SA/362/1999 of N.HYMAVATHI Vs DR.VENKATA MAHIPAL AND OTHERS on 30 November 1999

JUDGMENT:

The second appeal is filed by the plaintiffs in O.S.No.801 of 1979on the file of the Court of III Additional District Munsif, Chittoor.

2. The suit was one filed for declaration of title and for recovery ofpossession of the property though originally the suit was filed fordeclaration of title and injunction.

3. According to the case of the plaintiff, an extent of Ac.1.48 cents ofland situated in survey number 304/2 in patta No.53 was granted to theplaintiff and the plaintiff has been in possession and enjoyment of theproperty without any interruption and the defendants have no mannerof right. It was further pleaded that during the pendency of the suit inthe absence of the plaintiff, the defendants have forcibly occupied theproperty and consequently, the relief of recovery of possession wasclaimed.

4. The 1[st] defendant claimed that he is the owner of the scheduleproperty situated in Sy.No.304/2 having inherited from his ancestorsand has been in possession and enjoyment of the same. The 2[nd]defendant claimed that he has nothing to do with the scheduleproperty. The 3[rd] defendant, who was impleaded subsequently andclaims to have purchased the property from the 1[st] defendant,contended that the plaintiff has no right or interest in the property andthe father of the 1[st] defendant Parusu Goud has been in possessionand enjoyment of the property and subsequently, the 1[st] defendant hasbeen in possession and enjoyment and the 3[rd] defendant continues to be in possession of the property.

5. On the basis of the above pleadings, necessary issues havebeen framed for trial. After considering the evidence on record, the trialCourt has decreed the suit of the plaintiff. As against that judgment,A.S.No.116 of 1991 was filed and the District Judge at Chittoorallowed the appeal and dismissed the suit of the plaintiff. Aggrievedby the said judgment, the present second appeal has been preferred.

6. Earlier, this Court has allowed the second appeal on 13.06.2008in the absence of the counsel for the respondents, who was elevatedto the Bench. Consequently, an application was filed to set aside thejudgment in S.A.M.P.No.2573 of 2010. The said application wasallowed on 28.09.2012 and arguments were heard.

7. The second appeal was admitted on 27.07.1998 and thefollowing substantial questions of law:following substantial questions of law:

1) When Ex.B.5, the record of rights, shows that the firstdefendant is an encroacher, is not the plaintiff as the ownerof the suit land entitled for a decree for possession?defendant is an encroacher, is not the plaintiff as the ownerof the suit land entitled for a decree for possession?

2) Whether in the absence of a specific issue framed by thetrial Court that the contesting defendants perfected their titleto the suit land and in the absence of evidence in support ofthe plea, the lower appellate Court should not havedismissed the suit as barred by limitation?trial Court that the contesting defendants perfected their titleto the suit land and in the absence of evidence in support ofthe plea, the lower appellate Court should not havedismissed the suit as barred by limitation?

3) Whether suggestions in cross-examination can be the basisfor deciding the rights of the parties?for deciding the rights of the parties?

8. POINTS:

Learned counsel for the appellants strongly contends that thereasons given by the 1[st] appellate Court are not valid and the title ofthe plaintiff has been proved and Exs.A.1 and A.2 were not properlyconsidered by the Court below. The documents, which were relied on by the court below in coming to the conclusion in favour of therespondent are not proper.

Arguments

9. There cannot be any dispute about the fact that as the suit is onefiled for declaration of title and possession is not admittedly there,which is said to have been lost subsequently, the burden is on theappellants to prove that they have got title to the property. The sourceof title pleaded by the appellants is a patta said to have been grantedto the deceased plaintiff under Ex.A.1 and also entries in thesettlement adungal Ex.A.2 dated 29.04.1989. On the other hand, it isclaim of the defendants that they have got right to the property as theproperty belonged to their father. Except relying on Exs.A.1 and A.2,the plaintiff has not adduced any documentary evidence to prove thathis possession was recognized for longer time and was in continuouspossession and enjoyment of the property for several years exercisingright of ownership. In case if Ex.A.1 does not relate to the title of theplaintiff, then his claim cannot be considered. The possession isclaimed from 1945 but there is no single document to substantiate it. The appellate Court has considered the documents and scrutinizedthem and on a perusal of Ex.A.1 it was noticed that it is only a notice togrant patta and the plaintiff was directed to appear before the AssistantSettlement Officer on 21.03.1959 in the enquiry. Therefore, it cannotbe taken as grant of patta conferring title. No document of title was filedand consequent on Ex.A.1 there is no order passed by the SettlementOfficer granting patta to the plaintiff. Ex.A.2 is said to be settlementadugnal of the year 1989, which refers in column No.11 to patta No.53was granted to the plaintiff but it does not show as to when it wasgranted.

10. Added to that boundary recitals in the neighbouring transactionsclearly go to show that the property was described as the property ofthe father of the plaintiff. Ex.B.1 is relied on by the Court below. It isstrongly contended for the appellants that Ex.B.5 pattadar pass book and Exs.C.1 to C.4 shows that the plaintiff is pattadar of the suit thoughthe possession is recorded with the 1[st] defendant and consequently,the Court below should not have ignored this document. It is notknown as to how the 1[st] defendant came into possession of theproperty and the particulars as to when Ex.B.5 was issued are notclear. It is not the case of the plaintiff that the 1[st] defendant or hisfather being lessees are in permissive possession on his behalf. It isto be mentioned that Ex.B.5 was filed by the defendants and theplaintiff has not even filed the pattadar pass book issuedsubsequently. Merely because the 1[st] defendant has not agitatedabout the patta in favour of the plaintiff his possession and enjoymentof the property cannot be ignored. Even in 1945 as per Ex.B.1 thename of the father of the 1[st] defendant is shown as the owner of theschedule property, which evidently adjoining the land under Ex.B.1. In fact, there is no proof of dispossession as alleged by the plaintiffapart from the fact, there is no proof of continuous possession andenjoyment of the property.

11. In fact, it is a case where the defendants are claiming theproperty as their own and asserting it to be so and the 1[st] defendanthas been in continuous possession and enjoyment of the property andthe long possession of the property indisputably shown the right topossession of the 1[st] defendant. It is well settled that the plaintiffcannot take advantage of the infirmities in the case of the defendants. Having come to the Court claiming that patta was granted by theSettlement Officer and such patta having not been filed and therebeing no material evidence as to when the said patta was granted thesubsequent documents showing the plaintiff as a pattadar does notcreate any title. In fact, the evidence of plaintiff is also not clear as towhen the patta was granted and what has happened to the patta. Except relying on Ex.A.1, which is notice there is no material to show that he has got patta to the land. In the absence of any such materialand when the plaintiff failed to prove title to the property mere entries insome of the revenue records, which cannot be taken as conclusive,cannot confirm title to the plaintiff. Even though some of the revenueemployees have been examined, the plaintiff could not prove as towhen and under what proceedings the patta was granted. Therefore,in view of the above circumstances, the plaintiff having failed todischarge the primary burden of establishing the title is not entitled forthe relief as prayed for and the 1[st] appellate Court has discussed thematerial evidence in a right perspective and I do not find any reason tointerfere with the judgment of the Court below.

12. Accordingly, the Second Appeal is dismissed. No costs.Miscellaneous petitions, if any, pending in this appeal, shall standclosed.

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JUSTICE N.R.L. NAGESWARA RAODate: .02.2013INL