C.Y. Somayajulu, J.@mdashSince these two appeals arise out of a common judgment they are being disposed of by a common judgment.
2. O.S. No. 81 of 1980, out of which A.S. No. 1109 of 1988 arises, is a suit for declaration of the title of Plaintiffs 1 to 9 therein to Ac. 30-60 cts of land in S. No. 698/ A known as Rodduvari Baraka, of 80-Bannur Village and O.S. No. 79 of 1980, out of which Tr. AS No. 1701 of 1993, arises is a suit for declaration of the title of the plaintiff therein to Ac. 11.76 cts in S. No. 694 and Ac. 0.10 cts in S. No. 698/A of 80-Bannuru Village of Nandikotkur Taluk and for other consequential reliefs against the State of Andhra Pradesh and Husna Begum.
3. On a joint memo filed by the parties, the trial Court clubbed the suits and recorded common evidence and disposed of the suits by a common judgment.
4. The case of the plaintiffs in both the suits, in brief, is that Husna Begum (second defendant) is the owner of the suit land and that they purchased parts thereof either from the second defendant or the vendees from the second defendant and made improvements therein and that as the Government (first defendant) is claiming title thereto they filed the suits for declaration of title to the suit land and for a perpetual injunction restraining the first defendant from interfering with their possession and other reliefs, inter alia alleging that issueless Syed Gulam Hussain, son of Syed Ibrahim, who is the paternal uncle of the second defendant, was the owner of the suit land and that he adopted the second defendant and gifted the suit land to her and subsequently executed a gift deed on 25-6-1953 on a non-judicial stamp paper and delivered possession of the suit land to her and died on 18-9-1953. Second defendant and her husband who were employed in different Government Services at Hyderabad, wanted to raise a garden in the suit land after their retirement, husband of the second defendant for obtaining a loan for that purpose verified revenue registers and found that the suit land was registered as ''assessed waste''. So, he made an application on 26-4-1968 to the Jamabandi Officer (Revenue Divisional Officer) to transfer the patta of the suit land in the name of Gulam Hussain and thereafter in the name of the second defendant. During the course of enquiry, on that application, it was found that by virtue of an order on a petition dated 27-5-1934 said to have been filed by Gulam Hussain in 1934, relinquishing his rights in the suit land, the suit land was mutated in the name of the Government, vide Disposal No. 2643 dated 27-5-1934. The Tahsildar who conducted the enquiry on the application filed by the husband of the second defendant found that the application said to have been made by Gulam Hussain does not in fact contain the signature of Gulam Hussain, and so he recommended for retransfer of the patta. The Revenue Divisional Officer accepted the said recommendation and re-transferred the patta in the name of the second defendant. Thereafter, she alienated parts of the suit land to some of the plaintiffs and others. Those other purchasers from second defendant resold parts of the suit land to some of the plaintiffs. Some plaintiffs constructed buildings by spending huge amounts. In the meanwhile, Commissioner of Land Revenue, in exercise of his suo motu power of revision, set aside the order re-transferring the patta of the suit land in favour of the second defendant vide his orders dated 17-11-1977. Consequently, notices u/s 6 of the Land Encroachment Act were served on the plaintiffs. Hence, the suits to set aside the order of the Commissioner of Land Revenue and for declaration of the title of the plaintiffs to the suit land and for a consequential injunction restraining the first defendant from interfering with their possession over the suit land.
5. The case of the first defendant is that Gulam Hussain, after relinquishing his right in the suit land, was never in possession of the suit land. The alleged adoption of the second defendant by Gulam Hussain and the gift of the suit land allegedly made by him to the second defendant are not true. The deed of gift relied on by the plaintiffs and second defendant must have been brought into existence for obtaining transfer in the name of second defendant who was never in possession of the suit land. The suit land is being treated as ''assessed waste'' from 1344 Fasli. None of the plaintiffs or the second defendant were ever in possession of the suit land after 1344 Fasli. In fact, parts of the suit land was encroached by some third parties. The Commissioner of Land Revenue, after considering the relevant facts cancelled the order of the Revenue Divisional Officer. Hence, plaintiffs are not entitled to any relief.
