IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FOURTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.724 of 2004 Between: Chemanagari Pochaiah and others .. Appellants AND Mittula Narayana .. Respondent JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.4 of 1999 on the file of the II Additional District and Sessions Judge (Fast Track Court), Medak at Sangareddy, dated 31-01-2004, by which the judgment and decree in O.S. No.150 of 1988 on the file of the Principal Junior Civil Judge’s Court at Sangareddy, dated 03-12-1998 were confirmed. 2. The parties are referred to herein as they are arrayed before the trial Court. 3. The plaintiff claimed to be the owner and pattedar of Ac.3.01 guntas in survey No.310 of Veltoor of Sadasivpet Mandal, popularly known as ‘Pamballa Vani Chenu’. The plaintiff’s father Nambaiah mortgaged the land to Chemnagari Sayanna, Sangaiah, Balaiah and Lingaiah 38 years earlier and defendants 1 to 4, the mortgagees, inducted defendants 5 and 6 into possession without the knowledge of the plaintiff. The debt under the unregistered mortgage was discharged and the plaintiff is entitled to recovery of possession and for mensne profits at Rs.1,000/- per year. The plaintiff also claimed that Nambaiah and Zear were brothers living in a joint family with Zear as the kartha. Rangamma, wife of Zear, and Nambamma, mother of the plaintiff, are sisters and after the death of Zear, Nambaiah became the kartha of the joint family. The adoption of Ramaiah, father of defendants 5 and 6, by Rangamma is false, as otherwise there was no necessity for defendants 5 and 6 to purchase the land from the mortgagees under a registered sale deed No.512/93. Ramaiah died in 1983 and he did not mortgage the land for the year 1954-55 as claimed. Nambaiah died 46 years ago leaving the plaintiff as his only heir and Ramaiah, the elder son of brother of Rangamma, was never adopted by Rangamma. Defendants 5 and 6 had no title to sell Ac.2.01 guntas to the 7th defendant and the mortgagees are bound to return the land after the expiry of 10 years. Defendants 8 to 12 are the legal representatives of the deceased 3rd defendant and defendants 13 to 16 are the legal representatives of the deceased 2nd defendant. The plaintiff, hence, sought for recovery of possession of the suit land and mesne profits. 4. The defence to the suit claim is that the suit land belonged to defendants 5 and 6 as the sons of Ramaiah, the adopted son of Rangamma, wife of Zear. Ramaiah mortgaged the suit land with Chemnagari Sayanna, Lingaiah, Balaiah and Sangaiah in 1954-55 and after the death of Ramaiah in 1983, defendants 5 and 6 sold away Ac.2.01 guntas to the 7th defendant under a registered sale deed and the plaintiff distantly related to Rangamma had nothing to do with the suit land. The suit is barred by limitation, as the mortgage was more than 38 years earlier and defendants 5 and 6 even perfected their title by adverse possession. The mortgage by Nambaiah is false and any entries in the revenue records do not create any rights. 5. The trial Court framed the following issues for trial: 1. Whether the late father of the plaintiff had mortgaged the suit land to defendants 1 to 4 38 years ago ? and whether the plaintiff is entitled to recover the possession of the suit land ? 2. Whether the plaintiff is entitled for the mesne profits ? 3. Whether the suit is bad for non-joinder of the necessary parties ? 4. Whether the suit is barred by limitation ? Additional issues: 1. Whether the late Ramaiah, who is the father of the D5 and D6, was adopted by the widow Smt. Late Rangamma ? 2. Whether the title of the late father of the D5 and D6 was perfected by virtue of the adverse possession ? 3. Whether the defendant Nos.5 and 6 purchased the suit schedule land under the registered sale deed document No.512/93 dated 18-4-1993 from the Chemnagari Pochaiah and 3 others ? 6. The trial Court rendered its judgment after examining P.Ws.1 to 3 and D.Ws.1 to 4 during the trial while marking Exs.A.1 to A.9 and B.1 to B.18. 7. In its judgment, the trial Court referred to the oral and documentary evidence and noted that the evidence of P.W.2 was eschewed, as he did not submit himself for cross- examination. Analysing the evidence of P.Ws.1 and 3 and D.Ws.1 to 4, the trial Court noted Exs.B.15 and B.16 to be disclosing Zear and after him, Rangamma to be the owner of the suit land of Ac.3.01 guntas in survey No.310. The trial Court noted that Nambaiah and Zear are real brothers and mother of the plaintiff and Rangamma are real sisters and are maternal aunts of Ramaiah, father of defendants 5 and 6, while Exs.A.5 and A.6 revealed Chemnagari Pedda Sangaiah, Chinna Sangaiah, Balaiah and Lingaiah to be Rahendars for a period of 10 years and Exs.A.3 and A.4 were also referred to as