Thursday, 24 April 2014

Whether court can grant declaration of title relying on revenue record?

 In Sajana Granites (12 supra), a Division Bench of this court made an observation that "the entries in revenue records do not confer any title." This court made such an observation having noticed that the document Ex.A11 therein is not the patta, which is the primary evidence, and is only an extract from the revenue register, it is secondary evidence on the issue relating to grant of patta. Since no record from the office of the Settlement Officer was summoned to show that the Settlement Officer examined the history of the suit property, the court refused to grant declaration of title merely basing upon Ex.A11 an extract from the Revenue Register."

Andhra High Court
Union Of India (Uoi) Represented ... vs Vasavi Cooperative Housing ... on 6 September, 2002
Equivalent citations: 2002 (5) ALD 532, 2002 (5) ALT 370

Bench: B S Reddy, G Rohini


1. Defendants 1 to 4 and 7 in O.S.No.794 of 1988 on the file of the III Additional Judge, City Civil Court, Hyderabad at Secunderabad are the appellants in this appeal. The trial court decreed the said suit filed by the respondent-plaintiff society for the relief of declaration of its title in respect of the green marked portion of the suit land comprising of Ac.6-30 guntas covered by Survey Nos.60/1 and 61 of Kakaguda village and also for recovery of vacant possession of the same from defendants 1 to 3 and 7 after removal of the structures made therein by them.The trial court also granted the relief of perpetual injunction in favour of the respondent-plaintiff and as against the appellants-defendants 1 to 3 and 7 restraining them from interfering with the enjoyment of Ac.0-06 guntas of land in the same survey numbers of the same village shown in yellow colour in the suit plan comprising of plot Nos.72 and 52 of the layout plan situated in Survey No.61 and plot Nos.183, 139, 140 and 141 of the layout plan situated in Survey No.60/1. Aggrieved by the same, this appeal has been preferred.
2. For the sake of convenience, the parties herein shall be referred to as the plaintiff and defendants throughout this judgment.
3. Before adverting to the question as to whether the judgment and decree under appeal suffers from any infirmity as such, it is necessary to notice the relevant facts:
The plaintiff is a registered Cooperative Housing Society Limited. It is registered under the Andhra Pradesh Cooperative Societies Act, 1964.The object of the plaintiff society is to purchase the lands and to develop the same so as to allot the plots to its members for house construction. The plaintiff purchased the land in Survey Nos.60, 61 and 62 of Kakaguda village from the pattedars - B.M. Rama Reddy and his sons and other purchasers from him and has been in possession. The suit land is a part of Survey Nos.60 and 61. The plaintiff thus claims to be the owner of the suit schedule land. It is alleged that the defendants forcibly occupied an extent of Ac.6-30 guntas as shown in the suit plan and were about to encroach another Ac.0-06 gutnas in Survey Nos.60/1 and 61 as shown in the suit plan.
4. It is the case of the plaintiff that the land in present Survey Nos.60, 61 and 62 of Kakaguda village was originally bearing Survey No.53 of the previous survey. The lands originally belong to the family of late B.Venkata Narasimha Reddy consisting of himself, his sons Anna Reddy, B.V. Pulla Reddy and B.M. Rama Reddy and Anna Reddy's son Prakash Reddy. In the registered family settlement and partition dated 11-12-1939 which was effected after the death of Anna Reddy, the land in old Survey No.53 was allotted to the share of B.M. Rama Reddy. In the subsequent re-settlement of the village, the land in Survey No.53 was re-numbered as Survey Nos.60, 61 and 62.
5. The said Rama Reddy remained in exclusive possession and enjoyment of all those lands for a very long time and personally cultivated the same.The said Rama Reddy alienated various extents of land in these three survey numbers in favour of the third parties. The Tahsildar validated the said alienation and sale certificates dated 18-4-1972 were issued to the purchasers under Section 50-B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. The remaining land was partitioned between himself and his sons.
6. The first defendant has its A.O.C. Centre building complex in Tirumalgiri village, which adjoins the suit land of Survey No.60 of Kakaguda village. The first defendant requisitioned an extent of Ac.4-28 guntas in Survey No.60 of Kakaguda village for extension of A.O.C. centre.The 6th defendant took possession of the said land in the year 1971 under the provisions of the Requisition and Acquisition of Lands Act and in turn delivered the possession of the same to the other defendants. The third defendant vide his letter dated 18-12-1979 sent a requisition for the acquisition of the said land resulting in a notification proposing to acquire the land. The notification was published in the Gazette dated 18-9-1980 followed by the declaration on 30-6-1981. Compensation was awarded to B.M. Rama Reddy vide Award dated 26-7-1982. The acquired portion of Ac.4-28 guntas of land is referred to as 60/A in the award and as 60/2 in the sub-division plan prepared by the Assistant Director of Land Records. The remaining part of Ac.8-20 guntas was demarcated as Survey No.60/1.
7. The plaintiff society entered into an agreement of sale to purchase and later on purchased an extent of Ac.12-20 gunts out of Survey No.62 from B.M. Rama Reddy and has developed Vasavinagar Colony as their first venture in the locality. The plaintiff entered into an agreement dated 4-12-1974 with B.M. Rama Reddy and other pattedars to purchase the remaining extent of Ac.8-20 guntas of land in Survey No.60 (later sub-divided as 60/1) and the whole extent of Ac.11-04 guntas in Survey No.61 together with an extent of Ac.5-00 in Survey No.62 of Kakaguda village. Since the land is under the Urban Agglomeration of Secunderabad Cantonment the parties have applied for grant of exemption under the provisions of the Urban Land (Ceiling and Regulation) Act (for short 'the ULC Act') and the Government of India granted necessary permission vide letter dated 23-9-1980 to the pattedars for registering the sale deeds in favour of the plaintiff in pursuance of the agreement of sale dated4-12-1974. The necessary sale deeds were executed by the original owners/pattedars in favour of the plaintiff society as early as in the year 1981-82, both in respect of the land situated in Survey No.60/1 and as well as Survey No.62. The plaintiff thus claims to have become the owner of the entire extent of land in Survey No.60/1 and 61 of Kakaguda village. The plaintiff claims to have been put in possession of the same on the dates of the sale.
8. The case of the plaintiff is that some persons claim to be from Military Department, all of a sudden, have started making some markings on a portion of the land purchased by the plaintiff alleging that a substantial portion of the land purchased in Survey Nos.60/1 and 61 belongs to the Defence Department and treated as B-4 land in the records maintained by them.
9. The plaintiff immediately made an application dated 12-9-1983 to the District Collector, Hyderabad under the provisions of the Andhra Pradesh Survey and Boundaries Act for demarcation of the boundaries. Pursuant to the said application, the Surveyor from the office of the Deputy Director of Survey issued a notice dated 21-1-1984 calling upon the plaintiff and as well as the third defendant to be present at the time of demarcation on 25-1-1984. The survey was conducted on 30-1-1984 in the presence of the parties with reference to the survey plans and also the records of the third defendant. The Deputy Director of Survey and Settlement by his letter dated 8-9-1984, after completion of the demarcation work, issued clarification to the effect that the land in Survey Nos.60 and 61 of Kakaguda village inspected by the Inspector of his office are patta lands as per the settlement records and they are vacant abutting to Tirumalgherri village boundary. Thereafter, the plaintiff got prepared a lay out for the whole of the land purchased by them. It is at that stage, the third defendant asserted that an extent of Ac.4-35 guntas out of the total extent of Ac.24-24 guntas purchased by the plaintiff in Survey Nos.60, 61 and 62/1 in respect of which the plaintiff applied for grant of a certificate from the competent authority under Section 19 of the ULC Act is overlapping on government land comprising G.L.R. Survey No.445, classified as B-4 land in their records. The plaintiff was accordingly directed to submit a fresh application deleting the said area. The plaintiff society vide its letter dated 13-2-1985 protested stating that the alleged objection raised by the third defendant was untenable and unsustainable.
10. The plaintiff in order to avoid further delay and complications in the matter addressed a letter dated 25-3-1985 to defendants 3 and 4 enclosing the revised plans agreeing to the deletion of the said extent of the land in respect of which the third defendant asserted its title from the lay out plan as suggested by defendants 3 and 4, however, without prejudice to its right and accordingly prayed for issuing a certificate as per the plan. Thereafter, the 4th defendant issued a certificate dated 23-5-1985 limiting the layout for Ac.12-00, 833 square yards though the plaintiff was in possession of the entire extent of the land purchased by it. The plaintiff on the strength of the said certificate applied for the layout to the Cantonment Board. It was sanctioned on 10-10-1985 and was released on 16-2-1987.
11. It is the further case of the plaintiff that during the pendency of the application of the plaintiff for releasing of the certificate under Section 19 (5) of the ULC Act, the officers of the Garrison Engineer under the directions of the third defendant illegally occupied an extent of Ac.2-29 guntas in Survey No.60 and Ac.4-01 gunta in Survey No.61.Thus, a total extent of Ac.6-30 guntas belonging to the plaintiff was encroached. The defendants having encroached into the land made some constructions on it. It is for that reason; the plaintiff filed a suit for declaration of title and for recovery of possession of the green marked portion of Ac.6-30 guntas in Survey No.60/1 and 61 after removing the structures and for mesne profits.
12. It is also submitted that the members of the plaintiff society started to raise constructions in respect of which the society obtained layout.The men of the first defendant acting under the instructions of the Garrison Engineer started interfering with the construction activity in Plot Nos.72 and 52 situated in Survey No.61 and Plot Nos.138, 139, 140 and 141 situated in Survey No.60/1 and began peg marking and to erect their pillars advancing claims to those plotted areas claiming the same as being a part of G.L.R. No.445. That is how the plaintiff prayed for perpetual injunction in respect of the said land shown in yellow colour in the suit plan.
13. The plaintiff got issued a notice under Section 80 of the Code of Civil Procedure on 16-3-1988 and it was served upon the defendants on 21-3-1988. There is no reply.The defendants have not vacated the encroachment nor did abstain from making threats to further encroach into the suit land. Hence the suit.