6. On the basis of the pleadings, the trial Court framed 5 issues and 2 additional issues in O.S. No. 79 of 1980; and 3 issues and 2 additional issues in O.S. No. 81 of 1980. In support of their case, plaintiffs examined 15 witnesses as P.Ws. 1 to 15 and marked Exs.A. 1 to A. 27. In support of its case, first defendant examined one witness as D.W.I and marked Exs.B. 1 to B. 16. The trial Court, on Issue No. 1 in both the suits, which relate to the genuineness of the petition dated 1-5-1934 said to have been submitted by Gulam Hussain, relinquishing his rights in the suit land is true or not, held in favour of the plaintiffs; on additional Issue No. 2 in both the suits, relating to the question whether the second defendant is the heir to the estate of Gulam Hussain, observing that second defendant, as per Mohammadan Law, succeeds the estate of Gulam Hussain even if the gift deed in her favour is not true, did not give a finding on the Issue No. 2 in O.S. No. 79 of 1980 relating to the gift deed dated 25-6-1953; on additional Issue No. 1 in both suits, relating to the validity of the orders of the Commissioner of Land Revenue, held that the order of the Commissioner of Land Revenue does not deprive the title of the second defendant inasmuch as Ex. B. 1 petition for relinquishment is not a true or valid document; on Issue No. 3 in O.S. No. 79 of 1980 and Issue No. 2 in O.S. No. 81 of 1980 relating to the question whether the purchasers from second defendant have title, held in their favour; on Issue No. 4 in O.S. No. 79 of 1980 relating to the question whether the plaintiffs are entitled to the declaration; and on Issue No. 5 in O.S. No. 79 of 1980 relating to the question whether the plaintiffs are entitled to the injunction sought, held in their favour, and consequently decreed both the suits with costs declaring the title of the plaintiffs to the suit land by holding that Ex. B. 7 orders passed by the Commissioner of Land Revenue are illegal and void, and consequently granted an injunction restraining the first defendant and its men from interfering with the possession of the plaintiffs over the suit land. Hence, these appeals by the first defendant in both the suits.
7. The points for consideration in both the appeals are
(1) Whether second defendant acquired title to the suit land either from or through Gulam Hussain for her to convey any rights therein to the plaintiffs?
(2) Whether the order of the Commissioner of Land Revenue is liable to be set aside?
Point No. 1:
8. The case of the plaintiffs is that second defendant is the adopted daughter of Gulam Hussain. Except the ispi dixit of the second defendant as P.W. 2 there is no other evidence on record to show that second defendant was adopted by Gulam Hussain. Even otherwise also the adoption of second defendant by Gulam Hussain cannot be believed or accepted because adoption is not recognized by Mohammedan Law. In the ''Principles of Mohammedan Law'' by Mulla, (19th Edition) (Thirteenth Reprint 2005) at Page 283 it is stated
The Mohammedan Law does not recognize adoption as a mode of filiation
In B.R. Verma''s ''Commentaries on Mohammedan Law'' (8th Edition) at Page 313 it is stated:
Adoption not recognized by Mohammedan Law: Adoption shall not confer upon any person the status of a child except in the following cases
(1) Where subject to the provisions of the Shariat Act (XXVI of 1937) there is a valid custom of adoption.
(2) Where it is permitted by the provisions of any law for the time being in force
There is no evidence with regard to custom of adoption in this case. So, it can safely be said that second defendant is not the adopted daughter of Gulam Hussain.
9. Second defendant is the daughter of the brother of Gulam Hussain, whose widow is P.W. 3. So, as per Mohammedan Law both P.W. 3 and second defendant would inherit the estate of Gulam Hussain and so the contention of the plaintiffs that second defendant would become the absolute owner of the suit land after the death of Gulam Hussain cannot be accepted.
10. The other contention of the plaintiff is that second defendant became the owner of the suit land by virtue of the gift made in her favour by Gulam Hussain. The allegation in the plaint in both the suits is
The second defendant was brought up and educated by Syed Gulam Hussain from her childhood by adopting her into his family as he was issueless. Syed Gulam Hussain transferred S. No. 694-11.76 acres and S. No. 698/A - 30.60 acres mentioned above in favour of the second defendant herein through a gift deed of settlement executed by him voluntarily on 25-6-1953 with absolute rights. The gift of settlement was drawn on non-judicial stamp paper of Rs. 1.50 at Hyderabad. Late Syed Gulam Hussain delivered possession of the properties as well as the gift deed to the second defendant herein. Shortly thereafter, he died on 18-9-1953. From the date of the gift, the second defendant herein was in possession and management of the above said properties through her husband. As the second defendant and her husband were in employment, they cannot personally cultivate the lands.
So, it has to be seen whether the plaintiffs are able to establish that Gulam Hussain gifted the suit land to the second defendant.
11. The evidence of P.W.I is that he, at the instance of Gulam Hussain scribed the original of the gift deed shown to him. On an objection raised by the Government Pleader for its being marked, it was not marked. He did not speak anything about the gift of the suit land by Gulam Hussain to the second defendant.
