Telangana High Court
G.Peter vs Sri. G.Allen on 23 August, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
SECOND APPEAL Nos.94 OF 2009, 1332 1336, 1357 of 2008
COMMON JUDGMENT:
Aggrieved by the Judgment and Decree dated 20.10.2008 in A.S.No.8 of 2007 on the file of learned Senior Civil Judge at Vikarabad District, these Second Appeals are filed by plaintiff, defendant No.3, defendant Nos.8, 10 and 11 and defendant No.9 respectively.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.
3. The appellant in S.A.No.94 of 2003 i.e., the sole plaintiff has filed O.S.No.54 of 1995 before the learned Junior Civil Judge, Chevella for partition and separate possession in respect of suit schedule 'A' and 'B' schedule properties against defendant Nos.1 to 11. The suit was preliminarily decreed on 05.01.2007. Aggrieved by the same, defendant Nos.4 to 7 have preferred A.S.No.8 of 2007 on the file of learned Senior Civil Judge, Vikarabad, wherein the appeal was partly allowed by setting aside the Judgment and Decree passed in O.S.No.54 of 1995 to the extent of 'A' schedule property. Aggrieved by the judgment passed by the learned Senior Civil Judge, Vikarabad, 2 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 the sole plaintiff, defendant No.3, defendant Nos.8, 10, 11 and defendant No.9 have preferred the present Second Appeals to set aside the impugned judgment passed by the learned Senior Civil Judge, Vikarabad and confirm the judgment passed by the learned Junior Civil Judge, Chevella.
4. Before going into the merits of the case, it is appropriate to know the contentions of the respective parties as can be seen from the pleadings placed before the learned Trial Court by both the parties in O.S.No.54 of 1995.
5. The plaintiff filed O.S.No.54 of 1995 with the following plaint averments:
a) The plaintiff, defendant Nos.1 and 3 and husband of defendant No.2 by name G. Elia are real brothers. Their father Gunjuru Venkaiah was the absolute owner, pattedar and possessor of agricultural lands bearing sy.No.27 admeasuring Ac.5.39 guntas, Sy.No.77 admeasuring Ac.16.06 guntas total admeasuring Ac.22.05 guntas in residential house situated at Kanakamamidi village, Moinabad Mandal, Ranga Reddy District. Gunjuru Venkaiah died in the year 1976 leaving behind the plaintiff, defendant Nos.1 and 3 and husband of defendant No.2 by name G. Elia as his legal heirs and 3 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 successors.
b) Thereafter, the plaintiff and his brothers were in joint possession and enjoyment of the suit properties. Revenue authorities granted succession and mutation of patta of schedule "A" properties and implemented the same in paisal patti for the year 1978-79. The second son of G. Venkaiah i.e., G. Elia died in the year 1989 leaving behind him, his widow Smt. G. Rajamma, who is defendant No.2 as his legal heir.
c) Defendant No.1 having fabricated unregistered sale document purported to the year of 1953 initiated proceedings before the MRO, Moinabad for validation falsely claiming that he purchased suit schedule property. After due enquiry, M.R.O. rejected his claim file order dated 26.10.1994 in proceedings No.B/5048/1989. In the presence of elders, he demanded the defendants to effect partition of the suit schedule properties into four equal shares. The defendant No.1 is making attempts to alienate the suit schedule property to third parties. Hence, the plaintiff filed the suit for partition of suit schedule 'A' and 'B' schedule properties into four equal shares and for allotment of one such share to the plaintiff.
6. During the pendency of the suit, defendant No.1 died and 4 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 thereby his legal representatives were brought on record as defendant Nos.4 to 6, which filed their written statement and the brief averments of which are as under:
a) G. Venkaiah was an agricultural coolie having four sons and four daughters. Defendant No.1 became a teacher in Methodist Boys High School, Abids and with his earnings prior to 1950 itself a stationary shop was established in the name of G. Harris and Sons. The wife of defendant No.1 also worked as Nurse in Nizam palace. With the earnings of wife and husband, they purchased suit 'A' schedule property through an unregistered sale agreement on 22.05.1953 from Konda Satyanarayana Reddy for a sum of Rs.1800/-. Konda Satyanarayana also gave an affidavit before the revenue authorities stating that the suit 'A' schedule property was purchased by G. Harris. Defendant No.1 used to cultivate the lands and in possession and enjoyment of the suit 'A' schedule property.
b) The grandfather of these defendants passed away in the year 1976 leaving behind plaintiff, defendant No.1, husband of defendant No.2, defendant No.3 and defendant nos.8 to 11.
Plaint 'A' schedule property is the self acquired property of G. 5 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 Harris i.e., defendant No.1. The plaintiff is not having any cause of action against these defendants and suit valuation and court fee paid thereon is not correct and thus, prayed to dismiss the suit.
7. Defendant No.7, who is another son of defendant No.1, filed memo adopting the written statement filed by defendant Nos.4 to 6.
8. Defendant Nos.8 to 11, who are the daughters of late G. Venkaiah, were impleaded as parties to the suit by virtue of an order dated 08.10.1989 in I.A.No.43 of 1998 and they filed their written statement, the brief averments of which are as under:
a) Late G. Venkaiah, who was the owner and possessor of plaint 'A' and 'B' schedule properties, died in the year 1976 leaving behind four sons and four daughters i.e., plaintiff, defendant Nos.1, 3, husband defendant No.2 and defendant Nos.8 to 11. The schedule properties are self acquired properties of G. Venkaiah. After the death of G. Venkaiah, the defendants along with the plaintiff are in joint possession and enjoyment of schedule properties. A succession is granted in respect of suit 'A' schedule property by MRO and the same was implemented in the year 1978-79. Paisal Pathi is absolutely 6 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 false. It seems by colluding with revenue officials, succession order was obtained and as a matter of fact defendant Nos.8 to 11, who are daughters of G. Venkaiah also succeeded to the suit schedule properties being the legal heirs but the MRO without enquiring the matter properly passed the alleged succession orders without any notice to the defendant Nos.8 to 11, as such, the alleged orders have no value and not binding on these defendants.
b) Defendant Nos.8 to 11 being daughters of G. Venkaiah are also entitled for their legitimate share i.e., 1/8th share to each of these defendants. Plaintiff and defendant Nos.1 to 3 filed the above collusive suit with a view to deprive the legitimate share of these defendants. The plaintiff never approached these defendants nor demanded for any partition and the alleged date of cause of action is only an imaginary one for filing of the suit.
c) The valuation made by the plaintiff is incorrect and in fact the suit lands are worth more than Rs.50,000/- per acre and thus, prayed to dismiss the suit.
