Andhra HC (Pre-Telangana)
Yeluri Vijayabharathi And Ors. vs Yeluri Manikyamma And Ors. on 12 November, 1997
Equivalent citations: 1998(2)ALT623
JUDGMENT B.K. Somasekhara, J.
1. Heard on merits.
2. Strictly speaking no question of law is involved in this case. The appellants who are the plaintiffs 2 to 4 in O.S. No. 261 of 1986 on the file of the Principal District Munsif, Parchur and respondents in A.S. No. 20 of 1995 on the file of the learned Subordinate Judge, Parchur have challenged the Judgment and decree of the learned Subordinate Judge, Parchur allowing the appeal filed by the respondents dated 28-2-1997 as against the judgment and decree of the learned Principal District Munsif, Parchur dated 21-3-1991. Reference to the parties in the status they occupied in the first Court would be convenient as plaintiffs and defendants. The plaintiffs filed a suit for permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit schedule property to an extent of Ac.3.35 cts. described in plaint schedule which they deciphered as Plot No. A in the suit plan. The defendants resisted the suit. A trial was afforded to them where they adduced both oral and documentary evidence to comprise in the ocular testimony of the 1st plaintiff as P.W.I and two other witnesses as per P.Ws.2 and 3 and defendants 1 and 2 as per D.Ws.1 and 2 and another witness as per D.W 3 and by way of documentary evidence as per Exs.A-1 to A-18 for the plaintiffs and Exs.B-1 to B-3 for the defendants and Exs.X-1 and X-2 were marked as Court documents. Having heard both sides and with the materials before the Court, the learned Principal District Munsif, Parchur held that the plaintiffs are entitled to the relief of permanent injunction and accordingly decreed the suit. In appeal, the learned Subordinate Judge took a contrary view based upon the same materials after hearing both sides and set aside the Judgment and decree of the learned Principal District Munsif and dismissed the suit with costs. Aggrieved by that, this second appeal is preferred.
3. Mr. K. Harinath, the learned Senior Advocate for the appellants has raised the following legal grounds:
The learned Subordinate Judge ignoring the entries in Exs.A-3, A-16, A-17 and A-18 and also Exs.X-1 and X-2 about the extent of the land belonging to the plaintiffs and the defendants was wrong in holding the legal title of the suit property against the plaintiffs which he ought to have presumed by virtue of Section 6 of A.P. (Record of) Rights in Land and Pattadar Pass Books etc., Act, 1971. The inferences of the learned Sub-Judge against the plaintiffs is opposed to the evidence in the case and the admissions of the defendants and their own documents which amount to wrong inferences of evidence amounting to question of law requiring interference in Second Appeal. The learned Sub-Judge had failed to consider certain important circumstances and the documents in favour of the plaintiffs in support of the possession and the legal basis for possession of the suit schedule property. The learned Advocate Sri Subbarao for the respondents has contended that these questions of law will not arise in this case and even assuming that they arise, there is no error in the judgment of the learned Subordinate Judge who has on reassessment of the same materials and evidence came to a different conclusion. As regards the non-consideration of certain documents and circumstances by the learned Subordinate Judge, as pointed out by the learned Advocate for the appellants, the learned Advocate for the respondents contend that the material evidence was properly reassessed by the learned Subordinate Judge and in fact there is the report of the Commissioner showing the circumstance that there has been independent plots in the suit schedule survey number thereby indicating definite possession of each plot by the plaintiffs and defendants who are the members of the same family and the probable extent of the land which is less than what actually the plaintiffs are claiming. He also contends that there are no circumstances justifying interference by this Court regarding the findings of the learned Subordinate Judge.
