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2023 DIGILAW 1311 (AP)

District Collector v. V Raghunathan

2023-09-15

K.MANMADHA RAO

body2023
JUDGMENT 1. The present Second Appeal is preferred by the appellants aggrieved by the Decree and Judgment dtd. 9/9/2014 passed in A.S.No.1 of 2004 on the file of the Principal Senior Civil Judge, Tirupathi, confirming the decree and judgment dtd. 5/8/2002 passed in O.S No.49 of 1991 on the file of the Principal Junior Civil Judge, Puttur. 2. The appellants herein are the defendants and the respondent herein is the plaintiff in O.S.No.49 of 1991 on the file of Principal Junior Civil Judge, Puttur (for short "the trial Court"). 3. For convenience the parties are hereinafter referred to as arrayed before the Principal Senior Civil Judge, Tirupathi (for short "the first appellate Court") in A.S.No.1 of 2004. 4. Brief facts of the case are that the plaintiff filed O.S No.49 of 1991 before the trial Court for grant of declaration declaring that the amendment made to the original notification No.351, dtd. 3/8/1952 vide G.O.Ms.No.726 (Revenue) dtd. 10/8/1967 published in A.P. Gazette, dtd. 31/8/1967 as invalid and not binding upon the plaintiff and also for granting permanent injunction restraining the defendants and their sub-ordinates not to interfere with the plaintiff's peaceful possession and enjoyment of the suit properties. 5. Originally the suit schedule property is the ancestral property of the plaintiff which was purchased by his forefather's under the registered sale deed dtd. 27/9/1880 and since then they are in continuous possession and enjoyment of the same. Subsequently, the plaintiff got divided their entire properties by way of partition decree in O.S No.64 of 1947 in which the subject property is kept joint. Further, as the Government tried to take over their property, the plaintiff and their family members preferred O.S No.15 of 1958 before the District Court, Chittoor for declaration of title and the same was decreed on merits. Apart from the same, the mandatory injunction was given to the Government for grant of permits to the plaintiffs and accordingly the defendants No.3 and 4 have been granting Permits. Subsequently, the defendants preferred an appeal vide A.S No.415 of 1959 before this Court and the same was dismissed by this Court confirming the judgment and decree passed in O.S No.15 of 1958. Thereafter, on 24/4/1991 the 4th defendant accumulated some survey stones near the suit property in order to put Khiran stones inside with an ulterior motive of annexing the suit property with the reserve forest. Thereafter, on 24/4/1991 the 4th defendant accumulated some survey stones near the suit property in order to put Khiran stones inside with an ulterior motive of annexing the suit property with the reserve forest. In pursuance of the same, the Government miserably failed to take over Kalyana venkateswarapuram and Vidwat Sadasivapuram under the first Notification No.351, dtd. 3/8/1952 vide G.O.Ms.No.2210 Revenue dtd. 1/8/1952. Thereafter, the defendants issued an amendment to the aforementioned notification vide G.O.Ms.No.726 (Revenue) dtd. 10/8/1967 stating that the High Court while upholding the decree and judgment of the trial Court and dismissing the Government appeal observed that the suit property formed part of Karvetinagar Zamindari and after Narayanavanam had been auctioned and separately registered in Collector's office, that they became ultimately part and parcel of the estate Narayanavanam, as such, the two villages should be deemed to have been taken over along with parent estate Narayanavanam from 15/8/1950. In spite of said amendment to original notification which was never acted upon till now, the Government cannot and will not get over or by pass the permanent injunction granted in CMP No.3609 of 1953 in W.P.No.269 of 1953 by the High Court of composite Madras State which was carried out in the decree and judgment of the trial Court in O.S No.15 of 1958. Therefore the plaintiff filed the suit. 6. The defendants No.1 and 2 filed written statements and denied all the allegations made in the plaint. It is stated that the Government vide G.O.Ms.No.796 dtd. 10/8/1967 issued an amendment to the original notification issued under Sec. 1(5) of the Estate Abolition Act, 1948 thereby Kalyana venkateswarapuram was deemed to have been taken over long back with parent estate Narayanavanam w.e.f. 15/8/1950 and was published in A.P. Gazette, dtd. 31/8/1967 and this notification has not been challenged by the plaintiffs and their predecessors. The plaintiff's claim for grant of Ryotwari Patta under Sec. 15(1) of the Estate Abolition Act, 1948 was also rejected by the Asst. ASO., Chittoor vide proceedings in S.R No.77/UT/53, dtd. 29/4/1954 in suo moto proceedings. Therefore, the plaintiffs have no right and are not in possession of any land in the village. The entire area was forest as on 15.08/.1950. 7. ASO., Chittoor vide proceedings in S.R No.77/UT/53, dtd. 29/4/1954 in suo moto proceedings. Therefore, the plaintiffs have no right and are not in possession of any land in the village. The entire area was forest as on 15.08/.1950. 