Pinninti
Kistamma & Ors Vs. Duvvada P. Chowdary & Ors [2010] INSC 22 (8 January
2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6900-6906
OF 2001 Pinninti Kistamma and Ors. ...APPELLANT(s) VERSUS AND CIVIL APPEAL NOS.
6907-6946 OF 2001 Duvvada Parasuram Chowdary & Ors ...
APPELLANT(s)
VERSUS
TARUN
CHATTERJEE, J..
1.
These two batches of appeals are directed against the judgment and
decree dated 27th of March, 1997 passed by the High Court of Andhra Pradesh at
Hyderabad in Second Appeal Nos. 361 of 1996 & batch and Second Appeal Nos.
374 of 1996 & batch and also against the judgment and order dated 10th 1 of
September, 1997 of the same High Court in Review Petition Nos. 6980 of 1997 and
batch whereby the High Court modified its earlier order dated 27th of March,
1997.
2.
The Appellants in CA Nos. 6900-6906 of 2001(hereinafter called the
`Tenants'), filed O.S. Nos. 43 of 1980 and batch (7 suits) claiming tenancy
rights in respect of 19.80 Acres of land in Kambirigam Village and also prayed
for permanent injunction restraining the Respondents in C.A.Nos.6900-6906 of
2001, who are also the appellants in C.A.Nos.6907-6946 of 2001 (hereinafter
called as the `Landlords') from interfering with their possession over the said
land. The Landlords also filed Cross Suits being OS Nos. 75/1980 and batch (13
suits) praying for injunction restraining the Tenants from interfering with the
peaceful possession of an extent of land measuring 181 Acres which also
included the aforementioned 19.80 Acres.
3.
The case of the Tenants in their suits was that the plaint
schedule lands formed a part of the pre-settlement un- enfranchised Inams in
Kambirigam Mokhasa in the erstwhile Tarla Estate, Tekkali Taluk. They had been
cultivating the 2 plaint schedule land as tenants from time immemorial under
inamdars, predecessors-in-interest of Landlords by paying Rajbhagam paddy to
them. In 1804, the British Government granted "Sannad" to the Tarla
Estate wherein Kambirigam was described as a Jagir which was an Estate within
the meaning of Section 3 of the Estate Land Act, 1908. However, no patta was
granted to the Landlords or their predecessors-in-interest.
Therefore,
according to the tenants, the rights of the Landlords in respect of the lands
in question vested in the Government by virtue of Madras Estates Abolition and
Conversion into Raiyotwari Act of 1948. (for short `Estates Abolition Act').
The tenants had complained to the Revenue Authorities alleging that the Revenue
records were manipulated by the Landlords.
Pursuant
to this, Tehsildar, Palasa conducted an enquiry wherein it was found that the
Tenants and other raiyots were occupants and cultivators in the Revenue Records
for Fasli 1389. Being aggrieved by these orders, Landlords filed a Writ
petition, which came to be registered as W.P.No. 3189 of 1980 before the High
Court of Andhra Pradesh claiming that they were not given an opportunity to be
heard in the enquiry 3 conducted by the Tehsildar. Allowing the Writ Petition,
the High Court vide its order dated 24th of August, 1982 quashed the order of
the Tehsildar. However, the High Court had given liberty to the Tehsildar to
conduct a fresh enquiry after giving due hearing to the parties. Accordingly,
the Tehsildar Palasa, conducted an enquiry again and passed an order dated 10th
of September, 1984, declaring the Tenants and others as cultivators in
Kambirigam village and further observed that since the time of their ancestors,
the Tenants and others had been cultivating the lands in dispute separately and
also making payment to the Mokhasadars. This order was confirmed by the Collector
and Commissioner of Land Revenue.
4.
In the cross suits filed before the District Munsif, the Landlords
claimed to be the Mokhasadars of Kambirigam Mokhasa. According to them, the
Plaint Schedule Lands are their absolute property which fell to their
respective shares in the family arrangement among their respective family
members inter se in or about the year 1945. Ever since such arrangement, they
had been in exclusive possession and 4 enjoyment of their respective land as
described in the schedule of the plaint. According to the Landlords, Kambirigam
village did not fall within the ambit of Section 2(d) of the Estates Abolition
Act. No patta was granted to the Landlords because the village was not
surveyed.
5.
