THE HONOURABLE SRI JUSTICE A.GOPAL REDDY A.S.No.274 of 2007 Date of Judgment: 19--12--2011 Between: 1. Pratap Karan and others ..Appellants and 1. Govt. of A.P. rep.by Principal Secretgary, Revenue Department, Secretariat, Hyderabad and others ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY A.S.No.274 of 2007 Judgment: This regular appeal by the plaintiffs against the judgment of the Principal District Judge, Rangareddy District in O.S.No.155 of 2005, dated 30-04-2007 dismissing the suit filed for rectification of revenue records by incorporating the names of the plaintiffs as the owners and possessors in respect of suit land in Sy.No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District by deleting the duplicate Sy.No.119 situated at Nadergul Village and for permanent injunction. The appeal was heard by a Division Bench (comprising Justice B. Prabhakash Rao and Justice R.Kantha Rao) and delivered two conflicting judgments, allowing the appeal by Justice B.Prakash Rao by decreeing the suit; whereas Justice R.Kantha Rao dismissed the appeal confirming the judgment and decree of the court below. The pleadings have been extensively dealt with by Justice B.Prakash Rao which are not necessary for reproducing the same here. Suffice it to say plaintiffs filed the above suit stating that their predecessor in title late Raja Shivraj Dharmavanth Bahadur (hereinafter referred to as “late Raja”) was the pattadar and absolute owner of the suit schedule property and the succession of the estate of late Raja was declared by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, late Raja Dharam Karan, late Raja Mehboob Karan and the heirs of Raja Manohar Raj vide Firman dated 4th Ramzan 1359 Hizri, Ex.A1. On the death of late Raja issueless on 10th Khurdat 1326 Fasli (year 1917) the succession of his estate was granted by the Royal Firman in favour of the sons of his two brothers Raja Lokchan Chand and Raja Murali Manohar Bahadur by another Royal Firman dated 5th Safar 13 1361 Hizri, the succession of estate of late Raja Dhiraj Karan was granted in the name of Pratap Karan who is one of the plaintiffs, under Ex.A2. The other plaintiffs are the successors of legal heirs of Raja Dhiram Karan, Raja Mehboob Karan and Raja Manohar Raj. Thus, the plaintiffs are the absolute owners and possessors of the suit schedule land. The land in Nadergul was subject matter of survey and settlement of the year 1326 Fasli (year 1917) and under the said survey and settlement the lands of late Raja were part of Khata No.1 wherein the suit schedule land was having survey Number 579. Late Raja’s name was also shown as Khatadar in Setwar and Vasul baqui. Thus, the suit lands are private lands of late Raja. The revision survey of Nadergul village was given effect in the year 1352 (year 1943) and the said survey has also confirmed the ownership of late Raja in Khata No.3 (Khata No.1 as per survey of 1326 Fasli (year 1917) which is also made it clear that the suit lands are private lands of late Raja. The present survey number 613 was shown as the corresponding old survey number 579 without any change in the extent of the land. The certified copy of Setwar and Vasul Baqui relating to Sy.No.613 for the year 1352 Fasli (year 1943) clearly disclose that late Raja was the Khatadar of all the land in Sy.No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, Ex.A5. The village map of Nadergul village and plan of S.No.613 clearly disclose the land as ‘Kancha’ of Late Raja. The total survey numbers in the village are about 875. As per the village map and the corresponding land records ie., Setwar, Vasool Baqui, touch plan and pahanies, the land within the boundaries of S.No.119 consists of an extent of Ac.1-20 guntas, which is in the name of Gadam Mallaiah as Khatadar. However, as per the endorsement made in the Khasra Pahani (1954-55) there is a remark that the lands of late Raja are shown separate series and in the pahanies subsequent to the Khasra, S.No.613 is shown as Shivaraj Bahadur Ilaka without determining the extent. As per the certified copies of pahanies for the years 1949-50 and 2000-2001 the land in S.No.613 of Nadergul village stood in the name of late Raja. However, in the Khasra Pahani S.No.613 is rounded up, which does not convey any meaning. After 1954-55, revenue records are showing the land in S.No.119 with an extent of Ac.355-12 guntas and it is not known as to how the original extent of land in S.No.119 shown as Ac.1-20 has swollen to Ac.355-12 guntas with endorsement of “Sarkari” from the original endorsement of Gaddam Mallaiah, which clearly discloses duplication of the land in S.No.119 and to say the least, the revenue record has been tampered with by the custodians of the records with an oblique motive of depriving the