Thursday, 25 February 2016

What will be effect of death of some of appellants during pendency of appeal?

 Five Judges Constitution Bench of this Court in the 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 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
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 all
earlier decisions held as under:-
“27. Laws of procedure are meant to regulate effectively,
assist and aid the object of doing substantial and real

justice and not to foreclose even an adjudication on merits
of substantial 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 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 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 viewed as a flexible tool
of convenience in the administration of justice.”
 xxxxx
32. But, in our view also, as to what those circumstances
are to be, cannot be exhaustively enumerated and no hardand-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 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 substantial and effective justice
should be strictly viewed for being discouraged, except
where the mandate of law inevitably 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 condonation of the
delay as well as the considerations which should weigh in
adjudging the nature of the decree i.e. whether it is joint
and inseverable or joint and severable or separable. The fact
that the Reference Court has chosen to pass a decree jointly
in the matters before us is and should be no ground by
itself to construe the decree to be joint and inseparable. At
times, as in the cases on hand, the court for its convenience
might have combined the claims for joint consideration on
account of similar nature of the issues in all such cases and
for that reason the parties should not be penalized, for no

fault of theirs. Actus curiae neminem gravabit (an act of
court shall prejudice no one) is the maxim of law, which
comes into play in such situations. A number of people,
more for the sake of convenience, may be counselled to join
together to ventilate, all their separate but similar nature of
claims and this also should not result in the claims of all
such others being rejected merely because one or the other
of such claims by one or more 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 on either side in a litigation involving
several claims or more than one, pertaining to their
individual rights may settle among themselves the dispute
to the extent their share or proportion of rights is concerned
and may drop out of contest, bringing even the proceedings
to a conclusion so far as they are concerned. If all such
moves are allowed to boomerang adversely on the rights of
the remaining parties even to contest and have their claims
adjudicated on merits, it would be a travesty of
administration of justice itself.

35. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners
are found to have distinct, 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
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.
(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 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 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
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
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 to be determined only with reference to the
fact as to whether the judgment/decree passed in the
proceedings vis-à-vis the remaining parties would
suffer the vice of contradictory or inconsistent
decrees. For that reason, a decree can be said to be
contradictory or inconsistent with another decree
only when the two decrees are incapable of
enforcement or would be mutually self-destructive
and that the enforcement of one would negate or
render impossible the enforcement of the other.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2963 OF 2013
Government of Andhra Pradesh
Thr. Principal Secretary and others 
versus
Pratap Karan and others
Citation;(2016)2 SCC82: AIR 2016 SC 1717
M. Y. EQBAL, J.

This appeal being C.A.No.2963 of 2013 arises out of the
judgment and order dated 19.12.2011 passed by the 3rd Judge
of the High Court of Andhra Pradesh to whom the matter was
1Page 2
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 plaintiffrespondent
before the High Court which was 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 judgment
of the trial court. The 3rd Judge to whom the matter was
referred, passed the impugned judgment upholding the
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 have been heard and disposed of by this judgment.
2Page 3
2. The plaintiffs (hereinafter referred to as the respondents)
filed Title Suit No. 274 of 2007 for rectification of Revenue
Records by incorporating their names as owners 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.
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 pattadar and
absolute owner of the suit schedule property. The succession
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.A1). On the death of late Raja issueless in the year 1917,
the succession of his estate was granted by the Royal Firman
3Page 4
in favour of the sons of his two brothers Raja Lokchan Chand
and Raja Murali Manohar Bahadur by another Royal Firman
dated 5th Safar 13 1361 Hizri, the succession of estate of late
Raja Dhiraj Karan was granted in the name of Pratap Karan
who is one of the plaintiffs, under Ex.A2. The other plaintiffs
are the successors of legal heirs of Raja Dharam Karan, Raja
Mehboob Karan and Raja Manohar Raj.
4. It has been contended on behalf of the plaintiffRespondents
that they are, therefore, the absolute owners and
possessors of the suit schedule land. The land in Nadergul
Village was subject matter of survey and settlement of the year
1326 Fasli (year 1917) and under the said survey and
settlement the lands of late Raja were part of Khata No.1
wherein the suit schedule land was having Survey Number
579. Late Raja’s name was also shown as Khatadar in Setwar
and Vasul Baqui. Thus, the suit lands are private lands of late
Raja. The revisional survey of Nadergul Village was given effect
in the year 1352 Fasli (year 1943) and the said survey has also
4Page 5
confirmed the ownership of late Raja in Khata No.3 (Khata
No.1 as per survey of 1326 Fasli (year 1917) which also made
it clear that the suit lands are private lands of late Raja. The
present survey number 613 was shown as the corresponding
old Survey Number 579 without any change in the extent of
the 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 late Raja was the
Khatadar of all the land in Sy.No.613 of Nadergul Village,
Saroornagar Mandal, Rangareddy District, Ex.A5. The village
map of Nadergul Village and plan of S.No.613 clearly disclose
the land as ‘Kancha’ of Late Raja. The total survey numbers in
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
5Page 6
the 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 Ilaka without
determining the extent.
6. It is the plaintiffs’ case that as per the certified copies of
pahanies for the years 1949-50 and 2000-01 the land in
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
the original extent of land in S.No.119 shown as Ac.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 the
custodians of the records with an oblique motive of depriving
6Page 7
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 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 shown
separately, is devoid of a sensible meaning. As per the
endorsement, it is incumbent on the defendants to continue to
maintain the revenue records in the name of late Raja and the
plaintiffs being the predecessors in interest as
pattadar/khatadar of the said land in S.No.613 of Nadergul
Village.
7. The plaintiffs’ case is that in certified copies of the
pahanies for the years 1955-01, there is duplication of
S.No.119, and while Gaddam Mallaiah is shown as Khatadar
of S.No.119 in respect of land admeasuring Ac.1-20 guntas,
7Page 8
the duplicated S.No. 119 admeasuring more than 355 acres
and sometimes Ac.373-22 guntas is being shown as Kancha
Sarkari notwithstanding the fact that in the Khasra Pahani for
the year 1954-55 it is clearly mentioned late Raja as
khatadar/pattadar of the entire land in S.No.119. Since the
Khasra Pahani has confirmed the ownership of late Raja, the
same cannot be changed as Sarkari Kancha in the Pahani
without there being any proceedings. When the land in
S.No.613 is continuing to exist as per the village maps and
touch plan, the pahanies and other records are being
maintained with mis-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 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
8Page 9
cannot be effected under Section 8(2) of the Act. The
defendants have no title over the suit schedule land.
