2015 (10) TMI 2663 - SC - Indian Laws

Rectification of Revenue Records by incorporating their names as owners and possessors in respect of the suit land - Held that - 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. 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. 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. We have given our thoughtful consideration on the finding recorded by the learned Judges of the Division Bench and finding recorded by the third learned Judge to whom the matter was referred for passing the final judgment. In our view, there is no material on the record to reverse the finding of the two learned Judges of the High Court.

Issues Involved:
1. Rectification of Revenue Records
2. Ownership and Possession of Suit Land
3. Confiscation and Vesting of Land under Jagir Abolition Regulation
4. Application of Section 98(2) of CPC
5. Abatement of Appeal
6. Admissibility of Evidence by GPA Holder
7. Limitation and Estoppel

Detailed Analysis:

1. Rectification of Revenue Records:
The plaintiffs sought rectification of Revenue Records to incorporate their names as owners and possessors of the suit land in Survey No.613, Nadergul Village, by deleting the duplicate Sy.No.119. The trial court dismissed the suit, but the High Court, after conflicting judgments by a Division Bench, referred the matter to a third judge who decreed in favor of the plaintiffs.

2. Ownership and Possession of Suit Land:
The plaintiffs claimed ownership based on succession from their predecessor, late Raja Shivraj Dharmavanth Bahadur, whose ownership was confirmed by various documents, including Setwar, Vasul Baqui, and Khasra Pahani. The High Court found that the plaintiffs successfully demonstrated that late Raja was the pattadar/khatadar of the land covered by S.No.613, and the presumption of ownership could be applied in their favor. The court noted that the State failed to prove any confiscation or vesting of the land under the Jagir Abolition Act, and mere mentioning "Sarkari" in subsequent pahanies did not extinguish the plaintiffs' title.

3. Confiscation and Vesting of Land under Jagir Abolition Regulation:
The State contended that the land was Jagir land and vested in the State under the Hyderabad Abolition of Jagirs Regulation. However, the court found no evidence of such confiscation. The High Court observed that the land in question was recorded as "Self Cultivation Dastagardan" in the Khasra Pahani and was not included in the list of Jagir lands for which commutation was awarded. The court held that the land continued to be private property and the plaintiffs were entitled to rectification of records.

4. Application of Section 98(2) of CPC:
The appellants argued that the reference to the third judge was ultra vires as Section 98(2) of CPC provides for confirmation of the trial court's decree in the absence of a majority opinion. However, the High Court, governed by the Letters Patent of Madras High Court, followed the procedure under Clause 36, which allows for reference to a third judge. The Supreme Court upheld this procedure, noting that Section 98(3) preserves the application of Letters Patent provisions.

5. Abatement of Appeal:
The appellants contended that the appeal abated due to the death of one of the respondents during the pendency of the appeal in the High Court. The court found that the right to sue survived with the remaining plaintiffs, and the appeal did not abate as a whole. The court held that the estate was fully represented by the surviving plaintiffs, and the appeal could proceed.

6. Admissibility of Evidence by GPA Holder:
The appellants challenged the admissibility of evidence given by the plaintiffs' GPA holder. The court held that a GPA holder could give evidence on matters within his knowledge and was competent to testify on behalf of the plaintiffs.

7. Limitation and Estoppel:
The appellants argued that the suit was barred by limitation and the plaintiffs were estopped from claiming the land due to their participation in commutation proceedings. The court held that the suit for declaration of title and injunction falls under Article 65 of the Limitation Act, 1963, and the limitation period is 12 years from when the possession of the defendant becomes adverse. The court found no evidence of adverse possession by the State and held that the suit was not barred by limitation.

Conclusion:
The Supreme Court dismissed the appeals, upholding the High Court's decision to rectify the revenue records in favor of the plaintiffs and confirming their ownership and possession of the suit land. The court found no procedural irregularities in the reference to the third judge and held that the appeal did not abate due to the death of one of the respondents. The evidence provided by the GPA holder was deemed admissible, and the suit was not barred by limitation.

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