Kataru Lakshumma At Chinna Ammanamma vs. Gada Venkata Ratnam

THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

Civil Revision Petition No.45 of 2023

ORDER:

This revision petition is filed under Article 227 of the Constitution of India against the order, dated 17.11.2022, dismissing the petition in I.A.No.420 of 2022 in O.S.No.26 of 2016 on the file of the Court of III Additional District Judge, Kadapa, filed by the plaintiff under Order XVI, Rule 1 (2) CPC to summon the Tahsildar, Rajampet, to cause production of the entire file of mutation of revenue records pertaining to the suit schedule property and the letter addressed by the then Tahasildar, Rajampet, under reference No.B/216/2016, dated 10.08.2016, to the District Collector, Kadapa, and to give evidence pertaining to the same.

2. Heard Sri Balaji Medamalli, learned counsel for the revision petitioner/plaintiff and Sri G. Ramesh Babu, learned counsel for the respondents/defendants.

3. The plaintiff filed the suit originally against the defendants 1 to 7 and later, defendants 8 to 12 are added as seeking relief of declaration of right and title of the plaintiff over the suit schedule property and to grant permanent injunction against the defendants and also for cancelation of sale deeds executed by 1st defendant in

favour of defendants 2 to 7 under various sale deeds mentioned in the prayer.

3.1 The plaintiff pleaded that the plaint schedule property belong to Mylapuram Kesi Reddy having purchased the same under a registered sale deed, dated 06.06.1901, and he was in possession and enjoyment of the same by raising crops and his name was entered in R.S.R as pattadar/owner and later, he died about 70 years ago leaving behind him his two sons, namely, Narapureddy and Chenna Reddy as his legal heirs and that in oral partition, the suit schedule property fell to the share of Chenna Reddy and that Chenna Reddy also died intestate leaving behind him his only daughter, Yellamma and thus, Yellamma succeeded to the plaint schedule property. It is further pleaded that Yellamma was married to Thunga Chinna Venkata Reddy and they have a daughter, Kataru Lakshumma, i.e., the plaintiff and that Yellamma died about 40 years ago leaving behind the plaintiff as her sole legal heir since her husband also died in the year 1970. It is further pleaded that the plaintiff constructed a compound wall in a portion of the plaint schedule property and is in possession and enjoyment of the same and further that she was given rythu pass book under the A.P. Rights in Land and Pattadar Pass Books Act. While so, she learnt that the first defendant who has nothing to do with the plaint

schedule property, in collusion with the other defendants, executed sale deeds and power of attorney, dated 20.05.2016, by misleading the revenue officials. She further stated that in the R.S.R, names of the pattadars for the suit survey number were mentioned as Goda Ramakrishnaiah and Mylapuram Kesi Reddy, and so, both of them have equal half right in the land in the said survey number to an extent of Ac.0.74 cents each. Thus, the plaintiff's ancestor, Mylapuram Kesi Reddy owned Ac.0.74 cents in the said survey number. The plaintiff nextly pleaded that the 1st defendant, taking advantage of the similarity in the surname of Goda Raghuramaiah, executed false and fictitious sale deeds in favour of the other defendants and that Goda Raghuramaiah belongs to Brahmin caste. She further stated that in the documents executed by the 1st defendant, it is merely stated that the 1st defendant acquired the plaint schedule property and that the 1st defendant got fabricated pass book though there is no corresponding entry in the revenue records for the purpose of registration. Thus, the plaintiff filed the suit.

4. The 1st defendant filed the written statement averring that the grandfather of the 1st defendant, by name, Goda Ramakrishnaiah, and Mylapuram Kesi Reddy are the joint pattadars of the entire extent of Ac.1.48 cents each in Sy.No.428 of Mannur village shown

