# GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL SECRETARY AND OTHERS v. PRATAP KARAN AND OTHERS

- **Citation:** [2015] 12 S.C.R. 702
- **Court:** Supreme Court of India
- **Decided:** 2015-10-09
- **Case number:** Civil Appeal No. 2963 of2013
- **Bench:** M. Y. Eqbaland C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/government-of-andhra-pradesh-thr-principal-secretary-and-others-v-pratap-karan-30475
- **Pages:** 67

## Headnote

c
Mutation - Suit for correction and rectification of the
record of right - Alleging that the land in question illegally
shown as Government land - Held: All the documentary
evidence including the document of title prove beyond doubt
thaf.the plaintiff was the owner in possession of the suit land
D - Revenue failed to show as to under which proce_edings and
by what order the Revenue Records were changed showing
the land as Government land - Courts below wrongly held
that all jagir land became Government land, without taking
into consideration relevant provisions of the Hyderabad
E (Abolition of Jagirs) Regulations, 1358 Fasli - Hyderabad
(Abolition of Jagirs) Regulations, 1358 Fasli - Sections 17
and 18 - Land Laws and Tenancy.
Abatement - Death of one of the appellants - NonF substitution of LRs - Whether resulted in abatement of the
appeal qua other appellants - Held: Entire appeal shall not
stand abated by reason of non-substitution of the deceased
appellant because the estate was fully and substantially
represented by other sharers as owners of the suit propertyG In the circumstances of the case, Or.22r.2 CPC will applyCode of Civil Procedure, 1908- Or.22 r.2.
Code of Civil Procedure, 1908 - s. 98 -Appeal before
High Court- Heard by Division Bench - Difference of opinion
H - Reference to third judge - Plea that disposal of appeal.
.
702
.
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 703
SECRETARYv.PRATAPKARAN
was not in consonance with provisions u/s. 98 - Held: In view A
of sub-section (3) of s. 98, the procedure prescribed u!s. 98
shall not apply to the High Courts procedure which are
governed by Letters Patent- They shall be governed by the
Letters Patent of that High Court - In the present case, the
order of High Court cannot be said to be vitiated on account B
of non-compliance of s. 98 as the same has been passed in
compliance with Clause 36 of the Letters Patent of the Andhra
Pradesh High Court - Letters Patent of Andhra Pradesh High
Court - Clause 36.
c
Dismissing the appeals, the Court
HELD: 1. 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 o
possessors in respect of.the suit land on the ground inter
a/ia 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 E
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.
Therefore, by reason of non-substitution of the legal F
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 G
having been abated. In the said circumstances Order 22
Rule 2 CPC will come into operation and the appeal will
not abate. [Paras 33, 38) [724-D; 731-E-H)
Sardar Amarjit Singh Katra vs. Pramod Gupta AIR
H
704
A
B
c
D
E
SUPREME COURT REPORTS
[2015] 12 S.C.R.
2003 SC 2588: 2002 (5) Suppl. SCR 350 -
followed.
Budh Ram and others vs. Bansi and others 2010
(9) SCR 674: (2010) Vol. 11 SCC 476; Harihar
Singh vs. Balmiki Prasad Singh AIR 1975 SC
733: 1975 (2) scR 932: 1975 (1) sec 212; State
of Punjab vs. Nathu Ram (AIR 1962) SC 89:
(1962) 2 SCR 636; - relied on_.
Amba Bai and others vs. Gopa/ and others (2001)
5 sec 570 - distinguished.
Matihdu Prakash (Deceased) by L. Rs. vs. Bachan
Singh and others AIR 1977 SC 2029; State of
Punjab vs. Nathu Ram (AIR 1962) SC 89: (1962)
2 SCR 636; Sri Chand vs. Jagdish Pershad
Kishan Chand AIR 1966 SC 1427: 1966
SCR 451; Ramagya Prasad Gupta vs. Murli
Prasad 1973 (1) SCR 63: (1973) 2 SCC 9;
Sardar Amarjit Si

## Text

_Characters 0–39,968 of 125,926. This is a partial read: ask again with offset=39968 for what follows._

[2015] 12 S.C.R. 702
A
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL
SECRETARY AND OTHERS
B
V.