7. The defendant No.3 also filed written statement stating the defendant No.4 has every right to preserve the forest land and the plaintiffs have no right to question his acts, while discharging his official duties. The boundaries to the suit lands are vague and incorrect. The suit land is called "Enclosure" which is mentioned in the plan and is surrounded on all sides by the forest lands. Taking undue advantage of the enclosure being situated in the forest land the plaintiff employed his men thereby entered into the forest land and caused damage to the forest growth on 12/5/1991 and on 14/7/1991. The defendant has taking steps for correct demarcation of enclosure with the help of tie line and also with the help of Assistant Director of survey and land records, Chittoor, and hence prayed to dismiss the suit. 8. Basing on the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff is in possession and enjoyment of the suit property on the date of filing of the suit? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. To what relief? The following Additional issues were also framed: 4. Whether the plaintiff is entitled for declaration that amendment made to original notification No.351, dtd. 3/8/1952 by issue of G.O.Ms.No.726 (Revenue) dtd. 10/8/1967 published in A.P. Gazette, dtd. 31/8/1967 as invalid, in operative and not binding on the plaintiff? 5. Whether the schedule property vests in Government in view of Sec. 3(B) of Estate Abolition Act? 6. Whether the schedule property was declared as Forest land under Sec. 15 of A.P. Forest Act? 9. After careful appreciation on record the trial Court decreed the suit as prayed for. Aggrieved by the same, the defendants preferred A.S No.1 of 2004 before the first appellate Court stating that the trial Court has not considered the evidence and probabilities of the case facts and has not properly appreciated the contention of the defendants and the defendants had ample power to amend the notification in view of the observations made by this Court in A.S No.415 of 1959. The first appellate Court has dismissed the said appeal stating that the finding of the trial Court by settling the issues in favour of the plaintiff need not be interfered in the appeal as the findings are in accordance with law and on appreciation of evidence on record. Challenging the same, the present second appeal came to be filed. 10. This Court, vide order, dtd. 21/8/2023 in I.A No.5 of 2018 has permitted to implead the proposed respondents No.2 and 3 in the main S.A.No.1057 of 2016. 11. Heard learned Government Pleader for Arbitration appearing for the appellants and Sri P. Chandra Mouli and Sri M.V.J. Kumar, learned counsels appearing for the respondents, 12. Learned counsel for the appellants has urged in the grounds of appeal as the following substantial questions of law arisen for determination of the second appeal : a) Whether the judgment and decree of Lower Appellate court in confirming the judgment and decree of the trial court is correct, without framing necessary point for consideration without following the fundamental provisions of CPC enumerated under Order 41 Rule 31? b) Whether the Courts below have jurisdiction to entertain the suit in view of the fact that property is incapable of valuation? C) whether the judgments of the Court below are sustainable in view of the judgment rendered by this Court in the State of A.P. vs. Kothacheruvu Plantations and Industries Pvt. Ltd., reported in 2014 (4) ALT 380 ? d) Whether the Courts below are right in declaring the G.O.Ms.No.796 dtd. 10/8/1967 as invalid in view of the fact that after the Estates Abolition Act, 1948 came into force Kalyana Venkateswarapuram and Vidwatsadasivapuram villages included in the Narayanavanam Forest block of Puttur Revenue Mandal which were notified as under Tenure Estates and were taken over by the State on 3/9/1952 under the provisions of Estates Abolition Act? 13. This Second Appeal is filed under Sec. 100 CPC on the ground that the judgment and decree of both courts below is totally basing on the presumption, surmises and conjectures, ignoring the material facts available on record and interpretation of law. 14. There cannot be any dispute that, under the amended Sec. 100 C.P.C., a party aggrieved by the decree passed by the first appellate court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. 14. There cannot be any dispute that, under the amended Sec. 100 C.P.C., a party aggrieved by the decree passed by the first appellate court has no absolute right of appeal. He can neither challenge the decree on a question of fact or on a question of law. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word 'substantial' as qualifying 'question of law', means and conveys - of having substance, essential, real, or sound worth, important, considerable, fairly arguable, in contradiction with - technical, formal, or no substance, no consequence or academic only. A substantial question of law should directly and substantially affect the rights of the parties. A question of law can be said to be substantial between the parties if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record; disregard or non consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding- are some of the questions, which involve substantial questions of law. 15. According to Sec. 100 CPC, a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure introduced such an embargo for such definite objectives and since the Courts are required to further probe on that score and the Courts while detailing out, but the fact remains in second appeal finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. The High Court can interfere with such finding recorded by the trial Court though not on law in view of judgment reported in Kulavant Kaur v Gurdial Singh Mann, 2001 (4) SCC 262 . 