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2025 DIGILAW 192 (AP)

S. J. Kalappa Modaliar v. Dist Collector Chittoor

2025-01-30

T.MALLIKARJUNA RAO

body2025
JUDGMENT : (T. MALLIKARJUNA RAO, J.) 1. This Second Appeal was filed by the Appellants/Respondents 1, 7 to 9/Plaintiff under Section 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') against the Judgment and decree, dated 07.12.1999 passed in A.S.No.78 of 1990 on the file of Senior Civil Judge, Puttur (for short, 'the First Appellate Court') reversing the Judgment and decree, dated 01.06.1988 passed in O.S.No.38 of 1987 on the file of District Munsif Magistrate, Nagari (for short ‘the Trial Court’). 2. The 1 st Appellant is the Plaintiff, who filed the suit in O.S.No.38 of 1987 for permanent injunction restraining the Defendants, their men and servants or nominees from causing any disturbance to the Plaintiff's peaceful possession and enjoyment of the plaint schedule properties. 1 st Respondent / Appellant is the 6 th Defendant in the said suit. Respondents 2 to 6 are Defendants 1 to 5, who remained ex parte in the suit proceedings. 3. It is prudent to refer to the parties as they are initially presented in the suit O.S.No.38 of 1987 to minimize any potential confusion and to enhance the understanding of the case. 4. The factual matrix essential for adjudicating the contentious issues between the parties can be outlined as follows: The Plaintiff, a resident of Ekambarakuppam village, is the absolute owner of the schedule-mentioned property, which he has peacefully and continuously possessed for over twenty years, cultivating dry crops and paying land revenue. On 03.01.1962, the Plaintiff was granted a DKT patta for land S.No.170/1, to an extent of Ac.1.25 cents in Netham Kandiga, Nagari Taluk, by the Puttur Tahsildar. The patta remains valid, as no cancellation proceedings have occurred. The Plaintiff has also been issued a Ryot Pass Book and Kist receipts, affirming his rights. Despite this, the Defendants, lacking any legal claim or right to the land, have recently disrupted the Plaintiff’s possession. The Defendants, acting with malice, have threatened to dispossess the Plaintiff, allegedly at the request of the Tahsildar, Nagari. The Plaintiff issued a Section 80 notice on 05.05.1983, acknowledged by the 6 th Defendant and the Tahsildar, but no reply was received. The Defendants are causing law and order issues, hindering the Plaintiff's enjoyment of the property. The Defendants, acting with malice, have threatened to dispossess the Plaintiff, allegedly at the request of the Tahsildar, Nagari. The Plaintiff issued a Section 80 notice on 05.05.1983, acknowledged by the 6 th Defendant and the Tahsildar, but no reply was received. The Defendants are causing law and order issues, hindering the Plaintiff's enjoyment of the property. Given the urgency of sowing crops, Plaintiff seeks a permanent injunction to prevent further interference and has requested permission to sue the Defendants personally and as representatives of Nathamkandriga H. Wada. 5. In the written statement, the 6 th Defendant asserted that the Plaintiff is a non-agriculturist residing in Tiruttani, not in Ekambarakuppam, and earns a livelihood as a cloth merchant. Defendant claimed that Plaintiff never possessed or cultivated the suit land, which was classified as waste dry land before the grant of D.K.T. Patta. The patta was later cancelled for public necessity after due notice, and the land was reallocated for house sites for 55 harijan families in 1976. The Defendant denies that the Plaintiff was ever in possession of the land and maintains that the Government did not dispossess him. 6th Defendant also asserted that Plaintiff misrepresented his status as a local agriculturist to obtain the patta, which was later cancelled due to the Plaintiff being a non-agriculturist. Defendant further claimed that the Plaintiff violated the Derkasth Rules and asserts that the suit land was resumed by the government. The Plaintiff is not entitled to permanent or temporary injunctions, as the suit is barred under Section 34 of the Specific Relief Act. There is no cause of action, no balance of convenience in favour of the Plaintiff and the suit is not maintainable. 6. Based on the above pleadings in O.S.No.447 of 2001, the trial Court framed the following issues: 1) Whether the Plaintiff is in possession of the suit land on the date of suit? 2) Whether the DKT patta given to the Plaintiff from the suit land was cancelled later by the Government? 3) Whether the Plaintiff is entitled to permanent injunction as prayed for? 4) To what relief? 