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Monday, October 19, 2015

Judicial Notice - The learned Judge of the High Court in the impugned judgment has taken judicial notice of the fact that the Government, now-a–days is claiming property by rounding off the names of Pattadars and others in the Revenue Records without referring to any proceedings, which fact has also been observed in a Division Bench judgment of the Andhra Pradesh High Court in the case of Syed Ahmad Hasan, 2011(4) ALT 262.; In the instant case, the fact is totally reverse. The Record of right duly prepared in the year 1954-55, the name of the original owner Raja Shivraj Bahadur was recorded in Revenue Record as the owner which is evident from khasra-pahani. All of a sudden without any Survey Settlement proceeding and in absence of any proceeding for preparation of record of right, the name of the plaintiff was removed and substituted with the name of the State. Hence, the aforesaid decision of this Court rather supports the case of the plaintiff.;Exempted land under Jagir Abolition Act - 17 and 18 of the Jagir Abolition Regulation read as under:- “17. Home-farms.-- (1) Nothing in this Regulation shall affect the home farm (seri Khudkasht) of a Jagirdar or Hissedar which, subject to any law for the time being in force, he shall continue to hold, - (a) where the village in which the farm is situate has been brought under survey and settlement whether before or after the appointed day, in accordance with the terms recorded at the time of such survey and settlement; (b) for so long as the village has not been brought under survey and settlement, in accordance with the terms and conditions prevailing immediately before the appointed day. (2) For the purposes of sub-section (1) the extent and boundaries of the home-farm of a Jagirdar or Hissedar shall be such as the Jagir Administrator may by order determine : Provided that no forest or waste land shall be included in any home-farm. 18. Personal property and liabilities not affected.-- Nothing in this Regulation shall affect, - (a) the personal property of a Jagirdar or Hissedar or any property other than the Jagir held by a Jagirdar on behalf of the Hissedar, or (b) any liability of a Jagirdar or Hissedar in respect of any loan taken from Government.” 83. From bare perusal of the aforesaid provision it is clear that such land which has been brought under survey settlement and record of right has been prepared in the name of the land owner in respect of self cultivated land shall have no effect on the provisions of Jagir Abolition Regulations.; whether appeal was abated by the death ? - 1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-à-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. xxxxx 37. For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.2963 OF 2013
Government of Andhra Pradesh
Thr. Principal Secretary and others          …Appellant(s)

                                   versus
Pratap Karan and others                      …Respondent(s)
                                    with
                        CIVIL APPEAL No. 2964 OF 2013
Andhra Pradesh Industrial
Infrastructure Corporation Limited             …Appellant(s)

                                   versus
Pratap Karan and others                      …Respondent(s)
                                  JUDGMENT

M. Y. EQBAL, J.



This appeal being C.A.No.2963 of 2013 arises out of the judgment  and  order
dated 19.12.2011 passed by the  3rd  Judge  of  the  High  Court  of  Andhra
Pradesh to whom the matter was referred to by the Chief  Justice  for  final
decision against the conflicting judgments passed by the two judges  of  the
said High Court.  The  appeal  was  preferred  by  the  plaintiff-respondent
before the High Court which was heard by a Division Bench.  The  two  judges
of the Division Bench delivered two conflicting judgments, one  by  allowing
the appeal and setting aside the judgment of the trial court and  the  other
by dismissing the appeal and affirming the  judgment  of  the  trial  court.
The 3rd Judge to whom the matter was referred, passed the impugned  judgment
upholding the judgment of one of the learned judges and allowing the  appeal
and decreeing the suit of the plaintiff-respondent.   Another  appeal  being
C.A.No.2964 of 2013 has been filed by the transferee of  the  suit  property
during the pendency of the appeal  in  the  High  Court.   Since  leave  was
granted, both the appeals have been heard and disposed of by this judgment.



2.    The plaintiffs (hereinafter referred  to  as  the  respondents)  filed
Title Suit  No.  274  of  2007  for  rectification  of  Revenue  Records  by
incorporating their names as owners and possessors in respect  of  the  suit
land  comprised  within  Survey  No.613  of  Nadergul  Village,  Saroornagar
Mandal, Rangareddy District, by deleting the duplicate Sy.No.119 in  respect
of portion of the land of the said Village.



3.    The factual matrix of the  case  is  that  the  contesting  plaintiff-
respondents filed the above suit stating that  their  predecessor  in  title
late Raja Shivraj Dharmavanth Bahadur  (hereinafter  referred  to  as  “late
Raja”) was the pattadar and absolute owner of the  suit  schedule  property.
The succession of the estate of late Raja was declared by a Royal Firman  of
the Nizam in favour of Raja Dhiraj Karan, late Raja Dharam Karan, late  Raja
Mehboob Karan and the heirs of  Raja  Manohar  Raj  vide  Firman  dated  4th
Ramzan 1359 Hizri {Ex.A1).  On the death of late Raja issueless in the  year
1917, the succession of his estate  was  granted  by  the  Royal  Firman  in
favour of the sons of his two brothers Raja Lokchan Chand  and  Raja  Murali
Manohar Bahadur by another Royal Firman dated 5th Safar 13 1361  Hizri,  the
succession of estate of late Raja Dhiraj Karan was granted in  the  name  of
Pratap  Karan  who  is  one  of  the  plaintiffs,  under  Ex.A2.  The  other
plaintiffs are the successors of legal heirs  of  Raja  Dharam  Karan,  Raja
Mehboob Karan and Raja Manohar Raj.



4.    It has been contended on  behalf  of  the  plaintiff-Respondents  that
they are,  therefore,  the  absolute  owners  and  possessors  of  the  suit
schedule land. The land in Nadergul Village was  subject  matter  of  survey
and settlement of the year 1326 Fasli (year 1917) and under the said  survey
and settlement the lands of late Raja were part of Khata  No.1  wherein  the
suit schedule land was having Survey Number 579.  Late Raja’s name was  also
shown as Khatadar in Setwar and  Vasul  Baqui.  Thus,  the  suit  lands  are
private lands of late Raja. The revisional survey of  Nadergul  Village  was
given effect in the year 1352 Fasli (year 1943)  and  the  said  survey  has
also confirmed the ownership of late Raja in Khata No.3 (Khata No.1  as  per
survey of 1326 Fasli (year 1917) which also made  it  clear  that  the  suit
lands are private lands of late Raja. The  present  survey  number  613  was
shown as the corresponding old Survey Number 579 without any change  in  the
extent of the land.

5.    The Respondent’s further case is that the  certified  copy  of  Setwar
and Vasul Baqui relating to Sy.No.613 for the year 1352  Fasli  (year  1943)
clearly disclose that late  Raja  was  the  Khatadar  of  all  the  land  in
Sy.No.613 of Nadergul  Village,  Saroornagar  Mandal,  Rangareddy  District,
Ex.A5. The village map of Nadergul Village  and  plan  of  S.No.613  clearly
disclose the land as ‘Kancha’ of Late Raja. The total survey numbers in  the
village are about 875. As per the village map  and  the  corresponding  land
records ie., Setwar, Vasool Baqui, Touch Plan and Pahanies, the land  within
the boundaries of S.No.119 consists of an extent of  Ac.1-20  guntas,  which
is in the  name  of  Gaddam  Mallaiah  as  Khatadar.  However,  as  per  the
endorsement made in the Khasra Pahani (1954-55) there is a remark  that  the
lands of late Raja  are  shown  in  separate  series  and  in  the  Pahanies
subsequent to the Khasra,  S.No.613  is  shown  as  Shivaraj  Bahadur  Ilaka
without determining the extent.

6.    It is the plaintiffs’  case  that  as  per  the  certified  copies  of
pahanies for the years 1949-50 and 2000-01 the land in S.No.613 of  Nadergul
Village stood in the name of late Raja. However, it is alleged that  in  the
Khasra Pahani, S.No.613 is rounded up, which does not  convey  any  meaning.
After 1954-55, Revenue Records are showing the  land  in  S.No.119  with  an
extent of Ac.355-12 guntas and it is  not  known  as  to  how  the  original
extent of land in S.No.119 shown as Ac.1-20 has swollen to Ac.355-12  guntas
with endorsement of  “Sarkari”  from  the  original  endorsement  of  Gaddam
Mallaiah, which clearly discloses duplication of the land  in  S.No.119  and
to say the  least,  the  Revenue  Record  has  been  tampered  with  by  the
custodians  of  the  records  with  an  oblique  motive  of  depriving   the
legitimate owners of the land in S.No.613 of Nadergul Village.  Even  today,
pahanies, village maps, and touch plan clearly  disclose  the  existence  of
S.No.  613  with  a  large  chunk  of  land  but  purposefully  the  revenue
authorities are not disclosing the details of  the  ownership  of  the  suit
land. The basic record ie., Setwar and Vasul Baqui Register  of  1352  Fasli
(year 1943). The endorsement in the Khasra Pahani of 1954-55 that the  lands
of late Raja in  S.No.613  are  being  shown  separately,  is  devoid  of  a
sensible meaning. As per the endorsement, it is incumbent on the  defendants
to continue to maintain the revenue records in the name  of  late  Raja  and
the plaintiffs being the predecessors in interest  as  pattadar/khatadar  of
the said land in S.No.613 of Nadergul Village.

7.    The plaintiffs’ case is that in certified copies of the  pahanies  for
the years 1955-01, there  is  duplication  of  S.No.119,  and  while  Gaddam
Mallaiah is shown as Khatadar of S.No.119 in  respect  of  land  admeasuring
Ac.1-20 guntas, the duplicated S.No. 119 admeasuring  more  than  355  acres
and  sometimes  Ac.373-22  guntas  is  being   shown   as   Kancha   Sarkari
notwithstanding the fact that in the Khasra Pahani for the year  1954-55  it
is clearly mentioned late Raja as khatadar/pattadar of the  entire  land  in
S.No.119. Since the Khasra Pahani has confirmed the ownership of late  Raja,
the same cannot be changed as Sarkari Kancha in  the  Pahani  without  there
being any proceedings. When the land in S.No.613 is continuing to  exist  as
per the village maps and touch plan, the  pahanies  and  other  records  are
being maintained with mis-description, by which  title  of  the  real  owner
will not vanish. The plaintiffs who are successors in interest of  the  land
made attempts for correction of the entries in  the  Revenue  Records  under
A.P. Record of Right in Land and Pattadar Pass Books Act,  1971  (for  short
“the Act”) and the authorities rejected the claim for correction of  entries
on the ground that unless the plaintiffs  get  their  title  declared  in  a
court of law, the mutation in the name of the plaintiffs cannot be  effected
under Section 8(2) of the Act. The defendants have no title  over  the  suit
schedule land.



8.    The  5th  defendant-appellant  Mandal  Revenue  Officer,  Saroornagar,
while denying the suit claim, contended that the suit is  not  maintainable.
According to him, the plaintiffs are neither owners nor  possessors  of  the
suit schedule property and they are in no way concerned with the  suit  land
as per the Revenue Records. It has been pleaded on behalf of the  defendants
that  the  plaintiffs  did  not  obtain  succession  certificate  from   the
competent civil court and have not acquired the suit property of  late  Raja
through succession as pleaded.



9.    In  the  amended  written  statement,  it  has  been  pleaded  by  the
defendant that Nadergul was a Jagir Village  and  as  all  the  jagirs  were
abolished under the Hyderabad Abolition  of  Jagirs  Regulation,  all  Jagir
properties vested in the State and the Jagirdars  became  entitled  only  to
receive compensation amount and the estate of  late  Raja  also  got  merged
with the State and all Jagirs in Hyderabad State  were  taken  over  by  the
Government and transferred to  Deewani  after  publication  of  Notification
No.8 dated 07-04-1949.  Further Nazim Atiyat had passed an order  dated  20-
01-1958 in File No.1/56 Warangal/1950 and the legal heirs of Late  Raja  had
participated in the  said  proceedings  and  staked  claim  for  commutation
amount in respect of the Jagir land.  Aggrieved  by  the  said  proceedings,
some of the plaintiffs and certain other successors of late Raja  had  filed
appeal before the Board of Revenue and the same  was  dismissed  vide  order
dated 24.07.92 and a review petition was also  dismissed  by  the  Board  of
Revenue and, thereafter, the same persons had filed W.P.No.4999 of  1974  in
the High Court and as per the judgment in  the  said  writ  petition,  dated
22.04.76, the matter was remanded back to the Board  of  Revenue  and  after
remand, the appeals filed by the above said persons were dismissed for  non-
prosecution.



10.    It  has  been  further  pleaded  in  the  aforesaid  amended  written
statement that after abolition of Jagirs,  the  Jagir  lands  of  late  Raja
numbering about 8 survey numbers were rounded off and separate numbers  from
1 to 194 were given as evidenced in the Khasra Pahani for the  year  1954–55
and as such  the  contention  of  the  plaintiffs  that  original  Sy.No.119
admeasuring Ac.1-20 guntas in the name of Gaddam Mallaiah has  increased  to
355 acres is not only  false  but  the  same  is  contrary  to  the  record.
Sy.No.119 admeasuring Ac.1-20 guntas is separate and distinct survey  number
from the Sy.No.119 which finds  place  in  the  Khasra  Pahani  in  separate
series of 1 to 194. This Sy.No.119 is admeasuring Ac.355.00 and recorded  as
Sarkari Poramboke. Having not filed any declarations under the Land  Ceiling
Laws, the plaintiffs are not entitled to  stake  the  suit  claim.    It  is
further pleaded by the defendant that the  plaintiffs  and  their  ancestors
have participated in the enquiry  before  Nazim  Atiyat  for  the  award  of
commutation amount and hence they  are  estopped  from  filing  the  present
suit, that too after lapse of about 5 decades.



