Pogiri Jagannadha Rao vs Gorla Venkatinaidu and others

This revision petition is directed against the order passed by the District Judge, Srikakulam dated 28-12-1998 passed in CMA No.60 of 1996 dismissing the appeal preferred against the order of the II Additional District Judge passed in IA No.229 of 1996 in OS No.216 of 1996 refusing temporary injunetion in favour of the plaintiffs in the suit.

The admitted facts as emerging from the affidavit filed on behalf of the petitioner and respondent No.1 in the IA may be stated as follows:

The plaint schedule property belong to one Gorlc Jagannadhanitiaidu, maternal grand-father of the petitioner who gave the plaint schedule properties to his daughter Ramudamma, the mother of the petitioner, under a registered settlement deed dated 10-6-1950, the registration extract of which has been marked as Ex.A1. Ramudamma enjoyed the properties tilt her death. Ramuddmma had four issues i.e., two sons and two daughters. One of the daughters Appalanarasamma died unmarried and whereabouts of her second son Narasingarao is not known since so many years. The petitioner is the other son and his sister Gorlc Venkatarainam who is the wife of the first respondent is the other daughter of said Raimtdamma, who died in the year 1980.

However, the petitioner''s case is that Gorle Venkata Ratnam, the wife of the first respondent i.e., the sister of the petitioner never claimed the plaint schedule properties and she died in the year 1980. According to the petitioner, after his mother''s death, his father enjoyed the property and after his father''s death, he is in enjoyment of the properties inasmuch as his brother''s whereabouts are not known, his another sister Appalanarasamma died unmarried and the other sister i.e., wife of respondent No. 1 never claimed any interest in the suit properties. It is on this basis, the petitioner asserts that he has been in physical possession of the suit properties for all these years by paying land revenue and house tax etc.

The respondents counter this assertion and contend that after the death of the petitioner''s mother, Venkatarathnam, wife of the first respondent and the petitioner succeeded to the properties from their mother Ramudamma. As the properties in question are sthridhana properties of Ramudamma, her daughter Venkataruthnam, the wife of the first respondent, succeeded to the same and the said Venkataruthnam and her husband, the respondent No.1 herein, have been in exclusive possession and enjoyment of the properties and after the death of said Venkatarathnam, the first respondent and her sons respondents 2 to 4 are in possession and enjoyment of the properties.

The question for consideration is whether the findings of the both the Courts below that the petitioner has failed to make out prima facie of possession in his favour suffers from any infirmity, irregularity or impropriety?

As pointed out by the learned District Judge, the contention of the petitioner that his sister Venkatarathnam never claimed the properties appears false from the record. The very fact that he filed suit in OS No.104 of 1978 on the file of the District Munsif, Cheepurupalli (subsequently transferred to Principal District Munsif, Srikakulam) against the first respondent and his wife, Veiikatarathnam, belies this contention. Apparently, the petitioner has suppressed the facts relating to this previous litigation altogether. There is no reference to this litigation in the affidavit of the petitioner filed in support of the petition. However, Ex.B2, certified copy of decree and judgment in OS No.352 of 1981 speaks for itself as to the previous litigation. This judgment shows that originally the petitioner filed the suit for the relief of permanent injunction and subsequently amended the suit to incorporate the relief for recovery of possession as per the orders in IA No.1059 of 1982. That suit was decreed for partition of plaint schedule land into two equal shares and IA was filed for appointment of the Commissioner in pursuant to the judgment and decree for partitioning the plaint schedule lands into two equal shares. However, an appeal was preferred against the said judgment and decree for partition in AS No.64 of 1987 by the respondent herein (subsequently it was numbered as AS No.22 of i988 on the file of the Additional Sub-Court, Srikakulam) and the said appeal was allowed and the judgment and decree in OS No. 104 of 1978 for partition was set aside and the suit was remanded to the lower Court for fresh disposal in terms of the relief asked for by the plaintiff. The judgment and decree in AS No.22 of 1988 is marked as Ex.B3. Subsequent to the remand, the suit for recovery of possession was dismissed by judgment dated 28-8-1990 which is marked as Ex.B2 referred to above. The petitioner preferred appeal AS No.130 of 1990 on the file of the District Court, Srikakulam, which was subsequently transferred to Additional Sub-Court, Srikakulam and numbered as AS No.53 of 1991 and the said appeal was dismissed on 28-8-1990. Surprisingly, the petitioner again filed a suit for perpetual injunction in the present round of litigation. The earlier judgment leads to an inescapable inference that on 28-8-1990 the petitioner was not in possession of the plaint schedule properties. However, the petitioner seeks to make good his case for possession by relying on the documents marked on his behalf. Ex.A2 is ryotwari pass-book issued to the petitioner in respect of plaint ''A'' Schedule agricultural lands. It is dated 30-3-1996. Exs.A3 to A5 are the copies of the Adangals in which the petitioner''s possession is said to have been own. Exs.A6 to A9 and A16 and A17 are the cist receipts showing the payment of land revenue. Exs.A10 to A15 are the house tax receipts.

