Telangana High Court
Chejerla Guramma Chittoor Died Per Lr A2 vs Dist.Collector Chittoor 6 Others on 24 August, 2018
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
A.S.No.548 of 1997
JUDGMENT:
This appeal is filed questioning decree and judgment dated 29.04.1997 in OS.No.141 of 1990 by the Subordinate Judge, Puttur.
As this is a first appeal, the parties are referred to as the plaintiff and defendant only.
OS.No.141 of 1990 is a suit filed by one C.Guramma, W/o. Muniswami Raju against the State of Andhra Pradesh and others claiming a declaration that the plaintiff is the owner of the plaint schedule property; restraining the defendants, their men and agents from interfering with the plaintiff's possession of the property etc. The suit schedule consists of the following five items.
SCHEDULE Chittoor District - Karveti Nagar Sub District - Vedurukuppam Mandalam - Etterenganapalle village accounts -
Sl.No. Sur. No. Paimash Nos. Extent Ac.
(1) 92/1 41 & 42 of the then Ac.8.52 cents
Guntipalle.
(2) 93 51 & 52 of the then Ac.16.60 ''
Guntipalle.
(3) 98/5 55/1 & 55/2 - do - 7.44 ''
(4) 100/3 56/2 of the then 9.32 ''
Guntipalle.
4th item is within the following boundaries:-
East : - Thellabanda and others lands;
West : - Gopal Raju lands and S.No.93;
North: M.Thippagutta;
South: Garampalle Cheruvu Vanka Kalva and 2 Subbaraya Kunta.
The lands at Thippinaidupalle village accounts. (5) S.Nos.125 i.e. 128/2, 128/3 Paimaish Nos. 432 of Thippinaidu Palle - an extent of Ac.10.20 cents.
The case of the plaintiff is that she is the wife of one Muniswami Raju. The lands described in items 1 to 5, according to the plaintiff, belong to the plaintiff's husband. According to the plaint, her husband acquired title to the property through a patta granted by the erstwhile land owners of the villages where the property is situated. Items 1 to 4 were given to the plaintiff's husband by the landholders of Guntipalle Village whereas, item No.5 was given to the plaintiff's husband through a patta dated 15.05.1935 by the Thippinaidupalle Village of Devalampet Estate authorities. Claiming right, title and possession from 1935 onwards, the suit is filed for a declaration that the plaintiff is the owner of the property. The plaintiff also pleads in paras 5 and 9 of the plaint that due to the erroneous treatment/recording of the land as assessed waste or poramboke in the Government records, her husband's title or her title to the property is not in any way affected. Therefore, she filed the suit for declaration of her title, and against defendant Nos.3 to 7 an injunction is sought as they are supposedly ready to interfere with her possession. The plaintiff also pleaded that she perfected her title by adverse possession.
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The first defendant filed a written statement denying the entire case set up. The first defendant takes the plea that with the abolition of the estates, the land vested with the Government as per the Estates Abolitions Act 1948. They also clearly pleaded that the land is classified as poramboke land. The possession and title of the Government are asserted and it is pleaded in the written statement that the land was always classified as poramboke land or as grazing pastures. The Government also pleaded that the lands have already been allotted to others. Based on the pleadings, one comprehensive issue was framed as follows:
"Whether the plaintiff is entitled for declaration of her title to the plaint schedule property and consequential permanent injunction restraining defendants from interfering with her possession and enjoyment?
Both the parties went to trial. For the plaintiff, PWs.1 and 2 were examined and Exs.A.1 to A.16 were marked. For the defendants, three witnesses were examined and Exs.B.1 to B.5 were marked and Ex.C.1 was marked in the cross- examination. After trial, the lower Court was pleased to dismiss the suit by its judgment dated 29.04.1997. The same is under challenge in this appeal.4
This Court has heard Sri S.V.Muni Reddy, learned counsel for the appellant and the Government Pleader for Appeals for the respondents.
As the suit is filed for a declaration of title, the burden rests upon the plaintiff to prove her title to the property.
The law on this aspect is very well settled and does not require repetition. The burden always is on the plaintiff to prove her title and the weaknesses of the defendants' case also will not entitle her to a decree (Union of India (UOI) V. Vasavi Co-op. Housing Society Ltd.1). Hence, the plaintiff has to necessarily plead and prove her title.
Sri S.V.Muni Reddy, learned counsel appearing for the appellant vehemently argued the case and pointed out that the plaintiff has proved her case by filing the two pattas which are marked as Exs.A.1 and A.3. Along with the pattas, the plaintiff has also filed the cisth receipts showing the payment of tax and the enjoyment of the property by the plaintiff. It was also asserted by the learned counsel that the defendants did make out a case at all and that their documents are all post suit documents. He pointed out that no documents pertaining to the pre-abolition period have been filed and that the witnesses examined did not have any knowledge of the case. He also argued that lower Court went wrong in coming to a conclusion that the patta 1 2014 (2) SCC 269 5 document contains new writings in ink. He also drew the attention of the Court to the definition of the 'ryot' in the 1908 Andhra Pradesh Estates Land Act and argued that his client was entitled to a declaration. He also argued that Exs.B.1 to B.5 do not prove that the land is a poramboke land and that therefore, in view of the pattas granted to her husband and the proof of possession, the plaintiff has proved her case.
