HC - entries in the revenue records only for fiscal enquiries

HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

SECOND APPEAL No. 1357 OF 2010

 

DATED 22^ND 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.

---------------------------------------------

JUSTICE ASHUTOSH MOHUNTA

Dated 22^ND September, 2011

Msnro

HC - entries in the revenue records only for fiscal enquiries

HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

SECOND APPEAL No. 1357 OF 2010

 

DATED 22^ND 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.

---------------------------------------------

JUSTICE ASHUTOSH MOHUNTA

Dated 22^ND September, 2011

Msnro

HC - entries in the revenue records only for fiscal enquiries

HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

SECOND APPEAL No. 1357 OF 2010

 

DATED 22^ND 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.

---------------------------------------------

JUSTICE ASHUTOSH MOHUNTA

Dated 22^ND September, 2011

Msnro

HC - second appeal - It is well settled that even if second view is possible from the evidence, the second appellate Court would not be entitled to interfere with the findings unless they are perverse

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

THE HON’BLE SRI JUSTICE V.V.S.RAO

SECOND APPEAL Nos.1021, 1022 and 1252 of 2010

October 21, 2011

Between:

Chatrathi Anantha Lakshmi, W/o.Veerabhadra Rao

... Appellant

And

Pisapati Rajeswari, W/o.Ramakrishna Sarma

          And another

...Respondents

THE HON’BLE SRI JUSTICE V.V.S.RAO

SECOND APPEAL Nos.1021, 1022 and 1252 of 2010

COMMON JUDGMENT:

          This common judgment shall dispose of all the three appeals as they arise out of the common judgment of the first appellate Court in three different appeals, which were filed against the common judgment of equal number of suits decided by the trial Court. 

          The background of the cases is as follows.  Vakkalanka Ramamurthy and his wife Suryakantam (hereafter, the mother) had six children.  They include Venkata Ratnam, Suryanarayana Murthy, Vadrevu Pullamma and Chittapragada Veera Lakshmi.  The third son and the third are no more.  Ramamurthy died intestate on 29.8.1964 leaving behind the suit schedule house bearing door No.59-18-1 situated at Marrevari Street in Kakinada Municipality and some cash. Allegedly a partition deed dated 06.6.1992 was executed by the mother and two sons whereunder Venkata Ratnam and Suryanarayana Murthy took the property in equal shares and the mother was given an amount of Rs.20,000/-.  On the strength of the partition deed, Venkata Ratnam sold a portion of suit schedule property admeasuring about 91½ Sq.yards to Chatrathi Anantha Lakshmi under a registered sale deed dated 22.10.1994.  Another son Suryanarayana Murthy sold a portion of suit schedule property to Pisapati Rajya Lakshmi under registered sale deed dated 22.10.1994.  A year thereafter Vadrevu Pullamma filed O.S.No.22 of 1996 (hereafter, partition suit), after issuing legal notice dated 10.10.1995.  She asked for partition of suit schedule property into five equal shares and allotment of one such share and for possession of the same.  In that suit, she arrayed her mother, two brothers, sister and the purchasers of the property as defendants.  She alleged that as a Class-I heir she is entitled to 1/5^th share in the suit schedule property and that the sale transactions entered into by her brothers with third parties are not binding on her.  The mother as first defendant supported the case of Pullamma.  Venkata Ratnam opposed the suit and alleged that Pullamma has no right as she was given property at the time of her marriage.  The other brother and subsequent purchasers remained ex parte.  The seventh defendant who is sister-in-law of Pullamma also supported the case but she also claimed 1/7^th share in the property. 

          While the partition suit was pending the mother instituted O.S.No.21 of 1998 (hereafter, the suit for cancellation) for cancellation of registered partition deed dated 06.6.1992 on the ground of fraud and misrepresentation and division of the property into seven equal shares and allotment of three such shares to her.  The mother alleged that she was made to believe that she is executing a Will and was taken to the Registrar’s office and she signed the partition deed without knowing the contents.  She alleged that two sons played fraud in obtaining her signature on the partition deed.  She therefore sought for cancellation of the partition deed.

