Supreme Court of India

Nazir Ali Mian (Dead) Through Lrs. ... vs Dokal Mian & Ors. on 6 July, 2010
Author: A Alam
Bench: Aftab Alam, T.S. Thakur
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2576 OF 2003
Nazir Ali Mian (Dead) Through LRs. & Ors. ...Appellants VERSUS
Dokal Mian & Ors. ...Respondents JUDGMENT
AFTAB ALAM, J.
1. This appeal arises from a suit for declaration of title and confirmation/recovery of possession instituted
by one Sukhi Mian, the ancestor and predecessor in interest of the present appellants. The claim of the
plaintiff was based on two sada Hukumnamas, allegedly granted by the erstwhile landlord in favour of his
father, Bhualdi Mian. In addition to the Hukumnamas, the plaintiff claimed to have perfected his title
over the suit lands by adverse possession. The Second Additional Sub-Judge, Giridih, upheld his claim
and decreed the suit by judgment and decree dated July 7, 1979 passed in Title Suit No.35 of 71/28 of 79.
On appeal by the defendants, however, the Second Additional District Judge, Giridih, reversed that decree
and dismissed the plaintiff's suit by a detailed judgment and order dated July
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6, 1987 in Title Appeal No.22/79. The plaintiff's second appeal was dismissed by the High Court in limine.
2. In the SLP filed against the High Court judgment, the following question of law was framed on behalf of
the appellants: "Whether the unregistered Hukumnama and the payment of rent against the valid
rent receipts is not sufficient enough to establish the raiyati right of the petitioners over the suit land in
the light of Section 117 of Transfer of Property Act?"
3. Having regard to the question of law, this Court while granting leave made the following order:
"The legal question formulated depends on the construction of Section 117 of the Transfer of
Property Act. It requires consideration."
4. We have heard counsel for the appellant at some length and we have also carefully examined the
judgments of the trial court and the appellate court. We find that the appellate court was fully conscious
of the provisions of section 117 of the Transfer of Property Act and has correctly considered the
plaintiff's claim based on the two unregistered Hukumnamas. In paragraph 13 of the judgment, the
appellate court observed as follows: "These two Hukumnamas are unregistered document.
Therefore, admittedly by virtue of these two Hukumnamas only no title could have been conferred upon
the alleged settlees. According to the section 117 of Transfer of Property Act lease of agricultural lands
can be made orally accompanied with putting the lessee in possession of the land and realizing the rent
for the lands."
3
5. The court then proceeded to examine whether at the time of execution of the Hukumnama the
settlee was put in possession of the suit lands. On a detailed consideration of the evidences adduced by
the two sides, it came to hold that there was no evidence that any settlement was made in favour of the
plaintiff's father by putting him in possession of the suit lands. The appellate court has given several
reasons for holding that the plaintiff (or his father) never came in possession of the suit lands and for
not relying on the sada Hukumnamas. The Court pointed out that the first Hukumnama was purported
to be made in the year 1318 Fasli that corresponded with the year 1911 of the Christian era. From
exhibit B, it was evident that the final publication of the khatian (the record of rights) of village
Pratappur, Giridih (where the suit lands are situated) was made on April 4, 1913. The appellate court
observed that should the settlee have come in possession over the suit lands by virtue of the
Hukumnama, his name would have appeared in the survey records showing him in possession of plot
nos.137 and 140. But that was not the position. The Court posed the question, if the settlement of the
suit lands was made in favour of Bhualdi Mian by means of the Hukumnama and by putting him in
possession of the settled lands, as to why his name did not appear in the khatian. There was no answer
to the question from the side of the plaintiff. The court further observed that in case of oral settlement
of
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agricultural land as contemplated under section 117 of the Transfer of Property Act, it was essential to put
the settlee in possession of the land. There was not a single witness adduced by the plaintiff on this point
who could say that on the alleged date of settlement Bhualdi Mian was put in possession. There was not a
single rent receipt to show that on the date of settlement any rent was paid by Bhualdi Mian. Therefore,
the requirements of law for an oral settlement of agricultural land were not satisfied and the plaintiff
could not derive any benefit from section 117 of the Transfer of Property Act.
6. The appellate court then considered the plaintiff's case based on adverse possession and after a detailed
examination, returned a negative finding on his claim.
7. The appeal stands concluded by findings of fact. We find no merit in the appeal. It is accordingly
dismissed, but with no costs. .....................................