8. The 5th defendant-appellant Mandal 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
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 the suit property of late Raja through succession as
pleaded.
9. In the amended written statement, it has been pleaded by
the defendant 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 the
9Page 10
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 had
passed an order dated 20-01-1958 in File No.1/56
Warangal/1950 and the legal heirs of Late Raja had
participated in the said proceedings 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
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
was remanded back to the Board of Revenue and after
remand, the appeals filed by the above said persons were
dismissed for non-prosecution.
10Page 11
10. It has been further pleaded in the aforesaid amended
written statement that after abolition of Jagirs, the Jagir lands
of late Raja numbering about 8 survey numbers were rounded
off and separate numbers from 1 to 194 were given as
evidenced in the Khasra Pahani for the year 1954–55 and as
such the contention of the plaintiffs that original Sy.No.119
admeasuring Ac.1-20 guntas in the name of Gaddam Mallaiah
has increased to 355 acres is not only false but the same is
contrary to the record. Sy.No.119 admeasuring Ac.1-20 guntas
is separate and distinct survey number from the Sy.No.119
which finds place in the Khasra Pahani in separate series of 1
to 194. This Sy.No.119 is admeasuring Ac.355.00 and
recorded as Sarkari Poramboke. Having not filed any
declarations under the Land Ceiling Laws, the plaintiffs are
not entitled to stake the suit claim. It is further pleaded by
the defendant that the plaintiffs and their ancestors have
participated in the enquiry before Nazim Atiyat for the award
11Page 12
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 to the
conclusion that 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 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 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:
12Page 13
“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
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 covered under
Ex.12(a), when it is stated that S.No.613 has been recorded
as “Self Cultivation Dastagardan” and numbers of the
Sivaraj Bahadur has been written separately and the same
has also been shown as S.No.119 under Ex.12(b). Therefore,
late Raja or his heirs continue(s) to be pattadar(s) for the
corresponding survey number and on changing also, but the
same cannot become the government property as contended
by the learned Advocate General. Further, the identity of
land in S.No.613, suit land, as found in Ex.A-10-touch plan
and Ex.A- 9-village map cannot undergo any change
whatsoever and ownership may change from one person to
the other but the location of land and its identity with
reference to survey number cannot be changed. Therefore,
there is no further necessity for the plaintiffs to seek
declaration of their title except to seek correction of record of
rights recording the names of the heirs of late Raja i.e. the
plaintiffs. Thus, the plaintiffs are entitled for a declaration
for correction of the entries in the record of rights recording
the names of the legal heirs of late Raja and also injunction
restraining the defendants from interfering with the plaintiffs
peaceful possession.”
12. Aggrieved by the decision of the High Court, the
defendants – appellants have preferred this appeal.
13Page 14
13. We have heard learned senior counsel appearing for the
parties and also perused the written submissions filed by
them.
14. While raising an additional ground for the first time here
in this appeal, Mr. Mukul Rohatgi, learned Attorney General
appearing for the appellants, submitted that the learned
judges of the Division Bench who heard the appeal differed
vertically in as much as Section 98(2) of CPC provides for
confirmation of decree of the trial court. Reference to the 3rd
Judge was made in the present case not after formulating any
points of disagreement on the question of law, hence the
reference by the Chief Justice to the learned 3rd Judge is ultra
vires. In this connection learned counsel referred the decision
of this Court in Tej Kumar vs. Kirpal Singh, (1995) 5 SCC
119. It was further submitted that even if the provisions of
Letters Patent Act are invoked the same cannot override the
provisions of Section 98 CPC. In this connection learned
counsel referred decisions in P.V. Hemalatha v.
14Page 15
Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC
548 and Centre For Environmental Law v. Union of India,
(2010)12 SCC 303. It was further contended that even if
Clause 36 of the Letters Patent of the Madras High Court
which has been adopted for the A.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 who had heard the appeal, reference to the
3
rd judge was, therefore, clearly incompetent.
15. Learned Attorney General appearing for the appellant
raised another point with regard to abatement of the appeal
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 pendency 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
pending in the High Court itself stands abated. Further, the
15Page 16
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 SCC 569 and
(2010) 11 SCC 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 Hyderabad District is
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.
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
16Page 17
Court qua Nadergul with the relevant Sandas have not been
produced for verification. There is no finding anywhere in
Exh. B.1 that Nadergul is not a Jagir Village. Merely because
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
Attorney holder of the plaintiffs who could not have any
personal knowledge on the issues relating to the grant made
by Nizam and the proceeding relating thereto.
18. On the relevancy of documentary evidence learned
counsel contended that Sethwar (Exh.A-5), Register of Vasool
Baqui and Khasra Pahani in respect of Survey No. 613 are not
sufficient to declare title of Raja Shiv Bahadur and, thereafter,
the plaintiffs as successors to the Estate in respect of the suit
property. Learned counsel contended that it is inconceivable
17Page 18
that fairly large extent of 373.22 acres of private land would
otherwise not be subjected to any land revenue. According to
the appellants since the land of Survey No.613 was a Crown’s
land it was not assessed to land revenue. With regard to
Pahani Patrika from 1949-50 till 2000-01 shows that the land
in survey No.613 as Kancha-Sarkari or Kancha-Shiv Raj
Bahadur. It was contended that there is no document
whatsoever to support the case of the plaintiffs with regard to
the title to the suit property. These documents cannot be
treated 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 of title being acquired by their predecessors in
interest. In any view of the matter the suit itself is barred by
limitation.
18Page 19
20. Mr. Dushyant A. Dave, learned senior counsel appearing
for the appellant Corporation in Civil Appeal 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 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 3rd 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.