          In the suit for cancellation Venkata Ratnam and Pullamma filed written statements.  Suryanarayana Murthy remained ex parte.  The subsequent purchasers also filed written statements.  Venkata Ratnam denied playing of fraud and misrepresentation and contended that the mother executed partition deed with her free will and consent.  Pullamma pleaded ignorance about the partition deed.

          Anantha Lakshmi who purchased a portion of the suit schedule property from Venkata Ratnam, filed another suit being O.S.No.247 of 2002 for permanent injunction (hereafter, injunction suit).  She claimed that her vendor got the property under the partition deed; purchase of the property by her is valid and the interference by other persons would cause legal injury to her.  The suit was also opposed by defendants therein. 

          The Court of the Principal Senior Civil Judge, Kakinada framed appropriate issues in all the suits; clubbed them; and recorded evidence in the suit for cancellation.  The mother deposed as P.W.1.  Besides her, P.Ws.2 to 6 were examined and Exs.A1 to A13 were marked.  Venkata Ratnam gave evidence as D.W.1.  Besides examining D.Ws.2 to 5 Exs.B1 to B10 were marked.  The trial Court mainly concerned with three questions, namely, validity of partition deed dated 06.6.1992 marked as Ex.A5; validity and binding nature of sale deed dated 09.2.1995, Ex.B1, executed by Venkata Ratnam in favour of Anatha Lakshmi; and the validity of sale deed dated 22.10.1994 (Ex.B5) executed by Suryanarayana Murthy in favour of Rajeswari.            During the pendency of the suit, the mother died and her daughter-in-law Vakkalanka Lakshmi Devi W/o.Suryanarayana Murthy was impleaded as her legal representative in the suit for cancellation and in the injunction suit. 

          In the injunction suit the relevant issue was whether Anantha Lakshmi is entitled to the relief of permanent injunction against her vendor and Rajeswari. On the question of validity of partition deed, the trial Court having regard to old age, helplessness and dependency of the mother on her two sons, held that her sons played fraud and misrepresented her in obtaining partition deed.  On the question of right of Pullamma for partition, the issue was decided in her favour and a preliminary decree was passed setting aside the partition deed.  The injunction suit was dismissed holding that Ex.B1 sale deed is not valid and binding and, therefore, the decree for injunction cannot be granted. 

          Against the common judgment and decrees in the original suits, three appeals were filed on the file of the Court of the VII Additional District Judge, Kakinada.  These being A.S.No.102 of 2004 (against O.S.No.22 of 1998), A.S.No.104 of 2004 (against O.S. No.21 of 1998) and A.S.No.111 of 2004 (against O.S.No.247 of 2002) were clubbed and by a common judgment, the first appellate Court confirmed the judgment and decrees of the trial Court.  S.A.Nos.1022 and 1252 of 2010 are filed by Venkata Ratnam, who is the first defendant in the suit for cancellation and against A.S.Nos.102 and 104 of 2004 respectively. Chatrathi Anantha Lakshmi, the plaintiff in O.S.No.247 of 2002, filed S.A.No.1021 of 2010 against A.S.No.111 of 2004.

          The Counsel for the appellants would contend that the Courts below committed error in placing initial onus on the defendants to prove that Ex.A5 partition deed was not obtained by fraud and misrepresentation.  According to him, the trial Court and the first appellate Court are not correct in appreciating the evidence and drawing inappropriate inferences.  He would urge that the mother was not illiterate nor was she blind.  She was able to read and write and when she admitted that she was gone to Registrar’s office, it is quite probable that she was aware of the nature of the document and on her free will she consented for execution of Ex.A5.  Nextly he would contend that the registration of the partition deed is sufficient notice to her and, therefore, the mother ought to have filed the suit for cancellation within a period of three years and the suit filed in 1997 is barred by limitation.  He would nextly contend that the sales made by the two sons in favour of Anantha Lakshmi and Rajeswari are valid and, therefore, the dismissal of injunction suit is unsustainable.

          There is no dispute that the suit schedule property is self-acquired property of Vakkalanka Ramamurthy.  There is also no dispute that if the partition deed is held to be not valid and binding on the mother, her two sons and the daughters are entitled to share in the property.  In such an event nobody can deny the right to a share in the property to Pullamma, the plaintiff in the partition suit.  Therefore the crucial aspect is the validity of the partition deed, Ex.A5.

