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

 Five Judges Constitution Bench of this Court in the case

of Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR

2003 SC 2588, was considering the question as to the effect of

death of some of the appellants during the pendency of appeal.

In that case, during the pendency of appeal, some of the

appellants died on different dates and there was no attempt to

take any step within time for bringing to the Court the legal

representatives of the deceased appellants. The respondents,

therefore, filed application praying for dismissal of those

appeals as having been abated. It appears that during the

pendency of appeal in the High Court, some of the appellants

were said to have died, the plea of partial abatement of the

appeals qua only those deceased appellants were not accepted

by the High Court on the view that decree was joint based on

common right and interest, the appeal was rejected in toto.

On these facts, the Constitution Bench after discussing all

earlier decisions held as under:-

“27. Laws of procedure are meant to regulate effectively,

assist and aid the object of doing substantial and real

justice and not to foreclose even an adjudication on merits

of substantial rights of citizen under personal, property and

other laws. Procedure has always been viewed as the

handmaid of justice and not meant to hamper the cause of

justice or sanctify miscarriage of justice. A careful reading of

the provisions contained in Order 22 CPC as well as the

subsequent amendments thereto would lend credit and

support to the view that they were devised to ensure their

continuation and culmination in an effective adjudication

and not to retard the further progress of the proceedings

and thereby non-suit the others similarly placed as long as

their distinct and independent rights to property or any

claim remain intact and not lost forever due to the death of

one or the other in the proceedings. The provisions

contained in Order 22 are not to be construed as a rigid

matter of principle but must ever be viewed as a flexible tool

of convenience in the administration of justice.”

 xxxxx

32. But, in our view also, as to what those circumstances

are to be, cannot be exhaustively enumerated and no hardand-fast

rule for invariable application can be devised. With

the march and progress of law, the new horizons explored

and modalities discerned and the fact that the procedural

laws must be liberally construed to really serve as

handmaid, make it workable and advance the ends of

justice, technical objections which tend to be stumbling

blocks to defeat and deny substantial and effective justice

should be strictly viewed for being discouraged, except

where the mandate of law inevitably necessitates it.

Consequently, having regard to the nature of the

proceedings under the Act and the purpose of reference

proceedings and the appeal therefrom, the courts should

adopt a liberal approach in the matter of condonation of the

delay as well as the considerations which should weigh in

adjudging the nature of the decree i.e. whether it is joint

and inseverable or joint and severable or separable. The fact

that the Reference Court has chosen to pass a decree jointly

in the matters before us is and should be no ground by

itself to construe the decree to be joint and inseparable. At

times, as in the cases on hand, the court for its convenience

might have combined the claims for joint consideration on

account of similar nature of the issues in all such cases and

for that reason the parties should not be penalized, for no

fault of theirs. Actus curiae neminem gravabit (an act of

court shall prejudice no one) is the maxim of law, which

comes into play in such situations. A number of people,

more for the sake of convenience, may be counselled to join

together to ventilate, all their separate but similar nature of

claims and this also should not result in the claims of all

such others being rejected merely because one or the other

of such claims by one or more of the parties abated on

account of death and consequent omission to bring on

record the legal heirs of the deceased party. At times, one or

the other parties on either side in a litigation involving

several claims or more than one, pertaining to their

individual rights may settle among themselves the dispute

to the extent their share or proportion of rights is concerned

and may drop out of contest, bringing even the proceedings

to a conclusion so far as they are concerned. If all such

moves are allowed to boomerang adversely on the rights of

the remaining parties even to contest and have their claims

adjudicated on merits, it would be a travesty of

administration of justice itself.

35. In the light of the above discussion, we hold:

(1) Wherever the plaintiffs or appellants or petitioners

are found to have distinct, separate and independent

rights of their own and for the purpose of convenience

or otherwise, joined together in a single litigation to

vindicate their rights, the decree passed by the court

thereon is to be viewed in substance as the

combination of several decrees in favour of one or the

other parties and not as a joint and inseverable

decree. The same would be the position in the case of

defendants or respondents having similar rights

contesting the claims against them.

(2) Whenever different and distinct claims of more

than one are sought to be vindicated in one single

proceedings, as the one now before us, under the

Land Acquisition Act or in similar nature of

proceedings and/or claims in assertion of individual

rights of parties are clubbed, consolidated and dealt

with together by the courts concerned and a single

judgment or decree has been passed, it should be

treated as a mere combination of several decrees in

favour of or against one or more of the parties and not

as joint and inseparable decrees.

(3) The mere fact that the claims or rights asserted or

sought to be vindicated by more than one are similar

or identical in nature or by joining together of more

than one of such claimants of a particular nature, by

itself would not be sufficient in law to treat them as

joint claims, so as to render the judgment or decree

passed thereon a joint and inseverable one.

(4) The question as to whether in a given case the

decree is joint and inseverable or joint and severable

or separable has to be decided, for the purposes of

abatement or dismissal of the entire appeal as not

being properly and duly constituted or rendered

incompetent for being further proceeded with,

requires to be determined only with reference to the

fact as to whether the judgment/decree passed in the

proceedings vis-à-vis the remaining parties would

suffer the vice of contradictory or inconsistent

decrees. For that reason, a decree can be said to be

contradictory or inconsistent with another decree

only when the two decrees are incapable of

enforcement or would be mutually self-destructive

and that the enforcement of one would negate or

render impossible the enforcement of the other.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2963 OF 2013

Government of Andhra Pradesh Vs   Pratap Karan 

Citation;(2016)2 SCC82: AIR 2016 SC 1717

M. Y. EQBAL, J.

This appeal being C.A.No.2963 of 2013 arises out of the

judgment and order dated 19.12.2011 passed by the 3rd Judge

of the High Court of Andhra Pradesh to whom the matter was

1Page 2

referred to by the Chief Justice for final decision against the

conflicting judgments passed by the two judges of the said

High Court. The appeal was preferred by the plaintiffrespondent

before the High Court which was heard by a

Division Bench. The two judges of the Division Bench

delivered two conflicting judgments, one by allowing the

appeal and setting aside the judgment of the trial court and

the other by dismissing the appeal and affirming the judgment

of the trial court. The 3rd Judge to whom the matter was

referred, passed the impugned judgment upholding the

judgment of one of the learned judges and allowing the appeal

and decreeing the suit of the plaintiff-respondent. Another

appeal being C.A.No.2964 of 2013 has been filed by the

transferee of the suit property during the pendency of the

appeal in the High Court. Since leave was granted, both the

appeals have been heard and disposed of by this judgment.

2Page 3

2. The plaintiffs (hereinafter referred to as the respondents)

filed Title Suit No. 274 of 2007 for rectification of Revenue

Records by incorporating their names as owners and

possessors in respect of the suit land comprised within Survey

No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy

District, by deleting the duplicate Sy.No.119 in respect of

portion of the land of the said Village.

3. The factual matrix of the case is that the contesting

plaintiff-respondents filed the above suit stating that their

predecessor in title late Raja Shivraj Dharmavanth Bahadur

(hereinafter referred to as “late Raja”) was the pattadar and

absolute owner of the suit schedule property. The succession

of the estate of late Raja was declared by a Royal Firman of the

Nizam in favour of Raja Dhiraj Karan, late Raja Dharam

Karan, late Raja Mehboob Karan and the heirs of Raja

Manohar Raj vide Firman dated 4th Ramzan 1359 Hizri

{Ex.A1). On the death of late Raja issueless in the year 1917,

the succession of his estate was granted by the Royal Firman

3Page 4

in favour of the sons of his two brothers Raja Lokchan Chand

and Raja Murali Manohar Bahadur by another Royal Firman

dated 5th Safar 13 1361 Hizri, the succession of estate of late

Raja Dhiraj Karan was granted in the name of Pratap Karan

who is one of the plaintiffs, under Ex.A2. The other plaintiffs

are the successors of legal heirs of Raja Dharam Karan, Raja

Mehboob Karan and Raja Manohar Raj.

4. It has been contended on behalf of the plaintiffRespondents

that they are, therefore, the absolute owners and

possessors of the suit schedule land. The land in Nadergul

Village was subject matter of survey and settlement of the year

1326 Fasli (year 1917) and under the said survey and

settlement the lands of late Raja were part of Khata No.1

wherein the suit schedule land was having Survey Number

579. Late Raja’s name was also shown as Khatadar in Setwar

and Vasul Baqui. Thus, the suit lands are private lands of late

Raja. The revisional survey of Nadergul Village was given effect

in the year 1352 Fasli (year 1943) and the said survey has also

4Page 5

confirmed the ownership of late Raja in Khata No.3 (Khata

No.1 as per survey of 1326 Fasli (year 1917) which also made

it clear that the suit lands are private lands of late Raja. The

present survey number 613 was shown as the corresponding

old Survey Number 579 without any change in the extent of

the land.

5. The Respondent’s further case is that the certified copy of

Setwar and Vasul Baqui relating to Sy.No.613 for the year

1352 Fasli (year 1943) clearly disclose that late Raja was the

Khatadar of all the land in Sy.No.613 of Nadergul Village,

Saroornagar Mandal, Rangareddy District, Ex.A5. The village

map of Nadergul Village and plan of S.No.613 clearly disclose

the land as ‘Kancha’ of Late Raja. The total survey numbers in

the village are about 875. As per the village map and the

corresponding land records ie., Setwar, Vasool Baqui, Touch

Plan and Pahanies, the land within the boundaries of

S.No.119 consists of an extent of Ac.1-20 guntas, which is in

the name of Gaddam Mallaiah as Khatadar. However, as per

5Page 6

the endorsement made in the Khasra Pahani (1954-55) there

is a remark that the lands of late Raja are shown in separate

series and in the Pahanies subsequent to the Khasra,

S.No.613 is shown as Shivaraj Bahadur Ilaka without

determining the extent.

6. It is the plaintiffs’ case that as per the certified copies of

pahanies for the years 1949-50 and 2000-01 the land in

S.No.613 of Nadergul Village stood in the name of late Raja.

However, it is alleged that in the Khasra Pahani, S.No.613 is

rounded up, which does not convey any meaning. After 1954-

55, Revenue Records are showing the land in S.No.119 with

an extent of Ac.355-12 guntas and it is not known as to how

the original extent of land in S.No.119 shown as Ac.1-20 has

swollen to Ac.355-12 guntas with endorsement of “Sarkari”

from the original endorsement of Gaddam Mallaiah, which

clearly discloses duplication of the land in S.No.119 and to say

the least, the Revenue Record has been tampered with by the

custodians of the records with an oblique motive of depriving

6Page 7

the legitimate owners of the land in S.No.613 of Nadergul

Village. Even today, pahanies, village maps, and touch plan

clearly disclose the existence of S.No. 613 with a large chunk

of land but purposefully the revenue authorities are not

disclosing the details of the ownership of the suit land. The

basic record ie., Setwar and Vasul Baqui Register of 1352 Fasli

(year 1943). The endorsement in the Khasra Pahani of 1954-

55 that the lands of late Raja in S.No.613 are being shown

separately, is devoid of a sensible meaning. As per the

endorsement, it is incumbent on the defendants to continue to

maintain the revenue records in the name of late Raja and the

plaintiffs being the predecessors in interest as

pattadar/khatadar of the said land in S.No.613 of Nadergul

Village.

7. The plaintiffs’ case is that in certified copies of the

pahanies for the years 1955-01, there is duplication of

S.No.119, and while Gaddam Mallaiah is shown as Khatadar

of S.No.119 in respect of land admeasuring Ac.1-20 guntas,

7Page 8

the duplicated S.No. 119 admeasuring more than 355 acres

and sometimes Ac.373-22 guntas is being shown as Kancha

Sarkari notwithstanding the fact that in the Khasra Pahani for

the year 1954-55 it is clearly mentioned late Raja as

khatadar/pattadar of the entire land in S.No.119. Since the

Khasra Pahani has confirmed the ownership of late Raja, the

same cannot be changed as Sarkari Kancha in the Pahani

without there being any proceedings. When the land in

S.No.613 is continuing to exist as per the village maps and

touch plan, the pahanies and other records are being

maintained with mis-description, by which title of the real

owner will not vanish. The plaintiffs who are successors in

interest of the land made attempts for correction of the entries

in the Revenue Records under A.P. Record of Right in Land

and Pattadar Pass Books Act, 1971 (for short “the Act”) and

the authorities rejected the claim for correction of entries on

the ground that unless the plaintiffs get their title declared in

a court of law, the mutation in the name of the plaintiffs

8Page 9

cannot be effected under Section 8(2) of the Act. The

defendants have no title over the suit schedule land.

