Declaration of title and possession - Burden of proof - Burden always lies on the plaintiff , he can not rely on the weakness of defendant's record - Partition deed and family settlement deed - not covered the suit land or suit schedule survey number - how original extent was increased in sub -division while preparing R.S.R. not explained - mere entries in revenue records does not confirm any title when GLR- Records showing the defendant was the owner of land prepared under cantonment rules - Cantonment Land Administration Rules, 1937 - GLR records prevails over the all land records- like the Andhra Pradesh (Telangana Area) Land Revenue
Act, 1317 Falsi, the Hyderabad Record of Rights in Land Regulation, 1358
Falsi, the Hyderabad Record of Rights Rules, 1956 etc. - Lower courts committed wrong as they desired to find out the faults of GLR records and rules and Act instead of verifying the plaintiff's records =
The Vasavi Co-op. Housing Society Ltd., the first respondent herein
instituted a suit No.794 of 1988 before the City Civil Court, Hyderabad,
seeking a
declaration of title over land comprising 6 acres 30 guntas in
Survey No.60/1 and 61 of Kakaguda village and recovery of the vacant
possession from Defendant Nos.1 to 3 and 7, the appellants herein, after
removal of the structure made therein by them.
The plaintiff has also
sought for an injunction restraining the defendants from interfering with
the above-mentioned land and also for other consequential refliefs.
The
City Civil Court vide its judgment dated 31.07.1996 decreed the suit, as
prayed for, against which the appellants preferred C.C.C.A. No.123 of 1996
before the High Court of Andhra Pradesh at Hyderabad.
The High Court also
affirmed the judgment of the trial Court on 6.9.2002, but noticed that the
appellant had made large scale construction of quarters for the Defence
Accounts Department, therefore, it would be in the interest of justice that
an opportunity be given to the appellants to provide alternative suitable
extent of land in lieu of the scheduled suit land, for which eight months’
time was granted from the date of the judgment.=
The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not.
We are of the view that even
if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
16. We notice that the trial court as well as the High Court rather than
examining that question in depth, as to whether the plaintiffs have
succeeded in establishing their title on the scheduled suit land, went on
to examine in depth the weakness of the defendants title.
Defendants
relied on the entries in the GLR and their possession or re-possession over
the suit land to non-suit the Plaintiffs. The court went on to examine the
correctness and evidentiary value of the entries in the GLR in the context
of the history and scope of Cantonment Act, 1924, the Cantonment Land
Administration Rules, 1925 and tried to establish that no reliance could be
placed on the GLR.
The question is not whether the GLR could be accepted
or not, the question is, whether the plaintiff could prove its title over
the suit property in question.
The entries in the GLR by themselves may
not constitute title, but the question is whether entries made in Ext.A-3
would confer title or not on the Plaintiff.
17. This Court in several Judgments has held that the revenue records
does not confer title.
In Corporation of the City of Bangalore v. M.
Papaiah and another (1989) 3 SCC 612
held that “it is firmly established
that revenue records are not documents of title, and the question of
interpretation of document not being a document of title is not a question
of law.”
In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349
this Court has held that “that the entries in jamabandi are not proof of
title”.
In State of Himachal Pradesh v. Keshav Ram and others (1996) 11
SCC 257 this Court held that “the entries in the revenue papers, by no
stretch of imagination can form the basis for declaration of title in
favour of the plaintiff.”
18. The Plaintiff has also maintained the stand that their predecessor-in-
interest was the Pattadar of the suit land.
In a given case, the
conferment of Patta as such does not confer title.
Reference may be made
to the judgment of this Court in
Syndicate Bank v. Estate Officer &
Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village
Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
19. We notice that the above principle laid down by this Court sought to
be distinguished by the High Court on the ground that none of the above-
mentioned judgments, there is any reference to any statutory provisions
under which revenue records referred therein, namely, revenue register,
settlement register, jamabandi registers are maintained.
The High Court
took the view that Ext.A-3 has evidentiary value since the same has been
prepared on the basis of Hyderabad record of Rights in Land Regulation,
1358 Fasli.
It was also noticed that column 1 to 19 of Pahani Patrika is
nothing but record of rights and the entries in column 1 to 19 in Pahani
Patrika shall be deemed to be entries made and maintained under
Regulations.
The
defendant maintained the stand that the entries made in GLR, maintained
under the Cantonment Land Administration Rules, 1937, in the regular course
of administration of the cantonment lands, are admissible in evidence and
the entries made therein will prevail over the records maintained under the
various enactment, like the Andhra Pradesh (Telangana Area) Land Revenue
Act, 1317 Falsi, the Hyderabad Record of Rights in Land Regulation, 1358
Falsi, the Hyderabad Record of Rights Rules, 1956 etc.
In order to
establish that position, reliance was placed on the judgments of this Court
in Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148, Union of India
& Ors. v. Kamla Verma (2010) 13 SCC 511, Chief Executive Officer v.
Surendra Kumar Vakil & Ors. (1999) 3 SCC 555 and Secunderabad Cantonment
Board, Andhra Circle, Secundrabad v. Mohd. Mohiuddin & Ors. (2003) 12 SCC
315.
Both, the trial Court and the High Court made a detailed exercise to
find out whether the GLR Register maintained under the Cantonment Land
Administration Rules, 1937 and the entries made there under will have more
evidentiary value than the Revenue records made by the Survey Department of
the State Government. In our view, such an exercise was totally
unnecessary. Rather than finding out the weakness of GLR, the Courts ought
to have examined the soundness of the plaintiff case. We reiterate that
the plaintiff has to succeed only on the strength of his case and not on
the weakness of the case set up by the defendants in a suit for declaration
of title and possession.
23. In such circumstances, we are of the view that the plaintiff has not
succeeded in establishing his title and possession of the suit land in
question. The appeal is, therefore, allowed and the judgment of the trial
court, affirmed by the High Court, is set aside. However, there will be no
order as to costs.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4702 OF 2004
Union of India and others … Appellants
Versus
Vasavi Co-op. Housing Society
Ltd. and others … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. The Vasavi Co-op. Housing Society Ltd., the first respondent herein
instituted a suit No.794 of 1988 before the City Civil Court, Hyderabad,
seeking a
declaration of title over land comprising 6 acres 30 guntas in
Survey No.60/1 and 61 of Kakaguda village and recovery of the vacant
possession from Defendant Nos.1 to 3 and 7, the appellants herein, after
removal of the structure made therein by them.
The plaintiff has also
sought for an injunction restraining the defendants from interfering with
the above-mentioned land and also for other consequential refliefs.
