Judgment:
G. Bikshapathy, J.
1. This LPA is directed against the judgment and decree of the learned Single Judge in CCCA No. 21 of 1996 dated 21-8-1998 confirming the judgment and decree dated 29-11-1993 in OS No. 276 of 1988 on the file of III Additional Judge, City Civil Court, Hyderabad.
2. Briefly stated the following are facts of the case : The suit was filed by the plaintiffs seeking declaration of title in respect of land in Sy.No. 234 in Tokatta Village, Boinpally Mandal, Secunderabad, admeasuring Ac.2-33 guntas and for perpetual injunction restraining the defendants from interfering with the possession and enjoyment of the same.
3. As per the averments in the plaint, it is the case of plaintiffs that one B.V. Prakash Reddy was the owner and pattedar of the agricultural lands in Sy.No. 234 admeasuring Ac.2-33 guntas in Tokatta Village, Boinpally Mandal. The said Prakash Reddy died in the year 1982 leaving behind the first plaintiff - wife and second plaintiff - daughter of the said Prakash Reddy, It is also the case of the plaintiffs that the land was originally leased out to one Achaiah in the year 1950. The tenancy certificate was issued in the name of Achaiah and after the death of Achaiah, his brothers succeeded to the tenancy. However, the ownership continued to rest with the said Prakash Reddy.
4. While so, the defendants have set up a plea that the suit land forms part of General Land Register Sy.No. 586 classified as A2 and the plaintiffs tried to interfere and evict the protected tenant. At this stage, the said tenant filed a suit in OS No. 1433 of 1980 on the file of V Assistant Judge, City Civil Court, Hyderabad, for perpetual injunction in respect of the land in question and the same ultimately dismissed for default. It is also stated that B. V. Prakash Reddy was the owner of the land in question and the plaintiffs continued to be in possession for the last 40 to 50 years and thus, the plaintiffs also alternatively claim title by prescription by way of adverse possession. Therefore, the relief was sought for declaration of title and injunction.
5. The suit was resisted by defendant No. 2 stating that B. V. Prakash Reddy was not the owner and pattedar of the suit scheduled land situated in Sy.No. 234 and the suit land forms part of G.L.R.Sy No. 586 admeasuring Ac.9-39 guntas which is the absolute property of the Ministry of Defence, Government of India. It is also stated that as per the General Land Register maintained by the second defendant under the Cantonment Land Administration Rules, 1937, the entire land in G.L.R. Sy.No. 586 of which the suit land forms part, is classified as A-2 land that it was actually used and occupied by the military authorities. In fact, Ac.7-72 guntas forming part of G.L.R. Sy.No. 586 was the subject-matter of litigation between one Smt. Sharfunnissa Begum and the Military Estates Officer in O.S. No. 421 of 1972 and the said suit was finally dismissed. The present land is part of the land in G.L.R Sy. No. 586 and therefore, the plaintiffs have no right to claim ownership in respect of the aforesaid land.
6. Basing on the respective pleadings, the Trial Court framed the following issues:
1. Whether the plaint allegations are true and correct?
2. Whether the plaintiffs are entitled for the declaration of title as prayed for?
3. Whether the plaintiffs are entitled to a permanent injunction as prayed for?
4. To what relief?
7. In support of their claim, the plaintiffs examined PWs.1 to 4 and marked Exs.A-1 to A-33 and Exs.C-1 to C-5 were marked through PW2. On behalf of defendants, one witness was examined and Exs.B-1 to B-13 were marked. The Trial Court considered the issues jointly and held that B. V. Prakash Reddy was the owner and pattedar of the suit schedule property. The Trial Court referred to various documents Exs.A-1 to A-13 and recorded such finding, after taking into consideration the plea of defendants that the land belongs to the Ministry of Defence as the same is entered in General Land Register maintained by the Cantonment Board. The Trial Court after considering the evidence on record held that the plaintiffs have established their case and it also held that the defendants have not established that the land forms part of G.L.R Sy.No. 586 and accordingly decreed the suit by judgment dated 29-11-1993. Aggrieved by the said judgment, the defendants carried the matter in appeal in CCCA No. 21 of 1996 on the file of this Court. The learned Single Judge of this Court by judgment and decree dated 21-8-1988 dismissed the appeal filed by the defendants against which the present LPA has been filed by the unsuccessful defendants.