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Madhya Pradesh High Court
Atar Singh And Ors. vs Jiledar Singh And Ors. on 28 January, 2005
Equivalent citations: AIR 2005 MP 157, 2005 (2) MPHT 266
Author: N Mody
Bench: N Mody
JUDGMENT
N.K. Mody, J.
1. Being aggrieved by the judgment and decree dated 8-1-1997 passed by First Additional District Judge,
Morena, in Civil Appeal No. 133-A/94, whereby the judgment and decree passed by Civil Judge Class I,
Ambah, District Morena, dated 16-9-1994 in C.S. No. 156- Aof 1989 has been set aside, the present appeal
has been preferred by the appellants.
2. The substantial questions of law involved in this appeal are :--(1) Whether the provisions of lease are
applicable to agricultural lease ?
(2) Whether under the provision of Section 117 of the Transfer of Property Act, lease of agricultural land
requires registration ?
3. Short facts of the case are that the appellants/plaintiffs filed a suit fore declaration and permanent
injunction alleging that the land bearing Survey No. 349, measuring 3 Bighas 1 Biswa, situated at Village
Ikahara, Tehsil Ambah, District Morena (which shall hereinafter be referred to as the 'suit property') is in
occupation of the appellants. It was alleged that in the revenue record the name of respondent Nos. 1 and
2 has been recorded as Bhumiswami but they were never in occupation of the suit property. Further case
of the appellants was that Jabar Singh, predecessor-in-title of the appellants, was in occupation of the suit
property prior to the Zamindari Abolition Act. In Samvat 2018 Vijai Bahadur Singh, predeccssor-in-title
of respondent Nos. 1 and 2, leased out the suit-property to Jabar Singh for a period of 50 years on
payment of premium of Rs. 200/- and on payment of lease rent at the rate of Rs. 50/- per year. It was
alleged that the predecessor-in-title of the appellants, Jabar Singh, died in the year 1982 and after his
death the appellants are in occupation of the suit property. It was alleged that since the lease in favour of
the predecessor-in-title of the appellants was against the provisions of Section 168 of the M.P. Land
Revenue Code, 1959, the appellants have become Bhumiswami of the suit property. On the basis of the
aforesaid pleadings it was prayed that the appellants are Bhumiswami of the suit property and respondent
Nos. 1 and 2 be restrained from interfering with the possession of the appellants. Respondent Nos. 1 and 2
submitted written statement wherein plaint allegations were denied. It was also denied that the suit
property was leased out by Vijai Bahadur Singh to the predecessor-in-title of Jabar Singh.
4. On the basis of pleadings of the parties, Trial Court framed issues, recorded evidence and decreed the
suit holding that Jabar Singh, predecessor-in-title of the appellants and, after his death, the appellants are
in occupation of the suit property, and from the evidence it is also proved that there was a lease agreement
between the parties. Learned Trial Court also restrained respondent Nos. 1 and 2 from interfering with the
possession of the appellants. In appeal, learned Appellate Court reversed the findings of the Trial Court
holding that it is not indicated in Khasra entries (Ex. P-1 to Ex. P-7) as to how the name of the appellants
has been mutated. It was also found that from reading together Ex. P-1 to Ex. P-7 and Ex. D-1 it is found
that from Samvat 2019 to Samvat 2035 the appellants were shown in possession in column 12 of the
Revenue Record but the Appellate Court held that since the lease for a period of 50 years is based on oral
lease agreement, no lease can be granted under Section 105 or Section 106 of the Transfer of Property Act.
Learned Appellate Court further held that since the witnesses of the appellants have stated that Vijai
Bahadur Singh, predecessor-in-title of respondent Nos. 1 and 2 was an old man, he was covered under the
proviso to Section 168 of the M.P. Land Revenue Code. Hence, no rights of Bhumiswami have accrued to
the appellants. Thus, the appeal was allowed and the judgment and decree passed by the Trial Court was
set aside.
5. Shri P.C. Chandil, learned Counsel for the appellants, submits that the findings of the Appellate Court
that Sethbandhu and Atar Singh have stated that Vijai Bahadur Singh, predecessor-in-title of respondent
Nos. 1 and 2 was an old man and was not doing agricultural operations, are not correct. Learned Counsel
read out the statements of Sethbandhu and Atar Singh to demonstrate that nowhere it is stated by them
that Vijai Bahadur Singh was unable to do the agricultural operations. On the basis of it, it was argued
that the findings are perverse. Learned Counsel further submits that in view of Section 117 of the Transfer
of Property Act, for an agricultural land the provisions of Sections 105 and 107 are not applicable. As per
Section 117 if the Transfer of Property Act the provisions of Chapter V are not applicable. Section 117 of
the Act reads as under :--
"117. Exemption of leases for agricultural purposes.-- None of the provisions of this Chapter apply to
leases for agricultural purposes, except in so far as the State Government may by Notification published in
the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such
leases, together with, or subject to, those of the local law, if any, for the time being in force.