21. Per contra, Dr. A.M. Singhvi, learned senior counsel
appearing for the plaintiffs-respondents, at the very outset
submitted that although A.P. Industrial Infrastructure
Corporation Limited to whom the suit property was illegally
transferred by the appellant-State during the pendency of
19Page 20
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.
22. On the issue of application of Section 98(2) of CPC, Dr.
Singhvi, learned senior counsel, submitted that A.P. High
Court is governed by the Letters Patent of Madras High 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 the
decision of this 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
1979 Patna 115. Learned counsel therefore submitted that
there is no illegality in the reference made by the Chief Justice
to the 3rd Judge of the High Court for deciding the appeal.
20Page 21
23. Rebutting the submission made by the appellants on the
question of abatement learned counsel submitted that the
present suit is for declaration of title and permanent
injunction. On the death if Defendant No.12 the right to sue
survives with the remaining plaintiffs and, therefore, that the
appeal then pending in the High Court will not abate. Learned
counsel referred Order 22 Rule 2 CPC and submitted that the
objection with regard to abatement of appeal in the High Court
was neither raised before the High Court nor raised in the
grounds of memo of appeal filed before this Court.
24. Replying the submissions made by Mr. Dave, appearing
for the appellant Corporation in another appeal, learned senior
counsel appearing for the respondents submitted that a GPA
holder can give evidence on matters which are within his
knowledge and he is competent enough to give evidence on
behalf of the party. In this connection he relied upon AIR
2005 SC 439.
21Page 22
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
dispute on the genuineness and authenticity of documentary
evidence on record, the suit claim has to be decided on
documentary evidence i.e. Exhs. A1-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 Bahadur was recorded as the Pattadar of the suit
land. From these documents it can be inferred without 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.
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
22Page 23
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 Nizam
Atiyat proceeding 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 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 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
23Page 24
State ever came in possession. On the contrary the
possession of the plaintiff-respondents was sufficiently proved
by the trial 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 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 20th July,
2015, the appellant stated that during the pendency of the
appeal in the High Court, respondent No.12 died but the legal
representatives have not been substituted by the respondents,
who were appellants before the High Court which resulted in
abatement of the said appeal. Hence, prayer has been made
that non-substitution of legal representatives of respondent
24Page 25
No.12 in the appeal pending in the High Court, the appeal
stood abated by operation of law and consequently judgment
and decree passed by the High Court in the appeal suit No.274
of 2007 is rendered nullity in law.
30. By another I.A. Nos. 10 and 11 of 2015, the appellant
has stated that during pendency of this appeal respondent
No.6 died on 8.4.2015 and respondent No.14 died on 6.1.2014
which were not within the knowledge of the appellant, hence
prayer has been made to set aside the abatement and
substitute their legal representatives.
31. Learned Attorney General appearing for the appellant
pressed these two applications relying upon the decision of
this Court in the case of Matindu Prakash (Deceased) by
L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029;
Amba Bai and others vs. Gopal and others, (2001) 5 SCC
25Page 26
570; Budh Ram and others vs. Bansi and others, (2010)
Vol. 11 SCC 476.
32. In the case of Matindu Prakash (Deceased) by 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 to bring the heirs and
legal representatives of those appellants on the record. The
question, therefore, that fell for consideration was 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 the Civil
Appeal is disposed of.
33. In the case of Amba Bai and others vs. Gopal and
others, 2001(5) SCC 570, this Court was considering the case
26Page 27
where a suit for specific performance by one plaintiff against
the defendant was finally allowed in appeal and the suit was
decreed. During the pendency of Second Appeal by the
defendant in the 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 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 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 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.
27Page 28
34. In the case of Budh Ram and others vs. Bansi 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.
Jagdish Pershad Kishan Chand, AIR 1966 SC 1427,
Ramagya Prasad Gupta vs. Murli Prasad, (1973) 2 SCC 9
and Sardar Amarjit Singh Kalra vs. Pramod Gupta, (2003)
3 SCC 72 held as under:-
“17. Therefore, the law on the issue stands crystalLised to
the effect that as to whether non-substitution of LRs of the
respondent-defendants would abate the appeal in toto or
only qua the deceased respondent-defendants, depends
upon the facts and circumstances of an individual case.
Where each one of the parties has an independent and
distinct right of his own, not interdependent upon one or the
other, nor the parties have conflicting interests inter se, the
appeal may abate only qua the deceased respondent.
However, in case, there is a possibility that the court may
pass a decree contradictory to the decree in favour of the
deceased party, the appeal would abate in toto for the simple
reason that the appeal is a continuity of suit and the law
does not permit two contradictory decrees on the same
subject-matter in the same suit. Thus, whether the
judgment/decree passed in the proceedings vis-à-vis
remaining parties would suffer the vice of being a
contradictory or inconsistent decree is the relevant test.”
28Page 29
35. In the case of Harihar Singh vs. Balmiki Prasad
Singh, AIR 1975 SC 733 = (1976) 1 SCC 212, this Court
observed:
“32. The important point to note about this litigation is that
each of the reversioners is entitled to his own specific share.
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 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 onetwelfth
share. Thereafter many of the other reversioners who
were originally added as defendants were transposed as
plaintiffs. Though the 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 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.”
36. Similarly, in the case of State of Punjab vs. Nathu
Ram, AIR 1962 SC 89 = (1962) 2 SCR 636, which arose out of
acquisition 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 Government to
an arbitrator, who passed an award for payment of higher
29Page 30
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 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:
“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 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 respondent. They have not been always
agreed with respect to the result of the particular
circumstances of a case and there has been, consequently,
divergence of opinion in the application of the principle. It
will serve no useful purpose to consider the cases. Suffice it
to say that when Order 22 Rule 4 does not provide for the
abatement of the appeals against the co-respondents of the
deceased respondent there can be no question of abatement
of the appeals against them. To say that the appeals against
them abated in certain circumstances, is not a correct
statement. Of course, the appeals against them cannot
proceed in certain circumstances and have therefore to be
dismissed. Such a result depends on the nature of the relief
sought in the appeal.”
