Nakka.Narsaiah vs Reddy Malla Reddy on 15 October, 2024

[Cites 41, Cited by 0]

Telangana High Court

Nakka.Narsaiah vs Reddy Malla Reddy on 15 October, 2024

Bench: G. Radha Rani

        THE HONOURABLE Dr.JUSTICE G. RADHA RANI

                   SECOND APPEAL No.802 of 2002

JUDGMENT:

This Second Appeal is filed by the appellants, who are defendants in the suit, aggrieved by the judgment and decree dated 23.09.2002 in A.S No.22 of 2001 passed by the Senior Civil Judge at Siddipet confirming the judgment and decree dated 21.04.2001 in O.S No.62 of 1997 passed by the Junior Civil Judge at Siddipet.

2. The respondent No.1- plaintiff died and his legal representatives were brought on record as respondent Nos.2 to 4 as per the order dated 30.10.2023 in I.A No.05 of 2023.

3. The parties are hereinafter referred as arrayed before the trial court as 'plaintiff' and 'defendants'.

4. The plaintiff filed a suit for declaration of title and recovery of possession and to declare the ROR proceedings in File No.B/2029/91 as null and void and not binding on him. The plaintiff contended that he was the owner of the agricultural land to an extent of Acs.2-25 gts., in Sy.No.357/2 situated at Peddakodur Village, Chinnakodur Revenue Mandal of Medak District. Originally, a total extent of Acs.9-28 gts., in the suit schedule survey number was standing in the name of the 2 Dr.GRR,J SA No.802 of 2002 plaintiff's elder paternal uncle, by name, Reddy Ramaiah. In family partition between brothers, the suit schedule land fell to the share of the plaintiff's father, by name, Narsa Reddy called as Narsaiah. After death of plaintiff's father, the plaintiff became the owner of the suit schedule land as sole legal heir of his father. The suit schedule land was mutated in the name of the plaintiff and he was in possession and enjoyment of the same till the second week of November, 1990. The defendants 1 and 2 were brothers and they were having land adjoining the suit schedule land in another survey number at North East corner. Due to some disputes over the boundary line between the plaintiff and defendants and passing of cattle, the defendants high handedly interfered and tried to evict the plaintiff from the suit land and another land in Sy.No.354. Finally in the rainy season of 1990, the defendants directly interfered with the possession of the plaintiff by obstructing operation of agricultural work. As such, the plaintiff filed a suit for perpetual injunction, which was numbered as O.S No.123 of 1990 and got ex-parte interim orders in I.A No.295 of 1990 and protected his possession. The defendants filed counter and written statement in the above suit denying the ownership and possession of the plaintiff, contending that their father purchased the suit schedule property from the plaintiff's father in the year 1960. No valid document was filed by the defendants to show their 3 Dr.GRR,J SA No.802 of 2002 possession in respect of the suit schedule land. The court vacated the ex- parte injunction order on 19.09.1990. The plaintiff gave instructions to his counsel to prefer an appeal over the said order. In the meanwhile, the defendants approached the extremists and got a direction that they would decide the matter. Due to apprehension, the plaintiff did not prefer the C.M.A. and not proceeded with the suit. As such, the suit was dismissed for default on 26.06.1993. The extremists neither decided the matter nor refused. Meanwhile, they went underground. The suit schedule land was kept fallow. The defendants kept quiet for two and half years after dismissal of the suit. Again in the month of April, 1996, they claimed themselves as owners of the suit schedule land and that they got passbooks. The plaintiff enquired the matter in MRO office and came to know that pending the suit, the defendants got ex-parte order from ROR Authority under File No.B/2029/91 without following the procedure laid down in the Rights in Land and Pattedar Passbooks Act, 1971 (for short 'ROR Act').

4.1. The plaintiff further submitted that his father never sold the suit schedule land to the defendants' father. The alleged sale deed was bogus, fabricated and forged, neither the defendants nor their father were in possession at any point of time. Taking advantage of the plaintiff's 4 Dr.GRR,J SA No.802 of 2002 poverty and ignorance, the defendants high handedly managed the revenue authorities and got favourable orders. Neither the defendants made the plaintiff as party to the proceedings nor ROR Authority issued notice to the plaintiff before passing any order. As such, regularization of unregistered sale deed in favour of the defendants under File No.B/2029/91 was null and void and not binding on the plaintiff. Further the plaintiff filed an application for certified copy of proceedings of ROR Authority in File No.B/2029/91, but the MRO issued a memo stating as not available, which would show that the said proceedings of ROR Authority were bogus. The plaintiff and defendants were not cultivating the suit schedule land since the direction of the extremists. But, the defendants clandestinely got a favourable order by the ROR Authority and their names were mentioned in the relevant columns of pahanies without deleting the name of the plaintiff. The plaintiff obtained certified copies in the month of April, 1996 and prepared to file a suit. Meanwhile, the defendants offered for compromise, but dodged the matter. In the month of June, 1997, the defendants refused for amicable settlement as offered by them and tried to alienate the suit schedule land. As such, the plaintiff filed the suit.

Dr.GRR,J SA No.802 of 2002

5. The defendants filed written statement contending that the plaintiff's father Sri Reddy Narsaiah sold the suit land to an extent of Acs.2.22 gts., in Sy.No.357 to the defendants father late Narayana under simple sale deed executed by him on Ashada Shudda Vidiya of Sharvari Nama Samvastara in the year 1960 for a consideration of Rs.350/- and inducted him into possession thereof. After the death of said Narayana, in partition among his sons, the defendants got suit land towards their share and had been in exclusive possession thereof with personal cultivation. During the lifetime of Narayana and subsequently, inadvertently his name and the names of the defendants were being recorded in cultivation in respect of Sy.No.358 instead of Sy.No.357 till 1990. In fact, neither late Reddy Narsaiah nor did his sons had any concern with the land in Sy.No.358 recorded in their names. Sy.No.358 actually belonged to M/s.Narayana Reddy, Yerra Yellaiah, Vajravva, Kummari Ramulu. The revenue authorities also issued rythu passbooks to the defendants in the years 1979-80 showing their names in respect of Sy.No.358. The defendants filed a petition for rectification of entries and got the simple sale deed regularized under ROR Act. After due enquiry, the authorities collected the stamp duty and issued 13-B certificate in the names of the defendants besides title and pattedar passbooks. The plaintiff had not approached the court with clean hands. He suppressed 6 Dr.GRR,J SA No.802 of 2002 the real facts and filed a frivolous litigation. The plaintiff was not in possession of the suit land for the past three and half decades. The suit for recovery of possession was barred by limitation. The plaintiff's rights if any in the suit land had become extinct by efflux of time. The defendants were entitled to continue over the suit land under Section 53- A of TP Act besides being issued patta passbooks. The plaintiff had not correctly valued the suit, and prayed to dismiss the suit.