The
City Civil Court vide its judgment dated 31.07.1996 decreed the suit, as
prayed for, against which the appellants preferred C.C.C.A. No.123 of 1996
before the High Court of Andhra Pradesh at Hyderabad.
The High Court also
affirmed the judgment of the trial Court on 6.9.2002, but noticed that the
appellant had made large scale construction of quarters for the Defence
Accounts Department, therefore, it would be in the interest of justice that
an opportunity be given to the appellants to provide alternative suitable
extent of land in lieu of the scheduled suit land, for which eight months’
time was granted from the date of the judgment.
Aggrieved by the same, the
Union of India and others have filed the present appeal.
FACTS
2. The plaintiff’s case is that it had purchased the land situated in
Survey Nos.60, 61 and 62 of Kakaguda Village from Pattedar B.M. Rama Reddy
and his sons and others during the year 1981-82.
The suit land in question
forms part of Survey Nos.60 and 61. The suit land in question belonged to
the family of B. Venkata Narasimha Reddy consisting of himself and his sons
Anna Reddy, B.V. Pulla Reddy and B.M. Rama Reddy and Anna Reddy’s son
Prakash Reddy.
Land in old Survey No.53 was allotted to Rama Reddy vide
registered family settlement and partition deed dated 11.12.1939 (Ex.A2).
In the subsequent re-settlement of village (Setwar of 1353 FASLI), the land
in Survey No.53 was re-numbered as Survey No.60, 61 and 62.
Ever since the
allotment in the family partition of the above-mentioned land, vide the
family partition deed dated 19.03.1939, Rama Reddy had been in exclusive
possession and enjoyment and was paying land revenue. Rama Reddy’s name was
also mutated in the Pahanies.
3. Plaintiffs further stated that the first defendant had it’s A.O.C.
Centre building complex in Tirumalagiri village adjoining the suit land
Survey No.60 of Kakaguda village.
The first defendant had also
requisitioned 4 acres and 28 guntas in Survey No.60 of Kakaguda Village in
the year 1971 along with the adjoining land in Tirumalagiri for extension
of A.O.C. Centre. Further, it was stated that 6th Defendant took
possession of the above-mentioned land and delivered possession of the same
to other defendants.
The 3rd Defendant later vide his letter dated
18.12.1979 sent a requisition for acquisition of 4.38 guntas in Surevy
No.60 for the extension of A.O.C. Centre. Notification was published in
the official Gazette dated 18.09.1980 and a declaration was made on
30.06.1981 and compensation was awarded to Rama Reddy vide Award dated
26.07.1982.
4. The Plaintiffs, as already stated, had entered into various sale
deeds with Rama Reddy during the year 1981-82 by which land measuring 13
acres and 08 guntas in Survey No.60, 11 acres and 04 guntas in Survey No.61
and 17 acres and 20 guntas in Survey No.62 were purchased, that is in all
41 acres and 32 guntas.
Plaintiffs further stated that the land, which was
purchased by it was vacant, but persons of the Defence Department started
making some marking on the portions of the land purchased by the plaintiff,
stating that a substantial portion of the land purchased by the plaintiff
in Survey No.60/1 and 61 belonged to the Defence Department and treated as
B-4 in their records.
Plaintiff then preferred an application dated
12.09.1983 to the District Collector under the A.P. Survey and Boundaries
Act for demarcation of boundaries.
Following that, Deputy Director of
Survey issued a notice dated 21.01.1984 calling upon the plaintiff and 3rd
Defendant to attend to the demarcation on 25.01.1984. Later, a joint
survey was conducted. The 3rd Defendant stated that land to the extent of
4 acres and 35 guntas in Survey No.60 and 61 corresponds to their G.L.R.
(General Land Register) No.445 and it is their land as per the record. The
Deputy Director of Survey, however, stated that lands in Survey Nos.60 and
61 of Kakaguda village are patta lands as per the settlement records and
vacant, abutting Tirumalagiri village boundaries to Military Pillers and
not partly covered in Survey No.60. Plaintiff later filed an application
for issuing of a certificate as per the plan prepared by the Revenue
Records under Section 19(v) of the Urban Land Ceiling Act. Plaintiff
further stated that pending that application, officers of Garrison
Engineers, on the direction of the 3rd Defendant, illegally occupied land
measuring 2 acres and 29 guntas in Survey No.60 and 4 acres and 01 guntas
in Survey No.61. Thus, a total extent of land 6 acres and 30 guntas was
encroached upon and construction was effected despite the protest by the
plaintiff. Under such circumstances, the plaintiff preferred the present
suit, the details of which have already been stated earlier.
5. The 3rd Defendant filed a written statement stating that an area of
land measuring 7 acres and 51 guntas, out of Survey No.1, 60 and 61 of
Kakaguda village comprising G.L.R. Survey No.445 of Cantonment belongs to
the first Defendant, which is locally managed and possessed by Defendant
No.3 being local representative of Defendant No.1 and D-3 and is also the
custodian of all defence records. Further, it was also stated that, as per
the G.L.R., the said land was classified as B-4 and placed under the
management of Defence Estates Officer. It was also stated that the suit
land is part of review Survey Nos.60 and 61 and the plaintiff is wrongly
claiming that the said land was purchased by it. Further, it was also
stated that the plaintiff is threatening to encroach upon another 6 guntas
of land alleged to be situated in Survey Nos.60/1 and 61. It has been
categorically stated that, as per the records maintained by the 3rd
Defendant, land measuring 7 acres and 51 guntas, forming part of G.L.R.
Survey No.445 of the Cantonment is part of Survey Nos.1, 60 and 61 of
Kakaguda village. It is owned, possessed and enjoyed by Defendant Nos.1 to
4 and 7.
6. The plaintiff, in order to establish its claim, examined PWs 1 to 4
and produced Exs. A-1 to A-85 and Exs. X-1 to X-10 besides Exs. A-86 to A-
89 on behalf of DW1. On behalf of the defendants DW1 was examined and Exs
D-1 to D-7 are produced.
7. The primary issue which came up for consideration before the trial
court was
whether the plaintiff has got ownership and possession over 6
acres and 30 guntas covered by Survey No.60/1 and 61 of Kakaguda village
for which considerable reliance was placed on the settlement record (Setwar
Ex.A-3 of 1353 Fasli).
On the other hand, the defendants placed
considerable reliance on G.L.R. Survey No.445 of the Cantonment which is
part of Survey No.1, 60 and 61 of Kakaguda village, wherein, according to
the defendants, the suit land falls.