PRATAP KARAN AND OTHERS
(Civil Appeal No. 2963 of2013 etc.)
OCTOBER 09, 2015
[M. Y. EQBALAND C. NAGAPPAN, JJ.]
c
Mutation - Suit for correction and rectification of the
record of right - Alleging that the land in question illegally
shown as Government land - Held: All the documentary
evidence including the document of title prove beyond doubt
thaf.the plaintiff was the owner in possession of the suit land
D - Revenue failed to show as to under which proce_edings and
by what order the Revenue Records were changed showing
the land as Government land - Courts below wrongly held
that all jagir land became Government land, without taking
into consideration relevant provisions of the Hyderabad
E (Abolition of Jagirs) Regulations, 1358 Fasli - Hyderabad
(Abolition of Jagirs) Regulations, 1358 Fasli - Sections 17
and 18 - Land Laws and Tenancy.
Abatement - Death of one of the appellants - NonF substitution of LRs - Whether resulted in abatement of the
appeal qua other appellants - Held: Entire appeal shall not
stand abated by reason of non-substitution of the deceased
appellant because the estate was fully and substantially
represented by other sharers as owners of the suit propertyG In the circumstances of the case, Or.22r.2 CPC will applyCode of Civil Procedure, 1908- Or.22 r.2.
Code of Civil Procedure, 1908 - s. 98 -Appeal before
High Court- Heard by Division Bench - Difference of opinion
H - Reference to third judge - Plea that disposal of appeal.
.
702
.
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 703
SECRETARYv.PRATAPKARAN
was not in consonance with provisions u/s. 98 - Held: In view A
of sub-section (3) of s. 98, the procedure prescribed u!s. 98
shall not apply to the High Courts procedure which are
governed by Letters Patent- They shall be governed by the
Letters Patent of that High Court - In the present case, the
order of High Court cannot be said to be vitiated on account B
of non-compliance of s. 98 as the same has been passed in
compliance with Clause 36 of the Letters Patent of the Andhra
Pradesh High Court - Letters Patent of Andhra Pradesh High
Court - Clause 36.
c
Dismissing the appeals, the Court
HELD: 1. 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 o
possessors in respect of.the suit land on the ground inter
a/ia 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 E
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.
Therefore, by reason of non-substitution of the legal F
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 G
having been abated. In the said circumstances Order 22
Rule 2 CPC will come into operation and the appeal will
not abate. [Paras 33, 38) [724-D; 731-E-H)
Sardar Amarjit Singh Katra vs. Pramod Gupta AIR
H
704
A
B
c
D
E
SUPREME COURT REPORTS
[2015] 12 S.C.R.
2003 SC 2588: 2002 (5) Suppl. SCR 350 -
followed.
Budh Ram and others vs. Bansi and others 2010
(9) SCR 674: (2010) Vol. 11 SCC 476; Harihar
Singh vs. Balmiki Prasad Singh AIR 1975 SC
733: 1975 (2) scR 932: 1975 (1) sec 212; State
of Punjab vs. Nathu Ram (AIR 1962) SC 89:
(1962) 2 SCR 636; - relied on_.
Amba Bai and others vs. Gopa/ and others (2001)
5 sec 570 - distinguished.
Matihdu Prakash (Deceased) by L. Rs. vs. Bachan
Singh and others AIR 1977 SC 2029; State of
Punjab vs. Nathu Ram (AIR 1962) SC 89: (1962)
2 SCR 636; Sri Chand vs. Jagdish Pershad
Kishan Chand AIR 1966 SC 1427: 1966
SCR 451; Ramagya Prasad Gupta vs. Murli
Prasad 1973 (1) SCR 63: (1973) 2 SCC 9;
Sardar Amarjit Singh Katra vs. Pramod Gupta AIR
2003 SC 2588: 2002 (5) Suppl. SCR 350 -:-
referred to.
