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2014 DIGILAW 602 (AP)

Koyyada Andalu v. Lingala Sathyanarayana

2014-04-28

M.S.RAMACHANDRA RAO

body2014
JUDGMENT M.S. Ramachandra Rao, J. 1. Heard Sri D. Rama Krishna, counsel for the appellant and Sri A. Ananda Rao, counsel for the respondent at the stage of admission. This Second Appeal is filed under Section 100 C.P.C. challenging the judgment and decree dt. 03.12.2012 in A.S. No. 37 of 2012 of the I Additional District Judge, Nalgonda confirming the judgment and decree dt. 05-09-2011 in O.S. No. 163 of 2006 of the Senior Civil Judge, Bhongir. 2. The appellant is the plaintiff in the above suit. She filed the said suit to declare that she is the absolute owner of the plaint-A schedule property and for a perpetual injunction restraining the respondent/defendant from interfering with her peaceful possession and enjoyment of the said property; to declare that she is the owner of the plaint-B schedule property and for delivery of possession of the same after evicting the respondent/defendant therefrom; and for costs. 3. The plaint-A schedule property consists of an extent of Ac.6.28 gts. (dry) in Sy. No. 154 and Ac.1.02 gts. (wet) in Sy. No. 355 of Thangedapally village, Choutuppal Mandal, Nalgonda District. The plaint-B schedule property is an extent of Ac.8.25 gts. (dry) in the same village. 4. The father of the plaintiff Lingala Yellaiah and the father of the defendant Lingala Kistaiah are brothers. THE PLAINT 5. It is the case of the plaintiff that her father late Lingala Yellaiah was the owner of Ac.17.18 gts. in Sy. No. 154, Ac.8.25 gts. in Sy. No. 246 and Ac.2.05 gts. in Sy. No. 355 of the above village apart from other lands; that an extent of Ac.8.29 gts. in Sy. No. 154 and an extent of Ac.1.02 gts. in Sy. No. 355 were sold by the State in an auction for recovery of arrears due by him relating to an Excise contract; that these lands were purchased by one Syed Moinuddin in the said auction as per Excise Sale Certificate No. 4245 of 1952; that Syed Moinuddin sold the land purchased by him to the defendant's father late Lingala Kistaiah under a registered sale deed bearing Doc. No. 558 of 1969; mutation was made in the Revenue Records in the name of the defendant's father and later in the name of defendant. The plaintiff further contended that in the remaining extent of Ac.8.29 gts. in Sy. No. 154, an extent of Ac.2.00 gts. No. 558 of 1969; mutation was made in the Revenue Records in the name of the defendant's father and later in the name of defendant. The plaintiff further contended that in the remaining extent of Ac.8.29 gts. in Sy. No. 154, an extent of Ac.2.00 gts. was acquired by the Government and later utilised for a school building apart from house sites for the poor. She contended that the balance of Ac.6.29 gts. in Sy. No. 154 and Ac.1.03 gts. in Sy. No. 355 remained with the plaintiff's father and he was in possession and enjoyment of the same till his death. She contended that subsequent to his death, she came into possession of the said land and got mutated her name in the Revenue Records as per Faisal Patti for the year 1988-89. 6. She also contended that plaint-B schedule property was taken on lease from the plaintiff by the defendant in 1997 on crop share basis and was cultivating it but when she approached him for her share in the crop in April, 2006, he refused to give any share to her and claimed exclusive ownership over it. When she enquired in the Mandal Revenue Office, Chowtuppal, she came to know that the defendant had obtained a certificate in Form No. 13B under the provisions of the A.P. Rights in Land and Pattadar Passbooks Act, 1971 (for short 'the Act') on the basis of an unregistered sale deed dt. 13-04-1956 allegedly executed by the plaintiff and her father late Yellaiah. She denied that there was any sale by her or by her father and that the said unregistered sale deed is nothing but a forged document. She also contended that the Mandal Revenue Officer did not hold any enquiry as prescribed under the provisions of the said Act before issuing the said certificate to the defendant and making entries in the passbook and pahanis for this property; that these proceedings were held without notice to her and therefore they would not confer any rights on the defendant in respect of the plaint-B schedule property. 7. She alleged that on 20-08-2006, when she demanded the defendant to vacate the plaint-B schedule land and hand over possession back to her, the defendant not only refused, but on the next day he came to the plaint-A schedule property and tried to interfere with her possession by denying her title. 