Andhra HC (Pre-Telangana)
Vaddari Jhatipat Ramloo vs T. Sri Hari on 28 October, 2014
Author: B. Chandra Kumar
Bench: B. Chandra Kumar
HONBLE SRI JUSTICE B. CHANDRA KUMAR
Second Appeal Nos.467 of 2004 and batch
28-10_2014
Vaddari Jhatipat Ramloo..Appellant
T. Sri Hari .. Respondent
Counsel for Appellant : Sri L. Prabhakar Reddy
Counsel for Respondent :Sri v. Venkata Ramana
<GIST:
>HEAD NOTE:
?CASES REFERRED :
1. (2011) 1 SCC 673
2. 2012(5) ALT 116
3. (2014) 2 SCC 269
4. AIR 1962 SC 1314(1)
5. (2011) 4 ALT 415
6. Decided on 11.04.2011 in WA No.1770 of 2001 by AP High Court
HONBLE SRI JUSTICE B. CHANDRA KUMAR
Second Appeal Nos.467, 468, 469 and 475 of 2004
Common Judgment:-
All these appeals are connected and dealing with one and the same
dispute and therefore they are being disposed of by this common
judgment.
SA No.467 of 2004 is filed against the judgment and decree dated
23.12.2003 passed in AS No.112 of 2002 by the II Additional district
Judge, Ranga Reddy District, confirming the judgment and decree dated
30.06.2000 passed in OS No.608 of 1992 by the Principal Senior Civil
judge, Ranga Reddy District.
SA No.475 of 2004 is filed against the judgment and decree dated
23.12.2003 passed in AS No.74 of 2002 by the II Additional district Judge,
Ranga Reddy District, confirming the judgment and decree dated
30.06.2000 passed in OS No.101 of 1990 by the Principal Senior Civil
judge, Ranga Reddy District.
SA No.468 of 2004 is filed against the judgment and decree dated
23.12.2003 passed in AS No.72 of 2002 by the II Additional district Judge,
Ranga Reddy District, confirming the judgment and decree dated
30.06.2000 passed in OS No.646 of 1991 by the Principal Senior Civil
judge, Ranga Reddy District.
SA No.469 of 2004 is filed against the judgment and decree dated
23.12.2003 passed in AS No.11 of 2001 by the II Additional district Judge,
Ranga Reddy District, confirming the judgment and decree dated
30.06.2000 passed in OS No.208 of 1987 by the Principal Senior Civil
judge, Ranga Reddy District.
The unsuccessful defendant namely Vaddari Jhatipat Ramloo in OS
Nos.208 of 1987 and 646 of 1991 and the plaintiff in OS Nos.101 of 1990
and 608 of 1992 has filed the present four second appeals.
Joint trial was conducted and evidence was recorded in OS No.208
of 1987. The parties hereinafter will be referred to as they are arrayed in
OS No. 208 of 1987 for the sake of convenience. The case of the plaintiff
namely Srihari in OS No.208 of 1987 is as follows. He is the absolute
owner and actual possessor of the land admeasuring 0-08 gts., in Survey
No.9, situated at Moosapet village of Balanagar Mandal, Ranga Reddy
District. The patta of the land stands in the name of the plaintiff and his
paternal uncle T. Yadaiah and in partition with his uncle this land fell to
the share of the plaintiff. It is alleged that the first defendant T. Srinivas
Rao and father of the third defendant T. Sri Ramloo and one T. Narsimha
Rao made an attempt to encroach the plaint schedule property, thereupon
the plaintiff filed a suit for perpetual injunction in OS No.100 of 1984 on
the file of the District Munsif, West and the said suit was decreed in
favour of the plaintiff on 21.03.1985. The further case of the plaintiff is
that the defendants have no concern with the plaint schedule property
and they are trying to forcibly encroach the suit schedule property by
making false allegations that the suit schedule property is part of Survey
No.10 and it belongs to the second defendant. It is further alleged that
on 12.04.1987, they tried to encroach the suit schedule property and the
plaintiff, with great difficulty, resisted the acts of the defendants. Alleging
that the cause of action arose on 12.04.1987, the plaintiff filed suit for
declaration of title and injunction. Along with the suit, the plaintiff filed
I.A.No.293 of 1987 and obtained interim injunction order against the
defendants. Subsequently, the plaintiff filed I.A.No.707 of 1998 alleging
that during the pendency of the suit, the defendants occupied an area of
600 square yards on 10.01.1988 out of the suit schedule property and this
600 square yards of land is the disputed property now. It is further
alleged that the defendant constructed compound wall over the compound
ABCDE (as described in the plaint), but also erected a big gate.