By its judgment and order dated 21st of July, 1987, the District
Munsif, Palasa, decreed the suits filed by the Tenants praying for an order of
permanent injunction, restraining the Landlords from interfering with their
plaint schedule lands. By a separate order, District Munsif dismissed the cross
suits filed by the Landlords praying for an order of injunction against the
Tenants.
6.
Being aggrieved by the said judgment of the District Munsif,
Palasa dated 21st of July, 1987, the Landlords preferred two sets of Appeals
before the Principal Subordinate Judge, Srikakulam. From the suits filed by the
Tenants, i.e. O.S. Nos. 75 of 1980 and batch the appeals were numbered as
A.S.No.12 of 1996 and batch (i.e. 13 appeals) and from the suits filed by the
Landlords, i.e. O.S Nos. 43 of 1980 and batch the appeals were numbered as A.S.
No. 11 of 1996 and batch 5 (i.e. 7 appeals). The Principal Subordinate Judge,
Srikakulam, by two judgments dated 15th of April, 1996 delivered separate
judgments in 13 appeals (A.S No. 12 of 1996 and batch) and 7 appeals (A.S. No.
11 of 1996 and batch).
7.
Disposing of the seven appeals in A.S.No.11/1996 and batch, the
Principal Subordinate Judge noted that before the Trial Court, the plaintiffs
and defendants in all seven suits, had taken similar pleas. After narrating the
contentions of both the parties and examining the materials on record, the
first appellate court came to a finding of facts, inter alia, as follows :
8.
The tenants did not dispute the contentions of the landlords that
their ancestors became the landlords in respect of the plaint schedule land.
According to the tenants, their ancestors were inducted into possession of
separate bits of plaint schedule lands by the ancestors of the landlords. The
said tenancy was alleged to have been continuing till the date of filing of the
suit. In an enquiry conducted by the Settlement Officer on an application filed
by one of the landlords to determine whether Kamibirgam village was an Inam
Estate or 6 not, none of the tenants appeared before the Settlement Officer. The
said landlord had contended that he and his ancestors owned almost all the land
in the village, though they let out a few bits of lands to some raiyots for
seasonal cultivation temporarily. Thus, by his order dated 29th of June, 1950,
the Settlement Officer held that Kambirigam village was not an Inam Estate. It
was not the case of the tenants that they had been inducted in possession of
the plaint schedule land after the order of the Settlement Officer. Admittedly,
they had no documents proving their possession. That the names of the landlords
were recorded in the revenue registers as personal cultivators was also not
denied. The contention that since the tenants were not residents of Kambirigam
village on the date of the enquiry by the settlement officer, they could not
appear before him, could not be accepted. If numerous tenants were put in
possession of tiny bits of land measuring 300 Acres in respect of which the
enquiry was conducted, at least one of them would have come across the notices
put up announcing the enquiry. In a suit filed by the landlords before the
Subordinate Judge, Srikakulam for a declaration that 7 Kambirigam village was
not an estate, a finding was recorded that there were no tenants in the
village. The Government which was a party to the suit, did not dispute this. An
appeal preferred against the Order of the Subordinate Judge was dismissed.
Until 1976, when the tenants submitted applications to the Sub Collector,
Tekkali stating that they had been cultivating the lands in Kambirigam Village,
paying `Ambaram' to the Mokhasadars, no case was ever made out by the tenants
that they had been tenants in Kambirigam village.
In 1977,
one of the landlords filed a suit claiming similar relief as in the present
case against some of the tenants and the tenants did not even contest the said
suit. Admittedly, they knew of the suit. The specious justification for not
contesting the suit was that they were under the impression that the suit was
compromised. This plea could not be accepted. In the absence of any indication
that there were tenants in the lands of Kambirigam village till 1977, the mere
allegation that the names of the landlords were wrongly recorded in No.2
Adangal, could not be accepted. The Tehsildar, Palasa by his order dated 18th of
June, 1980 held that there were about 30 8 tenants in Kambirigam village but
such an order was passed without giving any notice to the landlords. In the
fresh enquiry conducted in accordance with the directions of the High Court
issued on a writ petition filed by the landlords, applications filed by 60
other tenants were considered. The concerned Tehsildar by his order dated 10th
of September, 1984 held that sizable land of Kambirigam village was under the
cultivation of the tenants. This order was confirmed by the Collector. On this
basis, the tenants disputed the veracity of the findings recorded by the
Settlement officer and by the Subordinate Judge. The Tehsildar was of the
opinion that as there was enough material to give rise to a doubt that the landlords
had not been cultivating the entire cultivable land in the Kambirigam village,
the benefit of doubt should be given to the hard pressed poor raiyots, as
against the landlords who were rich and influential. Thus, the order of the
Tehsildar was not based on any reliable and acceptable documentary evidence.