7. She alleged that on 20-08-2006, when she demanded the defendant to vacate the plaint-B schedule land and hand over possession back to her, the defendant not only refused, but on the next day he came to the plaint-A schedule property and tried to interfere with her possession by denying her title. She alleged that the Revenue Officials had colluded with the defendant and they refused to give her certified copies of the pahanis for the years from 2003-04 to 2005-06 and in spite of her objection, they entered the name of the defendant in the pahanis for the years 2003-04 and then issued copies to her on 11-10-2006. Therefore she filed the suit for the above reliefs. THE WRITTEN STATEMENT 8. The defendant filed a written statement admitting that the father of the plaintiff late Lingala Yellaiah was the owner of Ac.17-18 gts. in Sy. No. 154, Ac.8-25 gts. in Sy. No. 246 and Ac.2.05 gts. in Sy. No. 355 of the above village apart from other lands about 60 years prior to the filing of the suit. He stated that his father late Lingala Kistaiah purchased under a registered sale deed dt. 09-09-1969 (doc. No. 558 of 1969) from Syed Moinuddin, the extent of Ac.8.29 gts. in Sy. No. 154 and Ac.1.02 gts. in Sy. No. 355 of the above village belonging to the plaintiff's father which Syed Moinuddin had purchased in the auction for recovery of Excise arrears. He also admitted that an extent of Ac.2.00 in Sy. No. 154 was acquired by the Government but denied that the balance of Ac.6.29 gts. in Sy. No. 154 and Ac.1.03 gts. in Sy. No. 355 remained with the plaintiff's father late Yellaiah. He contended that he is the owner of this extent and that it was originally purchased by his father and that when these lands were auctioned by the Government, they were purchased by Moinuddin and sold to defendant's father. He alleged that the plaintiff's father was not in possession of this extent till his death in 1957 and even the plaintiff was not in possession of the same after his death. He claimed that after the death of her father, the plaintiff got her name mutated as pattedar of the lands without notice to him or to his father. 9. He also pleaded that the total extent of Sy. He claimed that after the death of her father, the plaintiff got her name mutated as pattedar of the lands without notice to him or to his father. 9. He also pleaded that the total extent of Sy. No. 154 was Ac.18.00 and half of it belonged to his father. He also pleaded that half of the extent of Ac.2.05 gts. in Sy. No. 355 also belonged to his father. He thus contended that both his father and the plaintiff's father had half share each in the lands in Sy. Nos. 154 and 355 but did not say how his father got such a half share. He further contended that the half share of the plaintiff's father Lingala Yellaiah was lost by him in the Excise auction conducted by the Government and the other half belonging to the defendant's father Lingala Kistaiah remained with him. 10. He contended that when Ac.2.00 of land in Sy. No. 154 was acquired by the Government, compensation was paid only to him and not to the plaintiff; that this shows that she did not claim any right over the above land; that he had also filed declaration under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and these lands were computed to his holding. He also pleaded that he perfected his title to the 'A' schedule property by adverse possession on account of his long standing possession. 11. He also pleaded that the plaintiff had given a statement before the Sub-Collector, Bhongir in proceeding No. E/3419/97 dt. 10-02-1988 to the effect that she had no objection to the transfer of patta of Sy. No. 154 admeasuring Ac.6.29 gts. in favour of the defendant in proceedings initiated by the defendant under the above Act. He claimed that his father purchased Ac.8.25 gts. in Sy. No. 246, Ac.0.23 gts. in Sy. No. 545 from the father of the plaintiff and plaintiff under an unregistered sale deed dt. 13-04-1956 for a sale price of Rs. 3,000/-, that he submitted before the Mandal Revenue Officer, Chowtuppal in May, 1995 for validation of the same under the Act; that the said Official conducted thorough enquiry by issuing notice to the plaintiff and then passed orders in file No. H/273/ROR/1989-94 dt. 23-05-1995 and issued 13-B Proforma Certificate to him. 13-04-1956 for a sale price of Rs. 3,000/-, that he submitted before the Mandal Revenue Officer, Chowtuppal in May, 1995 for validation of the same under the Act; that the said Official conducted thorough enquiry by issuing notice to the plaintiff and then passed orders in file No. H/273/ROR/1989-94 dt. 23-05-1995 and issued 13-B Proforma Certificate to him. He alleged that the plaintiff filed a complaint before the Revenue Divisional Officer, Bhongir against the issuance of 13-B Proforma Certificate to the defendant, that an enquiry was conducted and the complaint was dismissed on 20-02-1996 in File No. D/2164/95. He alleged that this order is binding on the plaintiff. He denied that the unregistered sale deed dt. 13-04-1956 is a forged or fabricated document and prayed that the suit be dismissed. THE ISSUES 12. The trial Court framed the following issues: "1. Whether the plaintiff is entitled to seek declaration and consequential permanent injunction in respect of 'A' schedule property? 2. Whether the plaintiff is entitled to seek declaration and possession of 'B' schedule property? 