8. The 5th defendant-appellant Mandal Revenue Officer,

Saroornagar, while denying the suit claim, contended that the

suit is not maintainable. According to him, the plaintiffs are

neither owners nor possessors of the suit schedule property

and they are in no way concerned with the suit land as per the

Revenue Records. It has been pleaded on behalf of the

defendants that the plaintiffs did not obtain succession

certificate from the competent civil court and have not

acquired the suit property of late Raja through succession as

pleaded.

9. In the amended written statement, it has been pleaded by

the defendant that Nadergul was a Jagir Village and as all the

jagirs were abolished under the Hyderabad Abolition of Jagirs

Regulation, all Jagir properties vested in the State and the

9Page 10

Jagirdars became entitled only to receive compensation

amount and the estate of late Raja also got merged with the

State and all Jagirs in Hyderabad State were taken over by the

Government and transferred to Deewani after publication of

Notification No.8 dated 07-04-1949. Further Nazim Atiyat had

passed an order dated 20-01-1958 in File No.1/56

Warangal/1950 and the legal heirs of Late Raja had

participated in the said proceedings and staked claim for

commutation amount in respect of the Jagir land. Aggrieved

by the said proceedings, some of the plaintiffs and certain

other successors of late Raja had filed appeal before the Board

of Revenue and the same was dismissed vide order dated

24.07.92 and a review petition was also dismissed by the

Board of Revenue and, thereafter, the same persons had filed

W.P.No.4999 of 1974 in the High Court and as per the

judgment in the said writ petition, dated 22.04.76, the matter

was remanded back to the Board of Revenue and after

remand, the appeals filed by the above said persons were

dismissed for non-prosecution.

10Page 11

10. It has been further pleaded in the aforesaid amended

written statement that after abolition of Jagirs, the Jagir lands

of late Raja numbering about 8 survey numbers were rounded

off and separate numbers from 1 to 194 were given as

evidenced in the Khasra Pahani for the year 1954–55 and as

such the contention of the plaintiffs that original Sy.No.119

admeasuring Ac.1-20 guntas in the name of Gaddam Mallaiah

has increased to 355 acres is not only false but the same is

contrary to the record. Sy.No.119 admeasuring Ac.1-20 guntas

is separate and distinct survey number from the Sy.No.119

which finds place in the Khasra Pahani in separate series of 1

to 194. This Sy.No.119 is admeasuring Ac.355.00 and

recorded as Sarkari Poramboke. Having not filed any

declarations under the Land Ceiling Laws, the plaintiffs are

not entitled to stake the suit claim. It is further pleaded by

the defendant that the plaintiffs and their ancestors have

participated in the enquiry before Nazim Atiyat for the award

11Page 12

of commutation amount and hence they are estopped from

filing the present suit, that too after lapse of about 5 decades.

11. The trial court, on consideration of evidence came to the

conclusion that the plaintiffs have not made out a case for

correction of Revenue Record and dismissed the suit.

Aggrieved by the same, the plaintiffs filed the appeal before the

High Court, which being allowed by one Judge and dismissed

by another Judge, was heard by a third Judge, who after

considering the law laid down by the High Court as well as

this Court, held that the plaintiffs successfully demonstrated

that late Raja was pattadar/khatadar of the land covered by

S.No.613 admeasuring 373-22 guntas in the Khasra Pahani,

the presumption backward/forward can be applied in his

favour and in favour of his heirs that he or they continued to

be the pattadar(s). Allowing the appeal of the plaintiffs and

setting aside the judgment and decree of the trial court, the

learned third Judge of the High Court observed, thus:

12Page 13

“Unless the State proves that the said land has been

confiscated or vest in the State under Jagir Abolition Act on

abolition of jagirs or for non filing of the declaration, the

property vest in the Government under the provisions of

Andhra Pradesh Land Reforms (Ceiling on Agricultural

Holdings), 1973, mere mentioning “Sarkari” in subsequent

pahanies or giving duplication S.No.119, title of the original

owner will not vanish and it continues to be vest with them.

In Khasra Pahani for the year 1954-55 covered under

Ex.12(a), when it is stated that S.No.613 has been recorded

as “Self Cultivation Dastagardan” and numbers of the

Sivaraj Bahadur has been written separately and the same

has also been shown as S.No.119 under Ex.12(b). Therefore,

late Raja or his heirs continue(s) to be pattadar(s) for the

corresponding survey number and on changing also, but the

same cannot become the government property as contended

by the learned Advocate General. Further, the identity of

land in S.No.613, suit land, as found in Ex.A-10-touch plan

and Ex.A- 9-village map cannot undergo any change

whatsoever and ownership may change from one person to

the other but the location of land and its identity with

reference to survey number cannot be changed. Therefore,

there is no further necessity for the plaintiffs to seek

declaration of their title except to seek correction of record of

rights recording the names of the heirs of late Raja i.e. the

plaintiffs. Thus, the plaintiffs are entitled for a declaration

for correction of the entries in the record of rights recording

the names of the legal heirs of late Raja and also injunction

restraining the defendants from interfering with the plaintiffs

peaceful possession.”

12. Aggrieved by the decision of the High Court, the

defendants – appellants have preferred this appeal.

13Page 14

13. We have heard learned senior counsel appearing for the

parties and also perused the written submissions filed by

them.

14. While raising an additional ground for the first time here

in this appeal, Mr. Mukul Rohatgi, learned Attorney General

appearing for the appellants, submitted that the learned

judges of the Division Bench who heard the appeal differed

vertically in as much as Section 98(2) of CPC provides for

confirmation of decree of the trial court. Reference to the 3rd

Judge was made in the present case not after formulating any

points of disagreement on the question of law, hence the

reference by the Chief Justice to the learned 3rd Judge is ultra

vires. In this connection learned counsel referred the decision

of this Court in Tej Kumar vs. Kirpal Singh, (1995) 5 SCC

119. It was further submitted that even if the provisions of

Letters Patent Act are invoked the same cannot override the

provisions of Section 98 CPC. In this connection learned

counsel referred decisions in P.V. Hemalatha v.

14Page 15

Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC

548 and Centre For Environmental Law v. Union of India,

(2010)12 SCC 303. It was further contended that even if

Clause 36 of the Letters Patent of the Madras High Court

which has been adopted for the A.P. High Court is held

applicable, nonetheless, in the present case, since no points of

agreement have at all been formulated for consideration by the

two learned judges who had heard the appeal, reference to the

3

rd judge was, therefore, clearly incompetent.

15. Learned Attorney General appearing for the appellant

raised another point with regard to abatement of the appeal

pending before the High Court on the ground inter alia that

one of the respondents i.e., Respondent No. 12 died on

21.12.2010 during the pendency of the appeal before the High

Court. Since the prayer made in the suit is the one for

declaration of title of the plaintiffs as a single entity the appeal

pending in the High Court itself stands abated. Further, the

15Page 16

appeal in the High Court got abated as a whole in as much as

the decree that was challenged before the High Court was a

joint and indivisible decree. In this connection the appellants

relied upon the decision in the case of (2006) 6 SCC 569 and

(2010) 11 SCC 476.

16. On merit of the appeal, the appellants first assailed the

finding and the conclusion arrived at by the High Court that

the area by name Bhagat Nadegul of Hyderabad District is

different from Nadergul Village. According to the appellant

there is absolutely no material to show that there is any other

village by the name Nadergul in any part of the State. In this

connection learned counsel referred the evidence of PW-1.

17. Further, the contention of the appellants is that the

predecessors of the plaintiffs had sought for commutation in

respect of land in Nadergul Village will show that the said

lands were treated as Jagir land. The findings of the Atiyat

16Page 17

Court qua Nadergul with the relevant Sandas have not been

produced for verification. There is no finding anywhere in

Exh. B.1 that Nadergul is not a Jagir Village. Merely because

commutation amount was not awarded in respect of Nadergul

Village, it shall not be treated as a private land. It was

submitted that none of the plaintiffs entered the witness box

and testified on any of the averments made in the plaint and

the only person examined was PW-1 as General Power of

Attorney holder of the plaintiffs who could not have any

personal knowledge on the issues relating to the grant made

by Nizam and the proceeding relating thereto.

18. On the relevancy of documentary evidence learned

counsel contended that Sethwar (Exh.A-5), Register of Vasool

Baqui and Khasra Pahani in respect of Survey No. 613 are not

sufficient to declare title of Raja Shiv Bahadur and, thereafter,

the plaintiffs as successors to the Estate in respect of the suit

property. Learned counsel contended that it is inconceivable

17Page 18

that fairly large extent of 373.22 acres of private land would

otherwise not be subjected to any land revenue. According to

the appellants since the land of Survey No.613 was a Crown’s

land it was not assessed to land revenue. With regard to

Pahani Patrika from 1949-50 till 2000-01 shows that the land

in survey No.613 as Kancha-Sarkari or Kancha-Shiv Raj

Bahadur. It was contended that there is no document

whatsoever to support the case of the plaintiffs with regard to

the title to the suit property. These documents cannot be

treated as document of title of the plaintiffs.

19. Lastly, the submissions of the appellants is assuming

that without admitting that there has been duplication of

survey numbers is accepted that by itself cannot enable the

plaintiffs to get a declaration of title unless there is prima facie

evidence of title being acquired by their predecessors in

interest. In any view of the matter the suit itself is barred by

limitation.

18Page 19

20. Mr. Dushyant A. Dave, learned senior counsel appearing

for the appellant Corporation in Civil Appeal No.2964 of 2013,

also made his submission on behalf of the Corporation and

contended that none of the plaintiffs have entered in the

witness box and the only witness who was examined was the

plaintiff’s GPA holder whose evidence cannot be taken into

consideration. Mr. Dave contended that the plaintiffs have

kept quiet for more than 50 years and hence the suit claim is

a chance litigation. It was further contended that the

judgment of the 3rd learned Judge is opposed to Section 98(2)

of the CPC and suggested that the matter will have to be

remanded to the High Court.

21. Per contra, Dr. A.M. Singhvi, learned senior counsel

appearing for the plaintiffs-respondents, at the very outset

submitted that although A.P. Industrial Infrastructure

Corporation Limited to whom the suit property was illegally

transferred by the appellant-State during the pendency of

19Page 20

appeal in High Court is neither a necessary party nor have got

any right to prefer appeal against the impugned judgment

passed by the High Court.

22. On the issue of application of Section 98(2) of CPC, Dr.

Singhvi, learned senior counsel, submitted that A.P. High

Court is governed by the Letters Patent of Madras High Court

and, therefore, Section 98(2) of the Code has no application by

reason of Section 98(3) of the Code. It is submitted that the

decision of this Court relied upon by both the parties on this

point itself clarify that Section 98(2) of the Code has no

application to the High Court which is governed by Letters

Patent. In this connection learned counsel also referred the

decision of Patna High Court in AIR 1984 Patna 296 and AIR

1979 Patna 115. Learned counsel therefore submitted that

there is no illegality in the reference made by the Chief Justice

to the 3rd Judge of the High Court for deciding the appeal.

20Page 21

23. Rebutting the submission made by the appellants on the

question of abatement learned counsel submitted that the

present suit is for declaration of title and permanent

injunction. On the death if Defendant No.12 the right to sue

survives with the remaining plaintiffs and, therefore, that the

appeal then pending in the High Court will not abate. Learned

counsel referred Order 22 Rule 2 CPC and submitted that the

objection with regard to abatement of appeal in the High Court

was neither raised before the High Court nor raised in the

grounds of memo of appeal filed before this Court.

24. Replying the submissions made by Mr. Dave, appearing

for the appellant Corporation in another appeal, learned senior

counsel appearing for the respondents submitted that a GPA

holder can give evidence on matters which are within his

knowledge and he is competent enough to give evidence on

behalf of the party. In this connection he relied upon AIR

2005 SC 439.

21Page 22

25. Further submissions on behalf of the respective

respondents have been made by Mr. Vikas Singh and Mr.