6. Basing on the said pleadings, the trial court framed the issues as follows:

1) Whether the plaintiff is the owner of the suit schedule property.

2) Whether the R.O.R. proceedings in favour of defendants are null and void and not binding on the plaintiff.

3) Whether the defendants were in possession as per their alleged agreement of sale or sale deed on the suit schedule land.

4) Whether the plaintiff is entitled for declaration of title and recovery of possession of the suit schedule property.

5) Whether the suit is properly valued and the court fee paid is sufficient.

6) Whether the suit is attracted by the principles of resjudicata.

7) Whether the suit is barred by limitation.

8) To what relief?

Dr.GRR,J SA No.802 of 2002

7. The plaintiff examined himself as PW.1 and got examined his farm servant as PW.2 on his behalf and got marked Exs.A1 to A21. The defendant No.1 was examined as DW.1. The scribe of the simple sale deed marked under Ex.B1 was examined as DW.2. The attestor of the sale deed was examined as DW.4 and a neighbouring land owner was examined as DW.3. Exs.B1 to B14 were marked on behalf of the defendants.

8. On considering the oral and documentary evidence on record, the trial court held that the plaintiff was the owner of the suit schedule property as the defendants also admitted in their written statement that the father of the defendants purchased the suit schedule property from the father of the plaintiff, admitting the ownership of the father of the plaintiff. The ROR proceedings in favour of the defendants in File No.B/2029/91 of the Mandal Revenue Office, Chinnakodur were null and void and not binding on the plaintiff as the defendants failed to show that any notice was given to the plaintiff by revenue authorities before issuing pattedar passbook in favour of the defendants and that a memo was issued by the MRO office stating that the said file was not available. The trial court considering the certified copies of the pahanies filed by the plaintiff marked under Exs.A1 to A15 observed that plaintiff was in 8 Dr.GRR,J SA No.802 of 2002 possession of the property from 1974-75 to 1993-94 and cultivated the same and as the evidence would not disclose that the defendants or their father were occupants of the land in Sy.No.357 as on the date of the ROR proceedings and no notice in writing was given to the plaintiff as contemplated under Rule 22(3) of A.P. Rights in land and pattedar Passbooks Rules, 1989, held that the defendants were not the occupants of the land covered by Exs.B2, B3 prior to the ROR proceedings in their favour for validation of transaction under Ex.B1. As such, the said proceedings in File No.B/2029/91 was not in accordance with the provisions of the A.P. Rights in Land and Pattedar Passbooks Act, 1971 and therefore, null and void and not binding on the plaintiff. With regard to issue No.(3), the trial court observed that there was no recital in Ex.B1/sale deed with regard to delivery of possession to the father of defendants and a new plea was taken by the defendants in their evidence that the father of the defendants was already in possession of the suit land as on the date of Ex.B1, since the suit land was mortgaged in his favour by the father of the plaintiff, but, no document was filed by the defendants to show that their father was in possession of the suit land prior to execution of Ex.B1 in the capacity of mortgagee or that their father was in possession of the suit land immediately after execution of Ex.B1 and there were no pleadings with regard to the mortgage prior to 9 Dr.GRR,J SA No.802 of 2002 Ex.B1 and the documents marked under Ex.B4 to B7 also would not show the possession of the defendants in Sy.No.357, but would only disclose that their father was pattedar in respect of Acs.3-22 gts of land in Sy.No.357/1 but one Vajravva was in possession of the suit land and no land revenue receipts were filed by the defendants to prove that they were in enjoyment of the suit land and were paying land revenue either before execution of Ex.B1 and subsequent thereto, gave a categorical finding that the father of the defendants was not in possession of the suit land in pursuance of the transaction under Ex.B1. The trial court held issue No.(4) in favor of the plaintiff holding that the plaintiff was entitled for declaration of title and recovery of possession. With regard to issues (5) and (6), the trial court noted that no arguments were advanced by the counsel for the defendants and as such, treated them as not pressed and no findings were given on them. With regard to issue No.(7) 'whether the suit was barred by limitation', the trial court held that the burden would lie upon the defendants and that the case would fall under Article 65 of Limitation Act and the period of limitation for filing the suit for declaration based on title was 12 years, but not 3 years under Article 58 of the limitation Act and held that the suit was not barred by limitation. With regard to the additional issue, 'whether the defendants were entitled to protect their possession under Section 53-A of Transfer of Property 10 Dr.GRR,J SA No.802 of 2002 Act', the trial Court held that in view of finding on issue No.(3) that the defendants were not in possession of the suit land in pursuance of the transaction under Ex.B1, it could not be said that there was part performance of the contract in terms of Section 53-A of Transfer of Property Act and decreed the suit in favour of the plaintiff with costs and directed the MRO, Chinnakodur to make necessary entries in the records.

9. Aggrieved by the said judgment and decree passed by the learned Junior Civil Judge, Siddipet, the defendants preferred an appeal. The appeal was heard by the learned Senior Civil Judge, Siddipet vide A.S No.22 of 2001 and vide judgment and decree dated 23.09.2002, the first appellate court dismissed the appeal confirming the judgment and decree in O.S No.62 of 1997 passed by the learned Junior Civil Judge, Siddipet.

10. Aggrieved by the same, the defendants preferred this second appeal by raising the following substantial questions of law.

1. Whether the trial court is justified in holding that it could not consider the evidence of DW2 and DW4 in the absence of plea of mortgage in the written statement of the appellants when Ex.B1 which is filed along with the written statement filed in the present suit as well as in O.S.No.123 of 1980 on the file of the court of the Junior Civil Judge at Siddipet, contains the recitals of earlier mortgage of the suit schedule land by the father of the respondent herein in favour of the father of the appellants?

Dr.GRR,J SA No.802 of 2002

2. Whether the trial court is justified in holding that the evidence of DW3 is vague without there being any basis?

3. Whether the Lower Appellate Court is justified in not at all considering the evidence of DW2 to DW4 when the evidence of DW3 and DW4 is to the effect that the appellants herein are in continuous possession and enjoyment of the suit schedule property since the date of mortgage as well as Ex.B1 till date.

4. Whether the courts below are justified in placing reliance on pahanies when they do not create or destroy the independent rights of the parties nor they are reliable to show the possession of the property?

5. Whether the courts below are justified in setting aside Exhibits B3, B9, B19, B11 and B12 when they are evidence of title under Section 5-A clause 4 of A.P.Rights in Land and Pattedar Passbooks Act, 1971 in the present suit and in the present contentions involved in the suit?