8. Learned Standing Counsel for Central Government made various submissions before this Court, which are dealt with seriatum.
9. The first contention raised by the learned Standing Counsel is that notice under Section 80 of Code of Civil Procedure Code (for short 'the Code') was not issued by the plaintiffs and therefore that virtually goes to the root of the matter. When once notice under Section 80 is not issued, the suit itself is liable to be dismissed for lack of notice. Learned Standing Counsel cited various decisions on this aspect.
10. On the other hand, learned Counsel for the respondents - plaintiffs, Mr. C.V. Mohan Reddy, submits that even though no notice was issued, yet waiver is established on the part of the defendants as no objection was taken at any point of time except stating the same in the written statement. The learned Counsel would also submit that even the lower Court did not frame an issue on this aspect. Further, when the matter was carried in first appeal, the appellant has not raised this issue at all as one of the grounds in the appeal. Even in LPA, such a ground was not taken and therefore, it amounts to conscious waiver and in such an event, the appellant cannot raise this ground for the first time in the LPA. Learned Counsel would rely on certain decisions on this aspect to buttress his contention about the waiver of right.
11. Before deciding the respective legal contentions, this Court called for the records and perused the original plaint filed by the plaintiffs before the Trial Court. A specific endorsement is made by the Office to the effect that the petition under Section 80(2) of the Code was filed for dispensing with the notice under Section 80 of the Civil Procedure Code. In view of the specific endorsement, the application for dispensing with notice has been filed and in such an event, it will be futile exercise to adjudicate the matter as to the effect of non-issue of notice under Section 80 of the Code. Therefore, it has to be held that notice under Section 80 need not be issued since the same has been dispensed with by the Trial Court. Thus, the contention of the learned Standing Counsel for Central Government on this point is rejected.
12. Learned Standing Counsel further contends that it is only the General Power of Attorney (GPA) of the plaintiffs who deposed with regard to documents and the factual situation inasmuch the plaintiffs never entered the witness box and therefore, the presumption under Section 114(iii) of the Indian Evidence Act would come into play and the Trial Court ought not to have relied upon the evidence of the GPA and ought to have disbelieved the same. He relied upon the decisions of the Supreme Court in Vidhyadhar v. Manikrao, : [1999]1SCR1168 , and learned Single Judge of this Court in Kanakapudi Bharathy v. Authority under Section 50 of APSE Act-cum-Labour Officer, : 1999(3)ALD420 , wherein the decision of the Rajasthan High Court in Ram Prasad v. Hari Narain, , was followed.
13. On the other hand, learned Counsel for the respondents-plaintiffs submits that the suit itself was filed by the GPA holder and as per the terms of GPA, he is entitled to depose on behalf of plaintiffs keeping in view Rule 32 of Civil Rules of Practice and permission having been obtained from the Court, it is always legal and competent to the GPA-holder to speak to the facts of the case in place of plaintiffs and that cannot be a ground to reject the deposition of the GPA-holder. In Ram Prasad's case (supra), the facts of the case are that the plaintiff filed a suit and during the adjudication proceedings, an application was moved by the plaintiff praying that his son being GPA-holder may be allowed to appear as witness on behalf of the plaintiff and die said matter was contested. On contest, it was dismissed by the lower Court. On reference, the High Court of Rajasthan held as follows:
'....acts' used in Rule 2 of Order 3 of Code of Civil Procedure does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a commission for recording his evidence may be issued under the relevant provisions of the Code of Civil Procedure .....'
14. To the same effect is the judgment of the learned Single Judge of this Court in Kankapudi Bharathy's case (supra) wherein it was observed as follows:
'I am of the considered view that word 'acts' used in Rule 2 Order 3 CPC does not include the act of Power of Attorney Holder to appear as a witness on behalf of the petitioners. Power of Attorney Holder of a party can appear only as a witness in his personal capacity to speak about the facts, which are within his personal knowledge about the case, but he cannot appear as a witness on behalf of a party in the capacity of that party. It has been observed in the impugned order that the executant of General Power of Attorney by name Bharathi has been attending to her cases personally and non-examination of her in APSC No. 4 of 1996 will result in great injustice to the second respondent. In this context, it is also relevant to refer to Section 118 of the Indian Evidence Act which reads that 'all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind'. Thus, testimonial compulsion is the very foundation of the Law of Evidence for without such compulsion every refusal to give evidence will render administration of justice impossible. It is not a legal fetish. It is a necessity and also the general rule. The petitioners cannot stay back without entering into witness box and subjecting themselves to cross-examination by the second respondent. Further, even if the petitioners are unable to appear in Court, a Commissioner for recording their evidence may be taken out under the relevant provisions of the Code of Civil Procedure. This view of mine gets support from a decision of the Rajasthan High Court in Ram Prasad v. Hari Narain, AIR 1998 Raj. 185.'
