Supreme Court of India
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL SECRETARY AND OTHERSversusPRATAP KARAN AND OTHERS
- Citation
- 2015 INSC 761
- Decided
- 9 October 2015
- Disposal
- Dismissed
- Bench
- M Y EQBAL
Holding
The Supreme Court held that the plaintiffs' documentary title is conclusive, the Jagir Abolition Regulations do not affect their ownership, Section 98 CPC is inapplicable to the High Court governed by the Letters Patent, and the appeal does not abate by the death of a plaintiff, thereby dismissing the appeals.
Summary
The plaintiffs, heirs of the late Raja Shivraj Dharmavanth Bahadur, filed a suit to correct the revenue record and have their names entered as owners of Survey No.613 (373.22 guntas) in Nadergul village. The State argued that the land was Jagir land that had vested in the Government under the Hyderabad (Abolition of Jagirs) Regulations and that the duplicate Survey No.119 showed it as State property. The High Court Division Bench was split, and a third judge was appointed, who upheld the finding that the plaintiffs were the rightful pattadar/khatadar and allowed the appeal. The Supreme Court held that the documentary evidence proved the plaintiffs' title, the Jagir Abolition Regulations did not divest their ownership, Section 98 of the CPC does not govern the High Court’s procedure which is governed by the Letters Patent, and the appeal did not abate despite the death of a plaintiff. Consequently, both civil appeals were dismissed and the plaintiffs' title and injunction were affirmed.
Issues considered
- Whether the plaintiffs have established a valid title to Survey No.613 and are entitled to correction of the record of right.
- Whether the land in question is Jagir land that vested in the State under the Hyderabad (Abolition of Jagirs) Regulations, 1358 Fasli.
- Whether Section 98 of the Code of Civil Procedure, 1908 applies to the High Court appeal or is displaced by Clause 36 of the Letters Patent of the Andhra Pradesh High Court.
- Whether the death of one of the plaintiffs without substitution of legal representatives abates the appeal under Order 22 Rule 2 of the CPC.
- Whether the reference of the matter to a third judge was valid despite the absence of a formally formulated point of difference.
- Whether the transfer of the suit land to the corporation during pendency of the appeal is valid.
Legislation cited
- Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973
- Andhra Pradesh (Telangana Area) Land Revenue Act, 1971s. 2(11), s. 24
- Code of Civil Procedure, 1908s. 98
- Hyderabad (Abolition of Jagirs) Regulation, 1358 Faslis. 17, s. 18
- Letters Patent of the Andhra Pradesh High Courts. Clause 36
Subjects
land titlemutationrecord of rightJagir abolitionSection 98 CPCLetters Patentappeal abatementsuccessionrevenue recordsinjunction
Judgment
[2015] 12 S.C.R. 702
A GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL
SECRETARY AND OTHERS
V.
PRATAP KARAN AND OTHERS
B (Civil Appeal No. 2963 of2013 etc.)
OCTOBER 09, 2015
[M. Y. EQBALAND C. NAGAPPAN, JJ.]
c Mutation - Suit for correction and rectification of the
record of right - Alleging that the land in question illegally
shown as Government land - Held: All the documentary
evidence including the document of title prove beyond doubt
thaf.the plaintiff was the owner in possession of the suit land
D - Revenue failed to show as to under which proce_edings and
by what order the Revenue Records were changed showing
the land as Government land - Courts below wrongly held
that all jagir land became Government land, without taking
into consideration relevant provisions of the Hyderabad
E (Abolition of Jagirs) Regulations, 1358 Fasli - Hyderabad
(Abolition of Jagirs) Regulations, 1358 Fasli - Sections 17
and 18 - Land Laws and Tenancy.
Abatement - Death of one of the appellants - Non-
F substitution of LRs - Whether resulted in abatement of the
appeal qua other appellants - Held: Entire appeal shall not
stand abated by reason of non-substitution of the deceased
appellant because the estate was fully and substantially
represented by other sharers as owners of the suit property-
G In the circumstances of the case, Or.22r.2 CPC will apply-
Code of Civil Procedure, 1908- Or.22 r.2.
Code of Civil Procedure, 1908 - s. 98 -Appeal before
High Court- Heard by Division Bench - Difference of opinion
H - Reference to third judge - Plea that disposal of appeal.
. 702 .
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 703
SECRETARYv.PRATAPKARAN
was not in consonance with provisions u/s. 98 - Held: In view A
of sub-section (3) of s. 98, the procedure prescribed u!s. 98
shall not apply to the High Courts procedure which are
governed by Letters Patent- They shall be governed by the
Letters Patent of that High Court - In the present case, the
order of High Court cannot be said to be vitiated on account B
of non-compliance of s. 98 as the same has been passed in
compliance with Clause 36 of the Letters Patent of the Andhra
Pradesh High Court - Letters Patent ofAndhra Pradesh High
Court - Clause 36.
c
Dismissing the appeals, the Court
HELD: 1. 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 o
possessors in respect of.the suit land on the ground inter
a/ia 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 E
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.
