The State of Andhra Pradesh,rep. by Its Vs. Mohd. MuntazuddIn Khan, Died Per - Court Judgment

THE HONOURABLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE S.V.BHATT A.S.No.3720 of 1992 dated:11-06-2013 The State of Andhra Pradesh,Rep.

by its Secretary, Revenue Department,Secretariat, Hyderabad..Appellant Mohd.

Muntazuddin Khan, died per LRs...Respondent Counsel for the appellant: Advocate-General Counsel for the Respondent: Sr.A.

Ravinder Reddy HEAD NOTE: ?.Cases referred THE HON'BLE Sr.JUSTICE L.

NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE S.V.BHATT A.S No.3720 of 1992 JUDGMENT

: (Per the Hon'ble Sr.Justice L.

Narasimha Reddy) The sole defendant in O.S.No.35 of 1984, on the file of the Subordinate Judge, Medak, filed by the sole plaintiff, the deceased 1st respondent herein; approached this Court, feeling aggrieved by the decree dated 18-04-1991 passed in the said suit.

For the sake of convenience, the parties herein are referred to, as arrayed in the suit.

The plaintiff filed the suit for the relief of recovery of possession of an extent of 1649 acres of land in different survey numbers of the Villages of Taherkhanpet and Chitkul of Medak District and Badamvanigudam of Nalgonda District; for recovery of a sum of Rs.2,53,58,400/-, towards past mesne profits; future mesne profits @ Rs.2,000/- per acre, per dry lands, and Rs.700/- per acre for wet lands; excise income from toddy trees @ Rs.4,000/- per year, and income for Tamarind trees @ Rs.4,000/- per year.

The plaintiff pleaded that he has succeeded to the suit schedule property and was in possession and enjoyment of the same for several yeaRs.It was stated that he went to pilgrimage to Haj in the year 1949, and by the time he returned, the possession of the entire land was taken, claiming to be under the provisions of the A.P.(Telangana Area) (Abolition of JagiRs.Regulation, (for short ".the Regulation".).He stated that when he found that the land was taken over by the defendant and their authorities, he filed O.S.No.31 of 1963 against two individuals, by name, Khaja Taher Ali Khan, and Asmatunnissa Begum, and Jagir Administrator, in the Court of III Additional Judge, City Civil Court, Secunderabad, for the relief of declaration and possession and the suit has been decreed on 30-07-1963.

It was stated that though the Jagir Administrator has made an attempt to file appeal against the decree in O.S.No.31 of 1963, the application filed under Section 5 of the Limitation Act was dismissed, and thereby, the decree became final.

It was alleged that though he filed number of representations with the defendant, for re-delivery of the possession of the land and payment of mesne profits, no steps were taken for quite a long time.

It was stated that after prolonged correspondence, the Government passed certain ordeRs.admitting the factum of taking possession of the land of the plaintiff and releasing the land at Taherkhanpet Village from the purview of the Regulation.

He submitted that despite these developments, he was not handed over possession of any land, nor was paid any mesne profits, and prayed for the relief, referred to above.

The defendant filed a written-statement.

An objection was raised as to the maintainability of the suit, on the ground that the plaintiff has to work out his remedies, if any, only under the provisions of the Regulation, and not by filing independent suit.

The plea of limitation was also raised.

It was pleaded that the suit which is filed in the year 1984, for recovery of possession of the land, said to have been taken over in the year 1949, is hopelessly barred by limitation.

It was submitted that on finding that the lands are covered by the provisions of the Regulation, steps were taken for payment of commutation amounts to various persons, and since no appeals were filed under the Regulation, the proceedings assumed finality.

The trial Court decreed the suit, granting the reliefs of recovery of possession, payment of past and future mesne profits.

The learned Advocate-General for the defendant submits that the suit field by the plaintiff is not only barred under the Regulation, but also by limitation.

He submits that the Regulation is a special law, brought about as part of agrarian reforMs.so much so, it is included in the Ninth Schedule of the Constitution of India.

He contends that even according to the plaintiff, the land was brought under the purview of the Regulation, in the year 1949, and if he felt aggrieved by any steps taken by the Jagir Administrator, or other authorities, he ought to have prosecuted remedies, provided for under Section 20 of the Regulation.

He submits that O.S.No.31 of 1963 was totally untenable in law and the decree passed therein is a nullity.

