V. Narayanaswamy Mudaliar Vs. Veluru Krishnavenamma - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 2. the unsuccessful defendant in the suit is the appellant. the suit site is enjoyed by the said arunachala modaliyar by preparing bread and biscuit and it is even now with an old oven(poyya) and adjoining to the suit site. 15. it is needless to say it would have been just and proper for the appellate court to frame better points for consideration. strong reliance was placed on the decision of this court in subbamma v. a-1 would cover suit site and also the adjoining shop as well. arunachala modaliyar dated 6-3-1952. strong reliance was placed on this document by the defendant. on a careful reading of the findings, this court is satisfied that the said findings cannot be said to be based on no evidence or misapperction of the evidence available on record. 1 well supported by p.p.s. narayana, j.1. heard sri mahadeva, learned counsel representing the appellant and sri n. pramod, learned counsel representing the respondent.2. the unsuccessful defendant in the suit is the appellant. the respondent herein smt. velum krishnavenamma filed the suit s. no. 24 of 1981 on the file of the principal district munsif, punganur, praying for the relief of declaration of title and perpetual injunction. the court of first instance, on the strength of the respective pleadings of the parties having settled the issues, recorded the evidence of p.ws.1 to 3, d.ws.1 to 3, marked exs.a-1 to a-5 and exs.b-1 to b-7 and came to the conclusion that the plaintiff had established her title and she is entitled for even the relief of perpetual injunction.3. aggrieved by the same, the matter was carried by way of appeal in a.s. no. 163 of 1990 on the file of additional district judge, mandanapalle, and the learned judge framed the point for consideration at para 7 and after discussing the oral and documentary evidence, came to the conclusion that the findings recorded by the court of first instance to be confirmed and ultimately, dismissed the appeal.4. aggrieved by the same, the present second appeal is preferred. on 19-12-1996, this court admitted the second appeal in view of the substantial questions of law raised in ground no. 7. the substantial questions of law raised in the second appeal are as hereunder:(a) whether on the facts and circumstances of the case the judgment of the lower appellate court is in conformity with order 41 rule 32 in as much as no points that arise for consideration were framed for determination?(b) that on the facts and circumstances of the case whether the approach of the lower courts treating ex.a-1 to a-3 which do not pertain to suit site can derive a title to the plaintiff on the face of ex.b-1, can a title be declared in favour of the plaintiff?(c) whether ex.a-1 & a-2 create a title in favour of the plaintiff as per section 105 of transfer of property act, 1882?5. the learned counsel for the appellant made elaborate submissions pointing out to certain portions of evidence of p.w.1 and would contend that in the light of admissions made by p.w.1, the documents relied upon by the plaintiff do not relate to the plaint schedule property and inasmuch a the plaintiff was unable to discharge her burden, the decree made by both the courts below cannot be sustained.6. the learned counsel also would contend that in fact, the courts below had appreciated only the stand taken by the plaintiff and had not appreciated the stand taken by the defendant at all and the findings had been recorded in such a fashion as though the burden lies on the defendant and not on the plaintiff and this approach adopted by both the courts below cannot be sustained.7. the learned counsel also would submit that non-consideration of the material piece of evidence would constitute substantial question of law. further, misreading of the documents also would constitute substantial question of law, and hence, inasmuch as, even on the strength of the documents relied upon by the plaintiff, the decree for declaration of title and injunction, as such, cannot be granted. the learned counsel also placed reliance on certain decisions in this regard.8. sri. n. pramod, learned counsel representing the respondent/plaintiff in all fairness would submit that framing of consideration by the appellate court though not happily worded, the appellate court had taken into consideration all the facts and circumstances, recorded findings in detail and in view of the same, inasmuch as, all the aspects had been considered, the matter need not be remanded on