PW2, the Deputy Inspector of Survey
stated, according to Setwar, land in Survey Nos.60, 61 and 62 is patta land
of Prakash Reddy and others and such Survey numbers corresponds to Old
Survey No.53. The evidence of PW-3 and 4 also states that the land is
covered by old Survey No.53 which figures in Survey Nos.60, 61 and 62.
Ext. A-3 Setwar, is a settlement register prepared by the Survey Officer at
the time of revised survey and settlement in the year 1358 Fasli in which
the names of the predecessors in title of the plaintiff are shown as
pattedars. In other words, Ex-A-3 is the exhibit of rights and title of
plaintiff’s predecessors in title.
8. Defedants, as already indicated, on the other hand, pleaded that the
total extent of Survey No.53 was only 33 acres and 12 guntas and if that be
so, after sub-division the extent of sub-divided survey numbers would also
remain the same, but the extent of sub-divided Survey Nos.60, 61 and 62
were increased to 41 acres and 32 guntas in the revenue records without any
notice to the defendants which according to the defendants, was
fraudulently done by one Venkata Narasimha Reddy, the original land owner
of Survey No.53 of Kakaguda village, who himself was the Patwari of
Kakaguda village.
Further, it was the stand of the Defendants that in
exercise of powers under The Secunderabad and Aurangabad Cantonment Land
Administration Rules, 1930, the G.LR. of 1933 was prepared by Captain O.M.
James after making detailed enquiries from the holder of occupancy rights
as well as general public. Further, it is also stated that certain land
within the villages were handed over by the then Nizam to British
Government for military use.
Land in question measuring 7 acres and 51
guntas in G.L.R. 1933 at Survey No.581 was used by the British Government
as murram pits and it was classified as Class-C land vested in the
Cantonment Authority.
G.L.R. 1933 was re-written in the year 1956 in view
of the provisions of Rule 3 of Cantonment Land Administration Rules, 1937
and said Survey No.581 was re-written as G.L.R. Survey No.445.
Further, in
view of the classification of the land, as stipulated in Cantonment Land
Administration rules, 1937, land pertaining to G.L.R. Survey No.445 was re-
classified as B-4 (vacant land) reserved for future military purposes and
management was transferred from cantonment authority to Defence Estate.
9. The above-mentioned facts would indicate that the plaintiff traces
their title to the various sale deeds, Ext.A-3 Setwar of 1353 Fasli and the
oral evidence of the survey officials and the defendants claim title and
possession of the land on the basis of the G.L.R.
The question that falls
for consideration is whether the evidence adduced by the plaintiff is
sufficient to establish the title to the land in question and to give a
declaration of title and possession by the civil court.
10. Shri Vikas Singh, learned senior counsel appearing for the appellants
submitted that G.L.R. 445 measuring an area of 7 acres and 51 guntas is
classified as B-4 and placed under the management of the Defence Estate
Officer. Column 7 of the G.L.R. would indicate that the landlord is the
Central Government. Out of 7 acres and 51 guntas, land admeasuring 6 acres
has been handed over to Defence Accounts Department for construction of
Defence Staff Quarters as per survey No.445/A, as per the records as early
as in 1984. Further, it was pointed out that the appellant had already
constructed approximately 300 quarters in 6 acres of land.
Learned senior
counsel submitted that since the extent of land mentioned in old Survey
No.53 as well as in the settlement and partition deed, do not tally to the
extent of land mentioned in Ext.A-3 and burden is heavy on the side of the
plaintiff to show and explain as to how the registered family settlement
and partition deed did not take place in the disputed land.
Learned senior
counsel also submitted that the High Court has committed an error in
ignoring the G.L.R. produced by the defendants, even though there is no
burden on the defendants to establish its title in a suit filed by the
plaintiff for declaration of title and possession.
11. Shri P.S. Narasimha, learned senior counsel and Shri Basava Prabhu
Patil, learned senior counsel appearing for the respondents submitted that
the city civil court as well as the High Court have correctly appreciated
and understood the legal position and correctly discarded the entries made
in the G.L.R. Learned senior counsel submitted that the correctness and
evidentiary value of G.L.R. entries have to be appreciated in the context
of the history of the Secunderabad Cantonment. Reference was made to the
provisions of Cantonment Act, 1924 and it was pointed out that the
Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930 do
not apply to the Kakaguda village.
Learned senior counsel have also
referred to Ex.A6, the Sesala Pahani for the year 1955-58, of Kakaguda
village, Ex.A7, the Pahani Patrika for the year 1971-72, Ex.A8, the Pahani
Patrika for the year 1972-73 and submitted that they would indicate that
Methurama Reddy, the predecessor in title, was the Pattedar of Survey
Nos.60 and 61 of Kakaguda village. It was pointed out that the entries made
therein have evidentiary value. Learned counsel pointed out that the
Settlement Register prepared under the Statutes and Pahanies maintained
under the Hyderabad Record of Rights in Land Regulations of 1358, Fasli
have considerable evidentiary value. Further, it was also pointed out that
the land in question is pot kharab land, which is not normally treated as
land in Section 3(j) of Ceiling Act and hance may not figure in a
Settlement or Partition Deed, hence not subjected to any revenue
assessment.
Learned senior counsel submitted that the plaintiff has
succeeded in establishing its title to the property in question, as was
found by the city civil court as well as the High Court which calls for no
interference by this Court under Article 136 of the Constitution.
12. It is trite law that, in a suit for declaration of title, burden
always lies on the plaintiff to make out and establish a clear case for
granting such a declaration and the weakness, if any, of the case set up by
the defendants would not be a ground to grant relief to the plaintiff.
13. The High Court, we notice, has taken the view that once the evidence
is let in by both the parties, the question of burden of proof pales into
insignificance and the evidence let in by both the parties is required to
be appreciated by the court in order to record its findings in respect of
each of the issues that may ultimately determine the fate of the suit.
The
High Court has also proceeded on the basis that initial burden would always
be upon the plaintiff to establish its case but if the evidence let in by
defendants in support of their case probabalises the case set up by the
plaintiff, such evidence cannot be ignored and kept out of consideration.
14. At the outset, let us examine the legal position with regard to whom
the burden of proof lies in a suit for declaration of title and possession.
This Court in Maran Mar Basselios Catholicos v. Thukalan Paulo Avira
reported in AIR1959 SC 31 observed that
“in a suit for declaration if the
plaintiffs are to succeed, they must do so on the strength of their own
title.”
In Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426,
this Court held as under:
“the onus to prove title to the property in question was on the
plaintiff. In a suit for ejectment based on title it was incumbent
on the part of the court of appeal first to record a finding on the
claim of title to the suit land made on behalf of the plaintiff.
The court is bound to enquire or investigate that question first
before going into any other question that may arise in a suit.”
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not.
