Andhra HC (Pre-Telangana)
Silver Jublee Club, Deverkonda ... vs The State Of Telangana, Rep.By District ... on 7 September, 2018
Equivalent citations: AIRONLINE 2018 HYD 24
Author: D.V.S.S. Somayajulu
Bench: D.V.S.S. Somayajulu
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
AS No.176 of 1995
07-09-2018
Silver Jublee Club, Deverkonda Village, rep.by its Secretary Appellant/Plaintiff
The State of Telangana, rep.by District Collector, Nalgonda, and others. Respondents/ Defendants
Counsel for the appellant: Sri K. Mahipathi Rao
Counsel for the Respondents 1 & 2: G.P. for Appeals
Respondent No.3 : Sri C. Nageswara Rao
Respondents 4 to 19: None appeared
<Gist:
>Head Note:
? Cases referred:
(2014) 2 SCC 269
2 AIR 1989 Orissa 248
3 AIR 1996 Karnataka 125
4 2001 AIHC 2479
5 (1996) 6 SCC 660
6 2016 (4) ALD 2 (SC)
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
AS No.176 of 1995
JUDGMENT:
This appeal is filed by the plaintiff against the judgment and decree dated 21.11.1994 passed by the Sub-ordinate Judge, Nalgonda in OS No.62 of 1988.
For the sake of convenience, as this is a first appeal, the parties are referred to as in the suit only viz., plaintiff and defendants.
The suit is filed by the Silver Jubilee Club, Deverkonda, which is a society registered under the Andhra Pradesh (Telangana Area) Pubic Societies Registration Act, vide registration No.851 of 1974. It is filed against the State of Andhra Pradesh, the Mandal Revenue Officer, Deverkonda Mandal and 17 other private parties, claiming a declaration of title and perpetual injunction restraining the defendants from interfering with the plaintiffs possession and property viz., the land and the house bearing No.12-205, 12-206 and 12-207 situated in Survey Nos.669 and 670 of Deverkonda Village and the refund of an amount of Rs.6,566.20 paise from the second defendant. These are the main reliefs claimed. The suit schedule property is described clearly as follows:
Silver Jubilee Club bearing house Nos.12-205, 12-206 and 12-207 with open place and compound covering survey Nos.669 and 670 measuring in all Ac.7.07 guntas of dry land situated in Devarkonda Village with the following boundaries:
East : Sri Kodandarama Swamy Temple, West : Private house, North : Gram Panchayat Road, South : Jadcherla-Nalgonda PWD Road.
This is the specific property for which the relief of declaration and injunction is sought for. As far as the monetary claim is concerned, it is the case of the plaintiff-club that they have sold the standing trees to a third party and at that stage the Government interfered and claimed that the property is Government property and therefore the amount was paid to the Government by the auction purchaser. The refund of this amount is now sought for.
The case of the plaintiff-club is that the property was purchased by them in the year 1935 from one Gajula Sarabayya under Ex.A.1-sale deed and the club has been in possession and enjoyment of the suit schedule property. They state that the Government wrongly mutated the land on which the club is situated in Jamabandi in 1977-78 as kharij khata land. The plaintiff-club has no notice of the alleged conversion. Therefore, the suit is filed for a declaration of title and for other reliefs.
On behalf of the State, the Mandal Revenue Officer, Devarkonda Mandal filed a written statement stating that the State is the absolute owner of the land and that the plaintiff-club has no right, title or interest over the property. While there is no clear pleading against the other private defendants, still the written statement of the third defendant was filed wherein he set up a title independently. Similarly, defendants 4 to 19 also filed a written statement wherein they set up independent title. They clearly dispute the title of the plaintiff-club. In paragraph-8 of the written statement filed by the defendants 4 to 19, it is clearly pleaded that the property relating to the registered sale deed is described as Gollavanimanyam chelka, whereas the property in which the suit land is situated in Mondichinta chelka. They also assert the other issues in detail in the written statement.
Based on the above pleadings, the following issues were framed by the lower Court:
1. Whether the suit is filed by a properly representing person?
2. Whether the plaintiff is the owner and possessor of the suit property in S.Nos.669 and 670 new and S.Nos.557 & 558 old of Deverkonda village?
3. Whether the suit is barred by the period of limitation?
4. Whether the suit property is properly valued and whether court fee paid is sufficient?
5. Whether the plaintiff is entitled to recover the auction amount of Rs.3,025/- with interest, as claimed from the defendants?
