IN THE COURT OF PRINCIPAL DISTRICT JUDGE,
KURNOOL.
PRESENT: Dr. V. Radha Krishna Krupa Sagar,
Principal District Judge, Kurnool
Thursday, the 15th day of April 2021
APPEAL SUIT No.104 of 2019
1. Pedda Yellaiah (died)
2. Subba Ramaiah .. Appellants
3. M.Rekha Raju
4. M.Satyanarayana Raju
5. M.Dhruva Kumar -Versus-
1. Tinger Shaik Mahaboob Basha
2. Tinger Shaik Muneer Ahmed
3. Tinger Shaik Rafi Ahmed
4. Tinger Shaik Mahammad Shafi
5. Tinger Shaik Masoom Miah
6. Tinger Shaik Mahammad Hussain
7. State of Andhra Pradesh, represented by District Collector, Kurnool
8. Director General and Inspector General of Prisons and Correction Services, Hyderabad
9. District Sub Jails Officer, .. Respondents
Kurnool 10.Mangamma 11.Pedda Ranga Swamy 12.Nadipi Ranga swamy 13.Chinna Ranga Swamy 14.B.Bazaramma 15.M.Radhamma
On appeal against the judgment and decree dated 04-06-2018 that is rendered in Original Suit No.25 of 2007 on the file of Principal Senior Civil Judge, Kurnool.
PDJ A.S. 104 of 20192
Between
1. Tinger Shaik Mahaboob Basha
2. Tinger Shaik Muneer Ahmed
3. Tinger Shaik Rafi Ahmed .. Plaintiffs
4. Tinger Shaik Mahammad Shafi
5. Tinger Shaik Masoom Miah
6. Tinger Shaik Mahammad Hussain -and-
1. Pedda Yellaiah (died)
2. Subba Ramaiah
3. M.Rekha Raju
4. M.Satyanarayana Raju
5. M.Dhruva Kumar
6. State of Andhra Pradesh, represented by District Collector, Kurnool
7. Director General and Inspector General of Prisons and Correction Services, Hyderabad
8. District Sub Jails Officer, .. Defendants
Kurnool
9. Mangamma 10.Pedda Ranga Swamy 11.Nadipi Ranga swamy 12.Chinna Ranga Swamy 13.B.Bazaramma 14.M.Radhamma
This appeal coming on 08-04-2021 for final hearing
before me in the presence of Sri B.Naga Lakshmi Reddy,
Advocate for the appellants, Sri A.Rama Subba Reddy and
Sri A.Prabhakara Reddy, Advocates for respondents 1 to 6,
Government Pleader for respondents 7 to 9, and respondents 10 to 15 having been set ex parte, having heard on both sides, upon perusing the material available on record and having stood over for consideration till this day, this Court delivered the following :
J U D G M E N T
The appellants herein are the defendants 1 to 5 in
Original Suit and since their defence was not accepted by the
PDJ A.S. 104 of 20193 learned trial Court, this appeal is preferred under Order XLI
Rule 1 of The Code of Civil Procedure, 1908, impugning the judgment dated 04-06-2018 of learned Principal Senior Civil
Judge, Kurnool in Original Suit No.25 of 2007 and seeks to
dismiss the Original Suit.
2. Respondents 1 to 6 herein were the plaintiffs in the trial
Court. Their suit for declaration of title and for a permanent injunction was tried and finally, their claim was accepted and a decree was passed.
3. Before the learned trial Court, originally there were six plaintiffs (respondents 1 to 6 herein). The suit was filed as against defendants 1 to 5. During the pendency of the suit, defendants 6 to 8 were impleaded. Thereafter, the first defendant died and therefore, his legal representatives were brought on record as defendants 9 to 14. Thus, out of 14 defendants, the present appeal came to be preferred by defendants 1 to 5. Be it noted, the first defendant died during the trial before the learned trial Court and his legal representatives, who are defendants 9 to 14, did not choose to come in appeal. It is for the above reasons, the appeal indicates 15 respondents, out of which, respondents 1 to 6 are the plaintiffs and rest of them were the defendants before the learned trial Court.
PDJ A.S. 104 of 20194
4. To appreciate the grounds raised in this appeal, it is necessary to find out as to what transpired before the learned trial Court at the first instance.
5. For the sake of convenience, respondents 1 to 6 herein would be referred as the “plaintiffs” and the appellants herein would be referred as the “defendants 1 to 5”, as they were arrayed in the trial Court.
6. (i) In the plaint, it is averred that the land in an extent of Ac.5-92cents in Survey No.415/3 of
Dinnedevarapadu Village originally belonged to
Sri K.Ramaswamy. The said owner sold the said property to
Sri Pedda Ramanna under a registered sale deed of the year 1966. Thereafter, the purchaser Sri Pedda Ramanna sold the said property to Sri Abdul Sattar under a registered sale deed
dated 25-10-1971. The purchaser Sri Abdul Sattar died on
05-08-1989, survived by his sons and daughters and wife.
The plaintiffs are the sons of late Sri Abdul Sattar. During the subsequent period, among the family members, partition of properties took place under a registered partition deed
dated 24-01-2002, in which the suit schedule property was
allotted to the shares of the plaintiffs and each of the plaintiffs owned 1/6th undivided share in it. It is further stated that from the time of the original owners
Sri K.Ramaswamy and Sri Pedda Ramanna, the plaintiffs and
PDJ A.S. 104 of 20195 earlier to them, their successors in interest have been in possession and enjoyment of this property.
(ii) Defendants 1 and 2 are the sons of Sri Pedda
Ramanna, who was the original vendor to Sri Abdul Sattar. It is stated that in the year 1998, the said Sri Pedda Ramanna said to have executed a rectification deed unilaterally and without the consent of his vendee and in the said rectification deed, he changed the extent of the land and the survey numbers of the original sale deed. The said rectification deed is not legal and it does not bind the vendee or his successors, the plaintiffs. The said rectification deed was brought into existence for wrongful gain and to cause wrongful loss to the plaintiffs. Defendants 1 and 2, without any title or possession, sold the suit schedule property to defendants 3 to 5. By creating all false documents, the defendants 1 to 5 have been trying to knock-away the suit schedule property.