in the plaint schedule and even as per the Resettlement Record (RSR) issued by the revenue authorities and the Register of Holdings (RH) generated at the Sub-Registrar's office. He further submitted that in an oral understanding of sale, Mylapuram Kesi Reddy sold his share to Goda Ramakrishnaiah in or around 1910 and since then, Goda Ramakrishnaiah became the absolute owner of the entire extent of Ac.1.48 cents and thus, the 1st defendant who is the grandson of the said person acquired the suit property by way of succession and is now in possession and enjoyment of the same with absolute rights. He further submitted that the revenue authorities found possession and enjoyment of the 1st defendant in the said property and mutated his name in the revenue records like 1-B Register and Adangals, and therefore, the 1st defendant obtained certified copies of 1-B Register and other entries from the revenue authorities under the Right to Information Act. This defendant further stated that under those circumstances, the 1st defendant converted the suit schedule property into plots and offered to sell the same to other defendants and thus, the sales were affected. This defendant denies the averments in the plaint contrary to the above pleadings and also specific pleading of the plaintiff that she raised compound wall in a portion of the plaint

schedule property and has been in possession and enjoyment of the suit schedule property as absolute owner.

5. During the course of trial, the plaintiff filed petition in I.A.No.420 of 2022 stating that she filed an application to send for the letter, dated 10.08.2016, from the office of the Tahsildar, Rajampet, but the said petition was dismissed, and the said letter plays a vital role for adjudication of the matter. She further stated that she secured a photostat copy of the letter which was filed along with the petition. It is also stated by her that she was not given certified copy of the said letter when she applied under the provisions of the Right to Information Act stating that it is not within the purview of the provisions of the said Act and thus, in spite of her best efforts to get the evidence of that document, her efforts were invain and therefore, she filed this petition.

6. The petition was opposed by filing counter on behalf of defendants 1 to 7 opposing the petition and contending that the petitioner cannot depend on the weakness of the respondents to prove her case of title over the plaint schedule property and that the petitioner has not filed any documentary evidence to show her title, right or possession over the suit schedule property as on the date of filing of the suit, but filed this petition at the fag end of the

case when the matter was posted for arguments and it is only a vexatious petition filed with a view to drag on the proceedings. It is also stated that the petitioner filed interlocutory applications, vide I.A.Nos.369 of 2022, 370 of 2022 and 371 of 2022 with similar prayer and those applications were dismissed by the trial Court. It is further contended that the petitioner did not state how the proposed document would help the petitioner or the Court in adjudicating the title of the petitioner/plaintiff over the plaint schedule property. It is prayed to dismiss the petition.

7. After hearing both parties, the trial Court dismissed the petition while observing that a party can be permitted to adduce evidence at any stage of the suit to do substantial justice, however, in the present case, even if it is presumed that the 1st defendant tampered the revenue records, the sale deeds executed in favour of defendants 2 to 12 were already cancelled and the petitioner is not making claim on that property. It is further noted that I.A.Nos.369 to 371 of 2022 were filed to recall PW1 to mark the cancellation deeds executed by the 1st defendant in favour of the defendants 2 to 12 and those petitions were dismissed on merits observing that the petitioner failed to explain how those documents are required to adjudicate the real controversy between the parties and the petitioner filed the suit for declaration of title and cancelation of

exhibits A1 to A10 which were already marked through PW1. It is also observed by the trial Court in the impugned order that the letter, dated 10.08.2016, itself is not sufficient to give any finding on the subject matter and that the petitioner already pleaded her case and lead evidence basing on the pleadings and now, she is introducing new facts which are not relevant to the adjudication of the real controversy between the parties. The trial Court further found that it is not the case of the petitioner that the evidence of the proposed witness is helpful to adjudicate her title and that the petitioner shall prove her title incidentally and it is not the case of the plaintiff that the evidence of the proposed witness would prove her title. As such, the trial Court did not find bona fides in the application and dismissed the petition.

8. Having been aggrieved by the order, this revision petition is filed.

9. Learned counsel for the petitioner submitted that the 1st defendant is making claim of title and possession over the share of Kesi Reddy also in the joint property, without there being any transfer of title to the joint owner and that it is only by taking advantage of the common surname, a false revenue record was created and basing on the same, the 1st defendant is claiming title

and alienating the property, and therefore, it is very much required to show that the revenue records was tampered. He further stated that though there is burden on the plaintiff to prove her title incidentally by leading evidence, she is entitled to demolish the defence and in that regard, it is necessary to produce vital piece of evidence which she could not secure in spite of best efforts made, and therefore, there are no mala fides on her part in filing the petition and moreover, it is very much required. Learned counsel further submitted that as the document to be summoned and the evidence to be given would materially affect the rights of the parties and would also help the Court in deciding the lis on merits, summoning of the document is very much required.

