to this, there is a recital in ex. A2 that the possession of the property was assumed on the date of execution of sale deed. The trial Court has noticed this contradiction. The evidence of the alleged tenant was of no use. The respondent did not explain as to why no steps were taken by him to obtain Ryotwari Patta under Section 11 of the Act. ( 9 ) AS regards possession, the trial Court made a reference to the tax receipts filed by the respondent on the one hand and the appellants on the other. An Advocate-Commissioner was appointed. The report filed by him was marked as Ex. A18 and the plans appended to it as Exs. A19 to A21. ( 10 ) THE report discloses that over the land n Sy. No. 69/2, there is a water pump and bore-well belonging to the Electricity Department. The land in sy. No. 69/1 was found to be in possession of the Gram Panchayat. The respondent did not offer any explanation as to whether the land in sy. No. 69/2 was sub-divided and if so the effect thereof. With an attempt to explain about this, the respondent examined P. W. 6 from the family of his vendors, who, in turn, stated that the land in Sy. No. 69/2 was acquired from them. The respondent did not offer any explanation as to whether the land in sy. No. 69/2 was sub-divided and if so the effect thereof. With an attempt to explain about this, the respondent examined P. W. 6 from the family of his vendors, who, in turn, stated that the land in Sy. No. 69/2 was acquired from them. However, he did not substantiate the said plea with any cogent evidence nor did he assert that any compensation was paid to them In C. C. No. 258 of 1978, which was instituted against the appellants, the Court which decided the said case recorded a finding to the effect that the appellants are in possession of the land as on 10. 04. 1977. It was also found that roads were laid and other amenities were provided in the land in Sy. No. 69 and the silence maintained by the respondent as regards such activities clearly discloses that he did not have possession over the land at any point of time. ( 11 ) THE lower appellate Court glossed over the important issue, as to the failure on the part of the respondent in making any effort to obtain the ryotwari Patta or the absence of any material evidence as regards possession over the suit land. When there are several inconsistencies as to the nature of possession said to have been exercised by the respondent over the land, and when he did not derive any title to the land in accordance with the provisions of the Act, there was no basis for the lower appellate Court in reversing the judgment of the trial Court. ( 12 ) THE second appeal is accordingly allowed and the judgment and decree in A. S. No. 37 of 1988 on the file of the II Additional District Judge, east Godavari is set aside. Consequently, the judgment and decree in o. S. No. 1310 of 1980 on the file of the III Additional District Munsif, rajahmundry shall stand revived. There shall be no order as to costs.