Telangana High Court
Mandal Revenue Officer, Pitlam V And ... vs M.Linga Reddy, on 10 April, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No. 80 of 2005
JUDGMENT:
This appeal is filed against the judgment and decree dated 09.01.2004 in A.S. No.9 of 2003 on the file of Senior Civil Judge, Bodhan in which the Judgment and decree dated 30.09.2002 in O.S.No.57 of 1999 passed by the learned Junior Civil Judge, Banswada was confirmed.
2. The suit vide O.S.No.57 of 1999 was filed for declaration and permanent injunction by the respondents/plaintiffs against the appellants/defendants in respect to Sy.No.210, admeasuring Ac.5.09 guntas of Sivar of Timmapur Village of Pitlam Mandal. The trial Court examined P.Ws.1 & 2 and marked Exs.A1 to A20 on behalf of the plaintiffs and got examined D.Ws.1 to 3 on behalf of the defendants and marked Exs.B1 to B31. The trial Court after considering the arguments of both sides, decreed the suit. Aggrieved by the said Judgment and decree, defendants therein preferred an appeal before the first appellate Court, and the same was dismissed by confirming the Judgment of the trial Court. Aggrieved by the concurrent findings of both the Courts, defendants before the trial Court preferred the present appeal.
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3. The learned Counsel for the appellants raised the following substantial questions of law:
a) Whether both the Lower Courts are right in granting a Decree basing on Ex.A1 which is an Agreement of sale?
b) Whether both the Lower Courts are right in granting Decree through noticed that the Plaintiff changed their stand from Writ Petition to Original Suit with regard to his case?
c) Whether the Lower Courts are justified in answering the issue No.5 in favour of the plaintiff that "whether the Suit is bad for non-joinder of proper and necessary party called Sri Jagadguru Shankara Charya"?
d) Whether the Courts below are justified in not giving any proper reasoning with regard to the issue No.7 i.e., whether the Suit is barred by limitation and not maintainable and how?
e) Whether the Courts below are justified in their approach that the defendants failed to prove their case whereas, it is the settled Principle of Law that it is the Plaintiff to prove it's Case on it's own?
4. Heard Sri P.Shamanthak, learned Assistant Government Pleader for Arbitration and Sri K.Raghuveer Reddy, learned counsel for respondents.
5. The brief facts of the case are that the Plaintiff No.1 purchased the land in Sy.No.210 admeasuring Ac.5.09 guntas 3 in dry land and Sy.No.214 admeasuring Ac.14.31 guntas situated at Thimmanagar village from Shankar Swamy Jagannadha Guru Samstha Hampi through his General Power of Attorney holder S.Rajeshwar Rao for a consideration of Rs.2,000/- under the unregistered sale deed dt.05.01.1957 in the name of plaintiff No.2, who was minor at that time and under the guardianship of plaintiff No.1 on the same date possession of above two survey numbers was delivered to the plaintiff by the G.P.A holder. As per the consideration sale deed on the date of execution of Rs.300/- was paid and possession of the said land was taken by plaintiff No.1. Later the remaining amount of Rs.1700/- was also paid to the G.P.A holder. Inspite of repeated demands plaintiff No.1 failed to execute the registered sale deed with respect to two survey numbers. The receipt of Rs.1700/- is misplaced. Both the survey numbers were purchased by plaintiff No.1 in the name of his minor son, Devender Reddy (plaintiff No.2) while the plaintiff No.1 and brother of plaintiff No.1 were living as a member of Hindu Joint Family.