Learned Advocate-General further submits that when the plaintiff himself pleaded that he lost possession in the year 1949, by no stretc.of imagination, a suit presented in the year 1984 could not have been entertained.

He contends that the trial Court, which is under obligation to examine the question of limitation, on its own accord, as required under Section 50 of the Limitation Act; was indifferent to a specific plea raised in this behalf, and did not even choose to frame any issue on the question of limitation.

It is urged that the plaintiff, who filed the suit as indigent person, without paying even a rupee as Court fee, has claimed astronomical amounts towards mesne profits, and the trial Court was equally liberal in granting the same, contrary to the basic tenets of law.

Learned Advocate-General submits that though certain Government Orders are issued, paving the way for releasing certain extent of land, the same have since been withdrawn and the plaintiff filed W.P.No.854 of 2000, in relation thereto.

The sole plaintiff died during the pendency of the appeal.

Initially the respondents 2 to 8 were brought on record.

When one of the legal representatives died, respondents 9 to 14 were brought on record, as legal representatives.

Across the Bar, it is stated that one or two of the legal representatives, now on record, died.

We proceeded to hear the appeal without waiting for the steps, in view of the fact that the estate of the sole plaintiff is already represented and death of one of the legal representatives cannot hamper the progress in the appeal.

Sr.A.

Ravinder Reddy, learned counsel for the plaintiff submits that the land of the plaintiff, was not at all covered by the Regulations, and still, the possession thereof was taken.

He submits that the Jagir Administrator suffered a decree in O.S.No.31 of 1963, and an attempt made by him to file appeal against that decree did not fructify.

He submits that the plaintiff was not at all put on notice before possession of the land was taken, and the dispossession of his client from the vast extent of land is contrary to law.

Learned counsel submits that the defendant is under obligation to re-induct the plaintiff or his legal representatives in possession and are liable to pay the mesne profits from the date of dispossession.

He submits that the trial Court has taken the correct view of the matter and no interference is warranted.

According to the learned counsel, the cause of action is continuous in nature and the suit is not barred by limitation.

The suit was filed by the plaintiff for the relief of recovery of possession and mesne profits in relation to vast extent of land of 1649 acres in three different Villages.

The sole defendant raised several objections, including those, as to maintainability and of limitation.

Initially, the trial Court framed only one issue, viz., whether the plaintiff is entitled for declaration prayed for, though such a relief was not claimed at all.

Later on, the following additional issues were framed on 30-08-1990: 1) ".Whether the plaintiff is entitled to entire suit schedule properties; 2) Whether the plaintiff is entitled to past mesne profits from the year 1949 to the date of filing of the suit as prayed for and further mesne profits.

3) Whether the plaintiff is entitled to recover the excise income with regard to Sendhi and Toddy trees existing in the suit lands.

4) Whether the plaintiff is entitled to the compensation with regard to tamarind and mango trees, cut of, house (compound) stone wall, doors and tadbed, berk (Tange duporka) Babul bushes).as prayed for and annual income of tamarind and mango fruits as prayed for".However, even at that stage, no issues were framed on maintainability and limitation.

The evidence adduced by the plaintiff comprised of the deposition of PWs 1 to 4 and Exs.A-1 to A-23.

No evidence whatever was adduced by the defendant.

In view of the extensive arguments advanced before this Court by the learned Advocate-General and learned counsel for the respondents, we are of the view that the following points arise for consideration: a) Whether the suit filed by the plaintiff with the reliefs claimed therein is maintainable in law; b) Whether the suit is not barred by limitation; c) Whether the suit is bad for non-joinder of necessary parties; and d) Whether the plaintiff proved his case for grant of reliefs claimed in the suit.

Point (a).The plaintiff specifically pleaded that the possession of the suit schedule lands were taken by the Jagir Administrator and the Revenue Administrator in the year 1949.

The relevant plea in the plaint reads: ".That in the year 1949, the plaintiff had been to MAKKA SAREEF on pilgrimage for performing Haj Ceremony.

In these days, in the absence of this plaintiff, the subordinates of the defendant have took the custody of the suit land in the name of Jagir Abolition Act (obviously the Regulation).without giving any notice or making any enquiry.

The Jagir Administrator and the Revenue Department have been treated the suit property as Crown grant.".