16. Keeping in mind the scope of Sec. 100 CPC, I would like to decide the present appeal at the stage of admission. 17. The High Court can interfere with such finding recorded by the trial Court though not on law in view of judgment reported in Kulavant Kaur v Gurdial Singh Mann, 2001 (4) SCC 262 . 16. Keeping in mind the scope of Sec. 100 CPC, I would like to decide the present appeal at the stage of admission. 17. Learned Government Pleader for the appellants contended that first appellate Court confirming the judgment of the trial Court besides being unjust, illegal and contrary to law, as such, the same is liable to be set aside and the suit is liable to be dismissed. He mainly submitted that the Courts below miserably failed to appreciate the contention of the appellants raised in the written statement and utterly failed to appreciate the oral and documentary evidence adduced on behalf of the appellants. The first appellate court utterly failed to keep in mind the basic principles of CPC more particularly the provisions of Order 41 Rule 31 CPC while sitting in appeal that the points for consideration in the appeal have to be framed for deciding the case, but in the instant case, no such exercise has been done but adopted normal procedure as in the original suit under Order 14 Rule 1 CPC which is impermissible under law. He further submits that the Courts below erred in holding on additional issue against the appellants in view of the fact that the civil court has no jurisdiction to declare that the government orders issued under the provisions of Estates Abolition Act as ultra vires and unconstitutional. He mainly contended that the courts below utterly failed to keep it in mind that there is no specific schedule lands mention in the schedule attached to the plaint and as such the relief sought and granted is unsustainable and contrary to law and facts. He further submitted that the Courts below ought not to have entertained the suit since the courts below has no pecuniary jurisdiction and as well as territorial jurisdiction to entertain the suit in view of the fact that the decree of the trial Court clearly says that the property is incapable of valuation and as such the impugned judgments are liable to be set aside. 18. 18. Per contra, learned counsel for the respondents argued that about Ac.1000.00 cents land (Private forest) in block No.202 of K.V Puram of Puttur Mandal were acquired by the ancestor Sri Singarachari under four(4) registered sale deeds dtd. 26/7/1880, 2/8/1880, 3/8/1880 and 4/8/1880 respectively. The respondent/plaintiff purchased about Ac 600.00 cents of lands (private forest) in Block No.199 of V.S.puram under a registered sale deed, dtd. 17/2/1928 and since then he has been in possession and enjoyment of the said lands by collecting manure leaves, wood and by grazing the cattle. While so, the respondent/plaintiff has leased out the right to collect the manure leaves etc., as stated supra in favour of others under registered lease deeds dtd. 25/5/1912, 22/4/1915, 19/8/1915, 22/3/1918, 27/10/1953 and 15/6/1954 respectively and leases ended by 1979. He further submits that the Governmetn vide notification No.351 published in Part-I of For.St.George Gazette, dtd. 13/8/1952 notifying the above lands as under Tenure Estates within the meaning of Sec. 2(15) of Madras Estate Abolition Act 1948. Thereupon two of the joint owners of the Estate viz. V. Narasimhachari and V. Raghavachari successors in interest of Sri Singarachari filed a suit in O.S No.15 of 1958 before the Additional District Judge, Chittoor for grant of declaration and the same was allowed vide decree and judgment dtd. 31/10/1958 and set aside the notification stated supra. Aggrieved by the same, the Government preferred appeal before the High Court of AP and the same was dismissed. He further submitted that, later, the Government issued GO.Ms.No.796 dtd. 10/8/1967 making an amendment to the original notification No.351 dtd. 3/8/1952, stated that while dismissing the appeal in A.S.No.415 of 1959 observed that the suit property formed part of Karvetinagaram Zamindari and therefore after Narayanavanam had been auctioned and separately registered in collector office, the two suit villages became ultimately part and parcel of the estate of Narayanavanam and as such the two suit villages should be deemed to have been taken over along with present estate of Narayanavanam. Challenging the said auction, the respondent/plaintiff filed suit in O.S No.49 of 1991 against the District collector and other for declaration and the same was allowed and against the same the Government preferred an appeal in A.S.No.1 of 2004 before the first appellate court and the same was also confirmed the judgment of the trial Court. Challenging the said auction, the respondent/plaintiff filed suit in O.S No.49 of 1991 against the District collector and other for declaration and the same was allowed and against the same the Government preferred an appeal in A.S.No.1 of 2004 before the first appellate court and the same was also confirmed the judgment of the trial Court. Therefore, learned counsel submits that as there are no merits in the present appeal, prayed to dismiss the same. 19. To support his contentions, learned counsel for the respondents has placed reliance on the judgment of High Court of Judicature, Andhra Pradesh at Hyderabad, reported in Vegesna Ratnamma v. Chinta Venkateswarlu, 2008 (1) ALD 113 . wherein it was held that: In the normal course, the judgment of the appellate Court should state the points for determination and decision thereon. The judgment shall also state the reasons for the decision. The first appellate Court has to consider all the disputed questions of fact and law and record its findings thereon. 