15. In the instant case, it is observed that the suit itself was filed by the GPA-holder of plaintiffs and it is not the case where during the adjudication proceedings, an application was filed by the plaintiffs to permit the GPA to lead the evidence on their behalf and in such situation, the matter has to be considered with reference to Rule 32 of Civil Rules of Practice which reads thus:
'(1) When a party appears by any agent, other than an advocate, the agent shall, before making of or doing any appearance, application, or act, in or to the Court, file in Court the power of attorney, or written authority, thereunto authorizing him or a property authenticated copy thereof together with an affidavit that the said authority still subsisting, or, in the case of an agent carrying on a trade or business on behalf of party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorized to make or do such appearance, application, or act.
(2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and unless and until the said permission is granted, no appearance, application, or act, of the agent shall be recognized by the Court.'
16. Therefore, the requirement is that when GPA-holder is representing the party, the Judge is required to record in writing that he is permitted to appear and act on behalf of the party. In the instant case, the procedure prescribed under Rule 32 of Civil Rules of Practice has been followed. The case dealt with by the learned Single Judge of Rajasthan High Court was on a different footing. Apart from that, thus when once a person files a suit on behalf of the party, as a GPA holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of Plaintiff.
17. The learned Counsel for the respondent tried to rely on the judgment of Supreme Court in Ramkubai v. Hajarimal Dhokalchand Chandak, : AIR1999SC3089 . In the said case, an application was filed for eviction of the tenant on the ground of bona fide business requirement of the son of the landlady. The bona fide requirement of landlord was accepted by the Trial Court, but it was negatived by the Appellate Court and confirmed by the High Court. The Supreme Court observed:
'Landlay was accepted by the Trial Court but it was negatived by the Appellate Court and the same was confirmed by the High Court. The Appellate Court was swayed away by the fact that the landlady herself did not come into the witness box to support her claim. What is not appreciated by the Appellate Court is that her son Bhikchand who was also her GPA holder and for whose benefit the business is to be set up, did come into the witness box to support the case of personal requirement. The Appellate Court was of the view that the bona fide requirement is in the first place a state of mind and might be something more and that could be established only by the landlady. In all fairness to Mr. Mohta, we must note, that he conceded that that reasoning of the Appellant Court could not be supported.'
Applying the same analogy, in the instant case, the GPA was giving in favour of the close relative, son-in-law of the first plaintiff who could depose on the basis of documents. Further, it is not a case where personal knowledge was required to be pressed into service as in the case cited above.
18. Under these circumstances, no presumption adverse to the interests of plaintiffs can be drawn. This contention of learned Standing Counsel is also liable to be rejected.
19. Learned Standing Counsel also submits that the learned Single Judge erred in holding that the burden is on the defendants to establish their case, but the burden squarely lies on plaintiffs irrespective of the weakness in defendants' evidence. Thus, both the Courts gravely erred in placing the burden on the defendants. These aspects were thoroughly considered by the learned Single Judge of this Court. The learned Single Judge clearly found that the documents filed on behalf of plaintiffs clearly established their ownership of the land in question. The learned Judge dealt with the same at length in the following paragraphs:
'It is the case of the plaintiffs that B.V.Prakasa Reddy was the owner and pattedar of the suit land. It is an agricultural land bearing Sy.No. 234 admeasuring Ac.2-33 gts situated at Thokatta Village and the said land was leased to one Achaiah and after his death, to his brother by name Sainna and Jogaiah. All the records-of-rights and pahanies stood in the name of B. V.Prakasa Reddy till his death in the year 1982, and the plaintiff being the successors of the deceased B. V.Prakasa Reddy, their names are mutated in the records-of-rights and pahanies of the suit land. In support of their plea, the plaintiffs have produced pahanies for the years 1971-72 to 1988-89, the mutation extract dated 20-8-1988 (Ex.A-14) and the land revenue receipts Exs.A-15 to A-30, the demand notice for land revenue for the years 1956 to 1964 (Ex.A-31). These documents establish that Late Sri B. V.Prakasa Reddy was the owner and occupier of the suit land till his death and after his death the plaintiffs inherited the suit land. It is true that the mutation of names in revenue record is no evidence of title, though it may be relevant for other purposes. It is also true mat a presumption of correctness is attached to entries appearing in the record-of-rights, but such entries are not the foundations of title, but are mere