Therefore, by reason of non-substitution of the legal F
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 G
having been abated. In the said circumstances Order 22
Rule 2 CPC will come into operation and the appeal will
not abate. [Paras 33, 38) [724-D; 731-E-H)
Sardar Amarjit Singh Katra vs. Pramod Gupta AIR H
704 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 2003 SC 2588: 2002 (5) Suppl. SCR 350 -
followed.
Budh Ram and others vs. Bansi and others 2010
(9) SCR 674: (2010) Vol. 11 SCC 476; Harihar
Singh vs. Balmiki Prasad Singh AIR 1975 SC
B
733: 1975 (2) scR 932: 1975 (1) sec 212; State
of Punjab vs. Nathu Ram (AIR 1962) SC 89:
(1962) 2 SCR 636; - relied on_.
Amba Bai and others vs. Gopa/ and others (2001)
c 5 sec 570 - distinguished.
Matihdu Prakash (Deceased) by L. Rs. vs. Bachan
Singh and others AIR 1977 SC 2029; State of
Punjab vs. Nathu Ram (AIR 1962) SC 89: (1962)
2 SCR 636; Sri Chand vs. Jagdish Pershad
D
Kishan Chand AIR 1966 SC 1427: 1966
SCR 451; Ramagya Prasad Gupta vs. Murli
Prasad 1973 (1) SCR 63: (1973) 2 SCC 9;
Sardar Amarjit Singh Katra vs. Pramod Gupta AIR
E 2003 SC 2588: 2002 (5) Suppl. SCR 350 -:-
referred to.
2.1 A comparative study of Section 98 CPC vis-a-
vns clause 36 of the amended Letters Patent of the Andhra
F 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
G 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 of Andhra
Pradesh High Court provides that in a case the Division
Court exercising its original or appellate jurisdiction
H hears the appeal and the Judges are divided in opinion
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 705
SECRETARYv. PRATAP KARAN
as to the decision to be given on any point, such point A
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 B
majority of Judges who have heard the case including
those who first heard it. For those courts, the procedure
of which is governed by Letters Patent, the power has
been expressly reserved by sub-section (3) of s.98.
Hence, the procedure provided in the Letters Patent of C
High court shall prevail. [Paras 46, 49] [737-F; 739-0-G]
Tej Kumar vs. Kirpal Singh 1995 (1) Suppl.
SCR 383: (1995) 5 SCC 119; PV. Hemalatha v.
Kattamkandi Puthiya Maliackal Saheeda 2002 (3) D
SCR 1098: (2002) 5 SCC 548; Pankajakshi
(Dead) Through Lrs. And Others vs. Chandrika
and Others 2010 (12) SCR 989: (2010) 13 SCC
303; Reliance Industries Ltd. vs. Pravinbhai
Jasbhai Patel 1997 (3) Suppl. SCR 636: 1997 (7) E
sec 300 - relied on.
Dhanaraju vs. Motilal Daga and Another AIR 1929
(Mad.) 641 (F.B.); Bokaro and Ramgur Ltd. vs.
State ofBiharAIR 1966 (Patna) 154; Smt. Jayanti
F
Devi vs. Srichand Mal Agrawal and Ors. AIR 1984
Patna 296; Ru/ia Devi and others vs. Raghunath
Prasad AIR 1979 Patna 115-approved.
2.2 In the instant case, the two Judges of the
Division Bench passed separate judgments. Both the G
Judges differed not only on the point of facts but also
on the point of law. The matter was referred to the third
Judge for deciding the appeal. The third Judge
formulated various issues and recorded its finding on
H
'• ·""" ' 't •
706 SUPREME COURT REPORTS [2015] 12 S.C.R.
A all the points and finally upheld the finding recorded by
one of the differing Jud,ges and allowed the appeal. Thus,
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
B account. [Para 54] [744-H; 745-A-C]
3.1 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
C 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. It has been admitted in the written
D 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 the
E Raja was entered as the absolute owner and possessor
of the suit land. Hence, the title of the owner is supported
by various documents including the Khasra Pahani,
which is a document of title has been proved beyond
F doubt. [Paras 73, 75] [759-C-D, H; 760-A-B]
Collector vs. Narsing Rao 2015 (1) SCR 437:
(2015) 3 sec 695 - relied on.
