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2007 DIGILAW 794 (AP)

G. Venkataram Rao v. Syed Abdul Rasheed

2007-08-22

P.S.NARAYANA

body2007
JUDGMENT :- On 10.11.1998, this Court made the following order: "In view of the substantial questions of law framed in ground No.6 in the memorandum of grounds of the second appeal, this second appeal is admitted", The following are the substantial questions of law which had been raised in the said ground No.6 of memorandum of second appeal : (i) Whether a suit is not maintainable even against an impleaded defendant just because the suit was filed against the wrong defendant (dead person) for lack of knowledge ? (ii) Whether the entries in Revenue Records coupled with the declaration filed under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act and the computation of the land to the holding is not sufficient to establish the factum of possession for the lands in dispute ? (iii) Whether the Courts below were right in construing the possession of persons claiming through the plaintiff as that of strangers and is not accountable for claiming adverse possession ? (iv) Whether the Courts below were right in holding that the declaration made under a State Enactment Le., A.P. Land Reforms (Ceiling on Agricultural Holdings) Act does not bind the defendant simply because he is not put on notice ? 2. The Counsel on record had taken this Court through the respective pleadings of the parties and the evidence available on record and made elaborate submissions relating to the maintainability of the suit as such since the same had been instituted originally as against a dead person. It is also brought to the notice of the Court that subsequent thereto voluntarily the son of the said dead person came on record, but he had not raised the specific ground relating to the maintainability of the suit and he had not even entered the witness box, but however the Courts below had negatived the reliefs prayed for by the plaintiff and aggrieved by the same the present Second Appeal had been preferred. No doubt the same had been resisted on the ground that concurrent findings had been recorded by the Court of first instance as well as the appellate Court. The Counsel on record also relied upon certain decisions in this regard. 3. The substantial questions of law already had been referred to supra. No doubt the same had been resisted on the ground that concurrent findings had been recorded by the Court of first instance as well as the appellate Court. The Counsel on record also relied upon certain decisions in this regard. 3. The substantial questions of law already had been referred to supra. The parties hereinafter would be referred to as "plaintiff' and "defendant" as shown in O.S. No.72/86 on the file of Principal Subordinate Judge, Ranga Reddy, Saroornagar. 4. The plaintiff filed the suit originally against the 1st defendant-Syed Nizamuddin for declaration that he is the owner and Pattedar of the suit schedule lands bearing Sy.Nos.484 and 486 of Kandukoor Village and Mandai and for a decree for correction of revenue records regarding the suit schedule lands bearing Sy.Nos.484 and 486 in village Kandukur, Ranga Reddy District by entering the name of the plaintiff in Column No. ll of the pahani for the years 1981 and also for subsequent pahanies by deleting the name of the defendants and for other appropriate reliefs. 5. It was pleaded in the plaint as hereunder : The suit schedule property stands in the name of the defendant as a Pattedar and the plaintiff was in possession of the same as a tenant since 1949 to 1962 and he was in possession of the same as purchaser as the defendant sold the same under the agreement of sale dated 21.12.1960 for a consideration of Rs.15,000/and agreed to file the necessary application for mutation of the patta in the name of the plaintiff as he by that time had acquired the rights of Aasami Shakmi. It was further pleaded that the plaintiff who was the possessor and purchaser of the suit schedule lands under the agreement of sale executed by the defendant and who was paying land revenue to the Government had also perfected his title by prescription and declared the suit schedule lands as purchaser in his holding in the declaration filed by him in the year 1975 under the provisions of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act. The Verification Officer after due enquiry found that the suit schedule lands are in possession of the plaintiff as purchaser and he accordingly included the same in the holding of the plaintiff by his order dated 30.11.1976 passed in C.C. No.633/l175. The Verification Officer after due enquiry found that the suit schedule lands are in possession of the plaintiff as purchaser and he accordingly included the same in the holding of the plaintiff by his order dated 30.11.1976 passed in C.C. No.633/l175. It was further pleaded that the plaintiff had already surrendered the excess land as held by the Land Reforms Tribunal and since the plaintiff is in possession of the suit land ever since 1969 as a lessee, under the provisions of the A.P. (Telangana Area) Land Reforms Act he had acquired the rights of Asami Shikmi prior to 1962, the year in which the Pattedar had executed the agreement and received full consideration of the lands. It was also further pleaded that according to Section 67 of the said Act where no agreement was made between the Pattedar and Asami Shikmi pertaining to the period of possession and had been for continuous period of 12 years, he shall be deemed to be the Shikmidar and he will have a permanent right as a Pattedar and under the same section, the Deputy Collector in whose jurisdiction the land is situate shall declare the Shikmidar as Pattedar in whose favour Shikmidari Certificate is issued and where no such Certificate is granted in respect of any land by Revenue Officer, the Deputy Collector shall on application made within a period of seven years from the date of commencement of the A.P. (Telangana Area) Land Revenue (Amendment) Act 1964 or may suo motu at any time after making any enquiry in the prescribed manner, declare the Shikmidar as Pattedar of the land and he be issued a Certificate to that effect in the prescribed form and give intimation thereof to the former Pattedar of the land. It was also further specifically pleaded that the plaintiff by mistake did not apply to the Deputy Collector for issuance of such Certificate within the prescribed period and the Deputy