items of evidence. The presumption raised by those entries is not conclusive, but prima facie merely, and while it must prevail where there is no rebutting evidence; it may be repelled by other evidence and circumstances showing those entries are not support. The Supreme Court in Shikarchand v. D.J.P. Karini Sabha, AIR 1974 SC 178, held that Khasra is a record-of-right. Although the record-of-rights is not a document of title, the Court is perfectly entitled to take into consideration the entry in the record-of-rights for coming to the conclusion that certain person is the owner of the land in question. The party relying on presumption of correctness need not prove foundation or basis of correctness. Where the entry in the record of rights shows the suit land in the name of the plaintiff, the onus is on the defendant to prove that the said entry in favour of the plaintiff is not correct. As pointed out supra, the plaintiffs have produced the record-of-rights as well as the pahanies to establish their title to and possession of the suit land. In the Commissioner's report Ex.C-2, it is stated that the suit land is a patta land and it stands registered in the name of Late Sri B.V. Prakasa Reddy as per the existing Shethwar of 1311 and 1356 Fasli (1901 and 1946) of Thokatta Village of Secunderabad Mandal. The Commissioner was examined as PW-2. He has stated that the suit land is a patta land standing in the name of Late B.V. Prakasa Reddy. As against this documentary and oral evidence, there is no iota of rebuttal evidence produced by the defendants to destroy the presumption to be drawn from the record-of-rights and the pahanies. On the other hand, it has come in the evidence of DW1 that at no point of time any step was taken by the defendants to challenge the correctness of the entries in the record of rights and pahanies of the suit land. It is also admitted by the defendant No. 1 in his evidence that on the date of giving evidence, the protected tenant by name Jogaiah was in possession of the suit land. Therefore, as noted supra, though the presumption of correctness attached to entries appearing in the record-of-rights and the pahanies is not conclusive, but that presumption should prevail where there is no rebutting evidence. In the instant case, in the absence of any rebutting evidence to destroy the presumption to be drawn from the entries in the record of rights and pahanies of the suit land and also having regard to the oral evidence of PWs and particularly that of PW-2, it cannot be said that the findings recorded by the learned Trial Judge that the appellants proved their title to and possession of the suit land is erroneous and not supported by evidence.'
20. Even though the issue relating to the validity of the entry in General Land Register Sy.No. 582 was not framed by the Court below, yet the matter was considered by the learned Single Judge who recorded the finding against the appellants that the burden of proof lies on the appellants to establish that the land covered by G.L.R. Sy.No. 586 also embraces the suit schedule land. But, they did not establish the same by satisfactory evidence. In this regard, the learned Single Judge recorded the following finding:
'No issue whether the suit schedule land forms part of GLR Sy.No. 586 is framed by the Court below. However, this point is considered by the learned Trial Judge while deciding issue Nos. 1 to 3. Sections 101 - 104 of the Indian Evidence Act deal with the burden of proof. It is well settled that the burden of proving a fact rests on the party, who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. Section 102 of the Indian Evidence Act embodies a test for ascertaining on which side the burden ofproof lies. Section 102 states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. It means that when the burden of proof lies on a party, that party must fail if he does not discharge the burden by giving evidence. In Mills v. Barber - 1 M & W 427 as cited in Sarkar's law of Evidence (12th Edition), the two best tests for ascertaining on whom the burden of proof lies are suggested and they are, to consider first which party would succeed if no evidence were given on either side; and secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever parry would fail, if either of these steps were pursued. By applying these two celebrated tests, the argument of the learned Standing Counsel for the appellants - defendants should be determined. If these two tests are applied to the facts of this case, it becomes quite apparent that the burden of proving the fact that the suit schedule land forms part of GLR Sy.No. 586 is on the defendants. Added to this, Section 103 of the Evidence Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Here again a test is provided. In the present case, it is the defendants who wish the Court to believe that the suit schedule land forms part of GLR Sy.No. 586 and it is not the plaintiffs who wish the Court to believe that the suit schedule land forms part of GLR Sy.No. 586. In other words, the burden of proof lies on the person who asserts the affirmative of the issue. Therefore, there is no merit in the contention of the learned Standing Counsel for the appellants - defendants that the burden of proving the fact that the suit schedule land does not form part of GLR Sy.No. 586 lies on the plaintiffs.
