Telangana High Court
Kurma Mahender And 2 Others vs Maddula Narasiah And 6 Others on 26 August, 2022
Author: M. Laxman
Bench: M. Laxman
THE HON'BLE SRI JUSTICE M. LAXMAN
SECOND APPEAL No.20 OF 2021
JUDGMENT:
1. The present appeal has been directed against the judgment and decree dated 17.07.2019 passed in A.S.No.134 of 2018 by the Principal District Judge, Adilabad, wherein and whereby the judgment and decree dt.19.09.2018 passed in O.S.No.11 of 2018 by the Senior Civil Judge, Adilabad, was reversed and consequently the suit was decreed. The said suit was filed by the respondents/plaintiffs herein for declaration of title, recovery of possession and for mesne profits. The said suit was initially dismissed, and reversed in the appeal. Hence, the present second appeal
2. The present appeal is at the instance of defendants. The respondents herein are plaintiffs. For brevity, the ranks of the parties as they were referred in the suit, is maintained.
3. The sum and substance of the case the plaintiffs is that originally one Maddula Bhojanna was the absolute owner and possessor of the land to an extent of Ac.15-04 gts., in Sy.No.35 situated at Sirsanna village, Jainath Mandal, Adilabad District, and he died leaving behind his three sons namely Bheemanna, Ushanna and Ashanna. According to them, 40 years prior to institution of the suit, partition was effected among the sons of Bhojanna. In the said partition, Ac.5-00 gts., of land fell to share of 2 ML,J SA No.20 of 2021 Ushanna and after his death, his legal heirs who are plaintiffs inherited the said land. The defendants taking the advantage of absence of plaintiffs in their village, they encroached upon the land of plaintiffs one year prior to filing of the suit in collusion with the Revenue Officials manipulating the entries in revenue records. Therefore, the plaintiffs got issued a lawyer's notice on 18.12.2017, but there was no reply from the defendants. Thereafter, the present suit has been filed.
4. The defendants in pursuance of summons have not participated in the suit, as such, they were set ex parte and ex parte trial was taken up. The plaintiffs to prove their case examined PW.1 and relied upon Ex.A1 to A12. The trial Court basing on Ex.A6 to A12, found that the plaintiffs were not in possession of the suit property since 1988 onwards, and from 1994-95 onwards the name of Lasma Reddy, who is defendants' father, was recorded as pattedar and possessor, and the Court held that the suit is expressly barred by limitation and consequently, the suit was dismissed. 4.1 Aggrieved by the same, the plaintiffs have preferred the appeal. The First Appellate Court reversed the findings of the trial Court, holding that revenue records show that the plaintiffs are in joint possession along with other shareholders and the name of Lasma Reddy was entered in the possession column as a joint owner without any supporting material and 3 ML,J SA No.20 of 2021 consequently, the appeal was allowed reversing the judgment and decree of the trial Court and decreed the suit. Hence, the present second appeal is filed by the defendants.
5. This Court has framed the following substantial questions of law:
1. Whether the First Appellate Court is justified in allowing the appeal even though the plaintiffs are out of possession for more than 12 years in respect of suit schedule property and as such the suit is barred by limitation?
2. In a suit filed for declaration of title, mere entries made in the revenue records do not confer any title and basing on the entries in the Kasara Pahani or revenue records, the title of plaintiffs cannot be declared. The trial Court after appreciating the legal aspects dismissed the suit. While reversing the judgment of trial Court, whether the First Appellate Court is justified in appreciating the said legal aspect?
3. Whether the pure question of law which does not require any re-appreciation of evidence can be permitted to be urged even for the first time in Second Appeal?
6. The plaintiffs claimed title and possession on the strength of the revenue records and plaintiffs mainly relied upon Ex.A12/Khasra Pahani whereunder Mr. M. Bhojanna's name was recorded as Pattedar and possessor of the land. After the death of said Bhojanna, Bheemanna's name alone is recorded as pattedar. Up to 1988, the names of Bhojanna, Ushanna and Ashanna were recorded in the possession column. In the 4 ML,J SA No.20 of 2021 entire revenue records filed by the plaintiffs, there is no mutation in revenue records reflecting the name of Ashnna treating him as pattedar for 1/3rd share. The defendants' ancestor's name Lasma Reddy was recorded as pattedar and possessor from 1994-95 onwards. The suit was filed in the year 2018. Up to 2018, the name of Lasma Reddy and his descendents were recorded as pattedars for the suit land whereas the other shareholders' name i.e. Bheemanna and Ashanna were also recorded as pattedars and possessors of rest of the land in the said survey number.