3.2 From perusal of exhibit B-1 which is the
G judgment of Nizam Atiyat dated 20.1.1958 it is evident
that the m;:iss is comprised of Jagir, Rusums and lnam
land. [Para 80] [761-G-H]
3.3 Both the trial court and the Judge of the Division
Benc.h, who affirmed the finding of the trial Court have
H failed to take into consideration the relevant provision
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 707
SECRETARYv. PRATAP KARAN
of the Hyderabad (Abolition of Jagirs) Regulation, 1358 A
Fasli and held that by the said Regulation, all Jagir land
became the Government land. From SS. 17 and 18 of
Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli,
it is clear that such land which has been brought under
survey settlement and record of right has been prepared B
in the name of the land-owner in respect of self cultivated
land, shall have no effect on the provisions of Jagir
Abolition Regulations. [Paras 82, 83] [763-D-E; 764-E-F]
3.4 The Trial Court erroneously held that except C
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 D
contain the name of the Raja 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 E
is an important Revenue Record, the name of the Raja
was not shown as khatadar/pattadar. [Para 85] [765-C-
F]
State of Himacha/ Pradesh v. Keshav Ram and F
Ors.1997 (AIR) SC 2181: 19~6 (7) Suppl.
SCR 263 - relied on.
3.5 Considering all the documentary evidences
together viz., Exh.P-2 Firman confirming the successor G
of Late Raja in favour of 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 H
708 SUPREME COURT REPORTS [2015] 12 S.C.R.
'·
A No.613and119 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
11
there is duplication of survey numbers. Indisputably,
B 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
RE!venue Record was changed. So far as the claim of
C 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
thE~re must be a proceeding and order of confiscation of
0
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
E dispossession and taking possession of the land by the
GovernmEmt. In the survey settlement proceedings there
cannot be duplication in survey numbers. The District
Judge while deciding the injunction application has
recorded admission of the Government that the plaintiffs
F am 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. [Para 89] [766"F-H;
767-A-E]
G
4. 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
H Corpora.tion. The said transfer is not only hit by /is
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 709
SECRETARYv. PRATAP KARAN
pendens but also appears to be not bonafide. [Para 94] A
[768-D]
Syed Ahmad Hasan 2011(4) ALT. 262 (DB);
Centre For Environmenta'/ Law v. Union of India
(2010)12 sec 303 - referred to.
B
Case Law Reference
1995 (1) Suppl. SCR 383 relied on. Para 14
2002 (3) SCR 1098 relied on. Para 14
(2010)12 sec 303 referred to. Para 14 c
AIR 1977 SC 2029 referred to. Para 31
(2001) 5 sec 510 distinguished. Para 31
2010 (9) SCR 67 4 relied on. Para 31
D
(1962) 2 SCR 636 relied on. Para 34
1966 SCR 451 referred to. Para 34
1973 (1) SCR 63 referred to. Para 34
2002 (5) Suppl. SCR 350 followed. Para 34 E
1975 (2) SCR 932 relied on. Para 35
1995 (1) Suppl. SCR 383 relied on. Para 40
2010 (12) SCR 989 relied on. Para 40
AIR 1929 {Mad.) 641 {F.B.) approveci. Para 50 F
AIR 1966 (Patna) 154 approved. Para 50
AIR 1984 Patna 296 approved. Para 51
1997 (3) Suppl. SCR 636 relied on. Para 52
AIR 1979 Patna 115 approved. Para 53 G
2011 (4) ALT 262 referred to. Para 69
2015 (1) SCR 437 relied on. Para 76
1996 (7) Suppl. SCR 263 relied on. Para 85
H
710 SUPREME COURT REPORTS [2015] 12 S.C.R.
A CIVILAPPELLATE JURISDICTION : Civil Appeal No.
2963of2013
From the Judgment and Order dated 19.12.2011 of the
High CourtAndhra Pradesli at Hyderabad in Appeal Suit No.
B 274 of 2007
WITH
C.A. No. 2964 of2013
C K. Ramakrishna Reddy, AG, V. Giri, DushyantA. Dave,
Subramonium Prasad, Vikas Singh, Harin P. Raval, Vedula
Venkatramanna, Sr.Advs., T. V. Ratnam, Mohan Rao, Manav
Vohra, S. Udaya Kumar Sagar, Ms. Praseena Elizabeth
Joseph,AbidAli Beeran P, J. Govardhan Reddy, Anupam Lal
D Das, Sahil Monga, Kapish Seth, E.V.S. Venugopal, Anirudh
Singh, Nipun Saxena, Gopal Sankaranarayanan, Govind
Manoharan, Senthil Jagadeesan, Ms. Shruti Iyer, Ms. Suchitra
Kumbhat, M/s. Venkat Palwai Law Associates, Prakash
Chakravarthy, P. S. Bindra, Anil Kumar Tandale, Ananga
E Bhattacharya, Advs., with them for the appearing. parties.
The Judgment of the Court was delivered by
M. Y. EQBAL, J. 1. This appeal being C.A.No.2963 of
2013 arises out of tne judgment and order dated 19.12.2011
F passed by the 3rct 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
G 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
H judgment of the trial court. The 3rd Judge to whom the matter
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 711
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
was referred, passed the impugned judgment upholding the A
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 B
have been heard and disposed of by this judgment.