4. It was a simple suit for injunction based upon a legal fore of the plaintiffs having got the suit property in a partition. The admitted facts are that the Plaintiff No. 1 is the son of Yeleru Anjaneyulu who is the son of Yeleru Kotaiah. The father of the plaintiff is one of the sons of Kotaiah. The husband of Defendant No. 1 is also one of the sons of Kotaiah. It appears that Kotaiah and the husband of Defendant No. 1 and the others have effected partition of the properties in the year 1948 and the plaintiffs claim that the father of the plaintiff got Ac.3.35 cts. in the suit survey No.343 among others. Based upon that, the Plaintiff No. 1 is claiming that his father and himself are in possession of suit schedule property to the extent of Ac.3.35 cts. since then, the defendants have not denied the relationship as above muchless the original extent of the land in suit survey number being Ac.7.35 cts. However, the defendants have denied the plaintiffs' case regarding the extent of the land they got in the partition or their possession by virtue of the same and they set up the case that there were three plots A, B, C in the extent of Ac.7,35 cts. of land in the suit survey number with an equal extent of land of Ac.2.00 and the remaining extent of Ac.1.35 cts. was left over jointly as it was unfit for cultivation and it was being used to drain out the flood water to northern side vagu. They also set up the defence that ultimately Ac.1.35 cts. became saline, but due to the formation of N.S. Canals, as the lands were converted into wet lands, the said land of Ac.1.35 cts. has been divided into three plots and the plot on the southern end of an extent of Ac.0.45 cts. had fallen to the share of defendant No. 1. They contended that the plaintiffs have wrongfully claimed Ac.0.45 cts. extra in the suit schedule property than what they are entitled to.
5. The findings of the Courts below are consistent to the extent about the plaintiffs and defendants having their share in the suit survey number at least to the extent of Ac.2.00 and odd i.e., Ac.2.45 cts. However, the learned Subordinate Judge has disbelieved the case of the plaintiffs regarding their possession of land beyond two acres or at least to the extent of Ac.0.45 cts. over and above their admitted share. This being a second appeal, this Court is not assessing the evidence in the case nor it is a fit case to re-assess the evidence in view of the clear materials on record and in view of the clear findings by both the Courts below.
6. Ex.B-1 the admitted partition deed does not mention the actual extent of the land which fell to the share of the plaintiffs. Mr. Harinath, the learned Advocate is right in saying that each of the sharers would get one third extent in the entire extent of Ac.7.35 cts. However, he has set up an alternative contention that there is no partition by metes and bounds fixing what exactly the boundaries are, which share fell to the share of the plaintiffs and which share fell to the share of the defendants, however, by virtue of subsequent oral partition such an extent of land has been de-limited or enlarged as claimed by the plaintiffs. This Court is not satisfied about such a contention. Barring the testimony of the plaintiff and P.Ws.2 and 3 regarding possession, there is nothing to indicate that there was any subsequent oral partition deviating from the state of affairs under Ex.B-1 partition deed. In regard to the legal basis or title of the plaintiffs, Ex.B-1 positively declares their right to be one third in the suit survey number which cannot be more than Ac.2.45 cts. An alteration of this is a question of fact which should be proved by the plaintiffs regarding which the materials on record should guide us in drawing the inferences. Mr. Harinath is right in pointing out that Ex.A-3 manure card, Ex.A-17 certified copy of register of Records of Rights Book and Ex.A-18 certified copies of No. 2 adangals show the extent of land of the plaintiffs in the suit survey number to be Ac.3.35 cts. He has also pointed out that the extent of the land of the defendants as can be seen from Exs.X-1 and X-2 the manure card and the pass book respectively does not exceed Ac.2.00 showing thereby that they have no rights over any extent in the suit survey number beyond two acres.