We are of the view that even
if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
16. We notice that the trial court as well as the High Court rather than
examining that question in depth, as to whether the plaintiffs have
succeeded in establishing their title on the scheduled suit land, went on
to examine in depth the weakness of the defendants title.
Defendants
relied on the entries in the GLR and their possession or re-possession over
the suit land to non-suit the Plaintiffs. The court went on to examine the
correctness and evidentiary value of the entries in the GLR in the context
of the history and scope of Cantonment Act, 1924, the Cantonment Land
Administration Rules, 1925 and tried to establish that no reliance could be
placed on the GLR.
The question is not whether the GLR could be accepted
or not, the question is, whether the plaintiff could prove its title over
the suit property in question.
The entries in the GLR by themselves may
not constitute title, but the question is whether entries made in Ext.A-3
would confer title or not on the Plaintiff.
17. This Court in several Judgments has held that the revenue records
does not confer title.
In Corporation of the City of Bangalore v. M.
Papaiah and another (1989) 3 SCC 612
held that “it is firmly established
that revenue records are not documents of title, and the question of
interpretation of document not being a document of title is not a question
of law.”
In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349
this Court has held that “that the entries in jamabandi are not proof of
title”.
In State of Himachal Pradesh v. Keshav Ram and others (1996) 11
SCC 257 this Court held that “the entries in the revenue papers, by no
stretch of imagination can form the basis for declaration of title in
favour of the plaintiff.”
18. The Plaintiff has also maintained the stand that their predecessor-in-
interest was the Pattadar of the suit land.
In a given case, the
conferment of Patta as such does not confer title.
Reference may be made
to the judgment of this Court in
Syndicate Bank v. Estate Officer &
Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village
Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
19. We notice that the above principle laid down by this Court sought to
be distinguished by the High Court on the ground that none of the above-
mentioned judgments, there is any reference to any statutory provisions
under which revenue records referred therein, namely, revenue register,
settlement register, jamabandi registers are maintained.
The High Court
took the view that Ext.A-3 has evidentiary value since the same has been
prepared on the basis of Hyderabad record of Rights in Land Regulation,
1358 Fasli.
It was also noticed that column 1 to 19 of Pahani Patrika is
nothing but record of rights and the entries in column 1 to 19 in Pahani
Patrika shall be deemed to be entries made and maintained under
Regulations.
20. We are of the view that even if the entries in the Record of Rights
carry evidentiary value, that itself would not confer any title on the
plaintiff on the suit land in question.
Ext.X-1 is Classer Register of 1347 which according to the trial court, speaks of the ownership of the plaintiff’s vendor’s property.
We are of the view that these entries, as
such, would not confer any title.
Plaintiffs have to show, independent of
those entries, that the plaintiff’s predecessors had title over the
property in question and it is that property which they have purchased.
The only document that has been produced before the court was the
registered family settlement and partition deed dated 11.12.1939 of their
predecessor in interest, wherein, admittedly, the suit land in question has
not been mentioned.
21. Learned senior counsel appearing for the respondents submitted that
the land in question is pot kharab and since no tax is being paid, the same
would not normally be mentioned in the partition deed or settlement deed.
The A.P. Survey and Settlement Mannual, Chapter XIII deals with pot kharab
land, which is generally a non-cultivable land and if the predecessors in
interest had ownership over this pot kharab land, the suit land, we fail to
see, why there is no reference at all to the family settlement and
partition deed dated 11.12.1939.
Admittedly, the predecessor in interest
of the plaintiff got this property in question through the above-mentioned
family settlement and partition deed.
Conspicuous absence of the suit land
in question in the above-mentioned deed would cast doubt about the
ownership and title of the plaintiffs over the suit land in question.
No
acceptable explanation has been given by the plaintiff to explain away the
conspicuous omission of the suit land in the registered family settlement
and partition deed.
Facts would also clearly indicate that in Ext-A1, the
suit land has been described in old Survey No.53 which was allotted to the
plaintiff’s predecessors in title.
It is the common case of the parties
that Survey No.53 was sub-divided into Survey Nos.60, 61 and 63.
Admittedly, the old Survey No.53 takes in only 33 acres and 12 guntas, then
naturally, Survey Nos.60, 61 and 63 cannot be more than that extent.
Further, if pot kharab land is not recorded in the revenue record, it would
be so even in case of sub-division of Old Survey No. 53.
The only
explanation was that, since the suit land being pot kharab land, it might
not have been mentioned in Ex.A.
22. A family settlement is based generally on the assumption that there
was an antecedent title of some kind in the purchase and the arrangement
acknowledges and defines what that title was. In a family settlement-cum-
partition, the parties may define the shares in the joint property and may
either choose to divide the property by metes and bounds or may continue to
live together and enjoy the property as common.
So far as this case is
concerned, Ex.A1 is totally silent as to whose share the suit land will
fall and who will enjoy it.
Needless to say that the burden is on the
plaintiff to explain away those factors, but the plaintiff has not
succeeded.
On other hand, much emphasis has been placed on the failure on
the part of the defendants to show that the applicability of the GLR.
The
defendant maintained the stand that the entries made in GLR, maintained
under the Cantonment Land Administration Rules, 1937, in the regular course
of administration of the cantonment lands, are admissible in evidence and
the entries made therein will prevail over the records maintained under the
various enactment, like the Andhra Pradesh (Telangana Area) Land Revenue
Act, 1317 Falsi, the Hyderabad Record of Rights in Land Regulation, 1358
Falsi, the Hyderabad Record of Rights Rules, 1956 etc.
In order to
establish that position, reliance was placed on the judgments of this Court
in Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148, Union of India
& Ors. v. Kamla Verma (2010) 13 SCC 511, Chief Executive Officer v.
Surendra Kumar Vakil & Ors. (1999) 3 SCC 555 and Secunderabad Cantonment
Board, Andhra Circle, Secundrabad v. Mohd. Mohiuddin & Ors. (2003) 12 SCC
315.
Both, the trial Court and the High Court made a detailed exercise to
find out whether the GLR Register maintained under the Cantonment Land
Administration Rules, 1937 and the entries made there under will have more
evidentiary value than the Revenue records made by the Survey Department of
the State Government. In our view, such an exercise was totally
unnecessary. Rather than finding out the weakness of GLR, the Courts ought
to have examined the soundness of the plaintiff case. We reiterate that
the plaintiff has to succeed only on the strength of his case and not on
the weakness of the case set up by the defendants in a suit for declaration
of title and possession.
23. In such circumstances, we are of the view that the plaintiff has not
succeeded in establishing his title and possession of the suit land in
question. The appeal is, therefore, allowed and the judgment of the trial
court, affirmed by the High Court, is set aside. However, there will be no
order as to costs.