2. The plaintiffs (hereinafter ·referred to as the
respondents) filed Title Suit No. 27 4 of 2007 for rectification
of Revenue Records by incorporating their names as owners C
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.
D
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 pattada( and
absolute owner of the suit schedule property. The succession E
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.A 1). On the death of late Raja issueless in the year 1917, F
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 G
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- H
712 SUPREME COURT REPORTS [2015] 12 S.C.R.
A Respondents that they are, therefore, the absolute owners and
possessors of the suit schedule land. The land in Nadergul
Village was subject matter of suNey 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
B wherein the suit schedule land was having SuNey 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 suNey of Nadergul Village was given effect in
the year 1352 Fasli (year 1943) and the said suNey has also
C confirmed the ownership of late Raja in Khata No.3 (Khata
No.1 as per suNey of 1326 Fasli (year 1917) which also made
it clear that the suit lands are private lands of late Raja. The
present suNey number 613 was shown as the corresponding
old Su Ney Number 579 without any change in the extent of the
0
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 l9te Raja was the
E Khatadar of all the land in Sy.No.613 of Nadergul Vijlage,
Saroornagar Mandal, Rangareddy District, Ex.AS. The village
map of Nadergul Village and plan of S.No.613 clearly disclose
the land as 'Kancha' of Late Raja. The total suNey numbers in
F 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
G 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 llaka without determining the extent.
6. It is the plaintiffs' case that as per the certified copies
H
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 713
SECRETARYv. PRATAP KARAN [M.Y EQBAL, J.]
of pahanies for the years 1949-50 and 2000-01 the land in A
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 B
the original extent of land in S.No.119 shown asAc.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 C
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
0
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 E
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. F
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 ad measuring Ac.1-20 guntas, G
the duplicated S.No. 119 ad measuring more than 355 acres
and sometimesAc.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 H
714 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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-
B 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
C 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.
D
8. The 51h defendant-appellant Manda! 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
E 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
F the suit property of late Raja through succession as pleaded.
9. In the amended written statement, it has been pleaded
by the defern;:lant 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
G 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
H
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 715
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
had passed an order dated 20-01-1958 in File· No.1 /56 A
Warangal/1950 and the legal heirs of Late Raja had
participated in the said proceedin~s 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 B
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 C
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 · D
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 plair1tiffs that original Sy.No.119 E
admeasuring Ac.1-20 guntas in the name of Gadd am 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 ~y. No.119
which finds place in the Khasra Pahani in separate series of 1 F
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 G
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 H
716 SUPREME COURT REPORTS [2015] 12 S.C.R.
A to the conclusion ttiat 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
B 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
C 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:
D "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
E 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
cov~red under Ex.12(a), when it is stated that S.No.613
F 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
G number and on changing also, but the same cannot
become~the government property as contended by the
. !earned 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
H
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 717
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
whatsoever and ownership may change from one person A
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 forthe plaintiffs
to seek declaration of their title except to seek correction
of record of rights recording the names of the heirs of B
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." C
12. Aggrieved by the decision of the High Court, the
defendants - appellants have preferred this appeal.
13. We have heard learned senior counsel appearing ·D
forthe 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 E
learned judges of the Division Bench who heard the aRPeal
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 F
any points of disagreement on the question of law, hence the
reference by the Chief Justice to the learned 3rd Judge is ultra
vi res. 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 G
Letters Patent Act are invoked the same cannot override the
provisions of Section 98 CPC. In this connection learned
counsel referred decisions in P. \I. Hemalatha v. Kattamkandi
Puthiya Ma/iackal Saheeda, (2002) 5 SCC 548 and Centre
For Environmenta/Law v. Union oflndia, (2010)12 SCC H
718 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 303. It was further contended that even if Clause 36 of the
Letters Patent of the Madras High Court which has been
adopted fortheA.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
B 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
C 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 pend ency 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
D 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 sec 569 and
E (2010) 11 sec 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 Hyderaba.d District is
F 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.
G 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
H produced for verification. There is no finding anywhere in Exh.
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 710
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
B.1 that Nadergul is not a Jagir Village. Merely because A
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 B
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. C
counsel contended that Sethwar (Exh.A-5), Register ofVasool
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 D
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 E
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 F
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 G
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 H
720 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B 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 3rct 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.
c
21. Per contra, Dr. A.M. Singhvi, learned senior counsel
appearing for the plaintiffs-respondents, at the very outset
submitted that althoughA.P. Industrial Infrastructure Corporation
Limited to whom the suit' property was illegally transferred by
D 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.
· E 22. On the issue of application of Section 98(2) of CPC,
Dr. Singhvi, learned se~ior counsel, submitted thitA.P. High
Court is governed by the Letters Patent of Madrasl-ligh 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
F the decision oOhis 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
G 1979 Patna 115. Learned counsel therefore submitted that
there is no illegality in the reference made by the Chief Justice
to the 3rct Judge of the High Court for deciding the appeal.