9. Based on the above pleadings, the learned trial Court framed as many as five issues including two additional issues, 7 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 which are as under:
"1. Whether the plaintiff is entitled for partition of suit schedule property as prayed for?
2. Whether the plaintiff is entitled to 1/4th share claimed in the plaint?
3. To what relief?
4. Whether Exs.B1 to B3 are not admissible on the ground of fabricated one?
5. Whether Ex.X-5 is admissible or not, by way of mode of proof?"
10. On behalf of plaintiff, PWs 1 and 2 were examined and got marked Exs.A1 to A19. On behalf of defendants, DWs 1 to 4 were examined and got marked Exs.B1 to B8. On behalf of Court, Exs.X1 to X6 were marked. After considering the rival contentions, the learned trial Court passed a preliminary decree entitling plaintiff, legal heirs of defendant No.1 i.e., defendant Nos.4 to 7, defendant No.2, Defendant No.3, defendant Nos.8 to 11 to 1/8th share each. Aggrieved by the same, the legal representatives of defendant No.1 i.e., defendant Nos.4 to 7 have filed A.S.No.8 of 2007 on the file of learned Senior Civil Judge, Vikarabad, wherein the preliminary decree passed by the learned Junior Civil Judge, Chevella in O.S.No.54/1995 was set aside to the extent of suit 'A' schedule property. Aggrieved 8 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 by the same, the sole plaintiff, defendant No.3, defendant Nos.8, 10, 11 and defendant No.9 have preferred the present Second Appeals to set aside the impugned judgment passed by the learned Senior Civil Judge, Vikarabad and confirm the judgment passed by the learned Junior Civil Judge, Chevella.
11. Substantial questions of law raised in S.A.No.94 of 2003 are as under:
a) Whether the appellate court is justified in relying on Ex.B1, which is an unregistered deed for the purpose of rebutting the presumption to be drawn on the basis of Ex.A1.
b) In view of the finding of the learned Junior Civil Judge that Ex.B1 is not admissible in evidence whether the Appellate Court is justified in coming to a conclusion that the suit schedule property is not a joint family property.
c) The findings of the Appellate Court to the effect that the suit schedule property is the self acquired property of the father of the defendant Nos.4 to 7 is perverse and contrary to the material on record.
12. Substantial questions of law raised in S.A.No.1332 of 2008 are as under:
a) The lower appellate court failed to see that late Venkayya had perfected his title by adverse 9 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 possession from 1953 onwards which is evident from Faisalpatti of 1954 -1955. Late Venkayya has been shown as pattadar in pahani, which is nothing but title to the land has been recognized under Section 2 (11) of A.P. (Telangana Area) Land Revenue Act, 1917 Fasli.
b) The appellant and respondent No.1 and LRs of late Harris and Elia also perfected their title through their father Venkayya.
c) The lower appellate court erred in reversing the finding of the Trial Court by holding that the schedule property is the self acquired property of defendant No.1, which is totally devoid of merits.
d) The lower appellate Court ought to have seen that under Ex.A2 Pahani 1988-89, the respective shares of four brothers were shown and recorded in the revenue records, where equal shares are given to brothers. The conduct of G. Harris also amounts to estoppel and operates against him.
e) The lower appellate court failed to see that the alleged agreement of sale Ex.B1, cannot be admitted as document as it is suffering from the following infirmities.
f) The purchaser name is not disclosed
g) The agreement not witnessed by any person.
10
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sa_94_2009, 1332, 1336 & 1357_2008
h) The document is unregistered.
i) The document does not contain any schedule
or boundaries or survey numbers.
j) The time fixed for registration i.e., 8 months
lapsed long back and any suit based on the said document is barred by limitation.
k) The lower appellate court grossly erred in relying on Ex.B1 an unregistered and void sale agreement inadmissible in evidence by virtue of the prohibition contained in Section 54 of the Transfer of Property Act, 17 (b) and 49 of the Registration Act.
l) The lower appellate court erred in relying on the declaration of Konda Satyanarayana Reddy filed before MRO which cannot be treated as conferring title, when the agreement of sale is unregistered.
13. Substantial questions of law raised in S.A.No.1336 of 2008 are as under:
a) Whether the document whose recitals do not contain the name of the purchaser, seller, consideration, boundaries of the schedule property and the factum of delivery of possession of the property which constitutes the essential ingredients of sale can be termed as sale deed under the Transfer of Property Act, and basing upon such documents, whether title to property can be granted?11
MGP, J sa_94_2009, 1332, 1336 & 1357_2008
b) Whether one son of a person, who died intestate can exclude his own brothers and sisters for succeeding to the property of their father under Indian Succession Act, 1925?
14. Substantial questions of law raised in S.A.No.1357 of 2008 are as under:
a) That in a partition suit the burden of proving the fact as to whether the suit schedule properties are self acquired properties of the defendant lies on the defendant or the plaintiff?
b) That a Court acting in its original jurisdiction
can record a finding on presumptions and
assumptions when the said finding is contrary to the pleadings or not supported by any pleading?
c) Whether the entries in Khasra Pahani can be overlooked on the basis of presumptions and assumptions?
d) Whether the Ex.B1 can be admitted in evidence for the purpose of deciding the title for want of registration as required under Section 17 of the Registration Act.?
e) The appellate Court erred in not considering the fact that till the death of late Sri G. Venkaiah, the entries in the revenue records reflected that he is the pattedar?12
MGP, J sa_94_2009, 1332, 1336 & 1357_2008
f) Whether Ex.B1 was proved in accordance with the provision of the Indian Evidence Act, 1872?
g) Whether the appellate Court was justified in reversing the judgment of the trial Court without even discussing the oral evidence on record?
h) Whether Ex.B1 can be treated as Sale Deed even though it does not satisfy the requirement as contemplated under Section 5 of the Transfer of Property Act, 1882?
i) Whether the appellate Court was justified in not deciding the issue of admissibility and genuineness of Exs.B1 to B3 even though a specific issue was framed and decided by the trial Court?
