Telangana High Court
K. Hari Kishan And 2 Others vs Banda Balram And Another on 7 April, 2022
Author: P Naveen Rao
Bench: P Naveen Rao
HONURABLE SRI JUSTICE P.NAVEEN RAO
AND
HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
A.S.NO.567 OF 2019
JUDGMENT :(Per the Hon'ble Sri Justice Sambasiva Rao Naidu) Aggrieved by the order/decree dated 18-07-2019 passed by the learned XIV Additional District Judge, Ranga Reddy District in I.A.No.1315 of 2017 in O.S.No.916 of 2017, the appellants, who are plaintiffs in the above said suit, have filed this appeal. The defendants in the said suit have filed I.A.No.1315 of 2017 under Order VII Rule 11 (d) of CPC, seeking rejection of plaint in O.S.No.916 of 2017. The trial court accepted the contentions of the respondents herein and allowed the I.A., rejecting the plaint filed by the appellants.
2. The appellants have claimed that the trial court erred in allowing I.A. with an observation that the suit filed by them is barred under Section 99 of the AP (T.A.) Tenancy and Agricultural Lands Act, 1950 (herein after referred to as the 'Act') by simply relying on the documents filed by the respondents inspite of the fact that they have also filed some documents and that the documents filed by the respondents are not proved by way of 2 SSRN,J A.S.No.567 of 2019 acceptable evidence. According to the appellants, as there is no proper record, there is an ambiguity with regard to the rights of the protected tenants as pleaded by the respondents. The appellants also claimed that the trial court committed error in allowing the application filed by the respondents without considering the record filed by them, though it has placed reliance on the documents of the respondents without sufficient proofs. They have also claimed Ex.P1, the alleged extract of protected tenancy referred to by the respondents was filed without proper translation, has been taken into consideration by the trial court. The appellants have claimed that there is no sufficient proof or evidence with regard to the alleged protected tenancy and as such, the trial court could not have allowed the petition filed by the respondents under Order VII Rule 11 (d) of CPC by going into the merits of the case.
3. The above said suit is filed by the appellants for declaration of title and recovery of possession. It was their case as per plaint averments that one V.Ramachandra Reddy was the original owner and pattadar of the land in Sy.Nos.336, 337 and 338 of Lemoor Village, Kandukur Mandal, Ranga Reddy District. The grand-father of the appellants/plaintiffs by name Kasimshetty @ Uppari Achaiah 3 SSRN,J A.S.No.567 of 2019 along with another person namely Varadareddy were cultivating the lands in Sy.Nos.336 and 337 and they along with one Banda Ramaiah (Father of first respondent/D1) were cultivating lands in Sy.No.338 and they were jointly in possession of lands for cultivating the same. According to the plaint averments, the above said tenancy was on the basis of 'Koulnama'. They have also pleaded that the names of their grand father and Varadareddy were shown as possessors of the land in Sy.Nos.336 and 337, and name of grand father of appellant, Varadareddy, the father of respondent No.1/defendant No.1 were shown as possessors of land in Sy.No.338. For this purpose, they relied on the pahanies of the years 1955-1958 and subsequent pahanies. The appellants further claimed that after the death of their grand father, their father and Varadareddy cultivated the land in Sy.Nos.336 and 337 and they have also pleaded that for the purpose of convenient cultivation, Uppari Balraju used to cultivate the land in Sy.No.336, Uppari Narahari used to cultivate the land in Sy.No.337 whereas, the father of the plaintiffs namely Uppari Ramulu used to cultivate land in Sy.No.338. Subsequently, the father of the appellants, namely, Uppari Ramulu had purchased the land admeasuring Ac.6-26 gts out of Ac.13-13 gts of Sy.No.338 from the original pattadar and 4 SSRN,J A.S.No.567 of 2019 has obtained original pattadar passbook. The main suit has been filed by the appellants with a specific plea that after the death of their father, the appellants herein continued the possession of Ac.6-26 gts of land in Sy.No.338 which is shown as Suit Schedule property and they have further claimed that in their absence in the village, the respondents/defendants have occupied their land and got their names entered in the revenue records, as such, they sought for declaration of title and recovery of possession.
4. The respondents/defendants have disputed the above claim and filed I.A.No.1315 of 2017 under Order VII Rule 11 (d) of CPC claiming that the father of the first defendant and grand father of defendant No.2 was protected tenant. His name is shown as protected tenant in the relevant records and as such, the Court below has no jurisdiction and the suit is barred by the Section 99 of the Act.