. 23. Rebutting the submission made by the appellants
H on the question of abatement learned counsel submitted that
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 721
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
the present suit is for declaration of title and permanent A
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 B ·
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, C
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. D
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 disp1,1te
on the genuineness and authenticity of documentary evidence E
on record, the suit claim has fo be decided on documentary
evidence i.e. Exhs. A 1-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
Bahadurwas recorded as the Pattadar of the suit land. From F
these documents it can be inferred with.out 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.
G
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 H
722 SUPREME COURT REPORTS [2015) 12 S.C.R.
A 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 NizamAtiyat proceeding
B 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
C 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
D 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
E 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
F 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
G 201h 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
H been made that non-substitution of legal representatives of
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 723
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
respondent No.12 in the appeal pending in the High Court, the A
appeal stood abated by operation of law and consequently
judgment and decree passed by the High Court in the appeal
suit No.274of2007 is rendered nullity in law.
30. By another I.A. Nos. 10 and 11of2015, the appellant s
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. C
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 (Deeeased) by
L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029; o
Amba Bai and others vs. Gopal and others, (2001) 5 SCC
570; Budh Ram and others vs. Bansi and others, (2010)
Vol. 11 sec 476.
32. In the case of Matindu Prakash (Deceased) by E
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 tq bring the
heirs and legal representatives of those appellants·on the
record. The question, therefore, that fell for consideration was F
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 G
the Civil Appeal is disposed of.
33. In the case of Amba Bai and others vs. Gopal and
others, 2001 (5) sec 570, this Court was considering the case
where a suit for specific performance by one plaintiff against H
724 SUPREME COURT REPORTS [2015] 12 S.C.R.
A the defendant was finally allowed in appeal and the suit was
decreed. During the pendency of Second Appeal by the
defendant in th_e 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
B 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
C 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
0
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
E 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. Jagdtsh Pers had Kishan Chand, Al R 1966 SC
1427, Ramagya Prasad Gupta vs. Murli Prasad, (1973) 2
F SCC 9 and Sardar Amarjit Singh Kalra vs. Pramod Gupta,
(200~) 3 sec 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
G the respondent-defendants w~uld 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
H interdependent upon one or the other, nor the parties have
GOVERNMENT OF AN DH RA PRADESH THR. PRINCIPAL 725
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
conflicting interests i_nter se, the appeal may abate only A
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 B
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-a-vis
remaining parties would suffer the vice of being a
contradictory or inconsistent decree is the relevant test." C
35. In the case of Harihar Singh vs. Balmiki Prasad
=
Singh, AIR 1975 SC 733 (1976) 1 SCC 212, this Court
observed:
D
"32. The important point to note about this litig(ltion is
that each of the reversioners is entitled to his own specific
· sh.are. 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 E
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. Th'ough the F
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 G
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." H
726 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 36. Similarly, iii the ca~e of State of Punjab vs. Nathu
Ram, AIR 1962 SC 89 = (1962) 2 SCR 636, which arose out
of acquisitiqn 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
B 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
C 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:
D "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
E 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
F res1pondent. 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
G 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,
H
GOVERNMENT OF AN DH RA PRADESH THR. PRINCIPAL 727
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
is not a correct statement. Of course, the appeals against A
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 8
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 c
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 D
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 E
all earlier decisions held as under:-
"27. Laws of procedure are meant to regulate effectively,·
as.sist and aid the object of doing substantial and real
justice and not to foreclose even an adjudication on merits F
of substa.ntial 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 G
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 H
728 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B viewed as a flexible tool of convenience in the
administration of justice."
xxxxx
32. But, in our view also, as to what those circumstances
c 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
D 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 substan(ial and
effective justice should be strictly viewed for being
discouraged, except where the mandate of law inevitably
E 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
condo nation of the delay as well as the considerations
F 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
G
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
H and for that reason the parties should not be penalized,
GOVERNMENT OF ANOHRA PRADESH THR. PRINCIPAL 729
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
for no fault of theirs. Actus curiae neminem gravabit (an A
act of court shall prejudice no one) is the maxim oftaw,
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 B
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 C
on either side in a litigation involving several claims or
more than one, pertaining to their individual rights may
settle among themselv~s the dispute to the extent their
share or proportion of rights is concerned and may drop
0
out of contest, bringing even the proceedings to a
conclusion so far as they are concerned. If all such moves
are allowed to boomer.ang adversely on the rights of the
remaining parties even to contest and have their claims
adjudicated on merits, it would be a travesty of E
administration of justice itself.
xxxxx
35. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners F
are found to have di$tinct, 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 G
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. H
730 SUPREME COURT REPORTS [2015] 12 S.C.R.
A (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
B 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
c 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
D 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
E 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
F
to be determined only witn reference to the fact as to
whether the judgment/decree passed in the
proceedings vis-a-vis the remaining parties would
suffer the vice of contradictory or inconsistent decrees.