In reply to this, the learned Government Pleader argued that the plaintiff was not examined as a witness and that therefore an adverse inference has to be drawn. He also pointed out that the admissions of the witnesses clearly prove that the land in question is classified as poramboke land. He also pointed out that the documents filed do no support the case of the plaintiff and that they in fact show that PW.1 claims to be in possession and not the plaintiff. He also drew the attention of this Court to the plea of adverse possession set up by the plaintiff which according to the learned Government Pleader contains an inherent admission that the Government is the owner of the land.
On the legal aspects, learned counsel for the appellant argued that the civil Court has jurisdiction even under Section 11 of the Andhra Pradesh (Andhra Area) Estates (Abolition and conversion into Ryotwari) Act, 1948 to decide the question of title and that therefore, the civil Court can go 6 into the question whether the plaintiff is entitled to the reliefs prayed for. The learned counsel relied upon State of Tamil Nadu v. Ramalinga Samigal Madam2 and Nallipattu Ramakrishna Reddy v. Kasala Balaiah3 to argue that the civil Court has jurisdiction. In reply thereto, the learned Government Pleader for appeals argued that relying upon Bhim Singh v. Zile Singh4 that a declaration could not be sought by the plaintiff on the basis of adverse possession. He also drew the attention of this Court to Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan5 to argue that person who pleads title on the basis of adverse possession must clearly prove the same. He also argued that the possession required must be proved in continuity, publicity and to the knowledge of the true owner. He also drew the attention of this Court to the extract from the judgment of Karnataka Board of Wakf v. Government of India6, which is reproduced in para 20 of the judgment, which is to the following effect:
"The Court further observed that: Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) 2 AIR 1986 SC 794 3 1987 (1) ALT 120 4 AIR 2006 Punjab and Haryana 195 5 (2009) 16 SCC 517 6 2004 (10) SCC 779 7 what was the nature of his possession,
(c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
In the absence of any evidence to show the possession with hostile intent and for the statutory period, the learned Government Pleader contends that adverse possession is not proved and that by pleading "adverse possession" the title of the defendant is admitted. He, therefore, prays that the appeal should be dismissed.
After considering the submissions made by both the parties, this Court holds that the essential point to be decided is in line with Issue No.1- Whether the plaintiff has proved her title and possession.
The following are the important facts that are clear form the record:
(1) Plaintiff did not enter the witness box. No clear or categorical admission is forthcoming why the plaintiff was not examined. In view of the law laid down by the Hon'ble Supreme Court of India in Vidhyadhar v. Manikrao7, an 7 AIR 1999 SC 1441 8 adverse inference has to be drawn against the plaintiff for her failure to come and prove her case particularly, as the suit is one for a declaration of title.
(2) It is not clearly pleaded when the plaintiff's husband has died and if she is the only legal heir to the property. The plaint merely states that the plaintiff's husband was granted the pattas on 10.04.1937 (items 1 to
4) by the plaint schedule and on 15.05.1935 (item No.5).
Nothing is explained about the devolution of the property on the plaintiff consequent on her husband's death. The date of her husbands death, the devolution etc., are not pleaded at all.
(3) The documents filed by her are pattas which are marked as Exs.A.1 and A.3. In addition, she has also filed the cisth receipts which are collectively marked as Ex.A.4 (6 cisth receipts). For period 1934-1937 till the date of the filing of the suit in 1988, only five receipts are filed as Exs.A.5. Ex.A.6 is another group of four receipts which are collectively marked and they belong to item No.5 (receipt of the year 1947) and they relate to Devalampet Estate. Therefore, the pleading that the plaintiff's husband is in continuous possession and enjoyment of the land from 1935-1937 till the date of the suit is not really borne out by the evidence. These receipts under Exs.A.4 to Ex.A.6 do not establish the continuous possession and enjoyment pleaded. 9
(4) In addition, the plaintiff herself has filed Ex.A.7 which are bunch of seven notices issued to Jayaram Raju (PW.1) to vacate the said property. These notices which are called 'B' memos clearly show that Jayaram Raju was in possession of the land and he was asked to vacate the same by the Government. The deposition of this witness on these aspects will be dealt with latter. These documents clearly show that Jayaram Raju-PW.1 is in possession of property described as item No.3 namely the land measuring Ac.7.44 cents in Sy.No.98/5 of Guntipalle Village. Therefore, these documents also do not establish the case of the plaintiff. On the other hand, they prove the Government has asserted its right and has asked PW.1 to vacate the property which in his wrongful occupation.
(5) Ex.A.10 is a letter again addressed by PW.1 wherein he states that he is cultivating the lands which are described in items 1 to 4 of the first schedule. He requested for issuance of adangal copies for the faslis/years mentioned therein. This document again runs contrary to the case set up by the plaintiff that she is in possession and enjoyment of the property.