3. Whether the sale deed alleged by the defendant is true and correct and binding on the plaintiff? 4. To what relief?" 13. Before the trial Court, the plaintiff examined P.Ws.1 and 2 and marked Exs.A-1 to A-13. The defendant examined D.Ws.1 and 2 and marked Exs.B-1 to B-25. THE JUDGMENTS OF THE TRIAL COURT AND FIRST APPELLATE COURT 14. By judgment and decree dated 05-09-2011, the trial Court dismissed the suit. This was confirmed in appeal by the lower appellate Court. 15. Challenging the same, this Second Appeal is filed by the plaintiff. 16. The point for consideration in the appeal is whether the said judgments are sustainable? 17. The trial Court held that the defendant had pleaded that his father had a half share in the plaint schedule property and it accepted this plea without there being any evidence thereof. Merely because the plaintiff's father and the defendant's father are brothers, it does not follow that the property admitted by the defendant in para-3 of his written statement to be owned by the plaintiff's father (i.e. Ac.17.18 gts. in Sy. No. 154, Ac.8.25 gts. in Sy. No. 246 and Ac.2.05 gts. in Sy. No. 355) would also belong to the defendant's father jointly and both the plaintiff's father and the defendant's father would have a half share therein. in Sy. No. 154, Ac.8.25 gts. in Sy. No. 246 and Ac.2.05 gts. in Sy. No. 355) would also belong to the defendant's father jointly and both the plaintiff's father and the defendant's father would have a half share therein. It is settled law that proof of existence of a joint family does not lead to a presumption that property held by any member of the family is joint. (See Srinivas Krishna Rao Kango v. Narayan Devji Kango and others AIR 1954 SC 379 ). The burden rests upon on the defendant who is asserting that these properties are joint to establish the said fact but he has failed to adduce any evidence in support thereof. The trial Court therefore ought not to have taken this averment of the defendant at face value and believed it in the absence of any evidence in support of it. 18. There is no dispute that from these lands, only Ac.8.29 gts. in Sy. No. 154 and Ac.1.02 gts. in Sy. No. 355 were sold in the public auction by the Government for recovery of Excise arrears of the plaintiff's father and Ac.2.00 in Sy. No. 154 was acquired subsequently. Therefore, the remaining land is an extent of Ac.6.29 gts. in Sy. No. 154 and Ac.1.03 gts. in Sy. No. 355 apart from Ac.8.25 gts. in Sy. No. 246. 19. It is also not disputed that the extent of Ac.8.29 gts. in Sy. No. 154 and Ac.1.02 gts. in Sy. No. 355 belonging to the plaintiff's father and it had been sold in the public auction by the Government for recovery of arrears of Excise was purchased by one Syed Moinuddin and he had sold this extent to the defendant's father under Ex.B-25 dt. 09-09-1969. 20. The trial Court ignored the admission of the defendant in para No. 3 of his written statement that the father of the plaintiff is the owner of the property i.e. Ac.17.18 gts. in Sy. No. 154, Ac.8.25 gts. in Sy. No. 246 and Ac.2.05 gts. in Sy. No. 355 and erroneously took the view that if the plaintiff's father was really the owner of the entire extent of land mentioned above i.e., then the Government would have sold this entire land in the auction to recover arrears of revenue and therefore inferred that the defendant's father had a half share in the said property. in Sy. No. 355 and erroneously took the view that if the plaintiff's father was really the owner of the entire extent of land mentioned above i.e., then the Government would have sold this entire land in the auction to recover arrears of revenue and therefore inferred that the defendant's father had a half share in the said property. The reasons given by the trial Court to conclude that the defendant's father had a half share in the property are perverse and untenable. The Government would only sell the extent of property of a defaulter of Excise arrears (like the plaintiff's father) which would meet the liability and would not sell the entire extent, as a matter of rule. 21. It also concluded that compensation under the Land Acquisition Act, 1894 was paid for the extent of Ac.2.00 acquired by the State in Sy. No. 154 to the defendant and this also shows that his father did have a share in the said land. Ex.B-12 copy of the Award no doubt indicates that the defendant was paid compensation but there is no indication therein that the plaintiff had any opportunity during Award proceedings to contest the claim of the defendant for compensation. Ex.B-12 does not indicate that any notice was given to the plaintiff before compensation was paid to the defendant. Therefore, the mere fact that the defendant was paid compensation for this Ac.2.00 of land, cannot imply that his father had a half share in the properties mentioned in para No. 21 which were admitted by the defendant to belong to the father of the plaintiff in para 3 of his written statement. 