that ground.9. the learned counsel also had taken this court through certain portions of evidence of d.w.1 and would maintain that on the strength of this evidence of d.w.1 apart from the clear evidence of p.w. 1, the plaintiff is bound to succeed even otherwise, inasmuch as, concurrent findings had been recorded by both the courts below and predominantly the questions raised in the second appeal being questions of fact, the second appeal deserves a dismissal.10. the parties hereinafter would be referred to as plaintiff and defendant as arrayed in o.s. no. 24 of 1981 on the file of the principal district munsif of punganur. it was pleaded in the plaint as hereunder:the schedule property belongs to the plaintiff. she is in possession and enjoyment of the same. the suit property and the adjoining maliga situated to the east of the suit site originally owned by raj veera basava chikka rayalu y.b. varu. he alienated the suit site and adjoining maliga to one sidda raju urse for rs. 1600/- under a registered perpetual lease deed dated 31-3-1947 and put him in possession of the same. afterwards the said sidda raju had been in possession of the suit site and the adjoining maliga. raja veera basava chikka rayalu y.b. varu feel due to one c.p. vasantha rajan. the said vasantha rajan obtained a decree ino.s. no. 63/45 on the file of d.m.c. chittoor and executed the decree in o.e.p. 108/47 and broughtthe properties of zamindar including the suit site and adjoining maliga for sale. in the court auction one y. sankaranarayana setty became the highest bidder and the sale was confirmed in his name. to avoid litigation and to purchase peace the said sidda raju paid rs. 600/- to y. sankaranarayana setty and got his right relinquished in the suit site and adjoining maliga. thus the said sidda raju urse became the absolute owner of the suit site and adjoining maliga for valuable consideration to the plaintiff under a registered sale deed dated 27-10-80 and put the plaintiff in possession of the same. after the sale the plaintiff got demolished the entire adjoining maliga and she is constructing a new one in the place of old maliga and also in the suit site. the defendant is causing obstruction to raise constructions in the suit site making false claim for the suit site stating that the father-in-law purchased the suit site from raja veera basava chikka rayalu y.b. varu under a registered sale deed dated 6-3-1952 and later the defendant succeeded for the same. the said sale deed is nominal one and never acted upon. as such it is not valid. even if the said sale deed is valid either the defendant or his father-in-law does not derive any right over the suit site as the perpetual lease deed dated 31-3-1947 is earlier and is binding upon the defendant and his father-in-lawand their vendor. on account of the objections caused by the defendant the plaintiff is unable to proceed ahead with the construction in the suit site. apart from it the defendant is also threatening to dispossess the plaintiff from the suit site. hence the suit is filed for declaration of plaintiff's title over the suit schedule property and for permanent injunction restraining the defendant and their men from in any way interfering with the peaceful possession and enjoyment of the suit property.11. the defendant filed written statement denying the allegations. it was also further pleaded that:raja veera basava chikka rayalu was the original owner of the suit site and adjoining maliga but veera basava chikka rayalu has sold the suit property to one arunachala modaliyar father-in-law of the defendant in the year 1952 for a valid consideration of rs. 100/- with the correct boundaries and put the said arunachala modaliyar in possession of the suit site. the perpetual lease deed dated 31-3-1947 is not in respect of suit site, but it is only in respect of adjoining maliga. what is stated in para five of the plaint is partly correct. c.r. vasantha rajan, advocate, chittoor filed against the said raja veera basava chikka' rayalu in o.s.63/45 on the file of district munsif court, chittoor and executed a decree in e.p. 108/47 and brought the properties of reminder including the adjoining maliga and not the suit site for sale. one sankaranayana chetty was the highest bidder in court auction for only maliga and not suite site. the set up relinquished deed mentioned in the plaint alleged to have been executed by e. sankaranayana chetty in favour of sidda raju in respect of suit site and maliga is not binding on arunachala modaliyar or any other person. sidda raju urse will