11.   The trial court, on consideration of evidence came to  the  conclusion
that the plaintiffs have not made out  a  case  for  correction  of  Revenue
Record and dismissed the suit.  Aggrieved by the same, the plaintiffs  filed
the appeal before the High Court, which  being  allowed  by  one  Judge  and
dismissed  by  another  Judge,  was  heard  by  a  third  Judge,  who  after
considering the law laid down by the High Court as well as this Court,  held
that  the  plaintiffs  successfully  demonstrated   that   late   Raja   was
pattadar/khatadar of the land covered by S.No.613 admeasuring 373-22  guntas
in the Khasra Pahani, the presumption backward/forward  can  be  applied  in
his favour and in favour of his heirs that he or they continued  to  be  the
pattadar(s).   Allowing the appeal of the plaintiffs and setting  aside  the
judgment and decree of the trial court, the learned third Judge of the  High
Court observed, thus:

“Unless the State proves that the said land has been confiscated or vest  in
the State under Jagir Abolition Act  on  abolition  of  jagirs  or  for  non
filing of the declaration, the property vest in  the  Government  under  the
provisions  of  Andhra  Pradesh  Land  Reforms  (Ceiling   on   Agricultural
Holdings), 1973, mere mentioning “Sarkari” in subsequent pahanies or  giving
duplication S.No.119, title of the original owner will  not  vanish  and  it
continues to be vest with them.  In  Khasra  Pahani  for  the  year  1954-55
covered under Ex.12(a), when it is stated that S.No.613  has  been  recorded
as “Self Cultivation Dastagardan” and numbers of  the  Sivaraj  Bahadur  has
been written separately and the same has also been shown as  S.No.119  under
Ex.12(b). Therefore, late Raja or his heirs continue(s)  to  be  pattadar(s)
for the corresponding survey number and  on  changing  also,  but  the  same
cannot become the government property as contended by the  learned  Advocate
General. Further, the identity of land in S.No.613, suit land, as  found  in
Ex.A-10-touch plan  and  Ex.A-  9-village  map  cannot  undergo  any  change
whatsoever and ownership may change from one person to  the  other  but  the
location of land and its identity with reference to survey number cannot  be
changed. Therefore, there is no further  necessity  for  the  plaintiffs  to
seek declaration of their title except  to  seek  correction  of  record  of
rights recording the names of the heirs of late Raja  i.e.  the  plaintiffs.
Thus, the plaintiffs are entitled for a declaration for  correction  of  the
entries in the record of rights recording the names of the  legal  heirs  of
late Raja and also injunction restraining the  defendants  from  interfering
with the plaintiffs peaceful possession.”



12.   Aggrieved by  the  decision  of  the  High  Court,  the  defendants  –
appellants have preferred this appeal.



13.   We have heard learned senior counsel appearing  for  the  parties  and
also perused the written submissions filed by them.



14.   While raising an additional ground for the first  time  here  in  this
appeal, Mr. Mukul  Rohatgi,  learned  Attorney  General  appearing  for  the
appellants, submitted that the learned judges  of  the  Division  Bench  who
heard the appeal differed vertically in as much  as  Section  98(2)  of  CPC
provides for confirmation of decree of the trial court.   Reference  to  the
3rd Judge was made in the present case not after formulating any  points  of
disagreement on the question of  law,  hence  the  reference  by  the  Chief
Justice to the learned  3rd  Judge  is  ultra  vires.   In  this  connection
learned counsel referred the decision of this Court in Tej Kumar vs.  Kirpal
Singh, (1995) 5 SCC 119.    It  was  further  submitted  that  even  if  the
provisions of Letters Patent Act are invoked the same  cannot  override  the
provisions of Section 98 CPC.  In this connection learned  counsel  referred
decisions in  P.V.  Hemalatha  v.  Kattamkandi  Puthiya  Maliackal  Saheeda,
(2002) 5 SCC 548 and  Centre  For  Environmental  Law  v.  Union  of  India,
(2010)12 SCC 303.  It was further contended that even if Clause  36  of  the
Letters Patent of the Madras High Court which has been adopted for the  A.P.
High Court is held applicable, nonetheless, in the present  case,  since  no
points of agreement have at all been formulated  for  consideration  by  the
two learned judges who had heard the appeal,  reference  to  the  3rd  judge
was, therefore, clearly incompetent.



15.   Learned Attorney General appearing for the  appellant  raised  another
point with regard to abatement of the appeal pending before the  High  Court
on the ground inter alia that one of the respondents  i.e.,  Respondent  No.
12 died on 21.12.2010 during the pendency of  the  appeal  before  the  High
Court.  Since the prayer made in the suit is  the  one  for  declaration  of
title of the plaintiffs as a single entity the appeal pending  in  the  High
Court itself stands abated.  Further, the  appeal  in  the  High  Court  got
abated as a whole in as much as the decree that was  challenged  before  the
High Court was a joint and  indivisible  decree.   In  this  connection  the
appellants relied upon the decision in the case of  (2006)  6  SCC  569  and
(2010) 11 SCC 476.



16.   On merit of the appeal, the appellants first assailed the finding  and
the conclusion arrived at by the High Court that the  area  by  name  Bhagat
Nadegul  of  Hyderabad  District  is  different   from   Nadergul   Village.
According to the appellant there is absolutely  no  material  to  show  that
there is any other village by the name Nadergul in any part  of  the  State.
In this connection learned counsel referred the evidence of PW-1.



17.   Further, the contention of the appellants is that the predecessors  of
the plaintiffs had sought for commutation in respect  of  land  in  Nadergul
Village will show that the said lands were  treated  as   Jagir  land.   The
findings of the Atiyat Court qua Nadergul with the relevant Sandas have  not
been produced for verification.  There is no finding anywhere  in  Exh.  B.1
that Nadergul is not a Jagir Village.   Merely  because  commutation  amount
was not awarded in respect of Nadergul Village, it shall not be  treated  as
a private land.  It was submitted that none of the  plaintiffs  entered  the
witness box and testified on any of the averments made  in  the  plaint  and
the only person examined was PW-1 as General Power  of  Attorney  holder  of
the plaintiffs who could not have  any  personal  knowledge  on  the  issues
relating to the grant made by Nizam and the proceeding relating thereto.



18.   On the relevancy of documentary  evidence  learned  counsel  contended
that Sethwar (Exh.A-5), Register  of  Vasool  Baqui  and  Khasra  Pahani  in
respect of Survey No. 613 are not sufficient to declare title of  Raja  Shiv
Bahadur and, thereafter, the plaintiffs  as  successors  to  the  Estate  in
respect of the  suit  property.    Learned  counsel  contended  that  it  is
inconceivable that fairly large extent  of  373.22  acres  of  private  land
would otherwise not be subjected to any  land  revenue.   According  to  the
appellants since the land of Survey No.613 was a Crown’s  land  it  was  not
assessed to land revenue.  With regard to Pahani Patrika from  1949-50  till
2000-01 shows that the land in survey No.613 as  Kancha-Sarkari  or  Kancha-
Shiv Raj Bahadur.  It was contended that there is no document whatsoever  to
support the case of the plaintiffs with regard to  the  title  to  the  suit
property.  These documents cannot be treated as document  of  title  of  the
plaintiffs.



19.   Lastly, the submissions of the appellants  is  assuming  that  without
admitting that there has been duplication  of  survey  numbers  is  accepted
that by itself cannot enable the plaintiffs to get a  declaration  of  title
unless there is prima facie  evidence  of  title  being  acquired  by  their
predecessors in interest.  In any view of the  matter  the  suit  itself  is
barred by limitation.

20.   Mr. Dushyant  A.  Dave,  learned  senior  counsel  appearing  for  the
appellant Corporation in  Civil  Appeal  No.2964  of  2013,  also  made  his
submission on behalf of the Corporation  and  contended  that  none  of  the
plaintiffs have entered in the witness box and  the  only  witness  who  was
examined was the plaintiff’s GPA holder whose evidence cannot be taken  into
consideration.  Mr. Dave contended that the plaintiffs have kept  quiet  for
more than 50 years and hence the suit claim is  a  chance  litigation.    It
was further contended that the judgment of the 3rd learned Judge is  opposed
to Section 98(2) of the CPC and suggested that the matter will  have  to  be
remanded to the High Court.



21.   Per contra, Dr. A.M. Singhvi, learned  senior  counsel  appearing  for
the plaintiffs-respondents, at the very outset submitted that although  A.P.
Industrial Infrastructure Corporation Limited to whom the suit property  was
illegally transferred by the appellant-State during the pendency  of  appeal
in High Court is neither a necessary party nor have got any right to  prefer
appeal against the impugned judgment passed by the High Court.



22.   On the issue of application of Section  98(2)  of  CPC,  Dr.  Singhvi,
learned senior counsel, submitted that A.P. High Court is  governed  by  the
Letters Patent of Madras High Court and, therefore,  Section  98(2)  of  the
Code has no application by reason of Section  98(3)  of  the  Code.   It  is
submitted that the decision of this Court relied upon by  both  the  parties
on this point  itself  clarify  that  Section  98(2)  of  the  Code  has  no
application to the High Court which is governed by Letters Patent.  In  this
connection learned counsel also referred the decision of  Patna  High  Court
in AIR 1984 Patna 296 and AIR 1979 Patna 115.    Learned  counsel  therefore
submitted that there is no illegality in the reference  made  by  the  Chief
Justice to the 3rd Judge of the High Court for deciding the appeal.

23.   Rebutting the submission made by the appellants  on  the  question  of
abatement  learned  counsel  submitted  that  the  present   suit   is   for
declaration of title and permanent injunction.  On the  death  if  Defendant
No.12  the  right  to  sue  survives  with  the  remaining  plaintiffs  and,
therefore, that the appeal then pending in the High Court  will  not  abate.
Learned counsel referred  Order  22  Rule  2  CPC  and  submitted  that  the
objection with regard to abatement of appeal in the High Court  was  neither
raised before the High Court nor raised in the grounds  of  memo  of  appeal
filed before this Court.



24.    Replying  the  submissions  made  by  Mr.  Dave,  appearing  for  the
appellant Corporation in another appeal, learned  senior  counsel  appearing
for the respondents submitted  that  a  GPA  holder  can  give  evidence  on
matters which are within his knowledge and he is competent  enough  to  give
evidence on behalf of the party.  In this  connection  he  relied  upon  AIR
2005 SC 439.

25.   Further submissions on behalf of the respective respondents have  been
made by Mr. Vikas Singh and Mr. Harin  P.  Raval,  learned  senior  counsel,
that since there is no  dispute  on  the  genuineness  and  authenticity  of
documentary evidence on  record,  the  suit  claim  has  to  be  decided  on
documentary evidence i.e. Exhs. A1-A-19.  According to  the  learned  senior
counsel Exh. A-5(Sethwar), Exh. A-6(Vasool Baqui Record),  Exh.  A-12(Khasra
Pahani) shows that the  name  of  Shiv  Raj  Bahadur  was  recorded  as  the
Pattadar of the suit land.  From these documents it can be inferred  without
any doubt that ruler of the kingdom has accepted the ownership of  Shiv  Raj
Bahadur and there is no need to have either Patta or title documents.



26.    Referring  to  the  admission  in  written  statement  filed  by  the
defendant-appellants it was submitted that there are various other  Pattadar
in Nadergul Village.  Further there is no pleading in the written  statement
that Shiv Raj Bahadur was a Jagirdar of  the  suit  land.   It  was  further
contended that in the  order  passed  in  Nizam  Atiyat  proceeding  it  was
declared that some villages are not Jagir lands.  The declaration  by  Nizam
Atiyat is for the whole village and not  for  some  survey  numbers  in  the
Village.  Admittedly, there are various other Pattadars in Nadergul  Village
and, therefore, in the Nizam Atiyat proceeding Nadergul was shown in  List-3
as patta lands.

27.   So far as  the  issue  with  regard  to  the  suit,  being  barred  by
limitation  it  was  submitted  by  the  respondents  that  the   suit   for
declaration  of  title  and  injunction  falls  under  Article  65  of   the
Limitation Act 1963  where  limitation  is  12  years  from  the  date  when
possession of the defendant become adverse to that of the plaintiff.   There
is no pleading in the written statement that the State  has  obtained  title
by adverse possession.  In the present case the  defendant-State  has  never
set up and or cannot set up title by  adverse  possession,  hence  the  suit
cannot be held to be barred by limitation.  There  is  no  evidence  adduced
from the side of the defendants that the State ever came in possession.   On
the contrary the possession of the  plaintiff-respondents  was  sufficiently
proved by the trial court while deciding the injunction petition as also  in
the finding recorded by the High Court dismissing  the  appeal  against  the
order of injunction.



28.   We have heard learned senior counsel  appearing  for  the  parties  at
length and perused the record.



29.   Before we decide the merit  of  the  appeal,  we  shall  take  up  the
interlocutory applications filed by the appellant  during  the  pendency  of
this appeal.  By I.A. No.9/2015 filed on  20th  July,  2015,  the  appellant
stated that during the pendency of the appeal in the High Court,  respondent
No.12 died but the legal representatives have not been  substituted  by  the
respondents, who were appellants before the High  Court  which  resulted  in
abatement of the said  appeal.   Hence,  prayer  has  been  made  that  non-
substitution of legal representatives of  respondent  No.12  in  the  appeal
pending in the High Court, the appeal stood abated by operation of  law  and
consequently judgment and decree passed by the  High  Court  in  the  appeal
suit No.274 of 2007 is rendered nullity in law.



