THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.1286 OF 2006 DATE:13.04.2011 BETWEEN: Bala Veeraiah .. Appellant And Dodda Seshagiri Rao and others .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO S.A.No.1286 of 2006 JUDGMENT: This second appeal is directed against the judgment and decree dated 23.10.2006 passed by the Senior Civil Judge, Sathupally, Khammam District in A.S.No.1 of 2004 whereby and whereunder the learned Senior Civil Judge reversed the judgment and decree dated 30.09.2003 passed by the learned Junior Civil Judge in O.S.No.99 of 2001. I have heard the learned counsel appearing on either side. For convenience sake, I would like to refer the parties as “the plaintiff and the defendants”. The plaintiff filed the second appeal. He filed the suit for permanent injunction in respect of schedule mentioned lands of an extent of Ac.9.04 guntas comprising of three survey numbers viz. Sy.No.100 of an extent of Ac.3.22 guntas, Sy.No.102 of an extent of Ac.2.22 guntas and Sy.No.103 of an extent of Ac.3.00 of Naidupeta village in Dammapeta mandal of Khammam District. The plaintiff claimed to be the owner of the said lands, in possession and enjoyment of the said lands the suit property is said to be part of the ancestral property of the joint family fell to his share under partition between him and his brothers which took place in the years 2000. He filed the suit seeking the relief of permanent injunction against the defendants alleging that without any manner of right whatsoever they attempted to occupy the schedule mentioned lands by force. On the other hand, the defendant No.1 contended that in fact, his mother is the owner and possessor of land of an extent of Ac.1.20 guntas in Sy.No.101/A/2 and of an extent of Ac.2.00 of land siutated in Naidupeta village of Dammapeta mandal. That his father owned an extent of Ac.6.20 guntas of land in Sy.No.103 of Naidupeta revenue village and now the dispute is in respect of said lands, the revenue records are being maintained in the name of his father, he and the plaintiff belong to different communities, they do not have any relationship and therefore, the version of the plaintiff that the land comprising Sy.No.103 was divided among different sharers is not correct. According to the first defendant, the plaintiff altered the survey number by tampering with the revenue records and filed the suit for permanent injunction to grab the land of extent of Ac.6.20 guntas in Sy.No.103 which actually belongs to him. The only issue on which both parties went on trial before the learned trial Court is whether the plaintiff is entitled for permanent injunction as prayed for. Before the learned trial Court PWs.1 to 3 were examined and Exs.A-1 to A-9 were marked on behalf of the plaintiff. Whereas, DWs.1 to 5 were examined and Exs.B-1 to B-24 were marked on behalf of the defendants. The learned trial Court took into consideration the entire oral and documentary evidence on record and granted the relief of permanent injunction in favour of the plaintiff and against the defendants and consequently decreed the suit filed by the plaintiff. However, the learned first appellate Court reversed the finding of the trial court and dismissed the suit filed by the plaintiff. Being aggrieved, the plaintiff filed the present second appeal. I have heard the learned counsel appearing for the appellant/plaintiff and the respondents/defendants. In fact, in the second appeal no substantial question of law arises for consideration. However the second appeal was admitted on the challenge made by the plaintiff to the judgment and decree passed by the learned first appellate court on the ground that the said judgment is perverse and the finding recorded are contrary to the evidence on record. Here it would be relevant to mention that this Court can interfere with the findings of fact recorded by the first appellate court, if such finding are not based on evidence or if they are perverse. The learned trial Court relied on Ex.A-1 ROR passbook and Ex.A-2, certified copy of proceedings of panchanama of mandal revenue surveyor dated 22.05.2001, Ex.A-3, pahani for the year 2000-01 issued by the office of the M.R.O., and Ex.A-4 form No.IV issued by the Tahsildar, dated 30.03.1972. It also relied on Ex.A-5 certificate issued by the M.R.O., Dammapeta, dated 20.01.1994, Ex.A.6 certified copy of pahani for the year 2001-02 and and Ex.A-7 the notice issued by mandal surveyor. This apart, the trial Court also considered the oral evidence of PWs.2 and 4 who have spoken about the possession and enjoyment of the plaintiff and his cultivating the schedule mentioned lands by raising crops. The crucial evidence which was considered by the learned trial Court is that of PW-3 mandal surveyor who conducted survey, localized the plaint schedule land and submitted a report stating that the plaint schedule land is in Sy.No.100, 102, 103 and the said land belongs to the plaintiff and it is within the boundaries fixed by him with reference to revenue records. The panchanama prepared by the mandal surveyor was marked as Ex.A-2. The contention of the defendant No.1 before the trial Court was that his father has Ac.6.20 guntas of land in Survey No.103 of Naidupeta village which is claimed by him and the defendants are in possession of the said lands. He filed the documents above referred which contain the name of his father, but the said documents are up to the year 1973-74. He did not file any documents pertaining to Survey No.103 after 1974 till the date of filing of the suit. His version is that the lands in Survey No.103 are situated in the agency area, his father’s name is noted in the Pahani Register after 1973-74. The reason assigned by him is that after 1973 there are no sale transactions effected by registered documents in the agency area and therefore, for the subsequent period the name of his father is not found in the revenue records. The reasons stated by the