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Mohd. Ameer and ors. Vs. Rudra Shankaraiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1979CriLJ247
AppellantMohd. Ameer and ors.
RespondentRudra Shankaraiah and ors.
Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5.....orderpunnayya, j.1. this revision case is directed against the order passed by the sessions judge, kareemnagar in criminal revision petition no. 5/76 reversing the order passed by the judicial first class magistrate, sircilla in m. c. no. 4/73.2. there is a dispute regarding the possession in survey no. 695 of sircilla town measuring 10 guntas between rudra shankariah and five others, who are respondents herein and who will hereinafter be referred to as first party, and mohd. ameer and seven others who are the petitioners herein and who will also hereinafter be referred to as second party.3. on 18-6-1972, the second party along with several muslims went to s. no. 695 and errected barricade with stones as they claim it to be the muslim graveyard. the first party along with 4 to 5 hundred.....
Judgment:
ORDER

Punnayya, J.

1. This revision case is directed against the order passed by the Sessions Judge, Kareemnagar in Criminal Revision Petition No. 5/76 reversing the order passed by the Judicial First Class Magistrate, Sircilla in M. C. No. 4/73.

2. There is a dispute regarding the possession in Survey No. 695 of Sircilla town measuring 10 guntas between Rudra Shankariah and five others, who are respondents herein and who will hereinafter be referred to as first party, and Mohd. Ameer and seven others who are the petitioners herein and who will also hereinafter be referred to as second party.

3. On 18-6-1972, the second party along with several Muslims went to S. No. 695 and errected barricade with stones as they claim it to be the Muslim graveyard. The first party along with 4 to 5 hundred Hindus went to S. No. 695 to resist the second party. When both parties were about to clash with each other, the police rushed to the scene and averted the clash and breach of peace. As there is every likelihood of imminent breach of peace and tranquillity on account of the dispute regarding the possession in respect of the said land, the police filed a report before the Sub-Divisional Magistrate with a request that proceedings may be taken under Section 145 Cr.P.C. and that the land in S. No. 695 may be in the custody of the Court b attaching the said land. The Sub-Divisional Magistrate, Jagtial having been satisfied that there is a dispute as to possession of the land in S. No. 695 and that there is likelihood of breach of peace in Sircilla town on account of the dispute took it on file and attached the land and took it into the custody of the court and issued notices to both parties for filing their statements. Both parties filed their statements. After perusing the report of the Sub Inspector of Police and also the written statements filed by the First party as well as the second party respondents, the Sub-Divisional Magistrate, Jagtial has submitted the case records to the District and Sessions Judge, Kareemnagar for transmission to the concerned Munsif Magistrate, for disposal. The District & Sessions Judge, Kareemnagar, in his turn, transferred the case records to the Judicial First Class Magistrate, Sircilla on 2-2-1973 directing him to dispose of the matter according to law. The learned Magistrate issued notices to both parties and directed them to file additional written statements, if they wanted to file. Both parties filed additional written statements. He conducted the enquiry. In the enquiry, the first party did not examine any witnesses, but filed documents Exs. P-l to P-49 which include some affidavits. The second party examined one T. Yadayya (Revenue Inspector Sircilla) and filed documents Exs. D-1 to D-11. The learned Magistrate, after taking into consideration the affidavits, sale deeds and other documents filed on both sides came to the conclusion that the second party has clearly proved its possession at the time of passing of the preliminary order on 24-6-1972 and passed orders to that effect.

4. Being aggrieved with the order passed by the Judicial First Class Magistrate, Sircilla the first party preferred a revision petition mentioned above before the Sessions Judge, Kareemnagar. The learned Sessions Judge took a different view from that of the Magistrate and held that the first party has been in actual possession of the land in dispute and allowed the revision petition and set aside the order of the learned Magistrate and directed the delivery of possession of S. No. 695 in its entirety to the first party.

5. Aggrieved with the order of the learned Sessions Judge, the second party preferred this revision case. The learned Counsel for the petitioner-second party contends that the order of the learned Sessions Judge is contrary to law and evidence. According to him, the old Cr.P.C. applies to the case and as such, the learned Sessions Judge is not justified to set aside the order passed by the learned Magistrate and he ought to have made a reference to the High Court for setting aside the order passed by the Magistrate when he took a different view. He also contends that the learned Sessions Judge has committed another error of law in giving a finding as to title but not a finding as to possession, though he is bound under law to give a finding as to which party has been in actual possession by the date of the dispute. He also contends that the several documents filed by the second party establish clearly that the second party has been in actual possession of the land by the date of the dispute.

