THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.416 OF 2009 Date: 19.11.2009 Between: Bagli Ram Reddy. … Petitioner and M. Prabhakar Reddy. … Respondent. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.416 OF 2009 ORDER: Heard Sri N. Sridhar Reddy, learned Counsel for the petitioner and Sri Gode Satish, learned counsel for the respondent and, at their request, the C.R.P. is being disposed of at the stage of admission. This revision has been preferred by the petitioner-defendant, aggrieved by the order of the Senior Civil Judge, Medak in C.M.A. No.2 of 2008 dated 03.12.2008, confirming the order of the Junior Civil Judge, Andole at Jogipet in I.A. No.119 of 2006 in O.S. No.57 of 2006 dated 31.01.2008. The suit in O.S. No. 57 of 2006 was filed by the respondent-plaintiff seeking cancellation of Ex.A-2 cancellation deed whereby the petitioner herein had cancelled the earlier sale deed executed by him, in favour of the respondent- plaintiff, on 19.07.2006. I.A. No.119 of 2006 was filed by the respondent-plaintiff, under Order 39 Rules (1) and (2) C.P.C, seeking temporary injunction to restrain the petitioners-defendants from interfering with their peaceful possession and enjoyment of the suit schedule property in Survey No.168/A admeasuring AC.3.00 gts in Yelakurthy village, Tekmal Mandal, Medak district. The respondent-plaintiff claimed to be the owner and to be in possession of the suit schedule property. It is his case before the trial Court that he had lent Rs.2,66,560/- to the petitioner herein on 09.03.2004, that the petitioner herein had executed a receipt agreeing to make part payment of Rs.1,00,000/- on or before 31.05.2004 and the remaining amount of Rs.1,66,560/- on or before September/October 2004, failing which he had agreed to execute a registered sale deed in favour of the respondent- plaintiff. When he demanded repayment of the loan the petitioner herein, instead of repaying the amount, is said to have expressed his readiness to execute the sale deed in favour of the respondent- plaintiff towards discharge of a part of the loan amount and to have promised to repay the balance later. The sale deed was registered on 19.07.2004 and the said document contains a recital that possession of the suit schedule property was being delivered to the respondent-plaintiff. It is the respondent-plaintiff’s case that he continues to remain in possession of the property thereafter. The respondent-plaintiff relied on Ex.P-1 to P-11. Ex.P-1 is the registered sale deed, Ex.P-2 is the cancellation deed, Exs.P-3 and P-4 the reply notices, Exs.P-5 and P-6 the acknowledgment cards, Exs.P-7 and P-8 the pattadar pass books, Ex.P-9 demand legal notice, Ex.P-10 true copy of the pahani for the year 2005-2006 and Ex.P-11 true copy of the pahani for the year 2006-2007. The petitioner herein contended before the Trial Court that he had not borrowed Rs.2,66,000/-, but had only borrowed Rs.1,36,000/-; that the respondent-plaintiff had obtained his signatures on blank promissory notes and on blank cheques as collateral security; that, in July 2004, when the respondent-plaintiff insisted on repayment of the money, the petitioner herein was unable to repay the amount because of drought conditions and was constrained to sell the land for the amount borrowed of Rs.1,36,000/- and, while the sale consideration was Rs.1,36,000/-, it was mentioned only as Rs.60,000/- in the sale deed. The petitioner herein contended that, after execution of the sale deed, symbolic possession was delivered to the respondent-plaintiff while he continued to cultivate the land; that he had sought for return of the blank promissory notes and cheques while executing the sale deed; that the respondent-plaintiff did not return the same and had instead issued a notice through Sri P.C. Panthulu claiming Rs.5,00,000/-; that a panchayat was held in the village wherein the respondent-plaintiff is said to have admitted his mistake and to have delivered possession of the suit land to the petitioner herein and, on the advice of the panchayatdars, the petitioner herein had executed the cancellation deed and, since then, it is he who is in possession and enjoyment of the suit land as the absolute owner. He further contended that, if really the sale deed was executed towards part of the debt, it should have been mentioned in the sale deed and, since he was in possession, the question of his seeking dispossession of the respondent-plaintiff did not arise. The Trial Court disbelieved the petitioner’s case regarding the panchayat being held and that the respondent-plaintiff had delivered vacant possession of the suit schedule property. The Learned Judge held that no evidence had been adduced by the petitioner herein in this regard, that no proceedings of the panchayat, alleged to have taken place, had been placed before the Court; that Ex.P-2 cancellation deed appeared to have been executed by the petitioner unilaterally without the consent and knowledge of the respondent-plaintiff and, if really the respondent- plaintiff had agreed to his mistake before the panchayatdars, had delivered possession and thereupon