6. Whether the courts below are justified in decreeing the suit when the person obtaining possession of the property in part performance of the Agreement of sale under Sec.53-A of the Transfer of Property Act and who performed his part of contract can defend his possession in suit for recovery of possession filed by the transferor or by any subsequent transferee of the property claiming under him, even if a suit for specific performance of Agreement of Sale has become barred by limitation and as such in view of Ex.B1 the respondent herein is not entitled for the reliefs granted by the courts below?

7. Whether the trial court is justified in holding at para 18 of the Judgment "since sale transaction under Ex.B1 is not proved" without discussing the genuineness of Ex.B1?

8. Whether the courts below are justified in holding that the appellants herein failed to prove their possession in pursuance of Ex.Bl without properly discussing the evidence of DW1 to DW4 and Exhibits B1 to В14.

Dr.GRR,J SA No.802 of 2002

9. Whether the courts below are justified in not drawing presumption of genuineness of Ex.B1 under Sec. 90 of the Indian Evidence Act?

10.Whether the courts below are justified in decreeing the suit when the plaint of the respondent herein is silent about the alleged dispossession of the respondent by the appellants and the period of such dispossession?

11. This Court on 08.10.2002 admitted the second appeal on Ground No.13 (1 to 10) mentioned in the grounds of appeal.

Further I.A No.01 of 2024 was also filed by the appellants to frame two more additional substantial questions of law as follows:

a) Whether the trial court and appellate court were justified in granting a relief to the plaintiff against the MRO, Chinnakodur without arraying him as a party in O.S No.62 of 1997 on the file of the learned Junior Civil Judge, Siddipet?

b) Whether the suit filed by the plaintiff in O.S No.62 of 1997 on the file of the learned Junior Civil Judge is liable to be dismissed for non joinder of necessary party?

12. Heard Sri Sripada Prabhakar, learned Senior Counsel representing Sri.N.Krishna Kumar, counsel for the appellants on record and Sri S.Srinivasa Rao, learned counsel representing Sri L.Prabhakar Reddy, counsel on record for the respondents.

13. Learned Senior Counsel for the appellants - defendants contended that though the defendants were adjoining land owners, the plaintiff deliberately not stated about the survey numbers of the land of the 13 Dr.GRR,J SA No.802 of 2002 defendants, no pattedar passbooks were filed by the plaintiff for survey No.357 and under what proceedings the land in Sy.No.357 was mutated in their name was not stated in the plaint. The plaintiff though contended that he was dispossessed in the year 1990, but filed pahanies up to the year 1993-94. The plaint or the evidence of PW.1 was silent as to who was in possession of the suit schedule property from 1990-96. No legal notice was issued by the plaintiff and no criminal case was filed by him. In a suit for recovery of possession, the date of dispossession had to be specifically pleaded and relied upon the judgment of the High Court of Madhya Pradesh in Shanti Bai, W/o.Babulal and others Vs. Haimen Bai (dead), W/o.Mustafa Khan and others 1, the judgment of the High Court of Calcutta in Ramesh Chand Koiri Vs Chandan Koiri and others2 and the judgment of the Hon'ble Apex Court in B.Arvind Kumar Vs. Government of India and others3, on the aspect that the suit for possession could not be decreed without any specific date of their dispossession in the pleading so as to compute the period of limitation. 1 2009 (4) MPLJ 133 2 2018 SCC OnLine Cal 6471 3 (2007) 5 SCC 745 14 Dr.GRR,J SA No.802 of 2002 13.1. He further contended that the issue on declaration and recovery of possession ought not to have been clubbed. No issue was framed when the plaintiff was in possession and when he was dispossessed. The plaintiff did not choose to prefer any appeal available under Section 5B of the ROR Act. The Record of Rights in Land and Pattadar Pass Books Act, 1971 was a quasi judicial Law where the provision of appeal and revision were also provided. Without pursuing the said remedies, the plaintiff preferred the civil suit challenging the proceedings issued by the MRO under Section 5A of ROR Act. No decree could be passed against the MRO without making him as a party. There was a presumption under Section 114(e) of Indian Evidence Act that judicial and official Acts had been regularly performed. As such, it had to be presumed that Exs.B2 and B3 were issued after conducting an enquiry. Without looking into these documents, the courts below erred in concluding that the enquiry was farcical. Ex.B1 was a document pertaining to the year 1960, which was an unregistered sale deed. DW.2, the scribe of the document, aged 75 years and DW.4 one of the attestors of the said document, aged 85 years were examined in proof of the same. DW.2 also stated about the MRO conducting enquiry. The trial court invalidated the orders of MRO without any pleadings and evidence against it. The trial court observed that the persons in occupation of the land by virtue of alienation of 15 Dr.GRR,J SA No.802 of 2002 transfer under registered document alone were entitled for validation of the transaction. There was no need to regularize the registered sale deeds. Thus, the findings of the trial court were unsatisfactory. The trial court discarded the evidence of DWs.3 and 4 stating that they were vague without assigning proper reasons. The trial court wrongly placed the burden on the defendants on the issue of limitation. The burden always would lie on the plaintiff to prove that the suit was filed within the period of limitation. For the relief of declaration, the suit had to be filed within three years under Article 58 of Limitation Act, but the suit was filed after 6 ½ years. The trial court applied Article 65, but the same was not applicable to the facts of the case. No plea of adverse possession was taken by the plaintiff in the plaint. As such, applying Article 64 was not proper and relied upon the judgments of the Hon'ble Apex Court in Rajpal Singh Vs Saroj (deceased) through legal representatives and another4 and in Hardesh Ores (P) Ltd. Vs.Hede and Company 5. 13.2. He further contended that the plea of limitation could be taken at any stage and relied upon the judgment of Privy Council reported in Law 4 (2022) 15 SCC 260 5 (2007) 5 SCC 614 16 Dr.GRR,J SA No.802 of 2002 Weekly in Lachhmi Sewak Sahu Vs. Ram Rup Sahu and others 6 and the judgment of Hon'ble Apex Court in Abdul Raheem Vs. Karnataka Electricity Board and others 7 and in Yadarao Dajiba Shrawane (dead) by LRs. Vs. Nanilal Harakchand Shah (dead) and others8 and in Vijay Pullarwar and others Vs. Shri Hanuman Deostan, A Public Trust through its Trustees9 and in Krishna Mohan Kul alias Nani Charan Kul and another Vs. Pratima Maity and others 10, on the aspect that consideration of irrelevant facts and non- consideration of relevant facts would give rise to a substantial question of law, and on the aspect that, whether the trial court and/or and first appellate court misdirected themselves in appreciating the questions of law and placed the onus on the wrong party, certainly there was scope for interference under Section 100 CPC after formulating a substantial question of law. 13.3. He also relied upon the judgment of the Hon'ble Apex Court in Anil Rishi Vs. Gurbaksh Singh11 and in Gian Chand and brothers 6 1943 SCC Online PC 49 7 AIR 2008 SC 956 8 (2002) 6 SCC 404 9 (2019) 11 SCC 718 10 (2004) 9 SCC 468 11 (2006) 5 SCC 558 17 Dr.GRR,J SA No.802 of 2002 and another Vs. Rattan Lal alias Rattan Singh12, on the aspect that the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not on the party who denies it.