…..………………………J.
(K.S. Radhakrishnan)
………………………….J.
(A.K. Sikri)
New Delhi,
January 07, 2014
Act, 1317 Falsi, the Hyderabad Record of Rights in Land Regulation, 1358
Falsi, the Hyderabad Record of Rights Rules, 1956 etc. - Lower courts committed wrong as they desired to find out the faults of GLR records and rules and Act instead of verifying the plaintiff's records =
The Vasavi Co-op. Housing Society Ltd., the first respondent herein
instituted a suit No.794 of 1988 before the City Civil Court, Hyderabad,
seeking a
declaration of title over land comprising 6 acres 30 guntas in
Survey No.60/1 and 61 of Kakaguda village and recovery of the vacant
possession from Defendant Nos.1 to 3 and 7, the appellants herein, after
removal of the structure made therein by them.
The plaintiff has also
sought for an injunction restraining the defendants from interfering with
the above-mentioned land and also for other consequential refliefs.
The
City Civil Court vide its judgment dated 31.07.1996 decreed the suit, as
prayed for, against which the appellants preferred C.C.C.A. No.123 of 1996
before the High Court of Andhra Pradesh at Hyderabad.
The High Court also
affirmed the judgment of the trial Court on 6.9.2002, but noticed that the
appellant had made large scale construction of quarters for the Defence
Accounts Department, therefore, it would be in the interest of justice that
an opportunity be given to the appellants to provide alternative suitable
extent of land in lieu of the scheduled suit land, for which eight months’
time was granted from the date of the judgment.=
The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not.
We are of the view that even
if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
16. We notice that the trial court as well as the High Court rather than
examining that question in depth, as to whether the plaintiffs have
succeeded in establishing their title on the scheduled suit land, went on
to examine in depth the weakness of the defendants title.
Defendants
relied on the entries in the GLR and their possession or re-possession over
the suit land to non-suit the Plaintiffs. The court went on to examine the
correctness and evidentiary value of the entries in the GLR in the context
of the history and scope of Cantonment Act, 1924, the Cantonment Land
Administration Rules, 1925 and tried to establish that no reliance could be
placed on the GLR.
The question is not whether the GLR could be accepted
or not, the question is, whether the plaintiff could prove its title over
the suit property in question.
The entries in the GLR by themselves may
not constitute title, but the question is whether entries made in Ext.A-3
would confer title or not on the Plaintiff.
17. This Court in several Judgments has held that the revenue records
does not confer title.
In Corporation of the City of Bangalore v. M.
Papaiah and another (1989) 3 SCC 612
held that “it is firmly established
that revenue records are not documents of title, and the question of
interpretation of document not being a document of title is not a question
of law.”
In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349
this Court has held that “that the entries in jamabandi are not proof of
title”.
In State of Himachal Pradesh v. Keshav Ram and others (1996) 11
SCC 257 this Court held that “the entries in the revenue papers, by no
stretch of imagination can form the basis for declaration of title in
favour of the plaintiff.”
18. The Plaintiff has also maintained the stand that their predecessor-in-
interest was the Pattadar of the suit land.
In a given case, the
conferment of Patta as such does not confer title.
Reference may be made
to the judgment of this Court in
Syndicate Bank v. Estate Officer &
Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village
Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
19. We notice that the above principle laid down by this Court sought to
be distinguished by the High Court on the ground that none of the above-
mentioned judgments, there is any reference to any statutory provisions
under which revenue records referred therein, namely, revenue register,
settlement register, jamabandi registers are maintained.
The High Court
took the view that Ext.A-3 has evidentiary value since the same has been
prepared on the basis of Hyderabad record of Rights in Land Regulation,
1358 Fasli.
It was also noticed that column 1 to 19 of Pahani Patrika is
nothing but record of rights and the entries in column 1 to 19 in Pahani
Patrika shall be deemed to be entries made and maintained under
Regulations.
The
defendant maintained the stand that the entries made in GLR, maintained
under the Cantonment Land Administration Rules, 1937, in the regular course
of administration of the cantonment lands, are admissible in evidence and
the entries made therein will prevail over the records maintained under the
various enactment, like the Andhra Pradesh (Telangana Area) Land Revenue
Act, 1317 Falsi, the Hyderabad Record of Rights in Land Regulation, 1358
Falsi, the Hyderabad Record of Rights Rules, 1956 etc.
In order to
establish that position, reliance was placed on the judgments of this Court
in Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148, Union of India
& Ors. v. Kamla Verma (2010) 13 SCC 511, Chief Executive Officer v.
Surendra Kumar Vakil & Ors. (1999) 3 SCC 555 and Secunderabad Cantonment
Board, Andhra Circle, Secundrabad v. Mohd. Mohiuddin & Ors. (2003) 12 SCC
315.
Both, the trial Court and the High Court made a detailed exercise to
find out whether the GLR Register maintained under the Cantonment Land
Administration Rules, 1937 and the entries made there under will have more
evidentiary value than the Revenue records made by the Survey Department of
the State Government. In our view, such an exercise was totally
unnecessary. Rather than finding out the weakness of GLR, the Courts ought
to have examined the soundness of the plaintiff case. We reiterate that
the plaintiff has to succeed only on the strength of his case and not on
the weakness of the case set up by the defendants in a suit for declaration
of title and possession.
23. In such circumstances, we are of the view that the plaintiff has not
succeeded in establishing his title and possession of the suit land in
question. The appeal is, therefore, allowed and the judgment of the trial
court, affirmed by the High Court, is set aside. However, there will be no
order as to costs.
2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41136
REPORTABLEIN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4702 OF 2004
Union of India and others … Appellants
Versus
Vasavi Co-op. Housing Society
Ltd. and others … Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
1. The Vasavi Co-op. Housing Society Ltd., the first respondent herein
instituted a suit No.794 of 1988 before the City Civil Court, Hyderabad,
seeking a
declaration of title over land comprising 6 acres 30 guntas in
Survey No.60/1 and 61 of Kakaguda village and recovery of the vacant
possession from Defendant Nos.1 to 3 and 7, the appellants herein, after
removal of the structure made therein by them.
The plaintiff has also
sought for an injunction restraining the defendants from interfering with
the above-mentioned land and also for other consequential refliefs.
The
City Civil Court vide its judgment dated 31.07.1996 decreed the suit, as
prayed for, against which the appellants preferred C.C.C.A. No.123 of 1996
before the High Court of Andhra Pradesh at Hyderabad.