14. The third defendant filed a detailed written statement inter alia denying all the allegations and averments made in the plaint. Defendants 1, 2, 4 and 7 adopted the said written statement filed by the third defendant. Defendants 5 and 6 (Government of Andhra Pradesh and the District Collector, Hyderabad) did not file any written statement. The sum and substance of the defence of the third defendant is to the following effect: An area of land admeasuring Ac.7-51 cents out of Survey Nos.1, 60 and 61 of Kakaguda village comprising G.L.R. Survey No.445 of Cantonment belongs to the first defendant which is locally managed and possessed by the third defendant being the local representative of defendants 1 and 2. The defendants are in possession and enjoyment of the said land. As per the G.L.R. of the Cantonment, the said land is classified as B-4 and placed under the management of Defence Estate Officer (defendant No.3). It is specifically admitted that the suit land forms part of Revenue Survey Nos.60 and 61. It is, however, stated that the plaintiff is wrongly claiming the land in possession of the defendants as if the same is part of the land purchased by it. According to the averments made in the written statement, the defendants are the lawful owners of the suit land and are in possession and enjoyment of the same.It is asserted that as per the records, the land measuring Ac.7-51 cents forming G.L.R. Survey No.445 of the Cantonment, which is a part of Survey Nos.1, 60 and 61 of Kakaguda village belongs to the first defendant.
15. It is, however, admitted that an extent of Ac.4-28 gutnas out of Survey No.60 is acquired and compensation was paid to the owner thereof. The defendants have also admitted that the Government of India vide its letter dated 23-9-1980 has granted permission for registration of an extent of Ac.24-24 guntas of land in Revenue Survey Nos.60, 61 and part of Survey No.62/1 in Kakaguda village.
16. It is the case of the defendant that the plaintiff itself deleted the suit land from the layout plan and only after such deletion the layout was sanctioned in the year 1987. An extent of Ac.6-00 of land was allotted for the staff of Defence Accounts Department out of the total land measuring Ac.7-51 cents comprising G.L.R. Survey No.445 forming part of Survey Nos.1, 60 and 61. The possession was handed over to the Defence Accounts Department in August, 1984. The remaining area of Ac.1-51 cents is still lying vacant and is under the management of the third defendant. The Construction of the staff quarters was completed over the suit land much earlier to the issuance of statutory notice under Section 80 of the Code of Civil Procedure. It is submitted that the defendants have started construction of staff quarters in the year 1985 and since then the plaintiff kept quiet and allowed the quarters to be completed without raising any objection whatsoever.
17. The defendants denied that they have tried to encroach into the plaintiff society's land. It is the specific case of the defendants that the land admeasuring Ac.7-51 cents comprising G.L.R.No.445 forming part of Revenue Survey Nos.1, 60 and 61 of Kakaguda village of Secunderabad Cantonment is the property of the Ministry of Defence classified as B-4 vacant land placed under the management of the third defendant. The suit land is not at all a private land and it forms part of the said extent of Ac.7-51 cents.
18. The trial court settled the following issues for its determination:
1) (a) Whether the plaintiff got title to the suit land?
(b) Whether the defendant has got any title or right in respect of the suit property basing on the entries in G.L.R. Register and if so whether the said Register will effect the rights of plaintiff?
2) Whether the plaintiff is entitled to a declaration of title to the suit land as prayed for?
3) Whether the plaintiff is entitled to a decree for recovery of possession as prayed for?
4) Whether the plaintiff is entitled to consequential perpetual injunction as prayed for?
5) Whether the plaintiff is entitled to the future mesne profits from the date of suit till delivery of possession as prayed for?
6) To what relief?
19. The plaintiff society got examined PWs 1 to 4 and got marked Ex.A1 to Ex.A85 through PW1. Ex.X1 to Ex.X10 were also got marked through PWs 2 to 4 besides marking Ex.A86 to Ex.A99 through DW1. On behalf of the defendants, DW1 alone is examined and Ex.B1 to Ex.B7 were marked.
20. The learned trial Judge upon appreciation of both the documentary and oral evidence made available on record and after an elaborate consideration of the matter held that the plaintiff is the true and absolute owner of the suit schedule land and found that the entries in G.L.R. Register maintained by the third defendant in no manner would adversely affect the right, title and interest of the plaintiff over the suit schedule land. The learned trial Judge accordingly decreed the suit of the plaintiff as prayed for, both for declaration of title and recovery of possession and also for perpetual injunction restraining the defendants from interfering with that portion of the suit schedule land, which continued to remain in possession of the plaintiff. Hence this appeal.
21. Sri L.Prabhakar Reddy, learned Additional Central Government Standing Counsel submits that the plaintiff miserably failed to establish its title and possession over the suit schedule property. It is submitted that the plaintiff miserably failed to establish that the suit schedule land forms part of Survey Nos.60/1 and 61 of Kakaguda village. The plaintiff failed to discharge its burden of establishing its title and the suit is liable to be dismissed on that ground alone. It is contended that the trial Court committed an error decreeing the suit of the plaintiff on the strength of the weakness in the case set up by the defendants. Such a course is not permissible in law. Sri Reddy further contends that the entries made in the revenue records do not confer any title as such upon the plaintiff and if the entries so made in the revenue records are to be ignored there is no other acceptable evidence to declare the title of the plaintiff in respect of the suit schedule land. It is also contended that the entries made in G.L.R. maintained under the provisions of the Cantonment Land Administration Rules, 1937, in the regular course of administration of all the cantonment lands, are admissible in evidence and the said entries prevail over the entries made in the revenue records maintained under the various enactments, rules and notifications issued by the State Government.
22. Sri P.M.Gopal Rao, learned counsel appearing on behalf of the respondent-plaintiff submits that the findings of the trial court are based upon the appreciation of the evidence. The trial Court rightly declared the title of the plaintiff with regard to the suit schedule land. It is submitted that the Revision Survey and Settlement Record is the evidence of title under the Hyderabad Land Revenue Regulations of 1317 Fasli. The entries made in the pahanies have the evidentiary weight and the trial court rightly relied upon the same in order to record its finding about the title of the plaintiff in respect of the suit schedule lands. The learned counsel also would contend that the entries in G.L.R. Register maintained under the Cantonment Land Administration Rules, 1937 itself do not create any right nor can such entries be the sole evidence of title without corroboration. The entries made in G.L.R. Register cannot prevail over the entries in the record of rights column shown in the pahanies.
23. In view of the rival submissions, the first and foremost question that falls for consideration is as to whether the evidence let in by the plaintiff at all could be considered as the evidence in proof of title? Whether any acceptable evidence has been let in by the plaintiff-society in order to establish its title in respect of the suit schedule property?
24. There cannot be any doubt whatsoever that in a suit for declaration of title, the burden of proof is always on the plaintiff to make out and establish a clear case for granting such declaration. The burden, undoubtedly, lies upon the plaintiff. The weaknesses, if any, in the case set up by the defendants itself would not be a ground to grant any relief to the plaintiff. The submission in this regard is unexceptional. But, once the evidence is let in by both the parties, the question of burden of proof pales into some insignificance. The evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues settled that may ultimately determine the fate of the suit. Suffice it to observe that the initial burden would always be upon the plaintiff to establish its case. But if the evidence let in by the defendants in support of their case probablises the case set up by the plaintiff, such evidence cannot be ignored and kept out of the consideration. The court is bound to make an assessment and appreciate the cumulative effect of the entire evidence let in by the parties in support of their respective contentions.
25. The learned Standing Counsel appearing on behalf of the defendants places heavy reliance upon the observation made by the Supreme Court in M.M.B. Catholicos V. T. Paulo Avira1 in which it is observed that "in a suit for declaration if the plaintiffs are to succeed, they must to do so on the strength of their own title." Similar is the view expressed by the Supreme Court in Nagar Palika V. Jagat Singh2 that "the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other questions that may arise in a suit."
26. A Division Bench of this Court in C.Audilakshmamma V. A.Ramarao3 observed that "the plaintiff in an ejectment suit must succeed on the strength of his own title and that could be done by adducing sufficient evidence to discharge the onus which is on him, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited."
27. The principle is so well established and it needs no reiteration in our hands that in a suit for declaration of title, the burden is on the plaintiff to lead acceptable evidence in support of the assertion/claim of title. It is not necessary to burden this judgment with various pronouncements touching upon the same subject matter.
28. Therefore, we shall proceed to scrutinise the evidence made available by the plaintiff in support of its case.The question inevitably falls for our consideration is as to whether the said evidence is acceptable to this court and if so whether the same proves and establishes the title of the plaintiff in respect of the suit schedule land?
29. The learned Standing Counsel for the defendants strenuously contends that there is no proof with regard to the title and possession of the plaintiff over the suit schedule property except the entries made in the revenue records, which in no manner, by themselves, confer any title upon the plaintiff.
30. Therefore, it is just and necessary to examine the case set up by the plaintiff in somewhat detail and the evidence available on record in support of the plea of the title in respect of the suit schedule land.
31. On behalf of the plaintiff-society its Secretary is examined as PW1. He narrated the facts in detail leading to filing of the suit. From the evidence of PW1 it is clear that the plaintiff purchased the land covered by Survey Nos.60 and 61 admeasuring an extent of Ac.8-20 guntas and Ac.11-04 guntas respectively. The said lands are admittedly located in Kakaguda village, Secunderabad. The original owner of the said lands, covered by both the survey numbers, is one B.V.Narasimha Reddy. The said lands have fallen to the share of B.M. Rama Reddy in the family partition between B.V.Narasimha Reddy and his sons as early as in the year 1939.Ex.A1 is certified copy of partition deed between B.V. Narasimha Reddy and his sons B.M.Rama Reddy and others, dated 11-12-1939 (which is in Urdu), and the English translation of it is Ex.A2. It is an admitted fact that the defendants themselves have acquired an extent of Ac.4-28 guntas of land in Survey No.60 (acquired portion is shown as Survey No.60/A), out of the total extent of Ac.13-08 guntas from B.M. Rama Reddy and accordingly an award was passed by the Special Collector, Land Acquisition (Defence) dated 16-7-1982 vide Ex.A11.