The
particulars of land, or rent or tenants were not mentioned in the findings. The
particulars of land mentioned in the applications filed before Sub-Collector by
the tenants, do not 9 tally with those in the plaint schedule, based on the
order of the Tehsildar. Hence, it is evident that the Tehsildar did not conduct
the enquiry properly. Padi Narayana, the first defendant in all except one
suit, had denied that he had been a tenant in the suit lands and had averred
that he had been falsely impleaded in the said proceedings. Yet, he appeared as
a tenant in the findings given by the Tehsildar. Thus, the order of Tehsildar
was found not to be based on proper and legal evidence. On the other hand, the names
of the Landlords have been recorded in the revenue registers as the personal
cultivators of the plaint schedule lands in the No.2 Adangal till 1979, i.e.
for which these batch suits were filed. As against this, neither the tenants
entered the witness box to support their specific cases, nor did they produce
any reliable documentary evidence to rebut the entries in the record. The
testimonies of witnesses they produced were not reliable.
9.
Disposing of A.S.No.12 and batch i.e. the 13 appeals filed by the
landlords from the Original Suits filed by the Tenants, the Principal
Subordinate Judge, inter alia, held that none of the Tenants disputed the title
of the Landlords over the land in 10 Kambirigam village. While the Tenants, who
were the plaintiffs in this batch suits should have established that they had
the possession over the plaint schedule lands by virtue of the tenancy granted
in their favour by the predecessors of the Landlords, none of them entered the
witness box in support of their case. The particulars of origin of the alleged
tenancy were not given in any of the plaints. The testimony of the only witness
produced by the Tenants was self serving and was not corroborated by any other
evidence, as he was too young to know the particulars of the alleged tenancy,
which had allegedly been in existence since time immemorial. Again, reference
was made to the discrepancies in the description of land in plaint schedules
and in the applications filed before the Sub-Collector, Tekkali. It was pointed
out that the Tehsildar's report on which the Tenants had placed reliance was
not based on legal and relevant evidence. As the burden of proof was on the
Tenants, the mere failure of the Landlords in establishing that they had been
personally cultivating the plaint schedule lands alone would not enable the
Tenants to get a permanent injunction against them in respect of 11 particular
bits of plaint schedule lands.
10.
Accordingly, the first appellate court allowed the appeals of the
landlords and dismissed the suit of the tenants against which second appeals
were preferred by the tenants before a learned Single Judge of the Andhra
Pradesh High Court which came to be registered as S.A.Nos.361 of 1996 and batch
and S.A.Nos.374 of 1996 and batch. The second appeals were directed against
both the judgments and decrees dated 15th of April, 1996 passed by the
Principal Subordinate Judge, Srikakulam in two batches of First Appeals, i.e.
A.S.Nos.11 and batch and A.S.Nos.12 and batch. The High Court by the impugned
judgment allowed all the Second Appeals, numbered as above.
11.
It may be noted that the Learned Judge in the impugned judgment,
however, stated that "these second appeals arise out of a common judgment
dated 15th of April, 1996 in A.S.No12 of 1996 and batch on the file of the
Principal Subordinate Judge, Srikakulam, reversing the judgment and decree in
O.S.No.87 of 1980 on the file of the District Munsif, Palasa."
12.
Before the High Court in the second appeals and batch, the
following questions were taken into consideration:
1.
Whether the Sannad granted in 1804 to Tarla Estate describing Kambirigam
village as Jagir assumed the character of an "Estate" within the
meaning of Estate Abolition Act to the effect that the Landlords could
dispossess the Tenants on that count?
2. Is the
Civil Court empowered to set aside the orders of the three statutory
authorities viz. Tehsildar, District Collector and the Commissioner of Land
Revenue, when no challenge was made to their orders holding the Tenants as
cultivators of the land in question?
