Andhra Pradesh High Court - Amravati
K.Erasan Died vs K.Narayana Swamy, on 31 October, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.109 of 2012
JUDGMENT:
The plaintiffs before the learned trial Court filed this second appeal under Section 100 C.P.C. The respondents herein are the defendants. O.S.No.1240 of 2002 was a suit for granting permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property. After due trial, the learned II Additional Junior Civil Judge, Chittor decreed the suit in favour of the plaintiffs and against the defendants. Aggrieved defendants filed A.S.No.81 of 2006 and the learned Principal District Judge, Chittoor allowed the appeal and set aside the trial Court's judgment and as a consequence dismissed the suit.
2. It is against that, the plaintiffs have come up with this second appeal. Originally, it was a suit filed by sole plaintiff as against defendant Nos.1 and 2. During the pendency of the suit, the original plaintiff died and his legal representatives came on record and they pursued the litigation all throughout.
3. On 18.06.2012 this second appeal was admitted on the substantial question of law as mentioned below:
"Whether on Exs.A.1 and A.2 the title and possession of the appellant can be accepted as true and real?" 2
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4. To appreciate the above substantial question of law, it is relevant to notice the facts and law that unfurled before the lower Courts. The suit was laid stating that Ac.0.33 cents of land in Survey No.342/9 of Naragallu Revenue Village belonged to the ancestors and from there it came to be owned and possessed by sole plaintiff and after his death, on 25.04.2003 it came to the ownership and possession of his successors, who are plaintiff Nos.2 to 7. In recognition of the possession and enjoyment, the Mandal Revenue Officer granted pattadar and title deed pass books. The defendants are utter strangers to the property. However, on 22.11.2002 at about 8:00 A.M. they interfered with the ploughing activities of the deceased 1st plaintiff in the suit land and the same was thwarted successfully. They raised their voice saying that they would see that the deceased 1st plaintiff would be dispossessed. In their written statements, the defendants contended that the boundaries mentioned and the survey number mentioned over the plaint schedule property are incorrect. They gave a schedule of property in the written statement and stated that mother of defendant No.2 under a registered sale deed dated 05.10.1961 purchased the written statement schedule mentioned property. The vendors were Periya Kolandiamma for 3 Dr. VRKS, J S.A.No.109 of 2012 herself and representing her minor son. That minor son is the 1st plaintiff (since deceased). It is also stated that while the name of mother of 1st plaintiff is Periya Kolandiamma, it was wrongly typed in the above referred sale deed as Peria Govindamma. Having purchased the property, possession was delivered to defendant No.2. Therefore, the deceased 1st plaintiff has no right over the written statement schedule mentioned properties. There was no valid cause of action for the suit. It is also mentioned that the land covered under the sale deed dated 05.10.1961 referred earlier was surveyed and it was found to include Survey No.342/6A. In recognition of right and possession of defendant No.2, pattadar and title deed pass books were given to defendant No.2 by the revenue authorities. The boundaries mentioned in the plaint schedule would include the lands covered by Survey No.342/6A. On those pleadings, learned trial Court settled the following issues for trial:
"1. Whether the plaintiffs are entitled for grant of permanent injunction as prayed for?
2. To what relief?"
5. At the trial, PWs.1 and 2 were examined and Exs.A.1 and A.2 were marked for plaintiffs. For defendants, DWs.1 to 3 were examined and Exs.B.1 to B.3 were marked.
