Andhra HC (Pre-Telangana)
Gudapati Seetharamaiah @ Seetharama ... vs State Of A.P. on 20 July, 2005
Equivalent citations: 2006(2)ALD144
JUDGMENT A. Gopal Reddy, J.
1. The unsuccessful plaintiffs, who are the appellants herein, preferred this appeal, aggrieved by the judgment and decree dated 24-8-1989 in O.S. No. 2 of 1989 on the file of the Additional District Judge, Khammam.
2. For the sake of convenience, the parties will be referred to as they are arrayed in the suit.
3. The facts, in nutshell, are as under:
Plaintiffs 1 and 2 are the brothers and the third plaintiff is their sister. The fourth plaintiff is a resident of Nacharam Village. The plaintiffs claim that they are in possession and enjoyment of the land admeasuring Ac.9.23 guntas in Sy.No. 398/2 to 7 (old Sy.Nos. 917 and 918), Ac.7.32 guntas in Sy.No. 503, Ac.4.20 guntas in Sy.No. 503, Ac.2.13 guntas in Sy.No. 413 and Ac. 1.26 guntas in Sy.No. 415 respectively, situated at Nacharam Village. Subsequently, the said lands were mistakenly shown as 'Khariz Khata land'. The third plaintiff was gifted with the land as 'pasupu kumkuma'. The case of the plaintiffs is that their lands were submerged in Bethupalli tank. Since they were not paid any amount, in lieu of compensation, they occupied the Khariz Khata Lands. When they were sought to be evicted, they filed W.P.No. 2796 of 1979 against the defendant and Ors.. It was disposed of on 11-3-1982 with a direction to the plaintiffs to seek relief in a civil Court by way of filing a suit, within a period of three months from that day. Consequently, the plaintiffs filed the above suit against the defendant for declaration of title over their respective lands and for grant of injunction restraining the defendant from interfering with their possession and enjoyment over the suit schedule lands.
4. The defendant filed its written statement contending that the pahanies from 1953 onwards have been verified and the lands in Sy.No. 398/2 to 7 are shown as 'Khariz Khata'. Even at the time of implementation of Khasra Pahani, the first plaintiff did not file any objection nor did he produce any document at the time of conducting enquiry in pursuance of the notice issued under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 (for short "the Act"). In the writ petition also, the plaintiffs have not mentioned that the lands are patta lands and that they were shown by mistake as 'Khariz Khata land', is not correct. The first plaintiff is not entitled to continue in possession of the said land, which is the Government land. He was not entitled to any declaration. It is also contended that on issuance of notices under Section 7 of the Act, the second plaintiff on his behalf and on behalf of plaintiffs 1 and 4 submitted explanation. But, they failed to furnish any documents showing their right or entitlement to continue in possession of the property. After making an enquiry, notices under Section 6 of the Act were also issued to the plaintiffs seeking their eviction from the Government lands. Questioning the same, the plaintiffs filed W.P.No. 2796 of 1979. They also filed W.P.M.P.No. 3439 of 1979 and obtained ex parts interim orders on 6-4-1979. But, the plaintiffs were evicted prior to that date. Again, as the plaintiffs trespassed into the lands of the Government and raised paddy crop, the same were taken into Government custody. The plaintiffs obtained temporary injunction, by suppressing the real facts. The village Nacharam is in schedule area, where the assignment of the Government lands to non-tribals is prohibited vide G.O. Ms. No. 971, dated 7-10-1969. Since the plaintiffs are non-tribals, the lands could not be given in lieu of the alleged submerged lands and therefore, they are not entitled to continue in possession of the Government lands. The averments made in the notice issued under Section 80 C.P.C. are inconsistent with the averments made in the suit, and accordingly prayed for dismissal of the suit.
5. On the strength of the respective pleadings of the parties, the trial Court framed the following issues, for trial.
1. Whether plaintiff Nos. l to 4 are entitled to the declaration prayed for individually, for such lands as pleaded in the plaint ?
2. Whether the plaintiffs are encroachers of land as mentioned in Para-3-A of written statement ?
3. Whether the plaintiffs were duly evicted from the respective lands even by 6-4-1979 that is even by the time of receiving the stay order from the High Court ?
