THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.14 of 2005 January 21, 2014 Between:
Yeddula Subbamma, W/o.Maddulety AND Vaduru Thirupathamma, W/o.Somanna And others … Appellant/ Plaintiff … Respondents/ Defendants THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.14 of 2005 JUDGMENT:
This second appeal is preferred by the unsuccessful plaintiff challenging the decree and judgment dated 29.12.2003 in A.S.No.30 of 2003 (old A.S.No.3 of 2000 on the file of Senior Civil Judge, Bodhan) on the file of VII Additional District Judge (Fast Track Court), Nizamabad at Bodhan, confirming in appeal the decree and judgment dated 21.12.1999 in O.S.No.77 of 1997 on the file of Junior Civil Judge Court, Bichkunda. For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the suit.
2. The case of the plaintiff is that he has been in possession and enjoyment of an extent of Ac.0.25 guntas in survey No.214 situated at Hangarga Village of Jukkal Mandal in Nizamabad District (hereafter, suit land). The suit land is the self-acquired property of plaintiff and the same is being supported by the certified copies of pahanis for the years from 1993-94, 1994-95 and 1995-96, and R.O.R. order dated 18.10.1980 issued by the Mandal Revenue Officer, Bichkunda. The first defendant is father of defendant Nos.2 and 3, who are members of Hindu joint family, are residing at Hangarga Village. The defendants, without having any right over the suit land, obstructed the agricultural operations of plaintiff on 21.12.1997. Hence, the plaintiff filed the suit for perpetual injunction.
3. The defendants filed written statement inter alia contending that plaintiff filed the suit with false and frivolous allegations, with imaginary cause of action, and in fact there is no cause of action. First defendant filed O.S.No.54 of 1996 on the file of trial court showing plaintiff herein as first defendant in respect of an extent of Ac.7.00 out of total extent of Ac.8.14 guntas in survey No.214 of Hangarga Village. The suit filed by first defendant herein was decreed in his favour. The defendants contend that out of remaining land of Ac.1.14 guntas in survey No.214, road was formed in extent of Ac.1.10 guntas. The plaintiff is in possession of Ac.0.25 guntas in survey No.214 is not correct. The plaintiff has not explained how he got suit land except stating that he is in possession of the same. Hence the suit is liable to be dismissed.
4. The trial court has framed necessary issues for trial and both the parties have adduced oral and documentary evidence. By judgment dated 21.12.1999, the trial court dismissed the suit. Feeling aggrieved, the plaintiff filed appeal and the first appellate court confirmed the decree and judgment of trial court, except the finding on res judicata. Hence, the plaintiff preferred this second appeal.
5. The substantial questions of law urged before this court are as follows.
1. Whether the courts below failed to exercise its powers in not appointing the commissioner to locate the land of Ac.7.00 of respondent herein, Ac.0.14 guntas undisputed land of plaintiff and leaving of Ac.1.00 for road and it is very necessary for proper adjudication of the matter in the interest of all?
2. Whether the courts below committed error of jurisdiction and law by dismissing the suit which amounts to legalizing illegal acts of defendant?
6. Heard Sri K.M.Mahender Reddy, learned counsel for appellant and Sri K.Durga Prasad, learned counsel for respondents.
Point Nos.1 and 2:
7. In order to avoid recapitulation of facts and evidence, I am inclined to address both the points simultaneously. To substantiate the case, the plaintiff examined himself as P.W.1 and got marked Exs.A1 to A6. P.W.2 was examined to prove that plaintiff has been in possession and enjoyment of suit land. To dislodge the case of plaintiff, first defendant examined himself as D.W.1 and got marked Exs.B1 to B9. D.W.2 was examined to prove that plaintiff was not in possession of suit land.
8. The oral testimony of P.W.1 and D.W.1 coupled with Exs.A1 to A6 clearly manifests that total extent of survey No.214 of Hangarga Village is Ac.8.14 guntas, which originally belonged to Yashwanth Rao Deshmukh. Even as per the version of plaintiff and defendants, first defendant has purchased an extent of Ac.7.00 from Chandrasekhar Deshmukh, S/o.Yashwanth Rao Deshmukh under registered sale deed. The testimony of P.W.1 and D.W.1 coupled with Exs.B1, B2 and B5, certified copies of judgment, decree and written statement respectively in O.S.No.54 of 1996, clearly manifests first defendant herein filed O.S.No.54 of 1996 against plaintiff herein for perpetual injunction in respect of Ac.7.00 of land in survey No.214 and the said suit was decreed. In Ex.B5 written statement, plaintiff herein claimed that he was in possession and enjoyment of Ac.0.25 guntas in survey No.214, but the said claim was rejected by the trial court. Admittedly, plaintiff did not file appeal challenging the decree and judgment dated 17.11.1997 in O.S.No.54 of 1997. However, the plaintiff filed the present suit on 29.12.1997.
9. It is a settled principle of law that a person, who approached the court seeking equitable relief, must come to court with clean hands. In a suit for perpetual injunction, burden of proof lies on plaintiff to establish that he is in possession of suit schedule property as on the date of filing of the suit. The edifice of a civil suit is based on pleadings, but a party to the suit is not entitled to take mutually self-destructive pleas. The parties must adduce oral or documentary evidence in accordance with pleadings.