the petitioner herein had cancelled Ex.A-1 sale deed, the photograph of the respondent- plaintiff should have been affixed on the cancellation deed. The Trial Court held that cancellation of the document should be within the knowledge of the person who was going to be effected by such cancellation. With regards Ex.P-10 and P-11, the Trial Court held that these proceedings, for the years 2005-2006 and 2006-2007, disclosed that the respondent-plaintiff was in possession and enjoyment of the suit schedule property, that Ex.R-1 pahani for the year 2004-2005 did show that the petitioner herein was in possession and enjoyment of AC.7.00 gts of land out of Ac.11.37 guntas and one Jaggi Navaz Reddy was in possession of Ac.4.37 guntas; that, though by virtue of Ex.A-1 registered sale deed, the petitioner herein had delivered Ac.3.00 gts of land, Ex.R-2 which is the pahani for the year 2005-2006 disclosed that the petitioner herein was in possession and enjoyment of only Ac.7.00 gts of land. While recording that there were certain suspicious circumstances in the pattedar pass book and title deed, the Trial Court held that these could not be looked into unless a full fledged trial commenced. The Learned Judge relied on Section 6 of the Andhra Pradesh Rights in Land and Pattedar Pass Books Act, 1971 to hold that there was a presumption regarding the correctness of the entries in the record of rights and, as Exs.P-10 and P-11 disclosed that the respondent-plaintiff was in possession, a prima facie case had been made out for grant of injunction. An order of temporary injunction was granted pending disposal of the suit. The Appellate Court, in its order in C.M.A. No.2 of 2008 dated 03.12.2008, notes the recital in the sale deed of possession of the property being delivered to the respondent-plaintiff on the date of Ex.P-1. The Appellate Court held that the petitioner herein, being an educated person, had failed to produce the blank promissory notes and cheques which he claimed to have given to the respondent when he borrowed Rs.1,36,000/-, and not Rs.2,66,560/- as contended by the respondent-plaintiff. The Appellate Court thereafter examined what symbolic possession meant and the manner in which the earlier sale deed was cancelled. On Exs.P-10 and P-11, the Appellate Court accepted that they were issued by the Village Secretary and that Exs.R-1 and R-2 pahanies were filed by the petitioner herein for the years 2004-2005 and 2005-2006 wherein their names are reflected as the owners of the suit schedule land. The Appellate Court notes that, while in Ex.R-1 i.e., pahani for the year 2004-2005, the petitioner herein is shown to be in possession of the entire extent of Ac.11.37 guntas in Survey No.168/A, in Ex.R-2 i.e., pahani for the year 2005-2006 he was only shown as the owner of Ac.7.00 gts of land which necessitated an inference that the said entry was made after Ac.3.00 gts of land was sold and delivered to the respondent- plaintiff. The Appellate Court held that the revenue authorities had rightly shown in Ex.R-1 that the petitioner was the owner of Ac.7.00 gts of land, that the recitals in the sale deed showed that possession of the property was delivered to the respondent and that the pahanies, in Exs.P-10, P-11 and Ex.R-2, were issued by the Village Secretary whereas Ex.R-1 pahani was issued by the Mandal Revenue Officer. The Appellate Court observed that, as Ex.R-1 pahani reflected the name of the petitioner herein as the owner of Ac.11.37 guntas and Ex.R-2 confined his ownership to Ac.7.00 gts, it was evident that the revenue records had rightly reflected the sale of Ac.3.00 gts of land by the petitioner to the respondent-plaintiff. The Appellate Court held that the documentary evidence produced by the respondent-plaintiff, including those under Exs.P-1 and P-2, revealed that the petitioner had voluntarily executed Ex.P-1 sale deed and had unilaterally cancelled it without the knowledge of the respondent-plaintiff and, therefore, the contents in Ex.P-2 cancellation deed did not suffice to uphold the petitioner’s claim with regards his possession over the property. The Order of the Trial Court was confirmed holding that it did not suffer from any error or illegality. Sri N. Sridhar Reddy, Learned Counsel for the petitioner, would submit that, while the sale deed was registered on 19.07.2004, even in Ex.R-1 pahani for the year 2004-2005, which included a period posterior to the sale, the petitioner herein was shown as the occupant; that he along with his son Jaggi Navaz Reddy were shown as the occupants of Ac.11.37 gts; that, under Section 5 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971, the entries in the records of rights could only be made by the Mandal Revenue Officer and it is only if the pahanies were issued by the Mandal Revenue Officer would the presumption under Section 6 of the said Act arise. Learned Counsel would point out that the pahanies in Exs.P-10 and P-11 were both issued by the Village Secretary and, as is evident from the recital therein, only for the purpose of obtaining a bank loan. As such, Exs.P10 and P-11ought not to have been