4. Whether the plaintiffs again trespassed into the suit lands ?
5. As non-tribals and as owners of patta lands otherwise, whether the plaintiffs are not entitled for any assignment of lands situate in schedule and what is the effect of G.O. Ms. No. 971, dated 7-10-1969 ?
6. Whether suit notice under Section 80 C.P.C. is defective ?
7. Is the suit bad for mis-joinder of causes of action and parties ?
8. Is the suit in time ?
9. Whether the plaintiffs are entitled for the injunction prayed for ?
10. Is the Court fee paid correct ?
11. Relief ?
6. On behalf of the plaintiffs, P.Ws. 1 to 3 were examined and Exs.A1 to A32 were marked. On behalf of the defendant, the Mandal Revenue Officer, Dammapeta Mandal, was examined as D.W.I and Exs.B1 to B10 were marked.
7. The learned District Judge, on appreciation of oral and documentary evidence available on record, held that:
The case of the plaintiffs is that due to the submergence of their lands in Bethupalli project, they occupied the Government land, in lieu of compensation, and continued in possession and enjoyment of the same and therefore, they should not be evicted from the suit schedule property in a summary manner and also by initiating proceedings under the Act. However, in the notice issued under Ex.A23, it was not mentioned that they were in possession of the properties in view of the submergence of their lands in Bethupalli project. Ex.Al is Murasil letter, said to have been issued by the Palvancha Samsthan. It is in Urdu language. Ex.A2 is its translation. The first plaintiff has not come forward to depose in support of his claim, whereas the second plaintiff was examined as P.W.2, who is not concerned with the said document, to prove that the patta was granted in favour of the first plaintiff. For the first time, they have stated that they were granted patta. In the absence of any evidence let into prove the contents of Ex.Al, the same can be eschewed from consideration. Mere longstanding possession of the plaintiffs over the suit schedule property will not confer any right to continue further in the land and to claim title. When once the lands were shown as 'Khariz Khata' in 1360 Fasli and the same was reflected in Khasra pahani, and as the plaintiffs were non-tribals of the lands situated in the tribal area, they are not entitled to grant any patta nor they could claim any declaration over the suit schedule property. The plaintiffs failed to establish their adverse possession and therefore, they are not entitled to any declaration and accordingly answered issues Nos. l, 2, 3, 4 and 9 against the plaintiffs. It also negatived the issued No. 7 on the ground that there is no common cause of action against the same parties, and hence the suit is not maintainable. It ultimately dismissed the suit.
8. The learned Counsel for the appellants contends that the first plaintiff is claiming patta under Exs.A1 and A2 to A7, whereas plaintiffs 2 to 4 are seeking declaration by virtue of their longstanding possession and as Ex.Al is thirty years old document, the contends of it need not be proved. The learned Counsel further contends that when the second plaintiff, who is none other than the brother of the first plaintiff, has been examined and the documents were proved, the trial Court ought to have accepted that the first plaintiff was recognized as pattedar and is entitled to declaration. According to him, in view of the fact that the plaintiffs are in continuous and uninterrupted possession of the Government land, they are entitled to the relief of declaration. He submits that under Order II Rule 3 C.P.C., the plaintiffs can file a suit with several causes of action against the same defendant, and hence, the finding of the trial Court on the issue of mis-joinder of parties, is liable to be set aside. He further contends that at least plaintiffs 1 and 4 are entitled to a declaration of their title based upon Ex.Al, under which, patta was grated in favour of the first plaintiff and recognized him as pattedar and fourth plaintiff was in possession since last 40 years to the knowledge of the Government. The learned Counsel also submits that the possession of the plaintiffs shows that they are in continuous possession in adverse of the suit schedule property till the date of filing of the suit.
9. He places reliance on a judgment in Anjali Devi v. Swamy Linga Swamy 1985 (3) APLJ 83, wherein it has been held that the doctrine of presumption backwards could be drawn on a given facts and circumstances of the case. In the said case, the appellants therein were continuously and uninterruptedly in possession for more than 12 years preceding the date of the suit. The learned Counsel submits that following the ratio laid down in the above case, as the plaintiffs herein are in adverse possession, they are entitled to the relief of declaration.