10. On the other hand, learned counsel for the 1st respondent submitted that the evidence would not help in deciding the title of the petitioner, and therefore, the trial Court has rightly dismissed the petition. He further placed reliance on the decision of the High Court of Judicature at Hyderabad in Shaik Ujauddin v. Veerabhadra Uma Devi and others¹ .

11. In the light of the contentions of both sides and the pleadings of the plaintiff and the defendants noted above, there is a serious

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dispute about the tampering of the revenue record basing on which the 1st defendant sets up title. Since it is a suit for declaration of title, all the material evidence to decide the title of both parties is very much essential. In the decision in Shaik Ujauddin (1 supra), relied on by the 1st respondent, the suit was filed for perpetual injunction. In that suit, a petition was filed to issue summons to the Tahsildar for giving evidence regarding issue of patta in favour of the petitioner and also to prove that the Tahsildar issued notice to both parties. In the light of the facts and circumstances in that case, the following observations are made:

" On the merits of the case, I am of the opinion that respondent No. 1 has not made out any case for summoning the Tahsildar, Tadikonda Mandal. The suit pertains to purely a dispute over immovable property between two private parties. Each of the parties is claiming right under purported pattas issued to them by the Tahsildar. As noted above, respondent No. 1, while denying the plea of the petitioner/plaintiff that the latter was granted patta by the Tahsildar, had set up the plea that the Tahsildar has granted patta in her favour. It does not appear from the available record that respondent No. 1 has filed any such patta certificate. If patta was granted in favour of respondent No. 1, being an official document, the same is admissible in evidence even without examining the Tahsildar who is stated to have issued such patta. It is not the pleaded case of respondent No. 1 that she has filed the patta certificate and that its genuineness is disputed by the petitioner/plaintiff. At least, in such a situation, perhaps, there may be some justification for respondent No. 1 to make an application for summoning the Tahsildar to speak about the genuineness of the patta certificate granted in her favour. On her part, respondent No. 1 has done precious little in substantiating her

plea that the Tahsildar has indeed granted patta in her favour by filing the same and also any other revenue record in support of such plea.

In my opinion, a private party, in order to substantiate his own plea, cannot seek to drag the Government officials to the Court as that would involve waste of precious time of the officials. Order XVI Rule 1 of the Code is not meant for helping litigants who fail to adduce proper and relevant evidence to prove their case and rely solely on the basis of the testimony of public servants. The predominant object of this provision is to enable the Court to summon any witness if it feels that the evidence of such person is necessary for proper and effectual adjudication of the dispute involved in the suit. It is not as if the lower Court, on application of its mind, has felt that the evidence of the Tahsildar is needed for adjudication of the dispute involved in the suit. In a suit involving disputes over immovable properties between two private parties, the Courts shall not ordinarily summon public servants to support the cause of one party unless the Court itself is of the opinion that the evidence of such public servant is required to adjudicate on the seriously disputed questions arising in the suit."

12. The observations in the above cited decision are also to the effect that if the party has filed any patta certificate and the genuineness of the certificate is disputed by the other party, perhaps, there would be justification to make an application for summoning the Tahsildar to speak about the genuineness of the patta certificate granted in her favour. It is also found that she did not file any patta granted in her favour. Under those circumstances, the relief was refused.

13. Whereas, in the present case, the facts are different. Therefore, no ratio is found from the above cited decision that a

government official cannot be summoned to produce the record and give evidence. In each case, on examination of facts and circumstances, in the light of the contentions raised, a decision is to be taken whether it is required to summon a government official either to produce record or give evidence. In the present case, the record sought to be summoned and the evidence of the Tahsildar are very much vital. Therefore, the trial Court is in error in dismissing the petition.

14. In view of the foregoing reasons, the Civil Revision Petition is allowed, setting aside the order, dated 17.11.2022, passed in I.A.No.420 of 2022 in O.S.No.26 of 2016, and consequently, allowing I.A.No.420 of 2022.

There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.

B.S.BHANUMATHI, J

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23-08-2023 RAR