15. Heard both sides and perused the record including the grounds of Appeal.
16. As can be seen from the record, most of the substantial questions of law raised by the appellants are with regard to documents relied upon by the defendant No.1 and his legal heirs. There is no dispute with regard to the relationship between the parties. Though there are several parties in the suit, they can be divided into two branches i.e., one branch (defendant No.1 and his legal heirs) claiming that suit 'A' schedule property is the self acquired property of defendant 13 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 No.1 and the other branch (plaintiff, defendant No.2, defendant No.3, defendant Nos.8 to 11 and their respective legal heirs) claiming that suit 'A' schedule property is the self acquired property of late G. Venkaiah. There is no dispute with regard to the preliminary decree passed by the learned Trial Court in respect of partition of suit 'B' schedule property between the parties. Thus, we are only concerned with suit 'A' schedule property in these appeals. Hence, now the only point to be adjudicated in these appeals is whether suit 'A' schedule property is self acquired property of defendant No.1 or the self acquired property of late G. Venkaiah.
17. The crucial documents to resolve the above dispute between the parties are Ex.A1 and Ex.B1. The plaintiff relied upon Ex.A1 Khasra Pahani for the year 1954-55 to establish that late G. Venkaiah is the owner and possessor of suit 'A' schedule property. On the other hand, defendant No.1 relied upon Ex.B1 unregistered sale agreement to show that defendant No.1 purchased the suit schedule property from Konda Satyanarayana.
18. It is the contention of the plaintiff that Ex.B1, which is an unregistered document, cannot be marked in evidence and even 14 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 if marked in evidence by mistake, could not be acted upon. In this connection, reliance is placed on a decision in Krishnakumari v. K. Suresh Kumar 1, wherein the High Court for the State of Karnataka at Bengaluru observed that there is a complete and express bar under sub-section (1-A) of Section 17, which requires that, in such agreement whereby physical possession of the property is delivered, it would require to be registered compulsorily. Further, it is the contention of the plaintiff that immovable property worth more than Rs.100/- has to be through registered documents and in this regard, reliance is placed on decision of High Court of Madras in K. Narayanaswamy Pillai v. Smt. Kannamal 2 and also the decision of High Court of Karnataka in Shrishail v. Tippawwa and others 3. Learned counsel for the plaintiff while relying upon a decision of the Honourable Supreme Court in Suraj Lamp Industries Private Limited v. State of Haryana 4 submitted that an Agreement of sale or AGPA does not confer title over a property. Learned counsel for the plaintiff further relied upon a decision in K. Seetharama Reddy and another 1 MANU/KA/0736/0015 2 2014 SCC Online Mad 1260 3 MANU/KA/2174/20174 4 MANU/SC/1222/2011 15 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 v. Haasan Ali Khan and others 5, wherein it was observed by the High Court for the erstwhile State of Andhra Pradesh that under Section 5-A of the A.P. right in Land and Pattadar Pass Books Act, 1971, an agreement of sale simplicitor is not enough for regularisation of the document under Section 5-A of the said Act. A similar view was taken by High court for the State of in Makhala Kotilingam by LRs v. Joint Collector, R.R. District 6. In Rangammal v. Kuppuswami and another 7 the Honourable Supreme Court observed that the burden of proving a fact always lies upon the person who asserts it and until such burden is discharged, the other party is not required to be called upon to prove his case.
19. There is absolutely no doubt in the principles laid down in the above said decisions. It is the plaintiff, who has approached the Court for partition of the properties claiming that the suit schedule properties as joint family properties. It is not the defendant No.1, who has filed the suit for declaration of his title over the suit schedule 'A' property. Since it is a suit brought up by the plaintiff for partition, the burden lies upon him to establish that suit 'A' schedule property is joint family 5 2002 SCC Online AP 1036 6 2005 (2) ALD 838 7 (2011) 12 Supreme Court Cases 220 16 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 property. A proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But wherein if it is established that the family possessed some joint property, which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
20. The Honourable Supreme Court in Bhagwan Dayal v. Reoti Devi, Shrinivas Krishnarao Kango v. Narayan Devji Kango 8 and D.S. Lakshmaiah v. V. Balasubramanyam 9, observed that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims 8 (1955) 1 SCR 1 9 (2003) 10 SCC 310 17 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. Therefore, the law is well settled that the burden lies upon the person, who alleges the existence of the Hindu undivided family to prove the same, and if the persons so asserting proves that there was no nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
21. In the present case, the plaintiff asserts that suit 'A' schedule property is self acquired property of G. Venkaiah and after the demise of his father, suit 'A' schedule property is inherited by the descendants of G. Venkaiah. In order to establish the same, the only document, which is being relied upon by the plaintiff is Ex.A1 Khasra Pahani for the year 1954-
55. At this juncture, learned counsel for the defendant Nos.4 to 7 relied upon a decision in Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (dead) through legal 18 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 representatives and others 10 wherein the Honourable Supreme Court observed that revenue record does not confer title to the property nor day they have any presumptive value on the title. In Union of India and others v. Vasavi Cooperative Housing Society Limited and others 11 the Honourable Supreme Court observed as under:
"This Court in several judgments has held that the revenue records do not confer title. In Corpn. of the City of Bangalore v. M. Papaiah this Court held that:
"5. .... It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law."
22. However, in Joint Collector Ranga Reddy v. D. Narsing Rao 12 the Honourable Supreme Court observed that Khasra Pahani is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55 and as per Regulation No.13 any entry in the said record of rights shall be presumed to be true until the contrary is proved. In the 2nd edition (1997) of "The Law Lexicon" by P.Ramantha Aiyer, Khasra is described as register recording the incidents of tenure and is a historical record and that it would serve the purpose of a deed of title, when there is no other title deed. In G. 10 AIR 2021 Supreme Court 4739 11 (2014) 2 Supreme Court Cases 269 12 MANU/SC/0024/2015 19 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 Satyanarayana v. Government of Andhra Pradesh 13 the High Court for the erstwhile State of Andhra Pradesh observed as under:
"From the lengthy discussion on the land tenures undertaken hereinbefore, it could be deduced that the genesis of ones title is traceable to his possession. A registered occupant of the land, both under the ryotwari tenure and also under the estates, is recognised as a person holding rights over the land. Subject to payment of land revenue till the land is transferred to another person, a registered occupant was conferred with the right of selling the land to any third party without restrictions. Thus, the recognised possession can be said to be the source of a persons title. The possession of a person is reflected in the records. As noticed earlier, the A-Register/Diglot in Madras Presidency and the Sethwar in Telangana Area was the mother of all the Registers. Though the primary intention of preparing this Register was to classify the lands according to the soil and potentiality and assess the revenue, recording the names of the persons in occupation was an equally important object in preparing this Register, for, without recording the names of the persons in occupation, the Government will not be able to collect revenue. All the revenue records such as Registers A to E and monthly and annual Accounts No.1 to 4 and No.10 Accounts in Andhra area and Wasool Baqui, Khasra Pahani, Pahani Patrik, Choufasla, Faisal patti etc., discussed hereinbefore, in Telangana Area are based on the basic register of Diglot/Sethwar. Therefore, if a persons name is recorded as an occupant or pattadar in these records, a necessary presumption would arise in his favour or in favour of the persons who claim through him that he holds title to the land. In case of a dispute between two private parties, this presumption can be rebutted by the rival claimant by producing better evidence, such as subsequent partitions, mutation in the revenue record and registered sale transactions etc. In many cases, after preparation of Diglot/Sethwar, changes in ownership of land may occur. In such cases, a person who sets up rival claim must be able to show that either he or his predecessor-in-title derived right through sale deeds supported by entries in revenue record."