          Whether the Ex.A5 partition deed was vitiated as it was obtained by fraud and misrepresentation, as alleged by the mother?  There is no serious dispute that mother was about 82 years in 1992.  She was helpless, aged and infirm.  She was looked after by Venkata Ratnam and Suryanarayana Murthy.  It is, therefore, quite probable that both the sons exerted undue influence on her.  She alleged that she was taken to the Registrar’s office on the pretext of execution of Will by her but what was actually executed was Ex.A5 under which she was given only Rs.20,000/-.  Curiously sisters of defendants 1 and 2, namely, Pullamma and Veera Lakshmi are not parties to partition deed, which itself would improbablise it.  Dealing with this aspect, the first appellate Court observed that the P.W.1 was overwhelmed with grief due to death of her third son and a grown up third daughter.  She was an old woman and she was entirely dependent on her elder son Venkata Ratnam.  It is in the evidence that Suryanarayana Murthy never demanded for partition but curiously P.W.1 was taken to Registrar’s office and her signature was obtained on partition deed.  When aged and infirm mother was made to execute a document and son played active role in such transaction, the burden certainly lies on the son to prove that there was no undue influence on the mother and the document is not vitiated by fraud or misrepresentation. 

          The Courts below appreciated the evidence and drew appropriate inferences from the attending circumstances and came to right conclusions.  Therefore the finding that the partition deed Ex.A5 is vitiated by fraud and misrepresentation is unexceptionable.  There is no dispute that the two sons sold the property to two different persons under Exs.B1 and B5 only by reason of partition deed.  If the latter is unsustainable the two sale deeds also would have to go and, therefore, the vendees under Exs.B1 and B5 would not get any valid title.  Therefore the dismissal of the injunction suit is a consequential effect.  In that view of the matter, the findings recorded on various questions of fact by the Courts below do not warrant any interference.  It is well settled that even if second view is possible from the evidence, the second appellate Court would not be entitled to interfere with the findings unless they are perverse.  This Court is convinced that the trial Court as well as the first appellate Court fully appreciated the evidence and recorded the finding by giving convincing reasons. 

          The three second appeals are devoid of any merit and are, accordingly, dismissed.   

_______________

(V.V.S.RAO, J)

October 21, 2011

YS

Benami Transaction against valid sale is not permissible

the Supreme Court in R.Rajagopal Reddy v P.Chandrasekharan AIR 1996 SC 238 under Section 4(2) of the Benami Transactions (Prohibition) Act, 1988, no defence will be permitted or allowed in any suit against the person in whose name, the property is held or against any other person.  Therefore, when the property, admittedly, was held by the first defendant under valid sale, the plaintiffs or the second defendant cannot be permitted to raise the plea that their father purchased the suit schedule property in the name of their mother, the first defendant.

HC - the Commissioner’s report and plan are useful only for the purpose of noting physical features available at the field and Commissioners report is no substitute for decision of the Court

IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH

AT HYDERABAD

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No.1099 of 2010

DATE: 21.11.2012

Between:

Dantla Pydi Rajamma

                                                                                                …… Appellant

And

Kuddada Sundaramma and 2 others

   ...Respondents

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No.1099 of 2010

JUDGMENT :

        The plaintiff/appellant herein filed the suit in the trial Court for declaration of her ownership to the plaint schedule land of 200 Sq. Yards in S.Nos.60 and 61 of Moolagada village of Pendurthi Mandal, Visakhapatnam District and for vacant possession of the same after evicting the defendants therefrom and removing constructions with Door No.65-3-200 in that land and for permanent injunction.  The plaintiff based her claim on Ex.A-1 assignment order dated 25.06.1979 of Revenue Divisional Officer, Visakhapatnam.  The plaintiff being Ex-serviceman’s widow was given Ex.A-1 assignment order in respect of house site in Plot No.106 in the above S. numbers.  The defendants deny right of the plaintiff for the site in which they have been residing by raising house property therein.  P.W-2 is an Ex-serviceman, P.Ws 3 and 4 are present and former secretaries of Ex-servicemen Association/Society.  All of them speak to the allotment of plot No.136 measuring 200 Sq. yards in the above S.numbers in favour of the plaintiff under Ex.A-1.  Ex.X-1 is copy of the proceedings relating to allotment of plots in that locality.  During pendency of the suit in the trial Court, an Advocate-Commissioner was appointed to localise the plaint schedule land.  The Advocate-Commissioner after making local inspection of the property in the presence of both parties, filed his report along with plan stating that Orange marked portion in the plaint plan is the plaint schedule property.  The Advocate-Commissioner localised the property with the assistance of Mandal Surveyor and the field measurement book and other records.  The trial Court basing on report of the Advocate-Commissioner decreed the suit on the ground that no objections were filed by both the parties to the Commissioner’s report.  In fact, not only the defendants, but also the plaintiff filed objections to the Commissioner’s report and plan.  The lower appellate Court considered both Ex.A-1 and X-1 with reference to report of the advocate-commissioner and came to the conclusion that the plaintiff failed to localise the property in possession of the defendants as the property covered by Ex.A-1 with reference to the Commissioner’s report; and reversed decree of the trial Court.