Consequently, the plaintiff filed I.A.No.707 of 1988 seeking amendment of
plaint and sought further relief of recovery of possession and dismantling
of the construction made by the defendant. The said I.A. was allowed ad
the suit was accordingly amended. Defendants 1, 3 and 4 are set ex
parte. The second defendant alone filed written statement. The specific
case of the second defendant V.J.Ramloo (hereinafter referred to as
Ramloo) is that he is not a party to O.S.No.100 of 1984 and therefore,
the judgment and decree of that suit is not binding on him. It is denied
that the plaintiff is the owner of the suit schedule property. It is also
denied that the suit schedule property fell to the share of the plaintiff in
partition with his uncle T.Yadaiah. It is also denied that the defendants,
in spite of injunction orders in I.A.No.293 of 1989, encroached an area of
600 square yards by force and shown in the red colour in the plan
attached to the plaint. He denied the allegation that in spite of objections
by the plaintiff, he constructed a compound wall and erected big gate on
10.01.1988. The specific case of the defendants is that the disputed site
is in his possession and it is covered by compound wall and it was
constructed by the defendants much prior to the filing of the suit to the
knowledge of the plaintiff. It is further alleged that the defendant is the
owner and possessor of the land in survey No.10 of Moosapet village and
that he has constructed a cinema theatre in the site raising a compound
wall much prior to the filing of the suit. The allegation of the plaintiff that
he tried to dig foundation on 12.03.1987 is denied. The further case of
the defendant is that this disputed land is the absolute property of the
defendant and he has been in possession of the same for more than the
statutory period to the knowledge of the plaintiff and, therefore, even if
the plaintiff had any right in the property, the same stood extinguished.
It is further submitted that after filing of the suit, the plaintiff approached
the defendant for settlement and on the intervention of the elders, the
defendant agreed to pay some amount to the plaintiff. Accordingly, an
agreement of sale was entered into on 28.07.1987 and thereby the
plaintiff agreed to convey the interest in the land covered by survey No.9
for a consideration of Rs.1,00,000/- and in pursuance of the said
agreement, the defendant paid an amount of Rs.20,000/- to the plaintiff
on 31.07.1987 which the plaintiff acknowledged. It is further alleged that
the plaintiff has backed the said agreement. The defendants further case
is that the suit is fictitious and filed to extract money from the defendant.
The defendant filed O.S.No.101 of 1998 against the plaintiff
seeking injunction contending that the plaintiff executed an agreement of
sale on 28.07.1987 agreeing to transfer the land admeasuring 4 guntas of
land out of 8 guntas of land in Survey No.9 for a consideration of
Rs.1,00,000/- and in addition thereto, to provide an extent of 1200 square
yards of site near goods road to the plaintiff. The defendant further
pleaded that he has already paid an amount of Rs.20,000/- on 31.07.1987
and obtained receipt from the plaintiff and that he is ready and willing to
pay the balance of sale consideration and also to fetch 1200 square yards
of land neat the goods road and that the plaintiff is not coming forward to
perform his part of contract and thus, he filed a suit for specific
performance of agreement of sale dated 28.07.1987 against the plaintiff.
The defendant has also averred that the plaintiff filed a suit in O.s.No.208
of 1987 against him. It is further alleged that in spite of agreement dated
28.07.1987, the plaintiff has taken up construction work at the suit
schedule property. It is further averred that the defendant has already
filed O.S.No.60 of 1990 before the District Munisif (West and South),
Ranga Reddy district for perpetual injunction against the plaintiff and that
in the said suit, status quo orders have been passed in favour of the
defendant. It is further contended that the defendant got issued legal
notice on 02.03.1990 to the defendant before filing of the suit for specific
performance. The plaintiff in O.S.No.208 of 1987 filed the written
statement in this suit denying the agreement of sale dated 27.07.1987
and further contended that he never agreed to sell any portion of his land
in Survey No.9. It is further contended that the plaintiff filed a suit for
declaration of title and possession of 600 square yards of land and on the
petition filed by the plaintiff, an advocate commissioner was appointed for
demarcation of the land on 27.07.1987 and to avoid demarcation work,
the defendant came with a proposal that he would pay Rs.1,00,000/- in
cash and provide 1200 square yards of land at goods road, Moosapet
village, on or before 10.08.1987, but the said proposal was not acted
upon. It is further contended that the defendant failed to purchase the
land at goods road and the proposed vendor Golla Maisaiah already sold
away the land to the third parties.