Such Notification shall not take effect until the expiry of six months from the date of its publication."
Learned Counsel for the appellants further submits that under Section 168 of the M.P. Land Revenue
Code neither it is necessary that there should be a document in writing nor it is required that it should be
registered. Reliance was placed on a decision of this Court in Shankar Rao v. State of M.P., reported in
1961 MPLJ-SN 260, wherein the Division Bench has held that, "Section 117 excluded agricultural leases
from the operation of its own provisions. That being so, such leases could be made orally. It was a case
where though a registered document was not necessary to effectuate the transaction, a deed was in fact
executed and not registered. In such a case the transaction was not rendered nugatory by the unregistered
deed. The 'Patta' could not be used as evidence for creation of the lease. The unregistered lease deed could
not be submitted in evidence to prove its terms.
6. Learned Counsel for the appellants further, placed reliance on a decision in Vaikunthibai v. State of
M.P., reported in 1987 JLJ 409, wherein it has been held that the Khasra entries, unless rebutted, can not
be directed as proof of sub-tenancy.
7. Shri V.S. Chaturvedi, learned Counsel for respondent No. 3 placed reliance on a decision of the Hon'ble
Supreme Court in Beohar Rajendra Singh v. State of M.P. and Ors., reported in 1970 JLJ 73, wherein
Hon'ble Supreme Court has observed that the possession entered in remark column shows neither
ownership nor tenancy. So far as the substantial question of law :
whether the provisions of lease are applicable to agricultural lease, is concerned, in view of Section 117 of
the Transfer of Property Act, it is not necessary that the lease for agricultural land should be registered.
Therefore, learned Appellate Court has committed an error in dismissing the suit on the ground that the
lease was not registered. However, in view of the facts and circumstances of the case, learned Appellate
Court shall reappreciate the evidence and shall give a finding regarding the alleged lease for a period of 50
years and also relating to possession.
8. Shri V.S. Chaturvedi, learned Counsel for respondent No. 3, also submitted that so far as the dismissal
of the suit on the ground that the lease was not registered, is concerned, dismissal of the suit by the
learned Appellate Court is not correct in view of the law laid down by the Hon'ble Supreme Court in a case
Kishansingh v. Arvind Kumar, reported in 1995 JLJ Page 1, wherein the Supreme Court has held that
under Section 117 of the Transfer of Property Act the agricultural leases are excluded from operation of
the Act, and, therefore, the provisions of Section 107 do not apply to it, nor is there any merit in the
submission that even if Transfer of Property Act does not apply the principles contained therein would be
applicable to agricultural lease. In view of the specific provision in the Transfer of Property Act excluding
agricultural leases from the operation of the Act, and the Tenancy Act of the State having provided for
execution of the lease which does not contain any provision like Section 107 of the Transfer of Property
Act, the principles of Section 107 can not be extended to it.
9. With the aforesaid observation, the judgment and decree passed by the learned Appellate Court is set
aside with the direction to decide the appeal afresh. Parties are directed to remain present before the
Court below on 14-3-2005. No order as to costs.
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Punjab-Haryana High Court
Sumer Singh vs Chander Kanta And Others on 16 April, 2012
Regular Second Appeal No. 1081 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH Regular Second Appeal No. 1081 of 2010
Date of decision : April 16, 2012
Sumer Singh ....Appellant versus
Chander Kanta and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Kul Bhushan Sharma, Advocate, for the appellant Mr. SK Chauhan, Advocate for
Mr. RM Singh, Advocate, for respondent nos. 2 to 5 None for respondent no. 1
L.N. Mittal, J. (Oral)
Plaintiff Sumer Singh having non-suited by both the courts below has filed this second appeal.
Undisputed facts are that Natthi being owner of the suit land leased out the same to
defendant/respondent no. 1 vide registered lease deed dated 22.2.1993 for 99 years. Defendant no. 1 sold
lease hold rights to defendants no. 2 to 4 vide sale deed dated 21.10.1994 who further sold it to defendant
no. 5 vide sale deed dated 21.11.2003. The plaintiff purchased the suit land from Natthi vide sale deed
dated 30.7.2004. Accordingly, the plaintiff became owner of the suit land.