6. Whether the plaintiff is entitled to the declaration of title and perpetual injunction as prayed for?
7. To what relief is the plaintiff entitled?
Based on these issues, the parties went to trial. For the plaintiff, PWs.1 to 8 were examined and Exs.A.1 to A.14 were marked. For the defendants, DWs.1 to 5 were examined and Exs.B.1 to B.46 were marked. The lower Court after the trial dismissed the suit. The lower Court also did not believe the case of the defendants 4 to 19.
This Court has heard Sri K. Mahipathi Rao, learned counsel for the appellant; the Government Pleader for Appeals for respondents 1 and 2 and Sri C. Nageswara Rao, learned counsel for the third respondent but none appeared for respondents 4 to 19.
In this case the essential questions to be decided are in between the plaintiff-club and the State. The law on the subject regarding the burden of proof in a suit for declaration is also very well settled. In Union of India v. Vasavi Co-op. Housing Society Ltd. wherein the Honble Supreme Court of India clearly held that the burden of proof in a suit for declaration of title is squarely upon the plaintiff. The plaintiff will have to prove with the clear and cogent evidence their right, title and interest in a suit for declaration of title. The failure of the defendant to prove his case or the weaknesses in the defendants case will not entitle the plaintiff to a decree as prayed for. The burden is squarely on the plaintiff.
Against this backdrop of the settled legal position, the evidence and the submissions of both the learned counsel will have to be examined. The main points that have to be decided are issue Nos.2 and 6, which are to the following effect:
2. Whether the plaintiff is the owner and possessor of the suit property in S.Nos.669 and 670 new and S.Nos.557 & 558 old of Deverkonda village?
6. Whether the plaintiff is entitled to the declaration of title and perpetual injunction as prayed for?
In the case on hand, the plaintiff-club has examined eight witnesses and has marked Ex.A.1 sale deed. Ex.A.1 sale deed is executed in 1935 (fasli-1345). An examination of Ex.A.1 clearly shows that the land conveyed under Ex.A.1 in favor of the Silver Jubilee Club is the land measuring Ac.7.07 guntas in Gollavanimanyam chelka. Ex.A.1 does not have any description of the land with boundaries. The translation of Ex.A.1 is also filed along with the material papers as Ex.A.4.
To prove the possession and enjoyment of the property, the witness who was examined first is PW.3, is the Junior Assistant in the Deputy Registrars office. He clearly states that in Ex.A.1 or A.4 the boundaries of the property are not mentioned for the land covered in Survey Nos.557 and 558 (which are the old survey numbers). The next witness examined is PW.4, who is an advocate aged about 90 years at the time of his deposition. He deposed that the plaintiff-club has constructed a building in the land purchased. PW.5 is another advocate, who is also aged about 90 years at the time of his deposition as plaintiffs witness. He clearly states that the vendor of Ex.A.1 died and that they constructed a building in some part of the land. He deposes as follows about the boundaries. On the northern and southern side, they erected a compound wall on the boundary lines. On the eastern and western sides of the land, they erected a fencing wire. Now there is a road on the northern, southern and western sides of the said land. He admits that on the eastern side, there is a temple of Sri Kodandarama Swamy. He also admits in his cross-examination that the boundaries of the property are not mentioned in the registered sale deed nor is any map annexed to the registered sale deed. This witness was further cross-examined on 23.02.1994 by third defendant. In his cross-examination, he states that the boundaries are as follows:
East: Office building belonging to the Weavers Cooperative Society, West: Road and adjoining the patta land of Ramana and Ranga Reddy.
North: Road and after it horizontal.
South: PWD road leading to jadcherla.
The next witness is PW.6, who was the Secretary of the plaintiff-club at that time. He states that the entire area within the compound is Ac.7.07 guntas. In his cross-examination, he states that on the western side of the club premises, there is a road and private buildings. On the eastern side, there is a temple of Kodandarama Swamy and on the northern side, there is a Gram Panchayat Road and on the southern side there is a PWD road. The next witness is PW.7 who says that out of Ac.7.07 guntas of land, some land was acquired in a road formation and survey. He states that the boundaries are as towards west and north sides, there is a road; towards south, some other place and dak bungalow and other lands belonging to us.
On behalf of the defendants, DW.1 was examined. He is the Mandal Revenue Officer of Devarkonda village. He states that the land in Survey Nos.669 and 670 is kharij khata. He also deposed that the present plaintiff- club filed a petition before the Commissioner for land revenue who dismissed the same and they went to the High Court, which has given directions to the plaintiff to approach the civil Court. Ex.B.1 is the said document.