30.   By another I.A. Nos. 10 and 11 of 2015, the appellant has stated  that
during pendency  of  this  appeal  respondent  No.6  died  on  8.4.2015  and
respondent No.14 died on 6.1.2014 which were not  within  the  knowledge  of
the appellant, hence prayer has been made to set  aside  the  abatement  and
substitute their legal representatives.



31.   Learned Attorney General appearing for  the  appellant  pressed  these
two applications relying upon the decision of this  Court  in  the  case  of
Matindu Prakash (Deceased) by L.Rs. vs. Bachan Singh and  others,  AIR  1977
SC 2029; Amba Bai and others vs. Gopal and others, (2001) 5  SCC  570;  Budh
Ram and others vs. Bansi and others, (2010) Vol. 11 SCC 476.



32.   In the case of Matindu Prakash (Deceased) by L.R.s  vs.  Bachan  Singh
and others, AIR 1977 SC 2029, when the appeal was pending in this Court,  it
revealed that two of the appellants died and no step was taken to bring  the
heirs and legal representatives of those  appellants  on  the  record.   The
question, therefore, that fell for consideration was whether  appeal  abated
as a whole so as to entail a dismissal of  the  entire  suit.   This  Court,
therefore, remitted the matter back to the High Court to  record  a  finding
and to decide whether by virtue of the death, the appeal abated as  a  whole
or the appeal had abated  qua  the  deceased  appellants  before  the  Civil
Appeal is disposed of.



33.   In the case of Amba Bai and others vs. Gopal and others,  2001(5)  SCC
570, this  Court  was  considering  the  case  where  a  suit  for  specific
performance by one plaintiff against the defendant was  finally  allowed  in
appeal and the suit was decreed.  During the pendency of  Second  Appeal  by
the  defendant  in  the  High  Court,  the  plaintiff  died  and  his  legal
representatives were brought on record.  Subsequently,  the  defendant  also
died, but this fact was not brought to the  notice  of  the  Court  and  the
appeal was dismissed.  In those facts this Court considering  the  provision
of Order 22 Rule 3 of the Code held that “in a case where the  plaintiff  or
the defendant dies and the right to sue does not survive,  and  consequently
the Second Appeal had abated and the decree  attained finality  inasmuch  as
there cannot be merger of the judgment or decree  passed  in  Second  Appeal
with that passed in the First Appeal.”  The said decision therefore, in  our
considered opinion will not apply in  the  present  case.   In  the  instant
case, there are more plaintiffs than one and one of them died and the  right
to sue survives upon the surviving plaintiffs.  In  the  said  circumstances
Order 22 Rule 2 of the Code will come into operation  and  the  appeal  will
not abate.



34.   In the case of Budh Ram and others vs. Bansi and others,  (2010)  Vol.
11 SCC 476, this Court  after considering series of  judgments  rendered  by
this Court in the State  of Punjab vs. Nathu Ram,  (AIR  1962)  SC  89,  Sri
Chand vs. Jagdish Pershad Kishan Chand, AIR 1966  SC  1427,  Ramagya  Prasad
Gupta vs. Murli Prasad, (1973) 2 SCC 9 and Sardar Amarjit  Singh  Kalra  vs.
Pramod Gupta, (2003) 3 SCC 72 held as under:-

“17. Therefore, the law on the issue stands crystalLised to the effect  that
as to whether non-substitution of LRs  of  the  respondent-defendants  would
abate the appeal in toto or only  qua  the  deceased  respondent-defendants,
depends upon the facts and circumstances of an individual case.  Where  each
one of the parties has an independent and distinct right  of  his  own,  not
interdependent upon one or the  other,  nor  the  parties  have  conflicting
interests inter se, the appeal may abate only qua the  deceased  respondent.
However, in case, there is a possibility that the court may  pass  a  decree
contradictory to the decree in favour of  the  deceased  party,  the  appeal
would abate in toto for the simple reason that the appeal  is  a  continuity
of suit and the law does not permit two contradictory decrees  on  the  same
subject-matter in the same suit. Thus, whether  the  judgment/decree  passed
in the proceedings vis-à-vis remaining parties  would  suffer  the  vice  of
being a contradictory or inconsistent decree is the relevant test.”

35.   In the case of Harihar Singh vs. Balmiki Prasad  Singh,  AIR  1975  SC
733 = (1976) 1 SCC 212, this Court observed:

“32. The important point to note about this litigation is that each  of  the
reversioners is entitled to his own specific share. He could have  sued  for
his own share and got a decree for his share. That is why five  Title  Suits
Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed  in  respect  of
the same estate. In the present case also the suit  in  the  first  instance
was filed by the first and second plaintiffs for  their  one-twelfth  share.
Thereafter many of the other  reversioners  who  were  originally  added  as
defendants were transposed as plaintiffs. Though the  decree  of  the  trial
court was one, three Appeals Nos. 326, 332 and 333 of  1948  were  filed  by
three sets of parties. Therefore, if one of  the  plaintiffs  dies  and  his
legal representatives are not brought on  record  the  suit  or  the  appeal
might abate as far  as  he  is  concerned  but  not  as  regards  the  other
plaintiffs or the appellants. Furthermore, the  principle  that  applies  to
this case is whether the estate of the deceased appellant or  respondent  is
represented. This is not a case where no legal representative  of  Manmohini
was on record.”


36.   Similarly, in the case of State of Punjab vs. Nathu Ram, AIR  1962  SC
89 = (1962) 2 SCR 636, which arose out of  acquisition  of  land  under  the
Defence  of  India  Act,  1939,  when  the  landowners  refused  to   accept
compensation offered by the Collector,  the  dispute  was  referred  by  the
State Government to an arbitrator,  who  passed  an  award  for  payment  of
higher  compensation.   The  State  appealed  against  the  award.    During
pendency of the appeal, one of the landowner namely  Labhu  Ram  died.   The
High Court, holding that the appeal abated against Labhu Ram and its  effect
was that the appeal against another respondent also abated, the  appeal  was
dismissed.  When the matter came up to this Court, at the  instance  of  the
State Government, this Court deciding the issue held as under:
“4. It is not disputed that in view of  Order  22  Rule  4  Civil  Procedure
Code, hereinafter called the Code, the  appeal  abated  against  Labhu  Ram,
deceased,  when  no  application  for   bringing   on   record   his   legal
representatives had been made within the time limited by law. The Code  does
not provide for the abatement of the appeal against the  other  respondents.
Courts have held that in certain circumstances, the appeals against the  co-
respondents would also abate as a result of  the  abatement  of  the  appeal
against the deceased respondent. They  have  not  been  always  agreed  with
respect to the result of the particular circumstances of a  case  and  there
has been, consequently, divergence of opinion  in  the  application  of  the
principle. It will serve no useful purpose to consider  the  cases.  Suffice
it to say that when Order 22 Rule 4 does not provide for  the  abatement  of
the appeals against the co-respondents of the deceased respondent there  can
be no question of abatement of the appeals against them.  To  say  that  the
appeals against them abated in  certain  circumstances,  is  not  a  correct
statement. Of course, the appeals against them  cannot  proceed  in  certain
circumstances and have therefore to be dismissed. Such a result  depends  on
the nature of the relief sought in the appeal.”


37.   Five Judges Constitution Bench of this Court in  the  case  of  Sardar
Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588, was considering  the
question as to the effect of death of some  of  the  appellants  during  the
pendency of appeal.  In that case, during the pendency of  appeal,  some  of
the appellants died on different dates and there was no attempt to take  any
step within time for bringing to the Court the legal representatives of  the
deceased appellants.  The respondents, therefore, filed application  praying
for dismissal of those appeals as  having  been  abated.   It  appears  that
during the pendency of appeal in the High  Court,  some  of  the  appellants
were said to have died, the plea of partial abatement  of  the  appeals  qua
only those deceased appellants were not accepted by the High  Court  on  the
view that decree was joint based on common right and  interest,  the  appeal
was rejected  in  toto.   On  these  facts,  the  Constitution  Bench  after
discussing all earlier decisions held as under:-
“27. Laws of procedure are meant to regulate  effectively,  assist  and  aid
the object of doing substantial and real justice and not to  foreclose  even
an adjudication on merits of substantial rights of citizen  under  personal,
property and other laws. Procedure has always been viewed  as  the  handmaid
of justice and not  meant  to  hamper  the  cause  of  justice  or  sanctify
miscarriage of justice. A careful reading of  the  provisions  contained  in
Order 22 CPC as well as the subsequent amendments thereto would lend  credit
and support to the view that they were devised to ensure their  continuation
and culmination in an effective adjudication and not to retard  the  further
progress of the  proceedings  and  thereby  non-suit  the  others  similarly
placed as long as their distinct and independent rights to property  or  any
claim remain intact and not lost forever due to the  death  of  one  or  the
other in the proceedings. The provisions contained in Order 22  are  not  to
be construed as a rigid matter of principle but must ever  be  viewed  as  a
flexible tool of convenience in the administration of justice.”
                 xxxxx
32. But, in our view also, as to what those circumstances are to be,  cannot
be  exhaustively  enumerated  and  no  hard-and-fast  rule  for   invariable
application can be devised. With the march and  progress  of  law,  the  new
horizons explored and modalities discerned and the fact that the  procedural
laws must be liberally construed  to  really  serve  as  handmaid,  make  it
workable and advance the ends of justice, technical  objections  which  tend
to be stumbling blocks to defeat and deny substantial and effective  justice
should be strictly viewed for being discouraged, except  where  the  mandate
of law inevitably  necessitates  it.  Consequently,  having  regard  to  the
nature of the proceedings  under  the  Act  and  the  purpose  of  reference
proceedings and the appeal therefrom, the  courts  should  adopt  a  liberal
approach in  the  matter  of  condonation  of  the  delay  as  well  as  the
considerations which should weigh in adjudging  the  nature  of  the  decree
i.e. whether  it  is  joint  and  inseverable  or  joint  and  severable  or
separable. The fact that the Reference Court has chosen  to  pass  a  decree
jointly in the matters before us is and should be no  ground  by  itself  to
construe the decree to be joint and inseparable. At times, as in  the  cases
on hand, the court for its convenience might have combined  the  claims  for
joint consideration on account of similar nature of the issues in  all  such
cases and for that reason the parties should not be penalized, for no  fault
of theirs. Actus curiae neminem gravabit (an act of  court  shall  prejudice
no one) is the maxim of law, which comes into play  in  such  situations.  A
number of people, more for the sake of convenience,  may  be  counselled  to
join together to ventilate, all their separate but similar nature of  claims
and this also should not result in the  claims  of  all  such  others  being
rejected merely because one or the other of such claims by one  or  more  of
the parties abated on account of death and consequent omission to  bring  on
record the legal heirs of the deceased party. At times,  one  or  the  other
parties on either side in a litigation  involving  several  claims  or  more
than one, pertaining to their individual rights may settle among  themselves
the dispute to the extent their share or proportion of rights  is  concerned
and may drop out of contest, bringing even the proceedings to  a  conclusion
so far as they are concerned. If all such moves  are  allowed  to  boomerang
adversely on the rights of the remaining parties even to  contest  and  have
their  claims  adjudicated  on  merits,  it   would   be   a   travesty   of
administration of justice itself.
                                    xxxxx
35. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners are found  to  have
distinct, separate and independent rights of their own and for  the  purpose
of convenience or otherwise, joined  together  in  a  single  litigation  to
vindicate their rights, the decree passed by the  court  thereon  is  to  be
viewed in substance as the combination of several decrees in favour  of  one
or the other parties and not as a joint and  inseverable  decree.  The  same
would be the position in  the  case  of  defendants  or  respondents  having
similar rights contesting the claims against them.
(2) Whenever different and distinct claims of more than one  are  sought  to
be vindicated in one single proceedings, as the one  now  before  us,  under
the Land Acquisition Act or in similar nature of proceedings  and/or  claims
in assertion of individual rights of parties are clubbed,  consolidated  and
dealt with together by the courts concerned and a single judgment or  decree
has been passed, it should be treated  as  a  mere  combination  of  several
decrees in favour of or against one or more of the parties and not as  joint
and inseparable decrees.
(3) The mere fact that the  claims  or  rights  asserted  or  sought  to  be
vindicated by more than one  are  similar  or  identical  in  nature  or  by
joining together of more than one of such claimants of a particular  nature,
by itself would not be sufficient in law to treat them as joint  claims,  so
as to render the judgment or decree passed thereon a joint  and  inseverable
one.
(4) The question as to whether in a given  case  the  decree  is  joint  and
inseverable or joint and severable or separable has to be decided,  for  the
purposes of abatement or  dismissal  of  the  entire  appeal  as  not  being
properly and duly constituted or  rendered  incompetent  for  being  further
proceeded with, requires to be determined only with reference  to  the  fact
as to whether the judgment/decree passed in the  proceedings  vis-à-vis  the
remaining parties would suffer the vice  of  contradictory  or  inconsistent
decrees. For that reason, a decree  can  be  said  to  be  contradictory  or
inconsistent with another decree only when the two decrees are incapable  of
enforcement or would be mutually self-destructive and that  the  enforcement
of one would negate or render impossible the enforcement of the other.
                                    xxxxx
37. For all the reasons stated above, we are unable to approve the  decision
or the manner of disposal given by the High  Court  in  these  cases,  which
resulted in grave injustice to the remaining appellants in denying  them  of
their right to have an adjudication of their  claims  on  merits.  The  High
Court ought to have condoned the delay as prayed for, keeping  in  view  the
pendency of the main appeals on its file, adopting a liberal and  reasonable
approach, which would have facilitated  an  effective  adjudication  of  the
rights of parties on either side, avoiding summary rejection of the  appeals
in entirety. The judgment and decrees passed by the High Court in all  these
appeals are set aside and appeals are remitted  to  the  High  Court  to  be
restored to their original files for being disposed of afresh on  merits  of
the claims of both parties and in accordance with  law.  These  appeals  are
allowed on the above terms, with no order as to costs.”


