Rongali Deemudu vs Pothula Deemudamma

Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.

This C.R.P. is directed against the judgment and decree of the learned Principal District Munsif, Chodavaram in O.S.No. 15 of 1990, dated 27-3-1995.

The only question which arises for our consideration in this revision-petition is whether the petitioner-defendant was the cultivating tenant over the disputed land for a long time and there was no question of the respondent-plaintiff having been forcibly dispossessed within six months prior to the date of institution of the suit.

The respondent-plaintiff''s case before the lower Court was, in brief, as follows :

The plaintiff was in exclusive possession and enjoyment of the disputed land till 3rd week of November, 1989 and at that time she was dispossessed by the petitioner-defendant forcibly otherwise than in accordance with law. A dispute was raised in the presence of the elders and the plaintiff lodged a complaint with the police but it was of no avail. The plaintiff therefore caused a notice dated 9-12-1989 to be served upon the defendant but there was no response.

In the written statement, the defendant contended mat the plaint schedule land exclusively belonged to the plaintiff''s mother Paravada Mangamma and that she was the absolute owner thereof. The defendant was a cultivating tenant under Mangayamma and that he was in possession and enjoyment of the same for a long time. Mangayamma intended to sell away the schedule land and after mutual deliberations the price was fixed at Rs. 75/- per cent for Betu Garuvu of item-1 of plaint schedule land and at the rate of Rs. 110/- per cent of items 2 to 4 of the schedule land. It was also agreed between the parties that registered sale deed would be executed by Mangayamma after the measurements were taken and the defendant had to pay the balance of sale consideration on the date of the sale deed being registered. He paid Rs. 8,000/- by way of advance. With these conditions, she executed an agreement of sale on 30-9-1988 in favour of the defendant. The defendant had been asking Mangayamma to get the land measured and to receive the balance of sale consideration and to execute the sale deed, but she kept on postponing the execution of the sale deed with an ulterior motive and finally she demanded payment of the entire consideration according to the price stipulated under the agreement of sale deed dated 30-9-1988. The petitioner-defendant refused to pay more consideration and reiterated his demand for the sale deed to be executed by Mangayamma. The plaintiff and her mother colluded with each other and caused a collusive notice to be issued to the defendant with false allegations that her mother had lost the balance of her mind and had become a lunatic. The defendant claimed that he had been in possession and enjoyment of the schedule land as a cultivating tenant of the respondent''s mother prior to 30-9-1988, and thereafter as a vendee.

The lower Court raised several issues and eventually decreed the suit with costs against which the defendant filed the present the revision petition.

It is evident that the suit was filed u/s 6 of the Specific Relief Act 1963 (for short ''the Act'') It is the paramount consideration under the said provision that the respondent/plaintiff should have been forcibly dispossessed within six months prior to the date of institution of the suit for recovery of possession. The title of the contesting parties is not required to be looked into for that purpose. It is sufficient if there was reliable evidence to show that the respondent-plaintiff was forcibly dispossessed within six months prior to the date of the institution of the suit otherwise than by due process of law.

While appreciating the oral evidence tendered before the trial Court, a finding was recorded that the respondent''s mother was a lunatic for the last 20 years and that for the last 5 years she was suffering from paralysis.

In para 15 of the impugned judgment, the trial Court observes that Ex.B-1, sale agreement was the anchor sheet of the case. Ex.B-2 is the land revenue receipt dated 17-1-1990 and Ex.B-3 is the reply notice by the petitioner to the respondent. The learned Munsif thereafter recorded a finding that the burden was on the petitioner to establish that the mother of the respondent Mangayamma was the absolute owner of the schedule land and that she conveyed it to him. The case of the respondent from the beginning was that the schedule land had devolved on her from her ancestors and her mother Mangayamma had no right over it and therefore, the split up patta was given in her favour by the then Deputy Tahsildar and the schedule land had been under her cultivation even before her marriage and after that, with the help of her husband who was brought as an illaltom son-in-law by Parvada Mangayamma. The petitioner-defendant''s case that the schedule land was a stridhan property of Mangayamma was not supported by any documentary evidence and the oral evidence in that regard was not convincing. But according to the learned Munsif, the best person to speak about the petitioner-defendant''s assertion was Mangayamma who was alive. It was the version of the respondent-plaintiff that her mother Mangayamma was a person of unsound mind for a number of years and that she was suffering from paralysis for the last five years.