legitimate owners of the land in S.No.613 of Nadergul village. Even to-day, pahanies, village maps, and touch plan clearly disclose the existence of S.No. 613 with a large junk of land but purposefully the revenue authorities are not disclosing the details of the ownership of the suit land. The basic record ie., Setwar and Vasul Baqui Register of 1352 Fasli (year 1943). The endorsement in the Khasra Pahani of 1954-55 that the lands of late Raja in S.No.613 are being shown separately, is devoid of a sensible meaning. As per the endorsement, it is incumbent on the defendants to continue to maintain the revenue records in the name of late Raja as pattadar/khatadar of the said land in S.No.613 of Nadergul village. In certified copies of the pahanies for the years 1955-2001, there is a duplication of S.No.119, and while Gadam Mallaiah is shown as Khatadar of S.No.119 in respect of land admeasuring Ac.1-20 guntas, the duplicated S.No. 119 admeasuring more than 355 acres and sometimes Ac.373-22 guntas is being shown as Kancha Sarkari notwithstanding the fact that in the Khasra Pahani for the year 1954-55 it is clearly mentioned that late Raja as khatadar/pattadar of the entire land in S.No.119. Since the Khasra Pahani has confirmed the ownership of late Raja, the same cannot be changed as Sarkari Kancha in the pahani without there being any proceedings. When the land in S.No.613 is continuing to exist as per the village maps and touch plan, the pahanies and other records are being maintained with mis-description, by which title of the real owner will not vanish. The plaintiffs who are successors in interest of the land made attempts for correction of the entries in the revenue records under A.P. Record of Right in Land and Pattadar Pass Books Act, 1971 (for short ”the Act”) and the authorities rejected the claim for correction of entries on the ground that unless the plaintiffs get their title declared in a court of law, the mutation in the name of the plaintiffs cannot be effected under Section 8(2) of the Act. The defendants have no title over the suit schedule land. The fifth defendant-Mandal Revenue Officer, Saroornagar, filed a written statement while denying the suit claim contended that the suit is not maintainable. He also denied that plaintiffs acquired the suit property of late Raja through succession as pleaded. The plaintiffs have not obtained succession certificate from the competent civil court. The plaintiffs are neither owners nor possessors of the suit schedule property. They are no way concerned with the suit land as per the revenue records. As per the revenue records, the entire land is recorded as “Pote-kharab” (uncultivable) land, the question of possession by cultivation by the plaintiffs does not arise. As per settlement records like Setwar pertaining to Nadergul village prepared in the year 1352 Fasli S.No. 613 admeasuring Ac.373-22 guntas is pote kharab (uncultivable) land. As per vasul baqui khata No.3 the land belongs to late Raja. The Khasra Pahani for the year 1954-55 shows that the lands of the said late Raja were separately written in the revenue records from S.No.1 to 194 to that effect in Khasra Pahanies and subsequent pahanies also it was mentioned that late Raja’s lands were separately written after completion of Nadergul survey in S.Nos.1 to 875/2. For the year 1960-61 onwards the pahanies have not disclosed any separate land in the name of late Raja and the entire land was converted into new survey numbers from 1 to 194 in favour of different pattadars and their names were also mutated in the revenue records after converting old survey number into new survey numbers. After conversion S.No.119 admeasuring Ac.355-12 guntas is recorded as Government land- Kancha Sarkari. Under the guise of S.No.613, the plaintiffs tried to encroach into the Government land. When the plaintiffs tried to encroach into the government land and tried to erect fencing in and around S.No.119 of Nadergul village, the Mandal Revenue Officer lodged a complaint against the plaintiffs before Vanasthalipuram police station. The plaintiffs without taking any steps for the last 50 years have instituted a chance litigation to grab the valuable government land. The suit is barred by limitation. There is variation in the extents claimed by the plaintiffs. The plaintiffs misrepresented true facts and approached the court for illegal gain. Even otherwise as per the pahani for the year 1951, the land bearing survey No.613 was recorded as Inam Dastagardan. The plaintiffs have no right over the schedule property since the property is Inam Dastagardan land. The plaintiffs have to approach the Inams Tribunal and obtain a certificate of occupancy right. Without obtaining any Occupancy Right Certificate, the plaintiffs cannot