relied upon by both the Courts below. Learned Counsel would vehemently contend that, since an order of interim injunction could only be granted; if the respondent-plaintiff established that he was in possession of the suit schedule property as on the date of filing of the Suit and as the burden was on him to establish this fact, absence of evidence in this regard would necessitate the relief, sought for, being refused. Learned Counsel would submit that the recital in the sale deed merely reflected possession having been given on the date of the sale deed and as the valid pahani for the year 2004-2005, issued by the Mandal Revenue Officer, clearly showed that the petitioner was in possession of the Suit schedule lands thereafter, the burden lay on the respondent-plaintiff to establish before the Court below that he was in possession of the Suit schedule property as on the date of filing of the Suit. According to the Learned Counsel, as Exs.P-10 and P-11 were required to be ignored and Ex.R-1 could not be relied upon to establish possession as on the date of the suit, no other evidence had been adduced by the respondent-plaintiff in this regard and he was, therefore, not entitled to the relief of temporary injunction. Sri Gode Satish, learned Counsel for the respondent-plaintiff would make a detailed analysis of both the Trial Court and the Appellate Court judgments. Learned Counsel would submit that the entire case of the petitioner rested on a subsequent panchayat meeting which was disbelieved both by the Trial Court and the Appellate Court. Learned Counsel would contend that, while the entry in the Record of Rights was required to be made by the Mandal Revenue Officer, there was no reason for the Courts below to disbelieve the pahanies issued by the Village Secretary for the years 2005-2006 and 2006-2007 and the recital therein; that the recital therein that it was issued only for the purpose of a bank loan was because in the application submitted by the respondent- plaintiff to the competent authorities the respondent-plaintiff had requested that a pahani be issued for the purpose of a bank loan. Learned Counsel would submit that, since possession follows title, the recital in the sale deed that possession was delivered was sufficient for the Courts below to grant temporary injunction. He would contend that, under Section 6 of the Act, a presumption is required to be drawn regarding the validity of Exs.P-10 and P-11 pahanies and, as both these documents showed that it was the respondent-plaintiff who was in possession of the Suit schedule property, both the Courts below had rightly granted injunction in their favour. Learned Counsel would place reliance on Nathoo Lal v. Durga Prasad[1]; Badugu Venkata Durga Rao v. Surneni Lakshmi[2]; Pendoti Lingaiah v. Chintha Muthaiah[3] and Ganta Chinna Shankaraiah v. Nadunoori Swamy[4]. Learned Counsel would submit that the entry in the pahani for the year 2004-2005, wherein the petitioner’s name is reflected in the occupant’s column, was only because the respondent- plaintiff had applied for grant of a pass book under the Act subsequent thereto on 17.12.2004 and, on the very same day i.e., 17.12.2004, the respondent-plaintiff’s name was entered in the revenue records. Section 4 of the Act relates to acquisition of rights to be intimated and, under Sub-Section (1) thereof, any person, who acquires any right as occupant of a land, is required to intimate in writing his acquisition of such right to the Mandal Revenue Officer and the Mandal Revenue Officer is required to acknowledge receipt of such an intimation. Section 5 relates to amendment and updating of the Record of Rights and, under Sub-Section (1) thereof, on receipt of intimation under Section 4, the Mandal Revenue Officer is required to determine whether, and if so in what manner, the Record of Rights may be amended in consequence thereof and shall carry out the amendment in the Record of Rights in accordance with such determination. The power to make an entry in the Revenue Records is conferred by Section 5 of the Act only on the Mandal Revenue Officer and not on any other authority subordinate to him including the Village Secretary. Section 6 of the Act provides that every entry in the Record of Rights shall be presumed to be true until the contrary is proved or until it is otherwise amended in accordance with the provisions of the Act. It is only if there is an entry in the Record of Rights would it necessitate a presumption of its truth until the contrary is proved. The question which the Courts below have failed to examine is whether the Record of Rights reflected the respondent-plaintiff to be in possession of the Suit schedule land on the date of filing of the suit i.e., 18.12.2006. While the pahani for the year 2006-2007 may well have constituted sufficient evidence in this regard, it cannot be lost sight of that the said certificate was issued by the Village Secretary, for the purpose of obtaining a bank loan, and not by the Mandal Revenue Officer who is the competent authority to make an entry in the Record of Rights. What the Courts below have