2.1 A comparative study of Section 98 CPC vis-avns clause 36 of the amended Letters Patent of the Andhra
F Pradesh High Court will reveal that while Section 98
provides that in a case 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
G 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 of Andhra
Pradesh High Court provides that in a case the Division
Court exercising its original or appellate jurisdiction
H hears the appeal and the Judges are divided in opinion
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 705
SECRETARYv. PRATAP KARAN
as to the decision to be given on any point, such point A
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 B
majority of Judges who have heard the case including
those who first heard it. For those courts, the procedure
of which is governed by Letters Patent, the power has
been expressly reserved by sub-section (3) of s.98.
Hence, the procedure provided in the Letters Patent of C
High court shall prevail. [Paras 46, 49] [737-F; 739-0-G]
Tej Kumar vs. Kirpal Singh 1995 (1) Suppl.
SCR 383: (1995) 5 SCC 119; PV. Hemalatha v.
Kattamkandi Puthiya Maliackal Saheeda 2002 (3)
SCR 1098: (2002) 5 SCC 548; Pankajakshi
(Dead) Through Lrs. And Others vs. Chandrika
and Others 2010 (12) SCR 989: (2010) 13 SCC
303; Reliance Industries Ltd. vs. Pravinbhai
Jasbhai Patel 1997 (3) Suppl. SCR 636: 1997 (7)
sec 300 - relied on.
Dhanaraju vs. Motilal Daga and Another AIR 1929
(Mad.) 641 (F.B.); Bokaro and Ramgur Ltd. vs.
State ofBiharAIR 1966 (Patna) 154; Smt. Jayanti
Devi vs. Srichand Mal Agrawal and Ors. AIR 1984
Patna 296; Ru/ia Devi and others vs. Raghunath
Prasad AIR 1979 Patna 115-approved.
D
E
F
2.2 In the instant case, the two Judges of the
Division Bench passed separate judgments. Both the G
Judges differed not only on the point of facts but also
on the point of law. The matter was referred to the third
Judge for deciding the appeal. The third Judge
formulated various issues and recorded its finding on H
' • ·"""
' 't
•
706
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A all the points and finally upheld the finding recorded by
one of the differing Jud,ges and allowed the appeal. Thus,
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
B account. [Para 54] [744-H; 745-A-C]
3.1 The plaintiff-respondents filed the suit for
correction and rectification of record of right in respect
of S.No.613 measuring 373.22 guntas of land which was
C 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. It has been admitted in the written
D 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 the
E Raja was entered as the absolute owner and possessor
of the suit land. Hence, the title of the owner is supported
by various documents including the Khasra Pahani,
which is a document of title has been proved beyond
F doubt. [Paras 73, 75] [759-C-D, H; 760-A-B]
Collector vs. Narsing Rao 2015 (1) SCR 437:
(2015) 3 sec 695 - relied on.
3.2 From perusal of exhibit B-1 which is the
G judgment of Nizam Atiyat dated 20.1.1958 it is evident
that the m;:iss is comprised of Jagir, Rusums and lnam
land. [Para 80] [761-G-H]
3.3 Both the trial court and the Judge of the Division
Benc.h, who affirmed the finding of the trial Court have
H failed to take into consideration the relevant provision
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 707
SECRETARYv. PRATAP KARAN
of the Hyderabad (Abolition of Jagirs) Regulation, 1358 A
Fasli and held that by the said Regulation, all Jagir land
became the Government land. From SS. 17 and 18 of
Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli,
it is clear that such land which has been brought under
survey settlement and record of right has been prepared B
in the name of the land-owner in respect of self cultivated
land, shall have no effect on the provisions of Jagir
Abolition Regulations. [Paras 82, 83] [763-D-E; 764-E-F]
3.4 The Trial Court erroneously held that except C
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 D
contain the name of the Raja either pattadar/khatadar and
in all the records instead of his name the land was either
shown as Kancha-Sarkari or land confiscated by the
Government. The Trial Court further erroneously held
that even in the khasra:pahani of the year 1954-55 which E
is an important Revenue Record, the name of the Raja
was not shown as khatadar/pattadar. [Para 85] [765-CF]
State of Himacha/ Pradesh v. Keshav Ram and
F
Ors.1997 (AIR) SC 2181: 19~6 (7) Suppl.