7. During the trial, P.Ws.1 to 4 were examined on behalf of the Plaintiff and marked Exs.A.1 to A.9 documents. Conversely, on behalf of the Defendants, D.Ws.1 and 2 were examined and marked Exs.B.1 to B.7. 8. 3) Whether the Plaintiff is entitled to permanent injunction as prayed for? 4) To what relief? 7. During the trial, P.Ws.1 to 4 were examined on behalf of the Plaintiff and marked Exs.A.1 to A.9 documents. Conversely, on behalf of the Defendants, D.Ws.1 and 2 were examined and marked Exs.B.1 to B.7. 8. After the trial concluded and both sides presented their arguments, the trial Court decreed the suit with costs vide Judgment dated 01.06.1988. 9. Dissatisfied with this Judgment and decree in O.S.No.38 of 1987, the 6 th Defendant subsequently filed an appeal in A.S.No.78 of 1990 on file of the 1 st Appellate Court. The 1 st Appellate Court, being the final fact-finding Court, framed the following points for consideration: 1) Whether the 1 st Respondent had complied the conditions of DKT patta by bringing the land under cultivation? 2) Whether the 1 st Respondent as Plaintiff was in possession and enjoyment of the schedule property as on the date of filing of the suit? 3) Whether the suit injunction simpliciter without declaratory relief is maintainable? 4) Whether the judgment and decree under Appeal are required to be interfered? 10. During the pendency of the Appeal before the First Appellate Court, the 1st Respondent/Plaintiff passed away. His legal heirs, Respondents 7 to 9, were brought on record vide orders in I.A. No. 140 of 1998, dated 21.09.1998. 11. The 1 st Appellate Court, after scrutinizing oral and documentary evidence on behalf of both sides, allowed the Appeal without costs in A.S.No.78 of 1990 by its Judgment and Decree dated 07.12.1999. Assailing the same, Respondents 7 to 9 preferred the present Second Appeal. 12. I heard Sri L.J.Veera Reddy, learned Counsel representing the Appellants, and learned Government Pleader for Arbitration representing the 1 st Respondent. 13. Learned counsel for the Appellants asserted that the First Appellate Court erred by inferring that the Plaintiff brought the land under cultivation, which should have led to the First Appeal's dismissal. It wrongly shifted the burden of proof to the Appellants regarding the deceased Plaintiff's residency. The First Appellate Court also incorrectly assumed the Plaintiff wasn’t in possession due to a lack of cultivation documents. Additionally, it wrongly allowed the Appeal based on the non-challenge of the cancellation order, overlooking that the Plaintiff’s claim was for an injunction focused on possession. It wrongly shifted the burden of proof to the Appellants regarding the deceased Plaintiff's residency. The First Appellate Court also incorrectly assumed the Plaintiff wasn’t in possession due to a lack of cultivation documents. Additionally, it wrongly allowed the Appeal based on the non-challenge of the cancellation order, overlooking that the Plaintiff’s claim was for an injunction focused on possession. The First Appellate Court misinterpreted evidence, failing to consider how the Government could take possession from the Plaintiff. The Mandal Revenue Officer had no authority to cancel the assignment, and the cancellation is invalid under Board Standing Order No.15 and also as per the decision reported in 1991 (1) ALT 617 . 14. Per contra, learned Government Pleader for Arbitration, contends that the First Appellate Court correctly appreciated the case facts and reached a correct conclusion. The reasons given by the First Appellate Court do not require any interference. 15. Based on the Appellants’ contentions, the following substantial questions of law are involved in this Second Appeal: 1. Whether substituted service is permissible for cancellation of DKT patta more so when such procedure is not contemplated under Board Standing Orders? 2. Whether Mandal Revenue Officer is competent to cancel the assignment granted after 20 years on the grounds of non-residence in the village? 3. Whether the presumption under section 6 of A.P. Records of Rights in Land Acts 1971 be ignored by Civil Courts more so when Ex.A.3 i.e., pass book was issued on 22.07.1980 in favour of Plaintiff? 4. Whether the cancellation of assignment without following the procedure under Board Standing Orders be taken into account by the Civil Court more so when the ground of jurisdiction was urged from the beginning? 16. With the assistance of the learned Counsel for the respective parties, I have gone through the Judgments, the pleadings and the evidence on record. 