6. The learned Counsel for the first party, who ere the respondents herein, on the other hand, contends that the new Code applies to the proceedings in question end hence the learned Magistrate is empowered to dispose of the matter without making reference to the High Court and as such his order setting aside the order of the Magistrate is not contrary to law. He further contends that the learned Sessions Judge has taken into consideration the documents filed by both parties and rightly came to the conclusion that the first party has been in actual possession of the land in question and it is not correct for the counsel for the second party to say that the learned Sessions Judge has not given the finding as to the actual possession of the first party and has only given a finding as to the title of the lands in question.

7. Prom the contentions raised above I have to examine whether the learned Sessions Judge has committed an illegality in not making a reference to the High Court for setting aside the order of the Magistrate when he felt satisfied with the evidence brought on record that the order of the Magistrate is contrary to evidence. It is not in dispute that the learned Sessions Judge did not make reference to the High Court for setting aside the order passed by the Magistrate. But he himself set aside the order of the Magistrate.

8. Under Section 438 Cr.P.C. (old) the Sessions Judge, on examining under Section 435, the record of any proceedings may report to the High Court with recommendation that the order, the correctness or propriety of which was questioned in the revision petition before him, should be set aside for the reasons mentioned in his order. But Section 399 Cr.P.C. (new) under which the Sessions Judge exercises his powers of revision gives power to him to dispose of the matter and does not require him to make a recommendation to the High Court for setting aside the order, the correctness or propriety of which was questioned in the revision petition before him. The question is, whether Section 438 Cr.P.C. (old) or 399 Cr.P.C. (new) is applicable to the case.

9. Section 484 Cr.P.C. (new) deals with Repeal and Savings. It reads as follows :

484. Repeal and Savings: (1) The Code of Criminal Procedure 1898, (5 of 1898) is hereby repealed.

(2) Notwithstanding such repeal, (a) If, immediately before the date on which this Code comes into force there is any appeal, application, trial, inquiry or investigation pending then, such appeal, application, trial, inquiry, or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898 (5 of 1898) as In force immediately before such commencement (hereinafter referred to as the old Code) as if this Code had not come into forces

Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of In accordance with the provisions of this Code;

(b) to (d)...

(3) ...

10. The Full Bench of the Gujarat High Court in H. N. Bhavsar v. State of Gujarat 1976 Cri LJ 84 held that an appeal is a continuation of the proceedings and hence the old Code applies if an appeal is filed even after the new Code came into force against the Judgment passed by the trial Court. If the Magistrate took cognizance of the case under the old Cr.P.C. the learned Judge observed that the accused acquired no vested right till the Court takes cognizance of the prosecution against him. Out of proceedings included under Section 484 (2)(a) of the Criminal Procedure Code. (1974) there are proceedings in which certain vested rights are created and such proceedings are required to be disposed of finally in accordance with the provisions of the old Criminal Procedure Code. Thus, where the court has already taken cognizance of a prosecution while the old Code was in force and an order of conviction is recorded after coming into force of the new Code, further proceedings in respect of appeal against the said order of conviction would be governed by the provisions of the old Code because the right of appeal is a substantive right which accrues to the parties to the prosecution at the time when the court takes its cognizance.

11. In that case, the City Magistrate took cognizance of prosecution under Section 66 (b) of the Bombay Prohibition Act on 25-8-1973 when the old Code was in, force and the order of conviction came to be recorded by the Metropolitan Magistrate (under the new Code) on 8-4-1974 that is after coming into force of the new Code, since the accused had acquired on 25-8-1973 the right of appeal under the old Code to the High Court, the appeal against conviction can be filed only in the High Court and the High Court alone has jurisdiction to entertain and dispose of the appeal. The right of appeal of the accused or the forum thereof cannot be governed by the provisions of the Sub-section (2)(a) of Section 484 of the new Code.

12. The learned Judge has further observed that the right of appeal is a substantive right which crytallises at the date of the institution of action and this right includes a right to go in appeal to the Superior Court. The forum to file the appeal is also thus determined as soon as the action is instituted. Till the case is instituted no litigant has any right to the forum in which the case can be instituted. In a criminal case this right of appeal and the right to file the appeal in the forum prescribed by law would precipitate at the date when the Court takes cognizance of an offence against the accused. It is perfectly competent for the legislature to affect this vested right retrospectively. The legislature may do so by making express provisions to that effect or by the disclosure of such an intention by necessary intendment. It is also competent to the legislature to save pending proceedings from operation of the new Act.