7. The plaintiffs' case is that the lands were partitioned and the suit land was allotted to their share. There is no such evidence on record with regard to partition of this land towards share of Ushanna. Even going by the revenue entries, plaintiffs failed to establish his exclusive title over the suit land except placing reliance on the Khasra Pahani whereunder the original ancestor's name was recorded. The trial Court while considering the evidence on record, appreciated the revenue entries and found that from 1988 onwards the plaintiffs and their ancestor's name were not found in the revenue record in the possession column and from 1994-95 onwards the name of Lasma Reddy who is the ancestor of defendants was recorded as pattedar and possessor as made out from Ex.A6.
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8. Learned Counsel for the appellants/defendants has produced the sale deed allegedly executed by Ushanna, the ancestor of the plaintiffs. The said sale deed is a registered one and the plaintiffs have not adverted the sale deed existing in favour of Lasma Reddy and they have also not challenged the said registered sale deed and the learned Counsel for plaintiffs has contended that they are not aware of it. When a document is registered, the presumption under the Registration Act is that there is public notice and encumbrance over the property. The sale deed is of the year 1980 and perhaps on account of non-mutation basing on the sale deed, the plaintiffs suppressing the factum of sale, tried to lay claim on the suit land and the defendants could not participate in the suit proceedings. Had the defendants have participated in the suit; the truth would have been otherwise.
9. The First Appellate Court while reversing the judgment and decree of trial Court, strongly relied upon the revenue records up to 1988 to show that the plaintiffs' ancestor was one of the joint shareholder of the suit property and the suit property was in joint possession. These findings of the First Appellate Court are contrary to the very claim set up by the plaintiffs. The First Appellate Court also found that revenue records are manipulated. This finding is beyond the pleadings of the plaintiffs. The plaintiffs' pleadings show encroachment of the suit land 6 ML,J SA No.20 of 2021 was done one year prior to institution of the suit. After encroachment, the revenue records were manipulated and it is not their case that from 1988 the revenue records were manipulated in collusion with the revenue officials. The pleadings and the evidence are silent with regard to these aspects. The findings of the First Appellate Court that entries were made in collusion with the revenue officials is beyond the pleadings and evidence on record and those findings suffer from perversity.
10. Learned Counsel for respondents/plaintiffs contended that mutations were made beyond their back without notice and these mutations are of the year 1994. Till the date of suit i.e. nearly 22 years no grievance is made against mutations. No prudent title holder can be silent nearly for 22 years when mutation was effected in the name of third party when they claim that they have not sold the property. 1994 is the date on which, the possession of the defendants became adverse to the plaintiffs and therefore limitation is commenced under Article 65 of Limitation Act. If that 1994 is taken, the suit as well as appeal are barred by limitation. The possession prior to 1994 i.e. from 1988 onwards may not be relevant for consideration of limitation aspect. The First Appellate Court has not properly appreciated Ex.A6, which is the entry which shows that the possession of the defendants become adverse on account 7 ML,J SA No.20 of 2021 of their assertion of title by recording their name in the revenue records as pattedars.
11. Learned Counsel for respondents/plaintiffs relied upon the following decisions:
1. In Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and others1 wherein it is held that:
" Khasra is a record of right according to Section 45(2) of the Central Provinces Land Revenue Act, 1917. Section 80(3) of that Act provides that entries in a record of rights shall be presumed to be correct unless the contrary is shown. This provision raises a presumption of correctness of the aforesaid Khasra entries. Therefore the burden of proving adverse possession is a heavy one on the person alleging so."
2. In K. Papadu Vs. Golagana Suryanarayana and another2 "The Supreme Court in Shikarchand v. D.J.P. Karini Sabha , held that Khasra is a record-of-right. Although the record-of-rights is not a document of title, the Court is perfectly entitled to take into consideration the entry in the record-of-rights for coming to the conclusion that certain person is the owner of the land in question. The party relying on presumption of correctness need not prove foundation or basis of correctness. Where the entry in the record-of-rights shows the suit land in the name of the plaintiff, the onus is on the defendant to prove that the said entry in favour of the plaintiff is not correct."