be declared as owners. It is admitted that late Raja was having vast extent of land in Nadergul village more than Ac.600-00 guntas of land. As per the provisions of Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings), 1973, a person cannot hold more than one standard, therefore, the entire property can be treated as government land. He denied about H.E.H.Nizam granting the said land through Royal Firman to the ancestors of the plaintiffs, but on the death of original grantee, the property is vested with the Government. Until and unless, re-grant is made to the legal heirs, the said property belongs to the State. At no point of time, the plaintiffs obtained succession or occupancy right certificate till date. The law of limitation bars the suit filed after lapse of 40 years. As per the pahani of the year 1951, the Government has confiscated S.No.613. After confiscation, no steps were taken by the plaintiffs to release the said property in their favour. The plaintiffs have no right to encroach into the land in S.No.119 of Nadergul village. No separate written statements were filed by defendants 1 to 4. However, the fifth defendant filed an amended written statement consisting of paragraphs 4(a), 4(b), 4(c) and 4(d) and the defence taken in para 4(a) of the amended written statement is that Nadergul was a Jagir village and as all the jagirs were abolished under the Hyderabad Abolition of Jagirs Regulation, all Jagir properties vested in the State and the Jagirdars became entitled only to receive compensation amount and the estate of late Raja also merged with the State and all Jagirs in Hyderabad State were taken over by the Government and transfer to Deewani after publication of notification No.8 dated 07-04-1949. In para 4 (b) of the Amended written statement, it is stated that Nazim Atiyat had passed order dated 20-01-1958 in File No.1/56 Warangal/1950 and the legal heirs of Late Raja had participated in the said proceedings and staked claim for commutation amount in respect of Jagir land. Aggrieved by the said proceedings, some of the plaintiffs and certain other successors of late Raja had filed appeal before the Board of Revenue and the same was dismissed vide order dated 24-07-1972 and a review petition was also dismissed by the Board of Revenue and thereafter, the same persons had filed W.P.No.4999 of 1974 in the Honourable High Court and as per the judgment in the said writ petition dated 22-04-1976, the matter was remanded back to the Board of Revenue and after remand, the appeals filed by the above said persons were dismissed for non- prosecution. In para 4 (c) of the amended written statement it is stated that after abolition of Jagirs, the Jagir lands of late Raja numbering about 8 survey numbers were rounded off and separate numbers from 1 to 194 were given as evidenced in the Khasra Pahani for the year 1954–55 and as such the contention of the plaintiffs that original Sy.No.119 admeasuring Ac.1-20 guntas in the name of Gaddam Mallaiah has increased to 355 acres is not only false but the same is contrary to the record. Sy.No.119 admeasuring Ac.1-20 guntas is separate and distinct Sy.No. from the Sy.No.119 which finds place in the Khasra Pahani in the separate series of 1 to 194. This Sy.No.119 is admeasuring Ac.355.00 and recorded as Sarkari Poramboke. Having not filed any declarations under the Land Ceiling Laws, the plaintiffs are not entitled to stake the suit claim. In para 4 (d) of the amended Written Statement, it is stated that the plaintiffs and their ancestors have participated in the enquiry before Nazim Atiyat for the award of commutation amount and hence they are estopped from filing the present suit, that too after lapse of about 5 decades. In response to the amended written statement, the plaintiffs had filed a rejoinder denying that Nadergul is a jagir village and that consequent on abolition of Jagirs it vested with the state. It is stated that the enquiry before Nazim Atiyat resulting in passing of order dated 20-01-1958 relates to the suit lands. Hence, there is no estoppel in filing the present suit. It is stated that the proceedings before the Nazim Atiyat are altogether different and they do not concern the suit land and the documents which are sought to be filed in support of the defence taken in the additional written statement are not valid. It is further contended that non-filing of ceiling declaration does not take away the title to the suit land and as long as the dispute of title with the state is not resolved, the requirement of filing declaration under the land ceiling law doesn’t arise. Basing on the above pleadings, the trial court framed 9 issues and 3 additional issues. The GPA holder of the plaintiffs, Mr. KareemAlladdin, was examined as P.W.1 on behalf of the