12. The evidence of the second defendant as P.W. 2 is that Gulam Hussain gifted the suit land to her in the presence of his wife Bano Bi (P.W. 3) Abdul Shukur and Fakir Mohammed, and that she accepted the said gift and that Gulam Hussain delivered possession of the suit land to her, and thereafter, when she and her husband wanted to raise a garden in the suit land, they came to know that, as it was already transferred, it does not belong to them, and so her husband initiated proceedings for change of mutation and that Gulam Hussain, during his lifetime, put the Village Karnam in charge of the suit land. During cross-examination she stated that she might be aged about 20 or 25 years at the time of the gift but does not exactly remember her age at the time of gift and does not remember when she first visited Bannur (where the suit land is situate) and that she made only one visit to Bannur Village and her next visit was at the time of Ex. A. 3 sale deed executed by her in favour of one of the plaintiffs and during her first visit, the suit land was put in her possession, and later the Village Karnam came into possession thereof after the police action, and until police action her uncle was visiting and managing the suit land and before police action her uncle and her husband were visiting the village once in a year and the suit land was not leased out, and that her uncle married Bano Bi (P.W. 3) in 1947 and that her marriage took place in 1944, and that Fakir Mohammad was working in the Registrar Office and Abdul Shukur also was working in the same department as Secretary and that those two persons are good friends of her husband.
13. The evidence of P.W. 3, the widow of Gulam Hussain, is that she used to visit the suit lands once in a year prior to the police action. In the first instance she stated that Gulam Hussain did not give his lands to anybody and later stated that he gave his lands to P.W. 2 after his death and again stated that he gave his lands to P.W. 2 during his lifetime and that her husband adopted P.W. 2 as his daughter and delivered possession of the suit land to P.W. 2 in the presence of herself, P.W.I and late Abdul Shukur. During cross-examination she stated that the marriage of P.W. 2 took place earlier to her marriage and that she, her husband, and his brother Syed Ahmed along with P.W. 2 used to live in the same house at Malakpet and that they never resided in any other town or village at any time and that she or her husband never visited Nandikotkur after police action and that her husband did not cultivate the suit land personally at any time.
14. It is no doubt true that the provisions of Sections 122 and 123 of the Transfer of Property Act do not apply to gifts by Mohammedans. There are only three essentials for a gift by a Mohammedan i.e., (i) declaration of the gift by the donor; (ii) acceptance thereof by the donee; and (iii) putting the donee in possession of the property gifted. In Sunkesula Chine Budde Saheb v. Raja Subbamma 1954 ALT (Civil) 91 at 93, it is held though writing is not essential for a gift under Mohammedan Law, but if the gift is reduced to writing it requires to be registered u/s 17(1) of the Registration Act. The same view was taken in Maula Bakhsh v. Haflz-Ud-Din AIR 1926 Lah 372 and Commissioner of Income Tax, Hyderabad v. Begum Noor Banu Alladin 1985 Tax LR 321. The specific case of the plaintiffs and second defendant is that there is a gift deed evidencing the gift of suit land in favour of the second defendant by Gulam Hussain. But the said gift deed is not produced into Court. So, secondary evidence in respect of a written gift deed cannot be permitted to be adduced, in view of Section 91 of the Evidence Act. Assuming that oral evidence in respect of the said gift can be permitted to be adduced, it has to be seen whether the evidence on record establishes that second defendant was put in possession of the suit land by Gulam Hussain.
15. P.W.I did not state anything about delivery of possession of the suit land to the second defendant. The evidence of second defendant (P.W. 2) during cross-examination is that she made only one visit to the village Bannur and her next visit was at the time of Ex. A. 3 and that during her first visit the lands were in her possession and that she cannot say the boundaries of the land and that she has no land revenue receipts and that before police action her husband and uncle used to visit the suit land once in a year and after police action the Karanam came into possession of the suit land and was cultivating the land. From the above evidence of P.W. 2 it is seen that after the police action Karanam was cultivating the land. Since the gift in favour of the second defendant is said to be in 1953 i.e., several years after police action the Karnam must have either delivered possession of the suit land to the second defendant or should have attorned to second defendant and paying rent to the second defendant. There is no pleading in the plaint to that effect. P.W. 3, wife of Gulam Hussain, clearly admitted that her husband never cultivated the suit land personally at any time.