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6. Both sides' witnesses gave evidence in support of the respective pleadings of the parties. PW.2 was a neighbouring ryot, who spoke about possession of suit schedule property by 1st plaintiff and the interference on part of the defendants that occurred on 22.11.2002 and as to how he and others prevented the defendants from unlawful interference. During the evidence of PW.1, the title deed and pattadar pass books-Exs.A.1 and A.2 were marked. Learned trial Court on considering all that evidence found that the plaintiffs have been in possession and enjoyment of the suit schedule properties and there was unlawful interference on part of the defendants. Another aspect that is to be noticed from the trial Court's judgment is that the defendants by their pleadings denied the correctness of boundaries as well as survey number of the plaint schedule and in the written statement they gave another survey number and another schedule and another extent of property. Thereafter, it compared the boundaries claimed by the defendants through the evidence of DW.2 and found them do not tally with the plaint schedule boundaries. It perused Ex.B.2-pattadar pass book of defendants and that shows about properties mentioned in the written statement schedule but not the plaint schedule properties. Similar was the case with Ex.B.3 and after 5 Dr. VRKS, J S.A.No.109 of 2012 discussing evidence, it recorded that Exs.B.1 to B.3 do not have relationship with plaint schedule property. At para No.25 in the impugned judgment, the learned trial Court recorded the arguments on both sides and mentioned that learned counsel for defendants mainly argued that the plaint schedule property does not belong to the defendants, but the plaintiffs under the guise of injunction have been trying to interfere with the property of the defendants mentioned in the written statement schedule. At para No.21 in the impugned judgment, the statements made by DW.1 during trial were recorded and it was mentioned that the property claimed by plaintiffs and property claimed by defendants are different. It was on those factual observations, the learned trial Court found possession and enjoyment of plaint schedule properties by the plaintiffs and it granted the injunction.
7. In the first appeal, learned Principal District Judge, on the same evidence, reached to different conclusions. With reference to Exs.A.1 and A.2, which are pattadar and title deed pass books, which were accepted by the trial Court as documents indicative of possession of agricultural land, the learned first appellate Court recorded a finding that the said observation is illegal and incorrect. It placed reliance on a 6 Dr. VRKS, J S.A.No.109 of 2012 decision in Yeluru Vijayabharathi v. Yeluri Manikyamma1 to substantiate that conclusion. It made a mention that in the written statement, the defendants contended that Exs.A.1 and A.2 were not granted by the revenue authorities and they were fabricated. Despite that contention, the plaintiffs did not examine any revenue authorities to prove the genuineness of Exs.A.1 and A.2. It was for those reasons, it excluded Exs.A.1 and A.2 from consideration. It further stated that those Exs.A.1 and A.2 were granted to the plaintiffs on 21.11.1997, but the suit was filed on 25.11.2002 and thus, there was a time gap of five years between them and the plaintiffs could have produced best evidence, namely, cultivation accounts for these five years and they failed to file them. With those reasons it concluded that they failed to prove their possession. With reference to interference of defendants with the possession of plaintiffs, which was concluded based on the evidence of PW.2 by the trial Court, the observation of the first appellate Court at para No.21 is that PW.2 in his evidence stated that when the deceased 1st plaintiff was getting the plaint prepared he was also there with him. It was this piece of evidence, which the learned first appellate Court viewed and commented saying that PW.2 is an 1 1998 (2) ALT 623 7 Dr. VRKS, J S.A.No.109 of 2012 interested witness and therefore, cannot be relied. With these observations, it upset the trial Court's judgment. It is in the above referred context, the substantial question of law has come up for consideration.
8. Learned counsel for appellants submitted that the legal view taken by the learned first appellate Court concerning Exs.A.1 and A.2-pattadar and title deed pass books is against law and cited a judgment in M.Varthamma v. Kannappa (died)2.
9. As against it, learned counsel for respondents submit that the view taken by the first appellate Court was right and placed reliance on a judgment in Vedantham Satyavathi v. P.Venkataratnam3. One could notice from the description property as mentioned in the suit schedule and the pleadings on both sides and the evidence on both sides that the property in dispute is an agricultural land. That is a fact that was recorded by both the Courts below.