22. In the absence of evidence that the defendant's father was having a half share in the properties belonging to plaintiff's father referred to in para No. 21, after deducting the extents sold in the Excise auction by the Government and the extents acquired by the Government, the plaintiff being the sole heir of her father, has to be declared as the owner of the extent of Ac.6.29 gts. in Sy. No. 154 and Ac.1.02 gts. in Sy. No. 355 of the above village. Admittedly, Ex.A-2, the certified copy of the Faisal Patti for 1988-89 shows these lands as well as the extent of Ac.8.25 gts. in Sy. in Sy. No. 154 and Ac.1.02 gts. in Sy. No. 355 of the above village. Admittedly, Ex.A-2, the certified copy of the Faisal Patti for 1988-89 shows these lands as well as the extent of Ac.8.25 gts. in Sy. No. 346 ('B' schedule) as having been deducted from Katha No. 238 of her father and credited in her favour without any katha number. 23. Therefore rejection by the trial Court of the plaintiff's case insofar as she sought declaration of her title and perpetual injunction of 'A' schedule property is erroneous and perverse. 24. As regards 'B' schedule property, the defendant had pleaded that the father of the plaintiff and the plaintiff have sold the same to his father under an unregistered sale deed dt. 13-04-1956. The said sale deed has not been filed by the defendant. Therefore, adverse inference has to be drawn against him that if it is filed, it would support the plaintiff's case that it is forged. It is settled law that title cannot be transferred under an unregistered sale deed and registration is mandatory to convey title. 25. Notwithstanding these principles, the trial Court accepted that there was such a sale on the ground that there was a proceeding passed under the provisions of the A.P. Rights in Land and Pattadar Passbooks Act, 1971 by the Mandal Revenue Officer, Chowtuppal in proceedings file No. H/273/ROR/1989-94 dt. 23-05-1995 and a 13-B Certificate (Ex.B-3) was issued to him. A reading of this proceeding does not indicate that any notice was issued to the plaintiff before passing this order. Moreover this document mentions the name of the plaintiff as "Koyyada Andalu" as one of the transferors of the extent of Ac.8.25 gts. in Sy. No. 246 and Ac.0.23 gts. in Sy. No. 545 under the sale deed dated 13-04-1956. It is not disputed that as on 13-04-1956, the plaintiff was aged only 4 years and her maiden name would be written as "Lingala Andalu" and not as "Koyyada Andalu" since she was not married in 1956 and would not have the surname "Koyyada". This is also probably one of the reasons why the said sale deed dt. 13-04-1956 was not produced by the defendant since it would then disclose the age of the plaintiff and her minority. This is also probably one of the reasons why the said sale deed dt. 13-04-1956 was not produced by the defendant since it would then disclose the age of the plaintiff and her minority. It may be that the plaintiff complained to the Revenue Divisional Officer, Bhongir against the above proceeding of the Mandal Revenue Officer, Chowtuppal granting 13-B Certificate to the defendant and the same was rejected on 20-02-1996 (Ex.B-6). The basis of this rejection was that these lands were included in the holding of the defendant in proceedings under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. The defendant had admitted in para No. 3 of his written statement that the 'B' schedule property belongs to the plaintiff's father. It is the plaintiff's case that the defendant was cultivating the 'B' schedule property as a tenant on crop sharing basis. Under the above Act, even persons in possession as tenants have to file declaration of their holding. It is difficult to believe the statement of the Revenue Divisional Officer in that order dt. 20-02-1996 that the plaintiff had refused to give her statement before the Mandal Revenue Officer. In view of the admission of the defendant that 'B' schedule property belonged to the plaintiff's father and in the absence of any material other than the unregistered sale deed dt. 13-04-1956 relied on by him, it cannot be held that the defendant or his father is the owner of 'B' schedule property. 26. The trial Court referred to Section 8(2) of the A.P. Rights in Land and Pattadar Passbooks Act, 1971 giving liberty to any person aggrieved by an entry made in any record of rights to institute a suit for declaration of his right under the provisions of the Specific Relief Act, 1963 and advised the plaintiff to file such a suit for declaration while dismissing the present suit by relying on the orders of the Revenue Officials in Exs.B-3 to B-6. In my opinion the plaintiff has sought the relief of declaration of her title in the present suit and the trial Court ought to have decided it without being influenced in any manner by the orders of the Revenue Officials. In my opinion the plaintiff has sought the relief of declaration of her title in the present suit and the trial Court ought to have decided it without being influenced in any manner by the orders of the Revenue Officials. Even under sub-section (2) of Section 8 of the above Act, it is the decision of the Civil Court which would prevail over the decision of the Revenue Official under the said Act and not vice versa. 