16. The evidence of Karnam (P.W. 4) does not corroborate the evidence of P.W. 2. Though P.W. 4 stated in his chief-examination that ever since the gift second defendant was in possession of the suit land, during cross-examination he stated that Gulam Hussain only was paying land revenue for the suit land from 1953 to 1970. If Gulam Hussain had really gifted the suit land to P.W. 2 and put her in possession thereof there would be no need for him to pay land revenue, more so because second defendant has means to pay land revenue independently as she admittedly was a Government employee. Gulam Hussain was a retired employee. If he made a gift of his land to an earning relative, there can be no reason for his paying the land revenue for the land gifted away by him. His alleged paying land revenue also belies the gift in favour of second defendant. That apart, Ex.B-5, the earliest document through which the husband of the second defendant, on behalf of second defendant, made a claim over the suit land does not state that second defendant was put in possession of the suit land by Gulam Hussain.
17. Now it has to be seen whether the evidence on record shows that Gulam Hussain was the owner of the suit land for him to gift it to others, or for anybody to inherit it after his death.
18. As in
19. The seeds for this litigation were first sown by the husband of the second defendant through Ex. B. 5 application for transfer of patta, made to the Revenue Divisional Officer on 26-4-1968. In Ex. B. 5 he stated that Gulam Hussain was in possession and enjoyment of the suit land and was regularly paying land revenue due, and was residing at 80 Bannur, and as he was advancing in age and as there was nobody at 80 Bannur Village to lookafter him, he and his wife shifted their residence to Hyderabad and were put up with the second defendant who is his brother''s daughter, as he brought her up and got her educated from her childhood, and transferred the suit land in her name under a gift deed dated 25-6-1953 and as he was residing at Hyderabad and as second defendant is married to him, and as Gulam Hussain granted permission to Madduleti Reddy, Village Munsif of 80 Bannur Village, to use the suit land for pasturage by paying land revenue to the Government and as neither he nor the second defendant could go and take possession of the lands after the death of his father-in-law and as he entertained an idea to reclaim the suit land for raising Cheeni or Grape Garden by obtaining loan from State Bank of India, he went to Bannur Village a few weeks prior thereto and came to know that Madduleti Reddy died about a year back and his sons denied knowledge of the suit land being used as pasture by their father, he approached the Village Karanam, who took charge recently, and came to know that the suit land stood registered in the village accounts as ''assessed waste'' and so he approached the old Karanam and came to know that as per the old 10(1) account of the village the suit land stood registered in the name of his father-in-law Gulam Hussain under patta No. 252, and inasmuch as his wife or Gulam Hussain did not relinquish their rights over the suit land, he suspects that some fraud was played, and so the suit land may be re-transferred in the name of Gulam Hussain and thereafter in the name of his wife. The said application Ex.B5 also shows that a translated copy of the Gift Deed; School Certificate; Death Certificate of Ghulam Hussain; photo and typed copies of the gift deed were enclosed thereto. A close and careful reading of Ex.B5 shows that there is no mention therein that either the second defendant or her husband were ever put in possession of the suit property by Gulam Hussain or that they were in possession of the suit land at any point of time. The averment in the plaint is that, after the gift in her favour, second defendant was in possession of the suit land, ''through her husband''. In his petition Ex.B5 the husband of the second defendant did not even whisper about his being in possession of the suit land at any time. Therefore, even assuming that Gulam Hussain announced a gift of the suit land in favour of the second defendant, inasmuch as possession thereof was not delivered to the second defendant, it cannot be said to be a valid gift in favour of the second defendant.
20. Since Ex. B. 5 application was ordered on the basis of Ex. B. 9 recommendation of the Tahsildar, I feel it relevant to extract Paras 3 to 5 of Ex. B. 9 report sent by the Tahsildar to the Revenue Divisional Officer.
3. A perusal of the original settlement register of the village and the R.S.R. which is in manuscript shows that the above two lands are exhibited as assessed waste lands. There is no entry therein to show when they were assigned to late Sri. Gulam Hussain. The land darkhast registers available in this office do not contain any particulars about these lands. The petitioner is not able to produce any documentary proof by way of D. Form patta or any proceedings or at least land revenue receipts to throw any light as to when and how his father-in-law came to acquire the lands. On this score his petition can be rejected outright. But during the course of the examination of the old records I came across Disposal No. 26/Rel/43F dated 27-5-1934. It contains the relinquishment dated 1-5-1934 given by Sri Gulam Hussain for the lands in question and the orders of the Tahsildar dated 27-5-1934 accepting it. When the petitioner was shown this record, he pleads that the signature in the relinquishment petition was not that of his father-in-law but was forged by somebody. In support of this contention he produced the original gift deed executed by his father-in-law on 25-6-1953 in favour of his wife. It contains the signature of the said Sri Gulam Hussain in Urdu which is attested by three witnesses. It is not a registered deed but the petitioner explains that the practice in the Telangana Area prior to formation of Andhra Pradesh was only to write the deed on a stamped paper and it was not necessary to register it in the Office of a Sub-Registrar. The signature of Sri Gulam Hussain in the gift deed does not in anyway resemble the one found in the relinquishment petition. Even without the opinion of an handwriting expert it can be said that the relinquishment was a forged one.