The evidence of this witness is being considered at this stage, since the suit is filed for a declaration of title deed and the essential contest is between the plaintiff- club and the State.
It is an admitted fact that the survey Nos.669 and 670 are the current survey numbers. The discrepancies in the boundaries were pointed out and relied upon very strongly by the learned counsel for the respondents/ defendants. In addition, the lack of identity of the property is also a matter that is highlighted by the learned counsel for the respondents. The learned counsel for the respondent/Government also pointed out that the land purchased under Ex.A.1 is in Gollavanimanyam Chelka, whereas the lands claimed in Survey Nos.667 and 670 are situated in Mondichinta chelka. The documents filed by the plaintiff themselves have shown the difference in classification.
To get over this difficulty, the learned counsel for the appellant/plaintiff-club relied upon the following judgments.
i) Naresh Chandra Das v. Nirmal Cahnra Das ;
ii) S. Nagraj v. Kalluramma ; and
iii) Mogulla Ailamma v. Samba Yellaiah .
The learned counsel also relied upon Order 7 Rule 3 CPC and argued that the plaint has described with sufficient clarity and that the boundaries need not be given with clarity. It is also his contention that the subject land can be identified with certainty. Therefore, he states that the provisions of Order 7 Rule 3 CPC are complied with and that the objections raised by the defendants are not correct. He also argues that the plaintiffs sale deed of 1935 (Ex.A.1) is not really disputed by the defendant.
While the case law on Order 7 Rule 3 CPC or the provisions of the Rule are not really in dispute, the question that arises in this case is about the title; possession and also the identity/the location of the property in this case. The boundaries given by the witnesses do not tally with each other. The extent said to have purchased under Ex.A.1 is not clearly borne out by the record. No steps were taken to clarify the discrepancies pointed out by defendants 4 to 19 that the land is not situated in Gollavanimanyam chelka. Despite the written statement of defendants 4 to 19 disputing the location of the land wherein they clearly pleaded that the land in which the club is situated is located in Mondichinta chelka and not in Gollavanimanyam chelka, which is mentioned in Ex.A.1, no steps were taken to clarify this issue. The plaintiff-club did not take any steps to clarify the actual position on the ground. They did not get an advocate commissioner appointed to localize the land to establish the boundaries and/or to show their possession and enjoyment to the entire extent or of a lesser extent. The building plans and other records would have contained details of the appurtenant lands also if they were submitted for approval. They did not file any documents like the plans.
This Court also notices the fact that with the passage of time, boundaries do undergo some changes when land acquisition, road widening, road formation or such other factors occur. Similarly, due to the sale of neighbouring lands or boundaries, encroachments etc., the actual extent of land in old documents or even the description of the ownership of the adjacent lands or the boundaries may not tally with the ground realities existing on the date of the suit or its hearing. In such cases, the burden lies on the party to prove that original boundaries are no longer available as on the date of hearing etc. by adducing evidence to show that the boundaries have changed due to certain reasons like those mentioned above. These reasons are not exhaustive but are being highlighted to show that these are capable of proof.
In the case on hand, there is absolutely no evidence to support the case set up by the plaintiff-club that the entire extent of Ac.7.07 guntas is in their possession and enjoyment. Even the lesser extent as per PW.1 is not proved. In fact, there is no proof at all of the extent of land or of its clear possession. The judgment of the Honble Supreme Court which is cited earlier makes it very clear that the burden always lies on the plaintiff- club to prove its case in a suit for declaration of title.
In the opinion of this Court, the plaintiff-club has failed to prove its case. The findings of the lower Court on issue Nos. 2 and 6 are correct. The lower Court rightly notices that there is no documentary evidence to show that the plaintiff was enjoying the entire extent of land. The mutation of the names and the claim and possession of the club over the entire extent with boundaries is not established. The existence of open land surrounding the club-buildings has not been proved. Therefore, this Court concurs with the findings of the lower Court on issue Nos.2 and 6.