G 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
H the enforcement of the other.
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 731
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, ~.]
xxxxx A
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
8
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 C
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 D
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 E
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 F
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, G
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 H
732 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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.
B 39. By filing another I.A. No.7 of2015on17.4.2015, the
appellants sought permission to urge additioi:al 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.
C 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
o 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
E 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.
F 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
Anothe;, (1995) 5 SCC119; P.V. Hema/atha vs.
· G Kattamkandi Puthiya Ma/iacka/ 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
H under:-
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 733
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
"98. Decision where appeal heard by two or more · A
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 (ff any) of
B
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
c
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
tfi.-~ Befld• differ in opinion on a point of law. they may D·
state the point of law upon which they differ and the appeal
sball ther: 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 wno have heard the appeal including those who E ~.
first !1eard 1t.
(3) Nothing in this Section shall be deemed to alter or
otherwise affect any provision of the letters patent of any
High Court·· ·
F.
· 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 G
and these Letters Patents were modified in 1865. Clause 36
of the Letters Patent declared that in exerc_ise 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 lhat the H
734 SUPREME COURT REPORTS [2015] 12 S.C,R.
A 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:-
B
"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
c 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
D 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
E 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:"
F
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
G
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,
H or by any Division Court thereof, appointed or constituted
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 735
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
for such purpose in pursuance of Section 108 of the A
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 B
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 C
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, D
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 E
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.
F
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 G
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 H
736 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B 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,
c 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.
D
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
E 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
F well. It could, thus, be seen that the reference there was
under theJetters 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
G 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)
H surplusage or otiose. In our considered view the
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 737
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
contention of the appellant cannot be accepted. It is true A
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 B
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 C
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
0
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 s~b-section (2) of Section 98 of the CPC."
46. From perusal of the above quoted paragraphs in the E
. 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 F
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. \/.
Hemafatha (supra) where the judges in appeal constituting a G
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
H
738 SUPREME COURT REPORTS [2015) 12 S.C.R.
A 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
B 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 Kera la in
c 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
D 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 ova two-Judge Bench
E 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
F 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
G Court on "practice and procedure" and "powers of
Judge3" is not applicable to any part of the new territory
of the State of Kera la and to the new High Court of that
State. Law with regard to the "practice, procedure and
powers of Judges" as contained in the Kera la Act, would
H be applicable uniformly to all the territories now forming
GOVERNMENT OF AN DH RA PRADESH THR. PRINCIPAL 739
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
part of the new State of Kerala and the High Court A
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 B
"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 C
decisions in Tej Kaur and P. \I. Hemalatha since the practice
and procedure of Letters Patent was not applicable.
49. A comparative study of Section 98 CPC vis-a-vis
clause 36 of the Amended Letters Patent of the Andhra o
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 E
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, F
such point shall be decided according to the opinion of majority
of Judges. If the Judg~s 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 G
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 (18of1928). The amended Sub-
section (3) of Section 98 was considered by a Full Bench of H
740 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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:-
B
"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
c of this Court; one reported in Debi Prasad Pandey v.
Gaud ham 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
D 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
E 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
F 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
G
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,
H
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 741
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
Rai, J. indicated that it is not open to a third Judge to A
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 1933All 861 SB: ILRAll 39." B
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 c
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 D
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 . E
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 F
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 G
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 H
742 SUPREME COURT REPORTS [2015] 12 S.C.R.
A a joint order specifying the difference as envisaged urider
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.
B 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
c 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
D
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."
E 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:-
F
"1 ·1. 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
G 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
H power and lays down special form of procedure
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 743
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.] ,
prescribed therein for governing the cases where the two A
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 B
way being impeded or restricted or being cut across by
the procedural requirements laid down by Order47 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 C
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 D
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 . E
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. F
)()()()()(
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 G .
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 Ru/ia Devi and others vs.Raghunath
Prasad, AIR 1979 Patna 115, a Bench of the Patna High Court H
744 SUPREME COURT REPORTS [2015] 12 S.C.R.
A while considering the provision of Section 98 CPC vis a vis
clause 28 of the Letters Patent held:-
"lt will be observed that the Letters Patent does not confine
the point of difference to a question of law and since it is
B 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
c 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.
D 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
E
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
F 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
G 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.
H One of the learned Judges allowed the appeal ahd set aside
GOVERNMENT OF AN DH RA PRADESH THR. PRINCIPAL 745
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
the trial court judgment, whereas another learned Judge A
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 B
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 on~ of the learned
differing Judges and allowed the appeal. In our considered
opinion, therefore, there has been complete compliance of C
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 D
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 E
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 F
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
G
the effect of waiver of title?.
t) 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
H
746 SUPREME COURT REPORTS [201.5] 12 S.C.R.
A 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
B
there?