The High Court also
affirmed the judgment of the trial Court on 6.9.2002, but noticed that the
appellant had made large scale construction of quarters for the Defence
Accounts Department, therefore, it would be in the interest of justice that
an opportunity be given to the appellants to provide alternative suitable
extent of land in lieu of the scheduled suit land, for which eight months’
time was granted from the date of the judgment.
Aggrieved by the same, the
Union of India and others have filed the present appeal.
FACTS
2. The plaintiff’s case is that it had purchased the land situated in
Survey Nos.60, 61 and 62 of Kakaguda Village from Pattedar B.M. Rama Reddy
and his sons and others during the year 1981-82.
The suit land in question
forms part of Survey Nos.60 and 61. The suit land in question belonged to
the family of B. Venkata Narasimha Reddy consisting of himself and his sons
Anna Reddy, B.V. Pulla Reddy and B.M. Rama Reddy and Anna Reddy’s son
Prakash Reddy.
Land in old Survey No.53 was allotted to Rama Reddy vide
registered family settlement and partition deed dated 11.12.1939 (Ex.A2).
In the subsequent re-settlement of village (Setwar of 1353 FASLI), the land
in Survey No.53 was re-numbered as Survey No.60, 61 and 62.
Ever since the
allotment in the family partition of the above-mentioned land, vide the
family partition deed dated 19.03.1939, Rama Reddy had been in exclusive
possession and enjoyment and was paying land revenue. Rama Reddy’s name was
also mutated in the Pahanies.
3. Plaintiffs further stated that the first defendant had it’s A.O.C.
Centre building complex in Tirumalagiri village adjoining the suit land
Survey No.60 of Kakaguda village.
The first defendant had also
requisitioned 4 acres and 28 guntas in Survey No.60 of Kakaguda Village in
the year 1971 along with the adjoining land in Tirumalagiri for extension
of A.O.C. Centre. Further, it was stated that 6th Defendant took
possession of the above-mentioned land and delivered possession of the same
to other defendants.
The 3rd Defendant later vide his letter dated
18.12.1979 sent a requisition for acquisition of 4.38 guntas in Surevy
No.60 for the extension of A.O.C. Centre. Notification was published in
the official Gazette dated 18.09.1980 and a declaration was made on
30.06.1981 and compensation was awarded to Rama Reddy vide Award dated
26.07.1982.
4. The Plaintiffs, as already stated, had entered into various sale
deeds with Rama Reddy during the year 1981-82 by which land measuring 13
acres and 08 guntas in Survey No.60, 11 acres and 04 guntas in Survey No.61
and 17 acres and 20 guntas in Survey No.62 were purchased, that is in all
41 acres and 32 guntas.
Plaintiffs further stated that the land, which was
purchased by it was vacant, but persons of the Defence Department started
making some marking on the portions of the land purchased by the plaintiff,
stating that a substantial portion of the land purchased by the plaintiff
in Survey No.60/1 and 61 belonged to the Defence Department and treated as
B-4 in their records.
Plaintiff then preferred an application dated
12.09.1983 to the District Collector under the A.P. Survey and Boundaries
Act for demarcation of boundaries.
Following that, Deputy Director of
Survey issued a notice dated 21.01.1984 calling upon the plaintiff and 3rd
Defendant to attend to the demarcation on 25.01.1984. Later, a joint
survey was conducted. The 3rd Defendant stated that land to the extent of
4 acres and 35 guntas in Survey No.60 and 61 corresponds to their G.L.R.
(General Land Register) No.445 and it is their land as per the record. The
Deputy Director of Survey, however, stated that lands in Survey Nos.60 and
61 of Kakaguda village are patta lands as per the settlement records and
vacant, abutting Tirumalagiri village boundaries to Military Pillers and
not partly covered in Survey No.60. Plaintiff later filed an application
for issuing of a certificate as per the plan prepared by the Revenue
Records under Section 19(v) of the Urban Land Ceiling Act. Plaintiff
further stated that pending that application, officers of Garrison
Engineers, on the direction of the 3rd Defendant, illegally occupied land
measuring 2 acres and 29 guntas in Survey No.60 and 4 acres and 01 guntas
in Survey No.61. Thus, a total extent of land 6 acres and 30 guntas was
encroached upon and construction was effected despite the protest by the
plaintiff. Under such circumstances, the plaintiff preferred the present
suit, the details of which have already been stated earlier.
5. The 3rd Defendant filed a written statement stating that an area of
land measuring 7 acres and 51 guntas, out of Survey No.1, 60 and 61 of
Kakaguda village comprising G.L.R. Survey No.445 of Cantonment belongs to
the first Defendant, which is locally managed and possessed by Defendant
No.3 being local representative of Defendant No.1 and D-3 and is also the
custodian of all defence records. Further, it was also stated that, as per
the G.L.R., the said land was classified as B-4 and placed under the
management of Defence Estates Officer. It was also stated that the suit
land is part of review Survey Nos.60 and 61 and the plaintiff is wrongly
claiming that the said land was purchased by it. Further, it was also
stated that the plaintiff is threatening to encroach upon another 6 guntas
of land alleged to be situated in Survey Nos.60/1 and 61. It has been
categorically stated that, as per the records maintained by the 3rd
Defendant, land measuring 7 acres and 51 guntas, forming part of G.L.R.
Survey No.445 of the Cantonment is part of Survey Nos.1, 60 and 61 of
Kakaguda village. It is owned, possessed and enjoyed by Defendant Nos.1 to
4 and 7.
6. The plaintiff, in order to establish its claim, examined PWs 1 to 4
and produced Exs. A-1 to A-85 and Exs. X-1 to X-10 besides Exs. A-86 to A-
89 on behalf of DW1. On behalf of the defendants DW1 was examined and Exs
D-1 to D-7 are produced.
7. The primary issue which came up for consideration before the trial
court was
whether the plaintiff has got ownership and possession over 6
acres and 30 guntas covered by Survey No.60/1 and 61 of Kakaguda village
for which considerable reliance was placed on the settlement record (Setwar
Ex.A-3 of 1353 Fasli).
On the other hand, the defendants placed
considerable reliance on G.L.R. Survey No.445 of the Cantonment which is
part of Survey No.1, 60 and 61 of Kakaguda village, wherein, according to
the defendants, the suit land falls.
PW2, the Deputy Inspector of Survey
stated, according to Setwar, land in Survey Nos.60, 61 and 62 is patta land
of Prakash Reddy and others and such Survey numbers corresponds to Old
Survey No.53. The evidence of PW-3 and 4 also states that the land is
covered by old Survey No.53 which figures in Survey Nos.60, 61 and 62.