14. Learned counsel for the respondent, on the other hand, contended that in the month of April, 1996, the defendants claimed that they purchased the suit land from the father of the plaintiff and obtained pattedar passbooks behind the back of the plaintiff by setting up an unregistered and unstamped sale deed and got the same regularized and obtained 13-B certificate without any notice to the plaintiff in an improper and illegal manner, though he was in possession and his name was shown in the revenue records as pattedar and possessor. The documents filed by the appellants-defendants marked under Exs.B2 and B3 (13-B and 13-C certificates), alleged to have been issued by the MRO Chinnakodur in favour of Nakka Narayana, father of D1, were issued in respect of Acs.3-22 gts in Sy.No.357, which was different from the suit schedule property Acs.2-25 gts in Sy.No.357/2. Ex.B1, the alleged simple sale deed was never acted upon or seen the light of the day till July, 1991. No explanation was offered by the defendants as to why they kept silent during the life time of their father Nakka Narayana and during 12 (2013) 2 SCC 606 18 Dr.GRR,J SA No.802 of 2002 the life time of the father of the plaintiff. As per Section 5-A of AP Rights in land and Pattedar Passbooks Act, 1971 read with Rule 22 made thereunder only a person in occupation was required to make an application in Form No.(x). On the date of the alleged application in July, 1991, defendant Nos.1 and 2 were not in possession nor their names were shown in the revenue records. It was a mandatory requirement, which was a condition precedent. No material was filed by the appellants to show that the defendants were in possession as on the date of the alleged application filed seeking regularization. The MRO neither issued any notice to the plaintiff as per the mandatory requirement under Rule 22 (3) of the Rules in Form No.XI nor conducted any enquiry as required under Rule 22(4) of the Rules made thereunder. Non-compliance of the mandatory requirement of giving notice and conducting enquiry would entitle to declare Ex.B2 as null and void and relied on the Full Bench judgment of this Court in Chinnam Pandurangam Vs. Mandal Revenue Officer, Serilingampally Mandal & Ors13. 14.1. He further contended that Ex.B1 was a sada binama. Without impounding it, the same could not be looked into. It was an invalid 13 (2007) 6 ALD 348 19 Dr.GRR,J SA No.802 of 2002 document and could not be used as proof of sale transaction. DW.1 stated that the entries in the pahanies were wrongly made with regard to their possession as Sy.No.358 instead of 357. But, admittedly no steps were taken for correction of the alleged wrong entries. There were inconsistencies in the statements of DWs.1 and 2 with the written statement filed by the defendants. The plaintiff upon coming to know about the manipulation of regularization proceedings by the defendants, approached the MRO and sought for copies of regularization proceedings. The office of the MRO issued Ex.A20 stating that no such file was available in the office of the MRO. In the absence of any steps taken by the defendants to summon the original record of regularization pertaining to File No.B1/2029/91 or to summon any witness from the office of the MRO, the defendants failed to discharge the burden of proving the regularization proceedings. Therefore, the existence of Exs.B1 to B3 was doubtful and could not be looked into. The regularization proceedings filed by the defendants were not pertaining to the suit schedule property. The defendants alleged to have approached the MRO for regularization after more than 31 long years and got regularized the simple sale deed. The extent of land mentioned in survey number of the simple sale deed and regularization proceedings in 13-B certificate were not tallying with that of the suit schedule property. In the 20 Dr.GRR,J SA No.802 of 2002 absence of any counter claim by the defendants and in the absence of any evidence co-relating the extent and survey number of the suit schedule property, the defendants miserably failed to establish their claim over the suit schedule property.

14.2. He further contended that both the trial court and first appellate court after taking note of the pleadings, evidence and appreciation of case law, gave categorical findings on all issues in favour of the plaintiff. The concurrent findings of the court below would not require any interference by this Court in exercise of its jurisdiction under Section 100 of CPC and relied upon the judgments of the Hon'ble Apex Court in:

1. Nazir Mohamed Vs J.Kamala and others 14

2. Gurdev Kaur and others Vs Kaki and others 15

3. Gurnam Singh (D) by Lrs. And othes Vs.Lehna Singh (D) by Lrs.16

4. Ramji Singh Patel Vs.Gyan Chandra Jaiswal 17

5. Narendra and others Vs Ajabrao (dead) through legal representatives18 14 (2020)19 SCC 57 15 (2007) 1 SCC 546 16 AIR 2019 SCC 1441 17 (2018) 14 SCC 120 18 (2018) 11 SCC 564 21 Dr.GRR,J SA No.802 of 2002

6. T.Ramalingeswara Rao (dead) through Lrs. and another Vs.N.Madhava Rao and others 19

15. The Hon'ble Apex Court in Nazir Mohamed Vs J.Kamala and others (14 supra) held that:

"22. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the court cannot expand the scope of the appeal. It was not open to the respondent-plaintiff to reagitate facts or to call upon the High Court to reanalyse or reappreciate evidence in a second appeal.

23. Section 100 CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a "substantial question of law" is sine qua non for the exercise of jurisdiction under Section 100 CPC.

27. In Hero Vinoth v. Seshammal (2006 5 SCC

545), this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd(AIR 1962 SC 1314) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth³ are set out herein below:

"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question 19 AIR 2019 SC (1777) 22 Dr.GRR,J SA No.802 of 2002 of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta(1928 SCC onlinePC 31: (1927-28) 55 IA 235: AIR 1928 PC 172) the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case, the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (1951 SCC online Mad 100):

'5.... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On 23 Dr.GRR,J SA No.802 of 2002 the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law."

28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.

29. To be a question of law "involved in the case", there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

30. Where no such question of law, nor even a mixed question of law and fact was urged before the trial court or the first appellate court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchugopal Barua v. Umesh Chandra Goswami((1997) 4 SCC 713).

31. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support 24 Dr.GRR,J SA No.802 of 2002 from Samtosh Hazari v. Purushottam Tiwari ((2001) 3 SCC 179).

32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar(AIR 1963 SC 302). An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.

33.2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue."

16. The Hon'ble Apex Court in Gurnam Singh (D) by Lrs. and others Vs.Lehna Singh (D) by Lrs., (15 supra) held that:

"14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (AIR 2000 SC 426) (Supra). In the aforesaid decision, this Court has specifically observed and held:

"Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with 25 Dr.GRR,J SA No.802 of 2002 findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."

17. The Hon'ble Apex Court in Narendra and others Vs Ajabrao (dead) through legal representatives (18 supra), held that:

"The interference in the second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence".