They influenced the Revenue Officials and obtained pattadar pass book and title deed book without any notice to the plaintiffs. Thus, these books were not issued in accordance with law and they are not binding.
(iii) Defendants 3 to 5 filed Original Suit No.108 of 2003 against defendants 6 to 8, seeking for declaration of their title. In that suit, these plaintiffs were not made parties.
In that suit, they suppressed the execution of the registered
PDJ A.S. 104 of 20196 sale deed by the father of defendants 1 and 2 in favour of the father of the plaintiffs and by playing fraud, they obtained a decree in their favour. That was a collusive suit. The said decree does not bind the plaintiffs. Subsequent to the decree, during January 2006, defendants 3 to 5 tried to occupy the suit schedule property. The plaintiffs resisted it and it was at that time, they had come to know about the decree in Original
Suit No.108 of 2003.
(iv) Defendants 6 to 8 preferred an appeal against the judgment in Original Suit No.108 of 2003. Since they have been pursuing that appeal, the plaintiffs impleaded them in the suit to avoid multiplicity of litigation. The claim of defendants 6 to 8 that the suit schedule property is a government property is incorrect. It is with these averments, the plaintiffs sought the reliefs of declaration of their title over the suit schedule property and for a consequential permanent injunction, restraining all the defendants from interfering with their possession and enjoyment of the suit schedule property and for costs and such other reliefs.
7. (i) Resisting the suit, the fourth defendant filed a written statement, while defendants 1 to 3 and 5 filed a memo adopting it. In this written statement, it is stated that the plaintiffs have no title and have never been in possession of the suit schedule property It is stated that Sri Pedda
PDJ A.S. 104 of 20197
Ramanna did not sell the suit schedule property to Sri Abdul
Sattar under the registered sale deed dated 25-10-1971. It is stated that the suit schedule property is called as “Pedda
Yerranela Chenu” and the land is identified by its name. The name of the land is not averred in the plaint. The boundaries to the property were not available in the registered sale deed
dated 25-10-1971 and the plaint schedule mentions the
boundaries, as they were described in the sale deed that stands in the name of defendants 3 to 5.
(ii) The registered sale deed dated 04-04-1966, under which, Sri Pedda Ramanna purchased this property from
Sri K.Ramaswamy mentions the name of this land as “Pedda
Yerranela Chenu”. The title deed claimed by the plaintiffs gave its description as “Tippala Naduma Chenu”. It is an obvious mistake in drafting the sale deed dated 25-10-1971.
The executant of that document Sri Pedda Ramanna is an illiterate and it is not known at whose instance and on what basis the recitals were made in the registered sale deed dated 25-10-1971. It is stated that under the registered sale deed
dated 25-10-1971, Sri Abdul Sattar was not in possession of
the property with the present boundaries and his legal heirs are also not in possession of this property. It is further stated that Sri Pedda Ramanna sold Ac.3-00cents of land in Survey
No.449/4 to Sri Abdul Sattar and that land is called as “Khasuni Dona Chenu” and it was that land, that was in
PDJ A.S. 104 of 20198 possession of Sri Abdul Sattar and thereafter, his legal representatives and that property was acquired by the
Government and it constructed District Institute for
Educational Training, which is a College and it is running there.
(iii) It is stated that the land that belonged to
Sri Abdul Sattar and the plaintiffs was taken away by the
Government and therefore, the plaintiffs have no title and no possession over any property and they kept quiet.
Concerning the suit schedule property also, the Government has raised its claim, stating that the said land was an assigned land and its transfers were prohibited under law and that it has resumed the land from defendants 3 to 5. It was in those circumstances, this defendant along with others filed
Original Suit No.108 of 2003 on the file of learned Principal
Senior Civil Judge, Kurnool, asserting their rights. These
plaintiffs did not raise their little fingers when the
Government took action in that connection. In the said suit, a Commissioner was appointed and he filed his report and plan, confirming the possession and identification of the land claimed by the defendants. The entries in the Revenue records were mutated and pattadar pass and title deed books were issued in the name of defendants 1 and 2 and cist receipts were also issued. It is further stated that at one point of time, a small mining operation was also conducted in
PDJ A.S. 104 of 20199 the said property with the permission of defendants 3 to 5.
It is stated that in Original Suit No.108 of 2003, learned trial
Court gave categorical findings declaring the title and possession in favour of these defendants. The said judgment is a judgment in rem and binds the whole world including the plaintiffs.
(iv) It is further stated that since there was an obvious mistake in the description and identity of the land, as mentioned in the sale deed dated 25-10-1971, a rectification was made and the plaintiffs were aware of it. Even otherwise, as the suit land was not sold to the plaintiffs, they can never get the title and they were never in possession of this property. The plaintiffs were out of possession for more than the statutory period. The defendants 2 to 5 have been in possession for more than the statutory period in their own rights adverse to the plaintiffs and to the entire world. It is stated that the reliefs of declaration and injunction cannot be granted against these defendants, who are lawful owners.
The partition deed alleged in the plaint is a self-serving document and only a part of this document was served on these defendants. This document does not confirm the title and possession to the plaintiffs and that it is not a valid document.
PDJ A.S. 104 of 201910
(v) It is further stated that Original Suit No.108 of 2003 is not a collusive suit. That the suit schedule land is useful for house site and has potential value as house site.
The surrounding area is well developed and was plotted and was sold as house plots. The market value of this land is shown as Rs.2,20,000/-, which is against the truth. The court fee paid is incorrect. The rest of the plaint allegations are denied as false. For these reasons, they prayed for dismissal of the suit with costs.
8. The eighth defendant filed written statement and defendants 6 and 7 filed a memo adopting it. In this written statement, the plaint averments are denied as incorrect. It is stated that originally, there was Survey No.396 and subsequently, it was changed into Survey Nos.398 to 475.
The extent of 1409.41 acres is a hillock poramboke land in
Survey No.396 and that was assigned to landless poor for agricultural purpose and D.Form Pattas were issued with a condition that the assigned land should not be alienated.