23. Further, in Shikharchand Jain v. Digamber Jain Praband Karini Sabha and others 14 the Honourable Supreme Court observed that Khasra is a record of right according to Section 45 (2) of the Central Provinces Land Revenue Act, 1917 and Section 80 (3) of that Act provides that entries in a record of right shall be presumed to be 13 MANU/AP/0431/2014 14 (1974) 1 Supreme Court Cases 675 20 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 correct unless the contrary is shown. This provision raises a presumption of correctness of Khasra entries. In Mylaram Lachaiah and others v. Nafeezunnisa Begum and another 15 the High Court for the erstwhile State of Andhra Pradesh observed that once it is held that Khasra pahani of which the correction was sought by the 1st respondent is the record of rights prepared under the regulation, the Collector under Section 15 (2) of the Regulation has the right to correct the entries made in the record of rights. In Veera Macheneni Ranga Rao v. State of A.P. 16 this Court observed as under:
"As per the ratio laid down in G.Satyanarayana case (4 supra) while dealing with the Telangana Area Land Census Rules, 1954, the erstwhile High Court of Andhra Pradesh held at para No.83 as under:
83. These rules were made under Section 97 of the Tenancy Act. Under these Rules, land census, as defined by Rule 2(f) of the Rules, was taken up by the Government. The important record i.e., Khasra Pahani is a document prepared under these Rules. Rules 8 to 13 speak of provisional Khasra Pahani and Rule 14 speaks of fair copy of Khasra Pahani. The said record is an important record and entry as pattadar in the same would confer absolute title over the land occupied."
24. In view of the principle laid down in the above said decisions, it is clear that a Khasra Pahani would serve the purpose of a deed of title, when there is no other title deed and that entries in a record of right shall be presumed to be correct 15 (1972) ILR 652 16 (2021) 09 TEL CK 0063 21 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 unless the contrary is shown. In Partap Singh (dead) through legal representatives and others v. Shiv Ram (dead through legal representatives 17 the Honourable Supreme Court observed that the presumption of truth attached to the record of rights can be rebutted only if there is a fraud in the entry or the entry was surreptitiously made or that prescribed procedure was not followed. It was further observed that it will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-a-vis documentary evidence is at a much weaker level.
25. The plaintiff, who was examined as PW1, deposed that suit schedule properties are self acquired properties of his late father having been acquired from one Satyanarayana Reddy. But as seen from Ex.A1 Khasra Pahani, the father of PW1 was shown as occupier of the suit 'A' schedule property but not as purchaser of suit 'A' schedule property. As per the admission of PW1, Konda Satyanarayana Reddy is the original pattedar of suit 'A' schedule property. Further, the person from whom the father of PW1 alleged to have purchased suit 'A' schedule property i.e., Konda Satyanarayana Reddy declared in the 17 (2010) 11 Supreme Court Cases 242 22 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 proceedings before the Mandal Revenue Officer that he alienated suit 'A' schedule property to defendant No.1. Though PW1 deposed that his father purchased the suit 'A' schedule property from one Satyanarayana Reddy, he failed to adduce any evidence as to when (date/month/year) the said land was purchased, what was the sale consideration amount involved in the said transaction and what was the mode of acquisition etc. If at all father of PW1 purchased the suit 'A' schedule property from Satyanarayana Reddy, there could have been some material under which the sale transaction took place between PW1 and Satyanarayana Reddy. PW1 pleaded ignorance about execution of any document at the time of purchase of suit 'A' schedule property.
26. It is to be observed that column No.14 of a Khasra Pahani shall reveal the way in which the occupant in column No.13 came to hold the land. In the present case, as can be seen from Ex.A1, column No. 14 discloses that G. Venkaiah is the pattedar. There is no mention as to how he became pattedar of the said land. When G. Venkaiah came into possession of the said land by way of purchase from the original pattedar, then column No. 14 of Ex.A1 ought to have revealed that G. Venkaiah came to hold the land as 'purchaser' but not as 23 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 'pattedar'. As per the instructions issued by the Board of Revenue (Land Reforms), care must be taken to show how the occupant's right is derived from pattedar. The transactions of sale, gift, partition etc., which might have taken place before the right finally devolved upon the occupant of column No. 13 should be indicated. But in the present case, there is no indication or mention either shortly or briefly as to how G. Venkaiah came to hold the land from the original pattedar. In fact, G. Venkaiah, himself was shown as pattedar at column No.14. Further, entry should show whether the transaction is covered by a registered or an unregistered document. The names of persons from whom the right is derived and the amount of consideration paid should also be indicated. If the ownership of a certain land changes, the name of previous owner may be cancelled by drawing vertical parallel lines across the entry and the name of new owner shall be written below it. In the present case, there is no mention as to how the sale transaction took place between original pattadar Konda Satyanarayana Reddy and G. Venkaiah and as to what is the sale consideration for the said transaction. Ex.A1 does not even disclose the name of the vendor from whom G. Venkaiah alleged to have purchased the suit 'A' schedule property. 24
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27. In case, where the right or title cannot be ascertained by production of any document, but where the land is undisputedly in possession of the occupant, the words 'by long standing wahiwat or usage' or 'title not known' shall be added. In the case on hand, at one instance it is being contended that the sale was oral and at another instance it is being contended that the sale was by way of registered document and moreover no material is filed on behalf of the plaintiff to any extent to show that G. Venkaiah purchased the suit 'A' schedule property from Konda Satyanarayana Reddy, who is the original pattedar. It is also to be noted that if there are any oral transactions, special care is needed to be taken because such oral transactions can only be recognised if clearly and undisputedly admitted by all parties concerned specially by the person whose right is adversely affected. In such cases, the words 'by oral agreement' should be written. In the present case, the parties concerned, especially the person, whose right is adversely affected, is not admitting the sale. Even for the sake of arguments, if such interested person has agreed, there is no mention of "by oral agreement" in Ex.A1 Khasra Pahani to establish that a sale took place orally between G. Venkaiah and Konda Satyanarayana Reddy, who is the original pattedar. 25
MGP, J sa_94_2009, 1332, 1336 & 1357_2008
28. On a careful perusal of Ex.A1 Khasra Pahani, it does not disclose most of the details as per the prescribed procedure. Except the name of pattedar, extent, survey number, nature of land, most of the columns are kept blank. In view of the above facts and circumstances, any amount of suspicion arises about the genuineness of Ex.A1, more particularly, when the plaintiff and his other brothers failed to establish as to how their father acquired the suit 'A' schedule property. It appears that the said Khasra Pahani might have been prepared without following the due procedure prescribed under the Act without even inspecting the schedule land by the concerned officials.