4. As submitted above the petition cannot be rejected saying that the lands are assessed waste lands because there is the subsequent relinquishment for them. In case the lands continued as assessed waste lands there was no need for the creation of the relinquishment at all. This leads to the conclusion that the lands were first assessed waste lands and were subsequently assigned on patta which fact was omitted to be noted in the accounts. It is not understood how this omission could not be noticed all these years. Since Gulam Hussain was at Hyderabad he must have been a chronic defaulter in payment of land revenue and the then village officers must have thought it best to get rid of the trouble of collecting from him as otherwise they should pay the amount from their pocket because showing nil balance was the order of those days. So they seem to have adopted this way of forging a relinquishment petition and Gulam Hussain had no opportunity to know it as he was away.
5. Now coming to the question of the claim of the petitioner to the lands, he says that neither himself nor his wife had any knowledge about the payment of land revenue for them because his father-in-law was looking after them. The burden on payment etc., fell on them only in 1953 with the execution of the gift deed and the death of his father-in-law. He says that as his wife and himself were in Government Service at Hyderabad they had no occasion to come over frequently to these parts to lookafter their lands. He was merely sending the land revenue amounts to the late V.M. Sri Madduleti Reddy for adjustment to his account. In view of the confidence he reposed in the Village Munsif who was a ryot of big status he was not demanding any receipt and the V.M. was not also in the habit of sending receipts to him. Moreover as the lands are of poor quality he did not pay attention to them. Now that both himself and his wife are going to retire shortly from service and as they do not possess any property at Hyderabad he wants to settle down at Nandikotkur and improve his lands by raising a garden etc." (underlining mine)
The underlined observation of the Tahsildar in Para-4 of his Ex. B. 9 report is a pure surmise and is not based on any material whatsoever. From Para-3 of Ex. B. 9 it is clear that the Tahsildar held that Ex.B2 signature, in Ex. B. 1 application made by Gulam Hussain, is a forged signature, solely on the basis of the signature said to be that of Gulam Hussain in the gift deed dated 25-6-1953, which is not produced before the Court. Probably to enable the Court to compare Ex. B. 2 signature with another signature of Gulam Hussain, plaintiffs produced Ex. A. 1, which is said to contain Ex. A. 2 signature of Gulam Hussain, and got them marked through P.W.I. The evidence of P.W.I is that Ex. A. 2 and Ex. B. 2 are not identical and Ex. B. 2 signature reads "Goolam Hussain Saheb" whereas Ex. A. 2 reads ''Syed Ghulam Hussain'' and that Ex. B. 2 does not contain correct Urdu words and that there are spelling mistakes and that no educated man suffixes ''Saheb'' to his name. P.W.I, admittedly, is not a handwriting expert. Second defendant (P.W. 2) admitted, during cross-examination, that P.W.I is a good friend of her husband. Since I cannot read or writ Urdu, at my request the learned Counsel for plaintiff furnished an English translation of Ex. A. 1, Marriage Certificate, which is in Urdu. The English translation of Ex. A. 1 shows that Column No. 5 thereof relates to ''Name of the Bridegroom with father''s name, age, caste, religion, occupation and residence: present and previous'' and is filled in as follows:
Syed Ghulam Hussain Sahab S/o Late Syed Ibrahim Sahab, Age: 50 years: Caste: Syed, Religion Hanafi - Occ:Meson P.W.D.H.E.H. The Nizam''s Government Hyderabad r/o Inside Dareecha Bawaheer,
In Column No. 6 relating to the name of the bride, etc., the signature of the bride is not there. When Column No. 5 of Ex. A. 1 does not contemplate the bridegroom signing, why and for what reason the signature of the bridegroom was obtained is not explained by anybody. The reason for non-production of the original Marriage Register is also not explained by the plaintiffs. A close and careful reading of the entire record clearly establishes that in an endeavour to show that Ex. B. 1, relinquishment petition, does not contain the signature of Gulam Hussain either the second defendant or her husband must have tried to bring into existence the signature Ex. A. 2 in Ex. A. 1, after copy of the gift deed dated 25-6-1953 relied on by them was not admitted in evidence. Why Khaji is not examined and why the original marriage register is not got marked