failed to examine is as to how the petitioner’s name, along with that of his son, was reflected as occupants in the pahanies for the year 2004-2005 though the respondent-plaintiff’s name is said to have been entered in the Record of Rights on 17.12.2004 itself. While the findings recorded, both by the Trial Court and the Appellate Court, that no credence could be given to the panachayat meeting would not necessitate interference in Revision proceedings under Article 227 of the Constitution of India, the burden is, nonetheless, on the respondent-plaintiff to establish that he was in possession of the Suit schedule land on 18.12.2006 when the Suit came to be filed. While the recital in the Sale deed that possession was delivered may well have necessitated a presumption that the respondent- plaintiff was in possession, on the ground that possession follows title, the pahani for the year 2004-2005 issued by the Mandal Revenue Officer, which reflects the petitioner to be in possession of the Suit schedule property, casts a doubt regarding the respondent-plaintiff’s contention to have remained in continuous possession of the Suit schedule land after registration of the sale deed. No reliance can be placed on Exs.P-10, P-11 and Ex.R-2 as none of them were issued by the Mandal Revenue Officer who, admittedly, is the authority competent to issue the pahani. Both the Courts below have failed to advert to these aspects of the matter. Now the judgments relied upon by the Learned Counsel for the respondent-plaintiff. I n Nathoo Lal1, the Supreme Court observed that the Courts below had held that the plaintiff was in possession of the house and, since there was no evidence that he was dispossessed, it must necessarily be presumed that he continued to remain in possession. As noted hereinabove, the pahani for the year 2004-2005 issued by the Mandal Revenue Officer reflects that the petitioner was in possession of the Suit schedule land even after registration of the sale deed and a pattadar pass book being issued in favour of the respondent- plaintiff. The judgment in Nathoo Lal1 is, therefore, of no assistance to the respondent-plaintiff herein. The judgment in Badugu Venkata Durga Rao2, is relied upon to contend that the petitioner herein could not have cancelled the sale deed registered earlier. This is a matter for adjudication in the Suit and has no bearing on the question whether the petitioner or the respondent-plaintiff was in possession of the Suit schedule property on the date of filing of the suit. In Pendoti Lingaiah3, this Court noted that, based on the registered sale deed, the revenue authorities had issued a title deed and pattadar pass book in favour of the petitioner which was also marked as ExsP-1, P7 and P8 respectively, that a certified copy of the adangal and the certificate of encumbrance in relation to the said land showed that the petitioner therein was in possession of the property; that, in the context of consideration of an application filed under Order 39 Rules 1 and 2, this material constituted a valid basis for granting relief and that the Court could deny relief only if there was stronger evidence or material in favour of the other party. This judgment is also of no assistance to the respondent in as much as, in the case on hand, subsequent to the registration of the sale deed and the pattadar pass book being issued to the respondent, the pahani for the year 2004-2005 reflects the petitioner as being in occupation of the suit schedule land. I n Ganta Chinna Shankaraiah4, this Court held that, in view of Section 6 of Pattadar Passbook Act, there was a presumption as to the correctness of the entries. As noted hereinabove, while Section 6 of the Act does necessitate a presumption regarding the correctness of the entries made in the Record of Rights, the question which arises is what were the entries made with regards possession of the parties to the Suit schedule land around the time the Suit was filed and, since the pahanies marked as Exs.P-10, P-11 and R-2 have not been issued by the Mandal Revenue Officer, no reliance could have been placed by the Courts below thereupon. It is not for this Court, in proceedings under Article 227 of the Constitution of India, to record a finding as to who was in possession of the Suit schedule property as on the date of the suit, as these are matters for the Court below to determine on the basis of the evidence on record. I consider it appropriate, therefore, to set aside the order of the Senior Civil Judge, Medak in C.M.A. No.2 of 2008 dated 03.12.2008 and remand the matter back for its consideration afresh in accordance with law within a period of two months from the date of receipt of a copy of this order. The Appellate Court shall pass an order afresh uninfluenced by any observations made in the Order under revision. Both parties are at liberty to file additional documentary evidence in support of their respective claims. The C.R.P. is allowed to the extent indicated hereinabove. Date: 19-11.2009 RAMESH RANGANATHAN,J MRKR [1] AIR 1954 SC 355 [2] 2001(1) ALD 86 [3] 2006(5) ALD 697 [4] 2006(6) ALT 178