Harin P. Raval, learned senior counsel, that since there is no

dispute on the genuineness and authenticity of documentary

evidence on record, the suit claim has to be decided on

documentary evidence i.e. Exhs. A1-A-19. According to the

learned senior counsel Exh. A-5(Sethwar), Exh. A-6(Vasool

Baqui Record), Exh. A-12(Khasra Pahani) shows that the name

of Shiv Raj Bahadur was recorded as the Pattadar of the suit

land. From these documents it can be inferred without any

doubt that ruler of the kingdom has accepted the ownership of

Shiv Raj Bahadur and there is no need to have either Patta or

title documents.

26. Referring to the admission in written statement filed by

the defendant-appellants it was submitted that there are

various other Pattadar in Nadergul Village. Further there is no

pleading in the written statement that Shiv Raj Bahadur was a

Jagirdar of the suit land. It was further contended that in the

22Page 23

order passed in Nizam Atiyat proceeding it was declared that

some villages are not Jagir lands. The declaration by Nizam

Atiyat is for the whole village and not for some survey

numbers in the Village. Admittedly, there are various other

Pattadars in Nadergul Village and, therefore, in the Nizam

Atiyat proceeding Nadergul was shown in List-3 as patta

lands.

27. So far as the issue with regard to the suit, being barred

by limitation it was submitted by the respondents that the suit

for declaration of title and injunction falls under Article 65 of

the Limitation Act 1963 where limitation is 12 years from the

date when possession of the defendant become adverse to that

of the plaintiff. There is no pleading in the written statement

that the State has obtained title by adverse possession. In the

present case the defendant-State has never set up and or

cannot set up title by adverse possession, hence the suit

cannot be held to be barred by limitation. There is no

evidence adduced from the side of the defendants that the

23Page 24

State ever came in possession. On the contrary the

possession of the plaintiff-respondents was sufficiently proved

by the trial court while deciding the injunction petition as also

in the finding recorded by the High Court dismissing the

appeal against the order of injunction.

28. We have heard learned senior counsel appearing for the

parties at length and perused the record.

29. Before we decide the merit of the appeal, we shall take up

the interlocutory applications filed by the appellant during the

pendency of this appeal. By I.A. No.9/2015 filed on 20th July,

2015, the appellant stated that during the pendency of the

appeal in the High Court, respondent No.12 died but the legal

representatives have not been substituted by the respondents,

who were appellants before the High Court which resulted in

abatement of the said appeal. Hence, prayer has been made

that non-substitution of legal representatives of respondent

24Page 25

No.12 in the appeal pending in the High Court, the appeal

stood abated by operation of law and consequently judgment

and decree passed by the High Court in the appeal suit No.274

of 2007 is rendered nullity in law.

30. By another I.A. Nos. 10 and 11 of 2015, the appellant

has stated that during pendency of this appeal respondent

No.6 died on 8.4.2015 and respondent No.14 died on 6.1.2014

which were not within the knowledge of the appellant, hence

prayer has been made to set aside the abatement and

substitute their legal representatives.

31. Learned Attorney General appearing for the appellant

pressed these two applications relying upon the decision of

this Court in the case of Matindu Prakash (Deceased) by

L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029;

Amba Bai and others vs. Gopal and others, (2001) 5 SCC

25Page 26

570; Budh Ram and others vs. Bansi and others, (2010)

Vol. 11 SCC 476.

32. In the case of Matindu Prakash (Deceased) by L.R.s vs.

Bachan Singh and others, AIR 1977 SC 2029, when the

appeal was pending in this Court, it revealed that two of the

appellants died and no step was taken to bring the heirs and

legal representatives of those appellants on the record. The

question, therefore, that fell for consideration was whether

appeal abated as a whole so as to entail a dismissal of the

entire suit. This Court, therefore, remitted the matter back to

the High Court to record a finding and to decide whether by

virtue of the death, the appeal abated as a whole or the appeal

had abated qua the deceased appellants before the Civil

Appeal is disposed of.

33. In the case of Amba Bai and others vs. Gopal and

others, 2001(5) SCC 570, this Court was considering the case

26Page 27

where a suit for specific performance by one plaintiff against

the defendant was finally allowed in appeal and the suit was

decreed. During the pendency of Second Appeal by the

defendant in the High Court, the plaintiff died and his legal

representatives were brought on record. Subsequently, the

defendant also died, but this fact was not brought to the

notice of the Court and the appeal was dismissed. In those

facts this Court considering the provision of Order 22 Rule 3 of

the Code held that “in a case where the plaintiff or the

defendant dies and the right to sue does not survive, and

consequently the Second Appeal had abated and the decree

attained finality inasmuch as there cannot be merger of the

judgment or decree passed in Second Appeal with that passed

in the First Appeal.” The said decision therefore, in our

considered opinion will not apply in the present case. In the

instant case, there are more plaintiffs than one and one of

them died and the right to sue survives upon the surviving

plaintiffs. In the said circumstances Order 22 Rule 2 of the

Code will come into operation and the appeal will not abate.

27Page 28

34. In the case of Budh Ram and others vs. Bansi and

others, (2010) Vol. 11 SCC 476, this Court after considering

series of judgments rendered by this Court in the State of

Punjab vs. Nathu Ram, (AIR 1962) SC 89, Sri Chand vs.

Jagdish Pershad Kishan Chand, AIR 1966 SC 1427,

Ramagya Prasad Gupta vs. Murli Prasad, (1973) 2 SCC 9

and Sardar Amarjit Singh Kalra vs. Pramod Gupta, (2003)

3 SCC 72 held as under:-

“17. Therefore, the law on the issue stands crystalLised to

the effect that as to whether non-substitution of LRs of the

respondent-defendants would abate the appeal in toto or

only qua the deceased respondent-defendants, depends

upon the facts and circumstances of an individual case.

Where each one of the parties has an independent and

distinct right of his own, not interdependent upon one or the

other, nor the parties have conflicting interests inter se, the

appeal may abate only qua the deceased respondent.

However, in case, there is a possibility that the court may

pass a decree contradictory to the decree in favour of the

deceased party, the appeal would abate in toto for the simple

reason that the appeal is a continuity of suit and the law

does not permit two contradictory decrees on the same

subject-matter in the same suit. Thus, whether the

judgment/decree passed in the proceedings vis-à-vis

remaining parties would suffer the vice of being a

contradictory or inconsistent decree is the relevant test.”

28Page 29

35. In the case of Harihar Singh vs. Balmiki Prasad

Singh, AIR 1975 SC 733 = (1976) 1 SCC 212, this Court

observed:

“32. The important point to note about this litigation is that

each of the reversioners is entitled to his own specific share.

He could have sued for his own share and got a decree for

his share. That is why five Title Suits Nos. 53 and 61 of 1934

and 20, 29 and 41 of 1935 were filed in respect of the same

estate. In the present case also the suit in the first instance

was filed by the first and second plaintiffs for their onetwelfth

share. Thereafter many of the other reversioners who

were originally added as defendants were transposed as

plaintiffs. Though the decree of the trial court was one, three

Appeals Nos. 326, 332 and 333 of 1948 were filed by three

sets of parties. Therefore, if one of the plaintiffs dies and his

legal representatives are not brought on record the suit or

the appeal might abate as far as he is concerned but not as

regards the other plaintiffs or the appellants. Furthermore,

the principle that applies to this case is whether the estate of

the deceased appellant or respondent is represented. This is

not a case where no legal representative of Manmohini was

on record.”

36. Similarly, in the case of State of Punjab vs. Nathu

Ram, AIR 1962 SC 89 = (1962) 2 SCR 636, which arose out of

acquisition of land under the Defence of India Act, 1939, when

the landowners refused to accept compensation offered by the

Collector, the dispute was referred by the State Government to

an arbitrator, who passed an award for payment of higher

29Page 30

compensation. The State appealed against the award. During

pendency of the appeal, one of the landowner namely Labhu

Ram died. The High Court, holding that the appeal abated

against Labhu Ram and its effect was that the appeal against

another respondent also abated, the appeal was dismissed.

When the matter came up to this Court, at the instance of the

State Government, this Court deciding the issue held as

under:

“4. It is not disputed that in view of Order 22 Rule 4 Civil

Procedure Code, hereinafter called the Code, the appeal

abated against Labhu Ram, deceased, when no application

for bringing on record his legal representatives had been

made within the time limited by law. The Code does not

provide for the abatement of the appeal against the other

respondents. Courts have held that in certain

circumstances, the appeals against the co-respondents

would also abate as a result of the abatement of the appeal

against the deceased respondent. They have not been always

agreed with respect to the result of the particular

circumstances of a case and there has been, consequently,

divergence of opinion in the application of the principle. It

will serve no useful purpose to consider the cases. Suffice it

to say that when Order 22 Rule 4 does not provide for the

abatement of the appeals against the co-respondents of the

deceased respondent there can be no question of abatement

of the appeals against them. To say that the appeals against

them abated in certain circumstances, is not a correct

statement. Of course, the appeals against them cannot

proceed in certain circumstances and have therefore to be

dismissed. Such a result depends on the nature of the relief

sought in the appeal.”

30Page 31

37. Five Judges Constitution Bench of this Court in the case

of Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR

2003 SC 2588, was considering the question as to the effect of

death of some of the appellants during the pendency of appeal.

In that case, during the pendency of appeal, some of the

appellants died on different dates and there was no attempt to

take any step within time for bringing to the Court the legal

representatives of the deceased appellants. The respondents,

therefore, filed application praying for dismissal of those

appeals as having been abated. It appears that during the

pendency of appeal in the High Court, some of the appellants

were said to have died, the plea of partial abatement of the

appeals qua only those deceased appellants were not accepted

by the High Court on the view that decree was joint based on

common right and interest, the appeal was rejected in toto.

On these facts, the Constitution Bench after discussing all

earlier decisions held as under:-

“27. Laws of procedure are meant to regulate effectively,

assist and aid the object of doing substantial and real

justice and not to foreclose even an adjudication on merits

of substantial rights of citizen under personal, property and

other laws. Procedure has always been viewed as the

handmaid of justice and not meant to hamper the cause of

justice or sanctify miscarriage of justice. A careful reading of

the provisions contained in Order 22 CPC as well as the

subsequent amendments thereto would lend credit and

support to the view that they were devised to ensure their

continuation and culmination in an effective adjudication

and not to retard the further progress of the proceedings

and thereby non-suit the others similarly placed as long as

their distinct and independent rights to property or any

claim remain intact and not lost forever due to the death of

one or the other in the proceedings. The provisions

contained in Order 22 are not to be construed as a rigid

matter of principle but must ever be viewed as a flexible tool

of convenience in the administration of justice.”

 xxxxx

32. But, in our view also, as to what those circumstances

are to be, cannot be exhaustively enumerated and no hardand-fast

rule for invariable application can be devised. With

the march and progress of law, the new horizons explored

and modalities discerned and the fact that the procedural

laws must be liberally construed to really serve as

handmaid, make it workable and advance the ends of

justice, technical objections which tend to be stumbling

blocks to defeat and deny substantial and effective justice

should be strictly viewed for being discouraged, except

where the mandate of law inevitably necessitates it.

Consequently, having regard to the nature of the

proceedings under the Act and the purpose of reference

proceedings and the appeal therefrom, the courts should

adopt a liberal approach in the matter of condonation of the

delay as well as the considerations which should weigh in

adjudging the nature of the decree i.e. whether it is joint

and inseverable or joint and severable or separable. The fact

that the Reference Court has chosen to pass a decree jointly

in the matters before us is and should be no ground by

itself to construe the decree to be joint and inseparable. At

times, as in the cases on hand, the court for its convenience

might have combined the claims for joint consideration on

account of similar nature of the issues in all such cases and

for that reason the parties should not be penalized, for no

fault of theirs. Actus curiae neminem gravabit (an act of

court shall prejudice no one) is the maxim of law, which

comes into play in such situations. A number of people,

more for the sake of convenience, may be counselled to join

together to ventilate, all their separate but similar nature of

claims and this also should not result in the claims of all

such others being rejected merely because one or the other

of such claims by one or more of the parties abated on

account of death and consequent omission to bring on

record the legal heirs of the deceased party. At times, one or

the other parties on either side in a litigation involving

several claims or more than one, pertaining to their

individual rights may settle among themselves the dispute

to the extent their share or proportion of rights is concerned

and may drop out of contest, bringing even the proceedings

to a conclusion so far as they are concerned. If all such

moves are allowed to boomerang adversely on the rights of

the remaining parties even to contest and have their claims

adjudicated on merits, it would be a travesty of

administration of justice itself.

xxxxx

35. In the light of the above discussion, we hold:

(1) Wherever the plaintiffs or appellants or petitioners

are found to have distinct, separate and independent

rights of their own and for the purpose of convenience

or otherwise, joined together in a single litigation to

vindicate their rights, the decree passed by the court

thereon is to be viewed in substance as the

combination of several decrees in favour of one or the

other parties and not as a joint and inseverable

decree. The same would be the position in the case of

defendants or respondents having similar rights

contesting the claims against them.