The extent of Ac.5-92cents in Survey No.415/3 was assigned in favour of Sri K.Ramaswamy on 30-10-1955. He was prohibited from alienating it as per the provisions of A.P.
Assigned lands (Prohibition of Transfers) Act, 1977.
Therefore, the sale made by him and subsequent sales are all null and void. It is further stated that the above said land was resumed by the Government and was handed over to the
PDJ A.S. 104 of 201911
District Sub Jails Officer, Kurnool on 08-12-2003 and since then, it is in their possession. It is further stated that defendants 3 to 5 filed Original Suit No.108 of 2003 and obtained a decree and that suit was filed without impleading the District Collector, Kurnool or the Tahsildar, Kurnool and therefore, the judgment has no validity. It is stated that the suit schedule property does not belong to the plaintiffs or defendants 3 to 5. For all these reasons, they prayed for dismissal of the suit with exemplary costs.
9. Defendants 9 to 14, who are the legal heirs of the deceased/first defendant, did not choose to file any written statement and they were set ex parte before the learned trial
Court.
10. At the trial, two out of six plaintiffs testified as PW1 and
PW3. The Sub Registrar, Kurnool testified as PW2. Ex.A1 to
Ex.A9 and Ex.X1 were marked. On the other hand, the fourth defendant gave evidence as DW1. Ex.B1 to Ex.B21 were marked.
11. The learned trial Court framed the following issues for trial:
1. Whether the plaintiffs are entitled for declaration of title to the suit schedule property?
PDJ A.S. 104 of 201912
2. Whether the plaintiffs are entitled for consequential permanent injunction, as prayed for?
3. Whether the suit properties are properly valued?
4. To what relief?
12. On considering the oral and documentary evidence and the oral submissions and the written submissions filed by both sides and on considering the legal authorities cited by both sides, the learned trial Court held that the plaintiffs were able to establish their title by virtue of Ex.A1 and Ex.A2/sale deeds and it further found that the plaintiffs have been in possession and enjoyment of the suit schedule property by virtue of Ex.A7 to Ex.A9. Coming to
Ex.B19/rectification deed alleged by the defendants 1 to 5, it held that in terms of Section 14 of The Indian Contract Act, 1872 and Section 26 of The
Specific Relief Act, 1963, the said document was invalid. Coming to the question of possession asserted by defendants 1 to 5, it discussed all the documents filed by the defendants and said that they do not indicate possession of the said defendants over the said property. With reference to the judgment in Original Suit No.108 of 2003, it held that there was suppression of material facts before that Court and playing fraud on the
Court, such judgment was obtained and therefore, that does not affect the rights of the plaintiffs. It also observed that the pattadar pass book and title deed book claimed by defendants 1 to 5 were manipulated and in fact, their right was questioned by defendants 6 to 8 (Government). It made reference to the name of the land that is disputed at the trial and
PDJ A.S. 104 of 201913 finally concluded that the name of the land is “Tippala Naduma Chenu”.
Finally, it held all the Issues in favour of the plaintiffs and decreed the suit, as prayed for.
13. Aggrieved by that judgment, defendants 1 to 5 filed the present appeal.
14. In the “Grounds of Appeal”, it is stated that the learned trial
Court failed to consider the rectification deed and failed to consider that the name of the land and the extent of the land that was purchased by the father of the plaintiffs is different from the suit schedule land and that the suit schedule land belongs to these appellants. It is stated that the possession and title of these appellants over the suit schedule property was confirmed in Original
Suit No.108 of 2003 and there was Advocate-Commissioner’s report also, indicating their possession over this property and further, the
Revenue Authorities issued title deed and pattadar pass books in favour of these appellants. Therefore, the claim of the plaintiffs without a prayer for delivery of possession is not maintainable. But, the trial Court erred in that regard in holding otherwise. That there was no collusion between these appellants and the Government
Authorities/Respondents 7 to 9 herein. The trial Court failed to consider Section 13 of The Indian Evidence Act, 1872 with reference to the judgment in Original Suit No.108 of 2003 and the said judgment is admissible in evidence to prove the title and possession of these appellants and in fact, the Government preferred an appeal against it in Appeal Suit No.27 of 2008 and the learned VI
PDJ A.S. 104 of 201914
Additional District Judge, Kurnool dismissed the appeal and
confirmed the judgment of the learned trial Court, but the trial
Court failed to consider those judgments. It is stated that when respondents 7 to 9 herein issued acquisition proceedings by way of paper publication and when the respondents 1 to 6 did not raise any dispute and did not initiate legal proceedings, it shows that they have no valid title and possession over this property at any point of time. For all these reasons, they prayed to upset the impugned judgment of the learned trial Court and dismiss the suit.
15. Respondents 1 to 6/plaintiffs supported the impugned judgment, stating that the trial Court appreciated all the evidence properly and considered the evidence rightly and gave findings appropriately and that all those contentions that were raised before the learned trial Court are now repeated in this appeal and those contentions have no merit and therefore, they seek to dismiss the appeal.
16. Respondents 7 to 9/Government, who did not adduce any evidence in the trial Court, have made only a formal appearance and contended that the property does not belong to either of the parties and it belongs to the Government.
17. Respondents 10 to 15, though received notices in this appeal, did not choose to appear and contest and they were set ex parteby my learned predecessor-in-office on 28-10-2019.
PDJ A.S. 104 of 201915
18. Learned Counsel on both sides submitted oral arguments and also submitted written arguments.
19. The following points emerge for consideration in this appeal:
1. Whether the title over the suit schedule
property is not with respondents
1 to 6/plaintiffs, but the learned trial Court
erroneously held title in their favour?
2. Whether the appellants, by their evidence,
established their title over the suit schedule
property?
3. Whether respondents 1 to 6/plaintiffs were
never in possession of the suit schedule
property and even their predecessors-in-
interest were in possession of the property,
but the learned trial Court erroneously
concluded possession of the property in
their favour?
4. Whether by evidence, the appellants
established their possession over the suit
schedule property, but the learned trial
court failed to consider it?