are not explained by the plaintiffs. From the entry in Column 5 of Ex. A. 1 of the English translation extracted above, it is clear that the word ''Saheb'' is very much there in the name of Gulam Hussain either as a suffix or otherwise, even by the time of his marriage in 1944. The possibility of the plaintiffs making somebody put his signature in Column No. 5 of Ex. A. 1, and producing it as an extract from the marriage register containing the signature of Gulam Hussain cannot be ruled out. Since plaintiffs failed to produce the original of Ex. A. 1 and have also not examined and Khazi, who made entries in the original of Ex. A. 1, I do not wish to rely on either Ex. A. 1 or Ex. A. 2. P.W. 3, widow of Gulam Hussain, even in her chief-examination, stated that her husband was a Government employee. The English translation of Ex. A. 1 also shows that the deceased was an employee in Nizam Government. So, plaintiffs could have taken steps for production of records like acquitance register etc., which would contain the signature of Gulam Hussain. They failed to do so and wished to rely on private documents in their own custody. Their failure to take steps for production of record from the Government which contains the undisputed signatures of Gulam Hussain tells its own tale. As stated earlier, to buttress their claim that Gulam Hussain Saheb was not signing as ''Gulam Hussain Saheb'', but was signing as ''Gulam Hussain'' second defendant or her husband must have made somebody sign Ex. A. 2 signature in Ex. A. 1 extract from the Register of Marriages. Non-production of the original marriage register, to enable the Court to find out, if in fact the said register also contains the signature of the bridegroom, is also a circumstance against the plaintiffs and second defendant.
21. Since the first underlined portion in Para-3 of Ex. B. 9 shows that there is no material to show the title of Gulam Hussain, and that his title to the suit land can be inferred only from Ex. B. 1 application, and since second underlined portion in Para-3 of Ex. B. 9 extracted above shows that the Tahsildar had shown the Ex. B. 1 application to the husband of the second defendant, it is easy to see that the husband of the second defendant must have won over the Tahsildar to send a report in his (or his wife''s) favour. It is only with a view to create some evidence, and in an attempt to show that Ex. B. 2 signature in Ex. B. 1 is forged, the gift deed said to have been executed by Gulam Hussain in favour of second defendant must have been brought into existence, with the help of the friends of the husband of the second defendant. That it is so is clear because P.W. 2 admitted in her cross-examination that the attestors and scribe of the gift deed are her husband''s friends. If really the signature in Ex. B. 1 application is forged the whole document should be ignored, because it is axiomatic that if the signature in an application is found to be forged the entire application becomes non est and cannot be looked into or considered for any purpose. How the Tahsildar thought fit to rely on the recitals in a document containing forged signature is not even considered by the Revenue Divisional Officer, while approving the proposal of the Tahsildar in Ex. B. 9. If Ex. B. 1 is ignored even as per the Ex. B. 9 report of the Tahsildar, as per the first underlined portion in Para-3 thereof extracted above, the application filed by the husband of the second defendant on her behalf should have been rejected. So, if Ex. B. 2 signature in Ex. B. 1 is forged, second defendant cannot, in any event, claim title to the suit land because there is nothing on record to show that Gulam Hussain was ever assigned or acquired the suit land or was in possession thereof at any time. If Ex. B. 1 is a genuine document question of granting any relief to the second defendant does not arise, because admittedly Gulam Hussain, during his lifetime, i.e., for nearly 20 years did not question the order accepting his relinquishment. There is no reliable evidence on record to show that Ghulam Hussain even claimed any right over the suit land after 1934.
22. All these apart since there is no power of review of an order passed by the Tahsildar accepting a surrender made by a landholder, question of reviewing an order passed by the Tahsildar in 1934, by either the Revenue Divisional Officer or somebody else, more than three decades later on an assumption that it was passed on a forged application, does not arise. So, the Commissioner of Land Revenue setting aside the reviewed order, in exercise of his suo motu power of revision, cannot be challenged by the plaintiffs.