The next limb of the second point is whether the defendants - appellants have discharged the burden in providing that the suit land forms part of GLR Sy.No. 586. Here again, the defendants have utterly failed to prove that fact. It is relevant to note that in the suit, PW2 was appointed as Commissioner to find out whether the suit land falls within the GLR Sy.No. 586. PW2 is the Deputy Inspector of Survey in the office of the Deputy Director of Survey and Land Records, Hyderabad. In his evidence he has categorically stated that he surveyed the suit land and demarcated its boundaries with reference to the survey records, such as, village plan, tippon of Survey Number and its surrounding survey numbers. It has also come in the evidence that when PW2 surveyed the lands, the employees of the defendants were present Ex.C-2 dated 16-3-1989 is the report of the Commissioner - PW2. In the said report, he has stated that the suit land is a patta land standing in the name of Late B.V. Prakasa Reddy as per the Shetwar of 1356 Fasli to an extent of Ac.2-33 gts. Ex.C3 is the plan prepared by PW2. PW2 has stated that the defendants filed a work memo before him under Ex.C4 in which they asked the Commissioner to superimpose GLR Sy.No. 586 over Sy.Nos. 234 and find out whether the suit land falls within GLR Sy.No. 586. PW2 has categorically stated that he took into consideration of the points raised by the defendants in their work memo and answered the same as shown in Ex.C3. Dealing with the pillars existing in and around GLR Sy.No. 586, PW-2 has stated that pillar No. 19 exists in between the boundary of the suit land and Sy.Nos. 235 and 248; Pillar No. 20 exists in between boundaries of the suit land and Sy.No. 233 and Pillar No. 2 exists in between Sy.No. 230 and the suit land and that there are no military pillars in Sy.No. 234 (suit land). PW-2 has also stated that during the survey of the suit land, he found M/s. B.Voosaiah, B.Satyanaryana, B.Sudershan in possession of the land. PW-2 has also stated that the defendants did not produce any relevant records with regard to GLR register or maps to him at the time of execution of warrant; there is the land of the defendants at the right side of the suit land and there is a road in between the suit land and the land of the defendants. It has also come in the evidence that throughout the Government was collecting the land revenue in respect of the suit land, and none of the records-of-rights and pahanies marked in the suit reflect the ownership of Government or the defendants at any point of time. It has also come in the evidence that in the Cantonment Area also, there are certain private lands. Although the defendants heavily depended upon Ex.B2, the original of the same was not filed and there is absolutely no evidence to show on what basis Ex.B2 was prepared and how the revenue Sy.No. 234 is superimposed in GLR Sy.No. 586. Therefore, the learned Trial Judge is justified in observing that if really as per Ex.B2, the suit land is forming part of GLR Sy.No. 586, nothing prevented the defendants to handover the original of Ex.B2 and there is absolutely no explanation for not producing original Ex.B2, None of the documents produced by the defendants have any bearing or can be correlated to the suit land. Therefore, as rightly held by the learned trial Judge that defendants have utterly failed to prove that the suit land forms part of GLR Sy.No. 586, I do not find any ground to reverse the findings recorded by the learned Trial Judge.'
21. It is also to be noted a Division Bench of this Court in Union of India v. Vasavi Co-operative Housing Society Limited, : 2002(5)ALD532 , held that 'the pattedar means a person, who possess title to the land. Whether he is in possession of the land or not is responsible for the Government for payment of land revenue. Pattedar is one whose title to the land has been recognized. The statute recognizes the pattedar as a person possessing title to the land.' Admittedly, in the instant case, it was found that pahanies right from 1971 contain the entry in the relevant column showing B.V.Prakash Reddy as pattedar and possessor and no steps were taken by the Government at any point of time for cancelling the entry or mutation of the entry. Further, it is evident from the deposition of PW2 that in the Sethwar 1356 Fasli, it was clearly mentioned that Prakash Reddy was the owner and pattedar and the Division Bench in that regard observed that that Sethwar is the settlement register prepared by Survey Officer at the time of revised survey and settlement in the year 1358 Fasli, in which the names of the predecessors-in-title are shown as pattedars. Such entry is the evidence of right and title of the person mentioned therein or his predecessors-in-title. The Division Bench also dealt with the effect of an entry made in Hyderabad Record of Rights and Regulations, 1358 Falsi and observed:
'The entries made in the Record of Rights carry with them a very great evidentiary value, provided the record of rights is prepared and maintained under the provisions of the record of relevant statutes or the regulations, as the case may be, and further provided that the entries therein are made after holding public enquiries. Sometimes, they constitute the only evidence available in order to establish one's title to the lands. The entires made in Columns 1 to 19 of the pahani patrikas shall be deemed to be Record of Rights prepared and maintained by a public servant in discharge of his official duties.'