The plaintiff in O.S.No.208 of 1987 filed another suit in O.S.No.464
of 1991 seeking permanent injunction against the defendant on the same
averments which he has made in O.S.No.208 of 1987. However, it is
further alleged that the defendant started digging pits over the suit
schedule property on 16.11.1991. The defendant filed written statement
denying the allegations made by the plaintiff and taken the same pleas
which he has taken in the earlier suits filed by him. The defendant had
also taken the plea that the suit is filed to start the second round of
litigation and in view of the amendment made in O.S.No.208 of 1987, the
present suit has become infructuous.
The plaintiff filed written statement denying the averments made
by the defendant.
The main issues framed in O.S.No.208 of 1987 are as follows:-
1. Whether the plaintiff is the absolute owner and possession of
the suit property?
2. Whether the defendant encroached an extent of 600 square
yards as alleged in the plaint?
3. Whether the plaintiff is entitled to recovery possession of 600
square yards?
The main issue framed in O.S.No.646 of 1991 is as follows:-
1. Whether the plaintiff is entitled for perpetual injunction as
prayed for?
The main issues framed in O.S.No.101 of 1990 are as follows:-
1. Whether the agreement of sale dated 28.07.1987 is true, valid
and binding on the defendant?
2. Whether the plaintiff is entitled for specific performance of
contract under the suit agreement to sell?
The main issue framed in O.S.No.608 of 1992 is as follows:-
1. Whether the suit for simple injunction without relief for declaration
and possession is not maintainable?
By judgment dated 14.10.1996, the learned Principal Subordinate
Judge, Ranga Reddy District, decreed O.S.No.101 of 1990 directing the
plaintiff to execute the sale deed in respect of 0-04 guntas of land in
favour of the defendant. Accordingly, O.S.No.208 of 1987 and 646 of
1991 filed by the plaintiff are dismissed and O.S.No.608 of 1992 and
O.S.No.101 of 1990 were decreed. Challenging the same, appeals were
preferred. Then the lower appellate Court set aside the judgment of the
trial Court, but however, remanded the matter for fresh disposal. An
opportunity was also given to the parties to adduce further evidence.
After remand, P.W.1 was recalled and further examined in chief.
Exs.A.1 to A.30 were marked on his behalf. No further oral evidence was
adduced and Exs.B.8 and B.9 were marked with the consent of both the
parties. The Principal Senior Civil Judge, after remand, came to the
conclusion that the defendants encroached 600 square yards of land in
Survey No.9 of Moosapet village and, therefore, decreed the suit in
O.S.No.208 of 1987. Similarly, the suit filed by the defendant in
O.S.No.101 of 1990 was dismissed. Mandatory injunction was issued in
O.S.No.646 of 1991 directing the defendants to remove the constructed
structure in the disputed land and further held that the plaintiff is entitled
for recovery of 600 square yards of land. Accordingly, the suits filed by
the plaintiff were decreed and suits filed by the defendants were
dismissed. Then the defendants preferred appeals in A.S.No.11 of 2001,
72 of 2002, 74 of 2002 and A.S.No.112 of 2002 challenging the judgments
in O.S.No.208 of 1987, 646 of 1991, 101 of 1990 and 608 of 1992
respectively.
The lower appellate Court, by impugned common judgment dated
23.12.2003, dismissed the appeals confirming the judgment and decree of
the trial Court. Challenging the same, these appeals have been filed.