Ext. A-3 Setwar, is a settlement register prepared by the Survey Officer at
the time of revised survey and settlement in the year 1358 Fasli in which
the names of the predecessors in title of the plaintiff are shown as
pattedars. In other words, Ex-A-3 is the exhibit of rights and title of
plaintiff’s predecessors in title.
8. Defedants, as already indicated, on the other hand, pleaded that the
total extent of Survey No.53 was only 33 acres and 12 guntas and if that be
so, after sub-division the extent of sub-divided survey numbers would also
remain the same, but the extent of sub-divided Survey Nos.60, 61 and 62
were increased to 41 acres and 32 guntas in the revenue records without any
notice to the defendants which according to the defendants, was
fraudulently done by one Venkata Narasimha Reddy, the original land owner
of Survey No.53 of Kakaguda village, who himself was the Patwari of
Kakaguda village.
Further, it was the stand of the Defendants that in
exercise of powers under The Secunderabad and Aurangabad Cantonment Land
Administration Rules, 1930, the G.LR. of 1933 was prepared by Captain O.M.
James after making detailed enquiries from the holder of occupancy rights
as well as general public. Further, it is also stated that certain land
within the villages were handed over by the then Nizam to British
Government for military use.
Land in question measuring 7 acres and 51
guntas in G.L.R. 1933 at Survey No.581 was used by the British Government
as murram pits and it was classified as Class-C land vested in the
Cantonment Authority.
G.L.R. 1933 was re-written in the year 1956 in view
of the provisions of Rule 3 of Cantonment Land Administration Rules, 1937
and said Survey No.581 was re-written as G.L.R. Survey No.445.
Further, in
view of the classification of the land, as stipulated in Cantonment Land
Administration rules, 1937, land pertaining to G.L.R. Survey No.445 was re-
classified as B-4 (vacant land) reserved for future military purposes and
management was transferred from cantonment authority to Defence Estate.
9. The above-mentioned facts would indicate that the plaintiff traces
their title to the various sale deeds, Ext.A-3 Setwar of 1353 Fasli and the
oral evidence of the survey officials and the defendants claim title and
possession of the land on the basis of the G.L.R.
The question that falls
for consideration is whether the evidence adduced by the plaintiff is
sufficient to establish the title to the land in question and to give a
declaration of title and possession by the civil court.
10. Shri Vikas Singh, learned senior counsel appearing for the appellants
submitted that G.L.R. 445 measuring an area of 7 acres and 51 guntas is
classified as B-4 and placed under the management of the Defence Estate
Officer. Column 7 of the G.L.R. would indicate that the landlord is the
Central Government. Out of 7 acres and 51 guntas, land admeasuring 6 acres
has been handed over to Defence Accounts Department for construction of
Defence Staff Quarters as per survey No.445/A, as per the records as early
as in 1984. Further, it was pointed out that the appellant had already
constructed approximately 300 quarters in 6 acres of land.
Learned senior
counsel submitted that since the extent of land mentioned in old Survey
No.53 as well as in the settlement and partition deed, do not tally to the
extent of land mentioned in Ext.A-3 and burden is heavy on the side of the
plaintiff to show and explain as to how the registered family settlement
and partition deed did not take place in the disputed land.
Learned senior
counsel also submitted that the High Court has committed an error in
ignoring the G.L.R. produced by the defendants, even though there is no
burden on the defendants to establish its title in a suit filed by the
plaintiff for declaration of title and possession.
11. Shri P.S. Narasimha, learned senior counsel and Shri Basava Prabhu
Patil, learned senior counsel appearing for the respondents submitted that
the city civil court as well as the High Court have correctly appreciated
and understood the legal position and correctly discarded the entries made
in the G.L.R. Learned senior counsel submitted that the correctness and
evidentiary value of G.L.R. entries have to be appreciated in the context
of the history of the Secunderabad Cantonment. Reference was made to the
provisions of Cantonment Act, 1924 and it was pointed out that the
Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930 do
not apply to the Kakaguda village.
Learned senior counsel have also
referred to Ex.A6, the Sesala Pahani for the year 1955-58, of Kakaguda
village, Ex.A7, the Pahani Patrika for the year 1971-72, Ex.A8, the Pahani
Patrika for the year 1972-73 and submitted that they would indicate that
Methurama Reddy, the predecessor in title, was the Pattedar of Survey
Nos.60 and 61 of Kakaguda village. It was pointed out that the entries made
therein have evidentiary value. Learned counsel pointed out that the
Settlement Register prepared under the Statutes and Pahanies maintained
under the Hyderabad Record of Rights in Land Regulations of 1358, Fasli
have considerable evidentiary value. Further, it was also pointed out that
the land in question is pot kharab land, which is not normally treated as
land in Section 3(j) of Ceiling Act and hance may not figure in a
Settlement or Partition Deed, hence not subjected to any revenue
assessment.
Learned senior counsel submitted that the plaintiff has
succeeded in establishing its title to the property in question, as was
found by the city civil court as well as the High Court which calls for no
interference by this Court under Article 136 of the Constitution.
12. It is trite law that, in a suit for declaration of title, burden
always lies on the plaintiff to make out and establish a clear case for
granting such a declaration and the weakness, if any, of the case set up by
the defendants would not be a ground to grant relief to the plaintiff.
13. The High Court, we notice, has taken the view that once the evidence
is let in by both the parties, the question of burden of proof pales into
insignificance and the evidence let in by both the parties is required to
be appreciated by the court in order to record its findings in respect of
each of the issues that may ultimately determine the fate of the suit.
The
High Court has also proceeded on the basis that initial burden would always
be upon the plaintiff to establish its case but if the evidence let in by
defendants in support of their case probabalises the case set up by the
plaintiff, such evidence cannot be ignored and kept out of consideration.
14. At the outset, let us examine the legal position with regard to whom
the burden of proof lies in a suit for declaration of title and possession.
This Court in Maran Mar Basselios Catholicos v. Thukalan Paulo Avira
reported in AIR1959 SC 31 observed that
“in a suit for declaration if the
plaintiffs are to succeed, they must do so on the strength of their own
title.”
In Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426,
this Court held as under:
“the onus to prove title to the property in question was on the
plaintiff. In a suit for ejectment based on title it was incumbent
on the part of the court of appeal first to record a finding on the
claim of title to the suit land made on behalf of the plaintiff.
The court is bound to enquire or investigate that question first
before going into any other question that may arise in a suit.”
15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not.
We are of the view that even
if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.
16. We notice that the trial court as well as the High Court rather than
examining that question in depth, as to whether the plaintiffs have
succeeded in establishing their title on the scheduled suit land, went on
to examine in depth the weakness of the defendants title.