29. Except filing of revenue records, plaintiff did not file any other document to establish that the suit 'A' schedule property is self acquired property of his father. It is the contention of the plaintiff that the names of plaintiff, husband of defendant No.2, defendant No.3 were recorded as pattedars and possessor of plaint 'A' schedule property by virtue of the orders passed by the MRO, Moinabad in the year 1989 on the ground that plaintiff, husband of defendant No.2, defendant No.3 being legal representatives of their father G.Venkaiah have their respective shares in suit schedule 'A' property. If such is the case, then the name of defendant No.1, who is one of the sons of G. 26 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 Venkaiah is also liable to be entered in the revenue records in respect of property held by G. Venkaiah. Admittedly defendant No.1 was not even served with any notice as required under the A.P. ROR Act in the said proceedings before the MRO, Moinabad, which is against one of the prime principles of 'audi alteram pattm".
30. Though the application of defendant No.1 for regularisation of unregistered sale deed and updation of his name in records vide proceedings No.B/5048/1989 was rejected, the defendant No.1 preferred an appeal before the Revenue Divisional Officer, Chevella and accordingly the matter was remanded to the Mandal Revenue Officer, Moinabad for conducting a detailed enquiry.
31. The cross examination of PW1 conducted on 07.08.2003 by learned counsel for defendant Nos.4 to 7 discloses that PW1 knew the fact of purchase of suit 'A' schedule property by his father from Konda Satyanarayana Reddy prior to 1953. But in the cross examination of PW1 conducted on 22.01.2004 by learned counsel for defendant Nos.4 to 7, PW1 deposed that his father purchased the plaint 'A' schedule property from K. Sathyanarayana Reddy in the year 1953. At one point of time 27 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 PW1 deposed that his father cultivated the lands of Konda Satyanarayana Reddy. There is no clarity as to whether father of PW1 has cultivated the lands of Konda Satyanarayana Reddy on lease or purchased the lands from Konda Satyanarayana Reddy. Thus, the very own versions of PW1 on different dates of his cross examination are contradicting with each other. In Ramesh Kumar and another v. Furu Ram and another 18, the Honourable Supreme Court observed that it is well settled that no amount of evidence contrary to the pleadings can be relied on or accepted. It was further observed that different versions clearly demonstrate fraud and misrepresentation.
32. PW1 is aware that from 1980-86 the name of defendant No.1 is entered in the revenue records as pattadar. But PW1 along with husband of defendant No.2 and defendant No.3 filed application before the ROR authority in the year 1988-89 during jamabandi of Kanakamamidi Village asking as to why their names were not entered in the revenue records. There is no explanation from plaintiff, as to what prevented him from taking steps immediately against entering the name of defendant No.1 in the revenue records in respect of suit 'A' 18 (2011) 8 Supreme Court Cases 613 28 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 schedule property. PW1 admitted that he has not filed any written application for mutation of their names in the revenue records. If entering the name of defendant No.1 in the revenue records as pattadar from 1980-86 in respect of suit 'A' schedule property is illegal as per the version of PW1, then certainly PW1 alleging to have share in suit 'A' schedule property, would have filed an application for mutation of his names and names of other defendants in revenue records.
33. Defendant No.10, who is sailing with plaintiff, was examined as DW1 and she gone to the extent of deposing that there is a document to establish that plaint 'A' schedule property belongs to his father having been purchased under registered sale deed from Konda Satyanarayana. But the plaintiff contends that the sale of suit 'A' schedule property took place between G. Venkaiah and Konda Satyanarayana under oral agreement. It is the contention of the plaintiff that the statements of Konda Satyanarayana and others before the Mandal Revenue Officer cannot be taken into consideration as the said statements are not admissible as per the provisions of Evidence Act. In Partap Singh's case (supra) the Honourable Supreme Court observed as under:
"The proceedings before the Revenue Officer for correction 29 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 of revenue record are summary in nature. The statements recorded by the Revenue Officer during the proceedings for correction of revenue record are not per se admissible in evidence. May be the evidence of the witnesses could be used to confront the witness being a previous statement if such a statement is made on oath. Therefore, the reference of corrections of Khasra girdawari proceedings is wholly unwarranted when such entries are not proved to be incorrect."
34. In general, the reason for not considering the statements recorded before the Mandal Revenue Officer, Moinabad is that the said statements will be recorded without administering oath and the said statements will not be subjected to cross examination. It is not the case of the plaintiff and other defendants that they are not aware of the proceedings before the Mandal Revenue Officer, Moinabad. The evidence of PW1 discloses that though he and defendant No.3 participated in the proceedings, they did not avail an opportunity to engage an advocate to contest the said proceedings. The statements of Konda Satyanarayana, Mallamma, Ramaiah and Veeraiah were recorded before the Mandal Revenue Officer, Moinabad. The defendant Nos.4 to 7 got examined one P. Narayana as DW3, who was the then Mandal Revenue Officer, Moinabad, wherein the original pattadar Konda Satayanarayana Reddy gave statement under Ex.X2. DW3 deposed that Ex.X2 statement was given by Konda Satyanarayana Reddy before him and the 30 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 same was recorded by him in his own hand writing and similarly he has recorded the statement of Mallamma, Veeraiah, Ramaiah under Ex.X5. Though plaintiff contended that Exs.X2 and X5 cannot be considered as admissible evidence, by considering the evidence of DW3, it can be said that Exs.X2 and X5 are genuine. Through this witness defendant Nos.4 to 7 intended to prove that defendant No.1 has filed an application for regularisation of agreement sale under Section 5-A of the ROR Act. At the cost of repetition, it is made it clear that this court is not here to decide the title or ownership of defendant No.1 over suit 'A' schedule property. The application of defendant No.1 for regularisation of agreement of sale was filed before the MRO, Moinabad and the said application was rejected and aggrieved by the same, defendant No.1 preferred an appeal before the Revenue Divisional Officer, wherein the matter was remanded back to Mandal Revenue Officer, Moinabad for deciding the matter afresh based on the record. However, this Court has no jurisdiction to make comment on the above said aspects, more particularly in a suit filed by the plaintiff for partition.