The plaintiff in the suit challenged the aforesaid lease deed and subsequent transfers of the lease hold
rights alleging that the lease deed was Regular Second Appeal No. 1081 of 2010 -2- illegal and null and
void and that the transfers of lease hold rights were in violation of the lease deed. Accordingly, the
plaintiff besides seeking declaration also sought possession of the suit land along with permanent
injunction restraining the defendants from further transferring the suit land. Defendants contested the
suit and controverted the allegations made by the plaintiff to challenge the lease deed and subsequent
transfers of lease hold rights. The lease deed and transfers of lease hold rights were defended. Factual
position was not controverted. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Faridabad vide judgment and decree dated 29.1.2009 dismissed
the plaintiff's suit. First appeal preferred by plaintiff has been dismissed by learned Additional District
Judge, Faridabad vide judgment and decree dated 3.11.2009. Feeling aggrieved, plaintiff has filed this
second appeal. I have heard learned counsel for the parties and perused the case file.
Counsel for the appellant contended that section 108 of the Transfer of Property Act, 1882 (in short, the
Act) is not applicable to leases of agricultural land in view of section 117 of the Act and therefore,
defendant no. 1 lessee had no right to sell lease hold rights. The contention cannot be accepted. Assuming
that section 108 of the Act is not applicable to the impugned lease deed, even then it cannot be said that
sale of lease hold rights by defendant no. 1 to defendants no. 2 to 4 and further sale of lease hold rights by
defendants no. 2 to 4 to defendant no. 5 is illegal Regular Second Appeal No. 1081 of 2010 -3- or null or
void in any manner on any ground whatsoever. The plaintiff alleged that the said transfers were made in
violation of terms and conditions of the lease deed. However, perusal of lease deed Ex. P1 reveals that
there is no prohibition therein against transfer of lease hold rights by defendant no.1. Consequently, sale
of lease hold rights by defendant no. 1 to defendant nos. 2 to 4 and by defendants 2 to 4 in favour of
defendant no. 5 cannot be said to be in violation of any term and condition of the lease deed.
In addition to the aforesaid, lease hold rights for 99 years constitute valuable property. Owner of any
property has right to alienate the same unless prohibited by any valid agreement or law. In the instant
case, there is no prohibition either by law or by terms and conditions of the lease deed against transfer of
lease hold rights by defendant no. 1 to any body else. Consequently, defendant no. 1 had inherent right to
sell the lease hold rights to any body. Thus, examined from any angle, sale of lease hold rights by
defendant no.1 to defendants no. 2 to 4 and further sale thereof by defendants no. 2 to 4 to defendant no.
5 cannot be said to be illegal or null or void etc. on any ground whatsoever. Plaintiff has, therefore, been
rightly non-suited by the courts below in view of admitted factual position.
It is also worth mentioning that impugned lease deed in favour of defendant no. 1 and sale of lease hold
rights by defendant no. 1 to defendant nos. 2 to 4 and also by defendant nos. 2 to 4 to defendant no. 5 had
already taken place long before the plaintiff purchased suit land from Regular Second Appeal No. 1081 of
2010 -4- Natthi. In view thereof also, the plaintiff cannot challenge the lease deed and the aforesaid
transfers of lease hold rights. For the reasons aforesaid, I find no merit in the instant second appeal. No
question of law much less substantial question of law arises for adjudication in this second appeal.
Accordingly, the appeal is dismissed. ( L.N. Mittal )
April 16, 2012 Judge 'dalbir'
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Allahabad High Court
Ram Kumar Son Of Late Fateh Singh, ... vs The State Of U.P. Through Its ... on 29
September, 2005
Bench: A N Ray, R Agarwal, A Bhushan
JUDGMENT
Ajoy Nath Ray, C.J., R.K. Aqarwal and Ashok Bhushan, JJ.
1. We have heard Sri Alok Kumar Yadav, learned counsel appearing on behalf of the writ petitioners, Sri
S.M.A.. Kazmi, learned Chief Standing Counsel and Sri R.V. Singh, learned standing counsel appearing on
behalf of the State.
2. This Full Bench has been constituted on a reference made to it by a learned single Judge vide its
referring order dated 25th September, 2001 passed in this writ petition.
3. Learned single Judge found conflict in judgment of Division Benches "which necessitated the reference.
The following eight questions have been referred to this Full Bench:-
(i) Whether judicial propriety demands that if a Bench of High Court is unable to agree with the decision
already rendered by earlier Division Bench of co-ordinate jurisdiction, the question of disagreement
should be referred to a Larger Bench under Chapter V Rule 6 of the Rules of the Court, 1952?