The learned Counsel for the petitioner contends that in view of fresh documentary evidence filed in the suit, the petitioner has made out prima facie case of his possession over the schedule properties. The learned Counsel for the respondents on the other hand contends that these documents have been manipulated and are not authenticated and as such injunction cannot be granted on the basis of these documents.

It is no doubt true that although the record of rights is not a document of title, Court is perfectly entitled to take into consideration the entry in the records of rights for coming to a conclusion that certain person is the owner of the land in question as held in the case of Secretary to Government of India, Ministry of Defence, New Delhi and another Vs. Indira Devi and another, .

It is true that presumption of correctness arises from entries in the records of rights but what is the extent of such presumption and what value can be attached to such entries depends on the facts and circumstances of the case. The presumption so arising is not conclusive and is rebuttable presumption. To rebutt such presumption, it is not necessary that specific evidence has to be adduced by the person disputing the correctness of such entries. The presumption may stand rebutted from the facts and circumstances appearing in the case.

In this case, the fact that the petitioner herein filed earlier suit in OS No. 104 of 1978 initially for grant of permanent injunction and later amended the prayer for including the relief of recovery of possession, the fact that the said suit was dismissed ultimately is a circumstance which erodes the presumptive value of the subsequent revenue records considerably.

The contention that while AS No.53 of 1981 was pending, the respondents left the suit land and thereafter the petitioner has taken possession of the suit land and started cutivating the same appears farfetched notwithstanding the filing of Memo Rx.A18 to the effect in this suit. The learned District Judge mentioned in his order in CMA about the observation of the learned Sub-Judge that when notice of this memo was given to the advocate appearing for the respondents therein, he sought time for filing counter and there was no admission that the respondents left the possession over the land.

The question is whether in the back-ground of these facts, the documentary evidence relied upon by the petitioner in this case can be said to have made out prima facie case of the possession of the petitioner?

It is significant to note the petitioner''s claim is that he acquired possession over the plaint schedule land in April, 1991 after the dismissal of suit for possession. If so his possession should have been reflected in the Adangals for the years 1991 onwards but the petitioner relies selectively on the copies of adangals of the year 1996. It would appear that having obtained pattadar pass-book under Ex.A2 dated 30-3-1996, the entry of the petitioner''s name in the revenue records would naturally follow on the basis of ryotwari pass-book Ex.A2. The land revenue receipts, except A8 and A9, pertain to the years 1981 and 1982, the other land revenue receipts Exs.A16 and A17 pertain to the years 1976 and 1971. Exs.A3 to A5, are the entires in the village account No.3. Thus, these documents mostly relate to the period just before filing the suit in the year 1996. Similarly, the house tax receipts Exs.A10 to A12 are dated 35-3-1996 i.e., about the time the suit was filed. Though the house tax receipts Exs.A14 and A15 relate to 1974, 1975 and 1976, they are too remote from the date of the suit.

Considering the back-ground of the earlier litigation and a definite finding of the Court in the earlier suit that the petitioner was not in possession of the suit properties, the subsequent documents lose much of their probative value. The presumption of correctness arising from the revenue records in this case in the background of the earlier litigation is so weak that it was rightly not acted upon by the learned Junior Civil Judge and the learned District Judge. It may be mentioned that the grant of temporary injunction is a discretionary relief.

Considering the totality of the circumstances, it is not possible to hold that the Court below exercised its discretion improperly and erroneously.

In the result, the Civil Revision Petition is dismissed. No costs.

After the order was pronounced, it is mentioned that the observation in this order might be considered as some kind of finding which may adversely influence the minds of the trial Court. To disabuse any such apprehension, it is made clear that the observations made in this order are strictly for the purpose of decision of the matter in this case. It is obvious that the trail Court will come to its own conclusions in respect of all the matters on the basis of evidence adduced before it. Considering the circumstances, the suit shall be disposed of at the earliest at any rate within a period of six months from date of receipt of copy of this order.