(6) Ex.A.13 is an order passed by the Settlement Officer on 26.09.1990. The petitioner before this Officer is PW.1. He claims a patta for land measuring Ac.7.44 cents in Sy.No.98/5 (item 3) and the patta is also granted for this 10 extent of land by the Settlement Officer. This document again runs contrary to the plaintiff's case that she is in possession and enjoyment of the property and that she is entitled to a decree.
(7) In addition to this, the oral evidence of the plaintiff's witnesses is also clear. As noticed earlier, PW.1 alone was examined and the plaintiff was not examined. PW.1 is the nephew of the plaintiff. In his cross- examination, he clearly admits that rough pattas were not granted to him. He also admits that 'B' memos are issued to him and these are marked as Ex.A.7. He clearly agrees that all the five extents of lands which are shown as plaint schedule properties are shown as poramboke land in his cross-examination on 20.08.1996, he admits as follows:
"It is true that S.No.29/1 Ac.8.22 cents is classified as Grazy Poromboke in the Government lands. So also S.No.93 to an extent of Ac.16.60 cents as Gunta poramboke classified. So also S.No.98/5 Ac.7.44 cents is classified as grazy poramboke. S.No.100/3 Ac.9.32 cents classified as grazy poramboke.
S.No.128/2 Ac.15.36 cents classified as grazy poramboke in the government records."
He also admits that DKT pattas were given to certain people. He further agrees that 'B' memos (Ex.A.7) will be given only to poramboke lands. This evidence of PW.1 therefore supports the case of the defendants who have 11 pleaded that the lands are classified as poramboke lands after the survey and settlement and that they were allotted to third parties.
PW.2 is the next witness who was examined for the plaintiff. He admits in his cross-examination on 21.11.1996 that pattas were given to the ryots who were in actual possession of the property at the time of survey and settlement. He also admits that the Government has to give rough pattas and rough pattas were not given to those who are not in possession of the properties. He also states that the plaintiff did not approach the Revenue Authorities for obtaining a regular patta. In addition, he admits as follows:
"poramboke lands are vested with the Government. Suit lands are poramboke lands". He also admits in his further cross-examination as follows:
"I cannot say anything about the patta Exs.A.1 to A.3. The S.No.92/1 is under the grazy poramboke. In S.No.93 Ac.16.60 cents is in gunta poramboke.
In S.No.98/5, Ac.7.45 cents is grazy poramboke. In S.No.100/3 an extent Ac.9.32 cents is a grazy poramboke. In S.No.92/1 an extent of Ac.8.32 cents was occupied by the harizans as it is grazy poramboke. Now I am working as village Administrative Officer, Jakkadonam. In S.No.98/5 DKT pattas were given to C.Nagaraju and P.Mohan Raju. DKT pattas will be given on the basis of possession. In S.No.100/3 there is 12 vanka and other channels. The suit lands belongs to Government."
These admissions in his cross-examination on 21.11.1996 in the opinion of this Court virtually seal the plaintiff's case. The witness clearly admitted that the suit lands are poramboke lands and that the suit lands belong to the Government. No evidence is forthcoming to prove that this classification of lands is contrary to the ground reality.
In addition to this, it is the plea of the plaintiff that she has perfected her title by adverse possession. Inherent in a plea of adverse possession is an acknowledgment that the opposite party has the title to the property. This title is deemed to be extinguished by open hostile possession for over the statutory period with the knowledge of the opposite party if the same is proven. As pointed out by the Hon'ble Supreme Court of India in Karnataka Board of Wakf's case (6 supra), a person pleading adverse possession has no equities in his favour. The passage extracted earlier in this judgment also shows that the manner in which the adverse possession should be pleaded and proved. This Court is also of the opinion that a plea of adverse possession and title do not go together. On the one hand, the plaintiff claims title through pattas that were granted to her husband and on the other hand, she pleads adverse possession. These pleas in the opinion of this Court are mutually destructive. 13
The defendants have also examined three witnesses to prove their case. The witnesses reiterated that the procedure under the Estates Abolition Act was not followed and no pattas were given to the plaintiff by the Settlement Officer. The witness asserts that the entire land is a poramboke land. Even the patta that is granted to PW.1 for the land in Sy.No.98/5 will not come to the aid of the plaintiff's case as she is claiming title independently. DW.2 was also examined. He marked Ex.B.4 and talks about the classification. But there is no virtual cross-examination of this witness on the classification. Similar is the case with the evidence of DW.3 who clearly deposed about Sy.No.92/1, 93, 98/5 and 100/3 and 128/1. There is no virtual cross- examination on the classification.
Apart from this, the Court notices that as the suit is filed for a declaration of title, the burden rest squarely upon the plaintiff to prove her case. The documents filed by her are contradictory. PW.1 is claiming to be in possession and enjoyment of the property in some of the documents. No satisfactory explanation is given for the same. The plaintiff's case is thus not proved.
For all these reasons, this Court is of the opinion that the plaintiff has failed to prove her case. Therefore, the judgment and decree of the lower Court are confirmed and Issue No.1 is decided against the defendants. 14
This Court finds no merit in the appeal and the same is dismissed. No order as to costs.
As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed.
___________________________ D.V.S.S.SOMAYAJULU, J Date: 24.08.2018 KLP