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2011 DIGILAW 313 (AP)

Rukmini Bai Alias Laxmi Bai v. K. Mohanlal

2011-04-08

R.KANTHA RAO

body2011
Judgment : This second appeal is filed against the decree and judgment dated 31.07.2006 passed by the III Additional Chief Judge, City Civil Court, Hyderabad in A.S.No.528 of 2005 whereby and whereunder the learned III Additional Chief Judge reversed the decree and judgment dated 02.08.2005 passed by the III Additional Rent Controller-cum-XV Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.1613 of 2000. I have heard the learned counsel appearing on either side. For the sake of convenience, I would like to refer the parties herein as ‘the plaintiffs and the defendant.’ One Mr. Shiv Raj, the deceased-first plaintiff filed O.S.No.1613 of 2000 against the defendant seeking a decree of permanent injunction restraining him and his men from interfering with the suit property which is a vacant site of an extent of 1500 sq. yards or 1254 sq. mtrs, in municipal Ward No.18, Sultan Bagh, Jangummet, Faluknama,Hyderabad. Pending the suit, he died and the remaining plaintiffs have been brought on record as his legal representatives. According to the plaintiffs, they became entitled to the schedule mentioned site by virtue of the registered sale deed dated 14.06.1966 marked as Ex.A.1 executed by one Dasarath Kumar in favour of the deceased first plaintiff. The vendor of the plaintiffs’ Dasarath Kumar purchased the site under Ex.A.2 sale deed dated 11.01.1960 from Md. Ulfat Ali Khan. The version of the plaintiffs is that the defendant without any manner of right, title or interest in the schedule mentioned site is trying to interfere with their possession and therefore, he filed the suit for permanent injunction against the defendant. The suit was resisted by the defendant on the ground that the suit schedule mentioned site is in T.S.No.26 which is co-related to old Survey No.5/P and the said site belongs to the defendant’s father Makkaji, the plaintiffs are his vendors and do not have any title or interest in the schedule mentioned site. The case of the defendant is that his father Makkaji is the owner and possessor of entire land covered by Survey No.5 and new Survey Nos. 3, 4, and 5 of Sultan Bagh village having purchased under two registered sale deeds from original owner Smt. Kaneez Imtul Zabar Fathima, who is the original pattedar. The case of the defendant is that his father Makkaji is the owner and possessor of entire land covered by Survey No.5 and new Survey Nos. 3, 4, and 5 of Sultan Bagh village having purchased under two registered sale deeds from original owner Smt. Kaneez Imtul Zabar Fathima, who is the original pattedar. The defendant also contended that the description of the property mentioned by the plaintiffs in the schedule attached to the plaint is not correct, they do not have any right or interest in the said property and hence they are not entitled for the relief of permanent injunction. The learned trial Court framed an issue whether the plaintiffs are entitled for perpetual injunction as prayed for. The plaintiff No.3 was examined as PW.1 and marked Exs.A.1 to A.12 on behalf of the plaintiffs. The defendant himself was examined as DW1 and marked Exs.B.1 to B.13 on his behalf. The learned trial Court on a careful analysis of evidence adduced on either side, rejected the contention urged by the defendant that the plaintiffs are unable to establish the identity of the schedule mentioned site, compared the boundaries recited in the documents relied upon by both the parties such as Exs.A1, A2, Exs.B.1 and B.2 held that for not mentioning the survey number or town survey number, the well established claim made by the plaintiffs cannot be rejected, and accordingly decreed the suit filed by the plaintiffs granting the relief of permanent injunction against the defendant following the well settled principle that the boundaries will prevail over the extent or survey numbers. The learned first appellate Court being led away by certain misconceived notions and ignoring the well settled principles relating to proof of certain facts in civil cases, unjustly reversed the judgment rendered by the learned trial Court. It is true that insofar as the finding relating to facts, the conclusion reached by the first appellate Court is final, but such finality will be attached to the conclusions reached by the first appellate Court, if they are based on proper reappraisal