20. POINT Nos.1 and 2 ANSWERED :
(ON TITLE)
A reading of the entire record would show that three sets of parties have been claiming title over the property.
Plaintiffs and defendants 1 to 5 are found to be the main contestants. According to them, the property is a private property and not the government property. Defendants 6 to 8 representing the government claim that it is a government property. Original Suit No.108 of 2003 clinching the issue
PDJ A.S. 104 of 201916 held that there was no evidence to think that it was a government property. It held that as per evidence, it was a private property and it belonged to the plaintiffs therein, who are the appellants herein. So-far-as the present case is concerned, the government did not adduce any evidence in the trial Court. For these reasons in this appeal, nothing more need be stated concerning the claim of the government.
The dispute between the plaintiffs and defendants 1 to 5 alone is required to be considered in this appeal.
21. The property in dispute is described in the plaint schedule. It is situated in Survey No.415/3 of
Dinnedevarapadu Village in an extent of Ac.5-92cents. The boundaries on all four sides are mentioned in the plaint schedule. It is over this property both sides staked their title. As per the pleadings of both sides and the evidence of
PW1 and PW3 and DW1, it is seen that originally, this property belonged to Sri K.Ramaswamy and under the registered sale deed/Ex.A1 dated 04-04-1966, he had sold this property to Sri Pedda Ramanna. These facts are not in dispute. Therefore, it is recorded that since 04-04-1966,
Sri Pedda Ramanna became the owner and possessor of the suit schedule property.
22. The plaintiffs claimed that Sri Pedda Ramanna had sold the suit schedule property to Sri Abdul Sattar, who is their
PDJ A.S. 104 of 201917 father. As against this, defendants 3 to 5 state that the two children of Sri Pedda Ramanna, who are defendants 1 and 2, had sold this property to them. Thus, rival claims of title had sprung-up. One shall now see the evidence available on these aspects.
23. As per the evidence of PW1 and PW3, the claim of the plaintiffs is rested on Ex.A2/sale deed. A perusal of this document shows that it is a registered sale deed dated 25-10-1971. The recitals in it show that this was executed by
Sri Pedda Ramanna in favour of Sri Abdul Sattar and under this document, the suit schedule property was sold. As per the evidence of PW1 and PW3, Sri Abdul Sattar enjoyed this property during his life time and he died on 05-08-1989, which is evidenced by Ex.A4/death certificate. It is undisputed that all the plaintiffs/respondents 1 to 6 are the children of late Sri Abdul Sattar. They said that they succeeded the estate of their father and his successors include not only the plaintiffs, but also the wife and daughters of late Sri Abdul Sattar. They further said that this property and other properties of the family were partitioned among the family members on 24-01-2002, which is evidenced by Ex.A3/registered partition deed and that the suit schedule property is jointly enjoyed by the plaintiffs and each of the plaintiffs hold 1/6th share in it. That the death of
Sri Abdul Sattar is not disputed by the defendants. The
PDJ A.S. 104 of 201918 relationship between Sri Abdul Sattar and the plaintiffs is also not disputed. The succession claimed by them is also not disputed. Thus, the property that belonged to late
Sri Abdul Sattar under Ex.A2/sale deed had come to be owned by the plaintiffs. It is with this evidence the plaintiffs said that they established their title over the suit schedule property. This was accepted by the learned trial Court.
24. As said earlier, under Ex.A1/sale deed, Sri Pedda
Ramanna became the owner of the suit schedule property in the year 1966. According to the defendants, during later years, Sri Pedda Ramanna died and defendants 1 and 2 are the sons of Sri Pedda Ramanna. The fact that they are the sons of Sri Pedda Ramanna is not disputed by the plaintiffs.
Defendants 3 to 5, who raised their claim over this property as title holders, state that defendants 1 and 2 sold them the suit schedule property. As per the evidence of DW1 and
Ex.B2, Ex.B3 and Ex.B4, which are the original registered sale deeds dated 14-08-2002, each of the defendants 3, 4 and 5 purchased Ac.1-97cents in Survey No.415/3.
Thus, together, they purchased the entire suit schedule property, which is in an extent of Ac.5-92cents. Thus, since 14-08-2002, defendants 3 to 5 claimed their title over the suit schedule property.
PDJ A.S. 104 of 201919
25. From the above evidence, it is seen that the plaintiffs claimed their title over the suit schedule property under
Ex.A2/sale deed since the year 1971, whereas defendants 3 to 5 claimed their title over the suit schedule property under Ex.B2 to Ex.B4/sale deeds since the year 2002. Thus, the plaintiffs’ title is anterior in point of time to the title deeds put-forth by the defendants. It is to be noticed that Sri Pedda
Ramanna, having sold the property under Ex.A2/sale deed to
Sri Abdul Sattar, was divested of his title over this property.
Since he died without any title over this property, his sons, who are defendants 1 and 2, could not get this property by succession or inheritance from their father Sri Pedda
Ramanna. When there was no title with them, they could not convey any title in favour of defendants 3 to 5 under Ex.B2 to
Ex.B4/sale deeds. Be it noted, that in Ex.B2 to Ex.B4/sale deeds, the executants/defendants 1 and 2 mentioned that by succession from their father, they got this property. As said earlier, they could not succeed to a property, which was not with their father. In that view of the matter, defendants 3 to 5 did not get any title over the suit schedule property.
26. Added to the above, one required to see the evidence of
DW1. In his cross-examination, DW1/fourth defendant admitted that Sri Pedda Ramanna died in the year 1998, survived by defendants 1 and 2 as his sons and he had two daughters and his elder daughter died and her children are
PDJ A.S. 104 of 201920 alive and his younger daughter Smt. Narayanamma is alive.
It is not anybody’s case that Sri Pedda Ramanna executed any Will in favour of defendants 1 and 2, who are his sons concerning the suit schedule property. It is undisputed that
Sri Pedda Ramanna and his family are Hindus. Since he died in the year 1998, his self-acquired property under Ex.A1/sale deed, if at all is available with him, would have been succeeded by his sons and daughters. As one could see that
Ex.B2 to Ex.B4/sale deeds were executed only by his sons and not by his daughters. Thus, all the possible owners did not join the execution of Ex.B2 to Ex.B4/sale deeds. It is in that view of the matter also, title could not have been passed in full to defendants 2 to 5.