Collector had not made suo motu enquiry in this regard even though there is no limitation for such enquiry. It was also further pleaded that the plaintiff had informed the Patwari of the Village as required under Regulation 5 of the A.P. (Telangana Area) Record of Rights in Land Regulations and also gave the agreement of sale dated 21.12. It was also further pleaded that the plaintiff had informed the Patwari of the Village as required under Regulation 5 of the A.P. (Telangana Area) Record of Rights in Land Regulations and also gave the agreement of sale dated 21.12. I 962 and requested him to mutate the patta of the suit land in his name but he refused to do so till he receives order from the Deputy Collector who is a competent authority under Section 62(A) of the Act. The agreement of sale executed by the defendant in favour of the plaintiff which was given to Patwari Sri Chandraiah for mutation in the name of the plaintiff was not returned to the plaintiff and unfortunately the said Patwari expired about nine months back. When the plaintiff approached the Revenue Divisional Officer for mutation of the land in his name for the above said circumstances, the learned Revenue Divisional Officer refused to do so and therefore he came forward with the suit. 6. It appears, the defendant, against whom originally the suit was instituted, being dead, the 2nd defendant came on record and the 2nd defendant who is none other than the son of the 1st defendant, filed written statement wherein it was pleaded that his father died in the year 1966 and the suit was filed against the dead person which is nullity and he denied that his father had entered into an agreement with the plaintiff and received full consideration of Rs.15,000/- as alleged in the plaint. It was further pleaded that the plaintiff was a stranger to the 2nd defendant and the plaintiff is not at all concerned with the suit property and the allegations in the plaint that the 1 st defendant promised the plaintiff for mutation of the suit land in his favour are all false. The plaintiff had not perfected his title over the suit property by way of adverse possession. It was also denied that the plaintiff is in possession of the suit property ever since .1949 and he had acquired the rights of Aasami Shikmi and he never filed any agreement of sale or lease and he has no right to claim any Shikmi rights in the suit land. It was also denied that the plaintiff is in possession of the suit property ever since .1949 and he had acquired the rights of Aasami Shikmi and he never filed any agreement of sale or lease and he has no right to claim any Shikmi rights in the suit land. It was also further pleaded that the plaintiff did not acquire any rights under Section 64 or 67 of the Hyderabad Revenue Act 1317 Fasli and denied that the plaintiff gave the alleged agreement of sale to the Patwari for getting the patta mutated in his name and further pleaded that the entire story is a concocted only to suit the purpose. The plaintiff had undervalued the suit. It was also pleaded that allegation that the plaintiff had been to the 1st defendant on 20.11.1985 is a white lie as the father of the 2nd defendant died in the year 1966 and as such the plaintiff could not have met the 1st defendant on 20.11.1985 as alleged in the plaint. 7. On the strength of these pleadings, the following Issues were settled for trial : I. Whether the deceased defendant executed the agreement of sale dated 21.12.1962 in favour of the plaintiff? 2. Whether the plaintiff was in possession of the suit property as a tenant from 1949 to 1962 as alleged in the plaint? 3. Whether the plaintiff perfected his title to the suit property by prescription as alleged in the plaint? 4. Whether the plaintiff acquired the rights of Pattedar on the suit land under the provisions of Sections 67 and 67-A of the A.P. (Telangana Area) Land Revenue Act as alleged in the plaint? 5. Whether the suit claim is under valued ? 6. To what relief? On behalf of the plaintiff, P.W.I and P.W.2 were examined and Exs.A-1 to A-21 were marked and on behalf of the defendants, none had been examined. The trial Court on appreciation of the evidence available on record, referred to Order XXII Rule 4 and Order I Rule 10(2) of the Code of Civil Procedure, came to the conclusion that the suit as instituted by the plaintiff against a dead person being a nullity, the suit is liable to be dismissed, with costs. The trial Court on appreciation of the evidence available on record, referred to Order XXII Rule 4 and Order I Rule 10(2) of the Code of Civil Procedure, came to the conclusion that the suit as instituted by the plaintiff against a dead person being a nullity, the suit is liable to be dismissed, with costs. Aggrieved by the same, the plaintiff carried the matter by way of appeal, A.S. No.28/96 on the file of I Additional District Judge, Ranga Reddy, at Saroornagar, and the appellate Court also had confirmed the said findings of the trial Court. Hence the second appeal. 8. The learned Counsel representing the appellant had placed strong reliance on the decisions of the Apex Court in Karuppaswamy and others v. C. Ramamurthy, AIR 1993 SC 2324 and also Munshi Ram v. Narsi Ram, AIR 1983 SC 27 I. In the light of these decisions and also in the light of the peculiar facts and circumstances, this Court is of the considered opinion that negativing the relief only on the ground that the suit was originally instituted as against a dead person, though voluntarily the person otherwise interested in the litigation came on record, and that too, when he had not chosen even to enter into the witness box, may not be just and proper. In the light of the same, inasmuch as the main ground of negativing the relief being that the suit was originally instituted, may be by a bona fide mistake as against a dead person, the same in a way had been rectified since the son of the said dead person voluntarily came on record and had put in a contest by filing a written statement but had not chosen to enter into the witness box, the findings recorded by the Courts below are hereby set aside and the matter is remanded to the Court of first instance to give opportunity to both the parties to let in further evidence if they choose to do so and decide the matter in accordance with Law answering all the Issues. 9. Accordingly, the judgments and decrees of the Courts below are hereby set aside and the second appeal is allowed to the extent indicated above. No costs.