The main submission of Sri L.Prabhakar Reddy, learned counsel for
the appellants is that the respondents/plaintiff filed the suit for declaration
of title and recovery of possession and that in a suit for declaration of title
and recovery of possession, heavy burden lies on the plaintiff to prove his
title. The suit filed by the plaintiff cannot be decreed merely basing on
the weakness of the case of the defendants. His main submission is that
the plaintiff failed to prove his title. It is further submitted that except
some revenue records, no other documents have been filed to prove the
title of the plaintiff. It is further submitted that the plaintiffs case is
that
he has partitioned with his uncle T. Yadaiah and in the said partition, the
suit land fell to the share of the plaintiff, but the plaintiff did not file any
document to show that the land fell to his share in the said partition. His
main submission is that revenue records will not prove the title. Mere an
entry in the revenue records is not sufficient because the subsequent
changes by way of partition or succession or acquisition by way of gift
deed or bequeathing of the property by way of Will may not reflect in the
revenue records. It is also his submission that only for the purpose of
calculating the land revenue the revenue entries are made and this
position has been clarified by the Apex Court in several decisions. It is
further argued that since the defendant is not a party to O.S.No.100 of
1984, the said judgment is not binding on him. It is also his submission
that the Courts below committed an error in holding that the plaintiff has
proved his title merely on the ground that the defendant had entered into
agreement of sale with the plaintiff. His main submission is that a person
who has no title may offer to sell the same and merely because a person
agreed to purchase the property believing such version, that would not
give any tile to the proposed vendor and if the reasoning of the Courts
below on this aspect is accepted, that may lead to a situation where
anybody who has no title would get automatic title without proof of his
title. It is further submitted that the plaintiff himself admitted that there
are no documents to prove his title. It is further argued that there is
correction in the Khasra Pahani and thus, when there are corrections in
the revenue records, it gives an impression that the revenue records have
been manipulated. It is further submitted that as far as remaining part of
the land excluding 600 square yards of land is concerned, the defendant is
not disputing the title of the plaintiff and that shops have been
constructed in the remaining part of the land adjacent to the disputed
land. It is further submitted that the documents filed by the plaintiff
including municipal tax receipts only pertain to the undisputed portion of
the land and shops therein. It is further argued that a reading of entire
material gives an impression that the land in dispute i.e., 600 square
yards has been in possession of the defendant since long time and that
the defendant had already constructed a compound wall much prior to the
starting of litigation between the parties. It is further argued that the
plaintiff, on the basis of the alleged measurements taken by the surveyor,
started contending that 600 square yards of land is in survey No.9 and
then started claiming right over the said property. It is further argued
that the Courts below have treated the agreement as an admission by the
defendant under Section 77 of the Indian Evidence Act and by stretch of
no imagination, such admission would confer title to the plaintiff. It is
argued that even if the suit filed by the defendant for specific
performance is dismissed, the plaintiffs suit for declaration cannot be
decreed. It is also argued that the Courts below failed to appreciate the
evidence that the plaintiff and his father gave contradictory versions, i.e.,
according to the plaintiff, the disputed site is a vacant site whereas
according to the father of the plaintiff, he had already constructed mulgies
on the disputed site. It is further argued that even if it is assumed for the
sake of argument that the plaintiff has title to the property, admittedly,
the plaintiff has executed the agreement of sale in Ex.A.1 dated
28.07.1987 agreeing to sell 0-04 guntas of land and the plaintiff admitted
that he had received an amount of Rs.20,000/- from the defendant. It is
further submitted that on filing of the suit for specific performance, the
defendant had deposed the remaining amount of Rs.1,00,000/- and this
shows the bona fides of the defendants. It is also argued that the
defendant had entered into the agreement of sale with one Yadaiah to
purchase 1200 square yards of land at Goods Road, Moosapet and thus
the defendant was already ready and willing to perform his part of
contract. It is further argued that the trial Court, without any basis, came
to the conclusion that the defendant has failed to fulfil his part of
agreement. It is further argued that it is the defendant who got issued
the legal notice requesting the plaintiff to receive the remaining balance of
sale consideration amount and to execute the sale deed. It is further
argued that the plaintiff admitted that he has not issued any notice
cancelling the agreement of sale. It is further argued that mere delay is
not a ground to dismiss the suit for specific performance and the conduct
of the parties and all the circumstances ought to have taken into
consideration by the Courts below. In support of his contentions, learned
counsel for the appellants relied on the judgments in the cases between
Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi ,
Sammita Sri Natraj Vs. Kilaru Rangaiah and others , Union of
India and others Vs. Vasavi Cooperative Housing Society Limited
and others and Sri Chunilal V. Mehta and sons Ltd., Vs. Century
Spinning and Manufacturing Co. Ltd.
