THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO C.C.C.A. No.124 of 1985 JUDGMENT: The plaintiff in O.S.No.368 of 1969 on the file of the Court of Chief Judge, City Civil Court, Hyderabad is the appellant herein. 2. The above suit was filed for declaration that plaintiff is the owner of the land in Sy.Nos.138, 139 and 153 situated at Mirpet circle, saroornagar East tlq, Hyderabad to an extent of Ac.28.32 gts. and for possession of thereof. 3. The plaintiff alleged that he along with his close relative by name Abdullah had purchased and acquired permanent lease of the plaint schedule property situated at Maktha Namdarguda Sewar Mirpet on 22nd Shahrewar 1355 Fasli (1945) from its exclusive owner and possessor Mir Mohammed Ali Khan and obtained a registered lease deed on 25th Shahrewar 135 Fasli. The name of Abdullah included out of love and affection. He contended that plaintiff alone was put in possession on that date and he erected stone pillars, the land demarcated in bandobust through the Tahsil office and has been enjoying the property; that Abdullah had no rights in the property; and he gave up his rights on 20th Amardad 1356 Fasli by executing a relinquishment deed; that he cultivated about Ac.4.00 of land and the rest of it was kept as pasture land for grazing purposes; before the police action in 1948, the plaintiff instead of cultivating himself, gave the land for cultivation to one Teegala Narsaiah in 1947 on condition of payment of Rs.130/- p.a. as lease amount to the plaintiff and the lease amount was paid till 1956; subsequently, he stopped payment of lease amount; that the said Narsaiah inducted the 1st defendant unauthorizedly into possession of the property and the entry in khasra pahani of 1954-55 reflects the same; that the 2nd defendant is claiming rights in the property without any manner of right and hence he filed the suit. 4. Defendants 1 and 2 filed separate written statements but 2nd defendant later remained exparte while 1st defendant alone has been contested the suit. 5. The 1st defendant filed a detailed written statement denying the right of plaintiff’s vendor Mir Mohd. Ali Khan to sell the property and contended that any document executed by the latter does not bind him. He contended that entries in village records are all false and alleged that plaintiff was never put in possession of the plaint schedule properties on the date of execution of the alleged lease deed. He also denied that Abdullah has given up interest in the property under a relinquishment deed executed by him , that plaintiff was in possession and cultivated the land of Ac.4.00 and inducted one T.Narsaiah as a lessee. According to 1st defendant, one Abbas Ali Khan was the inamdar of the suit land and the ancestors of 1st defendant have taken the aforesaid land on lease from the ancestors of Abbas Ali Khan. He contended that 1st defendant has been continuing in possession and enjoyment of the property by paying the lease to the legal heirs of Abbas Ali Khan and also the land revenue; that suit land is inam land and is not alienable and a transfer is prohibited under the provisions of the Prevention of Alienation of Agricultural Lands Act, 1349 Fasli; and consequently the lease is void. The 1st defendant contended that he has been in continuous possession and enjoyment of his own right adverse to the title of plaintiff, if any, and the suit is barred by time and is liable to be dismissed. He also stated that the 1st defendant had applied for a patta before the Inams Tahsildar under the A.P.(T.A) Abolition of Inams Act,1955 as kabiz-e-khadim, that it is pending and this Court has no jurisdiction to try the suit. 6. The 2nd defendant has filed a written statement denying the rights of the plaintiff and contending that one Mir Shujat Ali Khan, the father of 2nd defendant, was the original inam holder; after the death of his father, the name of her uncle Mir Abbas Ali Khan was entered in revenue records as the successor but in fact the 2nd defendant remained in actual physical possession of the property; after death of Mir Abbas Ali Khan, the 2nd defendant approached the revenue authorities for grant of succession in her name; the Sub-Collector by an order dt.20.1.1968 directed her to approach the Tahsildar for grant of patta as imams had been abolished in 1955; that she approached the revenue authorities for issue of inam patta and it was pending. Therefore, she alleged that Mir Mohammad Ali Khan had no right to alienate the property and, therefore, the plaintiff is not entitled to any relief. It was further pleaded that 1st defendant is the tenant of 2nd defendant and is estopped from pleading otherwise. 7. The 1st defendant died and subsequently defendant Nos.4 to 9 were added as parities. The 2nd defendant also died and 3rd defendant was brought on record as his legal representative. Defendant Nos.4 to 9 reiterated the contentions raised by 1st defendant. They pleaded under the provisions of A.P.