38.   In the instant case, the plaintiffs  joined  together  and  filed  the
suit for rectification of the revenue record by  incorporating  their  names
as the owners and possessors in respect of  the  suit  land  on  the  ground
inter alia that after the  death  of  their  predecessor-in-title,  who  was
admittedly the Pattadar and Khatadar, the plaintiffs  succeeded  the  estate
as sharers being the sons of Khatadar.   Indisputably,  therefore,  all  the
plaintiffs  had  equal  shares  in  the  suit   property   left   by   their
predecessors.  Hence, in the event of death of any of  the  plaintiffs,  the
estate is fully and  substantially  represented  by  the  other  sharers  as
owners of the suit property.   We  are,  therefore,  of  the  view  that  by
reason of non-substitution of the legal representative(s)  of  the  deceased
plaintiffs, who died during the pendency of the appeal in  the  High  Court,
entire appeal shall not stand abated.  Remaining  sharers,  having  definite
shares in the estate of the deceased, shall be entitled to proceed with  the
appeal without the appeal having been abated.  We, therefore,  do  not  find
any reason to  agree  with  the  submission  made  by  the  learned  counsel
appearing for the appellants.

39.   By filing another I.A. No.7  of  2015  on  17.4.2015,  the  appellants
sought permission to urge additional grounds as contemplated  under  Section
98 of the Code of Civil Procedure. Admittedly, this  ground  was  not  urged
before the learned third  Judge of the  High Court at the  time  of  hearing
of the appeal.   Be  that  as  it  may,  we  allow  the  appellant  to  urge
additional ground in this appeal.


40.   By urging this  additional  ground  learned  senior  counsel  for  the
appellants submitted that the procedure adopted by the  High  Court  in  the
disposal of the appeal is not in consonance with  the  provisions  contained
in Section 98 of the CPC.  Learned counsel submitted that the appeal in  the
High Court was originally heard by two judges who differed in their  opinion
and wrote two separate judgments.  While giving judgments, both  the  judges
have not recorded their opinion on the point of difference on the  point  of
law.  Without formulating the point of difference the  matter  was  referred
to a third judge by the Chief Justice and the  third  judge  finally  passed
the impugned judgment concurring with one of the judge.   According  to  the
learned counsel, therefore, the impugned judgment is  vitiated  in  law  and
cannot be sustained.  In this connection, learned counsel  relied  upon  the
decision of this Court in Tej  Kaur  and  Another   vs.   Kirpal  Singh  and
Another,  (1995)  5  SCC119;  P.V.  Hemalatha   vs.    Kattamkandi   Puthiya
Maliackal Saheeda and Another, (2002) 5 SCC 548; Pankajakshi (Dead)  Through
Lrs. And Others  vs.  Chandrika and Others, (2010) 13 SCC 303.

41.   Section 98 of the Code of Civil Procedure reads as under :-
“98. Decision where appeal heard by two or more Judges.
(1) Where an appeal is heard by a Bench of two or more  Judges,  the  appeal
shall be decided in accordance with the opinion of such  Judges  or  of  the
majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment  varying  or
reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing  the  appeal  is composed  of  two  or
other even number of Judges belonging to a Court consisting of  more  Judges
than those constituting the Bench and the Judges composing the Bench  differ
in opinion on a point of law, they may state the point  of  law  upon  which
they differ and the appeal shall then be heard upon that point only  by  one
or more of the other Judges, and such point shall be  decided  according  to
the opinion of the majority (if any)  of  the  Judges  who  have  heard  the
appeal including those who first heard it.

(3)   Nothing in this Section shall be deemed to alter or  otherwise  affect
any provision of the letters patent of any High Court.”

42.   From the legislative history of enactment of Code of Civil  Procedure,
it would appear that Section 98 of the CPC was for the  first  time  enacted
in 1861 by the Act amending the Civil Procedure Code of 1859.   Subsequently
in 1862, Letters Patents were issued establishing the High Court  of  Madras
and these Letters Patents were modified in 1865.  Clause 36 of  the  Letters
Patent declared that in  exercise  of  appellate  jurisdiction  the  certain
procedure is to be adopted.  In 1877 and 1882  amendments  were  brought  in
the Code of Civil Procedure but no provision was made  to  the  effect  that
the Code shall not affect the Letters Patent.  Thereafter many  High  Courts
and the Privy Council interpreted the provisions of Section  98  and  Clause
36 of the Letters Patent and it was consistently held by  the Full Bench  of
the  Madras High Court as under:-
 “The result is that it is now beyond  all  doubt  that  Clause  36  of  the
Letters Patent applies to all appeals. It may be asked,  when  does  Section
98 of the Civil Procedure  Code  have  any  operation  and  why  should  the
legislature not say that the  section  does  not  apply  to  Chartered  High
Courts instead of adding an explanation to the section? The  reply  is  that
Section 98 applies now only to Courts other than the Chartered High  Courts,
that is, the Chief Courts and  Courts  of  judicial  Commissioners  and  the
reason why the legislature adopted this particular form of  elucidating  the
matter is that it was intended to retain Section 98 as  applicable  even  to
Chartered High Courts but to make the application subject to  Clause  36  of
the Letters Patent. If, at any time, Clause 36 of the Letters Patent  ceases
to exist, Section 98  will  come  into  operation.  It  is  to  attain  this
particular result that the explanation was added to Section  98  instead  of
saying that Section 98 does not apply to Chartered High  Courts  at  all.  I
would answer the question referred to us thus:”

43.   Clause 36 of Amended Letters Patent  of  the  High  Court  of  Madras,
which has been made applicable to the High Court of  Andhra  Pradesh,  reads
as under:-
“36.   Single Judge and Division Courts:-- And we  do  hereby  declare  that
any function which is hereby directed to  be  performed  by  the  said  High
Court of  Judicature   at  Madras,  in  the  exercise  of  its  original  or
appellate jurisdiction, may be performed by any Judge, or  by  any  Division
Court thereof, appointed  or constituted for such purpose  in  pursuance  of
Section 108 of the Government of India Act, 1915 and in such Division  Court
is composed of two or more Judges, and the Judges are divided in opinion  as
to the decision to be given on  any  point,  such  point  shall  be  decided
according to the opinion of the majority of the Judges, if there shall be  a
majority, but if the Judges should be equally divided they shall state   the
point upon which they differ and the case shall  then  be  heard  upon  that
point by one or more of the other Judges and  the  point  shall  be  decided
according to the opinion of the majority of the Judges who  have  heard  the
case including those who first heard it.”

44.   Learned senior counsel appearing for the respondents  in  response  to
the argument on Section 98 of the  CPC,  submitted  that  in  view  of  Sub-
section (3) of Section 98, the provision of Section 98 of the Code will  not
apply.  Ld. senior counsel submitted that this Court  cannot  go  into  that
question for the reason  that  the  appellants  neither  raised  this  point
before the third judge who passed the impugned judgment nor  the  appellants
have been granted  permission  to  raise  the  question  of  application  of
Section 98 of the CPC.  According to the learned counsel  having  regard  to
the procedure provided under the Letters  Patent  of  the  High  Court,  the
objection cannot be entertained.


45.   Firstly, we shall discuss the decisions cited by the  learned  counsel
on both sides.  In the case of Tej Kaur  and  another  (supra),  a  Division
Bench of this Court has considered the provisions  of  Section  98  of  CPC.
The Attorney General put reliance on paragraphs  3,  6  and  9  of  judgment
whereas Dr. Singhvi relied on paragraphs 8 and 9 of the judgment.  Hence  we
extract paras 3, 6, 8 and 9 of judgment which are as under:-
“3. The question, therefore, is whether the finding of the court below  that
the will has not been proved is a finding of fact? If  so,  whether  in  the
absence of majority opinion of the Division Bench, the confirmation  of  the
decree of civil court is valid in  law?  Thirdly,  whether  this  Court  can
examine the case on merits to find whether the will is  validly  proved,  in
which event would sub-section (2) of Section 98 be not  rendered  otiose  or
ineffective?
6. In other words, the difference of opinion between Judges, who  constitute
the Bench hearing the appeal, on a point of law alone would be  referred  to
a third or other Judges according to  the  rules  of  that  High  Court.  By
implication, on question of fact, when there is no majority opinion  varying
or reversing the decree appealed from, such decree should be confirmed.
8. The ratio in Jayanti Devi v. Chand Mal Agrawa which has been referred  by
Shri Bagga, is inapplicable to the point in issue. Therein, because of  what
has been provided in sub-section (3) of Section 98 CPC,  the  letter  patent
power was taken aid of and it was held that the letter patent court was  not
confined to the hearing of the appeal by the third Judge on the question  of
law only, on which the Judges  hearing  the  appeal  had  differed.  Such  a
difference of opinion could be on a question of  fact  as  well.  It  could,
thus, be seen that the reference there was under the  letters  patent  which
power has been expressly preserved by sub-section (3) of Section 98. But  in
the case at hand, the letters patent power was not available and  therefore,
by operation of sub-section (2) of Section  98,  the  decree  of  the  court
below stands affirmed.
9. The question then is whether this  Court  could  nullify  the  scheme  of
Section 98(2) by examining the dispute on merits and by  implication  render
sub-section (2) surplusage or otiose. In our considered view the  contention
of the appellant cannot be accepted. It is true that in a case  where  there
is difference of opinion among the Judges of the High Court,  the  power  of
this Court under Article 136 is wide enough to test the correctness  of  the
conclusion reached by the differing learned Judges as pointed  out  by  this
Court in Dr Prem Chand Tandon case. This proposition is unexceptionable  but
this Court had no occasion in that  case  to  consider  the  scope  of  sub-
section (2) of Section 98. The  language  employed  in  sub-section  (2)  is
imperative and in mandatory terms. The  object  appears  to  be  that  on  a
question of fact when there is a difference of opinion, the  view  expressed
by the court below, in the absence of a majority opinion, needs to be  given
primacy and confirmed.  When  such  is  the  animation,  this  Court  cannot
enlarge the scope of the controversy by itself examining the correctness  of
the finding of fact and decide which view of the two is correct. This  would
be in direct negation of the legislative mandate  expressed  in  sub-section
(2) of Section 98 of the CPC.”


46.   From perusal of the above quoted paragraphs in the decision  given  in
Tej Kaur (supra) it is manifest that this Court considered the procedure  to
be adopted as contemplated under Section 98 of the Code and  held  that  for
those courts, the procedure of which is  governed  by  Letters  Patent,  the
power has been expressly reserved by Sub section (3) of Section 98.   Hence,
in the instant case the procedure provided in  the  Letters  Patent  of  the
High Court shall prevail.

47.   Reference has also been made to the case  of  P.V.  Hemalatha  (supra)
where the judges in appeal constituting  a  Division  Bench  pronounced  two
separate judgments wherein they differed in almost all  the  issues  arising
in the case.  A point was  raised  that  since  the  judges  comprising  the
Division bench delivered two separate judgments and have not identified  the
difference on any point of law, the decree of the court below is  liable  to
be confirmed in terms of Section 98(2) of the Code.  This  Court  held  that
in such cases the procedure is to be adopted as contemplated  under  Section
98 of the Code having regard to the fact that the provisions  of  Clause  36
of Letters Patent of the Madras High Court is not  applicable.   This  Court
held:-
“17. Admittedly, the High Court of Kerala is a newly constituted  court  for
the newly formed State of Kerala in 1956 and governed  by  the  Kerala  Act.
The said High Court does not have any  Letters  Patent  —  it  being  not  a
Chartered  High  Court  continuing  from  the  British  period.  In  such  a
situation, it is submitted that the learned Judges were perfectly  justified
in giving effect to the provision of sub-section (2) of Section  98  of  the
Code and coming  to  the  conclusion  that  because  of  the  two  different
judgments passed by them the decree of the subordinate court was  liable  to
be confirmed. On behalf of the respondent  very  strong  reliance  has  been
placed on a two-Judge Bench decision of this Court in the case of  Tej  Kaur
v. Kirpal Singh in which in a similar situation the Supreme Court held  that
the provision of sub-section (2) of Section 98 would  be  attracted  and  in
view of the two conflicting judgments passed by two Judges who  differed  on
issues of fact, the judgment of  the  subordinate  court  is  liable  to  be
confirmed.
35. We have reached the conclusion as stated above that  clause  36  of  the
Letters Patent of the Madras High Court  on  “practice  and  procedure”  and
“powers of Judges” is not applicable to any part of  the  new  territory  of
the State of Kerala and to the new  High  Court  of  that  State.  Law  with
regard to the “practice, procedure and powers of  Judges”  as  contained  in
the Kerala Act, would be applicable uniformly to  all  the  territories  now
forming part of the new State of Kerala and the High Court  established  for
it. We have also held even on assumption that Section 23 of the  Travancore-
Cochin Act is saved under Section 9 of the Kerala Act that  since  the  said
Kerala Act is a “general law”, it has to give place to  Section  98  of  the
Code of Civil Procedure  which  is  a  “special  law”  applicable  to  civil
appeals arising from civil suits.”