9. In Girijanandini v. Bijendra Narain AIR 1967 SC 1124 the Supreme Court held as follows: We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice. In the light of the above legal position, it can be concluded that if the judgment reflects the application of mind to the evidence available on record and if the appellate Court discusses various points raised by the parties by answering the rival contentions, it is not necessary that the judgment should record all the facts in detail and should deal mechanically with all points. It would be sufficient if the Court renders its independent judgment on the basis of the material available on record and if there is slight deviation to the requirements of Order 41, Rule 31 CPC that itself is not a ground to hold that the judgment is vitiated. 20. It would be sufficient if the Court renders its independent judgment on the basis of the material available on record and if there is slight deviation to the requirements of Order 41, Rule 31 CPC that itself is not a ground to hold that the judgment is vitiated. 20. Learned counsel for the respondents has also placed reliance on the decisions of Hon'ble Supreme Court reported in (i) G. Amalorpavam vs. R.C. Diocese of Madurai, 2006 (3) CivCC 404 . wherein the Hon'ble Apex Court held that : The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Sec. 100 CPC. (ii) In a case of Gurdev Kaur and others versus Kaki and others,(2007) 1 Supreme Court Cases 546. wherein the Hon'ble Apex Court held that: "Now, the High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal- Moreover, High Court must first formulate the questions of law and only thereafter it can proceed to decide them. The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts. Hence, justice should be administered in accordance with law and not according to judge's whim, desire and notion of justice. Hence, where the will bequeathed the entire inheritance of the testator to only one of several heirs and the courts below recorded a concurrent finding that the will was a genuine and valid document, held, High Court erred in setting aside the same on the ground that in normal circumstances a prudent man would have bequeathed the property in favour of his legal heirs." 21. In the light of the above legal position, it can be concluded that if the judgment reflects the application of mind to the evidence available on record and if the appellate court discusses various points raised by the parties by answering the rival contentions, it is not necessary that the judgment should record all the facts in detail and should deal mechanically with all points. It would be sufficient, if the Court renders its independent judgment on the basis of the material available on record and if there is slight deviation to the requirements of Order 41 Rule 31 CPC that itself is not a ground to hold that the judgment is vitiated. 22. It is no doubt desirable that the first appellate Court should comply with all the requirements of Order 41 Rule 31 CPC. 22. It is no doubt desirable that the first appellate Court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. It is also observed that where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. 23. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Sec. 100 CPC. 24. On perusing the material available on record, it is observed that, the trial Court is appreciated the evidence on record that in O.S No.15 of 1958 on the file of Additional District Court, Chittoor, declared that Vidyut Sadasivapuram and Kalyanavenkateswara puram are not under the tenure estates within the meaning of Sec. 2(15) of the Madras Estates Abolition Act XXVI of 1948 and as such the Notification No.351 issued under Madras Act XXVI of 1948 issued in respect of two clauses is illegal and without jurisdiction and the same was confirmed by this Court in A.S No.415 of 1959. Therefore, it is clear that the issue with regard to notification No.351 issued under Madras Act XXVI of 1948 is illegal and it is also observed that against that judgment no appeal was preferred by the defendants questioning the judgment in A.S. No.415 of 1959 so also O.S No.15 of 1958. Therefore, amendment of such illegal notification i.e., No. 351 in G.O.Ms.No.726, dtd. 10/8/1967 is also invalid and not binding on the plaintiffs as settled by the trial Court. 25. In the light of the settled position of law and in the light of the concurrent findings of fact given by the Courts below, and as there is no other substantial question of law to be considered by this Court, I do not find any valid ground either to remand the matter to the first appellate court or to set aside the judgments of the courts below. 26. For the above-mentioned reasons, I do not find any reason to interfere with the well-considered judgments of the Courts below. 27. Accordingly, the Second Appeal is dismissed at the stage of admission. No order as to costs. As a sequel,all the pending miscellaneous applications shall stand closed.