SCR 263 - relied on.
3.5 Considering all the documentary evidences
together viz., Exh.P-2 Firman confirming the successor G
of Late Raja in favour of 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 H
708
SUPREME COURT REPORTS
[2015] 12 S.C.R.
'·
A No.613and119 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
11 there is duplication of survey numbers. Indisputably,
B 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
RE!venue Record was changed. So far as the claim of
C confiscation of the land by the Government is concerned
no proceeding was initiated by any competent authority
under any law before making entries in the Revenue
Records that land was confiscated. For doing the same
0
thE~re 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
E dispossession and taking possession of the land by the
GovernmEmt. In the survey settlement proceedings there
cannot be duplication in survey numbers. The District
Judge while deciding the injunction application has
recorded admission of the Government that the plaintiffs
F am 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. [Para 89] [766"F-H;
767-A-E]
G
4. 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
H Corpora.tion. The said transfer is not only hit by /is
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 709
SECRETARYv. PRATAP KARAN
pendens but also appears to be not bonafide. [Para 94] A
[768-D]
Syed Ahmad Hasan 2011(4) ALT. 262 (DB);
Centre For Environmenta'/ Law v. Union of India
(2010)12 sec 303 - referred to.
B
Case Law Reference
1995 (1) Suppl. SCR 383
relied on.
Para 14
2002 (3) SCR 1098
relied on.
Para 14
(2010)12 sec 303
referred to.
Para 14
c
AIR 1977 SC 2029
referred to.
Para 31
(2001) 5 sec 510
distinguished.
Para 31
2010 (9) SCR 67 4
relied on.
Para 31
D
(1962) 2 SCR 636
relied on.
Para 34
1966 SCR 451
referred to.
Para 34
1973 (1) SCR 63
referred to.
Para 34
2002 (5) Suppl. SCR 350
followed.
Para 34
E
1975 (2) SCR 932
relied on.
Para 35
1995 (1) Suppl. SCR 383
relied on.
Para 40
2010 (12) SCR 989
relied on.
Para 40
AIR 1929 {Mad.) 641 {F.B.) approveci.
Para 50
F
AIR 1966 (Patna) 154
approved.
Para 50
AIR 1984 Patna 296
approved.
Para 51
1997 (3) Suppl. SCR 636
relied on.
Para 52
AIR 1979 Patna 115
approved.
Para 53
G
2011 (4) ALT 262
referred to.
Para 69
2015 (1) SCR 437
relied on.
Para 76
1996 (7) Suppl. SCR 263
relied on.
Para 85
H
710
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A
CIVILAPPELLATE JURISDICTION : Civil Appeal No.
2963of2013
From the Judgment and Order dated 19.12.2011 of the
High CourtAndhra Pradesli at Hyderabad in Appeal Suit No.
B 274 of 2007
WITH
C.A. No. 2964 of2013
C
K. Ramakrishna Reddy, AG, V. Giri, DushyantA. Dave,
Subramonium Prasad, Vikas Singh, Harin P. Raval, Vedula
Venkatramanna, Sr.Advs., T. V. Ratnam, Mohan Rao, Manav
Vohra, S. Udaya Kumar Sagar, Ms. Praseena Elizabeth
Joseph,AbidAli Beeran P, J. Govardhan Reddy, Anupam Lal
D Das, Sahil Monga, Kapish Seth, E.V.S. Venugopal, Anirudh
Singh, Nipun Saxena, Gopal Sankaranarayanan, Govind
Manoharan, Senthil Jagadeesan, Ms. Shruti Iyer, Ms. Suchitra
Kumbhat, M/s. Venkat Palwai Law Associates, Prakash
Chakravarthy, P. S. Bindra, Anil Kumar Tandale, Ananga
E Bhattacharya, Advs., with them for the appearing. parties.
