the relief sought for by the appellants is for a declaration of title basing on their long possession over and above 12 years. Such a relief has to be asked specifically and directly but not by an indirect method by twisting the facts for the sole purpose of avoiding court fee. As already said, for the correction of entries in the record of rights on the ground that they were not properly made cannot be instituted against the government or its officials. Such a relief cannot be granted by the court in view of the specific bar enacted in Section 8 of the A.P. Rights in Land & Pattadar Pass Books Act, 1971. 18. The learned trial court thus considering the material averments in the plaint, rightly held that the plaintiffs have to pay the court fee under Section 24(b) of the AP CF & SV Act and they cannot value the suit separately under Sections 43 and 24(d) of the AP CF & SV Act.

HONBLE SRI JUSTICE R. KANTHA RAO      

Appeal Suit No. 50 of 2016

06-01-2016

Mohan Singh & others...Appellants

K.Suryanarayana & others ...Respondents

<GIST:

>HEAD NOTE:  

? Cases referred
1.(1994) 4 SCC 349

HONBLE SRI  JUSTICE  R. KANTHA RAO      

A.S. No.50 of 2016

JUDGMENT:  


      Heard Sri G.K. Deshpande, learned counsel appearing for the
appellants/R.1 to R.7/plaintiffs and Sri K. Durga Prasad, learned counsel
appearing for the respondent/petitioner/D.18 & D.33.

      2. This appeal is directed against the order dated 02.12.2015 in IA
No.2397 of 2014 in OS No.782 of 2012 passed by the XIV Additional
District Judge, Ranga Reddy District, wherein it was held that the
plaintiffs have undervalued the relief of claim to pay the court fee in the
plaint, that the plaintiffs have to pay the court fee under Section 24(b)
of AP CF & SV Act, but not under Section 24(d) of the said Act and
consequently directed the plaintiffs to pay the court fee on one-half of
the market value of the property i.e., on Rs.33,09,60,000/-, as per
Section 24(b) of the APCF & SV Act, as the market value of the suit
property as per Ex.A.1 was Rs.66,19,20,000/-, and they have to pay the
court fee after deducting the court fee which has already been paid,
within a period of 30 days and it was also held that in the event of not
paying the court fee as directed, the plaint shall be rejected as per
Order VII rule 11(b) of CPC.

      3. The appellants/plaintiffs have instituted the suit praying for
the following reliefs:
       (1) to pass a decree of declaration that the entries in
the revenue records/pahanies reflecting the names of the
defendant Nos.3 to 39 as possessor are illegal, incorrect, null
and void and for correction of the said entries by entering the
name of the plaintiffs as possessors in respect of the suit
schedule property;
       (2) to pass a decree for correction of the entries in the
revenue records/pahanis thereby inserting the names of the
plaintiffs in the possessor column by deleting the names of
the defendants in respect of the suit schedule property.
       (3) to grant the relief of perpetual injunction in favour
of the plaintiffs and against the defendants No.3 to 39,
thereby restraining the defendants No.3 to 39 their servants,
agents, or anybody claiming under them or through them from
interfering with the peaceful, physical, actual possession of
the plaintiffs over the suit schedule property;
       (4) to award the costs of the suit to the plaintiffs;
       (5) to grant any other relief or reliefs which the
Honourable court deems fit and proper in the circumstances
of the case.