30Page 31
37. Five Judges Constitution Bench of this Court in the 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 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
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 all
earlier decisions held as under:-
“27. Laws of procedure are meant to regulate effectively,
assist and aid the object of doing substantial and real

justice and not to foreclose even an adjudication on merits
of substantial 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 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 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 viewed as a flexible tool
of convenience in the administration of justice.”
 xxxxx
32. But, in our view also, as to what those circumstances
are to be, cannot be exhaustively enumerated and no hardand-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 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 substantial and effective justice
should be strictly viewed for being discouraged, except
where the mandate of law inevitably 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 condonation of the
delay as well as the considerations which should weigh in
adjudging the nature of the decree i.e. whether it is joint
and inseverable or joint and severable or separable. The fact
that the Reference Court has chosen to pass a decree jointly
in the matters before us is and should be no ground by
itself to construe the decree to be joint and inseparable. At
times, as in the cases on hand, the court for its convenience
might have combined the claims for joint consideration on
account of similar nature of the issues in all such cases and
for that reason the parties should not be penalized, for no

fault of theirs. Actus curiae neminem gravabit (an act of
court shall prejudice no one) is the maxim of law, which
comes into play in such situations. A number of people,
more for the sake of convenience, may be counselled to join
together to ventilate, all their separate but similar nature of
claims and this also should not result in the claims of all
such others being rejected merely because one or the other
of such claims by one or more 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 on either side in a litigation involving
several claims or more than one, pertaining to their
individual rights may settle among themselves the dispute
to the extent their share or proportion of rights is concerned
and may drop out of contest, bringing even the proceedings
to a conclusion so far as they are concerned. If all such
moves are allowed to boomerang adversely on the rights of
the remaining parties even to contest and have their claims
adjudicated on merits, it would be a travesty of
administration of justice itself.
xxxxx
35. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners
are found to have distinct, 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
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.
(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 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 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
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
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 to be determined only with reference to the
fact as to whether the judgment/decree passed in the
proceedings vis-à-vis the remaining parties would
suffer the vice of contradictory or inconsistent
decrees. For that reason, a decree can be said to be
contradictory or inconsistent with another decree
only when the two decrees are incapable of
enforcement or would be mutually self-destructive
and that the enforcement of one would negate or
render impossible the enforcement of the other.
xxxxx
37. For all the reasons stated above, we are unable to
approve the decision or the manner of disposal given by the
High Court in these cases, which resulted in grave injustice
to the remaining appellants in denying them of their right to
have an adjudication of their claims on merits. The High
Court ought to have condoned the delay as prayed for,
keeping in view the pendency of the main appeals on its file,
adopting a liberal and reasonable approach, which would
have facilitated an effective adjudication of the rights of
parties on either 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 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 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 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,
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
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.
39. By filing another I.A. No.7 of 2015 on 17.4.2015, the
appellants sought permission to urge additional 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.
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 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
judgments, both the judges have not recorded their opinion on
36Page 37
the point of difference on the point of law. Without
formulating the point of difference the matter was referred to a
third judge by the Chief Justice and the third judge finally
passed the impugned judgment concurring with one of the
judge. According to the learned counsel, therefore, the
impugned judgment is vitiated in law and cannot be
sustained. In this connection, learned counsel relied upon the
decision of this Court in Tej Kaur and Another vs. Kirpal
Singh and Another, (1995) 5 SCC119; P.V. Hemalatha vs.
Kattamkandi Puthiya Maliackal Saheeda and Another,
(2002) 5 SCC 548; Pankajakshi (Dead) Through Lrs. And
Others vs. Chandrika and Others, (2010) 13 SCC 303.
41. Section 98 of the Code of Civil Procedure reads as under :-
“98. Decision where appeal heard by two or more Judges.
(1) Where an appeal is heard by a Bench of two or more
Judges, the appeal shall be decided in accordance with the
opinion of such Judges or of the majority (if any) of such
Judges.
(2) Where there is no such majority which concurs in a
judgment varying or reversing the decree appealed from,
such decree shall be confirmed:
Provided that where the Bench hearing the appeal
is composed of two or other even number of Judges
belonging to a Court consisting of more Judges than those
37Page 38
constituting the Bench and the Judges composing the Bench
differ in opinion on a point of law, they may state the point of
law upon which they differ and the appeal shall then 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 who have heard
the appeal including those who first heard it.
(3) Nothing in this Section shall be deemed to alter or
otherwise affect any provision of the letters patent of any
High Court.”
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
and these Letters Patents were modified in 1865. Clause 36 of
the Letters Patent declared that in exercise 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 that the
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
38Page 39
consistently held by the Full Bench of the Madras High Court
as under:-
“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 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 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 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:”
43. Clause 36 of Amended Letters Patent of the High Court of
Madras, which has been made applicable to the High Court of
Andhra Pradesh, reads as under:-
“36. Single Judge and Division Courts:-- And we do
hereby declare that any function which is hereby directed to
be performed by the said High Court of Judicature at
Madras, in the exercise of its original or appellate
jurisdiction, may be performed by any Judge, or by any
Division Court thereof, appointed or constituted for such
purpose in pursuance of Section 108 of the Government of
India Act, 1915 and in such Division Court is composed of
two or more Judges, and the Judges are divided in opinion
as to the decision to be given on any point, such point shall
be decided according to the opinion of the majority of the
39Page 40
Judges, if there shall be a majority, but if the Judges should
be equally divided they shall state the point upon which
they differ and the case shall then be heard upon that point
by one or more of the other Judges and the point shall be
decided according to the opinion of the majority of the
Judges who have 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, 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 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.
45. Firstly, we shall discuss the decisions cited by the
learned counsel on both sides. In the case of Tej Kaur and
40Page 41
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 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
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 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, 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.
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 subsection
(3) of Section 98 CPC, the letter 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 well. It could, thus, be seen that the
reference there was under the letters patent which power
has been expressly preserved by sub-section (3) of Section
98. But in the case at hand, the letters patent power was not
available and therefore, by operation of sub-section (2) of
Section 98, the decree of the court below stands affirmed.