35. According to the evidence of plaintiff/PW1, during Jamabandi of Kanakamamidi, Konda Satyanarayana made a 31 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 statement to the effect that since G.Venkaiah died, the land is to be given to his four sons and based on the said statement the names of four sons of G. Venkaiah were entered in revenue records. But surprisingly, the plaintiff failed to produce the said statement alleged to have been given by Konda Satyanarayana before the Mandal Revenue Officer, Moinabad. It is the contention of the plaintiff that after recording the statement of K. Satyanarayana Reddy, their names were entered and at that time defendant No.1 was not called. In Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal and others 19 the High Court for erstwhile State of Andhra Pradesh observed that the language of Form-VIII in which the notice is required to be published cannot control the interpretation of the substantive provision contained in Section 5(3) , which, as mentioned above, casts a duty on the recording authority to issue notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the proposed amendment. In the present case, though defendant No.1 has interest over suit schedule 'A' property, notice was not issued to him before entering the names of plaintiff and his other brothers in the revenue records 19 AIR 2008 Andhra Pradesh 15 32 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 in respect of suit schedule 'A' property, which is nothing but violation of principles of natural justice. On the other hand, the defendant No.1 could produce the statement under Ex.X2 given by original pattadar of plaint 'A' schedule property i.e., Konda Satyanarayana before the Mandal Revenue Officer, Moinabad, wherein it was stated that he alienated plaint 'A' schedule property to defendant No.1 for a sale consideration of Rs.1800/-
36. In the present case, despite participating in the proceedings before the Mandal Revenue Officer, Moinabad, the plaintiff failed to adduce any material to show that the statement given by Konda Satyanarayana under Ex.X2 is not true. Though Exs.X2 and X5 cannot be considered as substantial evidence, they can be considered for corroborating or confronting it to the witnesses to elicit certain information. Though the plaintiff contended that they did not get any opportunity to deny the statement given by Konda Satyanarayana under Ex.X2, the plaintiff got addressed a letter to the Mandal Revenue Officer, Moinabad under Ex.X1 not to consider the statement of Konda Satyanarayana. Though plaintiff/PW1 admitted in his initial part of cross examination that he does not know whether K. Satyanarayana Reddy gave any evidence before the MRO stating that he has sold the 33 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 property to Defendant No.1 for Rs.1800/-, when PW1 was confronted with statement of K. Satyanarayana Reddy under Ex.X2, he admitted that in response to Ex.X2 he along with defendant No.3 submitted Ex.X1 to the Mandal Revenue Officer, Moinabad not to consider Ex.X2. Thus, it cannot be said that plaintiff was not having an opportunity to deny the statement given by Konda Satyanarayana under Ex.X2.
37. The plaintiff as PW1 pleaded ignorance about the revenue records to show that his father cultivated the lands of Konda Satyanarayana Reddy on lease. PW1 does not know the name of his grandfather. PW1 does not know the age of his father at the time of death of his father. PW1 does not know as to what was the sale consideration paid by him for purchase. PW1 admitted that he came to know about the said facts on his own as he has observed during his school going days. Giving importance to reiteration of observations during school days of a person at the age of 75 years is of no use, more particularly, when the plaintiff/PW1 has pleaded ignorance of most of the relevant facts. Moreover, the evidence of PW1 is filled with lot of omissions and contradictions and apart from that such evidence is also not being corroborated with the evidence of PW2 and DW1.
34
MGP, J sa_94_2009, 1332, 1336 & 1357_2008
38. Now coming to the financial capacity of G. Venkaiah to purchase the suit schedule 'A' property, PW1 admitted that his father was an agriculturist and his father has no lands of his own prior to the subject lands and that his father was cultivating the lands of K. Satyanarayana Reddy on lease. If at all father of PW1 has purchased suit 'A' schedule property from K. Satyanarayana Reddy, there was no necessity for father of PW1 to cultivate the lands of K. Satyanarayana Reddy on lease and in fact he could have cultivated plaint 'A' schedule property. Furthermore, plaintiff/PW1 categorically admitted that he has not filed any document to show that his father had capacity to purchase suit 'A' schedule property. Moreover, PW1 admitted that defendant No.1 and his wife were employees and earning sufficient amount. When father of PW1 is not having financial capacity to purchase suit 'A' schedule property, the probability or the presumption of imagining that G. Venkaiah i.e., father of PW1 has purchased suit 'A' schedule property from Konda Satyanarayana Reddy is very remote, more particularly, when original pattedar Konda Satyanarayana Reddy gave statement before Mandal Revenue Officer that he has alienated the suit 'A' schedule property to defendant No.1 for a valid sale consideration. Apart from that PW1 also deposed that one of 35 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 the attestors to Ex.B1 i.e., Kattula Ramaiah is his relative. In such circumstances, there is no necessity for Kattula Ramaiah to stand against plaintiff, wife of defendant No.2 and defendant No.3, more particularly when he is relative to PW1. Further, Konda Satyanarayana Reddy, who is the original pattedar of suit 'A' schedule property and also a third party to the suit, has no necessity to speak falsehood against the plaintiff. Since Konda Satyanarayana Reddy has received sufficient sale consideration from defendant No.1, he was compelled to state before the Mandal Revenue Officer about the transaction between himself and defendant No.1. However, Konda Satyanarayana Reddy was not alive by the time of trial. Perhaps that might be the reason why his evidence could not be secured by the trial Court. In such circumstances, the statement of Konda Satyanarayana Reddy was considered for corroborative purpose.
39. When it is the specific contention of the plaintiff that suit schedule 'A' property was acquired by his father from Konda Satyanarayana, the plaintiff ought to have mentioned in the plaint about the said aspect. Though the plaintiff admitted in his cross examination that he disclosed in his pleadings about the purchase of 'A' schedule property from K. Satynarayana 36 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 Reddy, on careful perusal of the entire plaint, there is no such whisper. Further, the plaintiff averred in the plaint that defendant No.1 has created unregistered sale deed. However, the plaintiff did not make any efforts to file any rejoinder to deny the above said two aspects and thereby make averments in the rejoinder that Konda Satyanarayana Reddy has alienated the suit 'A' schedule property to G. Venkaiah and that his brother defendant No.1 has created unregistered sale deed. It is settled law that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into.