(2) Whenever different and distinct claims of more

than one are sought to be vindicated in one single

proceedings, as the one now before us, under the

Land Acquisition Act or in similar nature of

proceedings and/or claims in assertion of individual

rights of parties are clubbed, consolidated and dealt

with together by the courts concerned and a single

judgment or decree has been passed, it should be

treated as a mere combination of several decrees in

favour of or against one or more of the parties and not

as joint and inseparable decrees.

(3) The mere fact that the claims or rights asserted or

sought to be vindicated by more than one are similar

or identical in nature or by joining together of more

than one of such claimants of a particular nature, by

itself would not be sufficient in law to treat them as

joint claims, so as to render the judgment or decree

passed thereon a joint and inseverable one.

(4) The question as to whether in a given case the

decree is joint and inseverable or joint and severable

or separable has to be decided, for the purposes of

abatement or dismissal of the entire appeal as not

being properly and duly constituted or rendered

incompetent for being further proceeded with,

requires to be determined only with reference to the

fact as to whether the judgment/decree passed in the

proceedings vis-à-vis the remaining parties would

suffer the vice of contradictory or inconsistent

decrees. For that reason, a decree can be said to be

contradictory or inconsistent with another decree

only when the two decrees are incapable of

enforcement or would be mutually self-destructive

and that the enforcement of one would negate or

render impossible the enforcement of the other.

xxxxx

37. For all the reasons stated above, we are unable to

approve the decision or the manner of disposal given by the

High Court in these cases, which resulted in grave injustice

to the remaining appellants in denying them of their right to

have an adjudication of their claims on merits. The High

Court ought to have condoned the delay as prayed for,

keeping in view the pendency of the main appeals on its file,

adopting a liberal and reasonable approach, which would

have facilitated an effective adjudication of the rights of

parties on either side, avoiding summary rejection of the

appeals in entirety. The judgment and decrees passed by the

High Court in all these appeals are set aside and appeals are

remitted to the High Court to be restored to their original

files for being disposed of afresh on merits of the claims of

both parties and in accordance with law. These appeals are

allowed on the above terms, with no order as to costs.”

38. In the instant case, the plaintiffs joined together and filed

the suit for rectification of the revenue record by incorporating

their names as the owners and possessors in respect of the

suit land on the ground inter alia that after the death of their

predecessor-in-title, who was admittedly the Pattadar and

Khatadar, the plaintiffs succeeded the estate as sharers being

the sons of Khatadar. Indisputably, therefore, all the plaintiffs

had equal shares in the suit property left by their

predecessors. Hence, in the event of death of any of the

plaintiffs, the estate is fully and substantially represented by

the other sharers as owners of the suit property. We are,

therefore, of the view that by reason of non-substitution of the

legal representative(s) of the deceased plaintiffs, who died

during the pendency of the appeal in the High Court, entire

appeal shall not stand abated. Remaining sharers, having

definite shares in the estate of the deceased, shall be entitled

to proceed with the appeal without the appeal having been

abated. We, therefore, do not find any reason to agree with

the submission made by the learned counsel appearing for the

appellants.

39. By filing another I.A. No.7 of 2015 on 17.4.2015, the

appellants sought permission to urge additional grounds as

contemplated under Section 98 of the Code of Civil Procedure.

Admittedly, this ground was not urged before the learned third

Judge of the High Court at the time of hearing of the appeal.

Be that as it may, we allow the appellant to urge additional

ground in this appeal.

40. By urging this additional ground learned senior counsel

for the appellants submitted that the procedure adopted by

the High Court in the disposal of the appeal is not in

consonance with the provisions contained in Section 98 of the

CPC. Learned counsel submitted that the appeal in the High

Court was originally heard by two judges who differed in their

opinion and wrote two separate judgments. While giving

judgments, both the judges have not recorded their opinion on

36Page 37

the point of difference on the point of law. Without

formulating the point of difference the matter was referred to a

third judge by the Chief Justice and the third judge finally

passed the impugned judgment concurring with one of the

judge. According to the learned counsel, therefore, the

impugned judgment is vitiated in law and cannot be

sustained. In this connection, learned counsel relied upon the

decision of this Court in Tej Kaur and Another vs. Kirpal

Singh and Another, (1995) 5 SCC119; P.V. Hemalatha vs.

Kattamkandi Puthiya Maliackal Saheeda and Another,

(2002) 5 SCC 548; Pankajakshi (Dead) Through Lrs. And

Others vs. Chandrika and Others, (2010) 13 SCC 303.

41. Section 98 of the Code of Civil Procedure reads as under :-

“98. Decision where appeal heard by two or more Judges.

(1) Where an appeal is heard by a Bench of two or more

Judges, the appeal shall be decided in accordance with the

opinion of such Judges or of the majority (if any) of such

Judges.

(2) Where there is no such majority which concurs in a

judgment varying or reversing the decree appealed from,

such decree shall be confirmed:

Provided that where the Bench hearing the appeal

is composed of two or other even number of Judges

belonging to a Court consisting of more Judges than those

37Page 38

constituting the Bench and the Judges composing the Bench

differ in opinion on a point of law, they may state the point of

law upon which they differ and the appeal shall then be

heard upon that point only by one or more of the other

Judges, and such point shall be decided according to the

opinion of the majority (if any) of the Judges who have heard

the appeal including those who first heard it.

(3) Nothing in this Section shall be deemed to alter or

otherwise affect any provision of the letters patent of any

High Court.”

42. From the legislative history of enactment of Code of Civil

Procedure, it would appear that Section 98 of the CPC was for

the first time enacted in 1861 by the Act amending the Civil

Procedure Code of 1859. Subsequently in 1862, Letters

Patents were issued establishing the High Court of Madras

and these Letters Patents were modified in 1865. Clause 36 of

the Letters Patent declared that in exercise of appellate

jurisdiction the certain procedure is to be adopted. In 1877

and 1882 amendments were brought in the Code of Civil

Procedure but no provision was made to the effect that the

Code shall not affect the Letters Patent. Thereafter many High

Courts and the Privy Council interpreted the provisions of

Section 98 and Clause 36 of the Letters Patent and it was

38Page 39

consistently held by the Full Bench of the Madras High Court

as under:-

“The result is that it is now beyond all doubt that Clause 36

of the Letters Patent applies to all appeals. It may be asked,

when does Section 98 of the Civil Procedure Code have any

operation and why should the legislature not say that the

section does not apply to Chartered High Courts instead of

adding an explanation to the section? The reply is that

Section 98 applies now only to Courts other than the

Chartered High Courts, that is, the Chief Courts and Courts

of judicial Commissioners and the reason why the legislature

adopted this particular form of elucidating the matter is that

it was intended to retain Section 98 as applicable even to

Chartered High Courts but to make the application subject

to Clause 36 of the Letters Patent. If, at any time, Clause 36

of the Letters Patent ceases to exist, Section 98 will come

into operation. It is to attain this particular result that the

explanation was added to Section 98 instead of saying that

Section 98 does not apply to Chartered High Courts at all. I

would answer the question referred to us thus:”

43. Clause 36 of Amended Letters Patent of the High Court of

Madras, which has been made applicable to the High Court of

Andhra Pradesh, reads as under:-

“36. Single Judge and Division Courts:-- And we do

hereby declare that any function which is hereby directed to

be performed by the said High Court of Judicature at

Madras, in the exercise of its original or appellate

jurisdiction, may be performed by any Judge, or by any

Division Court thereof, appointed or constituted for such

purpose in pursuance of Section 108 of the Government of

India Act, 1915 and in such Division Court is composed of

two or more Judges, and the Judges are divided in opinion

as to the decision to be given on any point, such point shall

be decided according to the opinion of the majority of the

39Page 40

Judges, if there shall be a majority, but if the Judges should

be equally divided they shall state the point upon which

they differ and the case shall then be heard upon that point

by one or more of the other Judges and the point shall be

decided according to the opinion of the majority of the

Judges who have heard the case including those who first

heard it.”

44. Learned senior counsel appearing for the respondents in

response to the argument on Section 98 of the CPC, submitted

that in view of Sub-section (3) of Section 98, the provision of

Section 98 of the Code will not apply. Ld. senior counsel

submitted that this Court cannot go into that question for the

reason that the appellants neither raised this point before the

third judge who passed the impugned judgment nor the

appellants have been granted permission to raise the question

of application of Section 98 of the CPC. According to the

learned counsel having regard to the procedure provided

under the Letters Patent of the High Court, the objection

cannot be entertained.

45. Firstly, we shall discuss the decisions cited by the

learned counsel on both sides. In the case of Tej Kaur and

40Page 41

another (supra), a Division Bench of this Court has

considered the provisions of Section 98 of CPC. The Attorney

General put reliance on paragraphs 3, 6 and 9 of judgment

whereas Dr. Singhvi relied on paragraphs 8 and 9 of the

judgment. Hence we extract paras 3, 6, 8 and 9 of judgment

which are as under:-

“3. The question, therefore, is whether the finding of the

court below that the will has not been proved is a finding of

fact? If so, whether in the absence of majority opinion of the

Division Bench, the confirmation of the decree of civil court

is valid in law? Thirdly, whether this Court can examine the

case on merits to find whether the will is validly proved, in

which event would sub-section (2) of Section 98 be not

rendered otiose or ineffective?

6. In other words, the difference of opinion between Judges,

who constitute the Bench hearing the appeal, on a point of

law alone would be referred to a third or other Judges

according to the rules of that High Court. By implication, on

question of fact, when there is no majority opinion varying or

reversing the decree appealed from, such decree should be

confirmed.

8. The ratio in Jayanti Devi v. Chand Mal Agrawa which has

been referred by Shri Bagga, is inapplicable to the point in

issue. Therein, because of what has been provided in subsection

(3) of Section 98 CPC, the letter patent power was

taken aid of and it was held that the letter patent court was

not confined to the hearing of the appeal by the third Judge

on the question of law only, on which the Judges hearing the

appeal had differed. Such a difference of opinion could be on

a question of fact as well. It could, thus, be seen that the

reference there was under the letters patent which power

has been expressly preserved by sub-section (3) of Section

98. But in the case at hand, the letters patent power was not

available and therefore, by operation of sub-section (2) of

Section 98, the decree of the court below stands affirmed.

41Page 42

9. The question then is whether this Court could nullify the

scheme of Section 98(2) by examining the dispute on merits

and by implication render sub-section (2) surplusage or

otiose. In our considered view the contention of the appellant

cannot be accepted. It is true that in a case where there is

difference of opinion among the Judges of the High Court,

the power of this Court under Article 136 is wide enough to

test the correctness of the conclusion reached by the

differing learned Judges as pointed out by this Court in Dr

Prem Chand Tandon case. This proposition is

unexceptionable but this Court had no occasion in that case

to consider the scope of sub-section (2) of Section 98. The

language employed in sub-section (2) is imperative and in

mandatory terms. The object appears to be that on a

question of fact when there is a difference of opinion, the

view expressed by the court below, in the absence of a

majority opinion, needs to be given primacy and confirmed.

When such is the animation, this Court cannot enlarge the

scope of the controversy by itself examining the correctness

of the finding of fact and decide which view of the two is

correct. This would be in direct negation of the legislative

mandate expressed in sub-section (2) of Section 98 of the

CPC.”

46. From perusal of the above quoted paragraphs in the

decision given in Tej Kaur (supra) it is manifest that this

Court considered the procedure to be adopted as contemplated

under Section 98 of the Code and held that for those courts,

the procedure of which is governed by Letters Patent, the

power has been expressly reserved by Sub section (3) of

Section 98. Hence, in the instant case the procedure provided

in the Letters Patent of the High Court shall prevail.