Issue No.1 is whether the suit is filed by a properly representing person. There appears to be an error here. The correct issue is whether the suit is instituted by a properly authorized person. The plaint was signed and filed by its Secretary, Sri G. Rami Reddy and an issue was framed about the competence of plaintiff-club to institute the suit. PW.6 is the Secretary of the plaintiff- club, who has filed the suit. In the cross-examination, he admits that the resolution was passed to file a suit in the court of law against the defendants. He states that he has not filed any document to show that the club members have authorized him to file the suit. This court notices that the objection is not taken on the ground that the club is a society and that the Secretary cannot file the suit. The objection is that the resolution passed by the club members is not filed into the Court. Further the evidence of this witness shows that he has been associated with the club since 1985. The plaint has been filed in the year 1988. Earlier the club has also approached the High Court of Andhra Pradesh for certain reliefs. In this case also, as can be seen from Ex.A.13, the club was represented by its Secretary. This Court is also of the opinion that the plaintiff-club cannot be non- suited on such a hyper technical ground. As observed by the Honble Supreme Court of India in United Bank of India v. Naresh Kumar , the mere fact that the power of attorney or a resolution is not filed should not be a ground to non-sue the plaintiff totally. The appellant is not an individual but is a society. It has to be represented by an actual living person who should be someone properly associated with the society. In this case, PW.6 fulfills all the above conditions. Even otherwise at an appellate stage a resolution/power of attorney can be obtained and filed to cure this procedural defect. The fact remains that the plaintiff has paid the court fee, filed the suit and actively pursued the case. A number of witnesses associated with the club were examined. The appeal is also being pursued in this Court. Therefore, this Court in line with the judgment of the Honble Supreme Court in Naresh Kumars case (5 supra) holds that there is a deemed ratification of the action taken to tile the suit. Even as per the provisions Section 7 of the Andhra Pradesh (Telangana Area) Public Societies Registration Act, 1350F, any suit can be instituted by the Chairman/"Secretary" or trustee as per the Societys Rules. Hence, this Court holds that issue No.1 is to be held in favor of the appellant only.
Issue No.5: This issue is about the refund of the amount of Rs.3,025/- which is purportedly deposited with the Government. This Court notices that the plaintiff-club did not prove that it is the owner of the entire land on which the trees are located. The plaintiff also raised an issue about the sudden reclassification of the land. The learned counsel for the appellant relied upon certain passages in the decision of the Honble Supreme Court in Government of Andhra Pradesh v. Pratap Karan and argued that the Government did not file any document to show the manner in which the land was classified and reclassified. The learned counsel relied upon paragraph-78 of said judgment and argued that there is no proceeding to show how the suit land is suddenly classified as government land. The judgment of Honble Supreme Court in Pratap Karans case (6 supra) is very clear, but the fact remains that in this case, the appellant/plaintiff filed an appeal before the Commissioner of Land Revenue. The Commissioner clearly held that the appellant is not really aggrieved by the orders of the reclassification of the land as kharij khata but is actually aggrieved by the notice issued by the Tahsildar. The Commissioner clearly held that the action of the Tahsildar in issuing notices is correct as the property rights in the land were held by the Government. Therefore, the appeal was rejected. Against the same, the writ petition bearing No.3342 of 1983 was also filed and the same was dismissed by this Court and the plaintiff is given liberty to agitate their rights in a competent civil Court. The said order was marked as Ex.A.13.
In addition, this Court also notices that the relief claimed in the plaint is only for a declaration of title. The arbitrary conversion or the method of conversion in the revenue records or their correction are not directly raised in the plaint nor is any specific issue raised about the same during the course of the examination of witnesses or in the argument. The plaintiff did not also seek a relief of correction of the alleged wrong entries in the revenue records. For all these reasons, this Court concurs with the findings of the lower Court on issue No.5 also.
Issue No.3 is whether the suit is barred by limitation. It is clear from a reading of Ex.A.13 order that the Honble High Court of Andhra Pradesh gave permission to the plaintiff-club for agitating their rights, if any, before the court of law. This order was passed on 11.09.1987. The suit was filed in 1988. Therefore, this Court holds that the suit is really not barred by limitation.
As far as issue Nos.3 and 4 are concerned, there is no clear pleading or evidence. Therefore, this Court concurs with the finding of the lower Court on issue Nos.3 and 4 and they need not be specifically decided again by this Court. Issue No.7 is about the general relief.
In view of the above discussion, this Court is of the opinion that the plaintiff-club has failed to prove its title and possession to the property. There is no clarity about the actual identity of the property on the ground.
For all the reasons, this Court holds that there are no merits in the appeal and accordingly the same is dismissed. The judgment and decree dated 21.11.1994 passed by the Sub-ordinate Judge, Nalgonda in OS No.62 of 1988 are confirmed. In the circumstances, there shall be no order as to costs.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
__________________________ D.V.S.S. SOMAYAJULU, J Date: 07.09.2018