(ii) Whether the decisions rendered in former two Division Benches in the case of Ajai Shanker (supra),
which were brought to the notice of learned Judges constituting Division Bench in case of Panchoo
(supra), the latter Division Bench instead of disagreement with ratio decidendi of two former Division
Benches, it ought to have referred the same to a larger Bench of this Court?
(iii) Whether Article 14 and Article 19(1)(g) of the Constitution postulate a reasonable classification to
ameliorate the economic condition of weaker section of society of fishermen community enumerated
under Paragraph 62 (2) (kha) of Gaon Sabha Manual and also for elimination of middlemen to save the
said weaker section of society from exploitation as the Directive Principles embodied the ideal of socio
economic justice as assured in the preamble of the Constitution and the Courts are to adopt the principle
of harmonious interpretation of Article 14 and 19(1)(g) of the Constitution so as to give effect to the
Fundamental rights as well as Directive Principles of State Policy?
(iv) Whether in view of the State List of Seventh Schedule Item No. 21 empowers State Legislature to
enact on the subject of fisheries, placing U.P. Act No. 1 of 1951, "' with Ninth Schedule of the Constitution
and the mandatory provisions enshrined under Article 243G read with Item No. 5 of Eleventh Schedule
which includes settlement of fisheries of the ponds and tanks vested in Gaon Sabha with powers, authority
and responsibility of Panchayat, the preparation of plans for economic development and social justice and
the implementation of scheme for economic development and social justice as entrusted to them under
Paragraph 60 (2) (Kha) of Gaon "Sabha Manual issued by the State Government in exercise of its power
under Section 126 of U.P. Act No. 1 of 1951 and the Rules framed thereunder are sacrosanct being policy of
affirmative action of the State Government giving Distributive justice to the weaker section of society and
to protect them from social injustice and all forms of exploitation?
(v) Whether the decision rendered by learned Single Judge in case of Man Singh (supra) conferring
jurisdiction upon Sub Divisional Officer and Collector both for cancellation of Patta of fishery right
making the order of Collector revisable requires reconsideration in view of sub-sections (6) and (7) of
Section 122-C of U.P. Act No. 1 of 1951 and decision rendered by Supreme Court in case of Dhulabhai
(supra)?
(vi) Whether jurisdiction of Civil Court is expressly barred to cancel the fisheries rights granted under
paragraph 60(2) (Kha) of Gaon Sabha Manual and the decision rendered by Division Bench of this Court
in case of Todi (supra) requires reconsideration in view of decision rendered by Full Bench of this Court in
case of Similesh Kumar (supra) ?
(vii) Whether rights of appeals and revisions are creation of statute and once statutory provisions indicate
the manner of u ' settlement of dispute, no other authority including Civil Court has jurisdiction to re-
adjudicate the matter covered thereby?
(viii) Whether leases of rearing of fishes "in ponds and tanks vested in Gaon Sabha under Section 11 of
U.P. Act No. 1 of 1951 fall within the moaning of agricultural land as defined under Section 3(14) of the
said Act and such leases are exempted from Registration as envisaged under Section 117 of Transfer of
Property Act?
4. So far as first two questions are concerned, we answer those in the affirmative, i.e., a Division Bench
seeking to disagree with an earlier Division Bench cannot do it itself, but it can record its desire to
disagree and thereafter call for a reference to a Larger Bench. Following authorities might be-referred to
in this regard; ; (Mamleshwar Prasad v. Kanhalya Lal).
, (State Bank of India and Ors. v. Labour Enforcement Officer (Central) and Anr.) , especially at page 454
(State of Bihar v. Kallka Kuer Alias Singh and Ors.) and , especially at paragraph 22(Fuerst Day Lawson
Ltd. v. Jindal Exports Ltd.).
5. Before the learned single Judge bunch of writ petitions were posted, Writ Petition No. 23932 of 2001
being leading writ petition, arising out of various orders passed by Sub Divisional Officers granting fishery
leases, refusing to renew fishery leases and in some of the writ petitions question was involved as to which
is the appropriate forum for cancelling the fishery lease granted under the provisions of the Uttar Pradesh
Zamindary Abolition and Land Reforms Act, 1950 and the rules framed thereunder. It is necessary to note
the relevant provisions of Uttar Pradesh Zamindary Abolition and Land Reforms Act, 1950 (hereinafter
referred to as 1950 Act) and the rules and other relevant provisions relating to grant of fishery lease.