48.   In the case of Pankajakshi (Dead) Through  Lrs.  and  Others  (supra),
this Court  followed  the  earlier  two  decisions  in  Tej  Kaur  and  P.V.
Hemalatha since the  practice  and  procedure  of  Letters  Patent  was  not
applicable.


49.    A comparative study of Section 98 CPC  vis-à-vis  clause  36  of  the
Amended Letters Patent of the Andhra Pradesh High  Court  will  reveal  that
while Section 98 provides that in a case where  the  Judges  comprising  the
Bench differ in opinion on point of law, they may state  the  point  of  law
upon which they differ and the appeal shall be heard upon  that  point  only
by one or more of the other Judges, such point shall  be  decided  according
to the opinion of the majority of the Judges.   Whereas  Clause  36  of  the
amended  Letters  Patent  provides  that  in  a  case  the  Division   Court
exercising its original or appellate jurisdiction hears the appeal  and  the
Judges are divided in opinion as to the decision to be given on  any  point,
such point shall be decided according to the opinion of majority of  Judges.
 If the Judges are equally divided they shall state  the  point  upon  which
they differ and the case shall then be heard on that point by  one  or  more
of the Judges and the point shall be decided according  to  the  opinion  of
majority of Judges who have heard the case including those who  first  heard
it.

50.   Section 98(3) of the Code was added in 1928 by the repealing  amending
Act (18 of 1928). The amended Sub-section (3) of Section 98  was  considered
by a Full Bench of the Madras High Court in Dhanaraju vs. Motilal  Daga  and
Another,  AIR 1929 (Mad.) 641 (F.B.).  The Division Bench of the High  Court
of Patna in the case of Bokaro and Ramgur Ltd. vs. State of Bihar, AIR  1966
(Patna) 154, considered the similar question and observed:-
“The view which I  have  expressed  above  is  supported  by  a  Full  Bench
decision of the Madras High Court reported in  Dhanaraju  v.  Bala-kissendas
Motilal : AIR 1929 Mad 641 FB) : ILR Mad 563, and by two decisions  of  this
Court; one reported in Debi Prasad Pandey v. Gaudham Rai  : AIR 1933 Pat  67
at p. 69 : ILR Pat 772 and the other in Rajnarain v. Saligram ILR  Pat  332.
Clause 28 governs not merely Clause 10, but also Clause 11  of  the  Letters
Patent which ordains that this Court is a Court of  Appeal  from  the  Civil
Courts of the State of Bihar. Clause 28 of the Letters  Patent  being  wider
in scope than section 98 of the Code of Civil Procedure, because  it  covers
points of fact as well as points of law, a reference to  a  third  Judge  in
the present appeal is not incompetent  merely  because  there  has  been  no
difference of opinion between Sinha and S. N. P. Singh, JJ. on  a  point  of
law. The cases relied upon by the  learned  Advocate  General  were  decided
before the insertion of Sub-section (3) in Section 98 of the Code  and  they
have become obsolete. I am, therefore, of the opinion that the point  raised
by the learned Advocate General is without merit and must be overruled,  and
I must deal with this appeal as one referred to me under Clause  28  of  the
Letters Patent. I must, however, indicate that I ought  to  deal  with  only
such point or points in this appeal upon which there has been  a  difference
of opinion between Sinha and S. N. P. Singh, JJ.  This  is  clear  not  only
from the terms of Clause 28, but also from the decision  of  this  Court  in
Zainuddin Hussain v. Sohan Lal. In that case, Rai, J. indicated that  it  is
not open to a third Judge to adjudicate upon a point on which  there  is  no
difference of opinion between the two Judges who heard  the  appeal  in  the
first instance. Similar view was taken by a special Bench of  the  Allahabad
High Court in Akbari Begam v. Rahmat Husain : AIR 1933 All 861 SB : ILR  All
39.”


51.   A similar question with regard to the  interpretation  of  Section  98
CPC and the Patna High Court Rules came for consideration before  the  Patna
High Court in the case of Smt. Jayanti Devi vs.  Srichand  Mal  Agrawal  and
Ors. AIR 1984 Patna 296. Noticing the provision of  High  Court  Rules,  the
Court came to the conclusion that the Letters Patent of the  Court  has  not
confined  the hearing  of the appeal by a third Judge  on the  questions  of
law  only  upon  which  the  Judges  hearing  the  appeal  differ.   Such  a
difference of opinion can be on question of facts also.   The High Court  is
also of  the  view  that  there  is  no  imperative  prescription  that  the
difference of opinion has to be  formulated  by  a  joint  order.   If  such
difference or differences is expressly enumerated in a joint  order  it  may
serve better.  Still absence of  such  joint  order  will  not  vitiate  the
reference.  The Court observed:-
 “It may be seen that the Letter Patent of the Court has  not  confined  the
hearing of the appeal by a 3rd Judge on, the questions  of  law  upon  which
the Judges hearing the appeal differ. Such a difference of  opinion  can  be
on a question of fact also. That the Judges should  record  expressly  in  a
joint order what their differences are may be desirable.  But  there  is  no
imperative prescription that the difference of opinion has to be  formulated
by a joint order. If such difference or differences is expressly  enumerated
in a joint order, it may serve better and the 3rd Judge hearing  the  appeal
may not be required  to  investigate  into  their  respective  judgments  to
discover the difference or differences of opinion. Still absence of a  joint
order specifying the difference as  envisaged  under  the  proviso  to  Sub-
section (2) of Section 98 of the  Code  cannot  be  taken,  to  vitiate  the
reference or the hearing of the appeal  by  a  third  Judge.  This  view  is
supported by a  judgment  by  Lalit  Mohan  Sharma,  J.  in  Rulia  Devi  v.
Raghunath Prasad, I am in respectful and complete agreement with  the  views
expressed  in  Rulia's  case  and  find  no  substance  in  the  preliminary
objection of  Mr.  Chatterjee  in  this  regard.  Mr.  Chatterjee's  further
contention that there being no majority, and the  reference  being  invalid,
the judgment  and  decree  of  the  court  below  should  be  deemed  to  be
confirmed, is also devoid of say merit. Any majority that may  conclude  the
judgment can be noticed only after the disposal of the appeal by  the  third
Judge and not before that. Such a conclusion can be arrived at only  if  any
views do not agree with the views of the Hon'ble Judge taking the view  that
the judgment and decree should be reversed.  The  preliminary  objection  is
accordingly disposed of.”


52.   In the case of Reliance Industries Ltd. vs. Pravinbhai Jasbhai  Patel,
1997(7) SCC 300, the provision of Section 98 came for  consideration  before
this Court as  to  the  applicability  of  the  Section  in  the  matter  of
reference to a third judge, the Court held:-
“11. As laid down by Section 4 sub-section (1) CPC itself in the absence  of
any specific provision to the contrary, nothing in the Code shall be  deemed
to limit or otherwise affect any special or local law now in  force  or  any
special jurisdiction or power conferred, or any special  form  of  procedure
prescribed, by or under any other law  for  the  time  being  in  force.  It
cannot be disputed that Letters Patent as applicable to the  High  Court  of
Gujarat is a special law in force  which  confers  special  jurisdiction  or
power and lays  down  special  form  of  procedure  prescribed  therein  for
governing the cases where the two learned Judges forming the Division  Bench
of the High Court differed  on  a  question  of  law  or  fact.  Under  such
circumstances clause 36 of  the  Letters  Patent  laying  down  the  special
procedure for meeting  such  a  contingency  was  required  to  be  followed
without in any way being impeded or restricted or being cut  across  by  the
procedural requirements  laid  down  by  Order  47  Rule  6  CPC.  The  said
provision on its own  would  apply  to  those  courts  which  were  governed
strictly by the procedure of Code of Civil Procedure and  had  no  provision
of Letters Patent Charter to fall back upon. In other words  chartered  High
Courts governed by the Letters Patent which  were  original  chartered  High
Courts or which were the successor High Courts like the Gujarat High  Court,
would be governed by the special procedure laid down by  clause  36  of  the
Letters Patent and that would remain saved by the  operation  of  Section  4
sub-section (1) CPC noted above. It is, therefore,  not  possible  to  agree
with the reasoning of the High Court in the impugned judgment to the  effect
that clause 36 of the Letters Patent does not deal with  a  situation  where
there is conflict of decisions between the two learned Judges of  the  Bench
sitting in review against the earlier judgment of the Division Bench of  the
High Court.
                                    xxxxx
Moreover the fact remains  that  by  the  enactment  of  Section  98(3)  CPC
whatever doubt earlier remained in connection with this controversy was  put
at rest by the legislature and the view propounded by the Privy Council  got
statutory recognition by the amendment of Section 98 and  the  insertion  of
sub-section (3) thereof.”


53.   In the case of Rulia Devi and others vs. Raghunath  Prasad,  AIR  1979
Patna 115, a Bench of the Patna High Court while considering  the  provision
of Section 98 CPC vis a vis clause 28 of the Letters Patent held:-

“It will be observed that the Letters Patent does not confine the  point  of
difference to a question  of  law  and  since  it  is  not  subject  to  any
limitation mentioned in Section 98 of the Civil P. C., it must be held  that
a difference between the Judges  constituting  a  Division  Bench,  for  the
purpose of reference to a third Judge, can be on a question  of  fact  also.
However, in the present case, the learned Judges did not  jointly  formulate
the points of difference, after delivering their  separate  judgments.  They
have in the order-sheet merely stated that as they differed the case  should
be placed before the Hon'ble the Chief  Justice  for  placing  it  before  a
third Judge.


7. Mr. Yogendra Mishra, appearing  for  the  plaintiff-respondent  raised  a
preliminary objection that since the points were not stated  by  the  Bench,
the reference to the third Judge was illegal. I do  not  see  any  merit  in
this argument inasmuch as the points, although not expressly  enumerated  by
a joint order, are apparent from the judgments. It is  nowhere  peremptorily
prescribed that the difference of opinion has to be formulated  by  a  joint
order. Besides, the irregularity in not doing so, if at all,  is  of  formal
nature and does not vitiate  the  proceeding  including  the  reference.  On
examining the observations contained in para  23  of  the  judgment  of  the
Madras High Court in A. K. Gopalan  v.  District  Magistrate,  Malabar  (AIR
1949 Mad 596) Mr. Mishra stated that  he  withdrew  his  objection  and  the
reference may be treated as good and be decided on merits.”




54.  Coming back to  the  instant  case,  the  two  learned  Judges  of  the
Division Bench  passed  separate  judgments.   One  of  the  learned  Judges
allowed the appeal and set aside the trial court judgment,  whereas  another
learned Judge affirmed the trial court finding  and  dismissed  the  appeal.
Both the learned Judges differed not only on the point of facts but also  on
the point of law.   The  learned  Chief  Justice,  therefore,  referred  the
matter to the third Judge  for  deciding  the  appeal.   The  learned  third
Judge, after going through the judgments of the  learned  differing  Judges,
formulated various issues and recorded its finding on all the  points.   The
learned third Judge finally upheld  the  finding  recorded  by  one  of  the
learned  differing  Judges  and  allowed  the  appeal.   In  our  considered
opinion, therefore, there has been complete compliance of Clause 36  of  the
Letters Patent of the Andhra Pradesh High Court and  the  impugned  judgment
cannot be vitiated on that account.


55.   Now, we shall discuss the judgment and the findings  recorded  by  the
two learned differing Judges of the High Court.  In  the  judgment  rendered
by Justice B. Prakash Rao the following  points  have  been  formulated  for
consideration:-
a)    Whether the plaintiffs have established the claim for  declaration  of
title in respect of the suit land.
b)    Whether the plaintiffs are in possession  of  the  suit     lands  for
claiming permanent injunction.
c)     whether  the  suit  lands  are  Jagir  lands  as  contested  by   the
defendants?
d)    Whether the relief of declaration of  title  can  be  granted  in  the
absence of truth of flow of title?
e)    Whether non filing of ceiling  declaration  can  have  the  effect  of
waiver of title?
f)    Whether the entries in the revenue records can be basis for  grant  of
a decree of declaration of title?
g)    Whether the suit is barred by limitation and whether  the  plaintiff’s
are estopped from filing the suit since they had earlier claimed  for  award
of computation amount contending that suit lands are Jagir lands?
h)    Whether the judgment of the trial court warrants any  interference  as
regards the findings recorded there?