32. There is also not much dispute that Survey Nos.60, 61 and 62 are the corresponding survey numbers to old Survey No.53 of Kakaguda village. Ex.X3 - Tippons of 1340 Fasli disclose the land in question to be a private land. The entries in Ex.A3 - Sethwar of 1353 Fasli of Kakaguda village also disclose the entire land in Survey Nos.60, 61 and 62, admeasuring Ac.13-08 guntas, Ac.11-04 guntas and Ac.17-20 guntas respectively to be a private land owned by the pattedars, viz., Prakash Reddy, Pulla Reddy and Rama Reddy.Ex.A4 is translation of Ex.A3.It is the case of PW1 that after the acquisition of Ac.4-28 guntas by the defendants themselves on 29-11-1971, the petitioner-Society has purchased the remaining extent of Ac.8-20 guntas from the owners of the land. It is also the case of the plaintiff society that it has purchased the total extent of Ac.11-04 guntas covered by Survey No.61 from its vendors Rama Reddy and others. It is in the evidence of PW1 that the defendants have encroached into an extent of Ac.4-01 gunta in Survey No.61 and also an extent of Ac.2-20 guntas in Survey No.60.
33. Ex.A6 is the certified copy of sesala pahani for 1955-58 of Kakaguda village. The said document reveals that the lands in Survey Nos.60 and 61 are registered in the name of Metturama Reddy, the predecessor in title of the plaintiff. The extents shown are Ac.13-08 guntas and Ac.11-04 guntas respectively. Ex.A7 is certified copy of pahani patrika for the year 1971-72. This document also reveals the patta in respect of Survey Nos.60 and 61 standing in the name of Metturama Reddy. Ex.A8 certified copy of pahani for the year 1972-73 is also to the same extent. These entries, undoubtedly, disclose that Metturama Reddy was the pattedar of Survey Nos.60 and 61 of Kakaguda village.
34. The said B.M. Rama Reddy sold an extent of 2420 square yards i.e. Ac.0-20 guntas covered by Survey No.60, (old Survey No.53) under Ex.A13 sale deed dated 10-11-1981 to the plaintiff society.The said Rama Reddy also sold Ac.0-20 guntas each to number of individuals in the same survey number and those individual purchasers in turn sold the respective extents purchased by them to the plaintiff society under the registered sale deeds Ex.A21, Ex.A23, Ex.A25 to Ex.A35, Ex.A44 and Ex.A45. The sale deeds are executed on various dates in the months of January and February, 1982. In all those sale deeds, the original owner - B.Rama Reddy's name is mentioned as the owner of land. Likewise, under Ex.A12 dated 10-11-1981 one B.V. Ramesh Reddy, son of B.M. Rama Reddy sold an extent of Ac.4-35 guntas 89 square yards in Survey No.61, old Survey No.53, with the specific boundaries to the plaintiff society. Another extent of 1000 square yards in Survey No.61 with specific boundaries is sold under the registered sale deed dated 5-12-1987 vide Ex.A46. The other sale deeds under which the plaintiff society purchased the lands are marked as Ex.A14, Ex.A18, Ex.A22, Ex.A24 and Ex.A36 to Ex.A43, each one of them conveying Ac.0-20 guntas of land in Survey No.61 to the plaintiff society. Those individuals in turn earlier purchased those lands from Rama Reddy.
35. That is how; PW1 in his evidence claims the right of the plaintiff society in respect of the suit schedule land. The land originally belongs to one B.Venkata Narasimha Reddy, consisting of himself and his four sons. The land in old Survey No.53 corresponding to new Survey Nos.60 and 61 has fallen to the share of B.M. Rama Reddy under the registered family settlement and partition deed dated 11-12-1939 (Ex.A1). The said Rama Reddy sold some extents of land in Survey Nos.60 and 61 to the plaintiff society directly under the registered sale deeds referred to hereinabove and also sold various extents of land to other individuals, who in turn sold the lands purchased by them under various registered sale deeds in favour of the plaintiff society. We have already noticed the details of those registered sale deeds.Those individuals purchased the lands under the private sale deeds/agreements of sale from the original owner B.M. Rama Reddy.The Tahsildar being the competent authority granted certificates of validation of sale of Ac.8-00 of land in Survey No.60 out of Ac.13-08 guntas in favour of those eight individuals under Section 50-B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Tenancy Act') vide Exhibits A-49, A-52, A-56, A-60, A-61, A-62, A-64 and A-65 dated 18-4-1972. Likewise, the validation certificates were issued in favour of six individuals to an extent of Ac.6-00 in Survey No.61 vide Exhibits A-50, A-51, A-53, A-56, A-57 and A-58 dated 18-4-1972.Ex.A8 pahani patrika of the year 1972-73 discloses the names of those individual purchasers as pattedars. The entries in Ex.A81 pahani for the year 1980-81 would also reveal the same. These validation certificates issued by the competent authority under Section 50-B of the Tenancy Act would also establish that B.M. Rama Reddy was the original owner of the schedule property and he sold various extents of land in Survey Nos.60 and 61 to different individuals, from whom the plaintiff society in turn purchased the same under various registered sale deeds referred to hereinabove.
36. Ex.A9 is a copy of the proceedings dated 23rd September, 1980 addressed to B.M. Rama Reddy and various agreement holders who have purchased the land in Survey Nos.60 and 61 from B.M. Rama Reddy granting permission for alienation of Ac.8-20 guntas in Survey No.60 and Ac.11-04 guntas in Survey No.61 and part of Survey No.62/1 total admeasuring Ac.24-24 guntas in favour of the plaintiff society.
37. The plaintiff society under Ex.A47 dated 12-9-1983 addressed a letter to the District Collector, Hyderabad (defendant No.6) requesting him to order a survey and demarcation of Survey Nos.60, 61 and 62/1 and 2 of Kakaguda village in order to avoid unnecessary confusion. In the said letter itself, it is stated that the defendants have been claiming a substantial portion of the land in Survey No.60 and 61 as B-4 lands. Similar is the letter dated 21-10-1983 under Ex.A68 addressed to the Deputy Director, Survey and Land Records, Hyderabad. Accordingly necessary demarcation work has been undertaken by one Mohd. Khaja, surveyor from the office of the Deputy Director, Survey and Land Records, Hyderabad. Ex.A70 is the panchanama dated 30-1-1984 prepared by the Surveyor after the demarcation work is completed. Ex.A71 is a copy of the proceedings on the file of the Deputy Director dated 8-9-1984 certifying that Survey Nos.60 and 61 of Kakaguda village were inspected by the Inspector and found that the lands in the said survey numbers are vacant lands abutting to Tirumalgherry village boundary, "but Military pillars are partly covered in Survey No.60." It is certified that as per the settlement records, Survey Nos.60 and 61 are the patta lands.
38. PW2 is the Deputy Inspector of Survey.He produced classer register and according to the same, Survey Nos.60, 61 and 62 correspond to the old Survey No.53. Ex.X1 is Classer Register. He also produced the sethwar disclosing Survey Nos.60, 61 and 62 being the patta lands in the name of Prakash Reddy and others. Ex.X2 is the sethwar. He states in his evidence that according to the tippans, the old Survey No.53 correspondents to new Survey Nos.60, 61 and 62. Ex.X3 is Tippan. A suggestion was made to him in the cross-examination that there is an extent of Ac.7-51 cents of land in Survey Nos.60 and 61 belonging to the defendants.He categorically denied the said suggestion and stated that there is no defence land at all in Survey Nos.60 and 61 according to the Sethwar of 1353 Fasli.
39. PW3 is the Surveyor working in the office of the Deputy Director, Survey and Land Records, Hyderabad. It is stated by him in his evidence that while he was working in the office of the Deputy Director, he received a letter dated 21-10-1983 from the plaintiff society to demarcate Survey Nos.60, 61 and 62/1 and 2. He accordingly got issued a notice to the Defence Estate Officer, Secunderabad dated 21-1-1984 requiring his presence at the time of demarcation of the lands on 25-1-1984 at 11-00 A.M. Ex.X5 is the said notice. It is stated that he conducted survey and at the time of survey S.D.O. from the office of the Defence Estate Officer was also present. Ex.X6 is the report of the Survey. He states in categorical terms that according to the survey report there is no government land involved in Survey Nos.60, 61 and 62/1 and 2 of Kakaguda village. Practically, there is no cross-examination of this witness whatsoever by the defendants.
40. An overall assessment of both the oral and documentary evidence of the plaintiff clinchingly establishes that the land in the present survey Nos.60, 61 and 62 of Kakaguda village originally was bearing Survey No.53 of the previous survey.It is only during the re-settlement of the village as is evident from the Sethwar of 1353 Fasli (1944 A.D.) Ex.A3 the land in Survey No.53 was re-numbered as Survey Nos.60, 61 and 62 with the following extents:
1. Survey No.60, extent Ac.13-08 guntas;
2. Survey No.61, extent Ac.11-04 guntas; and
3. Survey No.62, extent Ac.17-20 guntas.
41. The land originally belongs to the family of late B.Venkata Narasimha Reddy, consisting of himself and his sons. The said lands have fallen to the share of B.M. Rama Reddy, Son of Venkata Narasimha Reddy in the registered settlement and partition deed dated 11-12-1939 (Ex.A1).The entries in Ex.A6 sesala pahani for the years 1955-58 reveal the entire extent of the land in Survey Nos.60 and 61 as patta land and is in possession of B.M. Rama Reddy. Ex.A7 pahani for the year 1971-72 also shows the said B.M. Rama Reddy as the pattedar. The entries in Ex.A8 pahani for the year 1972-73 reveal the names of purchasers from B.M. Rama Reddy as pattedars. The entries in Ex.A81 pahani for the year 1980-81 show the possession of the plaintiff's vendors and patta in their name. Another important piece of evidence is Ex.A11 award passed by the competent authority after acquisition of an extent of Ac.4-28 guntas of land out of Ac.13-08 guntas in Survey No.60 for the benefit of the first defendant. The said land is styled as Survey No.60/A.Under the said Award, compensation has been paid to B.M. Rama Reddy, the predecessor in title of the plaintiff. The said award has become final.
42. Exhibits A-49, A-52, A-56, A-60, A-61, A-62, A-64 and A-65 are the certificates of validation dated 18-4-1972 validating the various sales under the private sale deeds/agreements of sale by said B.M. Rama Reddy in favour of the purchasers thereto for an extent of Ac.8-00 of land out of Ac.13-08 guntas in Survey No.60. Likewise, Exhibits A50, A51, A53, A56, A57 and A58 dated 18-4-1972 are the sale certificates for an extent of Ac.6-00. Ex.A12 to Ex.A47 are the sale deeds in favour of the plaintiff society executed between 10-11-1981 and 12-9-1983.