The Regulation came to be framed by the erstwhile State of Hyderabad on 15-08-1949.

Later on, it came to be adopted by the State of Andhra Pradesh after reorganization.

Section 4 of the Regulation has brought an end, to the institution of 'jagirdars'.

Section 5 provides for transfer of the lands held by jagirdars to the Government, and the management thereof is vested with the Jagir Administrator, appointed under Section 3.

The jagirdaRs.who are deprived of the administration of the jagiRs.are entitled to be paid the commutation amount.

Section 20 of the Regulation provides for the remedy of appeal or revision to the Government or such authority, as the Government may appoint, against any orders passed by the Jagir Administrator.

Sub-section (2) thereof stipulated 60 days time for limitation for filing the appeal or revision, as the case may be.

Section 21 of the Regulation directs that no civil suit or criminal proceeding shall be instituted against the Jagir Administrator or any public servant in respect of any proceedings under the Regulation, except with the previous sanction of the Government.

Sections 20 and 21 read, ".20.

Appeal and Revision:- (1) A party aggrieved by any order passed by the Jagir Administrator under this Regulation may appeal against the order to Government, or to such authority as Government may appoint in this behalf.

(2) An appeal under sub-section (2) shall be filed within 60 days of the date on which the aggrieved party is informed of the order against which he appeals: Provided that the appellate authority may for sufficient cause entertain an appeal filed after the expiration of the said 60 days.

(3) Government or such authority as Government may appoint in this behalf may revise any order passed by the Jagir Administrator.

Provided that no order adversely affecting any person shall be passed in revision without giving that person an opportunity of being heard.

21.

Judicial proceedings:- (1) Save with the previous sanction of Government, no civil or criminal proceedings shall be instituted against the Jagir Administrator or any other public servant in respect of anything done or purporting to have been done under this Regulation.

(2) All claims relating to a jagir or to any share in the income thereof, whether arising under this Regulation or otherwise, shall subject to this Regulation but notwithstanding any existing law, be filed, in and decided by, the appropriate Civil Court: Provided that any proceeding pending at the commencement of this Regulation before an Atiyat Court or, before a Commission or any other authority shall be completed in accordance with the existing law as if this Regulation had not been enacted".This, broadly is the scheme under the Regulation.

In case the plaintiff had any grievance about taking over of the land by Jagir Administrator, he ought to have availed the remedy under Section 20 of the Regulation.

He did not do so.

Instead, he filed O.S.No.31 of 1963 in a Civil Court for the relief of declaration and possession.

It is interesting to note that the relief of perpetual injunction was claimed against two private individuals therein and the one for possession and declaration was not claimed against any specific defendant.

The Jagir Administrator was shown as defendant No.3.

The trial Court passed an ex parte decree.

The judgment did not even refer to any claim or the basis for the relief.

No finding as to the entitlement of the plaintiff to get the relief was recorded.

It is no doubt true that the Jagir Administrator made an attempt at a belated stage, to challenge the decree, and this Court dismissed the application for condonation of delay.

However, assuming that the decree in O.S.No.31 of 1963 became final, the only couRs.open to the plaintiff was to take steps to execute the decree therein, if otherwise permissible in law.

Even that step was barred under Section 21 of the Regulation.

The decree in that suit, hardly is of any use or help to the plaintiff.

Obviously realizing this, the plaintiff approached the Government, and he was able to get some Government Orders in respect of part of the land.

However, those orders were withdrawn at a later point of time.

Once the proceedings are initiated in respect of the land under the Regulation, which is a special enactment, there was absolutely no basis for the plaintiff for instituting the instant suit.

Not only alternative remedies are provided for, but also the suits are barred, in relation thereto.

A small effort by the trial Court, to look into the Regulation and Order VII Rule 11 C.P.C., would certainly have resulted in rejection of the plaint.

However, if one looks into the manner in which the issues were framed, the lack of proper care on the part of the trial Court would be evident.

We are of the clear view that the suit was not maintainable, in view of Sections 20 and 21 of the Regulation.

Point (b).The second point is about limitation.

It had already been mentioned that the plaintiff lost possession of the land in the year 1949.

12 years thereafter, he filed O.S.No.24 of 1961, which came to be re-numbered as O.S.No.31 of 1963.

An ex parte decree was passed without addressing the question of limitation.