13. It is therefore obvious that in enacting Sub-section (2)(a) the Parliament intended that the pending proceedings be disposed of or continued or held or made according to the procedure under the old Code.

14. The learned Judge further held that if a proceeding is instituted subsequent to the commencement of the Code In respect of the act or omission committed prior to the coming into force of the new Code, it would only be governed by the provisions of the new Code. In the four categories of the case mentioned In Sub-section (2)(a) of Section 484, the first two categories of cases would be governed by Sub-section (2)(a) of the new Code and have to be disposed of finally in accordance with the provisions of the old Code as if the new Code has not come into force.

15. The other two categories of the case would not be governed by the provisions of Sub-section (2)(a) and shall have to be dealt with and disposed of in accordance with the provisions of the new Code. It is, therefore, clear that the Full Bench had to deal with an appeal, but not a revision. According to the Full Bench, an appeal is a continuation of the proceeding and if it is directed against conviction and sentence passed by the Magistrate in a case which he took cognizance of under old Cr.P.C. the Sessions Judge should dispose of it under old Code even though the conviction and sentence are awarded by the Magistrate after the Code came into force. The Full Bench did not consider the question whether revision is a continuation of the proceedings.

16. The learned Sessions Judge in the case on hand did not dispose of any appeal. He only dealt with a revision petition filed before him questioning the correctness or propriety of the order passed by the Magistrate. Sub-section (2} (a) of Section 484 Cr.P.C. deals with appeal, application, trial, enquiry or investigation which were pending. The word 'Application' mentioned after the word 'appeal' should be construed as a revision petition. That position is clarified by the Supreme Court in P. Philip v. Director, Enforcement New Delhi : 1976CriLJ920 , wherein their Lordships held that the word 'application' in Sub-section (2)(a) of the Code of 1973 is a word of limited import. According to the counsel, only those applications which could be finally disposed of by the Sessions Judge would be covered by this word. Since the revision application is one for reference to the High Court under Section 438 of the Code of 1898, and could not be finally disposed of by the Sessions Judge, at his level, it would not be an 'application' within the contemplation of Section 484 (2)(a) of the Code of 1973. Rejecting this contention, their Lordships held that they are unable to accept the interpretation of Section 484 (2)(a) of the new Code suggested by the learned Counsel for the respondents. The language of this provision is clear. The word 'application' in the saving provision contained in Clause (a) of Sub-section (2) of Section 484 immediately follows the term 'appeal'. It therefore has taken some colour from the collection of words in which it occurs. It is synonymous with the term 'petition' which means a written statement of material facts, requesting the court to grant the relief or remedy based on those facts. It is a peculiar mode of seeking redress recognised by law. Thus considered, there can be no doubt the word 'application' as used in Clause (a) of Section 484 of the Code of 1973 will take in a revision application made under Section 435 of the old Code. Such a revision application does not cease to be an 'application' within the purview of the aforesaid Clause (a) merely because in the event of the application being allowed, the Sessions Judge was required to make a reference to the High Court under Section 438.

17. Now, I have to examine whether e revision petition which was filed before 'the Sessions Judge against the order passed by the Magistrate can be disposed of under the new Code or by the old Code when the learned Magistrate passed the order before the new Code came into force.

18. As stated above, an appeal is a continuation of a proceeding taken cognizance of by the Magistrate. If the revision is also held to be a continuation of a proceeding taken cognizance of by the Magistrate before the new Code came into force, then it can be said that the revision petition can be disposed of by the Sessions Judge under the old Code as in the case of an appeal. But the authorities say that the revision is not a continuation Of proceeding which was taken cognizance of by the Magistrate and it is only an independent proceeding and it cannot be treated on par with appeal and hence what holds good for an appeal cannot hold good to e revision. This position is made clear by the Supreme Court in P.R. Mitra v. State of West Bengal : 1959CriLJ256 . wherein their Lordships held that in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as it may deem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court (are) to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. The High Court is not bound to entertain an application in revision or having entertained one, to order substitution in every case.