13.
After perusing the judgments of the courts below, however, the
High Court was of the opinion that the question whether the Sannad granted in
1804 assumed the character of an Estate within the meaning of Estate Abolition
Act was of no consequence at all, because factum of the grant of sannad in 1804
itself was doubtful. The Tenants had not adduced any evidence to prove that the
rights of the Landlords, if any, had vested in the Government. In the impugned
judgment, the 13 High Court came to a conclusion that the issue No.1 should not
be examined in view of the aforesaid conclusion arrived at by it. For
appreciation of the finding arrived at by the High Court, we may reproduce the
same.
"However,
on going through the plaint O.S No. 75/80 it appears that no plea was made in
that regard. The only averment made in the plaint is to the effect that the
plaint schedule land was a portion of the pre-settlement unenfranchised inam in
Kambirigam Mokhasa in the erstwhile Tarla Estate, and the Tarla Estate was
abolished by the Government under the Act XXVI of 1948 but Kambirigam Mokhasa
village was not taken over as it was not an "Estate" or an Inam
Village within the meaning of the Abolition Act and that no patta was granted
either to the defendants or their predecessors in interest either under the
Abolition Act, 1948 or Act XXXVII of 1956. The defendants therefore lost their
right, if any, in the plaint Schedule land as it vested in the Government as
stated in the concluding part of Para 3 of the Plaint. The Plaintiffs, who are
the appellants before us do not seem to have produced any document in respect
of these averments made in paragraph 3 of the plaint. I am, therefore, of the
opinion that no useful purpose would be served in examining this question whether
the respondents acquired nay right to dispossess the appellants."
14.
We have carefully examined these findings of the High Court and
after carefully examining the same, we do not find 14 any reason to differ from
the conclusions arrived at by the High Court on such question. Accordingly, we
agree with the views expressed by the High Court on the question No.1 as noted
herein above.
15.
Let us now consider the question No.2 as noted herein earlier. The
said question is whether the Civil Court was justified in setting aside the
orders of three statutory authorities, namely the Tehsildar, the District
Collector and the Commissioner of Land Revenue without there being any
challenge to these orders.
16.
On this question, the High Court, after considering the relevant
statutes on the subject and after considering the material evidence on record
came to a conclusion that the decision of the Tehsildar which came subsequent
to the filing of the suit i.e. on 10th of September, 1984, which was affirmed
by the District Collector and the Commissioner of Land Revenue, had achieved
the status of finality. The High Court even came to the conclusion that even
independent of that proposition the evidence, however, thin it may be, has
weighted in favour of the persons who claimed to be the 15 cultivators of the
disputed lands. In the impugned judgment, the High Court had accepted the
finding of the Tehsildar which stood in favour of the tenants that they had
been cultivating the lands in question since time immemorial. In view of the
findings arrived at, the Appeals of the Tenant were allowed by the High Court
in S.A.Nos.361, 365, 366, 374, 383, 384, 391, 393, 394, 395, 396, 397, 398,
399, 400, 401,402, 403, 404 of 1996, and the judgment of the First Appellate
Court in A.S.No.12 was set aside.
17.
While accepting the order of the Tehsildar dated 10 th of
September, 1984, the High Court referred to the provisions of Andhra Pradesh
Record of Rights in Land Act, 1971 and after considering the decisions of
Abdulla Bin Ali v. Galappa, [AIR 1985 SC 577], State of Tamil Nadu v. Ramalinga
Samigal Nadam, [AIR 1986 SC 794], Sangubhotla Venkataramaiah v. Kallu
Venkataswamy, [AIR 1976 AP 402], which discussed the principles relating to
exclusion of jurisdiction of the Civil Courts by Statutory Tribunals, came to
the conclusion that the order of the Tehsildar dated 10th of September, 1984
having achieved the status of finality cannot be upset by the 16 Civil Court.
The High Court further found that the Tenants were cultivating the land in
question and, therefore, they were entitled to a decree for permanent
injunction against the landlords and accordingly the High Court allowed
S.A.Nos.361, 365, 366, 374, 383, 384, 391, 393, 394, 395, 396, 397, 398, 399,
400, 401,402, 403, 404 of 1996, and the judgment of the First Appellate Court
in A.S.No.12 was set aside.
18.