10. Since it is an agricultural land and since the prayer is for injunction, the prime question that always falls for 2 2013 (5) ALT 241 3 1988 (1) ALT 915 (AP) 8 Dr. VRKS, J S.A.No.109 of 2012 consideration is "whether the plaintiffs were in possession of the property by the time of the suit." To prove possession, plaintiffs relied on oral evidence in the form of PWs.1 and 2 as well as documentary evidence in the form of Exs.A.1 and A.2- pattadar and title deed pass books. The defendants, who claimed to have got this property under Ex.B.1-registered sale deed dated 05.10.1961, also produced Exs.B.2 and B.3, which are pattadar and title deed pass books. Since a suit for injunction is to be decided based on the strength of the case of the plaintiffs and not on the weaknesses of the defendants, it was right on part of the Courts below to scrutinize the legal validity of Exs.A.1 and A.2-pattadar and title deed pass books so as to find out whether they could lend support concerning possession to the oral evidence of PWs.1 and 2. The trial Court accepted the legal effect of those two documents. The first appellate Court negatived that and placed reliance on a decision in Yeluru Vijayabharathi's case (supra 1). Learned first appellate Court stated that in that ruling, this Court had laid down that entries in pattadar pass books have no corroborative value regarding possession of a party in regard to an immovable property (para No.24) of the judgment of the first appellate Court. On reading of the above ruling one would see, that was a case where a 9 Dr. VRKS, J S.A.No.109 of 2012 larger extent of land was claimed to be in possession by the plaintiffs and on evidence it was found that under partition deed there was partition of properties and only a smaller extent of property should have come to the share of plaintiffs and it was in such circumstances, despite the fact that pattadar and title deed pass books, which were issued earlier to it, disclosed the larger extents mentioned in the name of plaintiffs, the same could not enure to the benefit of the plaintiffs by virtue of proof of partition and getting lesser extent of property in that partition. It was in those circumstances, the presumption raised under Section 6 of the Andhra Pradesh (Record of) Rights in Land and Pattadar Pass Books Act, 1971 (for short, 'Act, 1971') about the correctness of entries in such pass books stood rebutted because of partition deed. Thus, in the given facts and circumstances, the evidential burden, the presumptions and how it was rebutted based on evidence were considered and decided by this Court. If any such circumstances available in the litigation before the lower Courts, then the above ruling would be there to lend assistance. But the facts on record have no semblance of proximity to the facts that were available before this Court in the cited ruling. In the case at hand what is pleaded in the plaint and what is deposed by PWs.1 and 2 and 10 Dr. VRKS, J S.A.No.109 of 2012 what is there in Exs.A.1 and A.2 is same. The evidence led by the defendants and argued by their learned counsel indicated that they had no connection over the plaint schedule property as such and their anxiety was only about a different property, which they described in the written statement schedule. Therefore, the statutory presumption contained in Section 6 of the Act, 1971 held its ground and it was not rebutted. One would notice that learned trial Court was right in observing that all that evidence oral and documentary brought by defendants were concerning a different property. Thus, what was litigated in the suit was not their property. The first appellate Court did not upset that finding. The defendants, who pleaded and proved about their rights and possession etc., over a different property cannot by their claims negate the validity of the claim and evidence led by plaintiffs. Thus there is clear error on part of the first appellate Court in discounting Exs.A.1 and A.2 with its erroneous appreciation of the law in the cited ruling. Therefore, there is a clear error of law on part of the first appellate Court. Learned counsel for appellants brought my attention to M.Varthamma's case (supra 2), wherein at para No.15, this Court had stated that a pattadar pass book and title deed pass book issued under the Act, 1971 carry with them a 11 Dr. VRKS, J S.A.No.109 of 2012 presumption as to existence of title. Those of the people who question the correctness of them should avail the remedy of appeal or revision as provided in Act, 1971. It is only when such documents are set aside either in appeal or revision or by a Court of law such documents could be ignored. Thus, Exs.A.1 and A.2-pattadar and title deed pass books, which were relied upon by the trial Court, carry with them the statutory presumption of title and the law is clear that possession follows title and in that view of the matter, the trial Court was right in finding possession based on Exs.A.1 and A.2. It is never the case of the defendants that they challenged the correctness of Exs.A.1 and A.2 either in the revision or in the appeal or through any Court of law. In the absence of such things, the first appellate Court's reluctance to accept Exs.A.1 and A.2 is incorrect and against law.