        2) In this second appeal, it is contended by the appellant’s counsel that when the lower appellate Court found that there was no proper localisation of the plaintiff’s site by the Advocate-Commissioner in the report, the lower appellate Court should have remanded the matter to the trial Court for re-entrustment of the Commissioner’s warrant for correct localising of the plaintiff’s site.

        3) In so far as allotment or assignment of 200 Sq. yards in S.Nos.60 and 61 comprising in Plot No.136 in favour of the plaintiff as widow of Ex-serviceman is concerned, there is no dispute.  The dispute is only localising the site covered by Ex.A-1 and whether the site in possession of the defendant is the same site covered by Ex.A-1 assignment order.  Localisation of site is purely a question of fact.  The lower appellate Court went in detail into description of the site contained in Ex.A-1 and noticed that plot No.136 is bounded on North by vacant site, on East by Plot No.135, on South by Plot No.118 and on West by Plot No.137.  From various allotments of sites contained in Ex.X-1 proceedings of the Revenue Divisional Officer, the lower appellate Court noticed that Eastern plot No.135 was assigned to D.Subba Rao and the Southern plot No.118 was assigned to P.Subbamma.  There were no details as to assignment of plot No.137 to any person, in Ex.X-1.  As per written statement, the first defendant is in occupation of 104 Sq. yards of site with the following boundaries:  East-House of Neelapu Dillirao, South- 30ft. road, West-House of M.Dandasi and North-15 ft. Road.  As per written statement of the 3^rd defendant, she is in possession of 60 Sq. yards of site with a house therein bounded by East-House of the 4^th defendant, West-house of the 1^st defendant, North-30 Ft. road and South-15 Ft. road.  According to the Commissioner’s report, the defendants are in occupation of the schedule property with A.C sheet roofed house with the following boundaries: East-Houses of Chandra Sekhar Reddy and 3^rd defendant, South – Cement road, West –5 Ft. Road and North 12 Ft. road.  As can be seen from Ex.A-1 assignment order, there are no roads abutting Plot No.136 which was assigned to the plaintiff.  It is for the plaintiff to explain boundaries and correlate the present boundaries with the boundaries mentioned in Ex.A-1 assignment order, and also to explain general and physical features like roads on three sides as per the Commissioner’s report.  In the absence of any explanation and correlation, simply the Courts were not expected to go by the Commissioner’s findings.  After all, the Commissioner’s report and plan are useful only for the purpose of noting physical features available at the field and Commissioner’s report is no substitute for decision of the Court.  The lower appellate Court found that the plaintiff has failed to localise her site covered by Ex.A-1 assignment order this Court is of the opinion that this is not a case for remand of the matter to the trial Court for the purpose of re-entrusting the warrant of commission for further localising the plaintiff’s site.  This Court is of the opinion that the plaintiff filed the suit in the trial Court just by picking and choosing the property of the defendants on the assumption that the site is in their occupation is the property covered by Ex.A-1 assignment order, in a speculative manner.  I find no error muchless legal error in the decision arrived at by the lower appellate Court and in dismissing the suit of the plaintiff/appellant.

        4) In the result, the second appeal is dismissed with costs.

_______________________________

SAMUDRALA GOVINDARAJULU, J

November 21, 2012

ksh