      4. The brief averments of the plaint, which are relevant for the
disposal of the present appeal, may be stated as follows:
      The father of the plaintiffs late Sri Narayan Singh was the
possessor of the suit lands. The certified copies of the Adangal for the
years 1984-85 and 1985-86 indicate the name of late Sri Narayan Singh,
as possessor of the suit land. The Rythu Passbook was also issued to him
for the suit land. He was also paying the land revenue for the suit land.
The name of the father of the plaintiffs continuously appeared in the
possessor column of the pahanis till the year 1994-95 and the name of
one Smt. Jeshi Bai appeared in the pattedar column. The plaintiffs are
the legal heirs of late Narayan Singh and after the demise of Narayan
Singh, the plaintiffs are in possession of the suit property. At no point of
time, the pattedar Smt. Jeshi Bai or any other person claiming on her
behalf interfered with the possession of late Narayan Singh or plaintiffs
herein and late Narayan Singh and the plaintiffs are enjoying the suit
property as absolute owners and have perfected their title even by
adverse possession.
      ii) In the month of February 2008, when the plaintiffs have
noticed certain illegal interference over the suit schedule property and
over heard the rumours of some third parties claiming certain parts of
the suit schedule property, they applied for the pahanis for all the
survey numbers and came to know that the names of certain irrelevant
persons i.e., Defendants 3 to 39 are appearing in the possessors column
of the pahanis. The plaintiffs verified the revenue records and also the
records at the District Registrar, Ranga Reddy District and found certain
transactions under registered documents in respect of certain parts of
the suit schedule property. Immediately, the plaintiffs made an
application to the 2nd defendant for the correction of entries in the
pahanis and on 30.01.2009, the 2nd defendant issued Memo stating that
the 2nd defendant is not competent to make or order for correction of
entries, in the pahanis. Then the plaintiffs preferred an appeal against
the said letter dated 30.01.2009. In the month of February 2010, some
unknown persons tried to interfere with the possession of the plaintiffs,
they thwarted the said attempt. Immediately, they got issued public
notice through their advocate, which was published in Eenadu daily News
Paper dated 16.02.2010. They made discrete enquiry and learnt that the
2nd defendant has entered the names of defendants 3 to 39 in the
revenue records without any valid documents and that the said act of
the 2nd defendant is totally illegal, null and void. Aggrieved by the orders
passed in the appeal, the plaintiffs made a revision before the District
Collector under Section 9 of the A.P. Rights in Land and Pattadar Pass
Books Act 1979. Basing on the revision application filed by the plaintiffs,
the 1st defendant issued proceedings dated 15.03.2012 to the 2nd
defendant to send a detailed report. It is submitted by the plaintiffs that
still the revision is pending. It is under these circumstances, they filed
the present suit stating that they have been in possession and enjoyment
of the suit schedule property and defendants 1 and 2 in collusion with
the other defendants, have created false, fabricated and concocted
documents and thereby changed the entries in the revenue records/
pahanis, which is totally incorrect. In the plaint, they valued the suit for
the purpose of court fee and jurisdiction i.e., for the relief of correction
of the entries made in the pahanis for the years 1995-96 to 2006-07 at
Rs.15/- per year as per Sections 43 and for the relief of declaration that
the plaintiffs are the possessors of the suit schedule property and the
consequential relief of perpetual injunction at Rs.11,00,000/- and paid
the court fee under Section 24(d) of the AP CF & SV Act.

      5. Basing on the prayers, as well as the valuation of the suit for
the purpose of court fee and jurisdiction, the learned court below
passed the impugned order, which is under challenge in the present
appeal.

      6. Learned counsel appearing for the appellants would submit that
the plaintiffs merely sought the correction of the entries in the revenue
records and they have rightly paid the court fee under Section 43 of the
AP CF & SV Act.

      7. Section 43 of the AP CF & SV Act reads as under:
43.Suits to alter or cancel entry in a register:- In a suit to alter
or cancel any entry in a register of the names of proprietors of
revenue-paying estates, the fee payable shall be fifteen rupees.

      8. According to the learned counsel appearing for the appellants,
they did not in fact seek any relief of declaration and the declaration
mentioned in the plaint only is in relation to the correction of the
entries and therefore, the learned trial court misdirected itself in
directing the plaintiffs to pay the court fee under Section 24(b) of the AP
CF & SV Act.

      9. On the other hand, learned counsel appearing for the 1st
respondent would submit that the entire averments in the plaint,
obviously, indicate that they sought declaration as they have been in
possession and enjoyment of the suit property and therefore, the trial
court rightly directed them to pay the court fee under Section 24(b) of
the AP CF & SV Act and that the order passed by the trial court needs no
interference in the present appeal.

      10. It is the contention of the learned counsel appearing for the
appellants that the trial court can only for the purpose of determining
the court fee has to look in to the averments of the plaint and it shall
not determine the court fee basing on the contentions put-forth by the
opposite party. In this context, it requires to be mentioned that the
order passed by the trial court came to be passed in an application filed
by the respondent herein under Order VII Rule 11(b) of CPC to reject the
plaint filed by the plaintiffs for not valuing the suit correctly and not
paying the proper court fee. In support of his contention, the learned
counsel for the appellant relied on a decision reported in Ram Narain
Prasad vs. Atul Chander Mitra , wherein the Supreme Court took the
view that the court fee has to be computed on the basis of averment
made and relief sought in the plaint and not on the basis of written
statement. The Supreme Court further held that merely because of
respondents denial of landlord-tenant relationship, courts below erred
in taking the view that since title of the appellants had to be decided
not incidentally but in full-fledged manner, the plaintiffs-appellants
should pay ad-valoerm court fee on the market value of the suit
property.

      11. Now it has to be seen that the judgment relied on by the
learned counsel appearing for the appellants is applicable to the facts of
the present case or not. It is true that the court, for the purpose of
computing the court fee, has to look into the averments of the plaint,
but not the contentions urged by the opposite party. At the same time,
the court has to take a decision basing on the material facts averred in
the plaint and the relief prayed for. It is under the duty to carefully
examine the plaint so as to find out whether any attempt was made by
the plaintiffs to avoid the court fee by twisting the facts.

      12. The contention urged on behalf of the appellants/plaintiffs is
that the declaration referred to in the court fee and jurisdiction para
relates only to correct the entries in the revenue records, but not for
declaration of any legal right or status. Learned counsel appearing for
the appellants has drawn the attention of this court to the prayer
portion, wherein no declaration has been asked for. Learned counsel for
the appellants would further submit that under Section 8 of the A.P.
Rights in Land and Pattadar Pass Books Act, 1971, if any person is
aggrieved of any entry made in the revenue record, may institute a suit
under Chapter VI of the Specific Relief Act, 1963.