17. Before addressing the rival contentions put forth by both parties, I hereby refer to the following undisputed facts derived from the record: The Plaintiff was granted a DKT Patta for the suit land, covered by Survey No.170/1, encompassing an area of 4.25 acres, which is further covered under Patta No. 318. Before the filing of the present suit, the Plaintiff issued a notice under Section 80 of the Code of Civil Procedure on 5th May 1983. Despite the receipt of this notice, no reply was forthcoming. 18. Before the filing of the present suit, the Plaintiff issued a notice under Section 80 of the Code of Civil Procedure on 5th May 1983. Despite the receipt of this notice, no reply was forthcoming. 18. The 6 th Defendant contends that Plaintiff misrepresented his status as a local resident to obtain the DKT Patta, marked as Ex.A.1. It was later discovered that Plaintiff was not a resident of the village and had failed to cultivate the land as required under the conditions of the DKT Patta. Furthermore, the schedule property was designated for house sites for 55 Harijana families, for whom house site pattas were granted by the Tahsildar in 1976. Subsequently, proceedings for the cancellation of the DKT Patta were initiated on 01.05.1983, and the land was resumed by the competent authority. The necessary amendments were made to the village records, and the land was demarcated for house sites on the ground. It was in this context that the Plaintiff issued a notice under Section 80 of the Code of Civil Procedure. 19. The Plaintiff's stand in the case is that, before the alleged cancellation of the patta, the 6 th Defendant failed to follow the procedural requirements as prescribed by law. In contrast, the 6 th Defendant asserts that, since Plaintiff was not residing in the village, a show cause notice could not be directly served to him. Ex.B.1 is the copy of the show cause notice for cancellation. The 6 th Defendant further contends that the show cause notice was served by substituted service, as evidenced by the endorsement in Ex.B.2. To substantiate this claim, the 6 th Defendant had relied upon the proceedings in Ex.B.3, referenced as R.O.C.B3/476/83. The Plaintiff asserts that substituted service is not expressly provided for, and consequently, such a service should be deemed invalid. This argument was duly considered by the First Appellate Court, which observed that, as the Plaintiff's whereabouts were unknown, the authorities resorted to the substituted service procedure. 20. Based on the material available on record, the First Appellate Court observed that the Plaintiff was aware of the proceedings in Exs.B.1 to B.4. Ex.B.4 is the certificate from the Village Karnam (KM) and Village Munsif (VM), which was relied upon to demonstrate that the public in the suit village had been informed of the cancellation of the patta. 20. Based on the material available on record, the First Appellate Court observed that the Plaintiff was aware of the proceedings in Exs.B.1 to B.4. Ex.B.4 is the certificate from the Village Karnam (KM) and Village Munsif (VM), which was relied upon to demonstrate that the public in the suit village had been informed of the cancellation of the patta. The First Appellate Court noted that, since the Plaintiff was aware of the cancellation of the DKT Patta, he ought to have taken legal proceedings to challenge the validity of the proceedings set out in Exs.B.1 to B.4. The record further indicates that, by the time the suit was filed, the DKT Patta granted to the Plaintiff had already been cancelled. Nevertheless, the Plaintiff pursued the suit seeking a permanent injunction. As both Courts correctly observed, the Plaintiff is required to establish that he remained in possession of the property as of the date of filing the suit, despite the cancellation of the patta. 21. Upon re-appreciation of the evidence adduced, the First Appellate Court reached a clear conclusion that the Plaintiff failed to establish his possession of the property as of the date of filing the suit. The First Appellate Court noted that the Plaintiff had submitted Ex.A.2, a series of kist receipts dating from 1962 to 1980. From this, an inference could be drawn that the Plaintiff was in possession of the property until 1980. However, the First Appellate Court observed that if the Plaintiff had continued in possession of the property until the date of filing the suit, he would have made similar kist payments to that point, as the continuity of the Ex.A.2 receipts indicated. The Plaintiff failed to provide any explanation for his failure to pay kists from 1980 until the filing of the suit in 1987. Consequently, the First Appellate Court inferred that, as the Plaintiff was not in possession of the property, he had not made the kist payments. The First Appellate Court also relied on Ex.B.5, a statement that indicated the Plaintiff was not residing in the suit village and that the kist payments were collected from him by the Karanam through the sending of Talari to Tiruttani. 