of the evidence on record and only when the findings are in accordance with the evidence on record and not being perverse. Though, the essential requirement for entertaining the second appeal is involvement of substantial question of law, this Court while exercising its jurisdiction under Section 100 C.P.C can interfere with the findings of fact, if such findings recorded by the trial Court are either not based on evidence on record or based on no evidence or perverse. The reasons assigned by the first appellate Court for reversing the judgment of the trial Court must be adequate and they should be in accordance with the settled principles of law. If such findings are totally misconceived and not in accordance with law, they can be said to be perverse and require interference of this Court in the second appeal. Let me now examine as to whether in fact there is any basis for the first appellate Court to reverse the findings of fact recorded by the trial Court. In proof of their title, the plaintiffs filed Ex.A.1 registered sale deed dated 14.06.1966 under which the deceased first plaintiff purchased the property from Dasarath Kumar. They also filed their vendor’s sale deed dated 11.01.1960 which is marked as Ex.A.2 and according to the said sale deed, their vendor Dasarath purchased the schedule mentioned site from Mohd. Ulfat Ali Khan. The recitals of Ex.A.1 reveal that the deceased first plaintiff purchased 1500 sq. yards of site in Jangummet, Falaknuma, Hyderabad in Ward No.18. The Northern boundary of Ex.A.1 is the land of Makkaji, who is no other than the father of the defendant. In Ex.A.2, which is the link document of the plaintiffs also, the northern boundary is shown as the land of Makkaji. In Exs.A.1 and A.2 sale deeds only municipal Ward No.18 is mentioned, but either the survey number or town survey number are not mentioned. Ex.B1. is the sale deed dated 06.02.1961 under which the defendant is claiming rights. In the said document southern boundary is mentioned as Mohd.Ulfat Ali Khan and northern boundary is shown as Balabai W/o Makkaji Saheb. Ex.B.1 is an extent of 32000 sq. yards of non-agricultural land of Ward No.18. As already noticed, Mohd.Ulfat Ali Khan is no other than the plaintiffs’ vendor. It is significant to note that in Ex.B.1 sale deed also only Ward No.18 is mentioned and that there is no mention of survey number or town survey number. Ex.B.1 is an extent of 32000 sq. yards of non-agricultural land of Ward No.18. As already noticed, Mohd.Ulfat Ali Khan is no other than the plaintiffs’ vendor. It is significant to note that in Ex.B.1 sale deed also only Ward No.18 is mentioned and that there is no mention of survey number or town survey number. One more important aspect requires consideration is that DW1 had specifically admitted in the cross examination that the schedule mentioned site does not cover any lands under Exs.B1 and B.2 sale deeds. DW.1 also admitted in the cross-examination that it is so mentioned in Ex.B.1 sale deed. As per Ex.B.1 sale deed the southern boundary is the land of Mohd. Ulfat Ali Khan. He also further admitted that Mohd. Ulfat Ali Khan is one of the attestors of Ex.B.1 and that his vendor’s property is situated on the northern side of the property covered under Exs.A.1 and A.2. In the light of the evidence above referred, the learned trial Court rightly arrived at the conclusion that absolutely there is no dispute about the identity of the suit schedule site. Ex.A.4 is another important document. It is a receipt dated 11.10.1999 relating to nonagricultural land assessment tax which shows that the plaintiffs paid the Nala tax for the suit property from 1966-1999. Though tax was collected under nala from the plaintiffs under Ex.A.4 for several years, its genuineness cannot be doubted on the said ground alone in the absence of any other evidence or circumstances showing that it was a brought up document. Ex.A.11 is the certified copy of the Town Survey Register dated 02.09.1993 which is filed by the plaintiffs.In Col.No.10 of the said document, the vendor’s name of the defendant is mentioned as Makkaji. In Ex.A.11 though the name of the Makkaji is mentioned in the pattedar column, the name of the plaintiffs’ vendor Dasarath Kumar was also mentioned in the column relating to possessors. The learned trial Court rightly held that although Town Survey registers are relevant, they are not records of right and no title can be inferred basing on the entries in