HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA
SECOND APPEAL No. 1357 OF 2010
DATED 22ND September, 2011
BETWEEN
Chelikani Suryachandrarao
…….Appellant
and
Manikala Venkanna and ors
……Respondents
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA
SECOND APPEAL No. 1357 OF 2010
JUDGMENT
The appellant herein is the plaintiff, who filed the suit in O.S.No.57 of 2005 seeking permanent injunction restraining the respondents/defendants from interfering with his possession and enjoyment over the plaint schedule property.
Before the trial Court, on behalf of the appellant/plaintiff, P.Ws.1 to 4 were examined and Exs.A.1 to 10 were got marked. On behalf of the respondents/defendants, D.Ws.1 to 4 were examined and Ex.B.1 was got marked. The learned Junior Civil Judge, Chintalapudi, West Godavari District, upon consideration of the evidence on record, dismissed the aforesaid suit by judgment dated 7.12.2004.
Aggrieved thereby, the appellant/plaintiff preferred an appeal in A.S.No.16 of 2005 on the file of the learned Additional District Judge, Family Court-cum-Additional District Court, West Godavari, at Eluru. The lower appellate Court, upon re-appreciation of the evidence on record, dismissed the said appeal by judgment dated 28.08.2009. Hence, the present second appeal.
The learned Counsel for the appellant sought to raise substantial questions of law—whether the property covered by a sale deed inclusive of the boundaries is legally sustainable, and whether the Courts below are right in ignoring the vital documents like land revenue receipts, No.10(1) Account and No.2 cultivating account without any justifiable reasons. Besides the above, he submitted that when the land on southern side is meant for passage, which could not be sold or cultivated by the original owner, claiming of the right over the said passage by the defendants is contrary to the right of passage recited in the sale deed. It is further contended that the plaintiff has proved his possession by filing land revenue receipts at Exs.A.2 to A.6, Ex.A.7 the certificate issued by the Cooperative Society to show that the plaintiff mortgaged the property and obtained loan, and 10(1) Account receipts etc., but, the defendants did not adduce any evidence in rebuttal thereof to show their possession over the plaint schedule property.
Perused the case file meticulously.
Before adverting to the contentions of the learned Counsel on either side, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, it is to be seen that as to whether any substantial questions of law raised by the learned Counsel for the appellant in the Memorandum of Grounds need consideration and warrant any interference by this Court in this second appeal.Time and again, the Supreme Court held that this Court is entitled to exercise its power under Section 100 CPC only when a substantial question of law arises in a second appeal for adjudication but not otherwise
Keeping in mind the law laid down by the Supreme Court Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, I shall now proceed to examine the pleadings and evidence adduced by both the parties as well as the Judgments and Decrees of the Courts below so as to see whether the findings recorded by them are justified in law and on fact.
The appellant/plaintiff claimed that he had purchased the plaint schedule land admeasuring Ac.0.40 cents situated in R.S.No. 367/2F of Kamavarapukota village under a sale deed Ex.A.1 dated 13.10.1988 from its original pattadar one Kamma Venkayya and since then he is in possession and enjoyment of the same by paying land revenue. On the other hand, it was the case of the first respondent/ first defendant that he along with four others purchased an extent of Ac.4.25 cents out of Ac.5.66 cents from Kamma Venkayya under a registered sale deed Ex.B.1, dated 20.7.1964 and upon partition of the same, he got Ac.0.85 cents to his share and the plaint schedule land would form part of the land that had fallen to his share. In the said sale deed Ex.B.1, it was clearly recited as to its boundaries that some land was set apart for passage on southern side. A perusal of the said sale deed reveals that the said land was intended to provide a passage to the land at extreme south of the plaint land, and in fact there is no passage actually formed. As such, the land admeasuring Ac.4.25 cents stated to be sold by the said Kamma Venkayya to the first defendant and four others includes the piece of land that was left for passage. If that be so, there was no land left in possession of said Kamma Venkayya after he sold Ac.4.25 cents under Ex.B.1. Further, there is no mention as regards the possession of any piece of land by Kamma Venkayya after he sold to the first defendant and four others, which would establish that there is no scope for the appellant/plaintiff to purchase the plaint schedule land from Kamma Venkayya in as much as nothing remains with Kamma Venkayya after he sold the land to first defendant and four others. Further it is to be seen, for the sake of argument, but not otherwise, that even if there is some land that was kept in possession of the said Kamma Venkayya having not been sold by the date of execution of Ex.B.1, the same would have been mentioned in Ex.B.1, but there is no recital therein as such as stated supra and further the remaining land, if any, should have been mentioned as southern boundary of the land under Ex.B.1. In the report filed by the Advocate Commissioner, the land on the extreme south in Sy.No. 367/2F is shown as passage in the boundaries mentioned in Ex.B.1 and no where it was shown that still some land remained and owned by Kamma Venkayya after he sold Ac.4.25 cents in RS.No. 367/2 to the first defendant and four others.