6. Under Section 117 of 1950 Act, the State Government may declare that the things mentioned therein,
which had vested in the State, shall vest in the Gaon Sabha or any other local authorities. In this writ
petition we are concerned with fishery which has been vested in the Gaon Sabha by virtue of notification
of the State Government under Section 117 of 1950 Act. According to Section 122-A of 1950 Act general
superintendence, management, preservation and control of all the land, forests, fisheries, tanks, ponds.,
water channels, pathways, abadi site and hats, bazars and melas vested in the Gaon Sabha are under the
charge of Land Management Committee. The functions and duties of the Land Management Committee
include development of animal husbandry which include pisciculture. Under Section 28-B of the UP.
Panchayat Raj Act, 1947, Bhumi Prabandhak Samiti is charged with the general management,
preservation and' control of all the properties as referred to under Section 28-A of the U.P. panchayat Raj
Act, 1947 including the -maintenance and development of the fisheries and tanks. Section 126 of the 1950
Act is extracted below:-
xxxxxxxxxxxxxxxxxxx..
Kurella Naga Druva Vudaya Bhaskara Rao Vs. Galla
Janikamma @ Macharamma
LegalCrystal Citation : legalcrystal.com/446600
Court : Andhra Pradesh
Reported in : 2009(6)ALT164
Judge : C.Y. Somayajulu, J.
Subject : Property
Decided On : Sep-27-2006
Acts : Andhra Pradesh (Andhra Area) Tenancy Act, 1956 - Sections 13, 16 and 17; Transfer of Property
Act, 1882 - Sections 105 to 116 and 117; Madras General Sales Tax Act, 1939; Rent Act - Sections 13A;
Madhay Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act; Orissa Tenants
Protection Act - Sections 7(1); Rajasthan Co-operative Societies Act, 1965 - Sections 75; Hyddrabad
Tenancy and Agricultural Lands Act, 1950; Madras Estates (Abolition and Conversion into Ryotwari) Act,
1948; Limitation Act, 1963 - Schedule - Article 65; Evidence Act, 1872 - Sections 120; Andhra Pradesh
Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 - Sections 8 and 24; Specific Relief Act, 1963 -
Sections 5; Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections
Case Number : A.S. No. 1990 of 1988
Appellant : Kurella Naga Druva Vudaya Bhaskara Rao
Respondent : Galla Janikamma @ Macharamma
Advocate for Appellant : V.L.N.G.K. Murthy, Adv.
Advocate for Respondent : V. Parabrahma Sastry, Adv.
Disposition : Appeal dismissed
Excerpt:
Murthy is, since the respondent failed to seek declaration of her title to the suit land and took a specific
plea that she leased out the suit land to the appellant, the provisions of the Andhra Pradesh (Andhra
Area) Tenancy Act, 1956 (1956Act), come into play and so the Tenancy Court only, but not the civil
Court, that can grant the relief of possession sought by the respondent. He placed strong reliance on Firm
of Illuri Subbayya Chetty and Sons v. B-3 declaration because the respondent is not its owner, and
contended that since the suit land admittedly is a rain fed land, no ordinary prudent person would agree to
pay 40 bags of paddy per year as rent therefor and since evidence regarding permissive possession is
lacking, and since the voluminous documentary evidence adduced by the appellant clearly establishes his
long standing possession over the suit land, the trial Court was in error in decreeing the suit. A-3 reply
clearly and in equivocal terms denied the title of the respondent to the suit land and set up a title thereto
in himself, and since the Tribunal constituted under the 1956 Act cannot go into and decide the
complicated questions of title, proper forum for seeking the relief of recovery of possession, in
circumstances, like this is, only a civil Court and as there is no total ouster of the jurisdiction of the civil
Court in such cases Civil Court does no (sic. It is held that plaint determines the forum, and that the
defendant may show that the plaint is a mere camouflage to circumvent the jurisdiction of the Special
Tribunal, and if the Court is satisfied that the allegations in the plaint and the reliefs sought do not bring
the action within the jurisdiction of the Special Tribunal, and if the defendant is unable to show that
the action is a mere camouflage, the jurisdiction of the civil Court cannot be said to be excluded, merely
because the defence raised may involve adjudication of some matters within the competence of the
Special Tribunal. On the ground that the substance of the plaint in that case falls clearly within the terms
of Sections 13 and 16 of the 1956 Act and as that Act i. B-2, it is clear that right to enjoy the suit land
during her lifetime only was intended to be given by the respondent to Mahalakshmamma thereunder but
nothing more. B-2 is true, at best Ex. B-2 shows that Mahalakshmamma purchased the suit land with her
money with an intention to enjoy it during her lifetime and thereafter the respondent has to enjoy the suit
land as the absolute owner. Question of drawing adverse inference against a party, for his or her failure to
go into the witness box arises only when some facts in dispute are in the personal knowledge of that
party. So I am not able to agree with the contention that an adverse inference has to be drawn against the
respondent for her failure to go into the witness box. Significantly the appellant who wants to take