Sri Vedula Venkata Ramana, learned senior counsel
appearing on behalf of the respondents submitted that when there is a
categorical finding by both the Courts below, the High Court should not
interfere on fact findings. It is also argued that the plaintiff has filed
Khasra Pahanis and it is a crucial document and it proves the title of the
plaintiff. It is also argued that the defendants never disputed the title of
the plaintiff and when there is no serious dispute to the title of the
plaintiff, there is no need to conduct a roaring enquiry into the matter. It
is also argued that admittedly, the defendant had no right in survey No.9
and he is an adjacent owner in survey No.10 and he has admitted that the
plaintiff is the owner of the land in Survey No.9 and accordingly, he
entered into the agreement with the plaintiff to purchase four guntas of
land. It is further alleged that the trial Court, on appreciation of evidence,
came to the conclusion that the defendant did not purchase 1200 square
yards of land and thus failed to fulfil his part of contract. It is further
argued that the defendant had never taken a plea of adverse possession
and when there is no evidence, there is no need to consider such
contention. Learned senior counsel further submitted that where there is
no serious dispute to the title, a declaratory suit cannot be dismissed. It
is further argued that if at all the plaintiff has no title, the defendants
would not have entered into agreement of sale to purchase the property
from the plaintiff. It is further submitted that the defendant, having
verified the records, agreed to purchase the property from the plaintiff. It
is further argued that once it is held that the plaintiff has title and the
defendant had encroached into the land of the plaintiff, the plaintiff is
entitled for relief of declaration of title and recovery of possession.
Learned senior counsel had also referred to the notice issued by the
defendant, wherein, he offered to pay the balance of sale consideration of
Rs.1,00,000/- but there is no whisper regarding 1200 sq. yards of land
near goods shed. It is vehemently argued that when the defendant did
not make any offer in the said legal notice by expressing his willingness to
give 1200 square yards of land at goods shed to the plaintiff as per the
agreement, it is clear that, the defendant was not ready and willing to
perform his part of agreement. In support of his contentions, learned
senior counsel had placed reliance on the judgments in the cases between
Bathina Chennamma Vs. Bathina Venkata Subbaiah , The Joint
Collector, The Revenue Divisional Officer, Chevella Division and
the Mandal Revenue Officer Vs. Syed Ahmed Hasan, S/o. Syed
Homd. Ismail, Syed Nurui Hasan S/o. Vicarul Hasan and Smt.
Zehra Medhi, W/o. S.T.H.Mehdi .
In reply, Sri Prabhakar Reddy, learned counsel for the appellant
submitted that when the plaintiff is seeking the relief of declaration of
title, the initial burden lies on the plaintiff to prove his title and the
Courts
below have failed to examine this important aspect.
The substantial questions of law that arise in these appeals are (1)
whether the plaintiff has to prove his title in a suit for declaration of title
irrespective of the fact that the defendant had entered into agreement
with the plaintiff to purchase the said property; (2) Whether the finding of
the Court below that since the defendant had agreed to purchase the
property, the same amounts to admission of title by the defendant is
correct and valid; and (3) Whether the findings of the Court below that
the defendant failed to perform his part of contract is correct.
In a suit for declaration the plaintiff has to stand or fall on his own
case. He has to plead how he acquired title to the property. When a
person is claiming title to a property by virtue of partition he must
mention as to who are the other sharers of the property and when the
partition took place and adduce evidence to show that the particular
disputed property has been allotted to him. When a person claims title to
the property by virtue of any other instrument such as gift, Will etc., he
must file document to show that the donor or the testator as the case
may be had title to the property. Merely because the defendant had
entered into an agreement of sale that cannot be treated as sufficient
evidence or an admission to declare the title of the plaintiff. There may
be several instances where the property originally may belong to the
Government or to any Trust or Wakf Board and there may not be any
person to actively resist the claims of a person who had grabbed or
occupied a Government land he may claim that he is the owner of that
property and by referring the adjacent survey number of a private land he
may propose to sell the Government land or a piece of land on which he
has no title or which was never allotted to him in the partition. Of course
the intending purchaser has to verify the title of his vendor but when he is
misled and when certain documents have been shown purporting to be
the documents of the land in dispute then the innocent purchaser may be
cheated. There may be occasions where the original vendor having
executed GPA may subsequently cancel the same and which may not
reflect in the encumbrance certificate. There may be instances where a
testator after executing the Will may subsequently cancel the same. If a
proposal is made to alienate the property on the basis of the earlier Will or
a GPA which has subsequently cancelled the innocent purchasers may be
cheated. Therefore, there may be many instances where a person even
after making some reasonable enquiry may not know the truth or may not
detect the cheating and enter into an agreement of sale with a person
who has no title or ultimately it may be proved that such proposed vendor
had no title to the property. Therefore, it is crystal clear to my mind that
merely because a person has entered into an agreement of sale or filed a
suit for specific performance or paid some amount towards advance to the
vendor, these circumstances themselves are not sufficient to declare the
title of proposed vendor. Therefore, the findings of the Courts below
appears to be perverse.
