Kandkuri Anthya and Others vs Korakola Gattadu and Another

This is plaintiffs'' appeal against a decree of the lower appellate Court, whereby a decree of the original Court allowing the plaintiffs'' claim for the declaration of their title to the patta right was reversed and the suit dismissed.

The allegations in the plaint are that the defendants'' ancestor sold the plot bearing survey No. 379 to plaintiffs'' ancestor some thirty-two years back and since then the plaintiffs'' ancestor and the plaintiffs have been in possession and been paying the revenue, that on 28th Bahman 1347 (31st December 1937) the defendant in consideration of a further sum of Rs. 50 executed Anr. document conveying his patta right of this land to the plaintiffs, but has now refused to give effect to the transfer. The defendant in his written statement denies execution of the sale deed. The original Court, treating the evidence of the scribe and the attesting witnesses as credible decreed the suit. The lower appellate Court attaching importance to the discrepancies in the depositions of the witnesses has readied the conclusion that the execution of the document was not proved and hence allowed the appeal.

Before us, for the first time, it was argued on behalf of the respondent that though the consideration of the alleged transaction is only rupees fifty, the right conveyed is an intangible one arid can only be effectively ''transferred by a registered document and since the document relied upon is unregistered, the suit cannot be decreed. The argument in reply is that pattadar of a land is presumed to be in possession of the land; therefore this right is not intangible and further the objection raised is a mixed question of law and fact and cannot be raised for the first time in this second appeal.

There are several authorities of this Court, both of the Single and Division Bench that in suits for declaration of being entitled to patta of land any enquiry relating to the possession of the land, or impleading the person in possession is unnecessary. In 19 Deccan L.R. 305 in 21 Deccan L.R. 163 and in 35 Deccan L.R. 538 three Single Judges have held it to be so. A ruling of the Division Bench reported in 34 Deccan L.R. 566 is also to same effect. There-fore, any enquiry as to the possession of land in a suit of this nature is not relevant. In this particular suit, in view of the contents of the document relied upon by the appellant, determination of any question relating to possession of land is still more unnecessary. The document after reciting the previous conveyance says that in consideration of rupees fifty the executants was selling his patta right on the date mentioned in the document. It does not purport to transfer possession of the land, for that, it says had been already done by the executant''s ancestor. An issue as to possession was framed by the original Court but it was deleted. The two questions involved in the case are : Has its execution been proved and whether Section 54, Hyderabad T.P. Act applies to the transaction. The objection taken relates to the latter question and the necessity of a registered deed will only arise if the patta right is held to be intangible. The determination of the nature of the patta right is one of pure law, it goes to the very root of the case and I think it can be raised for the first time in the appeal before us.

In the Full Bench case of the five Judges reported in 13 Deccan L.R. 466 the patta right has been analysed and held to comprise four rights and one liability. The first is the reversionary right to the estate of the shikmidar on his dying without any heir, the second is of pre-emption, the third is to have the money payments by the Bhikmidar increased, and the fourth is to recover from the shikmidar the full amount of the revenue in case he pays less. All these rights relate to immovable property and arise because the pattadar is responsible to pay its revenue to the State. Every one of them is intangible, for they are incapable of delivery by possession from one person to Anr. . On principle, therefore, it is correct to bold that patta right is intangible and its sale can be affected only by a registered deed u/s 54, Hyderabad T.P. Act. This is further supported by a ''ruling of this Court reported in 33 Deccan L.R. 400 where it was hold that there can be no transfer of patta right by oral agreement. If it cannot be transferred by oral agreement or by delivery of possession, then necessarily it must be by a registered deed. I, therefore, hold that Inasmuch as there is no registered deed of sale, the document relied upon by the appellants does not effect transfer of the right to the appellants, they have acquired nothing by it and consequently their suit for the declaration must fail. The appellants'' suit was rightly dismissed and this appeal is, therefore, dismissed with coats.