40. It is the specific contention of the appellants herein that the suit schedule properties are self acquired properties of G. Venkaiah. It is pertinent to note that plaintiff admitted in his cross examination that during the life time of his father, they had raised the issue of partition. When the suit schedule properties are self acquired properties of a father, it is very strange and surprising as to how a son can seek partition of self acquired properties of his father that too during the life time of his father.
41. A self acquired property can become ancestral property if it is thrown into the pool of ancestral properties and enjoyed in 37 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 common. But no proof is filed by the plaintiff to show that suit schedule 'A' property was purchased by G. Venkaiah and after his demise the said property was being enjoyed by all the descendants of G. Venkaiah jointly. PW1 admitted in his cross examination that as the name of Venkaiah is shown as pattadar in the revenue records, he filed the suit for partition basing on the orders of the MRO. But in the cause of action para in the plaint, it was averred that the cause of action arose on 23.04.1995 and whereas the plaint was filed in the year 1999. But even as per the plaintiff, the name of G. Venkaiah is appearing in the revenue records since 1954-1955. If at all the contention of plaintiff that the suit filed by him was based on the entry of name of his father in revenue records, then plaintiff ought to have filed the suit for partition immediately after the demise of his father G. Venkaiah in the year 1976 but there is no such instance. Even as per the own document of plaintiff under Ex.A15 pahani patrika for the year 1988-89 the name of defendant No.1 along with his brothers were shown and the nature of property was shown as self acquired. Further, Ex.A5 produced by the plaintiff discloses the name of defendant No.1 and the nature of the property was shown as self acquired.
42. The sole plaintiff relied upon the evidence of PW2 to 38 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 establish his case. PW2 is the farm servant of Konda Satyanarayana Reddy and served for 25 years. In the chief examination, PW2 deposed that he came to know that PW1 purchased the suit land from Konda Satyanarayana Reddy. This statement of PW2 is quite contrary to the contention of the plaintiff that the suit 'A' schedule property was purchased by his father G. Venkaiah. The evidence of PW2 also disclose that as defendant No.1 and his wife were doing jobs in city, they used to look after plaintiff, wife of defendant No.2, defendant No.3 and also defendant Nos.8 to 11. Further, DW1, who is sailing along with plaintiff, admitted that he heard about Konda Satyanarayana Reddy giving a statement before MRO that he sold 'A' schedule property to defendant No.1. Thus, the evidence of DW1 is supporting the case of defendant No.1 rather than the case of plaintiff and other defendants. There was no document to show the transfer of ownership of title and possession of the suit 'A' schedule property from Konda Satyanarayana Reddy to G. Venkaiah i.e., father of PW1/plaintiff.
43. Though it was argued by learned counsel for the appellant in S.A.No.1336 of 2008 that Konda Satyanarayana Reddy being a Village Patwari, he got created the documents in his favour, 39 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 no evidence is adduced to that extent. Admittedly, Konda Satayanarayana Reddy is the original pattadar of suit schedule 'A' property and he is a third party to the suit. G. Venkaiah and his son i.e., defendant No.1 are third parties to Konda Satyanarayana Reddy. In such circumstances, he is least bothered as to whom the property is to be sold. He is only concerned with the person, who is ready and willing to pay sale consideration to purchase his property. Since defendant No.1 paid sale consideration, Konda Satyanarayana Reddy stood in favour of defendant No.1.
44. In his cross examination, PW1 admitted that basing on the orders of MRO, he has filed the suit. As per the version of plaintiff, name of G. Venkaiah is shown as occupier of suit schedule property in Ex.A1 and there is also no doubt that Khasra Pahani would serve the purpose of a deed of title. When the name of G. Venkaiah is reflected in Khasra Pahani, which is equivalent title deed under Ex.A1 since 1953-54, there is no explanation on behalf of plaintiff as to what prevented him to wait till passing of the orders by MRO in filing the present suit. The plaintiff ought to have filed the suit much prior to passing of the orders by MRO by relying on Ex.A1 rather than filing the suit based on MRO proceedings. This intention of plaintiff 40 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 waiting till passing of orders by MRO to file partition suit, draws an adverse inference against him about genuineness of Ex.A1.
45. Learned counsel for the appellants in S.A.No.1357 of 2008 relied upon a decision in Yadarao Dajiba Shrawane (dead) by LRs v. Nanilal Harakchand Shah (dead) and others 20 wherein the Honourable Apex Court observed that when the judgment of the final court of fact is based on misinterpretation of documentary evidence or not consideration of inadmissible evidence or ignoring material evidence, the High Court in second appeal is entitled to interfere. It is settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by court. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Courts in second appeal. A similar view was taken by the Honourable Apex Court in Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others 21. Learned counsel for the plaintiff while arguing that when findings of the court below are based upon inadmissible evidence, a substantial question of law arises and in such case interference with findings of facts is permitted, 20 (2002) 6 Supreme Court Cases 404 21 (2004) 9 Supreme Court Cases 468 41 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 relied upon decisions of the Honourable Supreme Court in Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) by LRs 22, P. Chandrashekaran and others v. S. Kanakarajan and others 23, Hero Vinoth v. Seshammal 24, Boodireddy Chandraiah and others v. Arigela Laxmi and others 25 and State of Rajasthan and others v. Shiv Dayal and others 26. In Malluru Mallappa v. Kuruvathappa 27 the Apex Court observed that even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order 41 rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice.
46. In Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and others 28 the Honourable Supreme Court observed that if a finding of fact is arrived at by ignoring or 22 MANU/SC/0747/1999 23 2007 (5) SCC 669 24 MANU/SC/2774/2006 25 MANU/SC/3839/2007 26 MANU/SC/1092/2019 27 (2020) 4 Supreme court Cases 313 28 (2010) 13 Supreme Court Cases 216 42 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedure irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further, if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated.
47. In Abdul Ghani Memorial Trust and others v. Bihar State Sunni Wakf Board and others 29 the Honourable Apex Court observed that if the findings passed by the first appellate court are vulnerable, it is open to the High Court in the course of exercise of powers under Section 100 of the CPC to set aside the findings and it is always open to the High Court to call for a finding from the lower Appellate Court whilst retaining the appeal with itself if it is considered necessary adduce further 29 MANU/SC/0027/1987 43 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 evidence. It was further observed that if the additional evidence which the High Court considers it appropriate to receive even at the stage of a second appeal in accordance with law is in the form of a document and does not require any formal proof, the High Court can receive additional evidence itself and proceed to determine the matter in accordance with law. But in the present case, there is no instance of any additional evidence and the only issue to be dealt in these Appeals is whether the plaintiff could establish on his own strength that suit 'A"
schedule property is self acquired property of G. Venkaiah.