56. On consideration of the pleadings of the parties on
the point of change of survey number, the Court observed:-
c "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
D 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
E 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
F 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
G 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 Manda! Revenue
Officer and Legal Officer. None of these witnesses are
competent to give evidence about the survey numbers
H
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 747
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
in village, the sub division of survey numbers, the A
settlement operations where the total survey numbers in
the village can get decreased or increased. On one ti and,
the State is contesting the suit on the ground that
Nadergul Village is Jagir and/or lnam and/or confiscated
by the State. In any of these eventualities, there cannot B
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 C
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 ExhibitA-12 D
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:-
E
"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 F
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 Oharmavanth Bahadur lands were to be recorded G
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 H
748 SUPREME COURT REPORTS [2015] 12 S.C.R.
A survey operations were carried out in Nadergul village.
Hence, we have no hesitation to hold that Raja Shivraj
Dharmavanth Bahadurwas the pattadarofthe suit land
and he was khatadar for payment of revenue (khata
No.3)."
B
~i8. 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
c 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
0
submitted that in TelanganaArea, the matters of revenue
were regulated by theA.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
E 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
F 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
captl!rement and if the Ruler that Nizam acknowledges
the same, that would be sufficient to construed him as
G owner of the land, the learned counsel for the plaintiff
has placed reliance on a Division bench of this Court
reported in AIR 1970AP 19 para 19. In the said judgment
it has been held that the act has defined the expression
permanentAlienation "in section 2 (o) to include any sale
H exchange or gift and any transfer of a right of occupancy
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 749
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
or of the patt~of holding but excluding any dispossession A
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 ofTehsildar in
respect of vacant lands under Section 54 or of a pattadar
who is in possession, has a right of occupancy which is B
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 C
defines a pattadarwhich 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 . D
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 la.nd~.
wherever situated, together with all rights appertaining E
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 F
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 G
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 H
750 SUPREME; COURT REPOR~S [2015] 12 S.C.R.
A Dharmavanth Bahadur as pattadar and Khatadar up to
the year 1954-55.. Even if Nadergul village is assumed
as Jagirvillage or lnam 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
B 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. The~e is no possibility of a single survey number
c i.e. sy. No. 613 (suit land) getting covered either under
the Hyderabad Abolition of Jagir Regulation or the AP.
(T.A.)Abolition of lnamsAct 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
D
whatsoever. Ownership may change from one p,erson 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
E
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
F 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
G 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
H Bahadur are shown separately is of no intelligible
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 751
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
meaning. The evidence of OW 1 and DW2 has not thrown A
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 B
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 C
land in Sy. No.613 of Nadergul village is shown separately
in a fresh series of survey numbers i.e. 1 to 1.94."
60. On the issue whether the Nadergul Village is a Jagir
village, the Court held:- D
"From the documentary evidence addu,ced 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 E
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 F
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 G
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 H
752 SUPREME COURT REPORTS [2015] 12 S.C.R.
A Atiyat, which has rejected computation amount for List Ill
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
B 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 NazimAtiyat under Ex. B1 proceedings."
c
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,
0 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
E 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 Siva raj Bahadur participated in the lnam Enquiry
F 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
G 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
H the learned Judge, therefore the order passed by the Appellate
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 753
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
Authority dismissing the appeal for non-prosecution will A
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 B
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 C
Nadergul village and Exs.A-12 toA-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. D
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 E
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 F
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 G
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: H
754 SUPREME COURT REPORTS [2015] 12 S.C.R.
A "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
B
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
c the effect of waiver of title?
n 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
D
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
E 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
F
AC.373-22. It has further been admitted that in the said Khasra
Pahani survey numbers the name of Raja Sivaraj Bahadur are
rec~orded separately in a new series of Survey Numbers from
1 to 194. Further in Ex.12(a), which is a Khasra Pahani, it is
G
recorded as 'cultivated self and it is mentioned as lnam
Dastagardan (suspense account) and in which Pattadar's
name is mentioned as ''Sivaraju llaka" 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
H Nadergul Village covered under Ex.12(b), which is mentioned
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 755
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
\
at serial no.2, Survey No.613 Sivaraju llaka. The learned Judge A
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 8
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), c
it was shown as S.No.119 and extent is shown asAc.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, D
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 E
which is Sirkari but Sivaraj llaka. 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 F
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
G
written statement, State has taken several alternative and
inconsistent defences by contending that Nadergul
village is lnam Dastagardan. Even if We accept that is
lnam Dastagardan, it is only a suspense account and
rights of the parties have to be determined under lnams H
756 SUPREME COURT REPORTS [2015] 12 S.C.R.
A Abolition Act. There is no proof that the land has been
treated as government land and confiscated to the State.