The suit on hand, was filed in the year 1984, with a specific prayer for recovery of possession, that too, without any prayer for declaration of title.

The defendant raised a specific plea that the suit is hopelessly barred by limitation.

It is indeed shocking that the trial Court did not choose to frame an issue on this aspect.

In an adversarial litigation, which our system had adopted, it is mostly for the parties to put forward their contentions, and the Court has to act like an umpire, in pronouncing upon the rights of the parties, duly taking into account, the pleadings, the evidence on record and the provisions of law.

In the matter of limitation, however, the Civil Court is ascribed or attributed the role, which is prevalent in a system, where the inquisitorial process is in vogue.

Even at the threshold of a suit, the Court is required to bestow its attention to the question of limitation.

Section 3 of the Limitation Act mandates this.

If by any chance, a suit came to be numbered, crossing that stage, the obligation of the Court does not cease, in this regard.

Even if the defendant has remained ex parte, or has participated in the proceedings, but did not raise any objection as to the limitation, the Court has to satisfy itself, about this.

Just for a common man, not so conversant with the legal proceedings, any attempt made by an individual to seek recovery of possession, 35 years after it is lost; would appear to be a stale and untenable claim.

Article 65 of the Limitation Act enables a plaintiff, in a suit, to recover possession on the basis of title, within 12 years from the date on which, the possession of the defendant became adverse.

In other cases, it is still shorter.

In the instant case, the plaintiff did not claim the relief of declaration and possession.

By any standard, the suit filed by a plaintiff, in the year 1984, for recovery of possession of the land, lost in the year 1949, is hopelessly barred by limitation.

The trial Court failed in its duty in addressing this important question on its own accord, and when it did not frame an issue, despite there being a specific plea in the written-statement.

We find that the suit is hopelessly barred by limitation.

Point (c).The suit was filed only against one defendant i.e.the appellant herein.

The Regulation provided not only for appointment of Jagir Administrator, but also confers all the powers under it, upon him.

As a matter of fact, the plaintiff impleaded the Jagir Administrator as defendant No.3 in O.S.No.31 of 1963.

It is a different matter that the decree passed therein was not enforced, and it became stale document by this time.

In the present suit also, specific reference was made to the acts and omissions on the part of the Jagir Administrator.

However, the plaintiff did not choose to implead him.

When the Regulation constituted a special authority to enforce its provisions, and the so-called wrong to the plaintiff occurred in the hands of such authority, any suit filed without impleading him is defective for non-joinder of necessary party.

The defendant does not figure anywhere in the scheme of the Regulation, nor it was alleged that the defendant dispossessed the plaintiff.

Further, in case the subordinates of the sole defendant have dispossessed the plaintiff, he could have claimed the relief firstly against such subordinates and thereafter in a vicarious capacity, against the sole defendant in the appeal.

Therefore, this point is also answered against the plaintiff.

Point (d).De hors the answers to the three points, referred to above, which are mostly legal and technical in nature, if one looks at the merits of the matter, it becomes evident that the plaintiff miserably failed to prove his case.

There was nothing on record to establish that he was the jagirdar of any particular extent of land.

It was clearly mentioned in the written-statement that the commutation amount for the suit schedule properties were paid to various persons.

The plaintiff was not specific as to whether he received any commutation amount, or made any attempt to recover the same.

Once the commutation was paid to some other individuals, there exists presumption to the effect that they hold the land as jagirdaRs.and were accordingly paid the commutation amount.

If the plaintiff is of the view that such persons are not entitled to receive the amount, it was his primary and fundamental duty to implead all such persons.

He could have filed the suit for recovery of possession straightaway, if only there did not exist any doubt, as to his title and the provisions of the Regulation did not apply.

Further, the amounts towards past and future mesne profits were claimed in astronomical figures.

There is hardly any evidence to substantiate the claim.

The plaintiff was not cultivating the lands, nor did he establish that he was receiving any income from them.

We accordingly hold that the plaintiff failed to prove his case on merits also.

For the foregoing reasons, the appeal is accordingly allowed, and the judgment and decree passed by the trial Court are set aside.

The miscellaneous petitions filed in this appeal shall also stand disposed of.

There shall be no order as to costs.

_____________________ L.

NARASIMHA REDDY, J _______________________ S.V.BHATT, J dated.11-06-2013