7. Now the question would be as to which figure is nearer to the probability about the actual extent of the land which came to be in possession of the parties after Ex.B-1 partition deed. The presumption which Mr. Harinath, the learned Advocate is seeking to draw from Section 6 of A.P. (Record of) Rights in Land and Pattadar Pass Books Act, 1971, that every entry in the pass book shall be presumed to be correct and true unless the contrary is proved is well founded. "Shall presume" in the Evidence Act is a conditional presumption in view of clear category of presumption called conclusive presumption which, calls for no rebuttal. Shall presume is also rebuttable. Exs.A-17 and A-18 also enjoin the presumption Under Section 114 of the Evidence Act. But, in view of Ex.B-1,. the admitted partition deed, such presumptions enjoined in law as above gets rebutted. Possibly, the defendants may be correct in postulating that when each of the sharers get one third, it did not exceed more than Ac.2.00 cts. and the rest of the extent i.e. Ac. 1.35 cts. was either remained joint or was unfit for cultivation to be used either in bits or otherwise by the person entitled to the share. This Court is not in a position to conclude or draw inference as to the question that there was no clear finding by Courts below in this regard. In view of the clear allotment of the shares under Ex.B-1, the presumption under Exs.A-17 and A-18 cannot be taken to continue for the purpose of holding that the plaintiffs have got the legal possession of the suit land to the entire extent including the excess of Ac.1.35 cts. claimed by them. The documents of the defendants may show that they are not in possession of more than two acres only to mean that they may not have the possession in regard to Ac.0.45 cts. of land out of Ac.1.35 cts. of land left over as uncultivable at the time of partition, but it does not mean that plaintiffs have got possession of such extent of Ac.1.35 cts. of land in the suit survey number, more than the share to which they are entitled to under Ex.B-1. If what Mr. Haranath, the learned Advocate points out is correct as an alternative contention that there was no partition by metes and bounds, the case of the plaintiff is still worse that barring the arrangement among the plaintiffs and the defendants to cultivate the particular extent of the land, the land is yet to be divided by metes and bounds to possibly give them more extent than what they understood by them.
8. Mr. Haranath, the learned Advocate is not right in contending that the entries in the Record of Rights register should be taken as the basis to fix the title. Although the entries in the Record of Rights register enjoy the presumption in law that the entries are true unless the contrary is proved and may not be discredited, the records of rights are no records of documents of title. Such a question has been clearly dealt with by the Hon'ble Supreme Court in Nagarpalika, jind v. Jagat Singh and following Nirman Singh v. Lal Rudra Pratap AIR 1926 P.C. 100, it has been held that such documents are more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. In other words, the records of rights are the documents ensuring the person to be made liable to pay the revenue and for no other purpose. However, it may not be hastened to be added that such entries have got corroborative value regarding the possession of a party in regard to an immovable property.
9. With the materials on record and the findings of the Courts below, the question is whether the plaintiffs are in possession of the entire extent of the suit land including Ac.1.35 cts. It is true that Exs.A-3, A-17 and A-18 support such a stand. However, if we examine the totality of the circumstances, it is certain that for the reasons best known to the parties to the partition deed Ex.B-1, a portion of the land must have been left out without use either unfit for cultivation or continued as joint, possibly including Ac,1.35 cts. also. Both plaintiffs and defendants and all the persons who had a right or share in that might be using it for various purposes and not strictly because of their claim or declared title or right to the property. Therefore, even assuming that the plaintiffs are in possession of Ac.1.35 cts. of land more than what they got under the partition deed Ex.B-1, that will not give them any legal basis to file a suit for injunction. Such suit for injunction will be opposed to settled law when the title itself is not established as a legal basis as held in Nagarpalika's case and also in view of the settled law that a co-sharer cannot maintain a suit against the other co-sharer. In this case, it may be that plaintiffs are enjoying the right and interest in regard to the disputed portion of the land along with the other defendants or any other person regarding which the Court cannot and could not have given the relief of permanent injunction. It may also be emphasised that no Court can decide beyond the scope of a suit for permanent injunction and if the parties are entitled for any other relief in regard to the disputed land, such rights in law are open to them to agitate and get such relief but not in a suit for permanent injunction.
10. The indication of the plots found in the suit survey number as per the report of the Commissioner, pointed out by the learned Advocate for the respondents, may only mean that the portions of the lands are being cultivated in plots either for convenience or by virtue of Ex.B-1 but not with a clear indication of the title and enjoyment of the land as claimed by the plaintiffs. At any rate, this Court does not find any substantial question of law which deserves to be considered by this Court in Second Appeal so as to interfere with the Judgment and Decree of the learned Subordiante Judge. Accordingly, the Second Appeal is dismissed, but, in the circumstances, the parties shall bear their own respective costs.