defendant No.1 do not appear to be convincing since it is not his case that the plaintiff purchased the land from his father at any point of time. Thus, the first defendant is not able to explain as to how his father’s name was not continued in the relevant revenue records after 1974. Moreover, the defendant No.1 specifically pleaded in the written statement that the suit schedule property in Survey No.103 of Naidupeta village is in non-agency area, but gave totally contradictory version before the trial Court that the suit schedule land is situated in the agency area. Obviously, therefore, the first defendant made a vain attempt before the learned trial Court for not filing any documents relating to the suit land subsequent to 1974 either in his name or in his father’s name. It is significant to notice in this context that the first defendant did not file even a single document relating to the suit schedule property showing his name. On the other hand, it is the specific case of the plaintiff that his father purchased the suit schedule lands in or about years 1954-56 from one Mahipal and subsequently ROR pass book was issued in his name in respect of the said lands and he filed Ex.A.1 ROR pass book to prove the same. It is also his version that subsequently, the land in Survey No.103 was sub-divided after a survey was conducted by PW.3-Mandal Surveyor of Dammapeta. PW.3 the Surveyor also supported the version of PW.1 and his evidence is to the effect that he surveyed the land and fixed the boundaries after making sub- divisions. Ex.A.2 is the panchanama prepared by the surveyor. The other documents which are referred above clearly show that the plaintiff is in possession of the schedule mentioned land on the date of filing of the suit. In the instant case, the crucial question to be examined is as to whether the plaintiff is in possession of the schedule mentioned land on the date of instituting the suit. The contention that the plaintiff did not file any documents showing possession prior to 2000 and the documents filed by him from the year 2000 were issued just prior to the filing of the suit has no basis. The first defendant pleaded that the plaintiff has tampered with the revenue records by altering the Survey No.103, but he did not substantiate the said contention before the trial Court by adducing any sort of evidence or bringing about any circumstances showing tampering of revenue records by the plaintiff with the connivance of the revenue authorities. The plaintiff’s version is that the dispute is with regard to Ac.3.00 of land in Survey No.103 of Naidupeta revenue village and to substantiate the fact that he has title to and has been in possession of the schedule mentioned land, he adduced enough documentary and oral evidence which is referred above. Exs.A.6, A8 and A-9-the certified copies of pahanies clearly show that the plaintiff is in possession and enjoyment of the suit land in Survey No.103 of Naidupeta Village on the date of the suit. Whereas, Exs.B.6 to B.24 – land revenue receipts are only prior to 16.03.1974 and they do not contain the name of the first defendant. Though the entries made in Record of Rights can not be considered as documents of title, they are very much crucial in proving the title of the person whose name is noted therein. Therefore, unless contrary is proved, the entries made in the Record of Rights are prima facie proof of the title or possession as the case may be. In the instant case, Ex.A.1 the original title deed shows that the plaintiff’s father is the owner of the property and the other documents referred to above filed by the plaintiff indicate that subsequently the unregistered sale in favour of the plaintiff’s father was regularized by the revenue authorities and the name of the plaintiff was mutated in the revenue records. Exs.A.6 to A.9 – certified copies of pahanies clearly show that the plaintiff has been in possession and enjoyment of the schedule mentioned land comprising Survey No.103 of Naidupeta Village, Dammapeta Mandal, Khammam District. In fact, in the instant case, there was no dispute regarding the boundaries and the finding recorded by the trial Court about the boundary dispute is only imaginary. The plaintiff estabalished his title and possession in respect of the schedule mentioned land by adducing enough evidence oral and documentary, he proved that he has been in possession of the schedule mentioned land on the date of the suit. By incidentally going in to question of title, the learned trial Court also found that the plaintiff could be able to prima facie establish his title to the property, the learned trial Court on the basis that the suit being for injunction simplicitor granted the decree of perpetual injunction in favour of the plaintiff relying on the evidence adduced by him regarding the possession of the schedule mentioned land on the date of the suit. The learned first appellate Court did not assign any convincing reason for reversing the finding of the learned trial Court. The first appellate Court reversed the finding of the trial Court on illusory and untenable grounds. The findings recorded by the learned first appellate Court are not based on evidence forthcoming in the present case and can undoubtedly be said to be perverse. This Court, therefore, in exercise of powers under Section 100 of C.P.C. can interfere with the said findings in the second appeal. The decree and judgment dated 23.10.2006 passed by the Senior Civil Judge, Sattupalli, Khammam District in A.S.No.1 of 2004 is therefore, set aside and the decree and judgment dated 30.09.2003 passed by the Junior Civil Judge, Sattupalli, Khammam District is confirmed. The second appeal succeeds and the same is allowed. Having regard to the facts and circumstances of the case, there shall be no order as to costs. _______________ Date:13.04.2011 R. KANTHA RAO, J Kvrm/ccm THE HON’BLE MR JUSTICE R. KANTHA RAO S.A.No.1286 OF 2006 DATE:13.04.2011