27. There is one more important fact that was raised by the defendants 1 to 5 and that is a rectification deed said to have been executed by Sri Pedda Ramanna. In the evidence of
DW1, the said document is produced and that is Ex.B19.
A perusal of this document shows that it was signed by only
Sri Pedda Ramanna and it was not signed by Sri Abdul Sattar or his sons the plaintiffs. Thus, the evidence of PW1 and PW3 that Ex.B19 is a unilateral document is apparent on the record. This fact is not denied by the defendants 1 to 5.
Ex.B19 is dated 19-09-1998. In this document, Sri Pedda
Ramanna mentions that he executed Ex.A2/sale deed in favour of Sri Abdul Sattar and then states that there was a
PDJ A.S. 104 of 201921 mistake in that document and the correct survey number that should have been mentioned was Survey No.449/4 and the correct extent of the land that was supposed to have been mentioned was Ac.3-00cents, but in Ex.A2/sale deed, they are wrongly recorded as Survey No.415/3 and Ac.5-92cents.
Therefore, by this unilateral document, he states that he had corrected them. This document was registered and it bears the signatures of two attesting witnesses and the signature of the scribe of the document. According to defendants 1 to 5, this is a valid rectification deed and therefore, the claim of the plaintiffs based on un-amended Ex.A2/sale deed does not serve any purpose to the plaintiffs. According to the plaintiffs, the unilateral rectification deed is invalid under law and therefore, Ex.B19 could not produce any legal consequences and a Court of Law should ignore it.
28. Having considered the above rival submissions, this
Court finds force in the submission of the learned Counsel for the plaintiffs and there is no merit in the submissions made by the learned Counsel for the defendants 1 to 5/appellants.
Any error in an instrument could be rectified either by both parties or through a properly constituted suit using the mechanism of the Court. Concerning Ex.B19 and Ex.A2, the alleged rectification was not through the process of Court.
Therefore, that aspect of the law need not be considered.
Then, the point for consideration is whether either of the
PDJ A.S. 104 of 201922 parties to a document is entitled to have his document corrected by himself without the consent and signatures of the other party? One need to notice the judgment of the
Hon’ble High Court of Judicature at Madras in “T.C.
Subramanian -Vs- The Sub Registrar”, judgment dated 10-01-2017
in Writ Petition No.3275 of 2011. Their Lordships, while dealing with alterations or rectifications in an instrument, held that in terms of Section 62 of The Indian Contract
Act, 1872, any alteration of a contract or a document can
be made only bilaterally and unilateral corrections or
rectifications are invalid. One may also note “Joseph Johan
Peter Sandy -Vs- Veronica Thomas Rajkumar and another”
(2013) 3 SCC 801. Their Lordships of the Hon’ble Supreme
Court of India, while dealing with Section 26 of The Specific
Relief Act, 1963 held that rectification is permissible only by both parties to the instrument. It was further stated that an error, if occurred, because of mutual mistake or fraud, only then a rectification could be resorted to.
29. Having noticed the principles of law, as contained above, this Court has to say that Ex.B19/rectification deed does not mention about any fraud or mutual mistake. The written statement of the defendants 1 to 5 have no pleadings about any fraud or mutual mistake. In fact, at Page No.2 of the written statement of the fourth defendant, it is mentioned
PDJ A.S. 104 of 201923 that it is not known at whose instance and on what basis the recitals were made by Sri Pedda Ramanna in the registered sale deed dated 25-10-1971/Ex.A2. Further, Ex.B19 is a unilateral document and Sri Abdul Sattar or his children the plaintiffs never joined execution of such rectification deed.
The scribe or any of the attestors of Ex.B19 are not examined by the defendants 1 to 5 to explain as to under what circumstances Ex.B19 was executed by Sri Pedda Ramanna.
It is in these circumstances, this Court holds that Ex.B19 is against law and is invalid and therefore, the corrections sought to be made in Ex.A2/sale deed by virtue of Ex.B19 have no legal effect. In that view of the matter, the claim of the plaintiffs based on Ex.A2/sale deed stands intact. On the other hand, the claim of defendants 3 to 5 based on
Ex.B2 to Ex.B4/sale deeds, which is reveted on the ground of
Ex.B19/rectification deed is incorrect and invalid. For the above said reasons, the finding of the learned trial Court that
Ex.B19 is invalid and the title of the suit schedule property is with the plaintiffs and not with defendants 3 to 5, is correct on facts and law.
30. The defendants/appellants, through their pleadings and the evidence of DW1, took the stand that there is name to the suit schedule land and the land is identified through that name and if that is considered, it would show that the title of the said land is with the defendants 3 to 5, but not with the
PDJ A.S. 104 of 201924 plaintiffs. Now, this submission has to be considered. In the written statement of defendants 1 to 4, it is mentioned that the suit schedule property is identified by name “Tippala
Naduma Chenu”. To consider this, I went through Ex.A1/sale deed, under which, Sri Pedda Ramanna purchased this property. In this document, it is seen that he purchased three items of the property and the third item is Ac.5-92cents in Survey No.415/3 and the name of the land is “Tippala
Naduma Chenu”. Then, it is under Ex.A2/sale deed, the said
Sri Pedda Ramanna sold the property to Sri Abdul Sattar. In this document also, it is mentioned that the land sold to him is “Tippala Naduma Chenu” in Ac.5-92cents in Survey
No.415/3. Thus, what was purchased under Ex.A1/sale deed is what was sold under Ex.A2/sale deed. The name of the land is “Tippala Naduma Chenu”. As said earlier, it is that “Tippala Naduma Chenu” that came to be owned by the plaintiffs.