11. Learned counsel for respondents argued that since they challenged the correctness and genuineness of Exs.A.1 and A.2, plaintiffs ought to have examined the revenue authorities and since they failed in that regard, the view taken by the trial Court should be upheld. In the first place, it should be borne out of the record that there was a genuine reason for the defendants and there should be facts available with the defendants to 12 Dr. VRKS, J S.A.No.109 of 2012 question the genuineness of Exs.A.1 and A.2. Neither the pleadings nor evidence was made available in that regard before the lower Courts. Thus, a bald contention was raised saying that Exs.A.1 and A.2 were fabricated. Judgments of both the Courts below do not indicate as to how the defendants were able to show to either of the Courts that Exs.A.1 and A.2 were fabricated documents. On the other hand, the material on record enables the trial Court to record that they were statutorily issued documents. In the suit for injunction that much was enough. Revenue authorities are not part of litigation and nobody raised any litigation before the revenue authorities. In such circumstances, the Court of law should act upon the available evidence. Since the trial Court found physical possession of property by the 1st plaintiff by the time of the suit, it found gainful support from Exs.A.1 and A.2 also. Coming to proof of a document, since learned counsel for respondents relied on Vedantham Satyavathi's case (supra 3), this Court has to state that, that was a suit for rendition of accounts in which sister was the plaintiff and brother was the defendant and there were certain letters in Exs.A.4 to A.6 and A.10 written by the daughters of the defendant and when it came to genuineness of the contents of those letters, this Court 13 Dr. VRKS, J S.A.No.109 of 2012 had to record the statue, record the precedent and state that when such letters were filed and when the truth of the contents of those letters were denied by the opposite party it was incumbent on the person, who propounded those letters to prove the correctness of the averments in those letters by examining the authors of those letters. Thus, that was a case about proof of contents of letters among relatives and as to how they should be proved. That ruling has not dealt with any statutorily issued document such as pattadar and title deed pass books. As it seems, those documents bear the stamp signature of the statutory authorities, the lower Court was right in considering such documents and acting upon them. That cannot be found fault with especially when nothing was placed before the Courts below to suspect the genuineness of such documents. Therefore, the approach of the first appellate Court in stating that in a suit for injunction also even without any tangible material, a peasant has to toil to secure revenue authorities to speak on statutorily issued proceedings. Therefore, the ruling cited by learned counsel for respondents is not pertinent for the facts and law that is required to be considered in this case. In that view of the matter, the finding of the first appellate Court cannot be supported. 14
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12. While the evidence of PW.2 was accepted by trial Court as believable, the first appellate Court discarded it only because PW.2 was there with the deceased 1st plaintiff when the advocate drafted the plaint. On that basis, a very curious conclusion was reached saying that PW.2 is an interested witness. Learned first appellate Court failed to realize that affinity does not bring someone in the concept of interested witness as long as enmity for him as against the opposite party is not shown. What would PW.2 gain by speaking falsehood and what was the cause for him to speak falsehood against the defendants was neither referred to by the first appellate Court nor could be gathered from the discussion of the judgment of the trial Court. Therefore, castigating a neutral witness and branding him as an interested witness especially without any discussion is not acceptable. Therefore, that observation of the first appellate Court does not stand for scrutiny. Strictly speaking the question of title was never made an issue in the suit for injunction. Both the Courts properly appreciated that only possession was at dispute. However, in the ruling cited above one would notice that Section 6 of the Act, 1971 keeps a presumption of title and once title deed and pattadar pass books (Exs.A.1 and A.2) were issued. There is no evidence on 15 Dr. VRKS, J S.A.No.109 of 2012 record rebutting that presumption. Therefore, the approach of the trial Court in accepting them as proof of possession supporting the parole evidence is a right approach. The first appellate Court went by incorrect appreciation of law and evidence. The appellants are right in canvassing that their claim could be safely rested on Exs.A.1 and A.2. Since the first appellate Court committed grave errors on all fronts, the same shall be set aside. The substantial question of law is answered in favour of appellants.
13. In the result, this Second Appeal is allowed setting aside the judgment and decree dated 18.02.2011 of learned District Judge, Chittoor in A.S.No.81 of 2006. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 31.10.2022 Ivd 16 Dr. VRKS, J S.A.No.109 of 2012 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.109 of 2012 Date: 31.10.2022 Ivd