5. The appellants have filed their counter and opposed the petition. The learned trial Judge accepted the claim of respondents and rejected the plaint vide his order dated 18-07-2019. The present appeal is filed by the appellants disputing the findings of the trial court in the above referred I.A. 5 SSRN,J A.S.No.567 of 2019
6. The learned counsel for the appellants has submitted that even though, the appellants have filed number of documents before the trial court, they were not considered. On the other hand, the learned trial Judge has considered the documents filed by the respondents and having marked them as Exs.P1 to P15, found that the suit filed by the appellants is barred by Section 99 of the Act and rejected the plaint. As could be seen from the order in the above said I.A., it shows that the trial Court accepted the claim of the respondents/defendants on the basis of the documents, which are marked as Exs.P1 to P15, namely, True copy of the Protected Tenancy Extract, Protected tenancy register for the year 1950, True copies of pahanies for 1980-81, 1982-83, 1983-84, 1986-87, 1989-90, 1990-91, 1992-93, 1995-96, 1997-98, 1998-99, 1999-2000, 2006-2007, 2007-2008, 2009- 2010. It appears these documents have been filed at the time of arguments in I.A.No.1315 of 2017 without there being any separate proof by way of evidence. It also appears from the plaint averments, that the appellants have also filed copies of pahanies for the years 1955-1958, 1970 to 1975-1976, CC of pahani fasil 1426, CC of ROR proceedings dated 08-11-2016, 07-11-2016, pattadar passbook etc., The appellants have claimed that these 6 SSRN,J A.S.No.567 of 2019 documents were not considered by the trial court while passing orders in I.A. under Order VII Rule 11 (d) of CPC.
7. The respondents/defendants have filed I.A.No.1315 of 2017 under Order VII Rule 11 (d) of CPC, which reads as follows :
"Where the suit appears from the statement in the plaint to be barred by any law".
8. Order VII Rule 11 (d) of Code specifies that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. It is needless to say that at the stage of deciding the application, the allegations in the plaint alone may have to be looked into for the purpose of either entertaining the suit or rejection of the plaint.
9. In Saleem Bhai & Others Vs. State of Maharashtra1, the Hon'ble Supreme Court held that with reference to Order VII Rule 11 of CPC, the plaint averments are the relevant facts, which need to be looked into for deciding an application, and the trial court can exercise the power at any stage and the suit i.e., before registering the plaint or after issuing summons to the defendants. For the purpose of deciding an application under Clauses (a) and
(d) of Rule 11 of Order VII of CPC, the averments of plaint are 1 (2003) 1 SCC 557 7 SSRN,J A.S.No.567 of 2019 germane and the pleas taken by defendant in the written statement would be wholly irrelevant at that stage. As per order VII Rule 11 (d) of CPC, the plaint shall be rejected "where the suit appears from the statement in the plaint to be barred by any law", as such, in order to decide whether the suit is barred by any law, it is the statement of the plaint, which will have to be construed.
10. The Court while deciding such an application must have due regard only to the statement in the plaint and it is not open to decide the issue on the basis of any material including the written statement. For the purpose of invoking the provisions under Order VII Rule 11 (d) of CPC, no amount of evidence can be looked into.
11. The learned counsel for the appellants has submitted that the trial court though considered the documents filed by the respondents did not consider their documents, which were filed along with the plaint, and in the grounds of appeal, it is stated that the trial court has considered the alleged extract of the protected tenancy register without there being its true translation. As could be seen from the order of the Court below, it is quite clear that the learned Judge has relied on the certified copies of the pahanies and came to a conclusion that the names of respondents have 8 SSRN,J A.S.No.567 of 2019 been shown as pattadars and enjoyers of the lands in Sy.Nos.338/A, 338/AA. He has believed Ex.P1/extract of protected tenancy register issued by the competent authority and held that the entries in the revenue records can be presumed to be true and concluded that the ancestor of the respondents is protected tenant and therefore, as per Section 99 of the Act, the suit is barred. Therefore, it is very clear that the order of the trial court is not on the basis of plaint averments but on the basis of documents, which are supposed to be proved by way of evidence, which is not available at this stage. The suit is filed for declaration of title and recovery of possession. On the basis of certain documents, the Court is not supposed to go into the merits of the suit, while passing order in Order VII Rule 11 (d) of CPC, the order is passed on a presumption that the father of R1 was a protected tenant and that particular finding was arrived on the basis of the documents filed by the respondents along with their I.A.
12. The learned counsel for the appellants has submitted that this is a fit case for remanding the matter to the trial court for fresh disposal with a direction to decide the application on the basis of the averments made in the plaint.
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13. It is the specific case of appellants that true translation of the said extract is not filed and it is not known how the court below has concluded that the name of the father of respondent No.1 is shown as protected tenant in the said register. The finding of the trial court about the protected tenancy of the father of respondent No.1/defendant No.1 and grand father of respondent No.2/defendant No.2 is based on the entries in the alleged protected tenancy register and copies of pahanies. These documents have been assigned exhibit numbers at the time of hearing the arguments in the interlocutory applications and without any oral evidence which is required for proof of the documents. The trial court accepted the contention of respondents/defendants about the tenancy of father of the respondent No.1/defendant No.1 presuming the genuineness of entries as they are entries in revenue record. But in order to believe the said entries, oral evidence is required and such evidence is not available and in fact the court is expected to decide the petition only on the basis of pleadings, but not on the basis of evidence and other documents, thereby, this matter requires fresh consideration. Therefore, we are inclined to remand the matter to the trial court for fresh disposal.
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14. In the result, the appeal is allowed. The matter is remanded to the trial court with a direction to decide the above said I.A. i.e., a fresh without going into the merits of the suit.
___________________ JUSTICE P.NAVEEN RAO __________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 07.04.2022 PLV 11 SSRN,J A.S.No.567 of 2019