plaintiffs and through him Exs.A-1 to A-19 were marked. D.Ws.1 and 2 were examined land Exs.B-1 to B- 31 were marked on behalf of the defendants. The trial court, on appreciation of oral and documentary evidence on record, came to the conclusion that the plaintiffs have not made out suit claim for declaration of title and dismissed the suit with costs. Aggrieved by the same, the plaintiffs filed the present appeal, which was allowed by one Judge and dismissed by another Judge. Sri Vedula Venkata Ramana, learned counsel for the appellants contended that in a suit for declaration of title it is not oral evidence but documentary evidence is to be looked into and mere examination of GPA instead of plaintiffs is not a disqualification. Entries in the Record of Rights, as a general conception, will not confer title and cannot be applied to entries traceable to relevant entries to maintain record, particularly Khasra Pahanies which itself is a title as held by High Court/Supreme Court. When State taken different defences, burden lies on the defendants to establish that the lands are confiscated to the State in 1951 as pleaded by them. Firman succession passed on to Prathap Karan in Ex.A-5 covers 875 survey numbers and S.No. 613 covers the suit schedule property and in S.No.119, extent is shown as Ac.1-20 guntas. Once in Khasra Pahani for the year 1954-55 when late Raja is shown as pattadar, after Khasra Pahani S.No.119 is showing Ac.355-12 guntas with description as government land, it is unimaginable that parallel survey numbers were mentioned with different extents. Ex.A-1 which is equivalent to Exs.B-24 and 30 clearly discloses sanction of succession to late Raja. In Ex.A-10 touch map, S.No.613 stands in the name of Late Raja has been accepted in para 3 of the first written statement, the plaintiffs were only called upon to prove strict proof and in para 4, it was accepted that as per settlement record ie., Setwar pertains to Nadergul village prepared in the year 1352 Fasli S.No.613 admeasuring Ac.373-22 guntas is pote Kharab (uncultivable) in the name of late Raja and as per Vasul Baqui Khata No.3 it belongs to late Raja and in Khasra Pahani for the year 1954-55, the land of late Raja was separately written in revenue records from S.No. 1 to 194 to that effect. After conversion of old Surevey numbers into new survey numbers, S.No.119 admeasuring Ac.355-12 guntas is classified as government land. Once survey number remains same, unless sub- division takes place or revision of survey numbers, where co-relation to old survey numbers, the same cannot taken away as lands belong to Government. For the said proposition, he relied on a decision of this court in UNION OF INDIA V. VASAVI CO-OPERATIVE HOUSING SOCIETY LTD.,[1]. Whereas the defendants pleaded that Nadergul is a jagir village and jagir land vest with them and again they pleaded that it is a dastagardan and Inams Abolition Act applies and property has been confiscated to the State Government. Lastly, it was pleaded by the defendants that since no declaration was filed under the Land Ceiling Act, the property vest in the Government. In the additional written statement paras 4 (a) to 4(d) deals with Ex.B-1, which is equivalent to Ex.B-29, in which the successors of late Raja claimed for compensation by way of commutation, in which no compensation was awarded for the land and even if the appeal is dismissed still it cannot become the Government land as it (Nadergul) shall be dealt with separately. When the plaintiffs by filing Exs.A-1 to A-9-certified copies establish title of their predecessors and it is a vacant land title follows possession, burden of proof swings like pendulum. For the said proposition, he placed reliance on the judgment of the Supreme Court i n R.V.E.Venkatachala Gounder Vs Arulmigu Viswesaraswarni and V.P.Temple[2] and therefore commutation proceedings cannot be for list III villages. Ex.B-2 also does not show any light that Nadergul village is a jagir village and it is not a conclusive of any fact and therefore it is impossible to comprehend that it is a crown grant. If that is so, there cannot be any defence to commutation proceedings under jagir abolition. There cannot be any estoppel against the plaintiffs unless extinguishes title under law of limitation and plaintiffs are not ineligible to file title suit. Learned Advocate General while pointing out the pleadings in the amendment written statements at para 4 (a) to 4 (d), rejoinder contended plaintiffs have not entered into the witness box at any point of time and since abolition of jagirs came into effect from 5-9-1949, the land vest with the Government and what is to be considered before the Atiyat enquiry is with regard to commutation amount and pahani for the year 1954-55 covered