IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.1131 of 2010 Between: Harijan Buggaiah and another .. Appellants AND G. Bheemamma and others .. Respondents JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.98 of 2006 on the file of the Court of II Additional District Judge (Fast Track Court) at Mahabubnagar, dated 06-08- 2010 by which the judgment and decree in O.S.No.307 of 2003 on the file of the Court of Junior Civil Judge, Mahabubnagar, dated 24-10-2006 dismissing the suit with costs were confirmed. The factual background for the dispute is that the appellants claimed that their father used to cultivate the suit land of Ac.6.00 in Sy.No.22 of Jamalpur village in which they constructed a house towards north in 1985 with the permission of Grampanchayat. They claimed that land revenue was paid by them and a final patta was granted to them by the Government on 14-06-1996. They also claimed to have dug an agricultural well in the land drawing water from it with an oil engine. Claiming Ac.2.15 guntas in Sy.No.22 to have been originally assigned to Godugu Chandraiah and later transferred to G. Bhemamma/the 1st respondent, the appellants claimed interference with their possession of the suit land by respondents 1 to 4 in April, 2003. The appellants claimed to have raised jawar crop, which was harvested in July, 2003 and alleged the respondents 1 to 4 to have removed even the protective fencing around the suit land. Claiming to be poor Harijans, the appellants sought for a permanent injunction against the respondents 1 to 4. The respondents 1 to 4 claimed that the lands assigned to them by the Mandal Revenue Officer, Koilkonda were shown as the lands of the appellants in the suit due to political pressure and the suit impelading the Mandal Revenue Officer is not maintainable without the statutory notice under Section 80 of the Code of Civil Procedure. The respondents 1 to 4 claimed that the appellants constructed their residential house in Sy.No.22/2 in the piece of land given to them by the 1st respondent and some land revenue receipts were obtained by the appellants in collusion with the Village Administrative Officer. The survey numbers mentioned were incorrect and a well exists in the lands of the 2nd respondent. No fencing or wall were raised by the appellants, but they were raised by the respondents 1 and 2. The respondents 1 to 4, therefore, desired the suit to fail as the appellants were never in possession. The Mandal Revenue Officer impleaded as the 5th defendant in the suit remained ex parte before the trial Court. The trial Court framed issues about the identifiability of the suit land, ownership and possession of the suit land with the appellants and the entitlement of the appellants for a permanent injunction. During trial, the trial Court examined PW.1 and DWs.1 to 4 and marked Exs.A.1 to A.9 and B.1 to B.9. The trial Court rendered its judgment, firstly noting the burden of proof to be on the appellants and observed Ex.A.1- permission letter to be in fact a receipt for payment of Rs.30/- towards permission. The xerox copies of the cist receipts under Exs.A.2 and A.3 were considered inadmissible, while Exs.A.4 and A.5 final pattas were noted to be containing the name of Harijan Buggaiah and Buggaiah and Mogulaiah respectively not showing clearly in whose favour the pattas were given. Corrections in the patta pass books and title deeds marked on behalf of the appellants were also taken adverse note of and on the other hand the trial Court referred to the father of the 2nd respondent being the original assignee in respect of Ac.2.15 guntas of land. The absence of examination of any independent witnesses by the appellants except the first appellant himself, the absence of clear proof of the identity of the land claimed, the absence of clear proof of possession etc., led to the trial Court deciding the issues against the appellants, while clearly observing that the ownership of the appellants need not be decided in this case, which was filed only for a permanent injunction and not for declaration of ownership. The dismissal of the suit with costs for that reason led the appellants to prefer the first appeal, the judgment and decree in which are the subject matter of the present second appeal. In the impugned judgment, the First Appellate Court again referred to the rival pleadings, evidence, issues involved and the judgment of the trial Court and considered the points about the possession and enjoyment of the appellants on the date of the suit and their entitlement to a permanent injunction, if there are grounds for interference with the judgment and decree of the trial Court. After noting the submissions of the learned counsel for both parties, the First Appellate court also observed that PW.1 admitted that he does not know how many years back he paid land revenue to the Government and that he had not filed any pahanies to show his possession. The First Appellate Court also noted that the pattas Exs.A.4 and A.5 were not accompanied by any sketches to identify the land and no revenue record was even produced by the appellants to show their possession as on the date of the suit nor did the appellants examine any of the neighbours to the land and consequently, the First Appellate Court also opined that in the absence of locating and identifying the suit land on ground, no equitable relief of perpetual injunction can be sought for. The documents filed by the appellants were found to be not helpful as opposed to Exs.B.1 to B.9 probablising the possession of the respondents 1 to 4 over Ac.2.15 guntas in Sy.No.22/2. The Appellate Court also felt that the cross-examination of DWs.1 to 4 did not elicit anything useful for the appellants and it also noted that the appellants did not even take the assistance of any Advocate Commissioner for identification of the land claimed. The