6. The original partition among the brother of plaintiff No.1 took place in the year 1980 and the land in Sy.No.210 admeasuring Ac.5.09 guntas fell to the share of plaintiff No.1 4 and the land in Sy.No.214 admeasuring Ac.14.31 guntas fell to the share of plaintiff No.1's brother, Vittal Reddy and Devender Reddy, Satyam Reddy, Jagga Reddy after the death of Vittal Reddy, his son Mohan Reddy are in continuous possession over the respective share in Sy.No.214 admeasuring Ac.14.31 guntas fell to the share of plaintiff No.1's brother who is in continuous possession being owner over their respective share in Sy.No.214 admeasuring Ac.14.31 guntas. The plaintiff Nos.1 and 2 being possessor perfected the title with respect to the suit land by prescription. Plaintiff No.1 got revenue records original raithu pass book for the year 1984-85 issued by the Tahasildar, Banswada basing on the long standing earlier possession of the plaintiff No.1 over the suit land as purchased since 1961 by the competent revenue authority, revenue entries incorporated in the Records Of Rights are presumed to be true until the contrary is proved. The defendants No.1 to 3, the revenue officials have not concerned with the suit land as the plaintiff is absolute owner. The defendants No.1 to 3 at the instance of opponents and under the political basis without any rights exercising that right illegally and arbitrary issued a publication vide letter No.D1/1815/93, dt.30.09.1999 fixing of the date on 15.10.1999 at 11.00 A.M. at Thimmanagar Village at the office 5 of M.R.O, Pitlam to lease out the suit land for one year. The photo copy of the division is enclosed. The defendants No.2 and 3 interested to auction the suit land for lease for one year. The possession of the plaintiff over the suit land is not disputed by the defendants. The plaintiff No.1 raised the Nalla Kusuma crop and harvested the same and prepared the suit land and sowed the crop. The plaintiffs are in possession over the suit land even earlier to issue of Raithu Pass book. The plaintiff No.1 submitted the pahani patrika for the year 1992-93 issued by the V.A. O, Thimmanagar Village. The plaintiff No.1 also filed pahani patrika for the year 1996-97, within Col.No.13, the plaintiff No.1 was shown as possessor of the suit land issued by M.R.O, Pitlam. The pahani copies for the year 1997-98, 1998- 99 issued by V.A.O, Thimmanagar are filed to show the possession of plaintiff No.1 over the suit land.
7. The plaintiffs filed certificate dated 13.10.1998 issued by the Office of the Assistant Commissioner Endowment, Nizamabad. The plaintiffs further pleaded that the procedure of eviction against the encroachers under Section 83 and 84 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 is by the officers competent under the said act but not the defendants. The suit land is not the 6 assigned land of the Government nor the poramboku or kharij katha for which the defendant No.1 to 3 cannot initiate any proceedings under any of the revenue law.
8. In the written statement filed by defendants they stated that the plaintiffs are not in possession of the suit land from the date of filing of the suit. There is no possession of the plaintiffs over the suit land and the said lands are in custody of the Government. The suit vide O.S.No.57 of 1999is liable to be dismissed because of non-joinder of the necessary parties to the suit i.e., Sri Shankarachary Swami Humpi Virupaksha Vidyaraga Maha Samsthanam, Virupaksha Vidya Ranga Mahapeetam (Pampakshetram), Vijayanagara Empire (Hampi), Karnataka State, under whom the plaintiffs are claiming title. They are claiming that they are in possession by virtue of lease as stated in affidavit of W.P. No.31519 of 1998 and later claims by virtue of purchase i.e., agreement of sale which is contradictory to their own stand. The original agreement of sale is not filed and it is alleged that remaining sale of consideration is paid to GPA holder. But no receipt is filed to show the same. The alleged GPA is also necessary party. It is averred that the original document is with the advocate and the same will be filed later is false because the plaintiffs themselves filed an 7 application on 23.12.1993 stating that original sale deed is lost and could not be available with them i.e., before filing W.P. No.31519 of 1998. The sale deed is described as an agreement of sale and there should be signature of both parties. But there is no signature of either of the parties. So the agreement of sale is bogus one. Jagadguru Shankara Charya visited to Pitlam Village and announced that he has not sold the land. He has categorically denied that he has sold the lands to plaintiffs and there is no necessity of selling lands for him to anybody and he asked the people to examine the document and if he has sold it, there will be gold and silver seals over the document. But the seals were not found on the document. Plaintiff No.2 went away to bring the original document but he did not bring the same. The above statement was announced by the Jagadguru Shankara Charya on 04.10.1999 in Vaartha Daily paper. The plaintiffs should have filed a suit within three years from the date of agreement of sale but they could not file the same and the claim of the plaintiffs is barred by limitation. No proceedings were issued by recording authority and the plaintiff No.1 never got regularized the sale deed as required under Section 5 of ROR Act. When one claims possession under agreement sale there must be continuous possession till date 8 right from the purchase. But the plaintiffs are not in possession right from 1957 and thus the plaintiffs' claim is false. The land gifted to Sri Shankara Charya is nothing but an institution i.e., charitable one and religious one so the character of patta land changes to religious Charitable Institute Inam and thus assumes character of Inams of Charitable and religious Institutions. As per G.O.Ms.No.1020, Rev-(JA) Department dated 05.10.1994, the authorities have power to exercise and thus the physical possession were taken by the Government from the custody of the plaintiffs under a cover of panchanama by the Mandal Revenue Inspector before panchas and kept under supervision of VAOs and since then the lands are in custody of the Government. There is no continuous possession of the suit land since 1957. GPA was not examined before any authority. The plaintiffs are not entitled for any relief. Therefore, requested the trial Court to dismiss the suit.