under Ex.B-19(a) refers to only S.No.119 and not S.No.613. Similarly under Ex.B-25, for Nadergul village, the jagirdar is Shivraj Bahadur. In spite of specific reference to jagir village in the written statement and notification at para 4 (a), the plaintiffs have not chosen to explain the same and the suit as such is barred by limitation and dismissal of suit by the civil court is justified. The learned Judge who allowed the allowed framed 8 points: a) Whether the plaintiffs have established the claim for declaration of title in respect of the suit land. b) Whether the plaintiffs are in possession of the suit lands for claiming permanent injunction. c ) Whether the suit lands are Jagir lands as contested by the defendants? d) Whether the relief of declaration of title can be granted in the absence of truth of flow of title? e) Whether non filing of ceiling declaration can have the effect of waiver of title? f) Whether the entries in the revenue records can be basis for grant of a decree of declaration of title? g) Whether the suit is barred by limitation and whether the plaintiffs are estopped from filing the suit since they had earlier claimed for award of computation amount contending that suit lands are Jagir lands? h) Whether the judgment of the trial court warrants any interference as regards the findings recorded there? The simple case of the plaintiffs is that they are the sucessors of late Raja, who was recorded as Pattadar and Khatadar of the suit land in S.No.613 admeasuring Ac.373-22 guntas, which has been specifically admitted by the defendants but not specifically denied. But in the written statement filed by the Mandal Revenue Officer, they have taken contradictory pleadings. In the written statement, it has been specifically admitted that in Khasra pahani of 1954-55, late Raja Sivaraj Dharmavanth Bahadur has been recorded as Pattadar and Khatadar of S.No.613 admeasuring Ac.373-22. It has been further admitted that there is an endorsement in the said Khasra Pahani that the survey numbers of Raja Sivaraj Bahadur are being recorded separately in a new series of survey numbers from 1 to 194. In the Khasra Pahani for the year 1954-55 filed by the plaintiffs covered under Ex.12(a), S.No.613 admeasuring Ac.373-22 is recorded as ‘cultivated self’ and in column No.7, it is mentioned as Inam Dastagardan (suspense account) and in which Pattadar’s name is mentioned as “Sivaraju Ilaka” and survey numbers of Siva Raju Bahadur are written separately. Even in pahani for the year 1960-61 of Nadergul village covered under Ex.12(b), it is mentioned at Serial No.2, S.No.613 Sivaraju Ilaka. In pahani pathrika for the year 1949-50 covered under Ex19 (a), S.No.613 is shown as Kancha Siva Raj Dastagardan admeasuring Ac.323-22. In the pahani patrika for the year 1950-51 covered under Ex.B-19, S.No.613 admeasuring Ac.373- 22 is classified as “Kancha Sevaraj Munzabta. Confiscated”, and name of Khathadar is mentioned as Kancha Severaj. In the Khasra Pahani for the year 1954-55 covered under Ex.B-19 (a), it was shown as S.No.119 and extent is shown as Ac.355-12 guntas and column No.6 was shown as Sirkari and land name is Khas Sagu (cultivated self). D.Ws.1 and 2, who entered into the witness box have not clarified as to how two different Khasra pahanies were maintained, namely, in the khasra pahani for the year 1954-55, Raja Sivaraj Dharmavanth Bahadur has been recorded as Pattadar and Khatadar of S.No.613 admeasuring 373-22, another Khasra Pahani covered under Ex.B-19 (a), S.No.119 of Nadergul is admeasuring Ac.355-12 guntas which is Sirkari but Sivaraj Ilaka. It is admitted by the defendants that total survey numbers in Nadergul village are 875. The village map which was marked by the plaintiffs shows original 875 survey numbers and the new series of 1 to 194 survey numbers. It is admitted in the first written statement filed by the fifth defendant that suit land was confiscated to the State and how the same was confiscated to the State and under what proceedings the land was confiscated has not been stated. In the amended written statement, State has taken several alternative and inconsistent defences by contending that Nadergul village is Inam Dastagardan. Even if we accept that it is Inam Dastagardan, , it is only a suspense account and rights of the parties have to be determined under Inams Abolition Act. There is no proof that the land has been treated as government land and confiscated to the State. Once it is recorded that S.No.119 admeasuring Ac.1-20 guntas belongs to Gaddam Mallaiah, how the same survey Number ie., 119 can be recorded as having an extent of Ac.355-12 guntas, shown it as government land. D.Ws.1 and 2 have not properly explained the same in their evidence. Another defence which was taken by the State