appellants were, hence, considered to have not established their right to a permanent injunction and the First Appellate Court also observed that the proper remedy of the appellants is to file a suit for declaration of their ownership and other consequential reliefs. The dismissal of the appeal without costs led the appellants to file the second appeal again reiterating their factual contentions and taking the aid of the Andhra Pradesh Assigned Lands (Prohibition on Transfer) Act, 1977, the suit map, the existence of residential house of the appellants in Sy.No.22 etc. They contended that substantial questions of law arise in the second appeal about the courts not considering the admitted fact of assignment of land by the Government to the appellants in Sy.No.22, legality of the claims of the respondents 1 to 4 against the provisions of the Andhra Pradesh Assigned Lands (Prohibition on Transfer) Act, 1977, failure to consider the suit map and failure to act upon the longstanding possession and enjoyment since the time of their forefathers in the residential house in the suit property. They, therefore, desired the judgments and decrees of the Courts below to be reversed. Sri M. Damodar Reddy, learned counsel for the appellants and Sri N. Ashok Kumar, learned counsel for the respondents 1 to 4 are heard and the Mandal Revenue Officer is stated to be not a necessary party to the second appeal in view of his being ex parte before the Courts below. The relevant provisions of the Code of Civil Procedure in Section 100 and Order 42 Rule 2 mandate that the High Court should be satisfied about the existence of substantial questions of law justifying the entertainment of a second appeal and the High Court should formulate such questions for hearing of the same, any other question or ground being open to be urged only with the further leave of the Court. Precedents have uniformly deprecated routine admission of second appeals without examining the existence of and without formulating such substantial questions of law. Therefore, the point for consideration at the stage of admission is whether any substantial questions of law do arise in the second appeal. The rival contentions were sought to be proved through the oral and documentary evidence placed by the parties before the trial Court and as noted by the Courts below, the appellants have not examined even a single independent witness including any neighbour to the suit land to corroborate their contentions as against the evidence of DWs.1 to 4, which did not contribute to any admissions or circumstances, which can be construed as favouring a conclusion in favour of the appellants. The Pahanies from 1994-1995 to 1999-2000 marked as Exs.B.4 to B.9 apart from the certified copies of the Record of Rights, Ex.B.3 and the Patta pass book in Ex.B.2 were in corroboration of the claims of the respondents 1 to 4 and it is well settled that though the revenue records do not provide proof of title, they can afford prima facie proof of possession in the absence of any other evidence. As opposed to the same, the appellants did not file a single pahani and without replicating the reasons for not accepting Exs.A.1 to A.9 herein again, the reasons given by the First Appellate court in not accepting the documents of the appellants cannot be considered perverse or unreasonable. The findings of the Courts below about the absence or proof of possession of the appellants over the suit land by the date of the suit thus do not appear to be susceptible for any interference on the ground of improper or inappropriate appreciation of the evidence placed before them. The existence of the residential house of the appellants in a corner of the suit land was claimed by the respondents 1 to 4 to be permissive under the 1st respondent and in the absence of proof of the location and identity of the land claimed by the parties, the relief of permanent injunction could not have been granted in respect of a specifically identified plot of the land in favour of the appellants under the circumstances. While any weakness in the case of the defendants cannot be a ground for the success of the plaintiffs, the findings of fact thus do not appear to offer any substantial questions of law to be considered herein. Any application of the statutory prohibition under the Andhra Pradesh Assigned Lands (Prohibition on Transfer) Act, 1977 also cannot be conceived in the absence of any proof of the identity of the land allegedly assigned to the appellants. While the findings of fact are, therefore, not interferable at this stage, the trial Court itself made it clear that the ownership of the appellants over the suit schedule land need not be decided in this suit, which is only for a permanent injunction and not for declaration of ownership. The sentiment was reiterated in the First Appellate Court’s judgment, which said that the appropriate remedy of the appellants is to file a suit for declaration of their ownership and for other consequential reliefs. Both the Courts below, therefore, have left open to the appellants to have their ownership/title to the suit schedule land declared in an appropriate legal proceeding to which they may take recourse to, if they are so advised and they so desire and also obtain any consequential reliefs to which they are entitled to. It is suffice to state that any attempt by the appellants to take recourse to such legal proceedings shall not be prejudiced by any observations in the judgments of the trial Court or the First Appellate Court or this Court concerning the question of proof of lawful possession of the suit schedule land by the date of the suit. Any such legal proceedings have to be decided independently on their own merits in accordance with law. Subject to the above observations, the second appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 30-09-2011 Ksn