9. Considering the arguments on both sides, the trial Court decreed the suit in favour of plaintiffs and the same was confirmed by first appellate Court. On 14.10.1999, the trial Court granted status quo till 15.10.1999.
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10. Learned counsel for appellants relied upon a judgment passed by the Hon'ble Apex Court in Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and Others 1, wherein it was held as follows:
In a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case of not.
He also relied upon another judgment passed by the Hon'ble Apex Court in Uttam Chand (Dead) Through Legal Representatives Vs. Nathu Ram (Dead) through Legal Representatives and Others 2 wherein it was held as follows:
Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose - Adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e., adequate in continuity, nec clam i.e., adequate in publicity and nec precario i.e., 1 (2014) 2 SCC 269 2 (2020) 11 SCC 263 10 adverse to a competitor, in denial of title and his knowledge - Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be considered.
11. Learned counsel for respondents/plaintiffs contended that the dispute is regarding the land in Sy.No.210 admeasuring Ac.5.09 guntas of Sivar of Thimmanagar Village of Pitlam Mandal when appellants/defendants issued a publication vide letter No.D1/1815/93 dated 30.09.1999 for conducting auction on 15.10.1999 as such they filed O.S. Plaintiffs also filed Writ Petition No.31519/1998 and Writ Appeal No.277/1999 and the same were dismissed. The respondent No.1/plaintiff No.1 filed a certificate issued by the Assistant Commissioner of Endowment Nizamabad, dated 13.10.1998 showing that the suit land in Sy.No.214 is not the endowment property but it is a patta land (Ex.A18).
12. Appellant No.1/D.W.1 in his evidence stated that the land bearing No.210 belongs to Jagadguru Shankara Chary of Hampi Brindavanam Samstahanam situated at Karnataka State. The plaintiff No.1 has not filed any document of purchase relating to the suit land in their department. The Plaintiff No.1 has not filed any document of purchase relating to the suit land in their 11 department. The respondent No.1/plaintiff No.1 filed W.P.No.31519/1998 in which they themselves stated that they are cultivating the land on the basis of lease at another time they are stating they are purchased the land and he filed the documents on behalf of department i.e., pahani patrika for the years 1955-56 to 1957-58 the name of the pattedar is one Shankara Guru Swamy, name of the cultivator are Agamreddy, Begari Agamaga, Dobbala Lachaiga, Bondla Agamaga in the nature of possession written as Nagadu Koul Rs.100/-. He filed the pahani patrikas from the year 1958-59 to 1999-2000 under Ex.B.2 to B.23, out of these pahanies nowhere in the pahanies it is mentioned that the Plaintiff is not a purchaser (Khareedar) in some of the pahanies several persons names are mentioned in the cultivators column in the capacity of Kouldars. In some pahanies there is a mention as a 'Nil' in some pahanies it is shown the pattedar himself cultivate the suit land. For the first time in the year 1988-89 onwards the name of plaintiff No.1 recorded as a Khareedar. Ex.B24 is the letter addressed by Sri Jagadguru Shankaracharya Humpi Virupaksha Samsthana, dt.06.03.1995 addressed to the Commissioner, Endowments Department, Nizamabad, in which it is stated that he has not given nature of the document to anybody and the suit lands 12 belongs to them. Exs.B25 to B30 are the documents pertaining to the office records. Ex.B31 is the District Edition of Vaartha News Paper. The Collector directed him to take this Suit land into custody of the Government and to auction the Suit land. As per the direction of the Collector, he conducted the auction of the Suit land. In Ex.B.31, dt.04.10.1999, Vaartha News Paper, the Shankara Acharya visited to Pitlam in respect of the suit land and denied that he has sold the suit land and also stated that there is no necessity for him to sell the suit land. The Plaintiff not impleaded the Jagadguru Shankaracharya as one of the party to the suit so also not implead the alleged GPA of Rajeshwara Rao party to the suit. If any purchases takens place with respect to the landed property both seller and purchasers have to appear before the Tahasildar and give their statement and request sanction of the record as per AP TN Agricultural Tenancy Act, 1950 but in the present case no such sanction was took place. The Plaintiff No.1 is Assuldar of Police Patel of Thimmanagar. The Record shows that the possession of the plaintiffs from 1955-56 to 1988-89 as kouldar as such the alleged unregistered sale deed submitted by the Plaintiff is not genuine one and it is fabricated. The first time in the year 1988-89, the name of the Plaintiff appeared as a Khareeddar. 13 From 11-08-1998, the suit lands are in the custody of the Government. Even today it is in the custody of the Government and the land is kept fallow.