showing Nambaiah and the plaintiff to be the owners, while the above four persons are the usufructuary mortgagees. The mortgage was also noted to be not in dispute, the dispute being about the person who mortgaged and it was only on the basis of Ex.A.1 registered sale deed dated 18- 04-1993 that the names of defendants 5 and 6 were entered in the revenue records treating the mortgagees as owners. Exs.B.12 to B.14 voters’ lists were referred to as showing Narayana to be the father of Ramaiah and the adoption was, hence, considered improbable. From Exs.A.3 and A.4, Nambaiah was believed to be the mortgagor and the evidence of D.Ws.1 to 4 was ignored as they already sold away the suit land. The sale was considered illegal and the induction of defendants 5 to 8 in succession was also considered to be illegal. Exs.B.4 to B.11 pahanies showing defendants 5 and 6 as owners were contrasted with the other documents and the entries effected on the basis of Ex.A.1 were considered to be inconsistent with the claim of their being the original owners and possessors. The trial Court consequently found the mortgage by Nambaiah to be true and the debt to be discharged on expiry of the mortgage period. The plaintiff was considered entitled, hence, for recovery of possession and defendants were, however, considered not liable to pay any mesne profits, as the plaintiff failed to prove the cultivation of the land, while admitting a part of the land to be fallow. While holding the suit to be not bad for non-joinder of necessary parties, the suit was considered to be within limitation under Article 61 of the Limitation Act being within 28 years from the expiry of the mortgage period of 10 years. The suit within 30 years from the mortgage period was held to be not barred. The trial Court noted that the adoption of Ramaiah by Rangamma was not proved, as otherwise defendants 5 and 6 would not have purchased the land from the mortgagees and as there was no oral or documentary evidence to prove the adoption. While the voters’ lists clearly recorded Ramaiah as the son of Narayana, the oral evidence to the contrary was refused to be accepted and if Ramaiah is not the son of Zear and with the 5th defendant disowning Ex.A.1 registered sale deed itself, the question of perfection of title of defendants 5 and 6 by adverse possession also did not arise. Ex.A.1 was considered to be sham and nominal and as the mortgage stood discharged by efflux of time, the trial Court decreed the suit for recovery of possession, while directing the parties to bear their own costs. 8. In the first appeal, appellants 14 to 20 were considered as the legal representatives of the deceased 1st appellant/1st defendant. 9. The first appellant Court rendered the impugned judgment referring to the rival pleadings, contentions and evidence and the grounds of challenge and considered the sustainability of the judgment and decree of the trial Court. The appellate Court found P.W.1 to be corroborated by P.W.3, while the oral and documentary evidence of the defendants was found to be contradictory between themselves and with the pleadings. The mortgage was noted to have been stated by D.Ws.1 to 3 to be in favour of 10 persons and the appellate Court agreed with the conclusions of the trial Court on all fours and dismissed the appeal with costs. 10. In the second appeal, the appellants contend that the plaintiff’s father is only co-brother of Zear and not real brother and no document was produced to prove the usufructuary mortgage. The plaintiff did not seek any declaration of title and Ex.A.1 registered sale deed is a public document binding on the parties. The suit is barred by limitation and the land was redelivered to defendants 5 and 6 after expiry of the mortgage period of 10 years. Rangamma’s ownership was proved and Nambaiah’s mortgage was not proved by the documents on record and hence, they suggested that 11 substantial questions of law arise for consideration in the second appeal. 11. The second appeal was admitted by a learned Judge of this Court on 03-09-2004 on the same questions, which are as follows: 1. Whether the entries made in the revenue records are presumed to be true under Section 6 of Record of Rights Act ? 2. Whether the contents of registered document which is a public document have to be taken as true ? 3. Whether the Court has power to draw adverse inference with regard to adoption without considering the locus standi of the plaintiff, in the absence of any document to show that his father is the real brother of true owner, in as much as when the Court has especially drawn inference with regard to adoption of defendants 5 and 6 ? 4. Whether the judgment and decree passed on surmises, conjectures, suspicions and based on no evidence is a valid one ? 