31. It is at this juncture, one should once again look at
Ex.B19/rectification deed. In this unilateral document,
Sri Pedda Ramanna states that the correct survey number is 449/4 in an extent of Ac.3-00cents and it is named as “Tippala Naduma Chenu”. Now, the question is whether in
Survey No.449/4, Sri Pedda Ramanna ever owned
Ac.3-00cents of land with the name “Tippala Naduma Chenu” or not. One has to fall back in this regard only on Ex.A1/sale
PDJ A.S. 104 of 201925 deed. A perusal of Ex.A1 shows that Sri Pedda Ramanna purchased Ac.3-00cents of land in Survey No.449/4, but it is named as “Khasuni Dona Chenu”. Thus, it is not “Tippala
Naduma Chenu”. Therefore, the name of the land, on which the defendants 1 to 5, went to make a claim, has no basis. It is at this juncture, this Court finds it relevant to mention
Ex.B18. This document is the original registered title deed of
Sri Pedda Ramanna, which is equivalent to its certified copy in Ex.A1. In this Ex.B18, in the last sheet, the schedule of the property purchased by Sri Pedda Ramanna is mentioned and for Survey No.415/3, it is “Tippala Naduma Chenu” that is mentioned. Now, one would see that it is underlined and above it, the name “Pedda Yerranela Chenu” is mentioned.
Then with regard to Survey No.449/4, “Khasuni Dona Chenu” is mentioned and above it, “Tippala Naduma Chenu” is mentioned. For a naked eye, it is very clearly seen that by hand, those additional writings had been recorded.
32. Now the question is whether Ex.B18 is the very original document kept intact or was tampered with. It is here one would see the evidence of PW2/Sub Registrar. He had produced the original register and its certified copy as per
Ex.X1 (This Ex.X1 is equivalent to Ex.A1, which is equivalent to Ex.B18, which is equivalent to another certified copy in
Ex.B1). This witness very categorically stated in his evidence that Ex.A1 is an accurate reproduction of the contents of the
PDJ A.S. 104 of 201926 register. When this witness was in the box, the defendants 1 to 5 did not have courage to show him Ex.B18. They simply showed him Ex.B1 and elicited from him that it was also a copy obtained by them from his office. In Ex.B1, the description of the disputed property finds two names. It mentions Pedda Yerranela Chenu” and “Tippala Naduma
Chenu”, both are for the suit schedule property. From the above discussion, it is clear that Ex.B18, the original document was tampered with and one would also find that
Ex.B1 is not a true reproduction of the sale deed standing in the name of Sri Pedda Ramanna. These facts, that are borne by record, are to be understood in the light of the contention of the learned Counsel for the plaintiffs that the defendants 1 to 5 have been since a long time tampering with the official record. On the other hand, the original register and its true replica in the evidence of PW2/Sub Registrar, indicates Ex.A2 is a true reproduction of the original title deed and therefore, the claim of the plaintiffs based on that is a valid claim.
33. From all this evidence, this Court finds that the finding of the learned trial Court that the suit schedule property has been owned by the plaintiffs and not by the defendants 1 to 5, has to be approved. The grounds urged in this appeal against to the findings of the learned trial Court have no merit.
Therefore, both these Points are answered against the appellants/defendants 1 to 5.
PDJ A.S. 104 of 201927
34. POINT Nos.3 and 4 ANSWERED:
(On possession)
The plaintiffs claimed that they have been in possession of the suit schedule property. The defendants 3 to 5 claimed that they have been in possession of the suit schedule property. One may state that on this aspect of possession, great emphasis is shown by defendants 3 to 5 both before the learned trial Court as well as before this Appellate Court.
The learned trial Court perused the evidence of PW1 and PW3 and considered Ex.A5 to Ex.A9 documents, which are the land revenue receipts, true copies of Adangals and letters addressed by the plaintiffs to the Mandal Revenue Officer and
District Collector, Kurnool. Based on these documents, the learned trial Court, after thorough discussion, held that possession is found with the plaintiffs. It considered the evidence of DW1 and Ex.B5 to Ex.B9/pattadar pass book and title deed book and Ex.B15 to Ex.B17/cist receipts and held that they did not prove the possession claimed by defendants 3 to 5. The correctness of these findings are challenged in this appeal.
35. Before going to analyze the evidence on record, it is desirable to know the law laid down by a Full Bench of the
Hon’ble Supreme Court of India in “Maria Margarida Sequeria
Fernandes and others -Vs- Erasmo Jack De Sequeria (dead) through
PDJ A.S. 104 of 201928
LRs.” (2012) 5 SCC 370. In this case, Their Lordships held that when once legal title to the property is established, the possession or occupation of the property is deemed to be with the title holder and if any person other than the holder of the legal title, claims possession, it will be presumed to have been under and in subordination to the legal title.
36. As said earlier, under Ex.A2/sale deed, since the year 1971, Sri Abdul Sattar became the owner of the suit schedule property. A perusal of Ex.A2 shows that the very original owner Sri Pedda Ramanna transferred the title and delivered physical possession of the property to Sri Abdul Sattar.
Section 54 of The Transfer of Property Act, 1882 mandates that delivery of immovable property takes place when the seller places the buyer in possession of the property. The evidence of PW1 and PW3 is that having obtained title and possession over the suit schedule property under Ex.A2/sale deed, their father Sri Abdul Sattar continued to possess the suit schedule property till his death and after him, the plaintiffs have been in possession and enjoyment of this property. It is now for the defendants 1 to 5 to show to the
Court as to when Sri Abdul Sattar or his sons/plaintiffs were dispossessed. The written statement of defendants 1 to 5 does not indicate it. The children of Sri Pedda Ramanna, who are defendants 1 and 2, did not come to the Court to say as to when Sri Abdul Sattar or his children were dispossessed from
PDJ A.S. 104 of 201929 this property. Therefore, under Ex.B2 to Ex.B4, possession could not be transferred by defendants 1 and 2 in favour of defendants 3 to 5, since defendants 1 and 2 could not be said to have been in possession of this property or their father
Sri Pedda Ramanna could be said to be in possession of the property subsequent to Ex.A2/sale deed. If on facts, one could not show possession, one should mind that other documents indicative of possession may not command respect.