Thus, the facts stated in the above said decision cannot be made applicable to the facts of the present case.
48. In Santosh Hazari v. Purushottam Tiwari (deceased) by LRs 30 the Honourable Supreme Court observed that the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on question of law unless such question of
30 (2001) 3 Supreme Court Cases 179 44 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 law be a substantial one. In Somakka (dead) by legal representatives v. K.P. basavaraj (dead) by legal representatives 31 the Honourable Supreme Court observed that the judgment of the appellate court shall be in writing and would include the points for determination, the decision thereon, the reasons for the decision and where the decree is reversed or varied, the relief to which the appellant is entitled. Though several grounds were raised by the appellants, none of the grounds were appearing to be based on substantial question of law, more particularly, when the appellants failed to establish that suit 'A' schedule property is a joint family property and liable for partition. Though, it is contended by the appellants that the learned first appellate Court has passed the impugned Judgment only based on inadmissible under Exs.B1, B2, X1, X2, X3 and X5, such judgment is appearing to have been passed in proper perspective as the said judgment is based on valid and sufficient grounds/reasons and all other relevant aspects.
49. In Suresh Lataruji Ramteke v. SAU. Sumanbai 31 (2022) 8 SCC 261 45 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 Pandurang Petkar and others 32 the Honourable Apex Court observed that jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd. Khalil 33 that while exercising jurisdiction under Section 100 of the Code of Civil Procedure, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible. This position was reiterated by Avtar Singh and Others v. Bimla Devi and others 34. However, there are certain exceptions to the rule as pointed out by the Apex Court in Nazir Mohamed v. J. Kamala 35 as under:
"33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where: (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
50. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation 32 2023 Live Law (SC) 821 33 (2010) 12 SCC 740 34 (2021) 13 SCC 816 35 (2020) 19 SCC 57 46 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar 36.
51. It is to be seen that in the present Appeals, it is not the case of 'concurrent findings' but in fact it is 'reversing finding'. There is no doubt that the first appellate court has given credence to Exs.B1 and B2 while passing the judgment in A.S.No.8 of 2007. Ex.B1 being an agreement of sale not duly stamped is inadmissible in evidence to consider the title of a party over immovable property. But as can be seen from Ex.B1, possession of suit schedule 'A' property was not delivered by Konda Satyanarayana Reddy to defendant No.1. The High Court for the erstwhile State of Andhra Pradesh in B. Bhaskar Reddy v. Bommireddy Pattabhi Rami Reddy (died) per LRs and others 37 observed that wherever the agreement holder is not in possession of the property under agreement of sale, even though there is a recital in the agreement as to delivery of possession, he need not pay proper stamp duty as required. Even otherwise, as discussed supra, this Court is not here to decide the ownership of defendant No.1 over suit 'A' schedule 36 AIR 1963 SC 302 37 2010 (6) ALD 307 47 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 property. Though the learned first appellate gone to the extent of deciding the ownership of defendant No.1 based on Exs.B1 and B2, the only point that is to be adjudicated is whether suit 'A' schedule property is joint family property or not, more particularly, in a suit for partition filed by the plaintiff. It is settled law that plaintiff has to stand or fall on his own legs and he cannot rely on the weakness of the defendants in establishing his case.
52. The background of the defendants disputing Khasra Pahani and the subsequent documents by contending that G. Venkaiah has no financial capacity to purchase the said land and there is any amount of suspicion about the entries in the said documents, the initial burden is always on the plaintiff to establish to the satisfactorion of the Court that the said land which is 'A' schedle property has been purchaseed by late G. Venkaiah in his name from its original owner/pattedar. However, to establish and substantiate that aspect of the matter, the plaintiff for the reasons best known to him has not placed any acceptable material on record to demonstrate that late G. Venkaiah entered into any agreement of sale (either oral or written) with Konda Satyanarayana Reddy to purchase the said land for a valid sale consideration. Further, except Ex.A1 48 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 Khasra Pahani, no other regular registered sale deed is filed by the plaintiff to show that suit 'A' schedule property has been purchased by late G.Venkaiah in his name by way of registered sale deed. Moreover, the original owner of the said land by name Konda Satyanarayan Reddy gave statement before the Mandal Revenue Officer under Ex.X2 and specifically stated that he sold the property in favour of defendant No.1 for a sale consideration and also delivered possession of the property. The testimony of original owner has not been specifically contradicted by the plaintiffs nor any admissions are elicited that the said property was not sold to defendant No.1.
53. When the plaintiff on whom the burden lies has failed to establish as to the mode of purchase of the said land by late G. Venkaiah from Konda Satyanarayana Reddy, the appellants herein cannot claim suit 'A' schedule property as joint family property. It is no doubt true that Khasra Pahani can be considered as title deed, but having regard to the peculiar circumstances of this case and in the background of the strong defence put forth by the defendants, so also the testimony of Satyanarayana Reddy, this Court is not inclined to place any reliance on Exs.A1, A13 and A14 and as a consequence thereof, the only inevitable inference that can be drawn is that the 49 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 plaintiff failed to establish that his father G. Venkaiah has purchased suit 'A' schedule proeprty from his own funds. Moreso, when there is no proof of the financial capacity or source of income of G. Venkaiah to purchase plaint 'A' schedule property, this Court is not inclined to believe the verson of the plaintiff that plaint 'A' schedule property is also joint family property and is liable for partition. The first appellate court has considered the entire gamet of the controversy with reference to the material available on record in proper perspective and has rightly held that schedule 'A' property is not joint family property. Therefore, even though there is no regular registered sale deed obtained by defendant No.1 in pursuance of Ex.B1 but by that itself it would not establish the case of the plaintiff that plaint 'A' schedule property is a joint family property.
54. Having considered the entire material available on record, rival contentions and also the findings recorded by the learned first Appellate Court, this Court finds no ground or reason warranting interference with the said findings in an Appeal filed under Section 100 of the Code of Civil Procedure. Hence, these Second Appeals deserve to be dismissed as devoid of merits.
55. In the result, these second appeals are dismissed. There 50 MGP, J sa_94_2009, 1332, 1336 & 1357_2008 shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Date: 23.08.2024 AS