10. Let me consider the findings whether the plaintiff established his case or not, in the light of the above principles. As per the averments in the plaint, suit land is self-acquired property of plaintiff. In the evidence, he has introduced a new version that his father was the tenant of Yashwanth Rao Deshmukh. After death of his father, he surrendered the suit land to original owner in the year 1962 or 1963. Again the original owner has given the suit land to plaintiff and issued written receipt to that effect. The plaintiff did not choose to file the receipt alleged to have been issued by the original owner, Yashwanth Rao Deshmukh. The plaintiff did not file single scrap of paper to prove that his father was the tenant of Yashwanth Rao Deshmukh at any point of time. The fact remains that the plaintiff has taken different stands to prove his possession over the suit land.
11. In Exs.A1 to A5, certified copies of the pahanis for the successive years from 1993-94 to 1998-99, plaintiff’s name is shown in possession column to the extent of Ac.0.25 guntas. As per the recitals in Exs.B6 and B7, certified copies of pattadar passbooks and Exs.B8 and B9, revenue receipts dated 13.6.1998 and 09.11.1998, first defendant has been in possession and enjoyment of Ac.0.7.14 guntas in survey No.214. Both parties relied on pahanis to substantiate their contention. The plaintiff has not taken any steps to examine the revenue officials to explain reasons for discrepancies in the pahanis. Unless and until the contrary is proved, the court can place reliance on pattadar pass books issued by the revenue officials. As admitted by both the parties, the total extent of land in survey No.214 of Hangarga village is Ac.8.14 guntas. The plaintiff himself categorically admitted that first defendant purchased an extent of Ac.7.00 out of Ac.8.14 guntas from original owners. The remaining land is only Ac.1.14 guntas. As per the testimony of P.W.2, first defendant purchased Ac.7.00 of land from the original owners after formation of the road in survey No.214. As per the testimony of D.W.1, the road was formed in an extent of Ac.1.10 guntas. In Exs.B3 and B4, certified copies of pahanis for the years 1979-80 and 1980-81, in column No.33, it is mentioned that road was formed in an extent of Ac.1.10 guntas. The version put forth by defendants is fully supported by Exs.B3 and B4. Plaintiff did not take any steps to establish that entries made in Exs.B3 and B4 are not true and correct. Thus, it is clear that total extent of land in survey No.214 is Ac.8.14 guntas; out of which first defendant purchased Ac.7.00 and road was formed in an extent of Ac.1.10 guntas; and the leftover land is only Ac.0.04 guntas. In the pahanis filed by plaintiff, it is mentioned that non-cultivable land in survey No.214 is Ac.0.15 guntas. If that is so, the contention of plaintiff that he has been cultivating an extent of Ac.0.25 guntas has no legs to stand. If we apply mathematical calculation, the version of plaintiff that he has been in possession of Ac.0.25 guntas is improbable and unbelievable.
12. Further, as per the averments in the plaint, suit land admeasuring Ac.0.25 guntas is a contiguous plot but as per plaint schedule, land is two separate plots admeasuring Ac.0.20 guntas and Ac.0.05 guntas. In the earlier suit also, plaintiff has taken a stand that he was in possession of Ac.0.25 guntas of land. It is the duty of plaintiff to establish exact location of suit land in order to succeed the suit. Plaintiff did not take any steps to identify the exact location of the suit land.
13. Learned counsel for the appellant strenuously submitted that the courts below ought to have appointed advocate commissioner for localization of suit land. The burden is cast on the plaintiff to establish the exact location of suit land. To discharge his burden, plaintiff ought to have filed petition under Section 75(b) read with Order XXVI Rule 9 of CPC for appointment of advocate commissioner to localize suit land. It is not the case of the plaintiff that he has filed such an application and the courts below refused the same. Without discharging the burden cast on him, plaintiff cannot now contend that the courts below ought to have appointed advocate commissioner. A party to the proceedings cannot shift his burden on the court. If the court feels that it cannot adjudicate the matter without aid and report of advocate commissioner, then the court can suo motu appoint advocate commissioner. The courts below have adjudicated the matter basing on the oral and documentary evidence adduced by both the parties. Viewed from any angle, it is not a fit case for appointment of advocate commissioner suo motu by the courts below. It is a settled principle of law that advocate commissioner cannot be appointed for collection of evidence. Therefore, I am unable to accede to the contention of learned counsel for appellant that the courts below have committed error in not appointing advocate commissioner for localization of suit land.
14. In the light of the foregoing discussion, I have no hesitation to hold that the courts below have meticulously considered revenue records filed by both the parties and arrived at a conclusion that plaintiff is not in possession of suit land. The courts below have assigned cogent and valid reasons to its findings. I find no reason to interfere with the concurrent findings recorded by the courts below. There is no question of law much less substantial question of law in this appeal.
15. In the result, the second appeal is dismissed, confirming the decree and judgment dated 29.12.2003 in A.S.No.30 of 2003 (old A.S.No.3 of 2000) on the file of VII Additional District Judge (Fast Track Court), Nizamabad at Bodhan. There shall be no order as to costs.
16. The miscellaneous petitions if any pending in this second appeal shall stand closed.
21st January, 2014.
(T.SUNIL CHOWDARY, J) YS NOTE:
L.R. COPY TO BE MARKED: YES : NO