18. The Hon'ble Apex Court in T.Ramalingeswara Rao (dead) through Lrs and another Vs.N.Madhava Rao and others (19 supra) held that:

"12. When the two Courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High Court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be wholly perverse, a case 26 Dr.GRR,J SA No.802 of 2002 for interference may call for by the High Court in its second appellate jurisdiction."

19. On the other hand, in the judgment relied by the learned counsel for the appellants in Yadarao Dajiba Shrawane (dead) by LRs. Vs. Nanilal Harakchand Shah (dead) and others (8 supra), it was held that:

"31. .......The position is well settled that when the judgment of the final court of fact is based on mis- interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence, the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal."

20. The learned counsel for the appellants also relied upon the judgment of the Hon'ble Apex Court in Abdul Raheem Vs.Karnataka Electricity Board and others (7 supra) on the aspect that:

"(12)........... consideration of irrelevant fact and non-

consideration of relevant fact would give rise to a substantial question of law. Reversal of a finding of fact arrived at by the First Appellate Court ignoring vital documents may also lead to a substantial question of law".

Dr.GRR,J SA No.802 of 2002

21. He also relied upon the judgment of the Hon'ble Apex Court in Krishna Mohan Kul alias Nani Charan Kul and another Vs. Pratima Maity and others (10 supra) where in it was held that:

"9. Though, as rightly contended by the learned counsel for the appellants, the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, where the trial court and/or the first appellate court misdirected themselves in appreciating the question of law and placed the onus on the wrong party, certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law.

11. In Neelakantan v. Mallika Begum ((2002) 2 SCC

440), it was held that findings of fact recorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties."

22. In the light of these principles reiterated by the Hon'ble Apex Court the substantial questions of law admitted in this second appeal need to be answered.

23. The learned counsel for the appellants had contended that the issue of limitation was a core issue and that the plea of limitation could be taken at any stage and relied upon the judgment of Privy Council reported in Law Weekly in Lachhmi Sewak Sahu Vs Ram Rup Sahu and others (6 supra) wherein it was held that:

Dr.GRR,J SA No.802 of 2002 "Though the issue of limitation was not taken at any stage of the proceedings in either of the Indian Courts but, it was prima facie admissible even in a Court of last resort."

24. In the present case, an issue was framed on the aspect of limitation by the trial court basing on the pleadings raised by the parties. The appellants - defendants stated in their written statement that the plaintiff was not in possession of the suit land for the past three and half decades, as such, the suit for recovery of possession was barred by limitation and that the defendants were entitled to continue in possession of the suit land under Section 53-A of the Transfer of Property Act. The issue No.(7) was framed as 'whether the suit was barred by limitation'. The burden of proving the said issue was placed on the defendants, which was vehemently opposed by the learned counsel for the appellants - defendants.

24.1. The burden of proof typically would lie on the plaintiff to demonstrate that their suit was filed within the statutory period of limitation. It is a fundamental requirement under the Limitation Act that the issue of limitation shall be examined by the courts even if the same was not explicitly raised as a defence and the said aspect must be addressed regardless of whether it is pleaded by the defendants or not. If the plaintiff fails to demonstrate that the suit was filed within the 29 Dr.GRR,J SA No.802 of 2002 limitation period, the suit is barred and the court shall not consider the merits of the case. Failure to meet the burden results in the dismissal of the suit regardless of its merits. The trial court committed an error in placing the burden of proving the limitation aspect on the defendants. 24.2. As seen from the plaint, the plaintiff admitted about filing of O.S No.123 of 1990 on the file of the District Munsiff, Siddipet on 26.06.1990 seeking injunction simplicitor against the appellants herein in respect of Acs.3-32 gts., Acs.1-17 gts., in Sy.No.353/3 and Acs.2-25 gts., in Sy.No.357/2 situated at Peddakodur Village, Chinnakodur Revenue Mandal of Medak District. The defendants filed written statement in the said suit on 16.07.1990 contending that the plaintiff was never in possession of the suit schedule property and took the plea that the father of the plaintiff Sri Reddy Narsaiah had sold Acs.2-25 gts., in Sy.No.357 of Peddakodur Village to the father of the defendants Sri Narayana under a simple sale deed executed in the year 1960 on Ashada Shudda Vidiya of Sharvari Nama Samvastara i.e., on 26.06.1960 for a consideration of Rs.350/-. The said simple sale deed was also filed in the court and the same was marked as Ex.B1. In the said suit the plaintiff initially obtained exparte injunction vide I.A No.295 of 1990. The said injunction was vacated on 19.09.1990. O.S No.123 of 1990 was dismissed for default 30 Dr.GRR,J SA No.802 of 2002 on 22.06.1993 and the plaintiff filed the present suit O.S No.62 of 1997 on the file of the District Munisiff, Siddipet on 14.07.1997 i.e. after more than nearly six (06) years of the specific denial of the plaintiff's title by the defendants by filing written statement in O.S No.123 of 1990 on 16.07.1990.

24.3. The present suit O.S No.62 of 1997 was filed seeking the following reliefs:

a) To declare the plaintiff as absolute owner of the suit schedule land.

b) a decree for delivery of the possession of the suit schedule land to the plaintiff after evicting the defendants 1 and 2 therefrom.

c) a decree to declare the proceeding of ROR bearing file No.B/2029/91 passed in favour of the defendants by the recording authority/MRO, Chinnakodur as null and void and not binding on the plaintiff.

d). a decree directing the recording authority/MRO, Chinnakodur for making necessary changes in all the revenue records.

24.4. As per the Limitation Act, 1963, the reliefs of declaration are placed in Part-III, consisting of Articles 56 , 57 and 58. Article 56 pertains to forgery of an instrument. Article 57 pertains to declaration regarding the adoption being invalid. Article 58 is the residuary article pertaining to any other declaration. Thus, the relief of declaration falls 31 Dr.GRR,J SA No.802 of 2002 within article 58 of the Limitation Act. The limitation period for obtaining the said relief is three (03) years.

The plaintiff ought to have filed a suit to declare himself as the owner of the suit schedule property on or before 16.07.1993 i.e., within three (03) years of the filing of the written statement in O.S No.123 of 1990 on the file of the District Munsiff, Siddipet. But the trial court considered that the relevant article for determining the relief of declaration is Article 65 and not Article 58 of the Limitation Act. Article 65 of the limitation Act falls under Part-IV. It deals with suits for possession or dispossession based on title. It deals with the recovery of immovable property based on adverse possession. The period of limitation is 12 years.

Article 65 reads as follows:

"For possession of immovable property or any interest therein based on title, the period of limitation is 12 years, when the possession of the defendants becomes adverse to the plaintiff."