42Page 43

47. Reference has also been made to the case of P.V.

Hemalatha (supra) where the judges in appeal constituting a

Division Bench pronounced two separate judgments wherein

they differed in almost all the issues arising in the case. A

point was raised that since the judges comprising the Division

bench delivered two separate judgments and have not

identified the difference on any point of law, the decree of the

court below is liable to be confirmed in terms of Section 98(2)

of the Code. This Court held that in such cases the procedure

is to be adopted as contemplated under Section 98 of the Code

having regard to the fact that the provisions of Clause 36 of

Letters Patent of the Madras High Court is not applicable.

This Court held:-

“17. Admittedly, the High Court of Kerala is a newly

constituted court for the newly formed State of Kerala in

1956 and governed by the Kerala Act. The said High Court

does not have any Letters Patent — it being not a Chartered

High Court continuing from the British period. In such a

situation, it is submitted that the learned Judges were

perfectly justified in giving effect to the provision of subsection

(2) of Section 98 of the Code and coming to the

conclusion that because of the two different judgments

passed by them the decree of the subordinate court was

43Page 44

liable to be confirmed. On behalf of the respondent very

strong reliance has been placed on a two-Judge Bench

decision of this Court in the case of Tej Kaur v. Kirpal Singh

in which in a similar situation the Supreme Court held that

the provision of sub-section (2) of Section 98 would be

attracted and in view of the two conflicting judgments passed

by two Judges who differed on issues of fact, the judgment of

the subordinate court is liable to be confirmed.

35. We have reached the conclusion as stated above that

clause 36 of the Letters Patent of the Madras High Court on

“practice and procedure” and “powers of Judges” is not

applicable to any part of the new territory of the State of

Kerala and to the new High Court of that State. Law with

regard to the “practice, procedure and powers of Judges” as

contained in the Kerala Act, would be applicable uniformly to

all the territories now forming part of the new State of Kerala

and the High Court established for it. We have also held even

on assumption that Section 23 of the Travancore-Cochin Act

is saved under Section 9 of the Kerala Act that since the said

Kerala Act is a “general law”, it has to give place to Section

98 of the Code of Civil Procedure which is a “special law”

applicable to civil appeals arising from civil suits.”

48. In the case of Pankajakshi (Dead) Through Lrs. and

Others (supra), this Court followed the earlier two decisions in

Tej Kaur and P.V. Hemalatha since the practice and

procedure of Letters Patent was not applicable.

49. A comparative study of Section 98 CPC vis-à-vis clause

36 of the Amended Letters Patent of the Andhra Pradesh High

Court will reveal that while Section 98 provides that in a case

44Page 45

where the Judges comprising the Bench differ in opinion on

point of law, they may state the point of law upon which they

differ and the appeal shall be heard upon that point only by

one or more of the other Judges, such point shall be decided

according to the opinion of the majority of the Judges.

Whereas Clause 36 of the amended Letters Patent provides

that in a case the Division Court exercising its original or

appellate jurisdiction hears the appeal and the Judges are

divided in opinion as to the decision to be given on any point,

such point shall be decided according to the opinion of

majority of Judges. If the Judges are equally divided they

shall state the point upon which they differ and the case shall

then be heard on that point by one or more of the Judges and

the point shall be decided according to the opinion of majority

of Judges who have heard the case including those who first

heard it.

50. Section 98(3) of the Code was added in 1928 by the

repealing amending Act (18 of 1928). The amended Sub-

45Page 46

section (3) of Section 98 was considered by a Full Bench of the

Madras High Court in Dhanaraju vs. Motilal Daga and

Another, AIR 1929 (Mad.) 641 (F.B.). The Division Bench of

the High Court of Patna in the case of Bokaro and Ramgur

Ltd. vs. State of Bihar, AIR 1966 (Patna) 154, considered the

similar question and observed:-

“The view which I have expressed above is supported by a

Full Bench decision of the Madras High Court reported in

Dhanaraju v. Bala-kissendas Motilal : AIR 1929 Mad 641

FB) : ILR Mad 563, and by two decisions of this Court; one

reported in Debi Prasad Pandey v. Gaudham Rai : AIR 1933

Pat 67 at p. 69 : ILR Pat 772 and the other in Rajnarain v.

Saligram ILR Pat 332. Clause 28 governs not merely Clause

10, but also Clause 11 of the Letters Patent which ordains

that this Court is a Court of Appeal from the Civil Courts of

the State of Bihar. Clause 28 of the Letters Patent being

wider in scope than section 98 of the Code of Civil

Procedure, because it covers points of fact as well as points

of law, a reference to a third Judge in the present appeal is

not incompetent merely because there has been no

difference of opinion between Sinha and S. N. P. Singh, JJ.

on a point of law. The cases relied upon by the learned

Advocate General were decided before the insertion of Subsection

(3) in Section 98 of the Code and they have become

obsolete. I am, therefore, of the opinion that the point raised

by the learned Advocate General is without merit and must

be overruled, and I must deal with this appeal as one

referred to me under Clause 28 of the Letters Patent. I must,

however, indicate that I ought to deal with only such point or

points in this appeal upon which there has been a difference

of opinion between Sinha and S. N. P. Singh, JJ. This is

clear not only from the terms of Clause 28, but also from the

decision of this Court in Zainuddin Hussain v. Sohan Lal. In

that case, Rai, J. indicated that it is not open to a third

Judge to adjudicate upon a point on which there is no

46Page 47

difference of opinion between the two Judges who heard the

appeal in the first instance. Similar view was taken by a

special Bench of the Allahabad High Court in Akbari Begam

v. Rahmat Husain : AIR 1933 All 861 SB : ILR All 39.”

51. A similar question with regard to the interpretation of

Section 98 CPC and the Patna High Court Rules came for

consideration before the Patna High Court in the case of Smt.

Jayanti Devi vs. Srichand Mal Agrawal and Ors. AIR 1984

Patna 296. Noticing the provision of High Court Rules, the

Court came to the conclusion that the Letters Patent of the

Court has not confined the hearing of the appeal by a third

Judge on the questions of law only upon which the Judges

hearing the appeal differ. Such a difference of opinion can be

on question of facts also. The High Court is also of the view

that there is no imperative prescription that the difference of

opinion has to be formulated by a joint order. If such

difference or differences is expressly enumerated in a joint

order it may serve better. Still absence of such joint order will

not vitiate the reference. The Court observed:-

47Page 48

“It may be seen that the Letter Patent of the Court has not

confined the hearing of the appeal by a 3rd Judge on, the

questions of law upon which the Judges hearing the appeal

differ. Such a difference of opinion can be on a question of

fact also. That the Judges should record expressly in a joint

order what their differences are may be desirable. But there

is no imperative prescription that the difference of opinion

has to be formulated by a joint order. If such difference or

differences is expressly enumerated in a joint order, it may

serve better and the 3rd Judge hearing the appeal may not

be required to investigate into their respective judgments to

discover the difference or differences of opinion. Still absence

of a joint order specifying the difference as envisaged under

the proviso to Sub-section (2) of Section 98 of the Code

cannot be taken, to vitiate the reference or the hearing of the

appeal by a third Judge. This view is supported by a

judgment by Lalit Mohan Sharma, J. in Rulia Devi v.

Raghunath Prasad, I am in respectful and complete

agreement with the views expressed in Rulia's case and find

no substance in the preliminary objection of Mr. Chatterjee

in this regard. Mr. Chatterjee's further contention that there

being no majority, and the reference being invalid, the

judgment and decree of the court below should be deemed to

be confirmed, is also devoid of say merit. Any majority that

may conclude the judgment can be noticed only after the

disposal of the appeal by the third Judge and not before

that. Such a conclusion can be arrived at only if any views

do not agree with the views of the Hon'ble Judge taking the

view that the judgment and decree should be reversed. The

preliminary objection is accordingly disposed of.”

52. In the case of Reliance Industries Ltd. vs. Pravinbhai

Jasbhai Patel, 1997(7) SCC 300, the provision of Section 98

came for consideration before this Court as to the applicability

of the Section in the matter of reference to a third judge, the

Court held:-

48Page 49

“11. As laid down by Section 4 sub-section (1) CPC itself in

the absence of any specific provision to the contrary, nothing

in the Code shall be deemed to limit or otherwise affect any

special or local law now in force or any special jurisdiction or

power conferred, or any special form of procedure

prescribed, by or under any other law for the time being in

force. It cannot be disputed that Letters Patent as applicable

to the High Court of Gujarat is a special law in force which

confers special jurisdiction or power and lays down special

form of procedure prescribed therein for governing the cases

where the two learned Judges forming the Division Bench of

the High Court differed on a question of law or fact. Under

such circumstances clause 36 of the Letters Patent laying

down the special procedure for meeting such a contingency

was required to be followed without in any way being

impeded or restricted or being cut across by the procedural

requirements laid down by Order 47 Rule 6 CPC. The said

provision on its own would apply to those courts which were

governed strictly by the procedure of Code of Civil Procedure

and had no provision of Letters Patent Charter to fall back

upon. In other words chartered High Courts governed by the

Letters Patent which were original chartered High Courts or

which were the successor High Courts like the Gujarat High

Court, would be governed by the special procedure laid down

by clause 36 of the Letters Patent and that would remain

saved by the operation of Section 4 sub-section (1) CPC

noted above. It is, therefore, not possible to agree with the

reasoning of the High Court in the impugned judgment to

the effect that clause 36 of the Letters Patent does not deal

with a situation where there is conflict of decisions between

the two learned Judges of the Bench sitting in review against

the earlier judgment of the Division Bench of the High Court.

xxxxx

Moreover the fact remains that by the enactment of Section

98(3) CPC whatever doubt earlier remained in connection

with this controversy was put at rest by the legislature and

the view propounded by the Privy Council got statutory

recognition by the amendment of Section 98 and the

insertion of sub-section (3) thereof.”

49Page 50

53. In the case of Rulia Devi and others vs. Raghunath

Prasad, AIR 1979 Patna 115, a Bench of the Patna High

Court while considering the provision of Section 98 CPC vis a

vis clause 28 of the Letters Patent held:-

“It will be observed that the Letters Patent does not confine

the point of difference to a question of law and since it is not

subject to any limitation mentioned in Section 98 of the Civil

P. C., it must be held that a difference between the Judges

constituting a Division Bench, for the purpose of reference to

a third Judge, can be on a question of fact also. However, in

the present case, the learned Judges did not jointly

formulate the points of difference, after delivering their

separate judgments. They have in the order-sheet merely

stated that as they differed the case should be placed before

the Hon'ble the Chief Justice for placing it before a third

Judge.

7. Mr. Yogendra Mishra, appearing for the plaintiffrespondent

raised a preliminary objection that since the

points were not stated by the Bench, the reference to the

third Judge was illegal. I do not see any merit in this

argument inasmuch as the points, although not expressly

enumerated by a joint order, are apparent from the

judgments. It is nowhere peremptorily prescribed that the

difference of opinion has to be formulated by a joint order.

Besides, the irregularity in not doing so, if at all, is of formal

nature and does not vitiate the proceeding including the

reference. On examining the observations contained in para

23 of the judgment of the Madras High Court in A. K.

Gopalan v. District Magistrate, Malabar (AIR 1949 Mad 596)

Mr. Mishra stated that he withdrew his objection and the

reference may be treated as good and be decided on merits.”

50Page 51

54. Coming back to the instant case, the two learned Judges

of the Division Bench passed separate judgments. One of the

learned Judges allowed the appeal and set aside the trial court

judgment, whereas another learned Judge affirmed the trial

court finding and dismissed the appeal. Both the learned

Judges differed not only on the point of facts but also on the

point of law. The learned Chief Justice, therefore, referred the

matter to the third Judge for deciding the appeal. The learned

third Judge, after going through the judgments of the learned

differing Judges, formulated various issues and recorded its

finding on all the points. The learned third Judge finally

upheld the finding recorded by one of the learned differing

Judges and allowed the appeal. In our considered opinion,

therefore, there has been complete compliance of Clause 36 of

the Letters Patent of the Andhra Pradesh High Court and the

impugned judgment cannot be vitiated on that account.