22. In view of the above finding of the Division Bench, it has to be held that the entry in Sethwar coupled with entries in pahanies would be a substantial and strong piece of evidence to establish right and title of the persons mentioned in the relevant columns. Admittedly, the name of plaintiffs predecessor was mentioned as pattedar and the occupant in the relevant column and the plaintiffs being his successors, were rightly declared as having title and possession through tenants. The evidentiary value of the General Land Register maintained by the Cantonment Board had come up for consideration by the Division Bench in the very same judgment. The Division Bench while dealing with the evidentiary value of General Land Register held that there is no statutory base for the General Statutory Register since the whole of the Cantonments Act, 1924 and the Rules framed in 1925 are not applicable to the Secunderabad Cantonment and they were applicable only to the Cantonments located in British India. Thus, the General Land Register was held to have no statutory basis unlike the evidentiary value in respect of documents maintained under the provisions of the Land Revenue Act and Record of Rights in Land Regulations.
23. Thus, the said decision of the Division Bench applies to the facts of the present case in all its fours. We do not find that there is any illegality or infirmity in the findings recorded by the learned Single Judge. The General Land Register cannot be relied upon for the purpose of establishing the title of the land as belonging to the Central Government. Even otherwise, no evidence was adduced to establish that the suit schedule land forms part of GLR Sy.No. 586. Since these two issues are purely questions of fact which were decided by the Trial Court in favour of plaintiffs as affirmed by the learned single Judge of this Court, though we are entitled to consider the correctness of the decision, we are satisfied that there is no illegality or irregularity committed by the Courts below.
24. Learned Standing Counsel submits that under Clause 15 of Letters Patent, this Court has to re-hear LPA as if it is an appeal relying on the judgment of the Division Bench of this Court in Venkataramayya v. Kesavanarayana, 1963 (1) An.WR 251. It is true that while comparing the area of interference under Section 100 of the Code and Clause 15 of Letters Patent, the Division Bench observed that Clause 15 of Letter Patent is differently situated from that of Section 100 of the Code and while Section 100 of the Code enacts that the High Court ought not to interfere in Second Appeal on a question of fact, there is no such inhibition in Clause 15 of Letters Patent. It was further observed that there is no rule of law that any finding of fact arrived at by a Single Judge of the High Court in first appeal is not open to challenge under Clause 15 of the Letters Patent and the Letters Patent is in the nature of re-hearing of the appeal. In fact the above decision of the Division Bench was approved by the Supreme Court in Asha Devi v. Dukhi Sao, : [1975]1SCR611 . The Supreme Court while referring to various judgments of other High Courts also referred to the unreported judgment in C.A. No. 232 of 1963, dated 11.1.1963. The following is the extract:
'There is no dispute that an appeal lies to a Division Bench of the High Court from the judgment of a Single Judge of that Court in appeal from a judgment and decree of a Court subject to the superintendence of the High Court. The only question is whether the power of a Division Bench hearing a Letters Patent Appeal under Clause 10 of the Letters Patent of Patna High Court or its analogous provisions in the Letters Patent of other High Courts is limited only to a question of law under Section 100 of the Code of Civil Procedure or has it the same power which the Single Judge has as a first Appellate Court in respect of both questions of fact and of law The limitations on the power of the Court imposed by Sections 100 and 101 of the Code of Civil Procedure cannot be made applicable to an Appellate Court hearing a Letters Patent appeal from the judgment of a Single Judge of that High Court in a first Appeal from the judgment and decree of the Court subordinate to the High Court, for the simple reason that a Single Judge of the High Court is not a Court subordinate to the High Court. This Court in Ladli Prasad Jaiswal v. Kamal Distillery Co., Ltd. had occasion to observe that a Single Judge deciding a first appeal may be a Court immediately below the Court hearing a Letters Patent Appeal, but it is not a Court subordinate to the High Court. As long ago as 1895, a similar question arose under the provisions of Ch. XLIJ of Act No-XIV of 1882 which were analogous to the provisions