Now it has to be seen whether the plaintiff has proved his title. As
discussed above, burden lies on the plaintiff to prove his title. The
plaintiff cannot take advantage of the weakness in the case of the
defendant. There must be cogent evidence which inspire confidence of
the Court to declare the title of a party. It is immaterial even if there are
certain oral admissions made by a party. The views of a person may
depend upon several circumstances. A person may be made to believe
that the plaintiff has title to the property under the premise he may even
admit the title of a party. Even that is not sufficient. There may be an
occasion where there may be collusion between the parties to grab the
Government property or the land belonging to any other Institution.
Merely on the ground that the defendant has accepted the title of the
plaintiff, if the declaration is granted the unscrupulous parties taking
advantage of such declaration and the decree passed by the Civil Court
may prevail upon the revenue officials or Mandal Officials and get their
names mutated in the official records, though they have no right in the
property. Thus, it appears on admission by opposite party or an
agreement of sale signed by a vendee is not sufficient to declare the title
of the vendor. In a suit for declaration the plaintiff has to let in sufficient
evidence particularly documentary evidence to establish his title. Merely
because of weakness in the case of defendant or on mere oral admissions
by the defendant, the title of the plaintiff cannot be declared. Therefore,
the Courts have to be vigilant and careful while passing a decree of
declaration.
In this case we are concerned with 600 sq. yards of land only. The
plaintiffs case is that it is in Sy.No.9. The contesting defendant in this
case hereinafter will be referred as defendant. The defendants case is
two fold. One of his version is that the disputed site is in Sy.No.10 and
not in Sy.No.9 and another version is that the disputed site has been in
his possession since more than statutory period and therefore he has
perfected his title by way of adverse possession. Admittedly, Sy.Nos.9
and 10 are the adjacent to one another. Even according to plaint
schedule Sy.No.10 is towards west and south of Sy.No.9. The plaintiff has
filed documents pertaining to Sy.No.9. Though village map is filed, but
there is no specific map showing these two survey numbers and the Canal
between these two lands. The plaintiffs case is that he filed IA No.293 of
1987 and obtained injunction order against the defendant on 10.01.1988.
During the pendency of said order the defendant encroached 600 sq.
yards of land by force and constructed a wall at points A, B, C, D and E.
Thus, his case is that the defendant encroached the land after January
1988.
Now it has to be seen what is the evidence of the plaintiff with
regard to 600 sq. yards of land. The plaintiff is examined as PW.1.
According to him he filed a petition for appointment of commissioner to
survey the property and fix the boundaries and the said petition was
allowed and the Commissioner surveyed the suit property and it was
found that an extent of 600 sq. yards is owned by him. His further case is
that defendant No.2 has objected. The petitioner filed Ex.A4. Ex.A4 is
the panchanama said to have been prepared by the Surveyor. It is dated
26.02.1984. No other panchanama or the Commissioners report is filed.
So, this document shows that the land was surveyed in the year 1984.
According to the plaintiff at the time of survey he has learnt that 600 sq.
yards of land is owned by him. This gives an impression that 600 sq.
yards of land which was in the possession of the defendant on
measurement was found to be the land of the plaintiff. But, according to
the plaint averments after filing of IA No.293 of 1987 the defendant
encroached 600 sq. yards of land. Thus, there is material contradiction in
the case of the plaintiff as to the date on which the defendant encroached
600 sq. yards of land. The plaint schedule property is shown as Sy.No.9,
extent 0-08 gts., bounded by East: National Highway Hyderabad to
Bombay, West: Sy.No.10, North: Sy.No.8 and South: Sy.No.10. Of course
the agreement of sale is with regard to 0-04 gts., of land out of 0-08 gts.,
in Sy.No.9 with the following boundaries; North: Portion of land in Sy.No.9
belonging to Yella Rao, South: Compound Wall/beyond Sy.No.10 of
plaintiff, East: National High Way No.9, West: Compound Wall/beyond
land in Sy.No.10 of plaintiff. The entire 0-08 gts., of land is shown as
open land. The suit was filed on 22.04.1987. So as on 22.04.1987 the
entire 0-08 gts., of land is described as vacant land. But PW.1 deposed
that the total extent of suit property is 968 sq. yards and there are four or
five shops in the suit property and his father constructed shops in an
extent of 268 sq.yards about 30 years ago.
