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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2963 OF 2013

Government of Andhra Pradesh  Thr. Principal Secretary and others …Appellant(s)

versus

Pratap Karan and others …Respondent(s)

with

CIVIL APPEAL No. 2964 OF 2013

Andhra Pradesh Industrial Infrastructure Corporation Limited             …Appellant(s)

versus

Pratap Karan and others …Respondent(s)

JUDGMENT

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  

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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  plaintiff-

respondent  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.

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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  

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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  plaintiff-

Respondents 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  

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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  

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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  

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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,  

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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  

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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  

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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.  

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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  

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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:

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“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.   

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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.  

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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  

3rd 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  

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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  

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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  

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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.

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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  

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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.

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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.

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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  

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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  

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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 20 th 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  

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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  

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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  

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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.

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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.”

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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  one- twelfth 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  

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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.”

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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  

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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 hard- and-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  

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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  

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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.”

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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  

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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  

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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  

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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  

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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  

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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  

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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 sub- section (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.

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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.

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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  sub- section  (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  

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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  

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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-

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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 Sub- section (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  

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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:-

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“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:-

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“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.”

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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  

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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  

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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  

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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  

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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  

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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  

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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.”

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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  

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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  

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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  

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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  

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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  

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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 sub- grants  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  

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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).

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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.”  

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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 plaintiff-

respondents.

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

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

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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.

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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  

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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  

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“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  

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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 sub- grants  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  

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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  

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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.”

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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  bore-

wells 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  

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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  

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Kancha-Sarkari or land confiscated by the government.  The  

Trial Court further erroneously held that even in the khasra-

pahani 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.

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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  

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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  

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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.

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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  

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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 appellant-

State,  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.

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(M.Y. Eqbal)

……………………J. (C. Nagappan)

New Delhi October 09, 2015

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