43. The genuineness and validity of the documents referred to hereinabove is not put in issue.
44. The question that falls for consideration is as to whether the Revision Survey and Settlement Record (Sethwar) Ex.A3 of 1353 Fasli is evidence of title? Any importance at all could be attached to the entries made therein? Likewise, another question that arises is as to whether the entries made in pahanies have any evidentiary value? Whether the pahanies are to be considered as mere revenue records?
45. We shall advert to these questions a little later. Before we advert to the said questions, the submission made by Sri L.Prabhakar Reddy, learned Standing Counsel with regard to the identity of the suit land is required to be gone into.
46. It is contended that the plaintiff failed to furnish the boundaries of the schedule land in the plaint. The plaint does not contain a map or even the boundaries. The submission is totally misconceived. The plaintiff not only traced the history of the title of the land in question, but also filed a detailed sketch/map giving the required particulars of Survey Nos.60 and 61 of Kakaguda village.
47. It is further contended that the total extent of the land in old Survey No.53, according to Ex.A1 partition deed. is only Ac.33-12 guntas. The said survey number was trifurcated into Survey Nos.60, 61 and 62 as per the entries made in Ex.A3 Sethwar of 1353 Fasli. The learned Standing Counsel points out that in paragraph 4 of the plaint, the total extent of the trifurcated survey numbers is given as Ac.41-32 guntas. When compared to the extents of the land of old Survey No.53, there is an excess of Ac.8-20 guntas and that is almost equivalent to the land that is being claimed by the plaintiff. The learned Standing Counsel submits that one has to go by the entries made in Ex.A3. The plaintiff's vendor had only Ac.33-12 guntas and not Ac.41-32 guntas. A perusal of entries in Ex.A3 would reveal that the details of the potkarab land are not given since the said extents were not assessed for the purpose of imposition and collection of land revenue. It is explained in para 4 of the plaint that this Ac.41-32 guntas of land includes an extent of Ac.5-18 guntas of potkarab land and if the said extent is deleted, the total extent of the land in the trifurcated survey numbers would be Ac.35-14 guntas. The slight variation, if any, is always attributable to the errors in survey.
48. But the question that falls for consideration is as to whether the defendants have raised any dispute with regard to the identity of the suit schedule land at all in their written statement?On the other hand, the defendants in their written statement in categorical terms admitted that "the suit land being part of Revenue Survey Nos.60, 61 the plaintiff is wrongly claiming that this is also the part of the land purchased by them and making false allegations that the defendants have encroached 6 acres 30 guntas of this land." It is the specific case of the defendants that the suit schedule land forms part of Ac.7-51 cents located in G.L.R. Survey No.445 of the Cantonment, which is part of Survey Nos.1, 60 and 61 of Kakaguda village. Therefore, no dispute whatsoever about the identity of the land as such is raised by the defendants in their written statement. No evidence is let in by the parties on this aspect of the matter. There is no issue settled by the trial court. The submission made by the learned Standing Counsel is a some sort of technical objection raised during the course of hearing of this appeal without there being any proper pleading and evidence. The submission is accordingly rejected.
49. In such view of the matter, the inevitable question that falls for consideration is, is there any extent of land belonging to the defendants in Survey Nos.60 and 61 of Kakaguda village? Whether the whole of the land, whatever may be its extent, is a private land?
50. In this regard, it is relevant to notice the evidence of PWs 2 and 3. PW2, the Deputy Inspector of Survey stated in his evidence that according to the Sethwar, the land in survey Nos.60, 61 and 62 is patta land of Prakash Reddy and others. The said survey numbers correspond to old Survey No.53. He in categorically terms states that there is no defence land of Ac.7-51 cents in Survey Nos.60 and 61. To the same effect is the evidence of PW3 who at the relevant time was working as Surveyor. In his evidence, it is stated that according to the survey report, there is no government land involved in Survey Nos.60, 61 and 62/1 and 2 of Kakaguda village. There is no cross-examination on this aspect of the matter by the defendants. We are also required to bear in mind that an extent of Ac.4-28 guntas of land out of the land in Survey No.60 has been acquired for the benefit of the defendants after its acquisition and compensation has been awarded to the predecessor in title of the plaintiff i.e. the owner of the land at the relevant time - B.M. Rama Reddy.PW4, the Special Deputy Collector, Industries in categorical terms stated in his evidence that the land acquired belongs to the private individuals. The award passed under the Land Acquisition Act under Ex.A11 dated 16-7-1982 has become final. The compensation amount has been deposited by the Military Estate Officer with the Special Deputy Collector under Ex.X10. There is no other evidence made available on record by the defendants in order to satisfy this court that some portion of the land in Survey No.60 belongs to that of the Cantonment.The very plea set up by the defendants that a portion of the land in Survey No.60 of Kakaguda village belongs to them is improbable in view of categorical admission that a portion of the land of the very same survey number has been acquired and compensation has been paid to owner of the said land. It is not as if the said survey number has been divided before the acquisition of an extent of Ac.4-28 guntas in recognition of extents of any land owned by the defendants.
51. Be that as it may, this court, having regard to the controversy as to whether the suit land, on which about 300 quarters have been constructed by the Defence Accounts Department, forms part of the land covered under G.L.R. No.445 over which the defendants claim absolute ownership or Survey Nos.60/1 and 61 of Kakaguda village purchased by the plaintiff and with a view to resolve the dispute thought it fit to appoint a Senior Officer in the Department of Survey and Settlement as Commissioner to survey the suit land in the presence of the parties or their representatives and accordingly appointed one P.V.S. Madhusudhan Rao, Deputy Director, Central Survey Training Academy, Hyderabad as the Commissioner to survey the suit land. The said Commissioner submitted a very detailed report dated 11-5-1998.The Commissioner found that G.L.R. No.445 as localised by him on ground, overlaps completely onto Survey Nos.60, 61, 1 and 2 of Kakaguda village and also protrudes into Tirumalagiri village limits. The acquired portion of the land admeasuring Ac.4-28 guntas is also found occupied by G.L.R. No.445. The Commissioner found number of technical defects in the G.L.R. measurement record about which we do not propose to express any opinion.The report completely supports the case set up by the plaintiff. It in no manner runs counter to the evidence and earlier panchanama prepared by PW3.
52. The Nature and importance of entries made in Settlement Record:
Now the point that arises for consideration is as to whether the patta as recorded in Sethwar (Settlement Record) is evidence of title and whether the entries in Sethwar and Tippans prepared after the enquiry under Sections 77, 78, 86 and 88 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli (for short 'the Land Revenue Act') have any bearing on the questions of title or, are mere revenue entries meant for revenue purpose? Whether the entries made in the pahani patrikas are of no consequence at all as contended by the learned Standing Counsel for the defendants?
53. We have already noticed that in Ex.A3 Sethwar of 1353 Fasli, the names of Prakash Reddy, Pulla Reddy and Rama Reddy are recorded as pattedars for the whole extents of the land in Survey No.53 corresponding to new Survey Nos.60, 61 and 62.
54. But what is the meaning of expression 'pattadar'? According to Section 2 (11) of the Land Revenue Act, 'Pattadar' means the person who is directly responsible to the Government for payment of land revenue and whose name has been entered as such in Government records, whether he be personally in possession of the holding or through his Shikmidar.
55. According to Section 2 (12) of the Land Revenue Act, 'Shikmidar' means the person who like a 'Pattadar' possess a title to the land or who from the beginning has been jointly in possession of the land with the Pattadar or who, before the commencement of this Act, has acquired by virtue of any regulation in force, or may acquire by virtue of that law the right of a Shikmidar.
56. It is thus clear that the pattadar means a person, who possess a title to the land. Whether he is in possession of the land or not is responsible for the Government for payment of land revenue. Pattadar is one whose title to the land has been recognised. The statute recognises the pattadar as a person possessing a title to the land.
57. In Anthya V. Gattadu4 a Division Bench of Hyderabad High Court made an analysis of the ingredients of the patta right and held to comprise four rights and one liability. "The first is the reversionary right to the estate of the shikmidar on his dying without any heir, the second is pre-emption, the third is to have the monetary payments by the shikmidar increased, and the fourth is to recover from the shikmidar the amount of the revenue in case he pays less, and these rights relate to immovable property and arise because the pattadar is responsible to pay its revenue to the State. Every one of them intangible, for they are incapable of delivery of possession from one person to another. On principle, therefore, it is correct to hold that patta right is intangible and its sale can be effected only by a registered deed.......".
58. Another Division Bench of the Hyderabad High Court in Phoola Bhanna V. Rekha Deva5 observed that "patta and possession are two different rights and exist independent of each other. Possession however long and continuous, based though it may even be on the title to the land itself, does not confer a right on a person to get the patta of the land, already in the name of some other, transferred in his own name. Of course, right of patta like any other right is alienable; but there should be a valid contract with the pattedar for the same. Being an intangible right in the immovable property, it can be alienated only under a registered sale deed in accordance with the provisions of Section 54, of the Registration Act (Transfer of Property Act?)."
59. In Syed Jalal V. Targopal6, Jaganmohan Reddy, C.J. (as His Lordship then was) speaking for the Division Bench observed that "transfer of a right of occupancy or a patta of a holding in so far as the Land Revenue Act (Hyderabad Act 8 of 1317 F) is concerned, would equally be a transfer of all that is necessary to effectually transfer agricultural land and vest a title in the person to whom it is transferred. It may be noted that a mere sale or conveyance effected in accordance with the general law, viz., by a written instrument duly stamped and registered if it is immoveable property of more than Rs.100/- value by itself, in so far as agricultural land is concerned is not completely efficacious until the patta is mutated in the name of the vendee. While a sale, exchange or gift vests legal title in the vendee on execution of the conveyance, in so far as payment of revenue to the Government is concerned, it can only be recognised on the vendee's name being mutated in the registers of pattas which could be effected on the presentation of a deed of sale, exchange or gift duly executed in accordance with law."