3. In Chinnam Pandurangam Vs. Mandal Revenue Officer, Serilingampally Mandal, and others3 wherein it is held that "Proviso to Section 5(1) and Section 5(3) represent statutory embodiment of the most important facet of the rules of natural justice i.e. audi alterem partem. These 1 AIR 1974 SC 1178 2 2006(1) ALD 318 3 2007(6)ALD 348(FB) 8 ML,J SA No.20 of 2021 provisions contemplate issue of notice to the persons likely to be affected by the action/decision of the Mandal Revenue Officer to carry out or not to carry out amendment in the Record of Rights. Proviso to Section 5(1) lays down that if the Mandal Revenue Officer decides not to make an amendment in the Record of Rights, then he shall pass appropriate order only after giving an opportunity of making representation to the person, who gives intimation regarding acquisition of any right referred to in Section 4. Section 5(3) provides for issue of written notice to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. Similarly, a notice is required to be issued to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. A copy of the amendment and the notice is also required to be published in the prescribed manner. The publication of notice in the prescribed manner is in addition to the notice, which is required to be given in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. To put it differently, the publication of a copy of the amendment and the notice is only supplemental and not the alternative mode of giving notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and to any other person to whom the recording authority has reason to believe to be interested in or affected by the amendment. If the Legislature thought that publication of a general notice in Form-VIII will be sufficient compliance of the rules of natural justice, then there was no occasion to incorporate a specific requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to other person whom the recording authority has reason to believe to be interested in or affected by the amendment. In our considered view, the requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority thinks to be interested in or affected by the amendment clearly negates the argument that publication of notice in Form-VIII is sufficient."
4. In Ande Gangaiah (died) per LRs and another Vs. M. Krishna Reddy and others4 wherein it is held that:
4
2010(1) ALT 204 (D.B.) 9 ML,J SA No.20 of 2021 " Entries in revenue records would not confer any right nor would they take away any right existing in a rightful owner."
5. In Bhanguji Bayaji Pokale and othrs Vs. Kantilal Baban Gunjawate and others5 wherein it is held that:
"That the entries in revenue records can never form the basis of declaration of title with regard to immovable property. It is settled law that mutation entries or entries in the record of rights are made only for the fiscal purpose of recovering revenue. The said entries cannot amount to transfer of title of the holder of the property in favour of the person in whose name the entries are made."
6. In M. Durai Vs. Muthu and others6 wherein it is held that:
"The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-à-vis Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitatin Act, the plaintiff ws bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
7. In Hussain Begum and others Vs. Madu Ranga Rao and others7 wherein it is held that:
"Once title is established on the basis of the relevant documents and other evidence, unless the defendant proves the adverse possession of the prescriptive period, plaintiff cannot be non-suited. It clearly casts the burden upon the defendants."
8. In State of Haryana Vs. Mukesh Kumar and others8
9. In Narsamma and others Vs. A. Krishnappa9
10. In Thota Kameswara Rao Vs. Thota Ramgopal10 wherein it is held that:
"As per Limitation Act, 1963, if a plaintiff establishes his title, he is entitled to recover possession. The burden to prove perfection of title by adverse possession rests upon defendant who raises such a plea."
11. In Bayyarapu Narayana Raidu and another Vs. Pagadala Varalaxmi11 wherein it is held that "When suit is filed for recovery of possession of property based on title, 5 AIR 1998 Bombay 114 6 2008(1)ALD 124(SC) 7 2000(1) ALT 568(S.B.) 8 2012(1)ALT (SC)1(D.B.) 9 2020(5) ALT (SC) 188(F.B.) 10 2015(2)ALT 317(D.B.) 10 ML,J SA No.20 of 2021 plaintiff has only to prove his title. It is for the defendant to prove acquisition of title by adverse possession. Plaintiff need not prove his possession within twelve years preceding the suit to recover possession. In the absence of plea of adverse possession issue as to suit being barred by limitation need not be decided."
12. The propositions laid in those judgments were not seriously disputed in the present case. The First Appellate Court reversed the findings of lower Court without looking into the very pleading and evidence which do not supports theory set up by the plaintiffs. As such, the findings suffers from perversity.
13. The other substantial question of law raised is, whether a pure question of law can be raised in second appeal which does not require any re-appreciation of evidence. Pure question of law is not a substantial question of law. The question of law must be substantial. Therefore, the pure question of law cannot be a ground to entertain the appeal. The question of law must be substantial question of law.
14. This case is a fit case to impose exemplary costs. The plaintiffs have suppressed the prior encumbrance made by their father Ushanna by executing sale deed and the litigation was 11 2014(4) ALT 808(S.B.) 11 ML,J SA No.20 of 2021 initiated by suppression of such fact. Therefore, this Court feels it is a fit case to impose exemplary costs of Rs.25,000/-.
15. Accordingly, the appeal is allowed with exemplary costs of Rs.25,000/- (Rs. Twenty five thousand only) payable to the defendants and consequently, the impugned judgment and decree of the First Appellate Court in A.S.No.134 of 2018 is set aside, and the judgment and decree of trial Court in O.S.No.11 of 2018 is confirmed.
16. As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________ M. LAXMAN, J DATE:26.08.2022 BDR