41Page 42
9. The question then is whether this Court could nullify the
scheme of Section 98(2) by examining the dispute on merits
and by implication render sub-section (2) surplusage or
otiose. In our considered view the contention of the appellant
cannot be accepted. It is true that in a case where there is
difference of opinion among the Judges of the High Court,
the power of this Court under Article 136 is wide enough to
test the correctness of the conclusion reached by the
differing learned Judges as pointed out by this Court in Dr
Prem Chand Tandon case. This proposition is
unexceptionable but this Court had no occasion in that case
to consider the scope of sub-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 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 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 sub-section (2) of Section 98 of the
CPC.”
46. From perusal of the above quoted paragraphs in the
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 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.
42Page 43
47. Reference has also been made to the case of P.V.
Hemalatha (supra) where the judges in appeal constituting a
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
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 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 Kerala in
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 subsection
(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
43Page 44
liable to be confirmed. On behalf of the respondent very
strong reliance has been placed on a two-Judge Bench
decision of this Court in the case of Tej Kaur v. Kirpal Singh
in which in a similar situation the Supreme Court held that
the provision of sub-section (2) of Section 98 would be
attracted and in view of the two conflicting judgments passed
by two Judges who differed on issues of fact, the judgment of
the subordinate court is liable to be confirmed.
35. We have reached the conclusion as stated above that
clause 36 of the Letters Patent of the Madras High Court on
“practice and procedure” and “powers of Judges” is not
applicable to any part of the new territory of the State of
Kerala and to the new High Court of that State. Law with
regard to the “practice, procedure and powers of Judges” as
contained in the Kerala Act, would be applicable uniformly to
all the territories now forming part of the new State of Kerala
and the High Court established for it. We have also held even
on assumption that Section 23 of the Travancore-Cochin Act
is saved under Section 9 of the Kerala Act that since the said
Kerala Act is a “general law”, it has to give place to Section
98 of the Code of Civil Procedure which is a “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 decisions in
Tej Kaur and P.V. Hemalatha since the practice and
procedure of Letters Patent was not applicable.
49. A comparative study of Section 98 CPC vis-à-vis clause
36 of the Amended Letters Patent of the Andhra Pradesh High
Court will reveal that while Section 98 provides that in a case
44Page 45
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 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,
such point 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 majority
of Judges 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 (18 of 1928). The amended Sub-
45Page 46
section (3) of Section 98 was considered by a Full Bench of 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:-
“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 of this Court; one
reported in Debi Prasad Pandey v. Gaudham 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 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 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 Subsection
(3) in Section 98 of the Code and they have become
obsolete. I am, therefore, of the opinion that the point raised
by the learned Advocate General is without merit and must
be overruled, and I must deal with this appeal as one
referred to me under Clause 28 of the Letters Patent. I must,
however, indicate that I ought to deal with only such point or
points in this appeal upon which there has been a difference
of opinion between Sinha and S. N. P. Singh, JJ. This is
clear not only from the terms of Clause 28, but also from the
decision of this Court in Zainuddin Hussain v. Sohan Lal. In
that case, Rai, J. indicated that it is not open to a third
Judge to adjudicate upon a point on which there is no
46Page 47
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 1933 All 861 SB : ILR All 39.”
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
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 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 reference. The Court observed:-
47Page 48
“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 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 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 a joint order specifying the difference as envisaged under
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.
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 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 can be arrived at only if any views
do not agree with the views of the Hon'ble Judge taking the
view that the judgment and decree should be reversed. The
preliminary objection is accordingly disposed of.”
52. In the case of Reliance Industries Ltd. vs. Pravinbhai
Jasbhai Patel, 1997(7) SCC 300, the provision of Section 98
came for consideration before this Court as to the applicability
of the Section in the matter of reference to a third judge, the
Court held:-
48Page 49
“11. As laid down by Section 4 sub-section (1) CPC itself in
the absence of any specific provision to the contrary, nothing
in the Code shall be deemed to limit or otherwise affect any
special or local law now in force or any special jurisdiction or
power conferred, or any special form of procedure
prescribed, by or under any other law for the time being in
force. It cannot be disputed that Letters Patent as applicable
to the High Court of Gujarat is a special law in force which
confers special jurisdiction or power and lays down special
form of procedure prescribed therein for governing the cases
where the two 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 way being
impeded or restricted or being cut across by the procedural
requirements laid down by Order 47 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 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 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 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.
xxxxx
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 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.”
49Page 50
53. In the case of Rulia Devi and others vs. Raghunath
Prasad, AIR 1979 Patna 115, a Bench of the Patna High
Court while considering the provision of Section 98 CPC vis a
vis clause 28 of the Letters Patent held:-
“It will be observed that the Letters Patent does not confine
the point of difference to a question of law and since it is 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 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.
7. Mr. Yogendra Mishra, appearing for the plaintiffrespondent
raised a preliminary objection that since the
points were not stated by the Bench, the reference to the
third Judge was illegal. I do not see any merit in this
argument inasmuch as the points, although not expressly
enumerated by a joint order, are apparent from the
judgments. It is nowhere peremptorily prescribed that the
difference of opinion has to be formulated by a joint order.
Besides, the irregularity in not doing so, if at all, is of formal
nature and does not vitiate the proceeding including the
reference. On examining the observations contained in para
23 of the judgment of the Madras High Court in A. K.
Gopalan v. District Magistrate, Malabar (AIR 1949 Mad 596)
Mr. Mishra stated that he withdrew his objection and the
reference may be treated as good and be decided on merits.”
50Page 51
54. Coming back to the instant case, the two learned Judges
of the Division Bench passed separate judgments. One of the
learned Judges allowed the appeal and set aside the trial court
judgment, whereas another learned Judge 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 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 one of the learned differing
Judges and allowed the appeal. In our considered opinion,
therefore, 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 account.
55. Now, we shall discuss the judgment and the findings
recorded by the two learned differing Judges of the High
51Page 52
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 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 by
the defendants?
d) Whether the relief of declaration of title can be granted
in the absence of truth of flow of title?
e) Whether non filing of ceiling declaration can have the
effect of waiver of title?
f) Whether the entries in the revenue records can be
basis for grant of a decree of declaration of title?
g) Whether the suit is barred by limitation and whether
the plaintiff’s are estopped from filing the suit since they had
earlier claimed for award of computation amount contending
that suit lands are Jagir lands?
h) Whether the judgment of the trial court warrants any
interference as regards the findings recorded there?