19. It is not bound the other way, namely to treat a pending application in revision as having abated by reason of the fact that there was a composite sentence of imprisonment and fine. The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under Section 250 of the Code to pay compensation to am accused person upon his discharge or acquittal whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be heard, and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in Court by a legal practitioner. In hearing and determining cases under Section 439, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence the consideration applying to abatement of an appeal, may not apply to the case of revisional applications. Where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu, then notwithstanding the death of the convicted person pending the revision it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order or conviction it self from that point of view. Following this decision, the Bombay High Court held in Yadaorao Nathuji v. State of Maharashtra ((1976) Cri LJ 751), that neither under the old Code nor under the new Code a right is conferred on any party to invoke the revisional jurisdiction of the High Court. Therefore, no vested right of the party is affected by the changes effected by the new Code which gives powers to Sessions Judge to call for and examine the record of any proceeding before any inferior criminal Court situate within their local jurisdiction as provided in Sections 397 to 399 of the new Code. Therefore, Section 484 does not save such a right of litigant to say that he has a right to file revision application against an order which has been passed after coming into force of the new Code by following the provisions of the old Code.

20. Speaking for the Bench, Shimpi, J., observed that in his opinion, as the decision was given after coming into force of the new Cr.P.C. the non-applicants filed a revision application in the Sessions Court as provided under Section 399 of the new Code, They were perfectly justified in doing it and the learned Additional Sessions Judge was also perfectly justified in entertaining it after it was made over to him for disposal by the learned Sessions Judge.

21. Thus there is distinction between an appeal and revision and the distinction should be kept in view while applying the provisions of Section 484 (2)(a). The legal position may be stated thus: Where a Magistrate takes cognizance of a prosecution while the old Code was in force and an order or conviction is recorded after the new Code came into force, further proceedings in respect of appeal against the said order of conviction would be governed by the provisions of the old Code, because the right of appeal is a substantive right which- crystallises at the date of the institution of action. In a criminal case the right to file the appeal in the forum prescribed by law accrues to the prosecution at the time when the Court takes cognizance of an offence against the accused.

22. But this principle is not applicable to a revision petition as no vested right is created by the statute and it cannot, therefore, be treated as a continuation of the proceeding taken cognizance of by the Magistrate. The Sessions Court or the High Court while exercising the re-visional powers either under Section 397 or under Section 399, as the case may be, entertains an application in revision if it thinks fit and proper and then calls for records for the purpose of examining the whole question of the correctness, propriety or legality of the order passed by the lower Court. It can call for record even suo motu in exercising its revisional power. A revision case should, therefore, be treated as an independent proceeding. As no vested right is created by the statute, the revision petition is not a continuation of the proceeding taken cognizance of by the Magistrate as in the case of appeal. If the revision case is filed either before the Sessions Judge or the High Court after the new Code came into force against an order passed by a Magistrate even in a case taken cognizance of by him before the new Code came into force, the revision is governed by the new Code, but not by the old Code.

23. The word 'application' mentioned in Section 484 (2)(a) should be treated as a revision petition and it should, therefore, be disposed of as per the provisions of the new Code if it is filed after the new Code came into force. The distinction between the appeal and the revision should be borne in mind while applying the provisions of Section 4-84 (2)(a).

24. Invoking the power given to him under Section 399 of the new Code, the learned Sessions Judge has disposed of the revision by passing the impugned order. As Section 399 does not require the Sessions Judge to make a reference to the High Court when he is satisfied that the order is not correct, he has the power to pass final order while disposing of the revision petition. The learned Sessions Judge is, therefore, justified in disposing of the revision petition finally. Hence the contention of the learned Counsel for the petitioner that the learned Sessions Judge committed illegality in not making reference to the High Court with his recommendation for setting aside the order, is unsustainable and undoubtedly devoid of merits.

25. It is now to be examined whether the finding given by the learned Sessions Judge regarding possession is perverse or contrary to law.

26. To give a finding on this aspect, it Is necessary to examine whether the learned Sessions Judge considered all the documents as well as the affidavits filed by both parties and whether his finding is based on legal evidence and whether his decision differing from the trial Magistrate is justified in law.