60. It is thus recognised that transfer of a patta of a holding would amount to transferring of all that is necessary to effectually transfer agricultural land and vest a title in the person to whom it is transferred. Transfer of patta is thus nothing but a transfer of title itself. It is thus clear that patta is nothing but a title itself so far as the agricultural land is concerned in Telangana area of State of Andhra Pradesh.The Division Bench in Syed Jalal (6 supra) while construing various provisions of the Land Revenue Act and the scheme of the Act observed that "indubitably, the patta of agricultural land itself is a evidence of right of the holder, a transfer of which is also deemed to be a permanent alienation."
61. It is thus clear that so far as the agricultural lands are concerned, the pattedar is the one in whom the title vests and the patta of agricultural land itself is a evidence of title.
62. Chapter VII of the Land Revenue Act deals with settlement and partition of areas. Section 77 provides that the Government may whenever they deem it expedient, issue order to make survey of any land in any part of the area to which this Act extends, for the purpose of settlement and assessment of land revenue and record and preservation of the rights relating thereto, or for any other similar purpose. Section 78 authorises the Survey Officer to require the attendance of all landholders and all persons interested in such land, to answer material questions. A general notice or summons may be issued to all the concerned in this regard. Section 81 provides for making assessment by the Settlement Officer. Section 86 provides for preparation of register. The Survey Officer, under Section 86 of the Land Revenue Act, at each settlement, is bound to prepare a separate register for each village showing the area and assessment of each number together with the name of the pattadar. Such registers are required to be prepared in accordance with the rules made by the Government by notification.
63. Ex.A3 - Sethwar is the settlement register prepared by the Survey Officer at the time of revised survey and settlement in the year 1358 Fasli, in which the names of the predecessors in title of the plaintiff are shown as pattadars. The title of the predecessors in title of the plaintiff has been recognised as early as in the year 1358 Fasli. Ex.A3 is the evidence of right and title of the plaintiff's predecessor in title.
64. Ex.X3 - Tippan of 1340 Fasli also contains the names of B.M. Rama Reddy and two others and the land itself is shown as patta land. The Tippans were obviously prepared as per the notification issued under Section 77 of the Land Revenue Act.
65. It is thus clear that the plaintiff's vendor had title to the entire extent covered by Survey Nos.60 and 61 of Kakaguda village. There is no evidence whatsoever on record that the said extent of land covered by the said Survey Numbers or any part thereof was assigned to or acquired, except an extent of Ac.4-28 guntas in Survey No.60 for which compensation has been paid to the plaintiff's predecessor in title. These documents, undoubtedly, establish the title of the plaintiff's vendor and consequently of the plaintiff itself.
66. Evidentiary value of the entries made in Pahanies:
The next point that arises for consideration is as to what is the evidentiary value of the entries made in Ex.A6 sesala pahani of 1955-58 and so also Ex.A8 pahani for the year 1972-73 and Ex.A81 pahani for the year 1980-81?
67. The learned Standing Counsel for the defendants contends that the entries made in the revenue records do not confer any title upon the persons whose names are entered in various columns of such revenue records. He placed reliance upon the decisions of the Supreme Court in Corporation of Bangalore City V. M.Papaiah7Guru Amarjit Singh V. Rattan Chand8; Jagat Singh (2 supra) andState of Himachal Pradesh V. Keshav Ram9. The learned Standing Counsel also placed reliance upon the decisions of this court in Ramanna V. Sambamoorthy10; Ch.S. Hanumantha Rao V. R.Sainath11 and Sajana Granites, Madras V. Manduva Srinivasa Rao12.
68. Guru Amarjit Singh (8 supra) is a case, which deals with the entries in Jamabandi. Such entries were held to be the statements for revenue purposes. The Supreme Court observed that "the entries in Jamabandi are not proof of title." It is further observed that "the maintenance and custody of revenue records is the exclusive domain of the patwari and it is not uncommon that the revenue records are often tinkered by him to suit the exigencies."
69. In Ramana (10 supra), a Division Bench of this court held that"though the entries in the Diglot Register may be evidence, they are by themselves not conclusive evidence of the facts which they purport to record."It is observed that "the entries in the revenue records, though they may be relevant evidence under Section 35 of the Evidence Act, are not evidence of title.
70. In Ch. S.Hanumantha Rao (11 supra), a learned single Judge of this court took the view that "either the entries in the revenue records or the entries in the records of local bodies like Municipalities do not create nor extinguish any title over the properties in question."
71. In Jagat Singh (2 supra), the Supreme Court having noticed that the title and possession of the respondent therein had always been disputed by the appellant from the stage of written statement, found fault with the judgments of the courts below in decreeing the suit and accordingly observed that "suit of the respondent could not have been decreed merely on the basis of entries in the revenue records during the pendency of the earlier suit filed in the year 1971."
72. In M.Papaiah (7 supra), the Supreme Court observed that "so far the revenue records are concerned, the appellate court considered the same and held that they did not support the plaint. The High Court has reversed the finding saying that the interpretation of the first appellate court was erroneous. It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law......." .
73. In Keshav Ram (9 supra), the Supreme Court noticed that the courts below decreed the plaintiff's suit for declaration of title relying upon the only piece of evidence being an order of Assistant Settlement Officer directing the correction of the record of the right. The Supreme Court posed the question "as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned?" and held: "It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the Courts below committed serious error of law in declaring plaintiffs' title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers."
74. In Sajana Granites (12 supra), a Division Bench of this court made an observation that "the entries in revenue records do not confer any title." This court made such an observation having noticed that the document Ex.A11 therein is not the patta, which is the primary evidence, and is only an extract from the revenue register, it is secondary evidence on the issue relating to grant of patta. Since no record from the office of the Settlement Officer was summoned to show that the Settlement Officer examined the history of the suit property, the court refused to grant declaration of title merely basing upon Ex.A11 an extract from the Revenue Register."
75. We are required to notice that in none of the judgments referred to hereinabove, there is any reference to any of the statutory provisions under which the revenue records referred to therein, viz., Revenue Registers/Settlement Registers/Jamabandi Registers, are maintained. There is no indication as to whether those registers or records were maintained under any statute. It is not even clear as to whether those documents were maintained by any statutory authority in discharge of its normal official duties. The nature of the documents and the entries made therein are not dealt with in any one of those judgments.
76. In the case on hand, we are concerned with the evidentiary value of the entries made in pahani patriks.
77. Sri P.M.Gopal Rao, learned counsel for the plaintiff contends that the entries made in the pahanies have the statutory effect.It is submitted that the entries in the settlement register prepared under the statutes and the pahanies maintained under the Hyderabad Record of Rights and Regulations of 1358 Fasli have great evidentiary value. Those entries are incomparable with the entries made in the registers of Jamabandi and other revenue records, which may not have any statutory basis. The learned counsel submitted that one cannot loose sight of the distinction between the entries made in such of the records which have the statutory basis and the entries made in other revenue records which may not have any such basis.
78. The Hyderabad Record of Rights in Land Regulation, 1358 Fasli (for short 'the 1358 Fasli Regulation') is the law relating to the preparation and maintenance of record of rights in land in Hyderabad State. It is applicable to the Hyderabad area (Telangana Area) of State of Andhra Pradesh until its repeal by the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971.
79. Section 3 (c) defines 'Land records' thereby meaning records maintained under the provisions of, or for the purposes of, this Regulation and the Hyderabad Land Revenue Act.
80. Section 3 (f) of 1358 Fasli Regulation provides that "the words and expressions used in this Regulation but not defined therein shall have the meaning assigned to them in the Hyderabad Land Revenue Act. The regulations and the Hyderabad Land Revenue Act are inter-related. They are complimentary to each other. They deal with system of land administration applicable to Telangana Area of the State of Andhra Pradesh. They are comprehensive pieces of legislation dealing with the rights and obligations of the pattadars/ owners of the land and the duties of the revenue officers appointed by the Government. The Hyderabad Land Revenue Act deals with the occupation of khalsa land and rights of the occupant, settlement and partition of areas, realisation of land revenue and other government demands etc.
81. Section 24 of the Land Revenue Act makes an interesting declaration 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 those belonging to persons or class legally capable of holding property and to the extent so far as their such rights are established; and those in respect of which any other order under any law may have been given. The title and possession of the pattadars and sikhmidars has been recognised and they fall under the class of those belonging to and legally capable of holding property and their rights are already established.
82. Section 4 of the 1358 Fasli Regulation mandates preparation and thereafter maintenance of a record of rights in all lands and the said record of rights shall include the names of all persons who are holders, occupants, owners or mortgagees of land or assignees of the rent or revenue thereof; the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching; the rent or revenue (if any) payable by or to any of such persons; and such other particulars as may be prescribed. Such record is required to be prepared after due enquiry.
83. Section 6 of the 1358 Fasli Regulation deals with mutation and enquiries thereof and publication of records. Village Patwari is required to make an entry in a register of mutations, but they shall be tested by a Revenue Officer of a rank not lower than that of a Tahsildar who after making such corrections, if any, as he finds to be required shall certify the entries.
84. Section 13 of the 1358 Fasli Regulation declares that "any entry in the record of rights and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor."
85. The Rajpramukh, in exercise of the powers conferred under Section 18 of the 1358 Fasli Regulation, and all the powers vested in him under the Hyderabad Land Revenue Act, 1317 Fasli made the rules called "the Hyderabad Record of Rights Rules, 1956" (for short '1956 Rules').
86. Rule 3 of the 1956 Rules provides that "the Record of Rights shall be maintained in Form I for each village". The note to Rule 3, which has an important bearing on the question, with which we are concerned in this appeal reads as follows: "The Pahani Patrika now in use, contains besides columns 1 to 19 of Form No.1 several other columns pertaining to agricultural statistics. Columns 1 to 19 of the Pahani Patrika which correspondents to Form I shall, be deemed to be the Record of Rights."
87. It is thus clear that columns 1 to 19 of the Pahani Patrika correspond to Form I, which is nothing but a Record of Rights. The entries made in Columns 1 to 19 in Pahani Patrika shall be deemed to be the entries relating to the record of rights prepared and maintained under the regulations.
88. In Rajeswararao V. Narsingarao13, the Hyderabad High Court observed that "Panipathrak entries have always been looked upon with considerable reliance in view of the fact that these entries are made in discharge of official duties to keep up the Revenue record of the cultivators."