of Sections 100 and 101 of the Code of Civil Procedure. A Bench of the Allahabad High Court consisting of Edge, C.J. and Banerji, J. in Umrao Chand v. Bindmban Chand, after noticing the contention that, the appeal before them could not be dealt with in the same way in which the first appeal to the High Court might be dealt with would place the appeal under Section 10 of the Letters Patent in the same position as an appeal to which Chapter XVII of the Code of Civil Procedure applies, held that no such limitation would apply because Chapter XVII limits the right of appeal from a decree passed in appeal by a Court subordinate to the High Court. They observed that the appeal to the High Court having been a first appeal and not an appeal to which Chapter XVII of the Code of Civil Procedure applies, the parties to the appeal are entitled to question not only the law, but the findings of fact of the Judge of that Court from whose judgment or decree that appeal had been brought under Clause 10 of the Letters Patent. It would be otherwise, if the appeal to that Court had been an appeal to which Chapter XVII of the old Code of Civil Procedure applied. To the same effect are the decisions in Malpura Venkatramayya v. Devabhaktuni Kesavanarayana, Baldeo Das Ram Narayana v. Smt. Maina Bibi which followed the decision of Andhra Pradesh High Court and disagreed with the decision of the Patna High Court in Ramsarup Singh's case (supra); Nilkanth Mahaton v. Munshi Singh; Maimoon Bivi v. O.A. Khajee Mohideen; Velji-Bhimsey & Co. v. Bachoo Bhaidas, in which it was observed that under Clause 15 of the Letters Patent an appeal lies from that decree, without any limitation being imposed upon the powers of the Appeal Court and the whole decree lies open before the Court; Pt. Devi Charan v. Durga Porshad and Bawa Singh v. Lagdish Chand. We may also mention that a five-Judges Bench of this Court in Alapati Kasi Viswanatham v. A. Sivarama Krishnayya' an unreported judgment had dealt directly with this question. Wanchoo, J., speaking for the Court observed: 'The first contention urged before us on behalf of the appellant is that the Letters Patent Bench was not authorised in law to reverse the concurrent findings of fact of the Subordinate Judge and the learned Single Judge of the High Court. It is submitted that a Letters Patent Appeal stands on the same footing as a second appeal and it was therefore not open to the Letters Patent Bench to reverse the concurrent findings of fact of the two Courts below. We are of opinion that this contention is not correct. A Letters Patent Appeal from the judgment of a learned Single Judge in a first appeal to the High Court is not exactly equivalent to a second appeal under Section 100 of the Code of Civil Procedure, and therefore it cannot be held that a Letters Patent Appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent Appeal was from a decision of a learned Single Judge in a second appeal to the High Court. In these circumstances it will be open to the High Court to review even findings of fact in a Letters Patent Appeal from a first appeal heard by a learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two Courts below. But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact. The contention of the appellant therefore that the Letters Patent Bench was not in law entitled to reverse the concurrent findings of fact must be negatived.'
Keeping these parameters in view, we do not find that the findings recorded by the Trial Court as affirmed by the learned Single Judge require any interference as the findings are amply supported by the evidence on record.
25. Lastly, the learned standing Counsel would submit that the documents produced by plaintiffs would not establish title and possession. He also submits that in a suit for declaration of title, the plaintiffs has to successed only on the evidence adduced by him and he cannot rely on the weaknesses of the defendants. There is no quarrel about this proposition. But, the question is whether the Trial Court recorded the findings based on the evidence of defendants or whether the plaintiffs de hors the evidence produced by defendants were able to establish their case. As observed by the Trial Court, Exs.A1 to A14 coupled with the oral evidence of PW2, who is none other than the Deputy Director (Survey and Land Records), clearly establish the plaintiffs title and possession over the suit schedule property. Therefore, it is not as if the plaintiffs tried to take advantage of the weakness of the defendants' case.
26. Thus, viewed from any angle, we do not find any illegality or irregularity in the judgments of the Courts below and therefore, the LPA is liable to be dismissed.
27. The LPA is accordingly dismissed. No costs.