THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.299 of 2009 March 04, 2011 Between: Kolar Narayana Raju, S/o. late Krishnama Raju ... Appellant And Kolar Dharma Raju, S/o.Late Krishnama Raju And another ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.299 of 2009 JUDGMENT: This second appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) by the first defendant in the Original Suit against the concurrent judgment of the Court of the Senior Civil Judge, Punganur, in A.S.No.19 of 2007 dated 27.3.2008 confirming that of the decree passed by the Court of the Principal Junior Civil Judge, Punganur in O.S.No.224 of 2000 dated 28.6.2007. The first respondent, who is none other than the younger brother of the appellant, instituted the suit for permanent injunction restraining the appellant and the second respondent from interfering with the suit schedule land admeasuring Acs.0.50 in S.No.233/4-B situated at Balijapalle village, Raganipalle group of Punganur Mandal in Chittoor District. He was unsuccessful in both the Courts below. Hence the second appeal. The fact of the matter is noticed below in brief by referring to the parties as they are arrayed in the suit. The plaintiff alleged that the suit schedule property is part and parcel of the land in S.No.233/4. Out of the same, an extent of Acs.1.49 belongs to the joint family comprising of the plaintiff, first defendant, Kolar Krishnama Raju and Kolar Kesavaraju. It was in possession of the joint family since 1989. The land was purchased under registered sale deed dated 15.9.1975 with joint family funds in the name of the first defendant but it was treated as joint family property. In 1989, due to misunderstandings, the plaintiff, the first defendant, Kesava Raju and his father Krishnama Raju divided the land in an extent of Acs.1.49 by oral partition. The suit schedule land fell to the share of the plaintiff who has been in possession and enjoyment of the property since the date of division. On 28.3.1989 with the consent of all the member of the joint family, the Mandal Surveyor effected partition. On the same day by separate proceedings pattadar passbooks were issued by the Mandal Revenue Officer (MRO). The defendants tried to interfere with the land and, therefore, the suit for injunction was filed. The first defendant filed written statement denying allegations that he purchased the property for the benefit of the joint family from out of the joint family funds. He alleged that the suit schedule land is his self acquired property and that he purchased the same under three separate sale deeds dated 15.9.1975, 11.10.1984 and 28.5.1990. Though he admitted the subdivision proceedings, he denied oral partition or the allegation that the suit schedule land fell to the share of the plaintiff. He admitted that when the disputes arose in 1989, the Village elders prevailed upon him. He, therefore, agreed for subdivision of the property and the suit schedule land was mutated in the name of the plaintiff. No instrument was registered in favour of the plaintiff conveying the property in his name, and in the absence of any such registered document; the subdivision does not confer any right on the plaintiff. The first defendant also alleged that the plaintiff sold away the suit schedule land to him for Rs.40,000/- under the agreement of sale dated 05.2.1989, that the plaintiff received Rs.30,000/- as advance agreeing to receive balance in three years, that the plaintiff did not perform his part of the contract and, therefore, the first defendant filed O.S.No.8 of 2001 for specific performance of contract of sale and that is pending. He also alleged that he entered into agreement with the plaintiff for crop sharing. Trial Court framed five issues for consideration. They are as follows: (1) Whether the plaintiff is in possession and enjoyment of the suit schedule property by the date of the suit? (2) Whether the suit schedule property is the joint family property of plaintiff and 1st defendant? (3) Whether the sale agreement dated 05.2.1989 is true, valid and binding on the plaintiff? (4) Whether the plaintiff is entitled for permanent injunction as prayed for? (5) To what relief? During the trial, the plaintiff examined P.Ws.1 to 4 and marked Exs.A1 to A15 and the first defendant examined two witnesses and marked seven documents. The plaintiff marked the proceedings of the Mandal Revenue Officer, the pattadar pass book and the title deed as Exs.A2, A5 and A6 respectively. He also marked Exs.A3 and A4, the two cist receipts, Exs.A7 and A8, the cash receipts issued by Bheemaganipalle Primary Agricultural Cooperative Society Limited (PAC) for the plaintiff. The trial