89. In Mylaram Lachaiah V. Nafeezunnisa Begum14, a Division Bench of this Court while holding that khasra pahani is the Record of Rights notified under Section 4 (2) of the Regulation held that the Record of Rights do not in any manner alter the pre-existing rights of the parties. Only a presumption is raised under Section 13 of the Regulation until the contrary is provided or a new entry is lawfully substituted therefor.
90. In Md. Ibrahim V. Secretary to Govt. of India15, a Division Bench of this Court observed that "the pahanies are prepared in the usual course of official business of preparation of Records of Rights and hence there is a due presumption that the entries made therein have been made in due performance of official duties.They are hence to receive weightage in evidence particularly when there is no other rebutting evidence to the contrary."
91. In Commissioner of Survey V. G.Padmavathi16, a Division Bench of this Court after surveying the decisions on the subject including the judgment in Rajeswara Rao (13 supra) held that "a person whose name finds a place in the revenue records will have a right to assert that he is entitled to make a claim as owner unless the same is negatived by rebuttal evidence ........" The said observations were made while construing the entries in the Record of Rights and the khasra pahani prepared and maintained under the provisions of the Regulations.
92. The Supreme Court in Choote Khan V. Mal Khan17 while considering the nature of the entries in Jamabandi and as to whether such entries fall within the purview of Record of Rights maintained under Section 31 of the Punjab Land Revenue Act, 1887 observed that "by section 44 of the Punjab Land Revenue Act an entry made in the record of rights or in an annual record shall be presumed to be true until the contrary is proved. That entries in the Jamabandies fall within the purview of the record of rights under section 31 of the Act admits of no doubt. Section 16 of the old Act (XXIII of 1871) laid down that entries in the record of rights made or authenticated at a regular Settlement shall be presumed to be true."
93. In B.S.V. Temple V. P.Krishna Murthi18, the Supreme Court while referring to the extracts from the re-settlement register and the entries in a document which is called a "Keroyati Patta" and the rough patta and the fair patta in which the name of the Archaka has been entered observed that "the long course of entries which were consistently in favour of the Archakas cannot be ignored..........."
94. In Avadh Kishore V. Ram Gopal19, the Supreme Court while considering the evidentiary value of the entries made in what is called "Wajibularz" observed that "it is a village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of correctness attaches to it."
95. In Kasturchand V. Harbilash20, the Supreme Court found fault with the courts below as well as the High Court for their not having placed any reliance on the entries in the khasra prepared and maintained under the provisions of the Madhya Bharat Land Revenue and Tenancy Act of 1950 and held: "The entries in the annual village papers create a presumption albeit rebuttable in favour of a person whose name is recorded.We find that a procedure is prescribed to challenge the entries made in the annual village papers. The procedure is contained in the Madhya Bharat Land Revenue and Tenancy Act of 1950 (for short "the Land Revenue Act"). Section 45 of that Land Revenue Act specifies that khasra, jamabandi or khatauni and such other village papers as the Government may from time to time prescribe shall be annual village papers.Section 46 enjoins preparation of annual village papers each year for each village of a district in accordance with rules made under the Act. Section 52 embodies the presumption that all entries made under that chapter in the annual village papers shall be presumed to be correct until the contrary is proved and Section 50 prescribes the method or procedure for correction of wrong entries in the annual village papers by superior officers. Thus it is clear that in the event of wrong entries in the annual village papers the same is liable to be corrected under Section 50 and unless they are so corrected the presumption under Section 52 will govern the position."
96. A careful analysis of the decisions referred to hereinabove of this Court as well as of the Apex Court would make it clear that the entries made in the Record of Rights carry with them a very great evidentiary value, provided the Record of Rights is prepared and maintained under the provisions of the relevant statutes or the Regulations, as the case may be, and further provided that the entries therein are made after holding public enquiries. Sometimes, they constitute the only evidence available in order to establish one's title to the lands. The entries made in Columns 1 to 19 of the pahani patrikas shall be deemed to be the record of Rights prepared and maintained by a public servant in discharge of his official duties.
97. However, the Andhra Pradesh (Telangana Area) Record of Rights in Land Regulation, 1358 Fasli and all standing orders made there under relating to the record of rights of land as in force in the State have been repealed under Section 13 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (for short 'the 1971 Act').In the instant case, we are not concerned with the pahanies, if any, prepared and the nature of the entries made in such pahanies after the repealing of 1358 Fasli Regulations. The entries in Ex.A6 sesala pahani of 1955-58, Ex.A8 pahani for the year 1972-73 and Ex.A81 pahani for the year 1980-81 were made, prepared and maintained under the regulations since the 1971 Act has not been implemented in Secunderabad Taluq of Hyderabad District in which the lands in question are situated.
98. It is also required to notice that in paragraph 5 of the plaint it is stated in categorical terms that ever since the allotment in the family partition of 1939, Sri B.M. Rama Reddy had been in exclusive possession and enjoyment. He paid the land revenue. PW1 in his examination in chief stated that the plaintiff's vendor is in possession after the death of his father by paying the land revenue.There is no cross-examination on this point. Sethwar Ex.A3 shows that Pulla Reddy and others are the pattedars of Survey No.60 and the land is assessed to Rs.12.88 paise. Likewise, the land in Survey No.61 is assessed at Rs.9.76 paise. These entries would show that the State has been collecting the land revenue in respect of those lands.
99. Can it be said that with the evidence made available on record the plaintiff society failed to prove and establish its title? What is the meaning of the expression 'Title'?
100. The word 'Title' includes a right, but is the more general word. Every right is a title though every title is not such a right for which an action lies. Blackstone defines it to be "The means whereby the owner of lands has the just possession of his property.""TITLE" is the means whereby a person's right to property is established. (See: P.Ramanatha Aiyar's the Law Lexicon - 1997 Edition).
101. Section 13 of the Indian Evidence Act, 1872 provides the mode and proof of title. It states that where the question is as to the existence of any right or custom, following facts are relevant:
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
102.
A Division Bench of the Madras High Court in Rama Iyengar V. Kasinivenda Iyengar21 observed that "transactions by a party dealing with the property to which he lays a claim, are important evidence of his title and sometimes they constitute the only evidence available."
103. The trial Court found the title of the plaintiff upon consideration of various aspects; viz., family partition deed dated 11-12-1939 vide Ex.A1 whereby the suit land which formerly had the old Survey No.53 was allotted to the plaintiff's predecessor in title. Ex.X1 is Classer Register of 1347 Fasli, which again speaks of the ownership of the plaintiff's vendor's family. PW2 the Deputy Inspector of Survey produced the said document and gave evidence to the effect that the present Survey Nos.60, 61 and 62 were carved out of the old Survey No.53. Ex.A11 is the award dated 16-7-1982, which has become final where under compensation has been awarded to the plaintiff's vendor towards acquisition of Ac.4-28 guntas of land out of the very same Survey No.60. Ex.A47 to Ex.A66 are the validation certificates issued by the Tahsildar under Section 50-B of the Tenancy Act validating the private sale deeds/agreements of sale, where under several alienations of portions of land in Survey Nos.60 and 61 were made in favour of third party purchasers by the plaintiff's vendor. Ex.B1 is the proceeding dated 23-9-1980 where under permission has been granted by the Government of India for sale of the lands in question to the plaintiff under several sale deeds - Ex.A12 to Ex.A47. This is the evidence taken into consideration by the trial Court in order to reach the conclusion for declaring the title of the plaintiff society with regard to the suit schedule land.
104. The question that falls for consideration is as to whether the said evidence is not sufficient in order to establish the plaintiff's title to the schedule land? Whether there is any other evidence available on record to reject the evidence of the plaintiff?
105. Nature of entries in General Land Register:
The defendants rely upon the entry in G.L.R. Register maintained under the Cantonment Land Administration Rules, 1937.We have to necessarily go into the question as to whether the said entry creates any right or can be treated as the evidence of title without there being further corroboration? Whether the entries in G.L.R. Register prevail over the entries in the Record of Rights column shown in the pahani?
106. The contention raised in the written statement filed by the defendants is to the following effect:
"In fact as per the records of the defendant No.3 land measuring 7.51 acres forming G.L.R. Survey No.445 of the Cantonment which is part of Sy.Nos.1, 60 and 61 of Kakaguda village as shown in detail below belongs to the first defendant.
Sy.No.605 acres 00 guntas (Approx.)
Sy.No.610 acre15 guntas (Approx.)
Sy.No.10 acre15 guntas (Approx.)
Sy.No.60/A1 acre30 guntas (Approx.)
These lands owned, possessed and enjoyed by the defendant Nos.1 to 4 and 7."
107. It is further pleaded that "as per the General Land Register of Secunderabad Cantonment maintained by the Defence Estate Officer (D3) land measuring 7.51 acres comprising GLR Sy.No.445 forming part of Revenue Survey Nos.1, 60 and 61 of Kakaguda village of Secunderabad Cantonment is the property of Ministry of Defence classified as B-4 vacant land placed under the management of Defence Estate Officer." It is further contended that "the suit land is not at all a private land, it is land belonging to Defence Department hence no levy or revenue paid over the land. As far as the cantonment is concerned the General Land Record prepared under the Cantonment Land Administrative Rules 1937 is a valid record and establishes the title of the defendants. Hence the documents/records produced by the plaintiff have no consequence and cannot be considered as to the question of title of the suit land."
108. The learned Standing Counsel contends that the land registers are maintained in the regular course of administration of all the Cantonment lands and the entries made therein have the great evidentiary value. It is also contended that the validity of the entries made in the General Land Register are not questioned and there is no declaration sought nor any specific prayer is made by the plaintiff in this regard and, in the circumstances, the entries made therein cannot be doubted. There is a statutory presumption in favour of the entries made in General Land Register prepared in day-to-day administration of the Cantonment.
109. Sri P.M.Gopal Rao, learned counsel for the plaintiff society contends that the entries made in General Land Register are only mere piece of evidence to be taken along with other evidence and such entries do not constitute title by themselves. The entries so made in the General Land Register cannot override the survey and settlement record of rights maintained by the State government.