(T.A) Abolition of Inams Act, 1955 the defendants along with the purchasers from Teegala Narsaiah were granted Occupancy rights certificate by Rveneue Divisional Officer, East, Hyderabad and consequently they are owners of the property. 8. After framing of the necessary issues and after recording the evidence of P.Ws.1 to 6 and D.Ws.1 to 7, the trial Court has dismissed the suit. 9. The plaintiff had preferred an appeal as C.C.C.A.No.189 of 1974. This Court allowed the appeal and remanded the matter for a consideration of all the issues afresh as the earlier judgment did not consider all the relevant material. 10. After the remand, P.W.7 was examined on behalf of the plaintiff and D.Ws.6 and 7 were examined on behalf of 1st defendant. Defendant Nos.1 and 2 died during pendency of appeal and their legal representatives were brought on record. P.W.6 was also recalled and examined. 11. After considering the material evidence on record, the learned Judge dismissed the suit and aggrieved by the said judgment, the present appeal has been filed. 12. This appeal was initially dismissed on 14.11.2011 after contest. 13. Thereafter Rev.CCCAMP No.247 of 2014 was filed to review the judgment on the ground that pending appeal, the 1st appellant had died on 15.2.1988; even though CCCAMP No.4595/1999, CCCAMP No.4596/1999 and CCCAMP No. 4597/1999 were filed to condone delay of 3789 days in seeking to set aside the abatement of the appeal, to set aside the abatement and bring on record his legal representatives, they were not notice or ordered; and the appeal was dismissed on merits; and so the judgment in the appeal is non-est in law . 14. Notice to respondent no.s 1,2,4,5,6,8,14 and 16 were served by way of paper publication. The other respondents were served by registered post. There was no representation on their behalf. 15. By order dt. 30.6.2014, the review petition was allowed since on verification of the record, the contention of review petitioners/ appellants was found to be correct and the appeal was restored to file of the court. 16. Thereafter the CCCAMP nos.4495- 4497/1999 were allowed on the same day condoning the delay in filing the application to set aside the abatement, setting aside the abatement of the appeal and bringing the petitioners therein on record in the appeal as legal representatives of the deceased 1st appellant. 17. Heard the counsel for appellants/ legal representatives of deceased 1st appellant. None appears for the respondents. 18. Now the points that arise for consideration are : 1. Whether the claim of the plaintiff that he is a permanent lessee and entitled to the ownership of the suit schedule property is true? 2. Whether the Civil Court has no jurisdiction to declare the ownership of the plaintiff? 3. Whether the suit is barred by time? POINTS: 9. So far as the title of plaintiff is concerned, he traces it to a lease given by Mir Mohammad Ali Khan in his favour and also Abdullah and claims to have brought under cultivation of Ac.4.00 of land and the remaining land is a pasture land. The copy of lease deed of the year 1945 is marked as Ex.A-5. The relinquishment deed said to have been given by Abdullah, which is evidently unregistered is Ex.A-6 and so was not considered by trial court. The fact that the suit lands are inam lands and originally they belonged to the Jagir village of one Maharaj Kishan Prasad Bahadur is not in dispute. Therefore, in order to show that Mir Mohammad Ali Khan is competent to create a lease under Ex.A-5, the burden is on the plaintiff to prove the same. It is also to be further noted here that what is claimed in Ex.A-5 is only a lease and not any sale of rights in the immovable property. Though Exs.A-9 and A-11 are sought to be relied upon as letters of succession, as rightly found by the lower Court, one Mir Abbas Ali Khan was said to have been given only right of tapping toddy trees and Mir Abbas Ali Khan is said to be no other than the brother’s son of Mir Mir Mohammad Ali Khan. It is to be further noted that 2nd defendant claims to be the daughter of Mir Abbas Ali Khan entitled for succession. 