37. Coming to the documents filed on both sides concerning rival possession over the suit schedule property, one should first notice Ex.A5. This land tax receipt shows that Sri Abdul
Sattar, during his life time, paid land tax on 23-02-1987. The document shows that for several years, tax was not paid, hence he paid it on that day. He died only in the year 1989 as per Ex.A4. The fact that Sri Abdul Sattar paid land tax in the year 1987 concerning the property which he had purchased in the year 1971 under Ex.A2/sale deed indicates that even in the year 1987, Sri Abdul Sattar was in full possession of the suit schedule property. By then, Sri Pedda
Ramanna was alive and he died only in the year 1998 and his children and their vendees/defendants 3 to 5 were not at all in picture. As against this, the defendants 1 to 5 propounded pattadar pass book and title deed book. Ex.B6 to Ex.B8 are the title deed books. They stand in the names of defendants
PDJ A.S. 104 of 201930 1 and 2. They were bearing the rubber stamps of Mandal
Revenue Officer, Kurnool, but do not bear his signatures.
DW1, in his cross-examination, admitted this fact. As per the evidence of DW1, there are other properties of Sri Pedda
Ramanna and his children. A perusal of these two documents shows that except the suit schedule property, other properties are not entered in it. Thus, these title deed books do not contain any valid entries. Ex.B5 and Ex.B7 are pattadar pass books. They contained the signatures of the
Mandal Revenue Officer. As per Ex.B7, the first defendant is shown to have got this property from his ancestors. In Ex.B5, how the second defendant got this property is not mentioned.
These documents also do not contain entries of other properties of these individuals. As seen earlier, the succession claimed by defendants 1 and 2 over this property from their father was incorrect, since their father Sri Pedda
Ramanna had no title, which is to be succeeded by his sons.
Therefore, any claim based on these half prepared documents cannot bear any effect on the possession claimed by the plaintiffs over the suit schedule property.
38. The cist receipts in Ex.B15 to Ex,.B17 do not bear the names of defendants 3 to 5, who claimed to have purchased this property. In fact, DW1, in his evidence, stated that for the last six years, he had not been cultivating his land.
Thus, the cist receipts indicate the names of the earlier
PDJ A.S. 104 of 201931 holders of the land. Some of them do not pertain to the suit schedule property. For example, Ex.B15/tax receipt dated 14-03-1991 is not pertaining to Survey No.415/3. Ex.B14 and Ex.B16 mention Survey No.415 without their sub- divisions. The learned trial Court analyzed all those documents and stated that in the teeth of the contention of the Government that this land does not belong to private parties, issuance of such documents by the Government to these defendants does not merit for consideration. The claim of defendants 1 to 5 that the pattadar pass book and title deed book raised a valid presumption under law about the title and possession, has no bearing, in view of the correct submission made by the learned Counsel for the plaintiffs that in terms of Section 8 of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 that incorrect entries could be considered in a suit for declaration of title and appropriate orders would be made. It is for these reasons, this Court finds that the findings of the learned trial Court which are based on record and are supported by proper reasoning are to be upheld and there is no merit in the arguments raised by the appellants/defendants 1 to 5.
39. One more important contention concerning possession raised by the appellants/defendants 1 to 5 is about earlier litigation and its impact on the present litigation. As per the pleadings of both sides and the evidence of both sides and
PDJ A.S. 104 of 201932 especially, the evidence of DW1, defendants 3 to 5 and others filed Original Suit No.108 of 2003 as against the Government
Authorities, seeking declaration of their title and injunction and that was approved and a decree was passed and the
Government preferred appeal against it and the appeal stood dismissed, confirming the judgment of the trial Court. Ex.B9 is the certified copy of the plaint, Ex.B10 is the certified copy of written statement, Ex.B11 is the certified copy of decree and Ex.B112 is the certified copy of judgment in Original Suit
No.108 of 2003, decided by the learned Additional Senior Civil
Judge, Kurnool. Ex.B13 is the certified copy of judgment and
Ex.B14 is the certified copy of decree in Appeal Suit No.27 of 2008, wherein the learned VI Additional District Judge,
Kurnool confirmed the trial Court judgment.
40. A perusal of all the above documents would show that the Government claimed that Survey No.415/3 was an assigned land and therefore, it was competent to resume it.
The claim of the present appellants was that under Ex.B2 to
Ex.B4, they purchased the land and they became the owners and they were in possession of the property. In those judgments, possession and title of defendants 2 to 5 herein, who are the plaintiffs therein, was approved by both the
Courts. The learned Counsel for the appellants submits that the above judgment is a judgment in rem and therefore, it establishes their title in terms of Section 13 of The Indian
PDJ A.S. 104 of 201933
Evidence Act, 1872. The learned Counsel for the appellants
cited the judgments in “Tirumala Tirupati Devasthanams -Vs-
K.M. Krishnaiah” 1998 (2) A.P.L.J. 31 (S.C.) of the Hon’ble
Supreme Court of India and “Ranjitkumar -Vs- Gopal and another” (2003) 1 M.L.J. 573 of the Hon’ble High Court of
Judicature at Madras. In both these judgments, Their
Lordships held that judgment not inter parties is relevant and is admissible in terms of Section 13 of The Indian Evidence
Act, 1872. Their Lordships held that the party, who got his title declared in the other suit, could use that judgment in a subsequent title suit. To the extent of admissibility of the other judgment in favour of these appellants/defendants 1 to 5, there is absolutely no issue. Now, the question is having admitted the earlier judgment as a piece of evidence in his case, would that debar the trial Court in the case at hand from deciding the title dispute between the plaintiffs on one hand and the defendants on the other hand, is the moot point.