Court, on consideration of the evidence, rejected the Ex.B1 agreement of sale dated 05.2.1989 as forged. He then relied on the Subdivision proceedings Ex.A2, and recorded a finding that the plaintiff proved his possession and enjoyment entitling him for permanent injunction. The first defendant appealed. In the appeal he filed I.A.No.157 of 2001 for appointment of advocate commissioner. An advocate commissioner was appointed who inspected the suit schedule property and filed a report. He was examined as D.W.3 and he filed Exs.C1 to C5. The first appellate Court framed the following points for consideration. (1) Whether the suit schedule property is the joint family property of the plaintiff and 1st defendant? (2) Whether the sale agreement dated 05.2.1989 is true valid and binding on the plaintiff? (3) Whether the plaintiff has been in possession and enjoyment of the suit schedule property with incidental title and entitled for permanent injunction as prayed for? (4) Whether the judgment and decree of the Principal Junior Civil Judge’s Court, Punganur in O.S.No.24 of 2000 dated 8.6.2007 requires variation or modification or confirmation? (5) To what relief the parties are entitled? After reappreciating the oral and documentary evidence and the report of the advocate commissioner, the first appellate Court recorded a finding that the plaintiff proved his possession and accordingly dismissed the appeal. The learned Counsel for the appellant (first defendant) submits that the case of the plaintiff rested on Ex.A2 which was the basis for the pass book and title deed, Exs.A5 and A6. He submits that when the brother of the appellant also filed O.S.No.123 of 2008 claiming that he was also allotted Acs.0.49 in S.No.233. The first defendant enquired and found that Ex.A2 is a fake document and that the FMB obtained by the first defendant would show that there was never in subdivision as claimed by the plaintiff. Therefore he would contend that when the decree for injunction was obtained based on documents, it is unsustainable. Be it noted, along with the second appeal, the appellant filed S.A.M.P.No.655 of 2009 under Order XLI Rule 27 read with Section 151 of CPC to receive the certified copies of the Field Measurement Book (FMB) for Field No.233, report of the advocate commissioner in O.S.No.123 of 2008 and endorsement of the Tahsildar, as additional documents. The Counsel also relies on the decisions in Chapala Chinnabbayi v Naralasetti Anusuyamma[1] a n d North Eastern Railway Admn. v Bhagwan Das[2]. The appellant admitted in his written statement that due to mediation by the elders there was subdivision of the property in S.No.233/4 admeasuring Acs.1.49. He also admitted that the suit schedule land was mutated in the name of the plaintiff. The first defendant’s plea that plaintiff executed agreement of sale, Ex.B1, in his favour itself sufficient enough to support the case of the plaintiff. Section 58 of the Indian Evidence Act, 1872 does not require proof any fact admitted by the party or their agent. Exs.A2, A5 and A6 form one group of documents. Even if Ex.A2, as alleged now, is a forged document, Ex.A5 pattadar passbook carries with it a presumption as to title and possession of the plaintiff. This is made clear by Section 6 of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971, which is to the effect that, “every entry in 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”. The pattadar passbook issued in Form No.XXIV contains the particulars of land personally cultivated and/or given to tenants/mortgagees by the holder of the pattadar passbook. In a suit for permanent injunction, it certainly has quality evidentiary value and cannot be brushed aside. The plaintiff also filed Exs.A3 and A4, the cist receipts, and Exs.A7 and A8, the cash receipts issued by PAC. Even if all these documents are ignored, the admission of the first defendant, in his written statement as noticed supra, cannot be brushed aside. When the partition alleged by the plaintiff is acted upon and is well supported by the documentary evidence, it is not necessary for this Court to allow any application under Order XLI Rule 27 of CPC. It is well settled than an application thereunder can be entertained to enable the Court to pronounce judgment, or for any other substantial cause. None of them exists in this case. Both the Courts below considered the question of fact and the evidence on record and recorded a finding. Any question of law much less a substantial question of law does not arise in this case. The second appeal is, therefore, dismissed. _______________ (V.V.S. RAO, J) March , 2011 YS [1] 2006(1) ALT 293 (DB) [2] (2008) 8 SCC 511