24.5. In cases coming within the purview of Article 65, the burden is on the defendants to prove adverse possession affirmatively and the defendants must show that their possession was hostile to the real owner and amounted to denial of the owners title. The trial court applied this 32 Dr.GRR,J SA No.802 of 2002 provision and placed the burden upon the defendants by relying upon the Division Bench judgment of the High Court of Andhra Pradesh in Pavan Kumar and another Vs.K.Gopala Krishna and another (AIR (1998) AP 247), wherein it was held that:

"12. The suit is essentially and primarily a suit for possession based on title. The mere fact that the declaration of title is also sought for therein does not bring it within Art. 58 or 113 so as to attract the three years period of limitation, as observed by the learned single Judge. There is practically no controversy as to title for the simple reason that the defendants recognize the plaintiff as the predecessor-in-title and it is the specific case of the defendants that the plaintiff sold the property to Choudary Rajanna, who in turn effected the sale to them. As already noticed, the sale by Gopal Krishna to Choudary Rajanna was disbelieved by the trial Court. Under these circumstances, as far as the title of the plaintiff is concerned, there could hardly be any controversy that a formal declaration of title from the Court was sought for, may be by way of caution. Realizing the difficulty in pursuing the argument as regards inapplicability of Art. 65, the learned counsel for the appellants has chosen the obvious course of highlighting the alternative argument that even if Art. 65 applies, the suit is barred.

14. It is now settled law that in a case falling under Art. 65, the burden lies on the defendants, who would like to defeat the plaintiff's title, to establish that they remained in adverse possession for 12 years."

Dr.GRR,J SA No.802 of 2002 24.6. In the present case also the defendants recognized the father of the plaintiff as the predecessor in title and contended that the father of the plaintiff sold the suit schedule property to the father of the defendants and the said sale was disbelieved by the trial court. 24.7. The contention of the learned Senior Counsel for the appellants was that the relief of declaration was different and distinct from the relief of recovery of possession and the trial court ought not to have clubbed both the reliefs and brought the same under Article 65 of the Limitation Act. His contention was that the relief seeking for declaration of title was a substantive prayer and the relief seeking recovery of possession was a consequential relief and relied upon the judgment of the Hon'ble Apex Court in Rajpal Singh Vs. Saroj (deceased) through legal representatives and another (4 supra) wherein it was held that:

"14. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the sale deed dated 19-4-1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the 34 Dr.GRR,J SA No.802 of 2002 limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be substantive therefore the same was clearly barred by limitation. Hence, the learned trial court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned first appellate court was justified and right in setting aside the judgment and decree passed by the learned trial court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the first appellate court dismissing the suit and consequently restoring the judgment and decree passed by the trial court."

24.8. He also relied upon the judgment of the Hon'ble Apex Court in Hardesh Ores (P) Ltd. Vs. Hede and Company (5-Supra) where in it was held that:

"Omitting to claim foundational relief and claiming the consequential relief only to get around the bar of limitation was impermissible".

24.9. Thus, as seen from the judgments of the Hon'ble Apex Court, declaration of title is a substantive relief and as the relief of recovery of possession is a consequential relief, the limitation period is required to be considered with respect to the substantive relief. As the suit for declaration of title has to be filed within three years from the date when the right to sue first arises and as the appellants - defendants denied the 35 Dr.GRR,J SA No.802 of 2002 right and title of the plaintiff over the suit schedule property in their written statement in O.S No.123 of 1990 dated 16.07.1990, the suit ought to have been filed within three years from the date of filing of the written statement in O.S No.123 of 1990 by the appellants - defendants i.e., on or before 16.07.1993, as such the suit was barred by limitation. The trial court erred in considering the relevant Article on the aspect of limitation and placing the burden of proving the said limitation aspect on the defendants, which was totally perverse. Even if the defendants are set exparte, the suit could not be decreed mechanically by the trial court without examining the aspect of limitation. This aspect was neither appreciated by the trial court nor by the lower appellate court. The lower appellate court failed to consider the aspect of limitation at all and made an observation that there was no serious contest between the parties with regard to issues 5 to 7, which was incorrect. Thus, both the courts below committed an error in deciding the issue of limitation and to consider whether the suit was filed within the period of limitation or not.

25. In a suit for declaration of title heavy burden rests upon the plaintiff to prove his title. The plaintiff is not supposed to depend upon 36 Dr.GRR,J SA No.802 of 2002 the weakness of the case set up by the defendants. The Hon'ble Apex Court in Nagar Palika, Jind vs Jagat Singh, Advocate20, held that:

"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 had proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiffs own title, plaintiffs must be non suited."

25.1. The plaintiff pleaded that originally Sy.No.357 situated at Peddakodur Village, Chinnakodur Revenue Mandal of Medak District consisting of Acs.9-28 gts., was in the name of the plaintiff's elder paternal uncle, by name, Reddy Ramaiah, S/o.Muthaiah and that in the family partition between the brothers, the suit schedule property fell to the share of the plaintiff's father, by name, Narsa Reddy called as Narsaiah. After the death of his father, the plaintiff became the owner of the suit schedule land as a sole legal heir to his father. He further pleaded that the suit schedule land got mutated in his name and he was in 20 1995 SCC (3) 426 37 Dr.GRR,J SA No.802 of 2002 possession and enjoyment of the suit schedule land till the 2nd week of November, 1990.

25.2. The case of the defendants was that the father of the plaintiff had sold the suit schedule property to the father of the defendants by means of unregistered sale deed dated 26.06.1960 and delivered the possession of the same to him vide Ex.B1.

25.3. As the defendants admitted ownership of the father of the plaintiff over the suit schedule property and considering the pahanies marked by the plaintiff under Ex.A1 to A15, the trial court answered the issue holding that the plaintiff was the owner of the suit schedule property. 25.4. The contention of the appellants - defendants was that they were in continuous possession of the suit schedule property for a period of more than three and half decades. Even prior to the unregistered sale deed dated 26.06.1960, the father of the defendants was in possession of the suit schedule property, as the father of the plaintiff had borrowed some money from the father of the defendants by creating a mortgage and as he failed to clear the dues, he sold the property to the father of the defendants.

Dr.GRR,J SA No.802 of 2002 25.5. To prove the unregistered sale deed, the defendants got examined DWs.2 and 4. DW.2 was the scribe of Ex.B1. DW.2 was aged 75 years. DW.4 was an attestor to the simple sale deed, he was aged 85 years. Both these witnesses stated that the plaintiff's father had sold the property to the defendants' father by means of a simple sale deed and since then the father of the defendants and subsequently, the defendants were in possession of the suit schedule property. Both these witnesses were thoroughly cross examined but nothing was elicited in their cross examination to cast a doubt about the fact that the plaintiff's father executed a simple sale deed. The English translation of the sale deed speaks of the delivery of the suit schedule property. The defendants also got examined a neighbouring land owner as DW.3. DW.3 also stated that neither the plaintiff nor his father were in possession of the suit schedule property and the father of the defendants, subsequently the defendants were in possession of the said land. The plaintiff also stated in his plaint that the defendants were having land adjoining the suit schedule property on the North East corner without mentioning the survey number. The sketch filed along with the plaint also would show the land of the defendants on the North East corner without mentioning the survey number. The defendants had filed the pattedar passbooks and 39 Dr.GRR,J SA No.802 of 2002 title deeds (marked under Exs.B9 & B10) to establish their title over the suit schedule property.