advantage of the failure of P. 1 showing the suit land in the declaration filed by him, for reasons best
known to him, failed to produce the declaration filed by him under the 1973 Act, which he should have
filed because Mahalakshmamma gifted Acs. So, like a pot calling the kettle black, appellant cannot take
any advantage from the failure of the husband of the respondent (P. I have no intention of trespassing
into others lands illegally and I have to intention to enjoy the property adverse to the interests of its
owner. The fact that the appellant paid land revenue in respect of the suit land, on behalf of
Mahalakshmamma, clearly shows that he did not entertain any idea to prescribe title to the suit land by
adverse possession. 6, 7 and 8 are examined to show that the appellant was cultivating the suit land by
drawing water from their lands, but not from the bore well in the land of Mahalakshmamma, as the suit
land was higher in level than the land of Mahalakshmamma. 7, during cross-examination, clearly admitted
that bore water can be pumped out to any height irrespective of the level. 6, 7 and 8 looks artificial and
clearly shows that they are trying to help the appellant, who was the Sarpanch of their village. It is well
known that a document, which comes into existence subsequent to the filing of the suit, cannot be taken
into consideration for deciding the rights of the parties to the suit. If they fail to perform their duty of
mutating the name of the respondent, respondent does not lose her title to theproperty purchased by her
under a registered sale deed, because it is well known that entries in the revenue registers by themselves
would not either confer title to the person whose name is mutated therein as pattedar or divest the title of
the real owner of the property due to mutation of the name of another person as pattedar in the revenue
registers. So, if the respondent is able to establish that she acquired title to the suit land by way of
purchase under a registered sale deed, she would not lose her title thereto merely due to the failure of the
revenue officials to mutate her name as the pattedar of the suit land in the relevant revenue registers. If
the relationship of landlord and tenant is admitted, in view of the provisions of the 1956 Act, if the
conditions required for ejection of the tenant are satisfied, the landlord can initiate proceedings under
that Act for recovery of possession of the leased land even without issuing a notice to quit. 53. Since
respondent is held to be the owner of the suit land and since the appellant failed to establish his title by
adverse possession, appellant whose status is that of a trespasser vis-a-vis the appellant is liable to be
evicted and so the respondent is entitled to a decree for possession of the suit land.
Judgment:
C.Y. Somayajulu, J.
1. Defendant in a suit for recovery of possession of Acs.3-90 cents in Survey No. 100 of Rajanagaram of
Rajahmundry, which hereinafter would be referred to as 'the suit land', is the appellant.
2. The case, in brief, of the respondent is that, as the appellant and her husband are closely related, she,
at the instance of the appellant, had purchased the suit land under Ex.A-1 registered sale deed from its
owner and paid the consideration payable by her to her vendor through her husband and her brother and
was put in possession thereof and later she entrusted the management of the suit land to the appellant as
he promised to manage the same on her behalf. Appellant, who was sending the rentals from the suit
land and was paying taxes for some years, informed her in 1971 that inasmuch as leasing out the suit
land to tenants may create problems in future, he himself would cultivate the same and pay 40 bags of
paddy per annum to her and started cultivating the same till the end of 1977. Later, as differences
cropped up between him and her husband in connection with the settlement deed executed by Smt.
Mahalakshmamma and her husband Veeraraju, appellant stopped paying rent. So, she got issued a
registered notice through her advocate asking the appellant to vacate the suit land after paying the
arrears due to her for which he sent reply with false and untenable allegations, disputing her title to the
suit land. So the appellant who became a trespasser is liable to be evicted from the suit land.
3. The case, in brief, of the appellant as disclosed from his written statement as amended is that he never
managed suit land on behalf of the respondent and never let it out to anybody on her behalf and has been
in possession thereof in his own right from several decades, and thereby perfected his title thereto by
adverse possession. The suit land in fact was purchased by Mahalakshmamma for her own benefit
benami in the name of respondent. That that is so is also evident from the settlement deed executed by
the respondent in favour of Mahalakshmamma, which could not be registered due to certain
circumstances. Since the respondent who is not the owner of the suit land did not seek declaration of her
title to the suit land, and as her case is that he is the tenant of the suit land, the proper forum for seeking
recovery of possession is the Tenancy Court but not Civil Court and so the suit has to be dismissed.