56.   On consideration of the pleadings of  the  parties  on  the  point  of
change of survey number, the Court observed:-
“From a thoughtful consideration of the pleadings of the  parties,  we  find
that the state has been searching for  proper  defence   to  the  suit.   If
defence of the state has been varying from time to time.  We are  unable  to
understand as to  how  land  admeasuring  373.22  acres  in  Sy.  No.613  of
Nadergul Village can be separately shown in new  series  of  survey  numbers
from 1 to 191.  The village plan showing the number of  survey  numbers  has
not undergone any change.  No supplementary  sethwar  has  been  issued  and
there is no evidence on record that the original survey numbers  i.e.  1  to
875, have been increased by another set  of  survey  numbers  i.e.  the  new
series survey numbers 1 to 191.  Again the pahanies filed  by  both  parties
disclose the existence of Sy. No.613, they also disclose  the  existence  of
survey number 119 as two different  extent  of  land,  the  original  survey
number  is admeasuring AC. 1.20 guntas.  After the khasra pahani,  the  same
survey number 119 is shown as having an extent  of  Ac.355.12  guntas.   The
plaintiffs have impleded the survey department of the state as  one  of  the
defendants but no person from  such  a   department  has  been  examined  as
witness.  The oral evidence  adduced  by  the  Sate  consists  of  a  Mandal
Revenue Officer and Legal Officer.  None of these  witnesses  are  competent
to give evidence about the survey numbers in village, the  sub  division  of
survey numbers, the settlement operations where the  total   survey  numbers
in the village can get decreased or increased.  On one hand,  the  State  is
contesting the suit on the ground that  Nadergul  Village  is  Jagir  and/or
Inam and/or confiscated by the State.  In any of these eventualities,  there
cannot be change of location and existence together with  extent  of  survey
No.613. We are at a loss to understand as to  how  there  can  be  duplicate
survey numbers in the same village.  Similarly it is  understandable  as  to
how patta land can be confiscated and under which law such an action can  be
justified.”


57.   After considering Exhibits A-5 and A-6  which  are  Setwar  and  Vasul
Baqui,  the  learned  Judge  held  that  these  documents  have   not   been
challenged.  So far Exhibit A-12 which is Khasra Pahani, the  land  of  Raja
Shivraj  Dharmavanth  Bahadur  are  recorded  in  a  separate  series.  This
document has also not been challenged by the defendant.  The  learned  Judge
examined the written statement and observed:-
“Thus there is a clear admission in the written statement  that  up  to  the
khasra pahani, Raja Shivraj Dharmavanth Bahadur recorded as pattadar of  the
suit land.  As commented by us  earlier,  there  is  no  evidence  that  any
additional survey numbers added to the total survey numbers 875 in  Nadergul
village.  If that be so, it is the duty of the state to explain as  to  what
has happened to the vast chunk of land which was part of  survey  No.613  of
Nadergul village.  It is not explained as to why  Raja  Shivraj  Dharmavanth
Bahadur lands were to be recorded in a separate  series  of  survey  numbers
from 1 to 194.  The state has not explained as to  what  is  the  extent  of
each of these survey numbers 1 to 194.  It is not  the  case  of  the  state
that the village map of the Nadergul village has undergone a change or  that
any re-settlement  and  survey  operations  were  carried  out  in  Nadergul
village.   Hence,  we  have  no  hesitation  to  hold  that   Raja   Shivraj
Dharmavanth Bahadur was the pattadar of the suit land and  he  was  khatadar
for payment of revenue (khata No.3).”

58.   The learned judge further observed:-
“The learned Advocate General  had  vehemently  submitted  that  entries  in
Revenue Records can neither create title nor they take away title.   He  has
further submitted that in order to make out a case of declaration of  title,
the plaintiff is obligated to establish the flow of title by  producing  the
link documents and established that he has acquired ownership from  a  valid
person.  On the other hand, the  learned  counsel  for  the  plaintiffs  had
submitted that in Telangana Area, the matters of revenue were  regulated  by
the A.P. (T.A.) land Revenue Act 1317 F and various rules  were  made  under
the said Act and the entries in Sethwar, vasulbaki and khasra pahani  cannot
be construed as entries in yearly pahanies  and  that  the  recording  of  a
person as a pattadar under Section 2(11) of the act, he is  entitled  to  be
declared as owner  of the said land, the   plaintiffs  have  not  placed  by
evidence before us as to how Raja Shivraj Dharmavanth Bahadur  had  acquired
the suit lands.  According  to the learned counsel for  the  plaintiff,  the
fundamental mode of acquisition the most primitive mode  of  acquisition  is
capturement and if the Ruler that Nizam acknowledges the  same,  that  would
be sufficient to construed him as  owner of the  land, the  learned  counsel
for the plaintiff has placed reliance  on a Division  bench  of  this  Court
reported in AIR 1970 AP 19 para 19.  In the said judgment it has  been  held
that the act has defined the expression permanent Alienation “in  section  2
(o) to include any sale exchange or gift and any  transfer  of  a  right  of
occupancy or of the patta of holding  but  excluding  any  dispossession  by
will.  It is therefore obvious from the provisions of the Land  Revenue  Act
any person is legally  entitled  to  be  in  possession,  whether  with  the
permission of Tehsildar in respect of vacant lands under Section 54 or of  a
pattadar who is in possession, has a right of occupancy which  is  heritable
and transferable under section 58.  It is this type  of  occupancy  that  is
included in the definition of permanent alienation” in Section 2(o)  of  the
Tenancy Act.  The learned counsel for the plaintiffs has placed reliance  on
section 2((11) of A.P. (T.A.) Land  Revenue  Act  with  defines  a  pattadar
which means the person who is directly responsible  to  the  Government  for
payment of land revenue and whose  names   has  been  entered   as  such  in
government records whether he be personally in possession of the holding  or
thorough his Shikmidar .  Section 24 of the Act  declares  that  all  public
roads, lanes,  paths,  bridges,  ditches,  dikes,  rivers,  streams,  tanks,
ponds, canals, lakes and flowing water and  all  lands,  wherever  situated,
together with all rights  appertaining  thereto  are  the  property  of  the
Government excepting.”



59.   Referring various decisions of  the  High  Court  and  Supreme  Court,
learned judge concluded that the entries  in  Setwar  and  Vasul  Baqui  and
Khasra Pahani are  prepared  under  the  statute  and  hence  these  entries
constitute title.  The learned Judge observed as under:
“We are unable  to  understand  as  to  why  the  plaintiffs  cannot  placed
reliance on entries in the sethwar, vasulbaki and khasra  pahani  which  are
exhibited as Ex.B19 (bunch of pleaded).  This is a very peculiar case  where
duplicated survey numbers are pleaded by the State.  It is not  possible  to
digest as to what has happened to the land  in  survey  No.613  (suit  land)
since it  was  specifically  in  existence  with  Raja  Shivraj  Dharmavanth
Bahadur as pattadar and Khatadar up to the year 1954-55.  Even  if  Nadergul
village is assumed as Jagir village or Inam village,   the  entire  land  in
Nadergul village must have the same consequence i.e. getting vested  in  the
State.  But the  written  statement  shows  that  Raja  Shivraj  Dharmavanth
Bahadur land are separately shown in separate series of survey numbers  from
1 to 194 with different owners.  It is not the case of  the  state  that  it
has granted by assignment of the land in  Nadergul  village.   There  is  no
possibility of a single survey number i.e. sy. No. 613 (suit  land)  getting
covered either under the Hyderabad Abolition  of  Jagir  Regulation  or  the
A.P. (T.A.) Abolition of Inams Act 1955.  At any rate the identity  of  land
in Sy. No.613 (suit land) as  found  in  Ex.  A.10  touch  plan  and  Exd.A9
village map cannot  undergo any  change  whatsoever.  Ownership  may  change
from one person to the other but the land cannot  change  its  location  and
identity when described with reference  a  survey  number.   Hence,  we  are
unable to agree with the state that Ex. A.5 and  A  6  cannot  be  taken  as
title documents.  Hence, we hold  that Raja Shivraj Dharmavanth Bahadur  was
the pattadar, khatadar and owner of the suit land and since  the  plaintiffs
are the successors  of  Raja  Shivraj  Dharmavanth  Bahadur,  they  are  the
successors to claim title of the suit land.  We  reject  the  contention  of
the state that the lands of Raja Shivraj Dharmavanth  Bahadur  are  recorded
separately in a new series of survey numbers i.e. 1 to 194  since  there  is
no iota of evidence about the creation or existence of such survey  numbers.
 It is now possible to comprehend that survey numbers would be changed  when
it relates to the title of the person.  The object of conducting  survey  of
land is to maintain the identity of the land and hence  the  endorsement  in
the khasra pahani that lands of Raja Shivraj Dharmavanth Bahadur  are  shown
separately is of no intelligible meaning.  The evidence of DW 1 and DW2  has
not thrown any light on these aspects.  It is  to  be  remembered  that  the
State has pleaded that the lands of Raja  Shivraj  Dharmavanth  Bahadur  are
recorded in separate series  of  survey  numbers  from  1  to  194  (written
statement para 4) and  hence the burden is upon the state to prove the  same
and  explain  as  to  what  had  happened  to  the  lands  of  Raja  Shivraj
Dharmavanth Bahadur.  No such attempt has been made by the State  and  hence
we are constrained to reject the contention of the state  after  the  khasra
pahani, Raja Shivraj Dharmavanth Bahadur’s land in Sy.  No.613  of  Nadergul
village is shown separately in a fresh series of survey numbers  i.e.  1  to
194.”

60.   On the issue whether the Nadergul Village  is  a  Jagir  village,  the
Court held:-
“From the documentary evidence adduced by the State, there is  no  basis  to
construe that  Nadergul  village  is  a  Jagir  village.   We  have  earlier
observed that if a village happens to be a jagir  village,  all  the  survey
numbers of the village should have the same effect by virtue  of  the  Jagir
Abolition Law.  The state has contended that there are private  patta  lands
in Nadergul village  in  other  survey  numbers.   Hence  it  is  absurd  to
appreciate that survey No.613 of Raja Shivraj Dharmavanth Bahadur alone  can
be construed as a Jagir.  Above all, the state has  not  chosen  to  partify
its pleading by adducing the best evidence  i.e.  any  notification  showing
that the suit lands are jagir lands.  Hence we have no  hesitation  to  hold
that the suit land is not Jagir land and hence it cannot be claimed  by  the
State.”

61.   On the issue of maintainability of suit,  the  learned  Judge  finally
held that:-
“We have already noticed  the  judgment  of  the  Nazim  Atiyat,  which  has
rejected computation amount for List III villages in Ex.B1.  Hence there  is
nothing improper in filing the present suit for declaration  of  title.   It
is  settled  law  that  a  claim  for  declaration  of  title   never   gets
extinguished by efflux of time. Even under  Article  65  of  the  Limitation
Act, 1963 the Limitation runs only from the date on which the possession  of
the defendants becomes adverse to the plaintiffs.  Hence we  hold  that  the
plaintiffs are not disqualified from  filing  the  suit  even  if  they  had
approached the Nazim Atiyat under Ex. B1 proceedings.”


62.   On these findings, the learned judge allowed the appeal and set  aside
the judgment passed by the Trial Court.

63.   The second learned Judge, Justice R. Kantha Rao, delivered a  separate
judgment, disagreeing with all the findings recorded by Justice  B.  Prakash
Rao.  Learned Judge firstly held that the suit for declaration of  title  as
owners of the property, the burden is  on  the  plaintiffs  to  prove  their
title of ownership.  The learned Judge referring various judgments  rendered
by this Court and the High Court came to the conclusion that the  holder  of
General Power of Attorney (GPA) is not  competent  to  give  evidence.   The
holder of GPA cannot be substituted for the  said  purpose.   Learned  Judge
further noticed that the legal heirs of Raja  Sivaraj  Bahadur  participated
in the Inam Enquiry before the Nizam Atiyat to declare their rights and  fix
the commutation in respect of Jagir lands.  The  Nizam  Atiyat  by  judgment
dated 20.07.1958 (Ex.B-1) passed order for payment of commutation amount  in
respect of Jagir villages.  Some of the plaintiffs preferred appeal  against
the judgment of the Nazim Atiyat to Board of Revenue  and  this  appeal  was
dismissed.  Thereafter, some of the  plaintiffs  filed  the  writ  petition,
which was allowed and the matter was remanded to the Board  of  Revenue  for
fresh disposal.  Further, the  appeal  was  ultimately  dismissed  for  non-
prosecution.  According to the learned Judge, therefore the order passed  by
the Appellate Authority  dismissing  the  appeal  for  non-prosecution  will
operate as res judicata.

64.   The learned Judge  also  disagreed  with  the  another  Judge  on  the
finding that when a person is recorded as Pattedar and Khatadar  he  has  to
be considered to be the owner of the property and there is no  necessity  of
proving the source of  the  acquisition  of  the  land.   According  to  the
learned Judge, mere marking of documents such as Ex.A-5, certified  copy  of
Sethwar relating to Sy.No.613 of Nadergul Village,  Ex.A.6,  certified  copy
of the Vasulbaki Register of Sy.No.613 of Nadergul village and  Exs.A-12  to
A-14 – certified copies of pahanies where name of Raja  Sivaraj  Bahadur  is
found, the plaintiffs are  not  entitled  for  declaration  of  title.   The
learned Judge is of the view that plaintiffs failed to adduce  any  positive
evidence to prove title and possession of the suit  property.   Accordingly,
he by his judgment dismissed the appeal.

65.   It is pertinent to mention  here  that  on  perusal  of  two  separate
judgments written by learned Judges of the Division  Bench,  they  have  not
agreed on any point of facts or point of law rather they  have  decided  the
appeal by expressing their separate views.  This may be the reason when  the
file was placed before the Chief Justice, he referred the matter to a  third
Judge for deciding the appeal after considering the  different  views  given
by the two learned Judges in the separate judgments written  and  signed  by
them.