25.6. The plaintiff who was examined as PW.1 in his cross examination stated that even though the pattedar passbook and title deeds were issued to him in 1997-1998, the suit schedule property in Sy.No.357 was not mentioned in the said passbook. The said admission made by the plaintiff was significant as it probablises that the suit schedule property seized to be in the possession of the plaintiff's father from 1960 and for the said reason Sy.No.357 was not mentioned in his passbook. The evidence of the plaintiff also would disclose that he obtained loan by mortgaging his agricultural lands in other Sy.Nos.354 and 358 but he did not mortgage the land in Sy.No.357. The plaintiff though contended that the land was mutated in his name, but failed to give the particulars the date on which it was mutated or the proceedings by which it was mutated in his name.

25.7. The contention of the defendants was that even though the plaintiff's father conveyed the land in Sy.No.357 by means of a simple sale deed in 1960, in the revenue records the land in possession of the defendants was wrongly shown as in Sy.No.358. Their contention was that the land in Sy.No.358 actually belonged to Narayana Reddy, Yerra 40 Dr.GRR,J SA No.802 of 2002 Yellaiah, Vajravva and Kummari Ramulu and they were no way concerned with the said land. The plaintiff also admitted in his cross examination that the land in Sy.No.358 belonged to the above referred persons. This admission made by the plaintiff is also crucial to consider that the entries in the pahanies were not recorded accurately. The defendants further contended that on noticing the error, they submitted an application to the MRO for correction of entries and the entries were corrected in the pahanies from 1990 onwards.

25.8. Except the certified copies of pahanies from the years 1974-75, 1993-94 marked under Exs.A1 to A15, the plaintiff failed to file any other document to show that he or his father exercised their ownership rights over the suit schedule property since 1960 onwards. Mere entries in the pahanies do not establish the title of the plaintiff. The entries in the pahanies are erroneous as evident from the fact that the plaintiff was shown as in possession of the suit schedule property in the certified copies of pahanies 1992-93 and 1993-94, whereas, his own case was that he was dispossessed in the year 1990. The entries in the pahanies alone were unreliable to prove that the plaintiff was exercising his right of ownership over the suit schedule property even after 1960. The trial court placed the burden on the defendants to prove that they were in 41 Dr.GRR,J SA No.802 of 2002 possession of the suit schedule property rather than asking the plaintiff to prove that he was in possession of the suit schedule property. The trial court also mis-read Ex.B1 observing that there was no delivery of possession of the suit schedule property mentioned in it. The lower appellate court admitted the contention of the counsel for appellants that the transfer of ownership in favor of vendee by the vendors vested with absolute rights certainly would amount to delivery of possession of the land without reserving any right and also admitted that if the land was already put in possession of the vendee since mortgaged to him, still it had to be presumed that the vendee was inducted into possession with absolute rights from the date of the actual transaction of sale and then he is entitled to seek protection under Section 53-A of Transfer of Property Act as the defendants performed part performance. 25.9. On one side admitting that the transfer of ownership would amount to delivery of possession of the land without reserving any right, on the other hand, the lower appellate court as well as the trial court observed that there was no evidence adduced by the defendants that their father was inducted into possession of the suit property in pursuance to Ex.B1 or by earlier proceedings of the mortgage of the same property. The trial court focused its attention on the previous mortgage executed 42 Dr.GRR,J SA No.802 of 2002 by the plaintiff's father in favour of the defendants' father and drawn an adverse inference because of the non filing of the previous mortgage deed. When the plaintiff's father had sold the property to the defendants' father there is no need for defendants to still retain the previous mortgage deed as it is a document of no consequence. The trial court focused its attention on the previous mortgage aspect even though there was no issue in the said regard and failed to appreciate the evidence of DW.2 and DW.4 who clearly stated that the defendants' father was in possession of the suit schedule property. The trial court erred in terming the evidence of DW.3 as vague, even though it was specific and erred in overlooking the evidence of DW.2 on flimsy grounds.

26. With regard to the relief of recovery of possession, the plaintiff has to establish that he was in possession of the suit schedule property and that he was dispossessed by the defendants high handedly. A careful reading of the plaint would show that the plaintiff had not pleaded when the defendants dispossessed him from the suit schedule property. The plaintiff merely pleaded that "the suit schedule land was mutated in the name of the plaintiff and he was in possession and enjoyment of the suit schedule land till 2nd week of November, 1990".

Dr.GRR,J SA No.802 of 2002 26.1. If at all the defendants had actually dispossessed the plaintiff from the suit schedule property in November, 1990, he should have filed a suit for recovery of possession under Section 6 of the Specific Relief Act within six months or ought to have given a legal notice or lodged an FIR against the defendants for trespass or criminal intimidation, but leisurely filed the suit in July, 1997 seeking delivery of possession. The conduct of the plaintiff in keeping quiet for 6 ½ years was unnatural and suspicious. The averments in the plaint lack basic particulars regarding the dispossession of the plaintiff. Learned counsel for the appellants relied upon the judgment of the High Court of Madhya Pradesh in Shanti Bai, W/o. Babulal and others Vs. Haimen Bai (dead), W/o. Mustafa Khan and others (1 supra) on the aspect that to obtain a decree of possession of an immovable property, plaintiff must plead on which date he was dispossessed from the suit property so as to compute the period of limitation. As the plaintiffs have not pleaded any specific date of their dispossession in the entire suit, their suit for possession cannot be decreed.

26.2. The plaintiff examined his farm servant as PW.2. The evidence of PW.2 would not suggest that PW.1 was dispossessed by the defendants. Plaintiff in his deposition had given different dates 44 Dr.GRR,J SA No.802 of 2002 regarding his alleged dispossession. In his chief examination, he referred to 1990 as the year of dispossession. At another place he stated that the defendants were in possession of the suit land since 1996. The lower appellate court assumed that the plaintiff claimed that he was dispossessed by the defendants during the year 1993 and gave a speculative finding in para 16 of its judgment that:

"but the possibility of taking over the possession of the suit land by the defendants when it was left abandoned by not cultivating by the plaintiff is not completely ruled out."