Defendants
relied on the entries in the GLR and their possession or re-possession over
the suit land to non-suit the Plaintiffs. The court went on to examine the
correctness and evidentiary value of the entries in the GLR in the context
of the history and scope of Cantonment Act, 1924, the Cantonment Land
Administration Rules, 1925 and tried to establish that no reliance could be
placed on the GLR.
The question is not whether the GLR could be accepted
or not, the question is, whether the plaintiff could prove its title over
the suit property in question.
The entries in the GLR by themselves may
not constitute title, but the question is whether entries made in Ext.A-3
would confer title or not on the Plaintiff.
17. This Court in several Judgments has held that the revenue records
does not confer title.
In Corporation of the City of Bangalore v. M.
Papaiah and another (1989) 3 SCC 612
held that “it is firmly established
that revenue records are not documents of title, and the question of
interpretation of document not being a document of title is not a question
of law.”
In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349
this Court has held that “that the entries in jamabandi are not proof of
title”.
In State of Himachal Pradesh v. Keshav Ram and others (1996) 11
SCC 257 this Court held that “the entries in the revenue papers, by no
stretch of imagination can form the basis for declaration of title in
favour of the plaintiff.”
18. The Plaintiff has also maintained the stand that their predecessor-in-
interest was the Pattadar of the suit land.
In a given case, the
conferment of Patta as such does not confer title.
Reference may be made
to the judgment of this Court in
Syndicate Bank v. Estate Officer &
Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village
Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
19. We notice that the above principle laid down by this Court sought to
be distinguished by the High Court on the ground that none of the above-
mentioned judgments, there is any reference to any statutory provisions
under which revenue records referred therein, namely, revenue register,
settlement register, jamabandi registers are maintained.
The High Court
took the view that Ext.A-3 has evidentiary value since the same has been
prepared on the basis of Hyderabad record of Rights in Land Regulation,
1358 Fasli.
It was also noticed that column 1 to 19 of Pahani Patrika is
nothing but record of rights and the entries in column 1 to 19 in Pahani
Patrika shall be deemed to be entries made and maintained under
Regulations.
20. We are of the view that even if the entries in the Record of Rights
carry evidentiary value, that itself would not confer any title on the
plaintiff on the suit land in question.
Ext.X-1 is Classer Register of 1347 which according to the trial court, speaks of the ownership of the plaintiff’s vendor’s property.
We are of the view that these entries, as
such, would not confer any title.
Plaintiffs have to show, independent of
those entries, that the plaintiff’s predecessors had title over the
property in question and it is that property which they have purchased.
The only document that has been produced before the court was the
registered family settlement and partition deed dated 11.12.1939 of their
predecessor in interest, wherein, admittedly, the suit land in question has
not been mentioned.
21. Learned senior counsel appearing for the respondents submitted that
the land in question is pot kharab and since no tax is being paid, the same
would not normally be mentioned in the partition deed or settlement deed.
The A.P. Survey and Settlement Mannual, Chapter XIII deals with pot kharab
land, which is generally a non-cultivable land and if the predecessors in
interest had ownership over this pot kharab land, the suit land, we fail to
see, why there is no reference at all to the family settlement and
partition deed dated 11.12.1939.
Admittedly, the predecessor in interest
of the plaintiff got this property in question through the above-mentioned
family settlement and partition deed.
Conspicuous absence of the suit land
in question in the above-mentioned deed would cast doubt about the
ownership and title of the plaintiffs over the suit land in question.
No
acceptable explanation has been given by the plaintiff to explain away the
conspicuous omission of the suit land in the registered family settlement
and partition deed.
Facts would also clearly indicate that in Ext-A1, the
suit land has been described in old Survey No.53 which was allotted to the
plaintiff’s predecessors in title.
It is the common case of the parties
that Survey No.53 was sub-divided into Survey Nos.60, 61 and 63.
Admittedly, the old Survey No.53 takes in only 33 acres and 12 guntas, then
naturally, Survey Nos.60, 61 and 63 cannot be more than that extent.
Further, if pot kharab land is not recorded in the revenue record, it would
be so even in case of sub-division of Old Survey No. 53.
The only
explanation was that, since the suit land being pot kharab land, it might
not have been mentioned in Ex.A.
22. A family settlement is based generally on the assumption that there
was an antecedent title of some kind in the purchase and the arrangement
acknowledges and defines what that title was. In a family settlement-cum-
partition, the parties may define the shares in the joint property and may
either choose to divide the property by metes and bounds or may continue to
live together and enjoy the property as common.
So far as this case is
concerned, Ex.A1 is totally silent as to whose share the suit land will
fall and who will enjoy it.
Needless to say that the burden is on the
plaintiff to explain away those factors, but the plaintiff has not
succeeded.
On other hand, much emphasis has been placed on the failure on
the part of the defendants to show that the applicability of the GLR.
The
defendant maintained the stand that the entries made in GLR, maintained
under the Cantonment Land Administration Rules, 1937, in the regular course
of administration of the cantonment lands, are admissible in evidence and
the entries made therein will prevail over the records maintained under the
various enactment, like the Andhra Pradesh (Telangana Area) Land Revenue
Act, 1317 Falsi, the Hyderabad Record of Rights in Land Regulation, 1358
Falsi, the Hyderabad Record of Rights Rules, 1956 etc.
In order to
establish that position, reliance was placed on the judgments of this Court
in Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148, Union of India
& Ors. v. Kamla Verma (2010) 13 SCC 511, Chief Executive Officer v.
Surendra Kumar Vakil & Ors. (1999) 3 SCC 555 and Secunderabad Cantonment
Board, Andhra Circle, Secundrabad v. Mohd. Mohiuddin & Ors. (2003) 12 SCC
315.
Both, the trial Court and the High Court made a detailed exercise to
find out whether the GLR Register maintained under the Cantonment Land
Administration Rules, 1937 and the entries made there under will have more
evidentiary value than the Revenue records made by the Survey Department of
the State Government. In our view, such an exercise was totally
unnecessary. Rather than finding out the weakness of GLR, the Courts ought
to have examined the soundness of the plaintiff case. We reiterate that
the plaintiff has to succeed only on the strength of his case and not on
the weakness of the case set up by the defendants in a suit for declaration
of title and possession.
23. In such circumstances, we are of the view that the plaintiff has not
succeeded in establishing his title and possession of the suit land in
question. The appeal is, therefore, allowed and the judgment of the trial
court, affirmed by the High Court, is set aside. However, there will be no
order as to costs.
…..………………………J.
(K.S. Radhakrishnan)
………………………….J.
(A.K. Sikri)
New Delhi,
January 07, 2014