4. After the appellant was given leave to amend his written statement, respondent filed her rejoinder
contending that the appellant who took some signatures of hers on blank papers must have brought into
existence the settlement deed in favour of Mahalakshmamma.
5. On the basis of the pleadings, the trial Court framed four issues and two additional issues for trial.
Respondent examined her husband as P.W.1, her brother as P.W.2 and her vendor as P.W.3 and
marked Exs.A-1 to A-5. On his behalf, appellant examined himself as D.W.1, a person said to be a tenant
of the suit land as D.W.2 and persons said to the present at the time of execution of Ex.B-2 settlement
deed by the respondent in favour of Mahalakshmamma as D.Ws.3 and 4, the Village Munsif of
Rajanagaram as D.W.5 and some of the ryots as D.Ws.6 to 8 and marked Exs.B-1 to B-36. After
considering the evidence on record the trial Court held on issues 1 and 2, relating to the questions
whether the respondent is entitled to seek recovery of possession of the suit land and whether the
appellant acquired title to the suit land by adverse possession, against the appellant; on issue No. 3
relating to profits, held that they would be determined on a separate application; on additional issues
relating to the questions whether the agreement dated 18-4-1959 (Ex.B-2) is true, valid and binding on
the respondent and whether Ex.B-2 agreement dated 18-4-1959 is forged and fabricated as contended by
the respondent, held that the Ex.B-2 is a false and invalid document, and consequently held on issue No.
4 relating to the relief, that respondent is entitled to recover possession of the suit land from the appellant.
Hence, this appeal by the defendant.
6. Heard Sri V.L.N.G.K. Murthy on behalf of the Counsel for appellant and Sri V. Parabrahma Shastry on
behalf of Counsel for respondent.
7. The main contention of Sri V.L.N.G.K. Murthy is, since the respondent failed to seek declaration of her
title to the suit land and took a specific plea that she leased out the suit land to the appellant, the
provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (1956 Act), come into play and so
the Tenancy Court only, but not the civil Court, that can grant the relief of possession sought by the
respondent. He placed strong reliance on Firm of Illuri Subbayya Chetty and Sons v. State of Andhra
Pradesh : AIR 1964 SC 322, Raja Ram Kumar v. Union of India : AIR 1988 SC 752, Sultan v. Ganesh (3)
: AIR 1988 SC 716, Saraswati v. Lachanna : (1994) 1 SCC 611, S. Venkatramaiah v. K. Venkataswamy :
AIR 1976 A.P. 402 : 1976 (1) An.W.R. 17 (S.N.) (F.B.), B. Viswanadham v. S.L.N. Swamyvaru Temple
1981 (1) APLJ 357, R. Raghava Rao v. Tenancy Tahsildar, Tanuku W.G. District 1976 (1) APLJ 156,
Gadde Veerraju v. Godde Sattemma 1988 (1) APLJ 280, andSection 17 of the 1956 Act in support of the
said contention. He also relied on Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur AIR
1965 SC 1923, where it is held that merely because a person claims to have a permanent and heritable
interest in a land, asserting that he is owner thereof, it does not amount to his denying landlord's title, and
contended that the remedy, if any, of the respondent is to go before the Tenancy Court for recovery of
possession of the suit land, and further contended that since the respondent did not go into the witness
box, in spite of the respondent filing I.A. No. 629 of 1986 seeking a direction from the Court to examine
herself as a witness, an adverse inference has to be drawn against her for her absence from the witness
box and in any event since the husband of the respondent as P.W.1 admitted that he did not show the
suit land in Ex.B-3 declaration filed by him under A.P. Act 1 of 1975 though he disclosed his other lands
which are in possession of tenants, an inference can be drawn that he did not include the suit land in
Ex.B-3 declaration because the respondent is not its owner, and contended that since the suit land
admittedly is a rain fed land, no ordinary prudent person would agree to pay 40 bags of paddy per year as
rent therefor and since evidence regarding permissive possession is lacking, and since the voluminous
documentary evidence adduced by the appellant clearly establishes his long standing possession over
the suit land, the trial Court was in error in decreeing the suit. Placing reliance on Chandrasekharaswami
v. Nainarammal AIR 1919 Mad 1135, and Brahmayya v. Sundaramma AIR 1948 Mad. 275 (FB), he
contended that by virtue of Section 117 of the Transfer of Property Act, 1882, though Section106 of
that Act may not apply to leases for agriculture purposes, since Sections 105 to 116 in its Chapter V are
equity oriented, principles laid down in those sections can be applied to agricultural leases also.