The plaintiff was examined on 09.10.1995. Thus, according to him
his father constructed four or five mulgies in 1965. But, admittedly, in the
plaint schedule the entire land is shown as vacant land. The father of the
plaintiff is examined as PW.3. According to him, he constructed 9 mulgies
in the suit land and gifted 5 mulgies to his brothers son and 4 mulgies
and open land were given to his son i.e., plaintiff. He further deposed
that he constructed 9 mulgies about 7 or 8 years ago. He was examined
in 1996. Thus, according to PW.3 the mulgies were constructed in 1987
or 1988. These mulgies appear to be not in 600 sq.yards of disputed site.
But description of entire property i.e., 0-08 guntas is not correct.
Be that as it may, we are mainly concerned with regard to 600 sq.
yards of land. PW.1 during his cross-examination deposed that he got
0-08 gts., of land in Sy.No.9. He further deposed that there is channel in
between Sy.Nos.9 and 10. The said channel passes between Sy.Nos.9
and 10. The said channel is not in existence and it is diverted towards his
land. Now the defendant is in possession of 650 sq. yards of land beyond
channel. He further deposed that there are two pillars connected the said
survey numbers with a compound wall with a gate. East there is a
compound wall between the land possessed by him and the defendant
extending the same to western side. Initially he denied the suggestion
that the land possessed by the defendant is covered by compound wall.
Again he deposed that the land in occupation of the defendant is covered
by the compound wall and the defendant alone constructed the said
compound wall. In the absence of evidence showing the demarcation of
Sy.Nos.9 and 10 and the evidence of Surveyor to the effect that 600 sq.
yards of disputed land beyond Channel falls in Sy.No.9, the plaintiff
cannot claim title to the disputed site of 600 sq. yards. Of course much
value need not be given to the oral evidence in such a situation but
plaintiff himself deposed that there is a channel in between Sy.Nos.9 and
10 and said channel passes in between Sy.Nos.9 and 10 and the
defendant is now in possession of 650 sq. yards of land beyond channel.
Thus, now the land claimed by the plaintiff is beyond the channel.
Therefore, it becomes obligatory on the part of the plaintiff to prove by
leading cogent evidence that the land beyond channel is a part of Sy.No.9
and that he is the owner of the said land. Absolutely there is no evidence
on this aspect.
Though there is no much dispute with regard to claim of the
plaintiff that he is the owner of Sy.No.9, but what is to be seen is whether
the plaintiff had adduced any satisfactory evidence. When we look into
the documents filed by the plaintiff it is clear that except one Kasra Pahani
no other documents have been filed to establish the title of the plaintiff.
Ex.A1 is only an agreement of sale between the plaintiff and the
defendant. Ex.A2 is also an agreement of sale. Ex.A3 is the certificate
showing that House No.4-126 stands in the name of the plaintiff. Ex.A4 is
the panchanama conducted by the Surveyor to the effect that he has
measured Sy.No.9 and fixed the boundaries. Ex.A5 is the tounch map
attached to Ex.A4. Ex.A6 is the notice issued by the Inspector of Police
to the defendant asking him not to make any constructions in the
disputed site. Ex.A7 and A8 are the land revenue receipts showing the
payment of land revenue by the plaintiff to Survey No.9. Ex.A9 is the
injunction order obtained by the plaintiff in IA No.390 of 1984 in OS
No.100 of 1984. The contesting defendants case is that he is not a party
to the said suit. Ex.A10 is the copy of order in IA No.583 of 1984 giving
police assistance to the plaintiff. Ex.A11 is the decree in OS No.100 of
1984. Ex.A12 is the Kasra Pahani for the year 1954-55, wherein the name
of pattadar is written as Mohd. Gouse. Ex.A13 is the village map showing
the survey numbers.
It appears that in Ex.A12 Kasra Pahani the name of pattadar is
written as Mohd. Gouse, but the same was struck off and name of T.
Narsaiah father of plaintiff is written. It appears Patwari hadput his initial
(Patwari is the person who makes entries in pahanies and submit to Tahsil
office). The entries in the Kasra Pahani are treated as important entries
as far as Telangana area is concerned. They are generally reliable. But in
this case, there is a correction in the Kasra Pahani. The Patwari has
struck off the name of the original owner and written the name of the
father of the plaintiff. There is nothing on record to show that by what
authority Patwari made corrections in the Kasra Pahani. For making
corrections in the Kasra Pahani there should be an order of the Tahsildar
or any other competent revenue officials higher than the Tahsildar. There
is nothing on record to show that Patwari was authorized to make any
corrections in the Kasra Pahani. Moreover except Kasra Pahani there is no
other document showing the title of the plaintiff. According to PW.3 he
purchased the land from Gouse Miya under a private sale deed.