27. The appellate Court confirmed the above findings of the trial Court. The appellate Court also perversely held that once the defendant pleaded that the property mentioned in para No. 21 is the joint property and his father had a half share therein along with the plaintiff's father, it was for the plaintiff to prove that the entire extent of propertv belonged to her father. This is contrary to the law laid down in Srinivas Krishnarao Kango (supra) mentioned above. The lower appellate Court ignored the admission of the defendant in para No. 3 of his written statement that the father of the plaintiff is the owner of the property mentioned in para No. 21 supra and held perversely that the plaintiff did not file a single scrap of paper to prove the fact that her father was the owner of that property. The admission of the defendant was sufficient for the plaintiff to prove this fact and no other documentary evidence is necessary to be adduced by plaintiff to prove it. 28. The lower appellate Court also gave importance to the fact that the plaintiff did not yet compensation for the Ac.2.00 of land in Sy. No. 154 which had been acquired by the Government. I have already held that this will not come to the aid of the defendant in any manner. 29. The lower appellate Court also held that the pahani for the year 2003-04 showed the title and possession of the defendant. Pahanis are at best evidence of possession and entries therein are not proof of title. This law is well settled. 30. 29. The lower appellate Court also held that the pahani for the year 2003-04 showed the title and possession of the defendant. Pahanis are at best evidence of possession and entries therein are not proof of title. This law is well settled. 30. The lower appellate Court also, like the trial Court, got swayed by the orders passed by the Revenue Officials under the provisions of the A.P. Rights in Land and Pattadar Passbooks Act, 1971 to hold against the plaintiff, forgetting the fact that the suit being a comprehensive one for declaration of title and other reliefs, it is the decision of the Civil Court which will prevail over the decisions of the Revenue Officials under the Act and not vice versa. Section 8 of the Act states: "Section 8-Bar of Suits:- (1) No suit shall lie against the Government or any officer of Government in respect of a claim to have an entry made or in relation to an entry made in any record of rights or to have any such entry omitted or amended. (2) If any person is aggrieved as to any rights of which he is in possession by an entry made in any record of rights he may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963 (Central Act 47 of 1963) and the entry in the record of rights shall be amended in accordance with any such declaration." 31. It placed reliance on Ex.B-11, an order passed by the Mandal Revenue Officer, Chowtuppal on 22-09-2006 recording that the plaintiff had stated that she had no objection for mutation of land admeasuring Ac.6.29 gts. in Sy. No. 154/A in the name of the defendant, which appears to be incredible. It appears that the defendant had managed the Revenue Officials to make such observations and therefore those observations do not bind the plaintiff. Even otherwise it is settled law that mutation in Revenue Records is not proof of title (See Union of India and others v. Vasavi Co-operative Housing Society Limited (2014 (2) SCJ 72) and title cannot pass by admission alone (See Ambika Prasad Thakur and others etc. v. Ram Ekbal Rai (dead) by his legal representatives and others etc. AIR 1966 SC 605 ). 32. v. Ram Ekbal Rai (dead) by his legal representatives and others etc. AIR 1966 SC 605 ). 32. It is my considered opinion that both the trial Court and lower appellate Court have acted perversely and ignored the applicable legal principles. They should have seen that the pleading of the defendant that his father had a half share in the properties of the plaintiff's father is inconsistent with the plea of adverse possession also pleaded by him; and such shifting stands of the defendant (after admitting in para No. 3 of the written statement, the title of the plaintiff's father) showed the defendant's desperation. 33. In my opinion the plaintiff has established her title to both plaint 'A' and 'B' schedule properties and therefore, she is entitled to declaration of her title thereto. Ex.A-2 Faisal Patti shows her possession of these properties admittedly. Therefore, she is entitled to perpetual injunction in respect of 'A' schedule property and since 'B' schedule property is in the possession of the defendant subsequent to Ex.A-2 (in view of Exs.B-3 and B- 5 proceedings of the Mandal Revenue Officer, Chowtuppal), she is entitled to possession thereof. 34. The Second Appeal is accordingly allowed with costs and the judgments and decrees of the Courts below are set aside. As a sequel, the miscellaneous petitions, if any pending, shall stand closed.