26.3. The said plea was not even taken by the plaintiff and it was not understood as to how the lower appellate court could have given such finding without even a pleading on this aspect by the plaintiff. Both the courts below failed to appreciate the evidence of DWs.2 and 4 who stated that possession was already delivered by the plaintiff's father to the defendants' father.

26.4. Learned counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Anil Rishi Vs. Gurbaksh Singh (11 supra) on the aspect that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not on the party who denies it. As the plaintiff is asserting that he was dispossessed by the defendants he need to state the specific date on which he was 45 Dr.GRR,J SA No.802 of 2002 dispossessed and should prove the same but failed to give even a specific date and failed to adduce any evidence to show that since when he was dispossessed.

26.5. The learned counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Gian Chand and brothers and another Vs. Rattan Lal alias Rattan Singh (12 supra) on the aspect that a person who asserts a particular fact is required to affirmatively establish it. Thus, when the plaintiff failed to plead and prove that the defendants dispossessed him from the suit schedule property, the said issue ought not to have been held in favour of the plaintiff.

27. With regard to the issue whether the Record of Right proceedings in favour of the defendants are null and void and not binding on the plaintiff, the proceedings under Section 5-A of the record of rights under the AP Rights in land and Pattedar Passbooks Act, 1971 are quasi judicial. They confer title of the land to those persons who were having unregistered sale deed. The MRO on receipt of an application by a person who was in possession of an unregistered sale deed has to make an enquiry as to whether the simple sale deed was actually executed or not. As per Rule 22 of A.P. Rights in Land and Pattedar Passbooks Rules, 1989, the MRO after hearing the parties and on examining the 46 Dr.GRR,J SA No.802 of 2002 documents and witnesses and after being satisfied that the alienation is not in contravention of laws shall complete the enquiry. The MRO is also expected to conduct local enquiry and to obtain corroborative evidence from the neighbouring ryots and village elders. After completion of enquiry, the MRO would call upon the transferor to deposit challan in the treasury an amount equal to the registration fee and stamp duty. Thereafter, the MRO proceeds to issue a certificate in Form-XIII (B) and subsequently issues title and passbook to the occupant in the category of owner/pattedar. The MRO under Rule 22 (3) has to issue a notice to the transferor in Form-XI specifying therein the date on which and the time at which he proposes to enquire into the application and shall also issue notice in Form-XII to all the persons believed to be interested in the land specifying therein the date, time and place at which he proposes to enquire into the application. 27.1. The plaintiff had assailed the proceedings in File No.B/2029/91 dated 24.07.1991 making allegations that the simple sale deed Ex.B1 was a bogus and fabricated one, but had not sought for cancellation of it under Section 31 of the Specific Relief Act, 1963. The plaintiff pleaded that the defendants managed the revenue authorities and got favourabale orders and further pleaded that the revenue authorities did not issue 47 Dr.GRR,J SA No.802 of 2002 notice to him before passing the order under Section 5-A of the Record of Rights under the AP Rights in land and Pattedar Passbooks Act. The date of the proceedings in File No.B/2029/91 issued by the MRO Chinnakodur Mandal, would disclose that they were issued on 24.07.1991. The plaintiff sought for invalidation of the said proceedings by filing the suit O.S No.62 of 1997 on 14.07.1997 i.e., after almost six years. The plaintiff sought to declare the said proceedings as null and void and contended that it was a bogus and fabricated one basing on a memo marked under Exs.A20 and 21, wherein the Mandal Revenue Officer, Chinnakodur Mandal stated that the records of the proceedings dated 24.07.1991 were not available. The plaintiff ought to have made the MRO, Chinnakodur Mandal as defendant in the suit, as he sought for proceedings No.B/2029/91 dated 24.07.1991 issued by the MRO, Chinnakodur Mandal to be declared as invalid, but failed to join him as a necessary party. The plaintiff also failed to examine any official from the office of the MRO, Chinnakodur Mandal as a witness nor summoned the documents from the office of the MRO, Chinnakodur Mandal from the court. As per Section 5-B of the Record of Rights under the AP Rights in land and Pattedar Passbooks Act, an appeal lies to RDO within 30 days from the orders passed by the MRO/Tahsildar under Section 5-A and a revision lies before the Collector under Section 9. The plaintiff did 48 Dr.GRR,J SA No.802 of 2002 not chose to file any appeal under Section 5-B of the Record of Rights under the AP Rights in land and Pattedar Passbooks Act, and a revision under Section 9.

28. The appellants filed I.A No.01 of 2024 for raising additional substantial question of law as to whether a declaration regarding the ROR proceedings of the MRO bearing File No.B/2029/91 dated 24.07.1991 can be declared as null and void without the said MRO, Chinnakodur, being arrayed as a defendant in the suit. 28.1. DW.2 stated about the revenue authorities visiting the village and conducting the enquiry at the time of issuing passbooks. DW.3 also stated about the MRO visiting village along with the Revenue Inspector and that five other villagers were also present in the enquiry. Thus, two independent witnesses deposed that the MRO, Chinnakodur conducted an enquiry under Section 5-A of the Record of Rights under the AP Rights in land and Pattedar Passbooks Act.

28.2. According to Section 114 of Indian Evidence Act, 1872, the court may presume existence of certain facts. As per Section 114(e) it can be presumed that judicial and official acts have been regularly performed. The said presumption can be rebutted by the plaintiff by adducing evidence but except filing the memos marked under Exs.A20 and A21, 49 Dr.GRR,J SA No.802 of 2002 the plaintiff failed to implead the MRO as party to the proceedings or failed to summon the MRO or the File No.B/2029/91 dated 24.07.1991. As such, the trial court erred in declaring the said proceedings as null and void. The lower appellate court failed to discuss about the said issue itself. As such, both the courts below failed to scrutinize and examine the evidence of the witnesses carefully and came to an erroneous conclusion that the proceedings in File No.B/2029/91 dated 24.07.1991 of the MRO, Chinnakodur Mandal is null and void. The trial court committed a grave error in observing that Section 5-A of the Record of Rights under the AP Rights in land and Pattedar Passbooks Act, proceedings could only be in respect of alienation or transfer of a registered document, whereas, the legislative intent was only to provide a remedy to those persons who were having unregistered sale deeds. As such, on these grounds, the orders of both the trial court and lower appellate court need to be set aside.

29. In the result, the Second Appeal is allowed by setting aside the judgments of the trial court in O.S No.62 of 1997 dated 21.04.2001 and the lower appellate court in A.S No.22 of 2001 dated 23.09.2002. The suit filed by the plaintiff is dismissed. All the substantial questions of law are answered against the plaintiff and in favour of the appellants- 50

Dr.GRR,J SA No.802 of 2002 defendants including the additional substantial questions of law raised by the appellants - defendants in I.A No.01 of 2024.

There shall be no order to costs.

Pending miscellaneous applications, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J Date:15.10.2024 dsv

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