Admittedly, the sale deed is not filed. PW.3 says patta is mutated in his
name in the revenue records. He further says that he has gifted 5
mulgies out of 9 mulgies to his brothers son and 4 mulgies and 600 sq.
yards of land to his son the plaintiff. Admittedly, there is no document to
prove the said partition. He himself admitted that there are no documents
to show that he has gifted 5 mulgies to his brothers son and 4 mulgies
and open land to the plaintiff. The plaintiff as PW.1 deposed that he is
the owner of the suit property and originally it was owned by his father
and that he got the suit property under a partition. Admittedly, no such
partition deed has been filed. It is his further case that in the plaint
averments the plaintiff claimed that the patta of the suit land stands in his
name and also in the name of his paternal uncle T. Yadaiah and that he
got the property in the partition with his uncle. His fathers case is that he
gifted 4 mulgies and open land to the plaintiff. The plaintiffs original
averment is that he got the property in the partition with his paternal
uncle T. Yadaiah. Thus, there is no consistency in the version of the
plaintiff and his father. Even if it is considered that their versions are not
conflicting, there is no documentary evidence to show that there was a
partition between the plaintiff and his paternal uncle T. Yadaiah.
After remand the plaintiff got marked some more documents.
Ex.A15 is the copy of decree in OS No.32 of 1978 between the plaintiff
and Gopal Goud. Admittedly, the defendant is not a party to the said suit.
Ex.A16 shows that the plaintiff was permitted to take electric supply for 5
HP and he made some amount towards voluntary contribution to the
Electricity Department. So, Exs.A17 and A18 are the payments showing
the electricity bills. Exs.A17 to A20 are electricity receipts, Exs.A21 to A28
are municipal and Grampanchayat receipts and ex.A29 is the sanctioned
plan and ex.A30 is the permission. These documents pertain to the
constructions made by the plaintiff to the existing House No.5-116. These
documents do not prove the title of the plaintiff over the disputed site of
600 sq. yards.
I have also considered the other documents filed by the defendants
and Exs.X1 and X2. Though in the legal notice issued by the defendant or
in the agreement executed between the plaintiff and defendant the
defendant seems to have admitted the title of the plaintiff. But as
discussed in the earlier paras, such admissions made by the defendant are
not sufficient to prove the title of the plaintiff.
When the plaintiff has miserably failed to prove his title, it is clear
that the findings of the Courts below on this issue are perverse.
Therefore, in view of the substantial question of law raised by the
appellant in SA No.469 and 468 of 2004, arising out of OS No.208 of 1987
and 646 of 1991, the appeals are to be allowed. Consequently the suits
filed by the plaintiff in OS No.208 of 1987 and 646 of 1991 for declaration
of title and recovery of possession and injunction are liable to be
dismissed.
Though the defendant appears to be in possession of 600 sq. yards
of land since the title is in serious dispute the defendant cannot get
injunction order unless the cloud with regard to title is removed.
Therefore, SA Nos.467 and 475 of 2004 are liable to be dismissed.
The defendant filed OS No 101 of 1990 for specific performance
basing on the agreement of sale dated 28.07.1987. The plaintiff admitted
in his evidence that he received advance of Rs.20,000/-. The defendant
claims that he has also deposited Rs.1,00,000/- in the Court. However,
there is no satisfactory evidence to say that the defendant was ready to
transfer 1200 sq. yards of site at goods shed. It appears that the
defendant did not offer to give 1200 sq. yards of site at goods shed in his
legal notice. However, since the plaintiff has not proved his title, he
cannot be directed to execute the sale deed in respect of 600sq. yards of
land i.e., disputed site. In the circumstances, the suit for specific
performance has to be dismissed. If the defendant has not received back
the amount of Rs.1,00,000/- deposited by him, he is permitted to take
back the said amount.
Accordingly, SA Nos.468 and 469 of 2004 are allowed and SA
Nos.467 and 475 of 2004 are dismissed. Consequently the suits filed by
the plaintiff in OS No.208 of 1987 and 646 of 1991 for declaration of title
and recovery of possession and perpetual injunction and the suits filed by
the defendants in OS No.101 of 1990 and 608 of 1992 are dismissed.
As a sequel, the miscellaneous petitions, if any, pending in this
second appeal shall stand closed.
______________________
B. CHANDRA KUMAR, J
Date: 28th October 2014