TMI Blog2015 (10) TMI 2663X X X X Extracts X X X X X X X X Extracts X X X X ..... aining 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. 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. 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. We have given our thoughtful consideration on the finding recorded by the learned Judges of the Division Bench and finding recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssueless 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, 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 submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- -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, 1975 1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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, 2003 AIR(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 brin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- -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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, 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 SCC 119; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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- sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, 1949 AIR(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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ergul 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-ofrights 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 forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssedar 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 borewells in the name of the deponent. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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