56. On consideration of the pleadings of the parties on the
point of change of survey number, the Court observed:-
“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 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 record that the original survey numbers i.e. 1 to
875, have been increased by another set of survey numbers
i.e. the new series survey numbers 1 to 191. Again the
pahanies filed by both parties disclose the existence of Sy.
No.613, they also disclose the existence of survey number
52Page 53
119 as two different extent of land, the original survey
number is admeasuring AC. 1.20 guntas. After the khasra
pahani, the same survey number 119 is shown as having an
extent of Ac.355.12 guntas. The plaintiffs have impleded the
survey department of the state as one of the defendants but
no person from such a department has been examined as
witness. The oral evidence adduced by the Sate consists of a
Mandal Revenue Officer and Legal Officer. None of these
witnesses are competent to give evidence about the survey
numbers in village, the sub division of survey numbers, the
settlement operations where the total survey numbers in the
village can get decreased or increased. On one hand, the
State is contesting the suit on the ground that Nadergul
Village is Jagir and/or Inam and/or confiscated by the State.
In any of these eventualities, there cannot 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 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 Exhibit A-12
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:-
“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
53Page 54
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
Dharmavanth Bahadur lands were to be recorded 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 survey operations were
carried out in Nadergul village. Hence, we have no
hesitation to hold that Raja Shivraj Dharmavanth Bahadur
was the pattadar of the suit land and he was khatadar for
payment of revenue (khata No.3).”
58. 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 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 submitted that in Telangana Area, the
matters of revenue were regulated by the A.P. (T.A.) land
Revenue Act 1317 F and various rules were made under the
said Act and the entries in Sethwar, vasulbaki and khasra
pahani cannot be construed as entries in yearly pahanies
and that the recording of a person as a pattadar under
Section 2(11) of the act, he is entitled to be declared as
owner of the said land, the plaintiffs have not placed by
evidence before us as to how Raja Shivraj Dharmavanth
Bahadur had acquired the suit lands. According to the
learned counsel for the plaintiff, the fundamental mode of
acquisition the most primitive mode of acquisition is
capturement and if the Ruler that Nizam acknowledges the
same, that would be sufficient to construed him as owner of
the land, the learned counsel for the plaintiff has placed
reliance on a Division bench of this Court reported in AIR
1970 AP 19 para 19. In the said judgment it has been held
that the act has defined the expression permanent Alienation
“in section 2 (o) to include any sale exchange or gift and any
54Page 55
transfer of a right of occupancy or of the patta of holding but
excluding any dispossession 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 of Tehsildar in respect of vacant lands under
Section 54 or of a pattadar who is in possession, has a right
of occupancy which is 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 defines a pattadar which 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 . 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 lands, wherever situated, together
with all rights appertaining 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
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 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 Dharmavanth Bahadur as pattadar and
55Page 56
Khatadar up to the year 1954-55. Even if Nadergul village is
assumed as Jagir village or Inam 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 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.
There is no possibility of a single survey number i.e. sy. No.
613 (suit land) getting covered either under the Hyderabad
Abolition of Jagir Regulation or the A.P. (T.A.) Abolition of
Inams Act 1955. At any rate the identity of land in Sy.
No.613 (suit land) as found in Ex. A.10 touch plan and
Exd.A9 village map cannot undergo any change whatsoever.
Ownership may change from one person to the other but the
land cannot change its location and identity when described
with reference a survey number. Hence, we are unable to
agree with the state that Ex. A.5 and A 6 cannot be taken as
title documents. Hence, we hold that Raja Shivraj
Dharmavanth Bahadur was the pattadar, khatadar and
owner of the suit land and since the plaintiffs are the
successors of Raja Shivraj Dharmavanth Bahadur, they are
the successors to claim title of the suit land. We reject the
contention of the state that the lands of Raja Shivraj
Dharmavanth Bahadur are recorded separately in a new
series of survey numbers i.e. 1 to 194 since there is no iota
of evidence about the creation or existence of such survey
numbers. It is now possible to comprehend that survey
numbers would be changed when it relates to the title of the
person. The object of conducting survey of land is to
maintain the identity of the land and hence the endorsement
in the khasra pahani that lands of Raja Shivraj
Dharmavanth Bahadur are shown separately is of no
intelligible meaning. The evidence of DW 1 and DW2 has not
thrown 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 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
56Page 57
Dharmavanth Bahadur’s land in Sy. No.613 of Nadergul
village is shown separately in a fresh series of survey
numbers i.e. 1 to 194.”
60. On the issue whether the Nadergul Village is a Jagir
village, the Court held:-
“From the documentary evidence adduced 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 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 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 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 Atiyat,
which has rejected computation amount for List III 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 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 Nazim Atiyat under Ex.
B1 proceedings.”
57Page 58
62. On these findings, the learned judge allowed the appeal
and set aside the judgment passed by the Trial Court.
63. The second learned Judge, Justice R. Kantha Rao,
delivered a separate judgment, disagreeing with all the
findings recorded by Justice B. Prakash Rao. Learned Judge
firstly held that the suit for declaration of title as owners of the
property, the burden is on the plaintiffs to prove their title of
ownership. The learned Judge referring various judgments
rendered by this Court and the High Court came to the
conclusion that the holder of General Power of Attorney (GPA)
is not competent to give evidence. The holder of GPA cannot
be substituted for the said purpose. Learned Judge further
noticed that the legal heirs of Raja Sivaraj Bahadur
participated in the Inam Enquiry before the Nizam Atiyat to
declare their rights and fix the commutation in respect of Jagir
lands. The Nizam Atiyat by judgment dated 20.07.1958 (Ex.B-
1) passed order for payment of commutation amount in
respect of Jagir villages. Some of the plaintiffs preferred
58Page 59
appeal against the judgment of the 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 the learned Judge, therefore
the order passed by the Appellate Authority dismissing the
appeal for non-prosecution will 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 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
Nadergul village and Exs.A-12 to A-14 – certified copies of
pahanies where name of Raja Sivaraj Bahadur is found, the
59Page 60
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.