110. The Sub-Divisional Officer, Grade-I in the office of the Defence Estate Officer, A.P. Circle, Secunderabad alone is examined as DW1 on behalf of the defendants. In his examination in chief, it is stated that the survey number of suit is G.L.R. Survey No.445 corresponding with the Civil Survey Nos.1, 60, 61 (all parts) of Kakaguda village. The suit land is under the management of D.E.O. office being classified as D-4.Out of the total extent of Ac.7-51 cents of land, Ac.6-00 has been handed over to the Defence Accounts Department for construction of staff quarters and the quarters were accordingly constructed during the years 1985 to 1987. The remaining land of Ac.1-80 cents is lying vacant. It is further stated by him that the General Land Register is prepared under Rule 3 of the Cantonment Administrative Rules, 1937.
111. We are required to appreciate and note that Kakaguda village where the suit schedule lands are situated was in Hyderabad State ruled by the Nizam till 25-1-1950. There is no dispute whatsoever that the said village was not in British India. Ex.A82 is a copy of the notification dated 28th August, 1906 issued by the Government of Nizamul Kul Asifjar and as per the said notification 13 Mughlai villages including Kakaguda village where the suit lands are located were handed over to the British Government by the Nizam of Hyderabad to administer as a part of Cantonment for civic purposes without conferring any right in the land. It is specifically stated in the said notification that "the Government of Hyderabad shall utilise all their powers of Judiciary, Civil as usual in these areas, and that there will not be any change in their nature due to the amalgamation of these villages in the Cantonment, and the Royal Rights as prevalent in other parts of the Cantonment, shall continue as usual." It is further made clear in the said notification that those villages shall be considered "within the boundaries of the Cantonment, Secunderabad; subject to the condition always that the powers of Civil (Judicial), Ecclesiastical and Revenue, with all those matters concerned thereto, and all rights and easements, which were vested on the Government of Hyderabad, Jagirdars, or owners, possessors of the land, of the above said villages, or in such persons, who are not mentioned in detail, using and enjoying such powers, shall not be affected, due to amalgamation of these villages.On the other hand, which were preserved for the Government of Hyderabad, Jagirdars, owners or possessors of the lands, shall be continued to be used, on their behalf.Those acts as prevalent per Government of Hyderabad, or shall be enjoyed by them."
112. It is thus clear that the said 13 villages including the village of Kakaguda were handed over to the British Government by the Nizam to administer them as a part of the Cantonment only for civic purposes without conferring any right in the land. Such transfer, in no manner, whatsoever had resulted in adversely affecting the right, title and interest of the owners and pattedars in the lands held/possessed by them.
113. Ex.A84 is a report dated 10-10-1926 of the Resident Sir William Barton to the Government of India reporting that in the 13 Mughlai villages there is no ownership of the lands whatsoever held by the British Government. In the said report, it is averred that no land has been assigned to the Government of India by Nizam Government for Military purposes. It is further observed that a very important distinction must be drawn between the status of Government as regards land within the Cantonment of Secunderabad and the land in Cantonments in British India or in Indian States, where land has been definitely assigned for purposes of Cantonment.In the latter case, most of the land was the property of Government at the outset, having been specially acquired for the Cantonments.In the case of Secunderabad, there has been no definite assignment; land has been handed over from time to time free of charge by the Nizam's Government for occupation by the Military authorities. This report also makes it abundantly clear that in the Civil area outside the Military areas, and excluding the 13 Mogalai villages, the control of building rests with the Cantonment authority. They can give permission to build, but this amounts merely to a license and does not convey a title to the land. The land may be owned by private individuals or by the Nizam's Government, it may be Revenue paying land or waste land used for grazing or otherwise. If it is owned by the Nizam's Government, an application for permission to buy or lease should be addressed to that Government through the Residency: if the applicant owns the land either by purchase or by hereditary rights there is no difficulty unless the land pays revenue to the Nizam's Government. In this case the sanction of the Nizam's Government would be necessary.
114. The contents of Ex.A82 - Notification dated 28-8-1906 and the report dated 10-10-1926 (Ex.A84) referred to hereinabove would make it abundantly clear that there was no ownership of land in 13 Moghlai villages to the British Government and the land is mostly owned by the Pattedars, Inamdars, Jagirdars and Nizam and Army barracks existed in portions of the areas with permission of Nizam.
115. In Ameer-un-nissa Begum V. Mahboob Begum22, the Supreme Court while referring to the nature of sovereign function exercised by the Nizam of Hyderabad observed that "prior to integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers.He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; nay, they would override all other laws which were in conflict with them. So long as a particular firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed."
116. Similar is the view taken by a Constitution Bench of the Supreme Court in Director of Endowments, Government of Hyderabad V. Akram Ali23.
117. In Union of India V. Muffakam Jah24 the Supreme Court while referring to the position of the late Nizam observed that "if the Ruler had exercised sovereign power in his State and has set apart any property as private property no dispute can arise concerning the same."
118. The correctness and evidentiary value of the G.L.R. entries may have to be appreciated in the context of the history of the Secunderabad Cantonment. The Cantonments Act, 1924 applied only to British India.Hyderabad was a princely State and the provisions of the Cantonments Act do not ipso facto are applicable to the Hyderabad State. However, in view of the notification (Ex.A82) referred to hereinabove issued by the Nizam of Hyderabad some of the provisions relating to constitution of the Cantonment Board etc., were made applicable for limited civic purposes. The civil, ecclesiastical and revenue administration remained with the Nizam. This aspect of the matter has been dealt with by a Division Bench of this Court in Jaya Rao V. Cantonment Board, Secunderabad25. The Court after scrutiny of various notifications including the notification referred to hereinabove (Ex.A82) came to the conclusion that "the powers relating to the construction and remodelling of constructions within the Cantonment area were delegated by the Nizam under an agreement of 1893. These powers were recognised by the Nizam's Government as exercisable by the Cantonment authorities all these years without any curtailment by reason of the notification dated 28-8-1906........It transpires that the notification conferring only Criminal and Police jurisdiction was superseded in 1956 and consequently full control passed to the Cantonment Board" (Emphasis is of ours).
119. It is further observed that "the Nizam continued to exercise all the powers except the Criminal and Police jurisdiction in terms of the said notifications until it was superseded in the year 1956."
120. The Cantonment Land Administration Rules, 1925 were made in exercise of the powers conferred under Section 280 of the Cantonments Act, 1924. Evidently, they were applicable to British India and not to Nizam State.For the said reason, the then Resident issued the Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930. There is no dispute before us that the said rules alone were applicable to the Cantonments of Secunderabad and Aurangabad.
121. Rule 3 of the said Rules, deals with the preparation and maintenance of General Land Register in the form prescribed in Schedule-A. Rule 5 deals with the maintenance of registers including mutations. Rule 6 provides for the classification of land as; (a) land used for Government purposes, military or civil; (b) land occupied or available for occupation by the public leases or otherwise for purposes subsidiary to Cantonment Administration; and (c) land belonging to the Cantonment Authority, or transferred them under Section 108 of the Act.
122. However, note appended to Rule 6 states that "nothing in these rules shall apply to State, Sarf-i-Khas, Paiga or privately owned land or to land in the thirteen villages referred to the Residency Orders Notification No.41, dated the 28th August, 1906 and the villages of Kowkur and Mahadeopur."
123. It is thus clear that even the Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930 do not apply to Kakaguda village. No register as such could have been prepared in 1933 under those Rules. During the course of hearing of the appeal, the defendants produced additional evidence - Ex.B10 General Land Register of 1933 stating that it is a register prepared under Land Administration Rules during 1933. The relevant entry therein is marked as Ex.B11 wherein G.L.R.No.581 is shown, and the column relating to extent shows as Ac.7-51 cents and the nature of the land as Morram pits. On the strength of the said entry, it is sought to be contended that the said land at all points of time remained with the Defence Estate Officer. There is no indication in the register as to in which village the land is situated. We have already noticed that in Ex.B3 (original is Ex.B8) General Land Register of 1956 the land in question is shown as G.L.R.No.445. In fact, that is the specific plea in the written statement. But in Ex.B10 General Land Register of 1933 there is nothing to show that the present G.L.R.No.445 is correlated to G.L.R.No.581 marked as Ex.B11 in Ex.B10 General Land Register. So far as the 1933 land register is concerned, there is no statutory base for the same since the whole of the Cantonments Act, 1924 and the rules framed in 1925 are not applicable to the Secunderabad Cantonment and they were applicable only to the Cantonments located in British India. It is thus clear that Ex.B10 General Land Register has no statutory basis.
124. The learned Standing Counsel for the defendants, however, would place reliance upon the judgment in Chief Executive Officer V. Surendra Kumar Vakil26 in support of the submission that there is a statutory presumption in favour of the entries in General Land Register which are prepared by the authority in day-to-day administration. The Supreme Court in the said decision noticed that the respondents who were asserting their title have not produced any document of title pertaining to the said land or showing the nature of the rights over the said land except the sale deeds. The stand of the respondents relating to the rights over the said land has changed from time to time. The Court observed that "the bare assertions do not carry any conviction." The Court noticed that the respondents having failed to show any document which would show that they were the absolute owners of the said land relied upon the entries in the General Land Register which are old documents maintained in the regular course and coming from proper custody.
125. It is pertinent to notice that 1836 Regulations expressly provide that the title to the land in Cantonment areas cannot be transferred. But only occupancy rights can be given in respect of the land, which is capable of being resumed by the Government in the manner set out therein. That apart, there is a presumption under Rule 6 of the Governor General Order No.179 of Government's ownership over the lands in the Cantonment. There is no such presumption of Government's ownership over the lands in 13 Moghlai villages in Secunderabad Cantonment of which Kakaguda is one such village. Therefore, the ratio laid down in the said Judgment is not applicable to the entries made in the General Land Register maintained by the Defence Estate Officer of the Secunderabad Cantonment. In the absence of such presumption, the defendants have to make out a clear case and establish its own title without any presumption as held in Union of India V. Purushotam Dass Tandon27.
126. In more than one decision, the higher Courts in India have taken the view that the entries made in the General Land Register are only mere piece of evidence to be taken along with other evidence and such entries by themselves do not constitute any title.
127. In Maman Singh V. Emperor28 it is observed that "it is not possible to place implicit reliance upon the General Lands Register of Cantonment without corroborative evidence from other records of the Cantonment Board or other testimony of an unimpeachable character."