27. It is not in dispute that the land in question relates to S. No. 695. It is also not in dispute that the original S. No. relating to the land in question is S. No. 488 measuring 23 guntas. In the resettlement in 1343 Fasli S. No. 488 was bifurcated into two survey numbers i. e., S. No. 569 measuring 13 guntas and S. No. 695 measuring 10 guntas. Vadla Venkatanarusu the original pattadar of S. No. 488 sold under Ex. P-1 10 guntas in S. No. 695 to S. Anantha Rao for a consideration of Rs. 200/-. S. Anantha Rao in his turn sold the same to Karnabathula Anantha Rao under an agreement of sale and delivered possession to him in pursuance of the sale transaction. The case of the I party is that K. Anantha Rao sold the said land to Karampudi Venkati under Ex. P-4 in i960. Karampudi Venkati sold to Kodam Venkatesam under Ex. P-5. Under Ex. P-6 Kundapu Sayanna sold 474 Sq. Yards to Rudra Rama-swamy. Under another sale deed Ex. P-7, Sayanna sold 500 Sq. yards to Rudra Ramaswamy in December 1960. Rudra Ramaswamy applied in 1963 to Gram Panchayat under applications Exs. P-11, P-12 and P-13 for permission to construct a building. On these applications, the Executive Officer called for objections by proclamation under Ex. P-14. The father of the 4th respondent of the 2nd party raised objections under Exs. P-15 and P-l6 claiming that the land in S. No. 695 is a graveyard of the Muslims. The Executive Officer issued notices to Rudra Ramaswamy and Khaja Mohiddin under Exs. P-17, P-18 and P-19. The Executive Officer recorded the statement under Ex. P-20 from K. Anantha Rao and passed an order under Ex. P-22 on 4-4-1964 rejecting the claim of Khaja Mohiddin and permission was granted under Ex. P-23 on 7-4-1964 to Rudra Ramaswamy. Later the said Rudra Ramaswamy sold a portion of the land under Ex. P-9 to Choppadandi Bramhayya who is the 3rd respondent of the 1st party and subsequently sold some land to respondents 2 to 4 of the 1st party by registered sale deeds Exs P-30 and P-25 and delivered possession to them.

The case of the 1st party is that Rudra Ramaswamy stored stones on the spot for the purpose of construction of a building, but owing to some difficulties, he could not construct the building. Even the 2nd respondent of the 1st party also stored stones for the constriction of the building. The 1st party relied upon the above-mentioned documents as well as the pahanies Exs. P-32 to P-48 which relate to the period from 1938 to 1972. On the basis of this documentary evidence, the 1st party contends that they have been in possession of the land in S. No. 695.

28. As against this evidence, the IInd party contends that S. No. 695 measuring 10 guntas situated adjacent to Sirdlla Kamareddy road is a Muslim graveyard and it is in possession of the Muslim community since over 100 years, that Vadla Venkatanarusu was never a pattadar nor was in possession of the same much less from 1934 as contended by the 1st party, that it was left fallow right from 1344 Fasli, that the Pahanies for the Faslies 1355; 1356 (Ex. D-l) 1357 (Ex. D-2), and 1358 (Ex. D-3) and 1952 (Ex. D-4) prove that the land in S. No. 695 is fallow and is a Muslim graveyard. In view of these documents showing that the land in S. No. 695 is fallow, the IInd party contends that the entries in the Kasra Pehani for the year 1954-55 and for the subsequent period showing the name of K. Anantha Rao as Khabjedar are patently erroneous. The IInd party further contends that S. Nos. 694, 696 and 658 are graveyards as per the revenue records and they surround Section No 695 which is the land in question and hence it cannot be expected to be a cultivable land or the land used for construction of the building. The IInd party also contends that the 1st respondent being the Sarpanch, he misused his authority in granting permission to respondents 2, 4 and 5 of the 1st party for construction of the building.

29. The dispute is in respect of the possession of the land in S. No. 695. It is not in dispute that S. No. 695 is surrounded by S. Nos. 694 and 696. In these two S. Nos. i. e., 694 and 696 there are graveyards.

30. The learned Magistrate took the view that because S. No, 695 is surrounded by the graveyards in S. Nos. 694 and 696, S. No. 695 should also be created as graveyard. This conclusion is apparently erroneous, The local inspection of the Magistrate clearly shows that no graveyard is in existence in S. No. 695. From the documentary evidence brought on record it is clear that S. Nos. 695 and 569 are culled out from S. No. 488. In other words, the original S. No. 488 was bifurcated into S. Nos. 695 end 569. S. No. 695 is an extent of 10 guntas, while S. No. 569 is 13 guntas. The origi- nal pattedar of S. No. 488 as shown in Ex. P-l or Ex. P-32 was Vadla Venkatanarusu. Ex. P-32 clearly mentions that S. Nos. 695 and 569 were carved out from the original S. No. 488. In Ex. D-2 on which the II party respondents relied also shows that Venkatanarusu was the original pattedar. Ex. D-2 thus lends support to the 1st party's contention. Exs. P-34 to P-48 clearly mention that the original pattedar was Vadla Venkatanarusu and it is in the possession of K. Anantha Rao from whom the several sale transactions as mentioned in the sale deeds Exs. P-3 to P-9 were effected. The Magistrate, therefore, is not justified to say that Exs. P-34 to P-48 or Exs. P-3 to P-9 do not lend support to the 1st party's contention and is also not justified to say that they are inconsistent with the entries in Exs. D-l to D-4.