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
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
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 Judge
considered in detail the judgment given by Justice B. Prakash
60Page 61
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:
“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 by
the defendants?
d) Whether the relief of declaration of title can be granted
in the absence of truth of flow of title?
e) Whether non filing of ceiling declaration can have the
effect of waiver of title?
f) Whether the entries in the revenue records can be
basis for grant of a decree of declaration of title?
g) Whether the suit is barred by limitation and whether
the plaintiff’s are estopped from filing the suit since they had
earlier claimed for award of computation amount contending
that suit lands are Jagir lands?
h) Whether the judgment of the trial court warrants any
interference as regards the findings recorded there?”
67. At the very outset, the learned Judge noticed the
admission made in the written statement that in Khasra
pahani of 1954-55 late Raja Sivaraj Dharmavanth Bahadur
was recorded as Pattadar and Khatadar of S.No.613
admeasuring AC.373-22. It has further been admitted that in
the said Khasra Pahani survey numbers the name of Raja
61Page 62
Sivaraj Bahadur are recorded separately in a new series of
Survey Numbers from 1 to 194. Further in Ex.12(a), which is
a Khasra Pahani, it is recorded as ‘cultivated self’ and it is
mentioned as Inam Dastagardan (suspense account) and in
which Pattadar’s name is mentioned as “Sivaraju Ilaka” 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 Nadergul Village covered under Ex.12(b),
which is mentioned at serial no.2, Survey No.613 Sivaraju
Ilaka. The learned Judge 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 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), it was shown as
S.No.119 and extent is shown as Ac.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, 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 which is Sirkari but Sivaraj Ilaka. It is admitted by
62Page 63
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 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 written
statement, State has taken several alternative and
inconsistent defences by contending that Nadergul village is
Inam Dastagardan. Even if we accept that is Inam
Dastagardan, it is only a suspense account and rights of the
parties have to be determined under Inams Abolition Act.
There is no proof that the land has been treated as
government land and confiscated to the State. Once it is
recorded that S. No.119 admeasuring Ac.1-20 guntas
belongs to Gaddam Mallaiah, how the same survey Number
i.e. 119 can be recorded as having an extent of Ac.355-12
guntas, shown it as government land. D.Ws.1 and 2 have
not properly explained the same in their evidence.”
68. The learned Judge on the issue with regard to Atiyat
proceedings in respect of Jagir land came to the following
finding:
“It is relevant to note here, Baga Nadergul village has been
mentioned in List-III under the heading Tahrir Pawanni
Jagirs under Serial No.8. Therefore, no commutation
amount has been fixed for list III villages, which is subject to
further enquiry with regard to the claim, if any filed by subgrants
to prove their possession. By any stretch of
imagination, the heirs of Raja Shivaraj Dharmmavanth
Bahadur were awarded commutation amount to foreclose
their rights under the above proceedings. Even if the
appeals were dismissed after remand order passed by the
High Court, the commutation amount, if any awarded under
Ex.B-2 is only for the lands which are not covered by
proceedings under Ex.B-1. Further, as per Khasra Pahani,
the land revenue account of late Raja was Khata No.3. The
63Page 64
said fact has been admitted in the written statement.
Whereas Ex.B-2 and B-27 are in respect of Khata No.6,
which should obviously be different from the revenue
account of late Raja i.e. Khata No.3. Therefore, it can safely
be concluded that Exs.B-2 and B-27 do not pertain to the
lands of which late Raja was Khatadar/pattadar. Further, it
was categorically stated in NB(1) of Ex.B-2 that the award
will be implemented on the payments side after carefully
checking and reconciling the number of jagir villages as
furnished by the estate authorities with the list recently
received from the Atiyat 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 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 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).”
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 fact has
been observed by one of the decision in Syed Ahmad Hasan
case, 2011(4) ALT 262 (DB).
64Page 65
70. Finally, the learned Judge came to the following
conclusion:
“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 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 State under Jagir Abolition
Act on abolition of jagirs or for non filing 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 giving duplication S.No.119, title of the original
owner will not vanish and it continues to be vest with them.
In Khasra Pahani for the year 1954-55 covered under
Ex.12(a), when it is stated that S.No.613 has been recorded
as “Self Cultivation Dastagardan” and numbers of the
Sivaraj Bahadur has been written separately and the same
has also been shown as S.No.119 under Ex.12(b). Therefore,
late Raja or his heirs continue(s) to be pattadar(s) for the
corresponding survey number and on changing also, but the
same cannot become the government property as contended
by the learned Advocate General. Further, the identity of
land in S.No.613, suit land, as found in Ex.A-10-touch plan
and Ex.A-9-village map cannot undergo any change
whatsoever and ownership may change from one person to
the other but the location of land and its identity with
reference to survey number cannot be changed. Therefore,
there is no further necessity for the plaintiffs to seek
declaration of their title except to seek correction of record of
rights recording the names of the heirs of late Raja i.e. the
plaintiffs. Thus, the plaintiffs are entitled for a declaration
for correction of the entries in the 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.”
65Page 66
71. The learned third Judge, therefore, agreed with the
finding recorded by one of the Judge, Justice B. Prakash Rao
and upheld the conclusion arrived at by him and consequently
allowed the appeal.
72. We have meticulously perused the pleadings of the
parties, and the evidence, both oral and documentary adduced
by them. We have also gone through the findings recorded 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 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 plaintiffrespondents.
73. The plaintiff-respondents filed the suit for correction and
rectification of record of right in respect of S.No.613
66Page 67
measuring 373.22 guntas 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 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 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,
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.
67Page 68
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 the
Board of Revenue, Andhra Pradesh for the year 1954-55 the
name of Raja Shiv Raj Bahadur was entered as the absolute
owner and possessor of the suit land. Hence, the title of the
owner supported by various documents including the Khasra
Pahani, which is a document of title has been proved beyond
doubt.
76. Recently, in the case of Collector vs. Narsing Rao,
(2015) 3 SCC 695, this Court (one of us-Hon’ble C. Nagappan,
J. was a party) had considered a similar question where the
challenge to the title of pattadar by the Government was
negatived and this court held :-
“13. Consequent to the merger of Hyderabad State with India
in 1948 the Jagirs were abolished by the Andhra Pradesh
(Telangana Area) (Abolition of Jagirs) Regulation, 1358 Fasli.