10. The learned Government Pleader for appeals contends that as the plaintiffs failed to establish their continuous and uninterrupted possession, they are not entitled to declaration. According to him, on mere filing Ex.Al, it cannot be presumed that the patta was granted in favour of the plaintiffs, particularly, when the lands are in the scheduled area. He submits that the trial Court rightly held that the suit is bad for mis-joinder of different causes of action, for which, single suit is not maintainable and the plaintiffs miserably failed to prove that they are in possession of the suit schedule property. He places reliance on the judgment in Karnataka Board of Wakf v. Government of India . He also contends that the plaintiffs are not entitled to declaration as prayed for, since Ex.Al claiming their adverse possession, was not produced in pursuance of the notice issued under Section 7 of the Act, and in the writ petition also, they have not taken the plea that their lands are patta lands and that the final orders for their eviction were also passed under Section 6 of the Act.
11. In view of the rival contentions urged by both the learned Counsel, the points that emerge for consideration in the present appeal, are hereunder :
(i) Whether the plaintiffs are entitled to declaration of their title and for injunction ?
(ii) Whether the plaintiffs are perfected their title by adverse possession as claimed ?
(iii) Whether the finding of the trial Court, on Issue No. 7 that the suit is bad and not maintainable for mis-joinder of different causes of action, is justified or not ?
12. It is admitted that Ex.Al, which is in Urdu, does not contain any seal. The said document was addressed by the Tahsildar to the Patwari, Nacharam stating that the sanction was accorded to an extent of 8 bighas of land in favour of Khata Nos. 917 and 918 and the same can be implemented in Jama Bandi 1349 Fasli. The said document reveals that the first plaintiff requested to grant "eksal cultivation" in the patta lands and the same was ordered to be implemented. As evident from Ex.A2, initially, the said patta, if any, was granted for eksal cultivation and he was permitted to cultivate for one year. As per Ex.A3, the name of G. Rangaiah was shown as cultivator of Sy.No. 743 of 1346F. As per Ex.A4, the same land was shown as 'Sarkari'. But, in column No. 6, the name of the cultivator was shown as G. Rangaiah. Similarly, in Ex.A5, the name of Seetharamiah was shown as "Kathadar" and survey numbers were shown as Sy.Nos. 917 and 918 (old) and new Sy.Nos. 398/2 to 7. In Ex.A6, which is the certified copy of Sethuvari for the year 1356F, survey number was shown as 398/2 and in column No. 3, it was noted that the land belongs to Sarkari and in Column No. 6, the name of the first plaintiff was shown as cultivator. Ex.A-7-Pavuti Bahi do not indicate any patta granted in favour of the first plaintiff except recording the survey number and the land revenue payable thereon. P.W.I, who is Kamam, stated that if the patta is granted, the same will be implemented and will be known as 'Vasulubaki' and such lands in whose favour, the patta was granted, they will have two numbers old and new. Patta lands will have those two numbers. Sethuvaries are prepared basing on the Vasulubaki Register. Once the lands are termed as Sethuvari, they will not be the Government lands. The teapens are prepared in the year 1346 Fasli, when the bighas were converted into acres and the document shown to him is Vasulubaki. The said document pertains to 135IF in respect of the lands in Sy.Nos. 917 and 918, for that new Sy.Nos. 398/2 to 7 were given to the first plaintiff. Since the said Karnam (P.W.1) is not the Patwari, who sanctioned mutation or implemented the Sethuvari, his evidence is of no use. In the cross-examination, he admitted that Khasra Pahani in the Telangana area was implemented in the year 1954 and it contains complete record of right. The Khasra Pahani was prepared on the Vasulubaki and Sethuvari.