55. Now, we shall discuss the judgment and the findings

recorded by the two learned differing Judges of the High

51Page 52

Court. In the judgment rendered by Justice B. Prakash Rao

the following points have been formulated for consideration:-

a) Whether the plaintiffs have established the claim for

declaration of title in respect of the suit land.

b) Whether the plaintiffs are in possession of the suit

lands for claiming permanent injunction.

c) whether the suit lands are Jagir lands as contested by

the defendants?

d) Whether the relief of declaration of title can be granted

in the absence of truth of flow of title?

e) Whether non filing of ceiling declaration can have the

effect of waiver of title?

f) Whether the entries in the revenue records can be

basis for grant of a decree of declaration of title?

g) Whether the suit is barred by limitation and whether

the plaintiff’s are estopped from filing the suit since they had

earlier claimed for award of computation amount contending

that suit lands are Jagir lands?

h) Whether the judgment of the trial court warrants any

interference as regards the findings recorded there?

56. On consideration of the pleadings of the parties on the

point of change of survey number, the Court observed:-

“From a thoughtful consideration of the pleadings of the

parties, we find that the state has been searching for proper

defence to the suit. If defence of the state has been varying

from time to time. We are unable to understand as to how

land admeasuring 373.22 acres in Sy. No.613 of Nadergul

Village can be separately shown in new series of survey

numbers from 1 to 191. The village plan showing the

number of survey numbers has not undergone any change.

No supplementary sethwar has been issued and there is no

evidence on record that the original survey numbers i.e. 1 to

875, have been increased by another set of survey numbers

i.e. the new series survey numbers 1 to 191. Again the

pahanies filed by both parties disclose the existence of Sy.

No.613, they also disclose the existence of survey number

52Page 53

119 as two different extent of land, the original survey

number is admeasuring AC. 1.20 guntas. After the khasra

pahani, the same survey number 119 is shown as having an

extent of Ac.355.12 guntas. The plaintiffs have impleded the

survey department of the state as one of the defendants but

no person from such a department has been examined as

witness. The oral evidence adduced by the Sate consists of a

Mandal Revenue Officer and Legal Officer. None of these

witnesses are competent to give evidence about the survey

numbers in village, the sub division of survey numbers, the

settlement operations where the total survey numbers in the

village can get decreased or increased. On one hand, the

State is contesting the suit on the ground that Nadergul

Village is Jagir and/or Inam and/or confiscated by the State.

In any of these eventualities, there cannot be change of

location and existence together with extent of survey No.613.

We are at a loss to understand as to how there can be

duplicate survey numbers in the same village. Similarly it is

understandable as to how patta land can be confiscated and

under which law such an action can be justified.”

57. After considering Exhibits A-5 and A-6 which are Setwar

and Vasul Baqui, the learned Judge held that these

documents have not been challenged. So far Exhibit A-12

which is Khasra Pahani, the land of Raja Shivraj

Dharmavanth Bahadur are recorded in a separate series. This

document has also not been challenged by the defendant. The

learned Judge examined the written statement and observed:-

“Thus there is a clear admission in the written statement

that up to the khasra pahani, Raja Shivraj Dharmavanth

Bahadur recorded as pattadar of the suit land. As

commented by us earlier, there is no evidence that any

additional survey numbers added to the total survey

53Page 54

numbers 875 in Nadergul village. If that be so, it is the duty

of the state to explain as to what has happened to the vast

chunk of land which was part of survey No.613 of Nadergul

village. It is not explained as to why Raja Shivraj

Dharmavanth Bahadur lands were to be recorded in a

separate series of survey numbers from 1 to 194. The state

has not explained as to what is the extent of each of these

survey numbers 1 to 194. It is not the case of the state that

the village map of the Nadergul village has undergone a

change or that any re-settlement and survey operations were

carried out in Nadergul village. Hence, we have no

hesitation to hold that Raja Shivraj Dharmavanth Bahadur

was the pattadar of the suit land and he was khatadar for

payment of revenue (khata No.3).”

58. The learned judge further observed:-

“The learned Advocate General had vehemently submitted

that entries in Revenue Records can neither create title nor

they take away title. He has further submitted that in order

to make out a case of declaration of title, the plaintiff is

obligated to establish the flow of title by producing the link

documents and established that he has acquired ownership

from a valid person. On the other hand, the learned counsel

for the plaintiffs had submitted that in Telangana Area, the

matters of revenue were regulated by the A.P. (T.A.) land

Revenue Act 1317 F and various rules were made under the

said Act and the entries in Sethwar, vasulbaki and khasra

pahani cannot be construed as entries in yearly pahanies

and that the recording of a person as a pattadar under

Section 2(11) of the act, he is entitled to be declared as

owner of the said land, the plaintiffs have not placed by

evidence before us as to how Raja Shivraj Dharmavanth

Bahadur had acquired the suit lands. According to the

learned counsel for the plaintiff, the fundamental mode of

acquisition the most primitive mode of acquisition is

capturement and if the Ruler that Nizam acknowledges the

same, that would be sufficient to construed him as owner of

the land, the learned counsel for the plaintiff has placed

reliance on a Division bench of this Court reported in AIR

1970 AP 19 para 19. In the said judgment it has been held

that the act has defined the expression permanent Alienation

“in section 2 (o) to include any sale exchange or gift and any

54Page 55

transfer of a right of occupancy or of the patta of holding but

excluding any dispossession by will. It is therefore obvious

from the provisions of the Land Revenue Act any person is

legally entitled to be in possession, whether with the

permission of Tehsildar in respect of vacant lands under

Section 54 or of a pattadar who is in possession, has a right

of occupancy which is heritable and transferable under

section 58. It is this type of occupancy that is included in

the definition of permanent alienation” in Section 2(o) of the

Tenancy Act. The learned counsel for the plaintiffs has

placed reliance on section 2((11) of A.P. (T.A.) Land Revenue

Act with defines a pattadar which means the person who is

directly responsible to the Government for payment of land

revenue and whose names has been entered as such in

government records whether he be personally in possession

of the holding or thorough his Shikmidar . Section 24 of the

Act declares that all public roads, lanes, paths, bridges,

ditches, dikes, rivers, streams, tanks, ponds, canals, lakes

and flowing water and all lands, wherever situated, together

with all rights appertaining thereto are the property of the

Government excepting.”

59. Referring various decisions of the High Court and

Supreme Court, learned judge concluded that the entries in

Setwar and Vasul Baqui and Khasra Pahani are prepared

under the statute and hence these entries constitute title. The

learned Judge observed as under:

“We are unable to understand as to why the plaintiffs cannot

placed reliance on entries in the sethwar, vasulbaki and

khasra pahani which are exhibited as Ex.B19 (bunch of

pleaded). This is a very peculiar case where duplicated

survey numbers are pleaded by the State. It is not possible

to digest as to what has happened to the land in survey

No.613 (suit land) since it was specifically in existence with

Raja Shivraj Dharmavanth Bahadur as pattadar and

55Page 56

Khatadar up to the year 1954-55. Even if Nadergul village is

assumed as Jagir village or Inam village, the entire land in

Nadergul village must have the same consequence i.e.

getting vested in the State. But the written statement shows

that Raja Shivraj Dharmavanth Bahadur land are separately

shown in separate series of survey numbers from 1 to 194

with different owners. It is not the case of the state that it

has granted by assignment of the land in Nadergul village.

There is no possibility of a single survey number i.e. sy. No.

613 (suit land) getting covered either under the Hyderabad

Abolition of Jagir Regulation or the A.P. (T.A.) Abolition of

Inams Act 1955. At any rate the identity of land in Sy.

No.613 (suit land) as found in Ex. A.10 touch plan and

Exd.A9 village map cannot undergo any change whatsoever.

Ownership may change from one person to the other but the

land cannot change its location and identity when described

with reference a survey number. Hence, we are unable to

agree with the state that Ex. A.5 and A 6 cannot be taken as

title documents. Hence, we hold that Raja Shivraj

Dharmavanth Bahadur was the pattadar, khatadar and

owner of the suit land and since the plaintiffs are the

successors of Raja Shivraj Dharmavanth Bahadur, they are

the successors to claim title of the suit land. We reject the

contention of the state that the lands of Raja Shivraj

Dharmavanth Bahadur are recorded separately in a new

series of survey numbers i.e. 1 to 194 since there is no iota

of evidence about the creation or existence of such survey

numbers. It is now possible to comprehend that survey

numbers would be changed when it relates to the title of the

person. The object of conducting survey of land is to

maintain the identity of the land and hence the endorsement

in the khasra pahani that lands of Raja Shivraj

Dharmavanth Bahadur are shown separately is of no

intelligible meaning. The evidence of DW 1 and DW2 has not

thrown any light on these aspects. It is to be remembered

that the State has pleaded that the lands of Raja Shivraj

Dharmavanth Bahadur are recorded in separate series of

survey numbers from 1 to 194 (written statement para 4)

and hence the burden is upon the state to prove the same

and explain as to what had happened to the lands of Raja

Shivraj Dharmavanth Bahadur. No such attempt has been

made by the State and hence we are constrained to reject the

contention of the state after the khasra pahani, Raja Shivraj

56Page 57

Dharmavanth Bahadur’s land in Sy. No.613 of Nadergul

village is shown separately in a fresh series of survey

numbers i.e. 1 to 194.”

60. On the issue whether the Nadergul Village is a Jagir

village, the Court held:-

“From the documentary evidence adduced by the State, there

is no basis to construe that Nadergul village is a Jagir

village. We have earlier observed that if a village happens to

be a jagir village, all the survey numbers of the village should

have the same effect by virtue of the Jagir Abolition Law.

The state has contended that there are private patta lands in

Nadergul village in other survey numbers. Hence it is

absurd to appreciate that survey No.613 of Raja Shivraj

Dharmavanth Bahadur alone can be construed as a Jagir.

Above all, the state has not chosen to partify its pleading by

adducing the best evidence i.e. any notification showing that

the suit lands are jagir lands. Hence we have no hesitation

to hold that the suit land is not Jagir land and hence it

cannot be claimed by the State.”

61. On the issue of maintainability of suit, the learned Judge

finally held that:-

“We have already noticed the judgment of the Nazim Atiyat,

which has rejected computation amount for List III villages

in Ex.B1. Hence there is nothing improper in filing the

present suit for declaration of title. It is settled law that a

claim for declaration of title never gets extinguished by efflux

of time. Even under Article 65 of the Limitation Act, 1963 the

Limitation runs only from the date on which the possession

of the defendants becomes adverse to the plaintiffs. Hence

we hold that the plaintiffs are not disqualified from filing the

suit even if they had approached the Nazim Atiyat under Ex.

B1 proceedings.”

57Page 58

62. On these findings, the learned judge allowed the appeal

and set aside the judgment passed by the Trial Court.

63. The second learned Judge, Justice R. Kantha Rao,

delivered a separate judgment, disagreeing with all the

findings recorded by Justice B. Prakash Rao. Learned Judge

firstly held that the suit for declaration of title as owners of the

property, the burden is on the plaintiffs to prove their title of

ownership. The learned Judge referring various judgments

rendered by this Court and the High Court came to the

conclusion that the holder of General Power of Attorney (GPA)

is not competent to give evidence. The holder of GPA cannot

be substituted for the said purpose. Learned Judge further

noticed that the legal heirs of Raja Sivaraj Bahadur

participated in the Inam Enquiry before the Nizam Atiyat to

declare their rights and fix the commutation in respect of Jagir

lands. The Nizam Atiyat by judgment dated 20.07.1958 (Ex.B-

1) passed order for payment of commutation amount in

respect of Jagir villages. Some of the plaintiffs preferred

58Page 59

appeal against the judgment of the Nazim Atiyat to Board of

Revenue and this appeal was dismissed. Thereafter, some of

the plaintiffs filed the writ petition, which was allowed and the

matter was remanded to the Board of Revenue for fresh

disposal. Further, the appeal was ultimately dismissed for

non-prosecution. According to the learned Judge, therefore

the order passed by the Appellate Authority dismissing the

appeal for non-prosecution will operate as res judicata.

64. The learned Judge also disagreed with the another Judge

on the finding that when a person is recorded as Pattedar and

Khatadar he has to be considered to be the owner of the

property and there is no necessity of proving the source of the

acquisition of the land. According to the learned Judge, mere

marking of documents such as Ex.A-5, certified copy of

Sethwar relating to Sy.No.613 of Nadergul Village, Ex.A.6,

certified copy of the Vasulbaki Register of Sy.No.613 of

Nadergul village and Exs.A-12 to A-14 – certified copies of

pahanies where name of Raja Sivaraj Bahadur is found, the

59Page 60

plaintiffs are not entitled for declaration of title. The learned

Judge is of the view that plaintiffs failed to adduce any positive

evidence to prove title and possession of the suit property.