not derive any title to the suit site out of the relinquished deed as e. sankaranarayana chetty is not the auction purchaserforthesuitsite. what is stated in para 6 of the plaint is not correct. the registered sale deed dated 27-10-1980 executed by sidda raju urse in favour of plaintiff is not binding on arunachala modaliyar or the defendant and any other legal representative of arunachala modaliyar. the plaintiff will not derive any title from the sale deed as the vendor has no title and possession over the suit site. as the plaintiff got adjoining maliga and she demolished the adjoining building and constructed a new building during nights, but not in the suit site, but the plaintiff during one night constructed walls on the northern site of the suit site and stored bricks in the suit site. this is not the false claim of the defendant or arunachala modaliyar or his legal representative. the sale deed dated 6-3-1952 executed by raja veera basava chikka rayalu in favour of arunachala modaliyar is valid one and binding on the plaintiff and it is not a nominal as alleged in the plaint. the suit site is enjoyed by the said arunachala modaliyar by preparing bread and biscuit and it is even now with an old oven(poyya) and adjoining to the suit site. the father-in-law of the defendant has a shoda shop and there was an entrance and passage from the suit site into the shoda shop which has been closed by the plaintiff by constructing a wall during night as her husband is a mastri. the perpetual lease deed dated 31-3-1947 is not valid and binding upon the defendant and his father-in-law and his vendor. if really sidda raju derived title under perpetual lease deed dated 31-3-47, there is no necessity to him to get the relinquishment deed from e. sankaranayana chetty. what is stated in para 7 of the plaint is not correct. the defendant has been in possession and enjoyment of the suit site as ageneral power of attorney holder of arunachala modaliyar and as son-in-law,but there is no question of defendant there a tening to dispossess the plaintiff. the plaintiff is not entitled to construct any building in the suit site. the plaintiff is not having any title, possession and enjoyment of the suit property and hence the plaintiff is not entitled to ask the declaration of right and title to the suit site and the boundaries mentioned in the schedule are not correct.12. an additional written statement was filed by the defendant taking a plea that the plaintiff is not entitled to amend the boundaries of the suit schedule property and certain details relating to the boundaries and other aspects also had been specified.13. on the strength of the pleadings, the court of first instances settled the following issues:1. whether the plaintiff is entitled to declaration of her title to the plaint schedule property?2. whether the plaintiff is entitled to permanent injunction as prayed for?3. to what relief?14. p.ws.1 to 3 were examined and exs.a-1 to a-5 were marked. likewise, d.ws.1 to 3 were examined and exs.b-1 to b-7 were marked. on appreciation of evidence, the court of first instance came to the conclusion that the plaintiff is entitled to the decree as prayed for aggrieved by the same, the matter was carried by way of appeal, being a.s. no. 163 of 1990, and the appellate court at para no. 7 framed the following point for consideration:whether the decree and judgment of the lower court suffers from any material irregularity on facts or law?15. it is needless to say it would have been just and proper for the appellate court to frame better points for consideration. submissions at length were made by both the counsel in relation to this aspect. however, the appellate court had discussed all the facts available on record, recorded findings commencing from para no. 7 to 13 and ultimately dismissed the appeal and as against the said concurrent findings, the present second appeal is preferred.16. when both the parties adduced evidence, in several cases, the burden of proof would loose its importance inasmuch as the court may have to arrive at a conclusion on appreciation of whole evidence available on record. the impact of appreciation of the concept of burden of proof in such cases would be minimum. it is no doubt true that the plaintiff who had approached the court may have to establish her case by adducing positive evidence. strong reliance was placed on the decision of this court in subbamma v. penchalaiah 1997 (1) alt 534 and also in k.v. subba reddi v. b. ramaiah : 1999(3)ald317 . further, reliance was placed on the decision of