66.   Justice A. Gopal Reddy,  before  whom  the  appeal  was  referred  and
finally placed for hearing, has considered the two  judgments  delivered  by
the differing Judges.  The third Judge considered  in  detail  the  judgment
given by Justice B. Prakash Rao,  who  extensively  dealt  with  the  entire
facts of the case and the evidence brought on record.  After discussing  the
pleadings of the parties in detail, the learned Judge framed  the  following
eight points for consideration:
“a)   Whether the plaintiffs have established the claim for  declaration  of
title in respect of the suit land.
b)    Whether the plaintiffs are in possession  of  the  suit     lands  for
claiming permanent injunction.
c)     whether  the  suit  lands  are  Jagir  lands  as  contested  by   the
defendants?
d)    Whether the relief of declaration of  title  can  be  granted  in  the
absence of truth of flow of title?
e)    Whether non filing of ceiling  declaration  can  have  the  effect  of
waiver of title?
f)    Whether the entries in the revenue records can be basis for  grant  of
a decree of declaration of title?
g)    Whether the suit is barred by limitation and whether  the  plaintiff’s
are estopped from filing the suit since they had earlier claimed  for  award
of computation amount contending that suit lands are Jagir lands?
h)    Whether the judgment of the trial court warrants any  interference  as
regards the findings recorded there?”

67.   At the very outset, the learned Judge noticed the  admission  made  in
the written statement that in Khasra pahani of  1954-55  late  Raja  Sivaraj
Dharmavanth Bahadur was  recorded  as  Pattadar  and  Khatadar  of  S.No.613
admeasuring AC.373-22.  It has  further  been  admitted  that  in  the  said
Khasra Pahani survey numbers the name of Raja Sivaraj Bahadur  are  recorded
separately in a new series of Survey Numbers from  1  to  194.   Further  in
Ex.12(a), which is a Khasra Pahani, it is recorded as ‘cultivated self’  and
it is  mentioned  as  Inam  Dastagardan  (suspense  account)  and  in  which
Pattadar’s name is mentioned as “Sivaraju Ilaka” and survey numbers of  Siva
Raju Bahadur are written separately.   The  learned  Judge  further  noticed
that even in pahani for the year 1960-61 of Nadergul Village  covered  under
Ex.12(b), which is mentioned at serial no.2, Survey No.613  Sivaraju  Ilaka.
The learned Judge further came to the following finding:
“In pahani pathrika for the year 1949-50 covered  under  Ex.19(a),  S.No.613
is shown as Kancha Siva  Raj  Dastagardan  admeasuring  AC.323-22.   In  the
pahani  patrika  for  the  year  1950-51  covered  under  Ex.B-19,  S.No.613
admeasuring  Ac.373-22   is   classified   as   “Kancha   Sevaraj   Munzabta
Confiscated”, and name of Khathadar is mentioned as Kancha Severaj.   In  th
Khsra Pahani for the year 1954-55 covered under Ex.B-19(a), it was shown  as
S.No.119 and extent is shown as Ac.355-12 guntas and column No.6  was  shown
as Sirkari and land name is Khas Sagu (cultivated self).  D.Ws.1 and 2,  who
entered into the witness box have not clarified  as  to  how  two  different
Khasra pahanies were maintained, namely, in the khasra pahani for  the  year
1954-55, Raja Sivaraj Dharmavanth Bahadur has been recorded as Pattadar  and
Khatadar of S.No.613  admeasuring  373-22,  another  Khasra  Pahani  covered
under Ex.B-19(a), S.No.119  of  Nadergul  is  admeasuring  Ac.355-12  guntas
which is Sirkari but Sivaraj Ilaka.  It is admitted by the  defendants  that
total survey numbers in Nadergul village are 875.   The  village  map  which
was marked by the plaintiffs shows original 875 survey numbers and  the  new
series of 1 to 194 survey numbers.  It is  admitted  in  the  first  written
statement filed by the fifth defendant that suit  land  was  confiscated  to
the State and how the same was confiscated  to  the  State  and  under  what
proceedings the land was confiscated has not  be  stated.   In  the  amended
written statement, State has  taken  several  alternative  and  inconsistent
defences by contending that Nadergul village is Inam Dastagardan.   Even  if
we accept that is Inam Dastagardan,  it  is  only  a  suspense  account  and
rights of the parties have to  be  determined  under  Inams  Abolition  Act.
There is no proof that the land has been  treated  as  government  land  and
confiscated to the State.  Once it is recorded that  S.  No.119  admeasuring
Ac.1-20 guntas belongs to Gaddam Mallaiah, how the same survey  Number  i.e.
119 can be recorded as having an extent of Ac.355-12  guntas,  shown  it  as
government land.  D.Ws.1 and 2 have  not  properly  explained  the  same  in
their evidence.”

68.   The learned Judge on the issue with regard to  Atiyat  proceedings  in
respect of Jagir land came to the following finding:
“It is relevant to note here, Baga Nadergul village has  been  mentioned  in
List-III  under  the  heading  Tahrir  Pawanni  Jagirs  under  Serial  No.8.
Therefore, no commutation amount has  been  fixed  for  list  III  villages,
which is subject to further enquiry with regard to the claim, if  any  filed
by sub-grants to prove their possession.  By  any  stretch  of  imagination,
the heirs of Raja Shivaraj Dharmmavanth  Bahadur  were  awarded  commutation
amount to foreclose their rights under the above proceedings.  Even  if  the
appeals were dismissed after remand order passed  by  the  High  Court,  the
commutation amount, if any awarded under Ex.B-2 is only for the lands  which
are not covered  by  proceedings  under  Ex.B-1.   Further,  as  per  Khasra
Pahani, the land revenue account of late Raja  was  Khata  No.3.   The  said
fact has been admitted in the written statement.  Whereas  Ex.B-2  and  B-27
are in respect of Khata No.6, which should obviously be different  from  the
revenue account of late Raja i.e. Khata No.3.  Therefore, it can  safely  be
concluded that Exs.B-2 and B-27 do not pertain to the lands  of  which  late
Raja was Khatadar/pattadar.  Further, it was categorically stated  in  NB(1)
of Ex.B-2 that the award will be implemented  on  the  payments  side  after
carefully  checking  and  reconciling  the  number  of  jagir  villages   as
furnished by the estate authorities with the  list  recently  received  from
the Atiyat Department, so as to keep the commutation sum of  villages  shown
in list No.III attached to Nazim Saheb Atiyat’s L.No.1884 dt.  27-2-1958  in
reserve  as  ordered   by   the   Board   of   Revenue   in   their   letter
No.U/993/58/Atiyat dt.12-4-1958.  So,  the  amounts  so  mentioned  are  not
conclusive but were ordered to keep in reserve until rights of  the  parties
are decided in separate proceedings.  Therefore, it  is  not  open  for  the
Government to contend that the properties are confiscated  or  vest  in  the
Government in the light of the commutation award passed  by  the  Office  of
the Jagir Administrator,  Government  of  Andhra  Pradesh,  Hyderabad-Deccan
dt.30.3.1959 (Exs.B-2 and B-27).”

69.   The learned Judge has further taken notice of the fact  that  of  late
the State Government, now, is claiming property by rounding  off  the  names
of pattadars and others in the revenue  records  without  referring  to  any
proceedings, which fact has been observed by one of  the  decision  in  Syed
Ahmad Hasan case, 2011(4) ALT 262 (DB).

70.   Finally, the learned Judge came to the following conclusion:
“From the above discussion and the law laid down by this Court  as  well  as
the Supreme Court, it  is  to  be  held  that  the  plaintiffs  successfully
demonstrated that the late Raja was pattadar/khatadar of  the  land  covered
by S.No.613 admeasuring 373-22 guntas in the Khasra Pahani, the  presumption
backward/forward can be applied in his favour or  in  favour  of  his  heirs
that he or they continued to be pattadar(s).  Unless the State  proves  that
the said land has  been  confiscated  or  vest  in  the  State  under  Jagir
Abolition Act on abolition of jagirs or for non filing of  declaration,  the
property vest in the Government under the provisions of Andhra Pradesh  Land
Reforms (Ceiling on Agricultural Holdings), 1973, mere mentioning  “Sarkari”
in  subsequent  pahanies  or  giving  duplication  S.No.119,  title  of  the
original owner will not vanish and it continues to be vest  with  them.   In
Khasra Pahani for the year  1954-55  covered  under  Ex.12(a),  when  it  is
stated that S.No.613 has been recorded  as  “Self  Cultivation  Dastagardan”
and numbers of the Sivaraj Bahadur has been written separately and the  same
has also been shown as S.No.119 under Ex.12(b).   Therefore,  late  Raja  or
his heirs continue(s) to be pattadar(s) for the corresponding survey  number
and on changing also, but the same cannot become the government property  as
contended by the learned Advocate General.  Further, the  identity  of  land
in S.No.613, suit land, as found in Ex.A-10-touch  plan  and  Ex.A-9-village
map cannot undergo any change whatsoever and ownership may change  from  one
person to the  other  but  the  location  of  land  and  its  identity  with
reference to survey number  cannot  be  changed.   Therefore,  there  is  no
further necessity for the plaintiffs to  seek  declaration  of  their  title
except to seek correction of record of rights recording  the  names  of  the
heirs of late Raja i.e. the plaintiffs.  Thus, the plaintiffs  are  entitled
for a declaration for correction of the entries  in  the  record  of  rights
recording the names of the legal heirs of  late  Raja  and  also  injunction
restraining the defendants from interfering  with  the  plaintiffs  peaceful
possession.”


71.   The learned third Judge, therefore, agreed with the  finding  recorded
by one of the Judge, Justice  B.  Prakash  Rao  and  upheld  the  conclusion
arrived at by him and consequently allowed the appeal.


72.   We have meticulously perused the pleadings of  the  parties,  and  the
evidence, both oral and documentary adduced by  them.   We  have  also  gone
through the findings recorded by the trial court, the findings  recorded  in
two separate judgments passed by the Division Bench of the  High  Court  and
finally the impugned judgment passed by the third learned Judge of the  High
Court.  The third learned Judge to whom the matter was referred  has  agreed
with and upheld the finding recorded by one of the judges  of  the  Division
Bench and allowed the appeal decreeing the  suit  filed  by  the  plaintiff-
respondents.

73.    The  plaintiff-respondents  filed  the  suit   for   correction   and
rectification of record of right in respect of  S.No.613   measuring  373.22
guntas of land which was recorded in the name of  the  predecessors  of  the
plaintiffs and the same alleged to have been illegally  rounded  up  by  the
Revenue authorities and a new S.No.119 was created in favour  of  the  State
without any notice and legal proceedings.


74.   It has not been disputed by the appellant-State  that  the  suit  land
comprised within S.No.613 measuring 373.22 guntas was held and possessed  by
Raja Shiv Raj Bahadur who was the  Khatadar  and  Pattadar  of  S.No.613  of
Village Nadergul.  It is also not in dispute that succession of  the  Estate
of Late Raja Shiv Raj Bahadur was declared by a Royal Firman  of  the  Nizam
in favour of Raja Dhiraj Karan, Dharam Karan, Mehboob Karan  and  the  heirs
of Manohar Raj vide Firman dated 4th Ramzan 1359 Fasli.   On  the  death  of
Raja the succession of the Estate was granted by the Royal Firman in  favour
of the sons of the two brothers  and  by  subsequent  Firman  in  favour  of
Pratap Karan, who is one of the plaintiffs.

75.   It has been admitted in the written statement that in the  Setwar  and
Vasool Baqui, the name of Raja  was  recorded  as  the  owner  of  the  said
S.No.613.  Subsequently, in the Khasra Pahani which is the basic  record  of
right prepared by the Board of Revenue, Andhra Pradesh for the year  1954-55
the name of Raja Shiv Raj Bahadur was entered  as  the  absolute  owner  and
possessor of the suit land.  Hence, the title  of  the  owner  supported  by
various documents including the Khasra Pahani, which is a document of  title
has been proved beyond doubt.

76.   Recently, in the case of Collector  vs.  Narsing  Rao,  (2015)  3  SCC
695, this Court (one  of  us-Hon’ble  C.  Nagappan,  J.  was  a  party)  had
considered a similar question where the challenge to the title  of  pattadar
by the Government was negatived and this court held :-

“13. Consequent to the merger of Hyderabad State  with  India  in  1948  the
Jagirs were abolished by the Andhra Pradesh (Telangana Area)  (Abolition  of
Jagirs) Regulation, 1358 Fasli. “Khasra  pahani”  is  the  basic  record-of-
rights prepared by the Board of Revenue Andhra Pradesh  in  the  year  1954-
1955. It was gazetted under  Regulation  4  of  the  A.P.  (Telangana  Area)
Record-of-Rights in Land Regulation, 1358 F. As per Regulation 13 any  entry
in the said  record-of-rights  shall  be  presumed  to  be  true  until  the
contrary is proved. The said regulation of 1358 F was in vogue till  it  was
repealed by the A.P. Rights in Land  and  Pattadar  Pass  Books  Act,  1971,
which came into force on15-8-1978.  In  the  2nd  Edn.  (1997)  of  The  Law
Lexicon by P.  Ramanatha  Aiyar  (at  p.  1053)  “Khasra”  is  described  as
follows:
“Khasra.—Khasra is a register recording the incidents of a tenure and  is  a
historical record. Khasra would serve the purpose of a deed of  title,  when
there is no other title deed.”


77.   One of the Judges of the Division Bench after  considering  the  facts
of the case and discussing elaborately the  oral  and  documentary  evidence
recorded a finding with regard to  the  title  in  respect  of  S.No.613  in
favour of the plaintiffs.  The third Judge in  the  impugned  judgement  has
also discussed the evidence and finally upheld the finding recorded  by  one
of the Judges of the Division Bench.  We do not find any  reason  to  differ
with the finding recorded by the two judges of the High Court on  the  issue
of title of the plaintiffs predecessors over the suit land.