the said registers. The learned trial Court rightly held that although Town Survey registers are relevant, they are not records of right and no title can be inferred basing on the entries in the said registers. But the learned first appellate Court took a contrary view on the ground that the very fact that the name of Dasarath Kumar was not mentioned as owner of the property and despite the assertion made by the plaintiffs that the mutation had been effected the names of the plaintiffs are not found in the relevant registers, it can not be said that Dasarath Kumar purchased the land under Ex.A.2 from Mohd. Ulfat Ali Khan and from him the deceased first plaintiff under Ex.A-1. Arriving at the said conclusion, the learned first appellate Court went to the extent of recording a finding that the entries made in Ex.A.11 would falsify the contents of Ex.A.2 registered sale deed in one way or the other. The said findings in my view are nothing but perverse. The reason being there are so many instances where in spite of the fact that the transfer of property is affected by registered sale deed, the mutation in the revenue records would not take place. On that score, the transaction of sale for valuable consideration effected by a registered document cannot be doubted. The approach of the first appellate Court brushing aside the entire evidence adduced by the plaintiffs in proof of their title and possession on the ground that Ex.A.11 does not indicate mutation of the property in the names of the plaintiffs or their vendor is totally misconceived and it shows the failure on the part of the first appellate Court to consider the evidence as a whole for the purpose of recording a finding as to the factum of possession and title. It was also contended before the learned trial Court that the defendant’s father filed O.S.No.60 of 1968 for permanent injunction for part of the property in Survey No.5 in which Dasarath Kumar is defendant No.6 and vakalat has been filed showing his name as Dasarath Kumar as defendant No.6, ultimately, the suit was decreed and Ex.B.7 the certified copy of the judgment and decree shows that permanent injunction was granted against the defendant’s vendor and therefore, the present suit is barred by res judicata. The learned trial Court considering the evidence of DW1 in the cross-examination which is to the effect that the property forming part of O.S.No.60 of 1968 is the western part of Survey No.5 and the property in Ex.B.7 is a different one to that of the schedule mentioned property in the present case and there being no proof that Dattari Kumar and Dasarath Kumar are one and the same persons, rightly held that the decision in O.S.No.60 of 1968 does not operate as res judicata against the plaintiffs. Thus, in the instant case, there is highly reliable and convincing evidence adduced by the plaintiffs in proof of their title in respect of the schedule mentioned site. The defendant had admitted specifically in his evidence that the property belonging to him under Exs.B.1 and B.2 sale deeds is different to that of the property under Exs.A.1 and A.2 sale deeds. The law is well settled that if there is any inconsistency between the boundaries on one side and survey numbers or extent on the other, the boundaries will prevail. The learned first appellate Court reversed the well considered judgment of the learned trial Court in utter disregard of the above said principle and took an erroneous view that the plaintiffs could not be able to establish the identity of the subject matter ofthe suit. As I have already said, if the first appellate Court failed to assign any convincing reasons for reversing the judgment of the trial Court and when such reversal of findings is based on misconceived notions and contrary to the well established principles, the said findings arrived at by the first appellate Court therefore, can be considered as perverse and this Court can interfere with the said findings in the second appeal even though some of the findings relate to fact. For the foregoing reasons, the decree and judgment dated 31.07.2006 passed by the III Additional Chief Judge, City Civil Court, Hyderabad in A.S.No.528 of 2005 are set aside and the decree and judgment dated 02.08.2005 passed by the III Additional Rent Controller-cum-XV Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.1613 of 2000 are confirmed. The second appeal therefore, succeeds and the same is allowed. There shall be no order as to costs.