Andhra HC (Pre-Telangana)
Kondaveti Francis vs M. Ludramma And Others on 15 February, 2000
Equivalent citations: 2000(3)ALD130, 2000(3)ALT433
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. These two second appeals arise out of two cross-suits for permanent injunction filed by the parties against one another in respect of the selfsame property. The only difference between the two suits is that whereas OS No.80 of 1986 is in respect of the lands covered by Sy.Nos.74 and 89, the other suit OS No.303 of 1990 is in respect of the lands covered by Sy.No.89 only. The two suits were tried together. Both the suits were field on the basis of prior possession without setting up any claim of title and attempts to interfere with such possession by the opposite party. However, in the course of the evidence, some attempt appears to have been made by both parties to make out title. But both parties mainly relied on the entries in the revenue records like Pahanis and land revenue receipts in proof of their possession.
2. On a consideration of the oral and documentary evidence on record, the trial Court decreed OS No.80 of 1986 and dismissed OS No.303 of 1990. The trial Court decided the suits only on the basis of possession without going into the question of title and leaving it open to the parties to establish their title in separate proceedings. While preferring appeals questioning the judgment of the trial Court, the defendants in OS No.80 of 1986 and plaintiffs in OS No.303 of 1990 simultaneously filed a separate suit being OS No.82 of 1995 on the file of the Principal Subordinate Judge, Warangal, for declaration of title and for perpetual injunction against the plaintiff in OS No.80 of 1986. The said suit is still pending.
3. In the appeals the appellate Court, however, went into the question of title and on a consideration of the evidence already on record and also on the basis of certain documents which were field by the appellants as additional evidence and which were marked as Exs.B11 to B18, came to the conclusion that the plaintiff in OS No.80 of 1986 miserably failed to establish his right, title and possession over the suit property as on the date of the filing of the suit and on the other hand, the appellants-defendants could prove the right, title and possession of Chinnaiah, their predecessor in interest over the suit land. Accordingly the Appellate Court allowed the appeals and dismissed OS No.80 of 1986 and decreed OS No.303 of 1990 with costs throughout. Hence these two second appeals by the plaintiff in OS No.80 of 1986.
4. For the sake of convenience, hereinafter the apepllant will be referred to as 'plaintiff and the respondents as 'defendants'.
5. Sri L. Narasimha Reddy, the learned Counsel for the appellant/plaintiff has raised the following contentions:
(1) In a suit for mere injunction the question of title cannot be gone into or decided and more so, when a title suit is already filed and pending. The Appellate Court, therefore, committed an illegality in going into the question of title.
(2) The Appellate Court erred in receiving additional evidence and in disposing of the matters on the basis of such evidence without proper proof.
(3) The decision of the Appellate Court is based entirely on the correction of the entries in the revenue records which were made during the pendency of the suits contrary to the interim orders granted by the civil Court.
(4) The Appellate Court acted illegally in relying upon the evidence which was contrary to the pleadings. Such evidence has to be totally eschewed from consideration whereas the plea of the respondents was that the appellate was a trespasser without any manner of right in the suit, their evidence is to the effect that he was a tenant and he surrendered the tenancy.
(5) The learned Counsel alternatively submitted that when once tenancy is admitted, in the absence of any proof that the alleged surrender was in accordance with the provisions of the Tenancy Act, the appellant must be deemed to be continuing in possession and he is entitled for injunction to protect his possession against the whole world except the true owner and even the true owner has to get back this possession only by resorting to the due process of law.
6. On the other hand, Sri T. Veerabhadraiah, the learned Counsel for the respondents, has contended that the only question involved in the second appeals is as to who was in possession of the suit property on the date of the suit and it is essentially a question of fact. The finding recorded by the lower Appellate Court, which is the final Court of fact, is not amenable for interference in the second appeal. He further contended that as the pleadings form the foundation of the case, it is not open to either party to travel beyond their pleadings or set-up a new case contrary to the pleadings. So the question of tenancy need not be gone into and as a matter of fact, both the Court did not accept the case of tenancy. The learned Counsel for the respondents contended that Ex.B1 order whereby the entries in the land revenue records were corrected by the Competent Authority in exsrcise of the powers conferred by the provisions of A.P. Record of Rights in Land and Pattadar Passbooks Act, 1971, has become final and it is not open to the civil Court to go into the correctness of the said order. He further contended that the Appellate Court acted in conformity with the provisions of Order 41, Rule 27 CPC and it did not commit any illegality in receiving and admitting Exs.B11 to B18 as additional evidence. The said documents are public documents which are admissible under Section 79 of the Evidence Act and there is a presumption of their genuineness. The learned Counsel for the respondents finally submitted that there is no finding by the trial Court that the plaintiff was in possession on the date of the filing of the suit and the trial Court mainly based its judgment on the documents which came into existence along after the filing of the suit.
7. It is the well established and accepted principle that pleadings form the foundation of the case and the parties arc bound by the pleadings. They cannot travel beyond the pleadings or set-up a new case which is not propounded in the pleadings and any amount of evidence contrary to the pleadings cannot be looked into. (See ). It is equally well established that in a suit for injunction simplicitor the primary question which arises for consideration is the question of possession and the question of title need not be gone into though it may be gone into incidentally for coming to a conclusion on the primary question of possession.