However, I agree with the submission made by the learned Counsel for the petitioner that having regard to the fact that Mangayamma was a person of unsound mind, it would not be in order to examine her as a witness in support of the case sought to be made out by the petitioner-defendant. The lower Court went on to express its views with regard to the evidence relating to the ownership of the property and the party on whose shoulder the burden was laid to prow the ownership. However, it is clear from the Act that the title of the parties in a suit u/s 6 of the Act is not required to be looked into. What is relevant for the parties to prove the case u/s 6 of the Act was to satisfy the Court that the respondent-plaintiff was forcibly dispossessed within six months prior to the date of institution of the suit. However, on examining the appreciation made by the trial Court on the oral testimony laid before it, it clearly transpires that the respondent-plaintiff did not produce any evidence which could support her case that she was driven out of the schedule land forcibly on a particular date which fell within the period of six months prior to the date of institution of the suit. The learned Munsif has concentrated his entire attention on the question of title to the schedule land which was in my considered opinion an exercise in futility in view of the clear provision of Section 6 of the Act. In fact, there is no evidence whatsoever to show that there was an effort either on the part of the defendant-petitioner or anyone else to drive the respondent-plaintiff out of the schedule land on any particular day. What was the mode adopted by the petitioner-defendant or any accomplice to grab the possession from her has also not come on record.

From the appreciation of the oral evidence adduced by the rival parties it is evident that the plaintiff-respondent has failed to satisfy the Court that she was forcibly dispossessed on any particular day which fell within the period of six months prior to the filing of the suit. The fact that the defendant-petitioner had been in possession on the date when her testimony was recorded is not disputed. The burden was, therefore, on the plaintiff-respondent to establish the date on which the defendant-petitioner forcibly dispossessed her. The plaintiff-respondent stated in her examination in chief that Pothula Damudu and Gorla Mahalakshmi were her witnesses who supported her version that the defendant-petitioner encroached upon her land.

Pothula Damudu (P.W.3) stated in his examination in chief that the defendant was cultivating the schedule land for last five years and that about two months prior to Sankranti days before five years the encroachment was allegedly made by the defendant-petitioner. This witness tendered his evidence on 31-10-1994.

Gorla Mahalakshmi who was examined as P.W.-2 also does not speak anything clearly about the date on which the defendant-petitioner allegedly committed the encroachment on the plaintiff''s land, and therefore, her evidence also does not go to the rescue of the plaintiff-respondent.

If five years period is taken into consideration prior to 31-10-1994 it would mean that some where in 1989 encroachment was committed. The suit was filed on 1-2-1990. It was, therefore, incumbent upon the plaintiff and her witnesses to satisfy the Court that the encroachment was committed by the defendant some where in August, 1989. But it does not transpire clearly from the evidence on record that the encroachment was committed on any day from August 1989 to 1-2-1990. Therefore, on this vital point, the plaintiff-respondent seems to have failed to establish her case. This being the Revision-Petition, this Court should not have gone into appreciation of oral evidence, but the suit proceeding u/s 6 of the Specific Relief Act being predominantly oriented by oral testimony. This Court could not have tested the legitimacy of the claim advanced by the plaintiff without looking into the oral evidence. The learned Judge of the trial Court has resorted to presumptions and surmises for arriving at his conclusions and neglected to give any finding whether there was any evidence worth the name which could give credence to the plaintiffs proposition that she was forcibly dispossessed on any day which fell within the statutory period of six months immediately preceding the date on which the suit was filed.

In the above view of the matter, therefore, I have no hesitation in corning to the conclusion that the respondent-plaintiff failed to establish that within six months prior to the date of institution of the suit, she was forcibly driven out of the schedule land by the defendant-petitioner who was in possession of the schedule land or by any one else acting on behalf of the defendant-petitioner.

For the aforesaid reasons, the C.R.P. is allowed and the impugned judgment and decree of the trial Court is quashed and set aside. No costs.