The Judgment of the Court was delivered by
M. Y. EQBAL, J. 1. This appeal being C.A.No.2963 of
2013 arises out of tne judgment and order dated 19.12.2011
F
passed by the 3rct Judge of the High Court of Andhra Pradesh
to whom the matter was 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
G 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
H judgment of the trial court. The 3rd Judge to whom the matter
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 711
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
was referred, passed the impugned judgment upholding the A
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 B
have been heard and disposed of by this judgment.
2. The plaintiffs (hereinafter ·referred to as the
respondents) filed Title Suit No. 27 4 of 2007 for rectification
of Revenue Records by incorporating their names as owners C
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.
D
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 pattada( and
absolute owner of the suit schedule property. The succession
E
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.A 1). On the death of late Raja issueless in the year 1917,
F
the succession of his estate was granted by the Royal Firman
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 G
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 plaintiffH
712
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A Respondents that they are, therefore, the absolute owners and
possessors of the suit schedule land. The land in Nadergul
Village was subject matter of suNey 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
B wherein the suit schedule land was having SuNey 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 suNey of Nadergul Village was given effect in
the year 1352 Fasli (year 1943) and the said suNey has also
C confirmed the ownership of late Raja in Khata No.3 (Khata
No.1 as per suNey of 1326 Fasli (year 1917) which also made
it clear that the suit lands are private lands of late Raja. The
present suNey number 613 was shown as the corresponding
0
old Su Ney 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 F asli (year 1943) clearly disclose that l9te Raja was the
E Khatadar of all the land in Sy.No.613 of Nadergul Vijlage,
Saroornagar Mandal, Rangareddy District, Ex.AS. The village
map of Nadergul Village and plan of S.No.613 clearly disclose
the land as 'Kancha' of Late Raja. The total suNey numbers in
F 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 the
G 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 llaka without determining the extent.
H
6. It is the plaintiffs' case that as per the certified copies
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 713
SECRETARYv. PRATAP KARAN [M.Y EQBAL, J.]
of pahanies for the years 1949-50 and 2000-01 the land in
A
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 195455, 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 B
the original extent of land in S.No.119 shown asAc.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 C
the custodians of the records with an oblique motive of
depriving 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 0
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
E
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.
F
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 ad measuring Ac.1-20 guntas,
G
the duplicated S.No. 119 ad measuring more than 355 acres
and sometimesAc.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 H
714
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A 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 misB 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
C 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 cannot be effected under Section
8(2) of the Act. The defendants have no title over the suit
schedule land.
D
8. The 51h defendant-appellant Manda! 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
E 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
F the suit property of late Raja through succession as pleaded.
9. In the amended written statement, it has been pleaded
by the defern;:lant 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
G the 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
H
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 715
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
had passed an order dated 20-01-1958 in File· No.1 /56 A
Warangal/1950 and the legal heirs of Late Raja had
participated in the said proceedin~s 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 B
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 C
was remanded back to the Board of Revenue and after
remand, the appeals filed by the above said persons were
dismissed for non-prosecution.
·
10. It has been further pleaded in the aforesaid amended · D
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 plair1tiffs that original Sy.No.119 E
admeasuring Ac.1-20 guntas in the name of Gadd am 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 ~y. No.119
which finds place in the Khasra Pahani in separate series of 1 F
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 G
defendant that the plaintiffs and their ancestors have
participated in the enquiry before Nazim Atiyat for the award
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 H
716
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A to the conclusion ttiat 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
B 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
C 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:
D
E
F
G
H
"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
cov~red 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
. !earned 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
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 717
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
whatsoever and ownership may change from one person A
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 forthe plaintiffs
to seek declaration of their title except to seek correction
of record of rights recording the names of the heirs of B
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."