8. In the instant case, the lower Appellate Court having rightly observed in Para 13 of its judgment that the only aspect that required to be considered is whether the plaintiff Sri K. Francis was in possession of the suit land in Sy.Nos.74 and 89 of Thimmarayanapadu village as contended by him, or whether they were in possession and enjoyment of Sri M. Chinnaiah or by the persons under him, as on the date of the filing of the suit as contended by them in their pleadings, unnecessarily embarked upon an enquiry into the question of title also. Having regard to the pleadings in the case which were based solely on possession and not on title, I am satisfied that the lower Appellate Court was not justified in embarking upon an enquiry into the question of title and more so, when a title suit is already filed and pending. The findings recorded by the Appellate Court on the question title are, therefore, set aside leaving it open for both parties to work-out and establish title in separate pleadings.
9. Coming to the question of possession, both parties relied on the entries in revenue records like pahanis and land revenue receipts. The plaintiff relied on the pahanis marked as Exs.A1 to A5 and Exs.A11 to A16 ranging from the year 1951 to 1986 wherein his name was recorded as the cultivator of the suit lands. Ex.A16 is the latest pahani for the year 1985-86 the year in which the suit OS No.80 of 1986 was filed. Exs.A6 and A7 are land revenue receipts evidencing payment of land revenue by the plaintiff for the years 1984-85 and 1988-89. Exs.A8 to A10 are documents relating to a complaint stated to have been made by the plaintiff to the police in 1990 alleging that the paddy heaps belonging to him were set on fire by his opponents and the same were burnt.
10. As against the said evidence on behalf of the plaintiff, the defendants relied on Exs.B2 to B5 and B8 which are the pahanis for the years 1985-86 to 1989-90. They also relied-upon Ex.B1 which is an order dated 4-1-1990 passed by the Revenue Divisional Officer, Mahaboobabad, the Appellate Authority under A.P. Record of Rights in Land and Pattadar Pass-books Act, 1971, confirming the order dated 21-12-1998 passed by the Mandal Revenue Officer, Chennaraopet whereby the name of the plaintiff was deleted and the names of Mallavarapu Chinnaiah (husband of first defendant) and Mohammed Yakoob (defendant No.9) were recorded in column No.13 of the pahani pathrika for the year 1985-86 against the suit lands. It may be mentioned that by this order Ex.A16 was corrected and the name of the plaintiff was deleted from the pahani for the year 1985-86. It is stated that the revision filed by the plaintiff against this order was also dismissed and the order has become final. Besides the said evidence, the defendants have filed by way of additional evidence in the Appellate Court, certified copies of the pahanis for the years 1950 to 1956 which are marked as Exs.B11 to B17 wherein the name of M. Chinnaiah was recorded as the cultivator of the suit lands and the certified copy of the holding register of the year 1954-55 which was marked as Ex.B18 in which the name of M. Chinnaiah was recorded as the owner of the suit lands besides other lands totalling Ac.40-14 guntas in extent. The Appellate Court was of the view that the said documents could be received by way of additional evidence as they are public documents. In view of Ex.B1 coupled with Exs.B11 to B18, the Appellate Court came to the conclusion that the possession of Chinnaiah and the defendants is clinchingly established and the plaintiffs claim completely perished. The said finding being essentially one of fact, I do not find any valid grounds to interfere with the same in second appeal. It cannot be said that the lower Appellate Court committed any illegality in receiving the said documents as additional evidence in the appeals. The learned Counsel for the appellant, however, sought to contend that the said finding of the Appellate Court is wholly based on the correction of the entries in the revenue records made subsequent to the filing of the suit and as such no weight can be given to the same. It is also contended that by virtue of the interim injunction granted by the trial Court which was also confirmed on appeal and revision, the plaintiff continued in possession of the suit land throughout and the revenue authorities had no jurisdiction to pass any orders contrary to the orders granted by the civil Court. 1 do not, however, find any force in this submission. Merely because the Court granted an interim injunction in favour of the plaintiff, in the absence of any order of stay the Revenue Authorities are not precluded from discharging their functions in exercise of the powers conferred upon them by the Andhra Pradesh Rights in Land and Pattadar Pass-books Act, 1971. The plaintiff who is a party to the said proceedings and who availed, the remedies of appeal and revision provided under the said statute, cannot now turn round and say that the said orders are not valid and binding on him.
11. Section 6 of the said Act provides that every entry prepared under this Act shall be presumed to be true until the contrary is proved or it is otherwise amended in accordance with the provisions of the Act. Sub-section (1) of Section 8 provides that no suit shall lie against the Government or any officer of Government in respect of a claim to have an entry made or in relation to any entry made in any record of rights or to have any such entry omitted or amended. Sub-section (2) of Section 8, however, provides that if any person is aggrieved as to any rights of which he is in possession by an entry made in any record of rights, he may institute a suit against any person denying or interested to deny title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963 and the entry in the record of rights shall be amended in accordance with any such declaration.
12. In the absence of any such suit by the plaintiff, it must be presumed that the correction of the entries in the pahani as per Ex.B1 order is correct. Further, the trial Court has not recorded any categorical finding that the plaintiff was in possession of the suit land on the date of filing of the suit.
13. The learned Counsel for the appellant has finally submitted that by virtue of the interim orders granted in his favour, the plaintiff has been continuing in possession of the suit lands till date and it is, therefore, just and proper to allow him to continue in possession till the disposal of the title suit i.e., OS No.82 of 1995 on the file of the Court of the Principal Subordinate Judge, Warangal which is still pending. There was some debate at the bar on the question whether the Court in exercise of its inherent powers could make any such order at this stage. I am not, however, inclined to go into the said question for it is seen from the record that the plaintiff appellant failed to comply with the conditions imposed by this Court while granting the interim order in his favour and he has been continuing in possession without complying with the said conditions.
14. For the foregoing reasons, I do not find any merit in these second appeals and they are accordingly dismissed with costs subject to the modification that the question of title is left open.