13. DW.2, G.Trinath Rao, ASO of MRO Office, Pitlam deposed that he worked as a ASO of MRO Office, Pitlam as an Incharge MRI. On 25-03-1999, he went to Thimmanagar Village for taking custody of the Sy.No.210 and 214 of Thimmanagar Village pertaining to Jagaduguru Shankaracharya, and conducted panchanama in the present of Konda Balkishan, M.Anjaiah, M.Ramreddy, D.Satyanarayana goud and L.Sai Reddy, he visited the land there was no crop and they taken the custody of the above said land to the Governemnt by conducting panchanama under Ex.B28 and given the said land under the supervision of VAO. After conducting Panchanama, he reported the mater to MRO, Pitlam on 25.03.1999.
14. D.W.3, Golla Laxmaiah, VAO of Thimmanagar Village deposed that on 25.03.1999, D.W.2 visited their villages for taking custody of the suit land in Sy.No.210 to an extent of Ac.5.09 guntas and Sy.No.214 of aC.14.31 guntas and want to spot the above lands and conducted panchanama in the presence of panchas, Konda Balkishan, M.Anjaiah and 14 M.Ramulu. The lands were taken to the Government custody and given in his custody to VAO for supervision and at the time of conducting panchanama there was no crop in the said land and drafted the panchanama under Ex.B28. There are two witnesses, D.Satyanarayana Goud and N.Saireddy to the said panchanama.
15. It is further stated that Rajeshwar Rao is not paid holder and he is never associated with Samsthan. Plaintiff relied upon Ex.A2, pass book. As per the evidence, the land is not Government land and it is not inam land and it is patta land. The suit schedule property was gifted to Hampi Samsthan by one of the devotee. As such, defendants contended that it pertains to the Charitable Institution and GPA holder cannot sell it to the plaintiffs on his own.
16. Though plaintiffs contended that they submitted the averment to the MRO, they furnished the certified copy of pahani from the year 1957 onwards but it was kept pending. It is for the plaintiff No.1 to prove his title when he filed suit for declaration. The first appellate Court came to the conclusion that plaintiffs are entitled for declaration and confirmed the order of the trial Court. Though Plaintiff No.1 filed Ex.A1, he 15 could not examine Rajeshwar Rao and the said documents do not contain the sale by Jagadguru Shankara Charya and there is no GPA furnished by him. Even after the statement of Jagadguru Shankara Charya, he never sold any property and the said Rajeshwar Rao has not been examined by any of the executive officers of Hampi Samsthanam. The defendants contended that at one point it was stated as agreement of sale and at another point it was stated as registered agreement of sale. In the document, only payment of Rs.300/- was shown and it was stated that balance will be paid subsequently.
17. Respondent No.1/Plaintiff No.1 contended that possession was handed over to him from the date of Ex.A1. His father purchased the suit land from Rajeshwar Rao, GPA of Shankaracharya Guru for a consideration of Rs.2,000/- and paid Rs.300/- and got an unregistered deed and afterwards he paid the balance amount to him, but the said Rajeshwar Rao did not executed the sale deed. There is no evidence to show that Rajeshwar Rao is authorized by Hampi Samsthan to execute sale deed. Receipt for Rs.1700/- not paid and thus agreement of sale was executed without any right or title by Rajeshwar Rao. As he died three months after executing a preceding sale, yet he was not examined before the court. It 16 clearly shows that unregistered sale deed is executed by him. Therefore, plaintiffs cannot get any title over the suit schedule property. Plaintiffs stated that they purchased Ac.5.09 guntas of land and also Ac.14.31 guntas of land. But the dispute is regarding Ac.5.09 guntas of land situated in Sy.No.210.
18. Admittedly, only Xerox copy of Ex.A1 was filed. The appellants/defendants mainly contended that if Exs.A1 and A2 were also issued in their favour seven years after the execution of Ex.A1 as such they are pattadars of the land. But it was not validated before the MRO till the date of filing of the suit. The trial Court and first appellate Court erred in appreciation of the facts and totally relied upon Ex.A1 and decreed the suit as rightly pointed out by the appellants/defendants. The trial Court and the first appellate Court failed in appreciating the facts of the case. Considering the arguments and the facts, this Court finds it just and reasonable to set aside the order of the first appellate Court which confirmed the order of the trial Court.
19. In the result, the Second Appeal is allowed by setting aside the concurrent findings of the both the Courts. The order dated 09.01.2004 in A.S.No.9 of 2003 on the file of Senior Civil 17 Judge, Bodhan and also the decree and Judgment dated 30.09.2002 in O.S.No.57 of 1999 passed by the learned Junior Civil Judge, Banswada are hereby set aside. There shall be no order as to costs Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 10.04.2024 CHS