this court in rajabathula suryanarayana v. yedukula lakshmi 2003 (5) alt 367 and on the strength of the said decisions, certain submissions were made that this is a case for remand. reliance also was placed in ishwar dass jain (dead) through l.rs v. sohan lal (dead) by l.rs : air2000sc426 where the apex court while dealing with substantial question of law held thatwhen vital evidence which could have led to a different conclusion was omitted or when inadmissible evidence was relied upon, which if omitted would have led to a different conclusion, the same may fall under substantial question of law.17. there is no serious controversy that originally the suit site and the adjoining shop belonged to raja veera basava chikka rayalu and the stand taken by the defendant is that ex.a-1 -lease deed does not cover the suit site, but only covers the shop. the measurements given in ex.a-1 had been taken into consideration and findings had been recorded by both the courts below, that ex.a-1 would cover suit site and also the adjoining shop as well. the case of the defendant is that his father-in-law purchased the suit site under ex.b-2-sale deed. the vendor of the plaintiff by name sidda raju had obtained perpetual lease deed in respect of the adjoining shop ex.a-1. the evidence of p.w.1-v. krishnavenamma, p.w.2-sidda raja urse and p.w.3-m. mruthyam jaya raja had been appreciated in detail. as already referred to supra ex.a-1 is dated 31-3-1947, a registered perpetual lease deed, ex.a-2 is certified copy of the rectification deed executed by raja veera basava chikka rayalu in favour of devaraju urse dated 29-2-1952, ex.a-3 is registered sale deed executed by sidda raju urse in favour of plaintiff dated 27-10-1980, ex.a-4 is settlement karanama executed by sankaranarayana chetty in favour of sidda raju dated 27-2-1980, ex.a-5 is served copy of the plaint in o.s. no. 86 of 1971 on the file of sub court, madanapalle. as against this evidence, the defendant examined himself as d.w.1, apart from this witness, d.ws.2 and 3 were also examined. the perpetual lease deed dated 15-8-1945, ex.b-1, was relied upon. there is some controversy in relation to whether ex.a-1 to be relied upon or ex.b-2 to be relied upon. it is needless to say that these are the findings of fact which had been recorded by both the courts below. ex.b-2 is the certified copy of the sale deed executed by raja veera basava chikka rayalu in favour of v. arunachala modaliyar dated 6-3-1952. strong reliance was placed on this document by the defendant. ex.b-3 is the simple mortgage deed executed by defendant in favour of m. rangaiah setty dated 30-8-1972, ex. b-4 is the endorsement in ex.b-3 dated 16-5-1975. ex.b-5 is the simple mortagage deed executed by defendant in favour of p. mohan, dated 7-7-1980, ex. b-6 is the endorsement on ex.b-5, dated 2-6-1982, ex.b-7 is the certified copy of sale certificate in o.e.p. 108 of 1947 in o.s. no. 63 of 1945 on the file of subordinate judge, chittoor.18. the main grievance ventilated by the counsel for the appellant/defendant is that in respect of appreciating the whole evidence available on record as though the burden is on the defendant, the courts below had recorded findings. this court had given anxious consideration to the findings given by the court of first instance and also the appellate court. on a careful reading of the findings, this court is satisfied that the said findings cannot be said to be based on no evidence or misapperction of the evidence available on record. positive findings had been recorded relating to the shop and adjacent site and reliance was placed on ex.a-1 coupled with other documentary evidence and also the evidence of p.w.1 well supported by p.w.2 in all other respects and also further supported by p.w.3. the evidence of d.ws.1 to 3 and also the documentary evidence had been appreciated. ex.b-1 and b-2 also had been taken into consideration.19. the main controversy raised is that there is some doubt about the boundaries and also there is some doubt about the identify of the property. it is needless to say that these are predominantly questions of fact and thus would not fall under substantial questions of law.20. hence, in view of the limitations imposed on this court in relation to the reappreciation of evidence under section 100 of the code of civil procedure, 1908, this court is not inclined to disturb the concurrent findings recorded by both the courts below, and accordingly, the second appeal shall stand dismissed. in the facts and circumstances, the parties to bear their own costs.