10. From the evidence available on record and also admissions, it is quite clear that the lands are inam lands and they are covered by A.P. (T.A) Abolition of Inams Act,1955 which came into force in 1955. It is further to be noted that under the scheme of the Act, if a person is in possession as a tenant or even if it is to be taken as a service grant of the inam, a patta is to be obtained from the Inams Tahsildar. It is to be noted that neither Mir Mohammad Ali Khan nor the plaintiff have got any patta till date under the said Act. Further more, if it is to be taken as a service inam as sought to be contended in the grounds of appeal, the particulars of service are to be pleaded and proved. A grant of service inam will only inure during the period of service. Further more, by the date Ex.A- 5 was executed, there was a prohibition of alienation of agricultural lands and consequently no title could have been conveyed by the vendor of the plaintiff leaving apart whether Ex.A-5 is the deed of title or not. The lower Court found that the subsequent change of law will not validate the said sale. 11. Evidently, after the abolition of the Jagir, a forum is prescribed for the determination of issue of succession which is an Atiyat enquiry. In this case, there is nothing to show that the vendor of the plaintiff as required under the Act approached the said Court for grant of inam in his favour as a successor. Further more, the lower Court has also considered the proceedings under Exs.A-23 and A-24. Under Ex.A-23, the Tahsildar had only recommended for grant of succession in the name of Mir Abbas Ali Khan, but, however no succession was granted. The lower Court had also held that Mir Mohammad Ali Khan is said to have given rights to the plaintiff and Abdullah under Ex.A-5, but the claim of the plaintiff that Abdullah gave up his right under Ex.A-6 cannot be accepted as it is an unregistered document clearly goes to show that the plaintiff did not get any exclusive title. Further more, the lower Court did not rely on the improvised and convenient statement of P.W7 as not of any help to plaintiff. P.W.7 stated that the lands are inam lands as recorded in the revenue records and he further stated that the lands are recorded as zarkarida inam lands and they are dast gardan. His positive assertion was that in the year 1954 the suit lands were taken into Government custody and till the date of his giving evidence they are dast gardan inam lands. The above evidence of P.W.7 cuts at the root of the claim of plaintiff that his vendor or any other person were treated as owners of the property. The evidence of P.W.7 positively shows that in 1954 they were taken over by the Government. 12. Added to that, by the date of abolition of the Imams, the plaintiff is not in possession of the property. Even according to him, he obtained lease in 1945 and in 1947 he leased out the lands to Teegala Narsaiah. Therefore, his claim of possession and enjoyment, if any, is only for 2 years and that it has to be proved by him that Teegala Narsaiah was his tenant. The status of Teegala Narsaiah can only be that of a sub-tenant of the original owner. The lower Court rightly found that though Teegala Narsaiah was alive he was not examined by plaintiff. Therefore, after 1947 till the date of filing of suit in 1969, the plaintiff was never in possession and enjoyment of the property and his claim that Teegala Narsaiah is a tenant and that he was in possession, is not established. On the other hand, the khasra pahani of the year 1954-55 records the name of Teegala Narsaiah and not the name of plaintiff as either original lessee or owner of the property. It was also further pleaded that Teegala Narsaiah inducted the 1st defendant unlawfully into possession in 1954-55 and the suit was filed in 1969. Even according to the own admission of plaintiff, after 1956 there was no payment of any rent by Teegala Narsaiah leaving apart the failure to prove the lease of Teegala Narsaiah or the lease amount paid by him. Therefore, as matter stands, the claim of plaintiff is based on a lease deed Ex.A-5 regarding inam land and it is not proved by convincing evidence that the person who granted the lease under Ex.A-5 has got right or capacity. It is not proved that the said lease was valid or that the plaintiff was in possession of the property by the date of abolition of the inams. The theory of lease by plaintiff to Teegala Narsaiah and Abdullah relinquishing his rights in the property are also not established. Evidently, with regard to inam lands, the question of title cannot be decided by the Civil Court and it is Inam Tahsildar who has to consider the right of patta and conferring of ownership. The suit as such is definitely misconceived. When once the lands were taken over by the Government in 1954, the rights of a protected tenant have also to be determined only by the provisions of the Act. 13. The lower Court has considered all the aspects in a right perspective and the claim of the appellant with regard to suit schedule properties is not proved on any single fact. Therefore, the suit has been rightly dismissed. So there are no grounds to interfere with the judgment and decree passed by the learned Chief Judge. Accordingly, the points are answered. 14. Accordingly, the City Civil Court Appeal is dismissed. No costs. 15. As a squeal, miscellaneous applications, if any, pending in this appeal shall stand closed. ___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 15-07-2014 Vsv/*