23. During cross-examination P.W. 4 stated that he does not know who the Tahsildar in 1934 was and that he does not know if Gulam Hussain had submitted any letter to the Tahsildar in 1934 and that he does not know if Gulam Hussain surrendered the suit land in 1934 and admitted that he, during 1943 to 1966, did not maintain any records pertaining to the lands in the name of Gulam Hussain. So, it is clear that the evidence of P.W. 4 clearly establishes that Gulam Hussain was not in possession of the suit land after 1934. P.W. 4''s further statement that Gulam Hussain, during his lifetime, was living in his own house at 80 Bannur Village with his wife and was personally cultivating certain extent of land and was leasing out the remaining extent of land to his relatives in the village and that none of the Village Munsifs of 80 Bannur, Tatipadu, Atmakur or Nandikotkur cultivated those lands as tenants of Gulam Hussain is contrary to the statement made by the husband of the second defendant in Ex. B. 5 that Gulam Hussain put the Village Munsif Maddileti Reddy in management of the suit land.
24. Since second defendant as P.W. 2 stated that she gave Ac. 1.00 of land to the Village Karnam, it is clear that P.W. 4, as a quid pro quo, gave evidence in favour of the plaintiffs, though he has no personal knowledge of the events that took place in 1934 and his evidence that Gulam Hussain along with his wife (P.W. 3) was living at Bannur Village stands belied by the evidence of P.W. 3 widow of Gulam Hussain.
25. Since P.W. 3 admittedly is the wife of Gulam Hussain, who have no children, as per Muslim Law inheritance, she would inherit l/4th share in his estate and the remaining 3/4th share might devolve on the second defendant as his niece. So, second defendant, in any event, cannot be said to be the absolute owner of the property left behind by Gulam Hussain for her to alienate the same without reference to P.W. 3; when P.W. 3, admittedly, did not relinquish her share in the property of Gulam Hussain in favour of the second defendant. So, even assuming that Gulam Hussain was the owner of the suit land, second defendant alone cannot convey title to others.
26. P.Ws. 5 to 10 and 13 are the plaintiffs in the suits. They spoke about their purchase of the lands which are in their possession either from the second defendant or her husband as her power of attorney holder or from both second defendant and her husband. P.W. 11 is an attestor to Ex. A. 13 to Ex. A. 15 sale deeds under which 7th and 9th plaintiffs purchased parts of the suit land. P.W. 12 is said to be the purchaser of the item 1 of the plaint schedule in O.S. No. 81 of 1980 from the husband of the second defendant, who subsequently sold it to 5th plaintiff. The sale deed in favour of P.W. 12 is not produced. P.W. 14, Supervisor of Nandikotkur Cooperative Agricultural Development Bank, Nandikotkur is examined to show that P.W. 13 took loan from the Bank and discharged that loan. The evidence of P.Ws. 5 to 14 is not of help in deciding the title of either Gulam Hussain or the second defendant. The claim of plaintiffs that they are bona fide purchasers of the suit land without knowledge of the defect in title of their vendor cannot be accepted because in their cross-examination P.Ws. 5 to 10, 12 and 13 clearly stated that they did not obtain an encumbrance certificate and did not try to ascertain the title of their vendor. In fact, some plaintiffs claim to have purchased parts of suit land from the husband of second defendant who admittedly had no title thereto.
27. P.W. 15 is the brother-in-law of the second defendant i.e., her husband''s elder brother, who is said to have worked as Deputy Inspector of Survey. His evidence shows that second defendant and her husband retired from service in 1977 and that Gulam Hussain and his wife (P.W. 3) were living with the second defendant and her husband. He also spoke about the gift of suit land by Gulam Hussain to the second defendant. But his evidence in that regard need not be taken into consideration because he, even according to the plaintiffs and second defendant, was not present at the time of the alleged gift by Gulam Hussain in favour of the second defendant. He also spoke about the husband of second defendant going to the Village Karnam and making an application to the Tahsildar for correction of entries and the enquiry by the Tahsildar and his submitting a report and further stated that he is acquainted with the signature of Gulam Hussain and that Ex. B. 2 signature in Ex. B. 1 is not that of Gulam Hussain and that Ex. A. 2 is the signature of Gulam Hussain in Ex. A. 1. From the evidence of P.W. 15 it is easy to infer that he is the brain behind the plan to get the suit land mutated the name of the second defendant. He, being an employee in Survey Department, would have influence over the employees in the Tahsil Office. His evidence that Ex. B. 2 signature in Ex. B. 1 is not that of Gulam Hussain because it reads ''Gulam Hussain Saheb'' and that the word ''Saheb'' would be used to show respect to the person named and that no literate person will call himself ''Saheb'' and that Ex. A. 1 marriage certificate contains the signature of Gulam Hussain i.e., Ex. A. 2 and that the Ex. A. 2 signature shows that it was made by a literate person but Ex. B. 2 signature shows that it was written by a person knows very little Urdu and that the spelling in Ex. B. 2 is also not correct, cannot be believed or accepted for the reason that English translation of Ex. A. 1 shows that the name