Once i~ is recorded that S. No.119 admeasuring Ac.1-
20 guntas belongs to Gadd am Mallaiah, how the same
survey Numbei i.e. 119 can be recorded as having an
B 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 toAtiyat
c 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-Ill under the heading Tahrir
Pawanni Jagirs under Serial No.8. Therefore, no
D
commutation amount has been fixed for list Ill 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
E 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
F 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
G 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 8-27 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
H award will be implemented on the payments side after
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 757
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
carefully checking and reconciling the number of jagir A
villages as furnished by the estate authorities with the
list recently received from theAtiyat 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 B
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 C
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 D.
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 E
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: F
"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 G
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 H
758 SUPREME COURT REPORTS [2015] 12 S.C.R.
A State under Jagir Abolition Act on abolition of jagirs or
for non filin~ 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
B 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
c 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) forthe corresponding survey number and
on changing also, but the same cannot become the
D
g_overnment 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
E 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
F 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
G interfering with the plaintiffs peaceful possession."
71. The learned third Judge, therefore, agreed with the
finding recorded by one of the Judge, ~iustice B. Prakash Rao
and upheld the conclusion arrived at by him and consequently
H allowed the appeal.
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 759
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
72. We have meticulously perused the pleadings of the A
parties, and the evidence, both oral and documentary adduced
by them. We have also gone through the findings record.ed 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 B
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.
c
73. The plaintiff-respondents filed the suit for correction
and rectification of record of right in respect of S.No.613
measuring 373.22 gur:tas 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 D
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 E
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, F
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. G
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 H
760 SUPREME COURT REPORTS [2015) 12 S.C.R.
'
A the Board of Revenue, Andhra Pradesh for the year 1954-55
the name of Raja Shiv Raj Bahadurwas entered as the absolute
owner and possessor ofthe 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
B 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
C 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
D 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 oftheA.P. (TelanganaArea) Record-
E 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. Tfie said
regulation of 1358 F was in vogue till it was repealed by
the A.P. Rights in Land and Pattadar Pass Books Act,
F 1971, which came into force on15-8-1978. In the 2nd
Edn. (1997) of The Law Lexicon by P. RamanathaAiyar
(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
G
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
H the oral and documentary evidence recorded a finding with
GOVERNMENT OF ANDHRAPRADESH THR. PRINCIPAL 761
~ECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
regard to the title in respect of S.No.613 in favour of the A
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 B
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 C
as "cultivated self' and in column 7 it is mentioned that lnam
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 D
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 E
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 F
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.
G
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 lnarn land. The High Court in the impugned H
762 SUPREME COURT REPORTS [2015] 12 S.C.R.
A judgment has rightly observed:-
"lt is relevant t~ note here, Baga Nadergul village has
been mentioned in List-Ill under the heading Tahrir
Pawanni Jagirs under Serial No.8. Therefore, no
B commutation amount has been fixed for list Ill 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
c 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
D 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 df late
E 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
F carefully checking and reconciling the number of jagir
villages as furnished by the estate authorities with the
list recently received from theAtiyat Department, so as
to keep the commutation sum of villages shown in list
No.Ill attached to Nazim Saheb Atiyat's L.No.1884 dt.
G
27-2-1958 in reserve as ordered by the Board of
Revenue in their letterNo.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
H
·GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 763
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
not open for fhe Government to contend that the A
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)." B
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 c
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.
D
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 E
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 F
(seri Khudkasht) of a Jagirdaror Hissedarwhich, 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 G
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 H
764 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B
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.
c 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
D 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
E 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.
F 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 la rid, 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
G 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
H truth of these documents and the correctness of entries therein
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 765
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
are not in dispute. The only contention of the State was that A
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. B
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 thatthe decision of the C
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 D
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 E
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.
F
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 G
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 thatsince the name of the State was
recorded to be the owner of the land in the Record of right
H
766 SUPREME COURT REPORTS [2015] 12 S.C.R.
A 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
B 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
C 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
D khasra-pahani land which were in original possession of Raja
Shivraj Bahadurwas 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
E 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
F Dhiraj Karan in favour of Pratap Karan, one of the plaintiffs,
Exh.P-5 Sethwarfor 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.
G 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
H that the property was separately shown. There is no explanation
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 767
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
or evidence from the side of the appellants as to under which A
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 B
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 C
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 D
t-.Jo.613 was shown in that duplicate survey No.119. The
learned District Judge while deciding the injunction applicati9n
has recorded admission of the Government that the pla1ntiffs
are in possession of the suit land. On the basis of admission
by the appellant and the Revenue Record the Court gave E
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 F
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 G
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
H
768 SUPREME COURT REPORTS (2015] 12 S.C.R.
A 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
B 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.
c
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 Ciyil Appeal No.2964 of 2013 filed by the
appellant-Corporation is concerned, admittedly the appellant-
0
State, despite pendency of appeal in the High Court, transferre.d
the suit land in favour of the Corporation. The said transfer is
not only hit by /is pendens but also appears to be not bonafide.
Be that as it may, consequent upon the dismissal of the appeal
E 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.
Kalpana K. Tripathy Appeals dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "land title"Sign in to search