5. Whether the decree based on no evidence and not born on record amounts to perversity ? 6. Whether the interpretation of a document amounts to substantial question of law ? 7. Whether the Court has passed the decree travelling beyond the scope of pleadings ? 8. Whether the plaintiff has to succeed or win his case basing on merits of his case, but not basing on the defects of the defendants ? 9. Whether the questions can be framed on assumptions and based on no evidence ? 10. Whether the burden of proof lies on the persons claiming right over the property ? 11. Whether the finding of the Courts below is perverse and within the ambit of substantial questions of law ? 12. Heard the learned counsel for both parties. 13. The points that arise for consideration in the second appeal are the 11 questions on which the second appeal has been admitted. 14. The presumption of truth of the entries in the revenue records, the presumption of truth of the contents of a registered document, the absence of documentary proof of Nambaiah being the brother of Ramaiah, etc., are not questions of law, pure and simple, but at best be considered to be mixed questions of law and fact, the legal effect being based on factual conclusions. Questions 4 to 11 are about the Courts below not basing their conclusions on the broad human probabilities arising out of the evidence on record or placing burden of proof wrongly on the defendants and not the plaintiff or improperly or perversely appreciating the oral and documentary evidence etc. In effect and substance, all the 11 questions seem to suggest that the factual and legal effect of oral claims of the witnesses and the contents of the documents were not appreciated in accordance with accepted legal principles by the trial and appellate Courts. 15. While the first appellate Court is not as elaborate as the trial Court in its analysis and discussion of the evidence on record, its affirmation of the conclusions of the trial Court is also based on what it considered the same probabilities arising out of the evidence on record. The trial Court had been detailed to a fault in considering the rival pleadings, contentions and evidence and as noted by it, the usufructuary mortgage of the land itself for a period of 10 years is not in dispute and the parties are only at dispute as to who had mortgaged the land. While admitted facts need not be proved, the fact that Rangamma and mother of the plaintiff are real sisters, is also not in dispute. The names of the usufructuary mortgagees as found in the entries in the revenue records are not in dispute and even the claim of defendants 5 and 6 being under Ex.A.1 registered sale deed was true. The entries in the revenue records in favour of defendants 5 and 6 were obviously consequential to Ex.A.1 registered sale deed and if the usufructuary mortgage is admitted and not disputed, the right of the vendors under Ex.A.1 to convey any title to defendants 5 and 6 is non-existent. While the entries in public records can be presumed to be correct and genuine in the absence of any contrary proof, the voters’ lists would not have mentioned that Ramaiah is son of Narayana, if he had been adopted by Rangamma, wife of Zear. Like the usufructuary mortgage, the adoption is equally not evidenced by any document and the trial Court believing and the appellate Court affirming the probability of the mortgage of the land by Nambaiah cannot be considered to be divorced from the broad human probabilities arising out of the evidence on record. The very claim of purchase under Ex.A.1 by defendants 5 and 6 is antithesis to their claim of succeeding to the property on the adoption of their father and the plaintiff being admittedly the only son of Nambaiah is entitled to resume the land on expiry of the period of usufructuary mortgage. While the plaintiff did not challenge the rejection of the claim for mesne profits by both the Courts below, if the period of mortgage was 10 years and the suit was filed within 30 years from the expiry of the period of mortgage, any bar of limitation also has no place and the elaborate reasoning adopted by the trial Court in its conclusions of fact needs no replication sentence by sentence and the confirmation of such factual conclusions by the first appellate Court, which is the final Court of fact finding, does not appear to be vitiated by any fatal legal lacunae. The questions raised, therefore, do not appear to be involving any substantial questions of law and irrespective of the nature of questions, on which the second appeal is admitted, the answer to such questions cannot be in the affirmative in the light of the circumstances stated above. In either view, the second appeal has to fail. 16. Accordingly, the second appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 24-10-2011 Svv