of the bridegroom who is the paternal uncle of second defendant is ''Ghulam Hussain Sahab'', but not mere ''Gulam Hussain''. So, it is clear that second defendant and her husband with the assistance of P.W. 15 must have brought into existence Ex. A. 2 and a gift deed to enable the Tahsildar to use it as a material for comparing it with Ex. B. 2 signature in Ex. B. 1 and giving a favourable report, because there is no material on record to show that Gulam Hussain was well read with a good handwriting of Urdu by 1934. That apart P.W. 15 who stated that Gulam Hussain was corresponding with him did not produce any letters written by Gulam Hussain to him. His evidence during cross-examination also shows that the encumbrance certificate obtained by him did not indicate the year in which the name of Gulam Hussain was deleted from the records. The evidence of P.W. 15 that the original gift deed executed by Gulam Hussain in favour of the second defendant was produced before the Tahsildar cannot be believed because as stated earlier there seems to be connivance between the husband of the second defendant and the Tahsildar who passed Ex. B. 9 order, possibly with the help and assistance of P.W. 15 and since the Government Pleader had, on the notice to produce the original gift deed, endorsed that the original is not available with Government. When Ex. B. 7 application shows that a photo copy of the gift deed is filed therewith and when the statements recorded by the same Tahsildar i.e., Exs.B. 13 to B. 16 do not disclose their producing original gift deed before the Tahsildar how and when the original gift deed was filed by the Tahsildar has to be established by the second defendant or the plaintiffs. They failed to do so.
28. The evidence of P.W. 15 also shows that second defendant and her husband in fact retired from Government service in 1977. So, their going to 80 Bannur or Nandikotkuru by raising a garden in the suit land to augment their revenue after retirement, is but a lame explanation for the long delay for setting aside an order passed in 1934 because no ordinary prudent employee would think of his plans after retirement even 10 years before his retirement.
29. Since there is nothing on record to establish that Gulam Hussain had any right, title or interest in the suit land except Ex. B. 1, and since the Tahsildar accepted the surrender made by Gulam Hussain way back in 1934, it is not necessary to go into the question whether the procedure for accepting the relinquishment was followed or not at this length of time because Gulam Hussain did not question the same during his lifetime. If really, Gulam Hussain was exercising any right of ownership over the suit land after 1934, there would be some documentary evidence to establish that fact and he would have known that the suit land was recorded as ''assessed waste'' in the revenue records in pursuance of the order passed by the Tahsildar on Ex. B. 1 application and might have taken steps to set aside the order accepting the same as he can be said to be the person aggrieved by the order accepting the relinquishment. But he, admittedly, did not move even his little finger for nearly 20 years from 1934 till his death in 1953. Second defendant who claimed a right under gift deed in 1953, also did not move till 264-1968, when she filed an application through her husband i.e. Ex. B. 5 alleging that the Village Munsif was looking after the suit land. To explain away the absence of receipts, showing payment of land revenue, second defendant stated that she paid the amount to the Village Munsif and that did not verify if tax was paid or not by the Village Munsif. What amount was paid to whom and when is not stated by P.W. 2. No ordinary prudent man would sleepover for more than 2 decades without trying to find out whether tax was paid or not, with the money allegedly paid. The evidence on record shows that second defendant left India and is living abroad. So, it is clear that she and her husband had, with the assistance of the brother of the second defendant i.e. P.W. 15, after colluding with the then Tahsildar, managed to obtain a favourable report and sold away the land and made money and disappeared from the country, giving a legacy of litigation to the plaintiffs.
30. Therefore, I hold that the evidence on record does not either establish the title of Gulam Hussain or the second defendant over the suit land for the second defendant to convey any title to any part thereof to any of the plaintiffs. So, none of the plaintiffs can be said to have acquired title to any part of the suit land by virtue of the sale deeds in their favour. The point is answered accordingly.
Point No. 2:
31. Power of the Commissioner to suo motu review the order of the subordinate revenue officer is not denied or disputed. Before exercising such power he gave due opportunity of hearing to the second defendant. She failed to appear before him. Plaintiffs are not able to establish any ground for setting aside his well reasoned order passed by the Commissioner of Land Revenue. There is nothing on record to show that either his reasoning is wrong or his approach to the issue was incorrect. So, I find no grounds to interfere with the order of the Commissioner of Land Revenue. The point is answered accordingly.
32. In view of my findings on the points for consideration, the judgment of the trial Court decreeing the suits is liable to be and hence is set aside and so both the appeals stand allowed and both these suits stand dismissed with costs throughout.