Accordingly, he by his judgment dismissed the appeal.

65. It is pertinent to mention here that on perusal of two

separate judgments written by learned Judges of the Division

Bench, they have not agreed on any point of facts or point of

law rather they have decided the appeal by expressing their

separate views. This may be the reason when the file was

placed before the Chief Justice, he referred the matter to a

third Judge for deciding the appeal after considering the

different views given by the two learned Judges in the separate

judgments written and signed by them.

66. Justice A. Gopal Reddy, before whom the appeal was

referred and finally placed for hearing, has considered the two

judgments delivered by the differing Judges. The third Judge

considered in detail the judgment given by Justice B. Prakash

60Page 61

Rao, who extensively dealt with the entire facts of the case and

the evidence brought on record. After discussing the

pleadings of the parties in detail, the learned Judge framed the

following eight points for consideration:

“a) Whether the plaintiffs have established the claim for

declaration of title in respect of the suit land.

b) Whether the plaintiffs are in possession of the suit

lands for claiming permanent injunction.

c) whether the suit lands are Jagir lands as contested by

the defendants?

d) Whether the relief of declaration of title can be granted

in the absence of truth of flow of title?

e) Whether non filing of ceiling declaration can have the

effect of waiver of title?

f) Whether the entries in the revenue records can be

basis for grant of a decree of declaration of title?

g) Whether the suit is barred by limitation and whether

the plaintiff’s are estopped from filing the suit since they had

earlier claimed for award of computation amount contending

that suit lands are Jagir lands?

h) Whether the judgment of the trial court warrants any

interference as regards the findings recorded there?”

67. At the very outset, the learned Judge noticed the

admission made in the written statement that in Khasra

pahani of 1954-55 late Raja Sivaraj Dharmavanth Bahadur

was recorded as Pattadar and Khatadar of S.No.613

admeasuring AC.373-22. It has further been admitted that in

the said Khasra Pahani survey numbers the name of Raja

61Page 62

Sivaraj Bahadur are recorded separately in a new series of

Survey Numbers from 1 to 194. Further in Ex.12(a), which is

a Khasra Pahani, it is recorded as ‘cultivated self’ and it is

mentioned as Inam Dastagardan (suspense account) and in

which Pattadar’s name is mentioned as “Sivaraju Ilaka” and

survey numbers of Siva Raju Bahadur are written separately.

The learned Judge further noticed that even in pahani for the

year 1960-61 of Nadergul Village covered under Ex.12(b),

which is mentioned at serial no.2, Survey No.613 Sivaraju

Ilaka. The learned Judge further came to the following

finding:

“In pahani pathrika for the year 1949-50 covered under

Ex.19(a), S.No.613 is shown as Kancha Siva Raj

Dastagardan admeasuring AC.323-22. In the pahani patrika

for the year 1950-51 covered under Ex.B-19, S.No.613

admeasuring Ac.373-22 is classified as “Kancha Sevaraj

Munzabta Confiscated”, and name of Khathadar is

mentioned as Kancha Severaj. In th Khsra Pahani for the

year 1954-55 covered under Ex.B-19(a), it was shown as

S.No.119 and extent is shown as Ac.355-12 guntas and

column No.6 was shown as Sirkari and land name is Khas

Sagu (cultivated self). D.Ws.1 and 2, who entered into the

witness box have not clarified as to how two different Khasra

pahanies were maintained, namely, in the khasra pahani for

the year 1954-55, Raja Sivaraj Dharmavanth Bahadur has

been recorded as Pattadar and Khatadar of S.No.613

admeasuring 373-22, another Khasra Pahani covered under

Ex.B-19(a), S.No.119 of Nadergul is admeasuring Ac.355-12

guntas which is Sirkari but Sivaraj Ilaka. It is admitted by

62Page 63

the defendants that total survey numbers in Nadergul village

are 875. The village map which was marked by the plaintiffs

shows original 875 survey numbers and the new series of 1

to 194 survey numbers. It is admitted in the first written

statement filed by the fifth defendant that suit land was

confiscated to the State and how the same was confiscated

to the State and under what proceedings the land was

confiscated has not be stated. In the amended written

statement, State has taken several alternative and

inconsistent defences by contending that Nadergul village is

Inam Dastagardan. Even if we accept that is Inam

Dastagardan, it is only a suspense account and rights of the

parties have to be determined under Inams Abolition Act.

There is no proof that the land has been treated as

government land and confiscated to the State. Once it is

recorded that S. No.119 admeasuring Ac.1-20 guntas

belongs to Gaddam Mallaiah, how the same survey Number

i.e. 119 can be recorded as having an extent of Ac.355-12

guntas, shown it as government land. D.Ws.1 and 2 have

not properly explained the same in their evidence.”

68. The learned Judge on the issue with regard to Atiyat

proceedings in respect of Jagir land came to the following

finding:

“It is relevant to note here, Baga Nadergul village has been

mentioned in List-III under the heading Tahrir Pawanni

Jagirs under Serial No.8. Therefore, no commutation

amount has been fixed for list III villages, which is subject to

further enquiry with regard to the claim, if any filed by subgrants

to prove their possession. By any stretch of

imagination, the heirs of Raja Shivaraj Dharmmavanth

Bahadur were awarded commutation amount to foreclose

their rights under the above proceedings. Even if the

appeals were dismissed after remand order passed by the

High Court, the commutation amount, if any awarded under

Ex.B-2 is only for the lands which are not covered by

proceedings under Ex.B-1. Further, as per Khasra Pahani,

the land revenue account of late Raja was Khata No.3. The

63Page 64

said fact has been admitted in the written statement.

Whereas Ex.B-2 and B-27 are in respect of Khata No.6,

which should obviously be different from the revenue

account of late Raja i.e. Khata No.3. Therefore, it can safely

be concluded that Exs.B-2 and B-27 do not pertain to the

lands of which late Raja was Khatadar/pattadar. Further, it

was categorically stated in NB(1) of Ex.B-2 that the award

will be implemented on the payments side after carefully

checking and reconciling the number of jagir villages as

furnished by the estate authorities with the list recently

received from the Atiyat Department, so as to keep the

commutation sum of villages shown in list No.III attached to

Nazim Saheb Atiyat’s L.No.1884 dt. 27-2-1958 in reserve as

ordered by the Board of Revenue in their letter

No.U/993/58/Atiyat dt.12-4-1958. So, the amounts so

mentioned are not conclusive but were ordered to keep in

reserve until rights of the parties are decided in separate

proceedings. Therefore, it is not open for the Government to

contend that the properties are confiscated or vest in the

Government in the light of the commutation award passed

by the Office of the Jagir Administrator, Government of

Andhra Pradesh, Hyderabad-Deccan dt.30.3.1959 (Exs.B-2

and B-27).”

69. The learned Judge has further taken notice of the fact

that of late the State Government, now, is claiming property by

rounding off the names of pattadars and others in the revenue

records without referring to any proceedings, which fact has

been observed by one of the decision in Syed Ahmad Hasan

case, 2011(4) ALT 262 (DB).

64Page 65

70. Finally, the learned Judge came to the following

conclusion:

“From the above discussion and the law laid down by this

Court as well as the Supreme Court, it is to be held that the

plaintiffs successfully demonstrated that the late Raja was

pattadar/khatadar of the land covered by S.No.613

admeasuring 373-22 guntas in the Khasra Pahani, the

presumption backward/forward can be applied in his favour

or in favour of his heirs that he or they continued to be

pattadar(s). Unless the State proves that the said land has

been confiscated or vest in the State under Jagir Abolition

Act on abolition of jagirs or for non filing of declaration, the

property vest in the Government under the provisions of

Andhra Pradesh Land Reforms (Ceiling on Agricultural

Holdings), 1973, mere mentioning “Sarkari” in subsequent

pahanies or giving duplication S.No.119, title of the original

owner will not vanish and it continues to be vest with them.

In Khasra Pahani for the year 1954-55 covered under

Ex.12(a), when it is stated that S.No.613 has been recorded

as “Self Cultivation Dastagardan” and numbers of the

Sivaraj Bahadur has been written separately and the same

has also been shown as S.No.119 under Ex.12(b). Therefore,

late Raja or his heirs continue(s) to be pattadar(s) for the

corresponding survey number and on changing also, but the

same cannot become the government property as contended

by the learned Advocate General. Further, the identity of

land in S.No.613, suit land, as found in Ex.A-10-touch plan

and Ex.A-9-village map cannot undergo any change

whatsoever and ownership may change from one person to

the other but the location of land and its identity with

reference to survey number cannot be changed. Therefore,

there is no further necessity for the plaintiffs to seek

declaration of their title except to seek correction of record of

rights recording the names of the heirs of late Raja i.e. the

plaintiffs. Thus, the plaintiffs are entitled for a declaration

for correction of the entries in the record of rights recording

the names of the legal heirs of late Raja and also injunction

restraining the defendants from interfering with the plaintiffs

peaceful possession.”

65Page 66

71. The learned third Judge, therefore, agreed with the

finding recorded by one of the Judge, Justice B. Prakash Rao

and upheld the conclusion arrived at by him and consequently

allowed the appeal.

72. We have meticulously perused the pleadings of the

parties, and the evidence, both oral and documentary adduced

by them. We have also gone through the findings recorded by

the trial court, the findings recorded in two separate

judgments passed by the Division Bench of the High Court

and finally the impugned judgment passed by the third

learned Judge of the High Court. The third learned Judge to

whom the matter was referred has agreed with and upheld the

finding recorded by one of the judges of the Division Bench

and allowed the appeal decreeing the suit filed by the plaintiffrespondents.

73. The plaintiff-respondents filed the suit for correction and

rectification of record of right in respect of S.No.613

66Page 67

measuring 373.22 guntas of land which was recorded in the

name of the predecessors of the plaintiffs and the same alleged

to have been illegally rounded up by the Revenue authorities

and a new S.No.119 was created in favour of the State without

any notice and legal proceedings.

74. It has not been disputed by the appellant-State that the

suit land comprised within S.No.613 measuring 373.22 guntas

was held and possessed by Raja Shiv Raj Bahadur who was

the Khatadar and Pattadar of S.No.613 of Village Nadergul. It

is also not in dispute that succession of the Estate of Late Raja

Shiv Raj Bahadur was declared by a Royal Firman of the

Nizam in favour of Raja Dhiraj Karan, Dharam Karan,

Mehboob Karan and the heirs of Manohar Raj vide Firman

dated 4th Ramzan 1359 Fasli. On the death of Raja the

succession of the Estate was granted by the Royal Firman in

favour of the sons of the two brothers and by subsequent

Firman in favour of Pratap Karan, who is one of the plaintiffs.

67Page 68

75. It has been admitted in the written statement that in the

Setwar and Vasool Baqui, the name of Raja was recorded as

the owner of the said S.No.613. Subsequently, in the Khasra

Pahani which is the basic record of right prepared by the

Board of Revenue, Andhra Pradesh for the year 1954-55 the

name of Raja Shiv Raj Bahadur was entered as the absolute

owner and possessor of the suit land. Hence, the title of the

owner supported by various documents including the Khasra

Pahani, which is a document of title has been proved beyond

doubt.

76. Recently, in the case of Collector vs. Narsing Rao,

(2015) 3 SCC 695, this Court (one of us-Hon’ble C. Nagappan,

J. was a party) had considered a similar question where the

challenge to the title of pattadar by the Government was

negatived and this court held :-

“13. Consequent to the merger of Hyderabad State with India

in 1948 the Jagirs were abolished by the Andhra Pradesh

(Telangana Area) (Abolition of Jagirs) Regulation, 1358 Fasli.

“Khasra pahani” is the basic record-of-rights prepared by the

Board of Revenue Andhra Pradesh in the year 1954-1955. It

was gazetted under Regulation 4 of the A.P. (Telangana Area)

Record-of-Rights in Land Regulation, 1358 F. As per

68Page 69

Regulation 13 any entry in the said record-of-rights shall be

presumed to be true until the contrary is proved. The said

regulation of 1358 F was in vogue till it was repealed by the

A.P. Rights in Land and Pattadar Pass Books Act, 1971,

which came into force on15-8-1978. In the 2nd Edn. (1997)

of The Law Lexicon by P. Ramanatha Aiyar (at p. 1053)

“Khasra” is described as follows:

“Khasra.—Khasra is a register recording the incidents of a

tenure and is a historical record. Khasra would serve the

purpose of a deed of title, when there is no other title deed.”