41. Here one has to refer to Section 41 of The Indian
Evidence Act, 1872, which mandates only certain types of judgments as judgments in rem and not the other types of judgments. One may bear in mind that the judgment is the conclusive proof between the parties to the suit and not
against others (Ripumadhusudan Prasad Singh -Vs- Rama Shankar
PDJ A.S. 104 of 201934
Prasad Singh And Ors. AIR 1970 Patna 138). Explaining judgment in rem in “Urjun -Vs- Mathura Nath and others”
AIR 1928 Allahabad 395, Their Lordships held that in terms of Section 41 of The Indian Evidence Act, 1872, only judgments of probate, matrimonial, admirality or insolvency are alone judgments in rem and not other judgments. Nothing contrary is brought to my notice by the appellants in this case. The fall out of the above legal provision is that a title declaration between two parties cannot be called as a judgment in rem and such a judgment could be used as another piece of evidence when once again a title dispute has arisen between the third party and a party to earlier proceedings. Keeping this point in mind, one should look at the efficacy of the earlier judgment in Original Suit No.108 of 2003.
42. As could be seen from the pleadings therein and the judgment rendered therein, it is very much clear that
Ex.A2/sale deed in favour of Sri Abdul Sattar was never presented to that Court. In fact, Ex.B19/relinquishment deed was not presented to this Court. It was, in those circumstances, the other Court had to look into only Ex.B2 to
Ex.B4 in the present case and other documents and held that they were found to be title holders and possessors of the property. In fact, the main discussion of the learned trial
Court was on the claim of the Government and it found that
PDJ A.S. 104 of 201935 as the Government failed to produce the relevant original records indicating assignment, it dismissed the claim of the
Government and it was in that context, it had accepted the claim of the appellants herein concerning their title and possession over the suit schedule property. Even after considering that judgment, the learned trial Court held possession with the plaintiffs only. Commenting on the efficacy of the earlier judgment, the finding of the learned trial
Court was that suppression of the material document/Ex.A2 herein, which was to the knowledge of the plaintiffs therein, who are the appellants herein, is nothing but a fraud played by them before the Court and fraud vitiates everything and therefore, it refused to place any weight on those judgments and took the strength from Section 44 of The Indian Evidence
Act, 1872. Contrary to this, no point on fact and no point on law are successfully shown by the appellants/defendants 1 to 5 in this case. It is, in these circumstances, this Court holds that the claim of possession over the suit schedule property made by defendants 1 to 5 in the suit, who are the appellants herein, is without any merit and this Court approves the findings of the learned trial Court concerning continuous possession of the plaintiffs over the suit schedule property.
43. A reading of the written statement of the defendants 1 to 5 and the evidence of DW1 and the written arguments filed for them would show that on more than one occasion,
PDJ A.S. 104 of 201936 they have been stating that they have been in actual possession of the suit schedule property adverse to the plaintiffs and to the knowledge of the plaintiffs and they say that for over a statutory period, the plaintiffs were not in possession of this property. I find no merit in this contention of defendants 1 to 5. Under Ex.A2/sale deed, Sri Pedda
Ramanna lost possession of the suit schedule property in the year 1971. There is absolutely no evidence on record to show that thereafter his sons/defendants 1 and 2 or his purchasers from defendants 1 and 2, who are defendants 3 to 5, have shown to have obtained possession over this property. When the defendants 1 to 5, by their pleadings and evidence, state that the plaintiffs are never the owners of the suit schedule property, the question of prescribing title by adverse possession would never arise. Be it noted, the established law in this country is that a non owner unlawfully gaining possession over a property knowing who the owner was and then openly enjoying it, proclaiming his own ownership would alone enable him to prescribe adverse possession. All those ingredients are totally absent in the case at hand. Therefore, the feeble attempt that the appellants/defendants 1 to 5 are trying to make based on the principles of adverse possession, have no legal weight. It is, on this count also, possession claimed by the appellants/defendants 1 to 5 over the suit schedule property has to be negatived. In the Grounds of
PDJ A.S. 104 of 201937
Appeal, it is mentioned that in the earlier case, a
Commissioner was appointed and he inspected the property and filed a report, showing possession of property by them.
In answer to it, it has to be recorded here that the said
Advocate-Commissioner was not examined at the trial and his alleged report was not shown at the trial. Moreover, law does not know an Advocate-Commissioner making a record of possession of property by one or the other party to the litigation. Possession is a legal incidence in a lis and that has to be decided by the Court by way of a finding. Therefore, this argument of the appellants has no merit.
44. In the “Grounds of Appeal”, it is mentioned that boundaries to property are not there in Ex.A2/sale deed, but the plaintiffs mentioned boundaries in the plaint schedule by borrowing them from the boundaries mentioned in Ex.B2 to
Ex.B4/sale deeds. On perusal of the record, it is seen that
Ex.A1/sale deed of 1966 and Ex.A2/sale deed of 1971 do not contain boundaries. When Ex.A1 does not contain the boundaries, how boundaries came to be mentioned in Ex.B2 to Ex.B4 has to be explained by defendants 1 to 5. They did not explain it. In fact, even in Ex.B19/rectification deed, it is mentioned that the boundaries in Ex.A2 are correct. The substance of the above discussion is to the effect that without mentioning boundaries, parties to Ex.A2 acted upon and confirmedly Sri Abdul Sattar was put in possession of the suit
PDJ A.S. 104 of 201938 schedule property within those boundaries. It is not shown by the defendants 1 to 5/appellants that the boundaries of the plaint schedule would indicate a different survey number and not the one mentioned in the plaint schedule. Thus, the ground urged in this appeal is not effective.
For all the reasons mentioned above, both these Points are answered against the appellants and in favour of the respondents 1 to 6/plaintiffs.
45. In the result, this appeal fails and is dismissed. As a consequence of it, the impugned judgment dated 04-06-2018 of learned Principal Senior Civil Judge, Kurnool in Original
Suit No.25 of 2007 stands confirmed in all respects. No costs in this appeal.
Dictated to the Stenographer, transcribed by him, corrected and
pronounced by me in open Court, this the 15 th day of April 2021.
Sd/- Dr. V.R.K.K. Sagar,
PRINCIPAL DISTRICT JUDGE,
KURNOOL.
APPENDIX OF EVIDENCE
-NIL-
Sd/- Dr. V.R.K.K. Sagar,
PRINCIPAL DISTRICT JUDGE,
KURNOOL.
Copy to:
The Principal Senior Civil Judge, Kurnool.