128. In P.T.Anklesaria V. H.C. Vashistha29 a Division Bench of Bombay High Court observed that "there is no presumption in law that the entries made in such register are true until the contrary is proved - the type of presumption which will be found in respect of the entries in the Record of Rights under the Land Revenue Code."
129. Alike under the provisions of the Land Revenue Act and the Record of Rights in Land Regulations, the General Land Register is not prepared after issuing any notification calling for the objections from the interested persons. There is no wide publicity given. None were heard before making such entries in the land register.It is well settled that where a record is prepared by a public servant and such record affects the persons who have no opportunity to object, such record does not carry any probative value. Principles of natural justice are required to be complied with by the public servants in the matter of preparation of any documents, which may have a tendency of adversely affecting the rights of the private citizens. Only such documents prepared after due notice and hearing of all the concerned shall be deemed to be made by a public servant in the discharge of his official duty within the meaning of Section 35 of the Indian Evidence Act.
130. In Dunne V. Dharani Kanta Lahiri30 a Division Bench of Calcutta High Court while considering the evidentiary value of a survey map of 1855-56 of the District produced by the defendant which contained his estate and the thakbust map and the survey map produced on behalf of the plaintiff held that "the evidentiary value of the thakbust map and the survey map produced by the plaintiff was greater than that of the survey map produced on behalf of the defendant."It is observed: "....one of the matters, which may, and generally ought to be, taken into consideration, especially whenever there is, as in this case, a conflict between survey maps, is the amount of publicity with which the survey in each case was made and the entries were recorded, and the opportunity which the party denying its evidentiary value had in pointing out the correct boundaries of any particular village or estate......The weight to be attached to these documents must, therefore, be in direct ratio to the opportunities, which existed, of objecting to the demarcations made by the survey officers. If objections were made and disallowed, the maps would be the best evidence in cases of boundary disputes."
131. In Ioannou V. Demetriou31 the Privy Council while considering the admissibility of a document as a 'public document' observed that "public documents may be classified under different heads."The Privy Council approvingly referred to the dicta of Lord Blackburn in Irish Society V. Derry32 that "a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it.It is meant to be where there is a judicial, or quasi-judicial, duty to inquire..............The very object of it must be that it should be made for the purpose of being kept public, so that the persons concerned in it may have access to it afterwards."The Privy Council observed that "dual requirements that the document should not only in fact be available for public inspection, but that it shall also have been brought into existence for this very purpose...... A document to which the public can have no access and which the Crown can refuse to produce under a subpoena could by any possibility be described as a public document."
132. DW1 in his evidence admitted that there is no publicity in the preparation of General Land Register. No notification has been issued inviting objections, if any, from the interested persons. None were heard before the preparation of the General Land Register. Nor the same was notified after its preparation. The defendants under Ex.A87 proceedings dated 25-8-1994 rejected the request of the plaintiff society to furnish certified copies of G.L.R. plan with necessary measurements and extracts of General Land Register of Kakaguda village, Secunderabad on the ground that the same cannot be supplied. In the circumstances, the General Land Register can at best be considered as a piece of relevant evidence along with other evidence. The defendants have not produced any other evidence in support of their title and ownership of the suit schedule land. It is not possible to reject the case of the plaintiff only on the strength of the entries made in G.L.R. register.The entries in General Land Register by themselves do not constitute the title. The entries may be pressed into the service as a piece of evidence in support of the claim of ownership or title by the Defence Estate Officer.
133. In comparison, the documents - Ex.A3 Sethwar of 1353 Fasli; Ex.A6 sesala pahani for 1955-58, Ex.A8 pahani for the year 1972-73 and Ex.A81 pahani for the year 1980-81 were prepared after making necessary public enquiries as is required under the provisions of the Land Revenue Act and the Record of Rights in Land Regulations respectively. The Act as well as the Regulations provides for a detailed enquiry preceding preparation of the settlement record and Record of Rights. Final entries are preceded by the draft entries. The public in general and the interested persons in particular are required to be heard. The objections, if any, preferred are required to be considered and disposed of. Internal remedies are provided to correct the errors, if any. Remedy of appeal and revision is provided for. Those records are prepared by a public servant in discharge of his official duty and in performance of duties specially enjoined under the said provisions of law. They have their origin traceable to the relevant statutes. Undoubtedly, the evidentiary value of those documents is much greater than that of the entries made in the General Land Register.
134. The subject of delimitation of Cantonment areas, local self-government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas is in Entry 3 of List I of the Seventh Schedule of the Constitution. The Parliament has the exclusive power to make laws with respect to the said matter. The subject of the land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization is in Entry 18 of List II of the Seventh Schedule. It is pertinent to notice that land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues is in Entry 45 of List II of the Seventh Schedule.The legislature of a State has the exclusive power to make laws in respect to any of the matters enumerated in List II of the Seventh Schedule. The Land Revenue Act, 1357 Fasli and the Record of Rights in Land Regulations are the legislations traceable to Entries 18 and 45 of List II of the Seventh Schedule.The records prepared and maintained under those laws relate to the land, that is to say, right in or over land. The said records relate to survey for revenue purposes and record of rights.
135. In Indu Bhusan V. Rama Sundari33, the Supreme Court considered the ambit and scope of Entry 3 of List I. The contention of the appellant therein that Entry 3 should not be read as giving Parliament the power to legislate on the relationship of landlord and tenant in respect of houses situated in cantonment areas if such houses are let out privately by a private owner to his tenant and have nothing at all to do with the requirements of the military was rejected. The Supreme Court held that "there is no reason to narrow down the scope of legislation on regulation of house accommodation and confine it to houses which are required or are actually in possession of military authorities or military officers. The power to regulate house accommodation by law must extend to all house accommodation in the cantonment area irrespective of being owned by, or in the possession of civilians." The Supreme Court also considered as to whether the power of legislating on relationship between landlord and tenant in respect of house accommodation or buildings would appropriately fall in Entry 18 of List II of the Seventh Schedule to the Constitution.The Court observed that "these Entries permit legislation in respect of land and explain the scope by equating it with rights in or over land, and tenures, including the relation of landlord and tenant, and the collection of rents. It is to be noted that the relation of landlord and tenant is mentioned as being included in land tenures and the expression "land tenures" would not, in our opinion, appropriately cover tenancy of buildings or of house accommodation. That expression is only used with reference to relationship between landlord and tenant in respect of vacant lands." It is explained that "the general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List II or Entries 6 and 7 of List III is subject to the overriding power of Parliament in respect of matters in List, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas, Parliament alone can legislate and not the State Legislatures." .
136. It is thus clear that the power conferred on Parliament to make law in respect of relationship between landlord and tenant is in respect of house accommodation situated in Cantonment areas. The power of legislating on relationship between landlord and tenant and the delimitation of the cantonment areas, regulation of house accommodation etc., do not include the power to legislate in respect of rights in or over the land. This judgment, in no manner, supports the extreme contention urged that the State Legislature cannot make any law applicable to cantonment areas even in respect of the land, land tenures, land records etc. The submission is misconceived.
137. The General Land Register prepared, so far as this case is concerned, under the Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930 cannot be said to be prepared and maintained in respect of the rights in or over land. The same cannot be equated to that of land record relating to survey for revenue purposes and record of rights.The entries made therein cannot have any effect of superseding the entries in the Survey and Settlement Register and the Record of Rights prepared and maintained under the provisions of the Land Revenue Act and the regulations referred to hereinabove. The General Land Register and the entries made therein are at the most can be construed as a record maintained by the Defence Estate Officer for its own purposes.
138. For the aforesaid reasons, we are of the opinion that the plaintiff society clearly established its title to the suit schedule land. The possession of the defendants is without any authority of law. The plaintiff society had lost the possession sometime during the year 1984-85. The plaintiff society is accordingly entitled for declaration of its title.
139. It is, however, urged by the learned Standing Counsel that the plaintiff society is estopped for recovery of possession, since it did not raise any objection whatsoever when the defendants have started construction work in the year 1985. The plaintiff society had allowed the construction of quarters to be completed without raising any objection. In our considered opinion, the submission has no merit. It is not the case of the defendants that the suit is barred by limitation. The case of the plaintiff society is that the defendants have encroached into the suit schedule land and made constructions. DW1 in his evidence admitted that the plaintiff society raised objection and protested when the defendants have directed the plaintiff to delete the suit land from the layout plan Ex.B7. The plaintiff society in categorical terms declared that it had agreed to delete without prejudice to its rights. In the circumstances, it cannot be said that the plaintiff society is estopped from claiming the relief against the defendants.
140. In the result, we hold that the plaintiff society is entitled for the decree as against defendants 1 to 3 and 7 as prayed for except the mesne profits. No relief as such could be granted as against defendants 4 to 6 and the suit is liable to be dismissed against them. The plaintiff society is entitled for recovery of vacant possession of the suit schedule land from defendants 1 to 3 and 7 after removal of the structures made therein.
141. There shall also be a decree for perpetual injunction in favour of the plaintiff society and against defendants 1 to 3 and 7 as prayed for.
142. The trial Court did not commit any error whatsoever in granting such relief to the plaintiff. The trial court rightly decreed the suit.
143. However, it is admitted by the plaintiff society that the defendants have started construction of quarters in the suit land in 1988. It is an admitted fact that the defendants have already completed the construction. It is stated that after construction of quarters they are allotted to the staff working in the Defence Accounts Department.
144. During the course of hearing of this appeal, the learned counsel for the plaintiff, Sri P.M. Gopal Rao, submitted that the plaintiff society is willing to accept an alternative suitable equivalent extent of land from the defendants in lieu of the suit schedule land. It is brought to the notice of the court that the vast extent of lands belonging to the defendants adjoining the lands of the plaintiff society are still lying vacant and the same could be made available to the plaintiff society and the plaintiff society has no objection to accept the same. The learned counsel has gone to the extent of submitting that the plaintiff society has no objection whatsoever even if the suit schedule land is acquired by the defendants since they have already made constructions in the suit schedule land at their own costs.These proposals are worth consideration by the first defendant. Public interest requires an appropriate decision in the matter as expeditiously as possible.
145. Having regard to the facts and circumstances of the case, there shall be no eviction and recovery of possession of the suit schedule land for a period of eight months from today, in order to enable the first defendant to take an appropriate decision in the matter.
146. The appeal fails and shall accordingly stand dismissed. Each party to bear their own costs.
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