77. One of the Judges of the Division Bench after considering

the facts of the case and discussing elaborately the oral and

documentary evidence recorded a finding with regard to the

title in respect of S.No.613 in favour of the plaintiffs. The

third Judge in the impugned judgement has also discussed

the evidence and finally upheld the finding recorded by one of

the Judges of the Division Bench. We do not find any reason

to differ with the finding recorded by the two judges of the

High Court on the issue of title of the plaintiffs predecessors

over the suit land.

78. Besides the above, it has not been denied by the

appellant that there is an endorsement in the said Khasra

Pahani, Survey No.613 admeasuring AC 373.22 is recorded as

69Page 70

“cultivated self’ and in column 7 it is mentioned that Inam

Dastagardan (suspense account), Exhibit 12(a). The

appellant-State have totally failed to prove as to under which

proceeding and under what circumstances, the suit land was

suddenly shown as Government land. No proceeding

whatsoever was initiated before the alleged confiscation of the

suit land. Admittedly, Survey No.119 admeasuring 1.20

guntas belonged to one Gaddam Mallaiah which is evident

from the revenue record. We have failed to understand as to

how another Survey No.119 came into existence showing

entire suit land to the extent of AC 355.12 guntas treating it

as Government land.

79. Mr. V. Giri, learned senior counsel appearing for the

appellant, contended that under the Jagir Abolition Regulation

the suit land is vested in the State. Consequently, the matter

was referred to Atiyat proceeding for commutation of

compensation it was only because the sanat has not proved

70Page 71

the claim for compensation in respect of suit land was

rejected.

80. We are unable to accept the submission made by Mr.

Giri, learned counsel for the appellant. From perusal of

exhibit B-1 which is the judgment of Nizam Atiyat dated

20.1.1958 it is evident that the mass is comprised of Jagir,

Rusums and Inam land. The High Court in the impugned

judgment has rightly observed:-

“It is relevant to note here, Baga Nadergul village has been

mentioned in List-III under the heading Tahrir Pawanni

Jagirs under Serial No.8. Therefore, no commutation

amount has been fixed for list III villages, which is subject to

further enquiry with regard to the claim, if any filed by subgrants

to prove their possession. By any stretch of

imagination, the heirs of Raja Shivaraj Dharmmavanth

Bahadur were awarded commutation amount to foreclose

their rights under the above proceedings. Even if the

appeals were dismissed after remand order passed by the

High Court, the commutation amount, if any awarded under

Ex.B-2 is only for the lands which are not covered by

proceedings under Ex.B-1. Further, as per Khasra Pahani,

the land revenue account of late Raja was Khata No.3. The

said fact has been admitted in the written statement.

Whereas Ex.B-2 and B-27 are in respect of Khata No.6,

which should obviously be different from the revenue

account of late Raja i.e. Khata No.3. Therefore, it can safely

be concluded that Exs.B-2 and B-27 do not pertain to the

lands of which late Raja was Khatadar/pattadar. Further, it

was categorically stated in NB(1) of Ex.B-2 that the award

will be implemented on the payments side after carefully

checking and reconciling the number of jagir villages as

furnished by the estate authorities with the list recently

71Page 72

received from the Atiyat Department, so as to keep the

commutation sum of villages shown in list No.III attached to

Nazim Saheb Atiyat’s L.No.1884 dt. 27-2-1958 in reserve as

ordered by the Board of Revenue in their letter

No.U/993/58/Atiyat dt.12-4-1958. So, the amounts so

mentioned are not conclusive but were ordered to keep in

reserve until rights of the parties are decided in separate

proceedings. Therefore, it is not open for the Government to

contend that the properties are confiscated or vest in the

Government in the light of the commutation award passed

by the Office of the Jagir Administrator, Government of

Andhra Pradesh, Hyderabad-Deccan dt.30.3.1959 (Exs.B-2

and B-27).”

81. The learned Judge of the High Court in the impugned

judgment has taken judicial notice of the fact that the

Government, now-a–days is claiming property by rounding off

the names of Pattadars and others in the Revenue Records

without referring to any proceedings, which fact has also been

observed in a Division Bench judgment of the Andhra Pradesh

High Court in the case of Syed Ahmad Hasan, 2011(4) ALT

262.

82. Both the trial court and the learned Judge of the Division

Bench, who affirmed the finding of the trial Court have failed

to take into consideration the relevant provision of the

Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli and

72Page 73

held that by the said Regulation, all Jagir land became the

Government land. Sections 17 and 18 of the Jagir Abolition

Regulation read as under:-

“17. Home-farms.--

(1) Nothing in this Regulation shall affect the home farm

(seri Khudkasht) of a Jagirdar or Hissedar which, subject to

any law for the time being in force, he shall continue to

hold, -

(a) where the village in which the farm

is situate has been brought under

survey and settlement whether before

or after the appointed day, in

accordance with the terms recorded at

the time of such survey and settlement;

(b) for so long as the village has not

been brought under survey and

settlement, in accordance with the

terms and conditions prevailing

immediately before the appointed day.

(2) For the purposes of sub-section (1) the extent and

boundaries of the home-farm of a Jagirdar or Hissedar shall

be such as the Jagir Administrator may by order

determine :

Provided that no forest or waste land shall be included in

any home-farm.

18. Personal property and liabilities not affected.--

Nothing in this Regulation shall affect, -

(a) the personal property of a Jagirdar or

Hissedar or any property other than the

Jagir held by a Jagirdar on behalf of the

Hissedar, or

(b) any liability of a Jagirdar or Hissedar

in respect of any loan taken from

Government.”

73Page 74

83. From bare perusal of the aforesaid provision it is clear

that such land which has been brought under survey

settlement and record of right has been prepared in the name

of the land owner in respect of self cultivated land shall have

no effect on the provisions of Jagir Abolition Regulations.

84. On the finding recorded by the Trial Court on the issue of

possession, the plaintiff produced evidence stating that for

irrigation purpose on the land, 18 bore-wells have been dug,

some bore-wells were dug-up in 1980 and some in 1990s and

5 during the last five years. It has also come in evidence that

the plaintiff obtains three service connections for the borewells

in the name of the deponent. The Trial Court took notice

of the fact that the defendant State has admitted that both

Sethwar and Wasool Baki do contain the name of Shivraj

Bahadur, the truth of these documents and the correctness of

entries therein are not in dispute. The only contention of the

State was that these are the records long prior to

independence and subsequently there have been several

changes and different revenue entries have been made and

there is no consistency in the Revenue entries recognizing the

title of the plaintiffs-predecessors interest.

85. The Trial Court considered the decision in the case of

State of Himachal Pradesh Vs. Keshav Ram and Ors.,

1997 (AIR) SC 2181 which was relied upon by the learned

Advocate General, the Trial Court held that the decision of the

Supreme Court (Supra) was not considered by the High Court

in the earlier decisions. The Trial Court erroneously held that

except entries made in Sethwar and Wasool Baqui, there are

no subsequent Revenue entries much less consistent entries

to corroborate the entries in Sethwar and Wasool Baqui to

establish title. The Trial Court recorded incorrect finding that

the subsequent Revenue entries do not contain the name of

Raja Shivraj Bahadur either pattadar/khatadar and in all the

records instead of his name the land was either shown as

Kancha-Sarkari or land confiscated by the government. The

Trial Court further erroneously held that even in the khasrapahani

of the year 1954-55 which is an important Revenue

Record, the name of Raja Shivraj Bahadur was not shown as

khatadar/ patadar.

86. In the decision relied upon by the Trial Court (AIR 1997

SC 2181), the fact was that the land originally belonged to the

plaintiff but in the year 1950, the name of the State was

recorded in the settlement paper as the owner. The plaintiff

applied for necessary corrections of the record and ultimately

in a suit, the Civil Court passed a decree in favour of the

plaintiff. The matter finally came to this Court. Allowing the

appeal, this Court held that since the name of the State was

recorded to be the owner of the land in the Record of right

prepared in the year 1949-50, the Court could not have

passed a decree for the change of Revenue record.

87. In the instant case, the fact is totally reverse. The Record

of right duly prepared in the year 1954-55, the name of the

original owner Raja Shivraj Bahadur was recorded in Revenue

Record as the owner which is evident from khasra-pahani. All

of a sudden without any Survey Settlement proceeding and in

absence of any proceeding for preparation of record of right,

the name of the plaintiff was removed and substituted with the

name of the State. Hence, the aforesaid decision of this Court

rather supports the case of the plaintiff.

88. Admittedly, Nadergul Village was brought under Survey

and Settlement in the Revenue record of right including

khasra-pahani land which were in original possession of Raja

Shivraj Bahadur was given corresponding Survey No. 613 and

in the remark column recorded as “Self Cultivation

Dastagardan” and the successor of Raja, namely, the plaintiff

continued possession of the suit land. Similarly, one Gaddam

Mallaiya was allotted Survey No. 119 in respect of his land

which is undisputedly come in his possession.

89. Considering all the documentary evidences together viz.,

Exh.P-2 Firman confirming the successor of Late Raja Dhiraj

Karan in favour of Pratap Karan, one of the plaintiffs, Exh.P-5

Sethwar for Survey No.613, Exh. P-8 Vasool Baqui,

substantiate the case of the plaintiff-respondents that the

Revenue Records were not correctly and properly maintained.

Further, the Touch Plan copies of Survey No.613 and 119 and

certified copies of Pahani in respect of the suit land show the

incorrect maintenance of Revenue Records. Certified copies of

Pahani for the year 1949-58 and 2000-01 of Survey No.119

make it clear that there is duplication of survey numbers.

Indisputably, Survey No.613 was suddenly rounded off stating

that the property was separately shown. There is no

explanation or evidence from the side of the appellants as to

under which proceeding and by which order the Revenue

Record was changed. So far as the claim of confiscation of the

land by the Government is concerned no proceeding was

initiated by any competent authority under any law before

making entries in the Revenue Records that land was

confiscated. For doing the same there must be a proceeding

and order of confiscation of the land which has not been

brought on record. Further, there is no document to show

that in pursuance of confiscation entries the person in

occupation was dispossessed and the record is maintained

showing dispossession and taking possession of the land by

the Government. In the survey settlement proceedings there

cannot be duplication in survey numbers. We have failed to

understand as to how a duplicate Survey No.119 came into

existence and the land of Survey No.613 was shown in that

duplicate survey No.119. The learned District Judge while

deciding the injunction application has recorded admission of

the Government that the plaintiffs are in possession of the suit

land. On the basis of admission by the appellant and the

Revenue Record the Court gave interim protection by granting

a temporary injunction in favour of the plaintiffs.

79Page 80

90. In the instant case, although the Trial Court decided the

Interlocutory Application for injunction not only on

consideration of documentary evidence, but also admission

made by the appellant State admitting possession of the

plaintiff over the suit land but in the final judgment, no

finding recorded with regard to possession of the suit land

except that these documents do not prove title of the plaintiff

on the suit land.

91. One of the learned Judges of the Division Bench on

consideration of all the documentary evidence and the

Revenue Records recorded the finding in favour of the plaintiff.

The said finding of the learned judges has been affirmed and

upheld by the learned third Judge of the High Court and

allowed the appeal and set aside the finding of the Trial Court.

92. We have given our thoughtful consideration on the

finding recorded by the learned Judges of the Division Bench

80Page 81

and finding recorded by the third learned Judge to whom the

matter was referred for passing the final judgment. In our

view, there is no material on the record to reverse the finding

of the two learned Judges of the High Court.

93. For the aforesaid reasons, we find no merit in C.A.

No.2963 of 2013 and the same is dismissed.

94. So far as Civil Appeal No.2964 of 2013 filed by the

appellant-Corporation is concerned, admittedly the appellantState,

despite pendency of appeal in the High Court,

transferred the suit land in favour of the Corporation. The

said transfer is not only hit by lis pendens but also appears to

be not bonafide. Be that as it may, consequent upon the

dismissal of the appeal of the State being C.A.No.2963 of

2013, the appeal being C.A.No.2964 of 2013 filed by the

Corporation is also dismissed.

……………………J.

81Page 82

(M.Y. Eqbal)

……………………J.

(C. Nagappan)

New Delhi

October 09, 2015

82

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