13. Plaintiff No. 2, who was examined as P.W.2, stated that the patta was granted in the name of his father through Ex.Al. The land was cultivate under a nala and wet assessment was levied. Ex.A3 is the C.C. of Vasulubaki pertaining to old Sy.No. 743 and new No. 503 1346F. Based on this, Sethuvari was prepared. He further stated that plaintiff No. 3 was given Ac.4.20 guntas out of Sy.No. 503 towards 'Pasupukumkuma'. He also stated that the land admeasuring Ac.7.32 guntas in Sy.No. 503 is in his possession, whereas the third plaintiff is in possession of Ac.4.20 guntas. In the cross-examination, he admitted that the Khasra came into existence since 1953-54, but he denied that their names were not recorded in the record of rights in respect of the suit schedule land. He also admitted as to the issuance of notice under Section 7 of the Act calling for their explanation. He denied that after issuance of notice under Section 6 of the Act, the Government took over possession of the lands in question from them.
14. P.W.3 in his evidence stated that he is in possession of the land admeasuring Ac.2.13 guntas in Sy.No. 413 and Ac. 1.26 guntas in Sy.No. 415 of Nacharam Village since 1350F till date. In the cross-examination, he admitted about the issuance of notice under the Act and also about his occupation of the said land when the lands were submerged in Bethupalli tank.
15. D.W.I, the Mandal Revenue Officer, clearly stated that from 1953 onwards, the lands were shown as 'Khariz Khata lands' and the plaintiffs are in possession and enjoyment of the land and the records prior to 1953 are not traceable. He also stated that by virtue of longstanding possession of the plaintiffs on the Government land, they are not entitled to the ownership of the said lands. Exs.B7 to BIO, panchanamas, were prepared in his office. In the cross-examination, he admitted about the preparation of Vasulubaki, which contains old survey numbers and corresponding new survey numbers and the Sethuvari contains new survey numbers. He also admitted that there would not be any Sethuvaries on Government lands and they were prepared only for patta lands. He admitted that during the period of H.E.H. Nizam and during 1948-49 also, the patta lands were also described as 'Sarkari lands'. He further admitted that as per the revenue records, the land of the fourth plaintiff along with others was submerged in Bethupalli Tank. He stated that he does not know whether on account of submergence, the fourth plaintiff occupied the suit schedule land and he was in possession of the same since 40 years.
16. Ex.A1 shows that sanction was made to the first plaintiff for eksal cultivation. By mere inadvertence, if the same is reflected continuously in the Sethuvari and Vasulubaki Register, the same will not confer any right on the first plaintiff to claim patta, since it is not assigned permanently. Earlier, a notice under Section 7 of the Act was issued to the plaintiffs, who have no right in the land. Having chosen to file the said document, they have not taken the plea in the writ petition that the patta was granted in their favour and therefore, they cannot be evicted. But, for the first time in Ex.A23, notice issued under Section 80 C.P.C., title of the plaintiffs to the said lands was set up. In the writ petition, it was pleaded that the lands of the plaintiffs were submerged in Bethupalli Tank and as no compensation was paid in respect of those lands, the second plaintiff occupied the Government land. It shows that he is in possession. But, there is no whisper that the patta was granted in favour of the father of the second plaintiff in respect of item No. 2 of the plaint schedule property. But from 1360F onwards, the lands were shown as 'Khariz Khata lands'. The reason for showing the lands as 'Khariz Khata lands' is also evident from Ex.A1, which shows that the patta was granted to the first plaintiff to cultivate the land for one year and thereafter, he cannot have any right to continue in possession. Even if his name was reflected in the possessory column and the Sethuvari, prepared based upon Ex.A1, the first plaintiff did not acquire any pattedar rights over the said lands.
17. So far as item No. 3, plaintiff No. 3 has got an extent of land admeasuring Ac.4-20 guntas from her father towards 'pasupu kumkuma'. The said land was part of Sy.No. 503, which admittedly was shown as Government Khariz Khata land from 1360F onwards. It is admitted that the cist receipts prior to the date were destroyed in the fire accident and therefore, the plaintiffs have not produced the same,
18. It is well settled that Khasra Pahani, which was prepared after following the required procedure under the Telangana Area Land Revenue Act, determines the rights and title of the parties and the same would establish the title of the parties, whose name was recorded as titleholder, over the property in question and shall be presumed to be correct (see , Shikharchand v. D.J.P. Karini Sabha). It is admitted that in the Khasra pahani, under the column 'owner of property', it was recorded, as Government and therefore, the plaintiffs have no right in the suit property. Curiously, the plaintiff not pleaded in the writ petition that they are exercising pattedar rights over the suit property and that it was wrongly mentioned as 'Khariz Khata lands'. In view of the same, the plaintiffs are not entitled to either declaration as the owners of the suit land or to any injunction restraining the true owner, since the proceedings under the Act were initiated and final orders were also passed under Section 6 of the Act.