As stated above, Ex. D-2, on the other hand lends full support to the 1st- party's case. Even Exs. D-3 and D-4 cannot be said to be inconsistent with the entries in Exs. P-34 to P-48. They of course, did not mention the name of the pattedar and also contain the entries that S. No. 695 is fallow during the relevant period. But Ex. D-2 clearly shows the name of the pattedar as Vadla Venkatanarasu, Exs. D-l, D-3 and D-4 also mention that S. No. 694 is a graveyard. But they did not mention that S. No. 695 is graveyard. On the other hand, they mention that it is fallow. If it is left fallow, it cannot be concluded that it is also graveyard. None of the pahanis filed by the II party respondents mentioned that S. No. 695 is graveyard. They, of course, mention that it is fallow. As there were frequent sale transactions and transfers as could be seen from the several sale deeds Exs. P-3 to P-9 and P-30 end P-25, it was left fallow. It is true that the pahanis Exs. P-34 to P-48 show that S. No. 695 was described as well. The learned Magistrate observed that if it were wet why it was not brought into cultivation for all these years and why the land revenue was not paid. It is true that it was not brought under cultivation. But on that account it cannot be said that it is a graveyard. In fact Rudra Ramaswamy applied to the Executive Officer, Gram Panchayat for the grant of permission to construct a building in S. No. 695. There were objections raised by the Muslims, But those objections were rejected by the Executive Officer and the Executive Officer granted permission. It is, therefore, clear that attempts were made by Rudra Ramaswamy and also the 2nd respondent of the 1st party to store stones in the land S. No. 695 for the construction of buildings. But they could not do so because of the objections and also the frequent transfers on sales. Thus it is clear that the 1st party respondents, never intended to bring the land for reclamation, but some of them wanted to construct buildings in the said land. It is for this reason that the land was left fallow.

31. The local inspection notes of the Magistrate clearly show that S. No. 695 was located with the help of the village map and the sketch prepared by the Magistrate on the local inspection shows that the portion marked as A B C D is S. No. 695 and the portion marked as A D E F is S. No. 694 and the local inspection shows that S. No. 694 is grave yard In existence and he did not find any traces showing the existence of any graveyard in S. No. 695. The affidavit filed by the police patel Narasimha Reddy clearly shows that S. No. 694 is graveyard and S. No. 695 is not a graveyard and the land record Assistant demarcated the land in S. Nos. 694 and 605 on 17-7-1972 and fixed the stones. Though the several affidavits filed by the II party respondents show that S. No. 695 is also a graveyard along with S. Nos. 694 and 696, they cannot be given any weight as the learned Magistrate during his local inspection did not find any traces of the existence of graveyard in S. No. 695 and also the pahanis Exs. D-l to D-4 or Exs. P-34 to P-48 did not mention about the existence of graveyard in S. No. 695. On the other hand, they clearly show that S. No. 695 is left fallow and the original pattedar is Vadla Venkatanarusu, The several documents filed by the I party clearly establish that S. No. 695 is not graveyard and it has been in possession of the 1st party respondents ever since 1936 to 1972 i. e., the date of dispute. The learned Sessions Judge is, therefore, justified in differing from the finding given by the Magistrate as the finding given by the Magistrate is merely based on surmises and conjectures and the reasons given by him for not placing reliance upon Exs. P-3 to P-9 of the pahanies Exs. P-34 to P-48 and also on the applications filed by Rudra Ramaswamy to the Executive Officer for the grant of permission and on the objections raised by the Muslims and on the order passed by the Executive Officer are perverse and the learned Sessions Judge, is, therefore, justified in passing the impugned order. The contention of the learned Counsel for the petitioners that the learned Sessions Judge has not given a finding as to the actual possession of the 1st party cannot be accepted. The learned Sessions Judge took into consideration the sale deeds as well as the pahanies and other documents and came to the conclusion rightly that S. No. 695 is not graveyard and the 1st party alone has been in possession of the same by the date of the dispute. Thus the impugned order cannot be said to be contrary to the evidence or law. Hence I find no merits in the revision case. It is, therefore, dismissed.


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