78.   Besides the above, it has not been denied by the appellant that  there
is an endorsement in the said Khasra Pahani, Survey  No.613  admeasuring  AC
373.22 is recorded as “cultivated self’ and in  column  7  it  is  mentioned
that Inam Dastagardan (suspense account),  Exhibit  12(a).   The  appellant-
State have totally failed to prove as to under which  proceeding  and  under
what circumstances, the suit land was suddenly  shown  as  Government  land.
No proceeding whatsoever was initiated before the  alleged  confiscation  of
the suit land.  Admittedly, Survey No.119 admeasuring 1.20  guntas  belonged
to one Gaddam Mallaiah which is evident from the revenue  record.   We  have
failed to understand as to how another Survey  No.119  came  into  existence
showing entire suit land to the extent of AC 355.12 guntas treating   it  as
Government land.

79.   Mr. V. Giri, learned  senior  counsel  appearing  for  the  appellant,
contended that under the  Jagir  Abolition  Regulation   the  suit  land  is
vested in the State.   Consequently,  the  matter  was  referred  to  Atiyat
proceeding for commutation of compensation it was  only  because  the  sanat
has not proved the claim for  compensation  in  respect  of  suit  land  was
rejected.

80.   We are unable to accept the  submission  made  by  Mr.  Giri,  learned
counsel for the appellant.   From  perusal  of  exhibit  B-1  which  is  the
judgment of Nizam Atiyat dated 20.1.1958 it is  evident  that  the  mass  is
comprised of Jagir, Rusums and Inam land. The High  Court  in  the  impugned
judgment has rightly observed:-
“It is relevant to note here, Baga Nadergul village has  been  mentioned  in
List-III  under  the  heading  Tahrir  Pawanni  Jagirs  under  Serial  No.8.
Therefore, no commutation amount has  been  fixed  for  list  III  villages,
which is subject to further enquiry with regard to the claim, if  any  filed
by sub-grants to prove their possession.  By  any  stretch  of  imagination,
the heirs of Raja Shivaraj Dharmmavanth  Bahadur  were  awarded  commutation
amount to foreclose their rights under the above proceedings.  Even  if  the
appeals were dismissed after remand order passed  by  the  High  Court,  the
commutation amount, if any awarded under Ex.B-2 is only for the lands  which
are not covered  by  proceedings  under  Ex.B-1.   Further,  as  per  Khasra
Pahani, the land revenue account of late Raja  was  Khata  No.3.   The  said
fact has been admitted in the written statement.  Whereas  Ex.B-2  and  B-27
are in respect of Khata No.6, which should obviously be different  from  the
revenue account of late Raja i.e. Khata No.3.  Therefore, it can  safely  be
concluded that Exs.B-2 and B-27 do not pertain to the lands  of  which  late
Raja was Khatadar/pattadar.  Further, it was categorically stated  in  NB(1)
of Ex.B-2 that the award will be implemented  on  the  payments  side  after
carefully  checking  and  reconciling  the  number  of  jagir  villages   as
furnished by the estate authorities with the  list  recently  received  from
the Atiyat Department, so as to keep the commutation sum of  villages  shown
in list No.III attached to Nazim Saheb Atiyat’s L.No.1884 dt.  27-2-1958  in
reserve  as  ordered   by   the   Board   of   Revenue   in   their   letter
No.U/993/58/Atiyat dt.12-4-1958.  So,  the  amounts  so  mentioned  are  not
conclusive but were ordered to keep in reserve until rights of  the  parties
are decided in separate proceedings.  Therefore, it  is  not  open  for  the
Government to contend that the properties are confiscated  or  vest  in  the
Government in the light of the commutation award passed  by  the  Office  of
the Jagir Administrator,  Government  of  Andhra  Pradesh,  Hyderabad-Deccan
dt.30.3.1959 (Exs.B-2 and B-27).”



81.   The learned Judge of the High  Court  in  the  impugned  judgment  has
taken judicial notice  of  the  fact  that  the  Government,  now-a–days  is
claiming property by rounding off the names of Pattadars and others  in  the
Revenue Records without referring to any proceedings, which  fact  has  also
been observed in a Division Bench judgment of the Andhra Pradesh High  Court
in the case of Syed Ahmad Hasan, 2011(4) ALT 262.

82.   Both the trial court and the learned Judge of the Division Bench,  who
affirmed  the  finding  of  the  trial  Court  have  failed  to  take   into
consideration the relevant provision of the Hyderabad (Abolition of  Jagirs)
Regulation, 1358 Fasli and held that by the said Regulation, all Jagir  land
became the Government land.  Sections 17  and  18  of  the  Jagir  Abolition
Regulation read as under:-

“17. Home-farms.--
(1) Nothing in this Regulation shall affect the home farm  (seri  Khudkasht)
of a Jagirdar or Hissedar which, subject to any law for the  time  being  in
force, he shall continue to hold, -
(a) where the village in which the farm is situate has  been  brought  under
survey and  settlement  whether  before  or  after  the  appointed  day,  in
accordance  with  the  terms  recorded  at  the  time  of  such  survey  and
settlement;
(b) for so long as the  village  has  not  been  brought  under  survey  and
settlement,  in  accordance  with  the  terms  and   conditions   prevailing
immediately before the appointed day.
(2) For the purposes of sub-section (1) the extent  and  boundaries  of  the
home-farm  of  a  Jagirdar  or  Hissedar  shall  be  such   as   the   Jagir
Administrator may by order determine :
Provided that no forest or waste land shall be included in any home-farm.

18. Personal property and liabilities not affected.--
Nothing in this Regulation shall affect, -
(a) the personal property of a Jagirdar or Hissedar or  any  property  other
than the Jagir held by a Jagirdar on behalf of the Hissedar, or
(b) any liability of a Jagirdar or Hissedar in respect  of  any  loan  taken
from Government.”


83.   From bare perusal of the aforesaid provision it  is  clear  that  such
land which has been brought under survey settlement and record of right  has
been prepared in the name of the land owner in respect  of  self  cultivated
land shall have no effect on the provisions of Jagir Abolition Regulations.



84.    On  the  finding  recorded  by  the  Trial  Court  on  the  issue  of
possession, the plaintiff produced  evidence  stating  that  for  irrigation
purpose on the land, 18 bore-wells have been dug, some bore-wells were  dug-
up in 1980 and some in 1990s and 5 during the last five years.  It has  also
come in evidence that the plaintiff obtains three  service  connections  for
the bore-wells in the name of the deponent. The Trial Court took  notice  of
the fact that the defendant State has admitted that both Sethwar and  Wasool
Baki do contain the name of Shivraj Bahadur, the truth  of  these  documents
and the correctness of  entries  therein  are  not  in  dispute.   The  only
contention of the State was  that  these  are  the  records  long  prior  to
independence and subsequently there have been several changes and  different
revenue entries have been made and there is no consistency  in  the  Revenue
entries recognizing the title of the plaintiffs-predecessors interest.



85.   The Trial Court considered the  decision  in  the  case  of  State  of
Himachal Pradesh Vs. Keshav Ram and Ors.,  1997  (AIR)  SC  2181  which  was
relied upon by the learned Advocate General, the Trial Court held  that  the
decision of the Supreme Court (Supra) was not considered by the  High  Court
in the earlier decisions.  The Trial  Court  erroneously  held  that  except
entries made in Sethwar and Wasool Baqui, there are  no  subsequent  Revenue
entries much less consistent entries to corroborate the entries  in  Sethwar
and Wasool Baqui to establish title.  The  Trial  Court  recorded  incorrect
finding that the subsequent Revenue entries do not contain the name of  Raja
Shivraj Bahadur either pattadar/khatadar and in all the records  instead  of
his name the land was either shown as Kancha-Sarkari or land confiscated  by
the government.  The Trial Court further erroneously held that even  in  the
khasra-pahani of the year 1954-55 which is an important Revenue Record,  the
name of Raja Shivraj Bahadur was not shown as khatadar/ patadar.



86.   In the decision relied upon by the Trial Court  (AIR  1997  SC  2181),
the fact was that the land originally belonged to the plaintiff but  in  the
year 1950, the name of the State was recorded in  the  settlement  paper  as
the owner.  The plaintiff applied for necessary corrections  of  the  record
and ultimately in a suit, the Civil Court passed a decree in favour  of  the
plaintiff.  The matter finally came to this  Court.   Allowing  the  appeal,
this Court held that since the name of the State  was  recorded  to  be  the
owner of the land in the Record of right prepared in the year  1949-50,  the
Court could not have passed a decree for the change of Revenue record.



87.   In the instant case, the fact  is  totally  reverse.   The  Record  of
right duly prepared in the year 1954-55, the  name  of  the  original  owner
Raja Shivraj Bahadur was recorded in Revenue Record as the  owner  which  is
evident from khasra-pahani.  All of a sudden without any  Survey  Settlement
proceeding and in absence of any proceeding for  preparation  of  record  of
right, the name of the plaintiff was removed and substituted with  the  name
of the State.  Hence, the aforesaid decision of this Court  rather  supports
the case of the plaintiff.



88.   Admittedly, Nadergul Village was brought under Survey  and  Settlement
in the Revenue record of right including khasra-pahani land  which  were  in
original possession of Raja Shivraj Bahadur was given  corresponding  Survey
No. 613 and in the remark column recorded as “Self Cultivation  Dastagardan”
and the successor of Raja, namely, the  plaintiff  continued  possession  of
the suit land.  Similarly, one Gaddam Mallaiya was allotted Survey  No.  119
in respect of his land which is undisputedly come in his possession.



89.   Considering all  the  documentary  evidences  together  viz.,  Exh.P-2
Firman confirming the successor of Late Raja   Dhiraj  Karan  in  favour  of
Pratap Karan, one of the plaintiffs,  Exh.P-5  Sethwar  for  Survey  No.613,
Exh. P-8 Vasool Baqui, substantiate the case  of  the  plaintiff-respondents
that the  Revenue  Records  were  not  correctly  and  properly  maintained.
Further, the Touch Plan copies  of  Survey  No.613  and  119  and  certified
copies of Pahani in respect of the suit land show the incorrect  maintenance
of Revenue Records.  Certified copies of Pahani for  the  year  1949-58  and
2000-01 of Survey No.119 make it clear that there is duplication  of  survey
numbers. Indisputably, Survey No.613 was suddenly rounded off  stating  that
the property was separately shown.  There  is  no  explanation  or  evidence
from the side of the appellants as to under which proceeding  and  by  which
order the Revenue Record was changed.  So far as the claim  of  confiscation
of the land by the Government is concerned no proceeding  was  initiated  by
any competent authority under any law before making entries in  the  Revenue
Records that land was confiscated.    For doing the same  there  must  be  a
proceeding and order of confiscation of the land which has not been  brought
on record.  Further, there is no document  to  show  that  in  pursuance  of
confiscation entries the person  in  occupation  was  dispossessed  and  the
record is maintained showing dispossession  and  taking  possession  of  the
land by the Government.  In the survey settlement proceedings  there  cannot
be duplication in survey numbers.  We have failed to understand as to how  a
duplicate Survey No.119 came into existence and the land  of  Survey  No.613
was shown in that duplicate  survey  No.119.   The  learned  District  Judge
while deciding the injunction application  has  recorded  admission  of  the
Government that the plaintiffs are in possession of the suit land.   On  the
basis of admission by the appellant and the Revenue Record  the  Court  gave
interim protection by granting a  temporary  injunction  in  favour  of  the
plaintiffs.

90.    In  the  instant  case,  although  the  Trial   Court   decided   the
Interlocutory Application  for  injunction  not  only  on  consideration  of
documentary evidence,  but  also  admission  made  by  the  appellant  State
admitting possession of the plaintiff over the suit land but  in  the  final
judgment, no finding recorded with regard to possession  of  the  suit  land
except that these documents do not prove title of the plaintiff on the  suit
land.

91.   One of the learned Judges of the Division Bench  on  consideration  of
all the documentary evidence and the Revenue Records  recorded  the  finding
in favour of the plaintiff.  The said finding  of  the  learned  judges  has
been affirmed and upheld by the learned third Judge of the  High  Court  and
allowed the appeal and set aside the finding of the Trial Court.


92.   We have given our thoughtful consideration on the finding recorded  by
the learned Judges of the Division Bench and finding recorded by  the  third
learned Judge to  whom  the  matter  was  referred  for  passing  the  final
judgment.  In our       view, there is no material on the record to  reverse
the finding of the two learned Judges of the High Court.


93.   For the aforesaid reasons, we find no merit in C.A.  No.2963  of  2013
and the same is dismissed.

94.   So far as Civil  Appeal  No.2964  of  2013  filed  by  the  appellant-
Corporation is concerned, admittedly the appellant-State,  despite  pendency
of appeal in the High Court, transferred the suit  land  in  favour  of  the
Corporation.  The said transfer is not only hit  by  lis  pendens  but  also
appears to be not  bonafide.   Be  that  as  it  may,  consequent  upon  the
dismissal of the appeal of the State being C.A.No.2963 of 2013,  the  appeal
being C.A.No.2964 of 2013 filed by the Corporation is also dismissed.

                                                                  ……………………J.
                                                                (M.Y. Eqbal)



                                                                  ……………………J.
                                                               (C. Nagappan)
New Delhi
October 09, 2015


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