“Khasra pahani” is the basic record-of-rights prepared by the
Board of Revenue Andhra Pradesh in the year 1954-1955. It
was gazetted under Regulation 4 of the A.P. (Telangana Area)
Record-of-Rights in Land Regulation, 1358 F. As per
68Page 69
Regulation 13 any entry in the said record-of-rights shall be
presumed to be true until the contrary is proved. The said
regulation of 1358 F was in vogue till it was repealed by the
A.P. Rights in Land and Pattadar Pass Books Act, 1971,
which came into force on15-8-1978. In the 2nd Edn. (1997)
of The Law Lexicon by P. Ramanatha Aiyar (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 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 the oral and
documentary evidence recorded a finding with regard to the
title in respect of S.No.613 in favour of the 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 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 as
69Page 70
“cultivated self’ and in column 7 it is mentioned that Inam
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
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 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
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
70Page 71
the claim for compensation in respect of suit land was
rejected.
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 Inam land. The High Court in the impugned
judgment has rightly observed:-
“It is relevant to note here, Baga Nadergul village has been
mentioned in List-III under the heading Tahrir Pawanni
Jagirs under Serial No.8. Therefore, no commutation
amount has been fixed for list III villages, which is subject to
further enquiry with regard to the claim, if any filed by subgrants
to prove their possession. By any stretch of
imagination, the heirs of Raja Shivaraj Dharmmavanth
Bahadur were awarded commutation amount to foreclose
their rights under the above proceedings. Even if the
appeals were dismissed after remand order passed by the
High Court, the commutation amount, if any awarded under
Ex.B-2 is only for the lands which are not covered by
proceedings under Ex.B-1. Further, as per Khasra Pahani,
the land revenue account of late Raja was Khata No.3. The
said fact has been admitted in the written statement.
Whereas Ex.B-2 and B-27 are in respect of Khata No.6,
which should obviously be different from the revenue
account of late Raja i.e. Khata No.3. Therefore, it can safely
be concluded that Exs.B-2 and B-27 do not pertain to the
lands of which late Raja was Khatadar/pattadar. Further, it
was categorically stated in NB(1) of Ex.B-2 that the award
will be implemented on the payments side after carefully
checking and reconciling the number of jagir villages as
furnished by the estate authorities with the list recently
71Page 72
received from the Atiyat 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 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 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).”
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
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.
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
72Page 73
held that by the said Regulation, all Jagir land became the
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
(seri Khudkasht) of a Jagirdar or Hissedar which, 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 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 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 shall
be such as the Jagir Administrator may by order
determine :
Provided that no forest or waste land shall be included in
any home-farm.
18. Personal property and liabilities not affected.--
Nothing in this Regulation shall affect, -
(a) the personal property of a Jagirdar or
Hissedar or any property other than the
Jagir held by a Jagirdar on behalf of the
Hissedar, or
(b) any liability of a Jagirdar or Hissedar
in respect of any loan taken from
Government.”
73Page 74
83. From bare perusal of the aforesaid provision it is clear
that such land which has been brought under survey
settlement and record of right has been prepared in the name
of the land owner in respect of self cultivated land shall have
no effect on the provisions of Jagir Abolition Regulations.
84. On the finding recorded by the Trial Court on the issue of
possession, the plaintiff produced evidence stating that for
irrigation purpose on the land, 18 bore-wells have been dug,
some bore-wells were dug-up in 1980 and some in 1990s and
5 during the last five years. It has also come in evidence that
the plaintiff obtains three service connections for the borewells
in the name of the deponent. 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 truth of these documents and the correctness of
entries therein are not in dispute. The only contention of the
State was that 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.
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 that the decision of the
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
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
Trial Court further erroneously held that even in the khasrapahani
of the year 1954-55 which is an important Revenue
Record, the name of Raja Shivraj Bahadur was not shown as
khatadar/ patadar.
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
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 that since the name of the State was
recorded to be the owner of the land in the Record of right
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 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 substituted with the
name of the State. Hence, the aforesaid decision of this Court
rather supports the case of the plaintiff.
88. Admittedly, Nadergul Village was brought under Survey
and Settlement in the Revenue record of right including
khasra-pahani land which were in original possession of Raja
Shivraj Bahadur was given corresponding Survey No. 613 and
in the remark column recorded as “Self Cultivation
Dastagardan” and the successor of Raja, namely, the plaintiff
continued possession of the suit land. Similarly, one Gaddam

Mallaiya was allotted Survey No. 119 in respect of his land
which is undisputedly come in his possession.
89. Considering all the documentary evidences together viz.,
Exh.P-2 Firman confirming the successor of Late Raja Dhiraj
Karan in favour of Pratap Karan, one of the plaintiffs, Exh.P-5
Sethwar for Survey No.613, Exh. P-8 Vasool Baqui,
substantiate the case of the plaintiff-respondents that the
Revenue Records were not correctly and properly maintained.
Further, the Touch Plan copies of Survey No.613 and 119 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 there is duplication of survey numbers.
Indisputably, 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 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 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 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 No.613 was shown in that
duplicate survey No.119. The learned District Judge while
deciding the injunction application has recorded admission of
the Government that the plaintiffs are 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.
79Page 80
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
made by the appellant State admitting possession of the
plaintiff over the suit land but in the final judgment, no
finding recorded with regard to possession of the suit land
except that these documents do not prove title of the plaintiff
on the suit land.
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 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
finding recorded by the learned Judges of the Division Bench
80Page 81
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.
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 Civil Appeal No.2964 of 2013 filed by the
appellant-Corporation is concerned, admittedly the appellantState,
despite pendency of appeal in the High Court,
transferred the suit land in favour of the Corporation. The
said transfer is not only hit by lis pendens but also appears to
be not bonafide. Be that as it may, consequent upon the
dismissal of the appeal 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.
……………………J.
81Page 82
(M.Y. Eqbal)
……………………J.
(C. Nagappan)
New Delhi
October 09, 2015
82
Print Page

No comments:

Post a Comment