22. The First Appellate Court also relied on Ex.B.5, a statement that indicated the Plaintiff was not residing in the suit village and that the kist payments were collected from him by the Karanam through the sending of Talari to Tiruttani. 22. As previously noted, through Ex.B.3, the 6 th Defendant asserts that the Plaintiff is not a resident of Nethamkandriga village, but rather conducts business in Tiruttani, thereby violating Conditions 2 and 3 of the Darkasth Rules. Upon reviewing the evidence, the First Appellate Court, providing sound reasoning, concluded that the Plaintiff had indeed violated these conditions. In contrast, the Plaintiff failed to produce any documentation to substantiate his claim of residency in the village or evidence of cultivating the land. As observed by the First Appellate Court, Exs.B.1 to B.5 confirm that the show cause notice and cancellation orders could not be served on the Plaintiff, as he was neither residing in the suit village nor in Ekambarakuppam, as he had contended. The First Appellate Court also considered the testimonies of PWs.1 to 4, who stated that the Plaintiff had not been cultivating the suit land for the past four years, which corresponds to the period leading up to the filing of the suit. The Plaintiff’s explanation that he had ceased cultivating the land due to the pending litigation is improbable and unacceptable. 23. As rightly observed by the First Appellate Court, the Trial Court failed to address the issue of possession of the suit property. It was unduly influenced by the oral evidence of PWs.1 to 4, without considering the critical fact that Plaintiff did not submit revenue records to demonstrate his cultivation of the land after 1962. The Trial Court also failed to conclude that the Plaintiff had not provided any evidence to establish his possession as of the date of filing the suit. Despite raising a specific plea in the written statement concerning the cancellation of the DKT patta granted in favour of Plaintiff, and the Plaintiff did not present any material to show that proceedings were initiated to challenge the cancellation of the DKT patta. Furthermore, Plaintiff failed to provide any evidence to counter the 6 th Defendant's claim that he breached the two essential conditions for the granting of the DKT patta, namely, his failure to reside in Nethamkandriga village and his failure to cultivate the land. Furthermore, Plaintiff failed to provide any evidence to counter the 6 th Defendant's claim that he breached the two essential conditions for the granting of the DKT patta, namely, his failure to reside in Nethamkandriga village and his failure to cultivate the land. Given that the material placed on record establishes that the Plaintiff has failed to prove his possession as of the date of filing the suit, and considering that the evidence suggests the Plaintiff was aware of the cancellation of the patta, it is further evident that, even before the filing of the suit, the Government had granted pattas to 55 Harijana families, and the competent authority had resumed the land. 24. For the reasons aforesaid, this Court discerns no infirmity, much less perversity or illegality, in the Judgment rendered by the First Appellate Court. The findings and reasoning provided by the First Appellate Court are consistent with established legal principles. The First Appellate Court meticulously reviewed all the evidence on record, omitting nothing pertinent, nor did it consider any extraneous material. As rightly observed by the First Appellate Court, the findings and conclusions recorded by the Trial Court are not based on the appreciation of evidence on record. The Trial Court's Judgment is erroneous and cannot be sustained. The First Appellate Court, after proper appreciation of the evidence on record, has appropriately set aside the Judgment of the Trial Court. Consequently, the findings of the First Appellate Court do not call for interference by this Court. The Second Appeal lacks merit in its entirety. 25. In these circumstances, finding no such questions that require consideration in the Second Appeal, which is a much less substantial question of law as pointed out for the Appellants, this Second Appeal has to be dismissed. 26. As a consequence, this Second Appeal is dismissed without costs. The judgment and decree dated 07.12.1999 of learned Senior Civil Judge, Puttur, A.S.No.78 of 1990 stands confirmed. In this Second Appeal, miscellaneous applications pending, if any, shall stand closed.