      13. Section 8 of the A.P. Rights in Land and Pattadar Pass Books
Act, 1971, reads as under:
       8.Bar of suits:- (1) No suit shall lie against the
Government or any officer of Government in respect of a claim
to have an entry made or in relation to any entry made in any
record of rights or to have any such entry omitted or amended.
       (2) If any person is aggrieved as to any rights of which he
is in possession by an entry made in any record of rights he may
institute a suit against any person denying or interested to deny
his title to such right for declaration of his right under Chapter VI
of the Specific Relief Act, 1963 (Central Act 47 of 1963) and the
entry in the record of rights shall be amended in accordance
with any such declaration.

      14. Plain reading of Section 8, clearly shows that if any person is
aggrieved as to any right of possession by any entry in the record of
rights, he may institute a suit against the person denying or interested to
deny his title to such right under Chapter VI of the Specific Relief Act,
1963 and the entry in the record of rights have to be amended in
accordance with the above provision.

      15. In the instant case, the appellants/plaintiffs sought correction
of entries in the record of rights against the Government officials as well
as private defendants. They sought relief of permanent injunction only
as an ancillary relief. By virtue of the provisions of Section 8 of the A.P.
Rights in Land and Pattadar Pass Books Act, 1971, if any person is
aggrieved of the entries made in the revenue records in relation to the
property, can file a suit against the persons denying or interested to
deny his title or possession but not against the Government or its
officials and the entries in the record of rights shall be amended in
accordance with any such declaration ultimately granted by a
competent-civil court. In the court fee and jurisdiction para, the
plaintiffs clearly mentioned about the declaratory relief sought in
respect of the entries made in the revenue records and also the relief of
permanent injunction as ancillary relief. A conjoint reading of court fee
and jurisdiction and also prayer paras, in consonance with the material
averments made in the plaint, clearly shows that they are seeking
declaration of their possession to the suit schedule land in respect of the
entries made in the record of rights for a period of more than 12 years.
The court has to take into account the entire material averments made
in the plaint. The court should not allow the party to twist the facts to
avoid the court fee. The plaint, therefore, filed is essentially for a
declaration that the plaintiffs are in possession of the suit property for
over a period of more than 12 years and for consequential relief of
injunction. The averments of the plaint should be clear and unambiguous
in relation to the court fee and jurisdiction and the reliefs prayed for.

      16. Section 8 of the A.P. Rights in Land & Pattadar Pass Books Act,
1971 enacts a bar in respect of a suit against the government or any
officer of Government in respect of a claim to have an entry made when
a party disputes the genuineness of the entry made in the record of
rights.  However, it provides that if a person is aggrieved as to any rights
of which he is in possession by an entry made in any record of rights he
may institute a suit against any person denying or interested to deny his
title to such right for declaration of his right under Chapter VI of the
Specific Relief Act, 1963.  It further lays down that the entry in the
records of rights shall be amended only in accordance with any such
declaratory decree passed by a competent Court. Therefore, the remedy
available to the petitioner under Section 8 of the A.P. Rights in Land &
Pattadar Pass Books Act, 1971 is only to file a declaratory suit under
Chapter VI of the Specific Relief Act, 1963.  They cannot maintain a suit
against the government or any officer of the government on the ground
that the entry in the record of rights is incorrectly made.  The nature of
the suit which can be filed under Chapter VI of the Specific Relief Act is
for a declaration of title of the plaintiff whenever a cloud is cast upon
the title by denial of his legal character or right.  The declaration which
can be granted under Chapter VI is as to the plaintiffs entitlement to
any legal character or any right as to any property.

        17. In the instant case, virtually the relief sought for by the
appellants is for a declaration of title basing on their long possession
over and above 12 years. Such a relief has to be asked specifically and
directly but not by an indirect method by twisting the facts for the sole
purpose of avoiding court fee.  As already said, for the correction of
entries in the record of rights on the ground that they were not properly
made cannot be instituted against the government or its officials. Such a
relief cannot be granted by the court in view of the specific bar enacted
in Section 8 of the A.P. Rights in Land & Pattadar Pass Books Act, 1971.

      18. The learned trial court thus considering the material
averments in the plaint, rightly held that the plaintiffs have to pay the
court fee under Section 24(b) of the AP CF & SV Act and they cannot
value the suit separately under Sections 43 and 24(d) of the AP CF & SV
Act.

      19. In view of the facts and circumstances of the case, the order
of the learned trial court does not require any interference of this court
in the present appeal. Consequently, the appeal is dismissed. No order
as to costs. Miscellaneous petitions, if any, in this appeal, shall stand
closed.
_________________  
R. KANTHA RAO, J  
Date: 06.01.2016

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515