19. It is a well settled principle that a party claiming adverse possession must prove that his possession is "nee vi, nee clam, nee precario" i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner.
20. The apex Court in Karnataka Board of Wakf v. Government of India (supra), at Para No. 11, categorically held that :
In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But, the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nee clam, nee precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period (See S.M. Karim v. Bibi Sakina, , Parsinni v. Sukhi , and D.N. Venkatarayappa v. State of Karnataka ). Physical fact of exclusive possession and the anumus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse, possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Mahesh Chand Sharma (Dr.) V. Raj Kumari Sharma ).
21. Even according to the first plaintiff, he claims patta under Ex.A1, where in he was granted eksal patta and was permitted to cultivate the said land, on the date, on which, he entered into possession, he knows that the property belongs to the Government and he was granted patta for eksal. Thereafter, he continued his possession, but he never pleaded that he is claiming the said property as its owner. In view of the same, the first plaintiff cannot plead that he acquired title by adverse possession.
22. Coming to plaintiffs 2 to 4, they have stated that they are in possession of the property in question for more than 30 years and in 1987, while issuing notices under Section 7 of the Act they were evicted from the property. In that view of the matter, it is clear that they failed to establish that they have perfected their title by adverse possession.
23. Before adverting to the question as to whether the suit of the plaintiffs is bad for mis-joinder of multifarious causes of action, it is necessary to have a glance at Order II Rule 3 CPC, which reads as under:
Joinder of causes of action :
(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.
24. The first limb of Rule 3 covers, where the plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly, whereas the second limb of Rule 3 postulates that when several plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action.
25. An identical issue came for consideration before the Orissa High Court in Hadu Sahu v. State of Orissa, , wherein, 28 persons filed a suit against the State Government alleging that each of them had acquired prescriptive title by adverse possession to portion of land in their exclusive possession. Each of the plaintiffs set up a claim to a parcel of land, in which, the other plaintiffs were not interested. Under the said circumstances, the Orissa High Court, after placing reliance upon a judgment of Madras High Court in Achi Ready v. Venkatarangacharlu AIR 1926 Mad. 1140, held as follows :
There is no common question of fact. Each plaintiff must establish acquisition of title by adverse possession and that is not common to any other plaintiff, as all of them are not interested in any particular land. Even in the very case, Ext.5 dated 9-94895 might take back one of the plaintiffs to a period of more than 60 years before the suit. But, other plaintiffs, who are not interested in this document, cannot get any advantage out of it. Each plaintiff has separately to prove his own possession for more than 60 years. Clearly therefore in this case, the joinder of all the plaintiffs amounts to mis-joinder. There is also mis-joinder of causes of action. The order of eviction passed against one plaintiff does not serve as a cause of action against another plaintiff in respect of another land.
It was further held that the learned Subordinate Judge took a correct view that the suit is bad on account of multifariousness. However, it was observed that the learned Subordinate Judge should have given the plaintiffs election as to which the single plaintiff would be permitted to continue the suit and which other plaintiffs would file separate suits. Accordingly, the matter was remanded to the trial Court to make election under Order 1 Rule 2 C.P.C., and to proceed in accordance with law thereafter.
26. In the present case, the plaintiffs have not come forward to elect as to which plaintiff would continue the suit and which plaintiffs would file separate suits. Therefore, it is not necessary for this Court to remit the matter to the trial Court, since the finding of the trial Court on issue No. 7 that the suit is bad for mis-joinder of multifariousness, does not suffer from any infirmity.
27. The appeal fails and the same is accordingly dismissed. There shall be no order as to costs.