C
12. Aggrieved by the decision of the High Court, the
defendants - appellants have preferred this appeal.
13. We have heard learned senior counsel appearing ·D
forthe 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
E
learned judges of the Division Bench who heard the aRPeal
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
F
any points of disagreement on the question of law, hence the
reference by the Chief Justice to the learned 3rd Judge is ultra
vi res. 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 G
Letters Patent Act are invoked the same cannot override the
provisions of Section 98 CPC. In this connection learned
counsel referred decisions in P. \I. Hemalatha v. Kattamkandi
Puthiya Ma/iackal Saheeda, (2002) 5 SCC 548 and Centre
For Environmenta/Law v. Union oflndia, (2010)12 SCC
H
718
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A 303. It was further contended that even if Clause 36 of the
Letters Patent of the Madras High Court which has been
adopted fortheA.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
B 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
C 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 pend ency 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
D pending in the High Court itself stands abated. Further, the
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 sec 569 and
E (2010) 11 sec 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 Hyderaba.d District is
F 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.
G
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 Court
qua Nadergul with the relevant Sandas have not been
H produced for verification. There is no finding anywhere in Exh.
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 710
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
B.1 that Nadergul is not a Jagir Village. Merely because A
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 B
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. C
counsel contended that Sethwar (Exh.A-5), Register ofVasool '
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 D
inconceivable 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 E
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 F
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 G
of title being acquired by their predecessors in interest. In any
view of the matter the suit itself is barred by limitation.
20. Mr. Dushyant A. Dave, learned senior counsel
appearing for the appellant Corporation in Civil Appeal H
720
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A 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
B 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 3rct 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.
c
21. Per contra, Dr. A.M. Singhvi, learned senior counsel
appearing for the plaintiffs-respondents, at the very outset
submitted that althoughA.P. Industrial Infrastructure Corporation
Limited to whom the suit' property was illegally transferred by
D the appellant-State during the pendency of 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.
· E
22. On the issue of application of Section 98(2) of CPC,
Dr. Singhvi, learned se~ior counsel, submitted thitA.P. High
Court is governed by the Letters Patent of Madrasl-ligh 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
F the decision oOhis 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
G 1979 Patna 115. Learned counsel therefore submitted that
there is no illegality in the reference made by the Chief Justice
to the 3rct Judge of the High Court for deciding the appeal.
. 23. Rebutting the submission made by the appellants
H on the question of abatement learned counsel submitted that
GOVERNMENTOFANDHRAPRADESHTHR. PRINCIPAL 721
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
the present suit is for declaration of title and permanent A
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 B ·
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, C
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.
D
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 disp1,1te
on the genuineness and authenticity of documentary evidence E
on record, the suit claim has fo be decided on documentary
evidence i.e. Exhs. A 1-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
Bahadurwas recorded as the Pattadar of the suit land. From
F
these documents it can be inferred with.out 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
G
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 H
722
SUPREME COURT REPORTS
[2015) 12 S.C.R.
A 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 NizamAtiyat proceeding
B 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
C 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
D 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
State ever came in possession. On the contrary the possession
of.the plaintiff-respondents was sufficiently proved by the trial
E 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
F 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
G 201h 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
H been made that non-substitution of legal representatives of
GOVERNMENT OF ANDHRA PRADESH THR. PRINCIPAL 723
SECRETARYv. PRATAP KARAN [M. Y. EQBAL, J.]
respondent No.12 in the appeal pending in the High Court, the A
appeal stood abated by operation of law and consequently
judgment and decree passed by the High Court in the appeal
suit No.274of2007 is rendered nullity in law.
30. By another I.A. Nos. 10 and 11of2015, the appellant s
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.
C
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 (Deeeased) by
L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029; o
Amba Bai and others vs.