That apart, from the impugned judgment, it is found that the High
Court concluded in the following manner :
"....
the fact remains that the decision of the Revenue Authorities which came
subsequent to the filing of the Civil Suits stood unchallenged and not
contradicted.
The
Tehsildar order dated 10th of September 1984, therefore, achieved the status of
finality. On that account, therefore, the Landlords lost complete ground for
denying the tenancy rights of the Tenants-Appellants over the disputed lands.
However, even independent of that proposition the evidence howsoever thin it
may be, has weighed in favor of the persons who claim to be cultivators of the
disputed land. The Tehsildar's second report speaks volumes about the tenant's
case that they have been cultivating the disputed lands since the times of
their 17 ancestors and I am loath to disregard the same.
The
Tenants-Appellants' appeals therefore deserve to be allowed. Hence the appeals
bearing no. 361, 365, 366, 367, 374,383,384,392, 393, 394, 395, 396, 397, 398,
399, 400, 402, 401,403 and 404 of 1996 are allowed and the impugned judgement
and the order dated 15.04.96 in A.S. No. 12 of 1996 and batch of lower appellate
court is quashed and set aside.
No
costs."
19.
In view of our discussions made herein above and in view of the
fact that the High Court had granted a decree for permanent injunction in
favour of the tenants mainly on the basis that the tenants were in possession
and cultivation of the disputed lands and after considering the fact the
landlords had failed to prove their possession and cultivation in respect of
the lands in question by producing reliable and material evidence before the
court. Accordingly, as noted herein above, by the impugned judgment, the High
Court had allowed the second appeal and granted a decree for permanent
injunction in favour of the tenants/appellants who are respondents before us.
Such being the position, we do not find any merit in 18 these appeals so far as
the Landlords/appellants are concerned. However, the Landlords filed a review
petition being Review Petition No.6980 of 1997 and batch against the group of
second appeals, namely, S.A.No.361 of 1996 and batch under Section 114 read
with Order 47 Rule 1 of the Code of Civil Procedure. Among the many grounds
that were taken, the High Court found merit only in one ground which is as
follows- 1) When there was no defence and no proof emerging from the
documentary or oral evidence, the suits filed by the Landlords could not be
dismissed as the extent claimed by the Tenants/appellants was only 19.80 Acres.
20.
Accordingly, the Court found it proper to insert a clarification
in the operative part of the judgment under review:
"The
Tenants appeal covering a total extent of Ac 19.80 cents therefore deserved to
be allowed. Hence the Appeals bearing Nos. 361/96, 365/96, 366/96, 367/96,
384/96, 392/96, 393/96, 394/96, 395/96, 396/96, 399/96, 400/96 and 401/96 are
allowed, covering a total extent of Ac. 19.80 cents as mentioned in the
schedules in the respective plaints filed by the tenants out of the total 19
extent of Ac. 181.90 cents of lands claimed in the respective plaints filed by
the landlords in their respective plaints and the impugned judgment and order
dated 15th of April 1996 in A.S. No. 12 of 1996 and batch of the Lower
Appellate Court is quashed and set aside. The Landlords' claim to the aforesaid
extent of A.C No. 19.80 cents, thus, stands dismissed and to that extent only
the Second Appeals Nos. 374/96, 383/96, 397/96, 398/96, 402/96, 403/96 and
404/96 stand partly allowed. No costs."
21.
So far as the order of the High Court in the review petition and
batch is concerned, we do not find any ground to upset the order passed in
review petition as we find that the High Court in the original judgment in the
second appeals had considered not only the second appeal being A.S.No.12 of
1996 and batch but also the second appeal filed against A.S.No.11 of 1996 and
batch. That apart, the tenants/respondents filed their suit for permanent
injunction limiting their claim to the extent of 19.80 Acres of land and,
therefore, the High Court was fully justified in reviewing the said judgment
allowing the second appeal of the tenants only to the extent of 19.80 Acres of
land. Accordingly, we do not find any ground to interfere 20 with the order of
the High Court reviewing the second appeals and batch in the manner indicated
above in the exercise of our discretionary power under Article 136 of the
Constitution.
22.
For the reasons aforesaid, we do not find any merit in these
appeals filed before this Court and, accordingly, the appeals are dismissed.
There will be no order as to costs.
.........................J. [Tarun Chatterjee]
..........................J.
New Delhi;
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