Further, the appellant/plaintiff who was examined himself as P.W.1, deposed in his evidence that the purchasers (defendants) are cultivating the land under Ex.B.1 since the date of their purchase; that Kamma Venkayya and his sons are neither cultivating any piece of land in the said survey number since 1964 onwards nor were they in possession of any extent of land in the said survey number. It was brought on record from the evidence of P.W.1 that P.W.1 never cultivated the land after the Kamma Venkayya sold the land under Ex.B.1 to the first defendant and four others. DW.3 who is no other than the son of Kamma Venkayya categorically stated in his evidence that they never cultivated the land subsequent to the sale of the land under Ex.B.1 to first defendant and four others.
A bare perusal of the depositions in the evidence of P.Ws. 2 to 4 would go to show that they did not support the case of the plaintiff at all.
As regards the contention that the plaintiff has proved his possession by filing land revenue receipts at Exs.A.2 to A.6 and Ex.A.7--the certificate issued by the Cooperative Society to show that the plaintiff mortgaged the property and obtained loan, and 10(1)--Account receipts etc, it is to be seen that in Y. Vijayabharathi Vs. Y.Manikyamma {1998 (2) ALT 623 }, a learned Single Judge of this Court, following the decisions of the Apex Court and this Court considered the evidentiary value of the entries in revenue records and observed as follows:
"8. ... Although the entries in the Record of Rights register enjoy the presumption in law that the entries are true unless the contrary is proved and may not be discredited, the records of rights are no records of documents of title. Such a question has been clearly dealt with by the Hon'ble Supreme Court in Nagarpalika, Jind v. Jagat Sing {[1995]3SCR9}. And following Nirman Singh v. Lal Rudra Pratap (AIR 1926 PC 100), it has been held that such documents are more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. In other words, the records of rights are the documents ensuring the person to be made liable to pay the revenue and for no other purpose. However, it may not be hastened to be decided that such entries have got corroborating value regarding the possession of a party in regard to an immovable property.
Xxxxx xxxxx xxxxxx
Xxxxxx xxxxx xxxxxx
From the above judgments, the evidentiary value of the entries made in the revenue records, can be summarized as that firstly they are only in the nature of fiscal enquiry instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid; secondly presumption on the basis of entries in the revenue records as rebuttable and not conclusive; thirdly the entries in the revenue records are not conclusive proof of title; fourthly the Revenue Courts have limited jurisdiction and they have no jurisdiction to decide the title conclusively and it is always desirable to have the question of title decided by competent Civil Courts rather than by Revenue Courts.
From the above, it is clear that the entries in revenue records may be useful to prove the prima facie possession and not conclusive proof with regard to title. ….”
In view the above decision, it is clear that Exs.A.2 to A10 would not come to the rescue of the appellant/plaintiff to prove his case that he has prima facie the conclusive proof of the title over the plaint schedule land. If once the appellant/plaintiff failed to establish his title over the plaint schedule land, his claim legally does not sustain. If that be the situation, there is no necessity to go into the entries in the revenue records to prove the prima facie claim over the land in question and consequently there is no need to go into other contentions as raised by the learned Counsel for the appellant in the memorandum of grounds of second appeal.
For the foregoing discussion, I do not see any question of law, much less a substantial question of law involved in the second appeal warranting interference with the concurrent findings recorded under the judgments and decrees of the Courts below.
The Second Appeal fails and is accordingly dismissed at the admission stage. There shall be no order as to costs.
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JUSTICE ASHUTOSH MOHUNTA
Dated 22ND September, 2011
Msnro
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