SA/884/2010 of P.Narsimha Reddy Vs Modem Lingamaiah on 31 December 2010

JUDGMENT:

Appellant herein is the 1[st] defendant in the suit in O.S. No. 148of 1990 filed by the 1[st] respondent herein (since died) on the file of thePrincipal District Munsif, Hyderabad East and North, Ranga ReddyDistrict, seeking to declare the plaintiff as owner of the suit scheduleproperty, to evict defendants 1 and 2 from the suit schedule property, todirect the Mandal Revenue Officer, Hayathnagar, not to register thedocuments submitted by defendants 1 and 2 and to award mesneprofits at the rate of Rs.5,000/- per annum till possession of the suitschedule property is delivered. The trial Court dismissed the said suit,by judgment and decree dated 11.08.1997. Assailing the same, theplaintiff preferred an appeal in A.S. No.111 of 1997 before the IIIAdditional District Judge, Ranga Reddy District, and the learnedappellate Judge has allowed the said appeal, by setting aside thejudgment and decree of the trial Court, and decreed the suit with theterms indicated in the judgment and decree dated 27.04.2004. Aggrieved by the same, the present second appeal is filed.

At the outset, it is to be noted that during the pendency of theappeal, the plaintiff, who is the 1[st] respondent herein, died and hislegal representatives were brought on record as respondents 4 and 5,by order of this Court dated 19.07.2010 passed in S.A.M.P. No. 2382of 2008.

The parties hereinafter will be referred to as arrayed in the suit,for the sake of convenience.

The case of the plaintiff, 1[st] respondent herein, before the trial Court, in brief, is as follows:

The plaintiff is the absolute owner and possessor of the suitschedule property in Sy.No.105 admeasuring Ac. 7.30 gts. ofMunganur Village. The plaintiff’s father acquired the suit property inthe name of the plaintiff. Later the plaintiff shifted to Hayathnagarwhen he was aged about 15 years and from there he had been toHyderabad and under the care and custody of one Medala Babaiah. The suit schedule property was orally leased out to the father ofdefendants 1 and 2 for an annual rent of Rs.100/- and 25 pots ofJawar. After the death of their father and at the request of defendants 1and 2, the suit schedule property was leased out to them on the sameterms and as such they were put in permissive possession of theproperty. While so, in the month of March 1989, the plaintiffdemanded defendants 1 and 2 to vacate the suit land and defendants1 and 2 also agreed to vacate the same in the monthly of July 1989. But, they did not vacate the suit land as agreed and instead, they haveapplied to defendant No.3- Mandal Revenue Officer, HayathnagarMandal, for mutation of their names in the revenue records aspattadars of the suit property. When a notice was issued by defendantNo.3 in the month of October 1989, the plaintiff enquired and came toknow that defendants 1 and 2, with the help of fabricated and bogusdocuments, are claiming title to the suit property, by virtue of anunregistered document said to have been executed by one Y. SathiReddy and two others, who are no way concerned with the suitproperty, and they filed an application before defendant No.3 to get aregistered sale deed in their favour, on the basis of that unregistereddocument. The said documents relied on by defendants 1 and 2 arenot binding on the plaintiff, since the said Y. Sathi Reddy and othershave no right in the suit land. Further, the tenancy being terminated inthe month of March, 1989, continuation of defendants 1 and 2 in thesuit land would amount to trespass and as such the plaintiff is entitledto mesne profits at the rate of Rs.5,000/- per annum.

Resisting the claim of the plaintiff, defendants 1 and 2 filedwritten statement and they denied that the father of the plaintiff was inpossession of the suit land and after his death the plaintiff became theabsolute owner of the same. Their stand, in brief, is as follows:

The father of defendants 1 and 2 obtained the lands in S.No.97, 98, 99 and 105 from Medala Babaiah, on lease, in the year 1953-54, and the lease continued till 1956. Thereafter, the plaintiff sold the land through Medala Babaiah to one E. Sathi Reddy, China YadiReddy, Chinna Advi Reddy, Pedda Advi Reddy, under anunregistered sale deed dated 02.12.1956, without informing the fatherof defendants 1 and 2. Thereafter, disputes arose between thosepurchasers and the father of defendants 1 and 2 and at the interventionof elders, it was agreed that the father of defendants 1 and 2 shallcontinue in S.No. 105 and the purchasers have to take the lands inS.Nos. 97, 98 and 99. The said purchasers executed agreement infavour of father of defendants 1 and 2, agreeing to execute registeredsale deed in respect of the suit land. Since then, the father ofdefendants continued in possession of the suit land. Defendants 1and 2 deny that their father was the tenant of the suit land after him,they have been continuing in possession of the same as tenants. Theplaintiff estopped his rights to suit land after execution of unregisteredsale deed dated 02.12.1956 in favour of E. Sathi Reddy and others. The plaintiff never approached them to vacate the suit land. They,being the purchasers, are in continuous possession of the suit land formore than 35 years and applied to defendant No.3 for regularization ofthe sale deed under A.P. Rights in Land and Pattadar Passbooks Act,1971 (for short ‘the Act’). The proceedings before defendant No.3 arestill pending and they cannot be challenged in this suit and that no suitshall lie against the Government under Section 8 of the Act. The suit isbad for non-joinder of necessary parties i.e. the vendor of defendants 1and 2 and it is also barred by limitation, as defendants 1 and 2 arecontinuing in possession of the suit land since 1957, adverse to theinterests of the plaintiff, and that they have established their right ofownership by paying land revenue for the suit land. The plaintiff is notentitled for mesne profits. There is no cause of action for the suit andthe plaintiff undervalued the suit. Thus, defendants 1 and 2 prayed fordismissal of the suit with costs.

On the basis of the above pleadings of the respective parties, thetrial Court framed the following issues for trial:

1. Whether the Court has no jurisdiction to try the case?2.Whether the suit is barred by limitation?3.Whether the suit is bad for non-joinder of necessaryparties to the suit?2.Whether the suit is barred by limitation?3.Whether the suit is bad for non-joinder of necessaryparties to the suit?

4. Whether the plaintiff is entitled for declaration asprayed for?prayed for?

5. Whether the plaintiff is entitled to evict D-1 and D-2from suit property?from suit property?

6. Whether the plaintiff is entitled for direction against D- 3?

7. Whether the plaintiff is entitled for mesne profits?8.To what relief?

Before the trial Court, on behalf of the plaintiff, P.Ws.1 to 4 wereexamined and Exs.A1 to A24 were marked. On behalf of thedefendants, D.Ws.1 to 4 were examined and Exs.B1 to B46 weremarked and Exs.X1 to X3 were also marked.

So far as issue No.1 is concerned, the trial Court held thatduring pendency of the suit, the proceedings before M.R.O. weredismissed and the appeal filed before the District Collector was alsodismissed and in view of the same the plaintiff did not press the reliefof direction to defendant No.3 not to proceed with registration ofdocuments submitted by defendants 1 and 2. Even otherwise, it washeld, the suit against defendant No.3 is not maintainable, in view ofspecific provisions of Section 8 of the Act and accordingly answeredissue No.1 against the plaintiff. So far as issue No.2 is concerned, thetrial Court held that there is no evidence to show that the defendantsare tenants of the suit land and the plaintiff failed to prove hispossession of the suit land at any time within 12 years prior to the suit,that Ex.B29 pattadar passbook, which was issued in the year 1972,categorically reveals that defendants 1 and 2 are the purchasers of suitland, but not tenants, and the plaintiff has to file the suit within 12 yearsfrom 1972, in which year Ex.B29 pattadar passbook was issued,whereas he filed the suit in 1990, and thus the suit is barred bylimitation, in view of Article 65 of the Limitation Act. So far as issueNo.3 is concerned, the trial Court held that when defendants 1 and 2are tracing their title through Elimeti Sathi Reddy and others, who arein turn claiming title through plaintiff, the said Elimeti Sathi Reddy andothers are proper and necessary parties to the suit and the suit is badfor non-joinder of necessary parties, and accordingly answered theissue against the plaintiff. The trial Court, further, having appreciated the oral and documentary evidence on record, held that the plaintiff isnot entitled to any of the reliefs prayed for and accordingly answeredthe issues 4 to 7 against the plaintiff and, hence, dismissed the suitwith costs.

Assailing the dismissal of suit with costs, the plaintiff preferredappeal before the lower appellate Court i.e. III Additional DistrictJudge, Ranga Reddy District, in A.S. No.111 of 1997, and thefollowing points were framed for consideration by the lower appellateCourt:

1) Whether the appellant is entitled for declaration of titleto the suit schedule land?to the suit schedule land?2)Whether the appellant is entitled for recovery ofpossession?possession?

3) Whether the judgment and decree passed by trialCourt suffers from any illegalities or infirmities andliable to be set aside?Court suffers from any illegalities or infirmities andliable to be set aside?

4) To what relief?

Having framed the above points for consideration and havingappreciated the oral and documentary evidence on record and takinginto consideration the settled legal principles, the lower appellateCourt has allowed the appeal and set aside the judgment of the trialCourt with costs throughout. Aggrieved by the same, the presentsecond appeal is preferred.

The substantial questions of law that arise for considerationbefore this Court are as follows:

1. Whether the suit is barred by limitation in view ofArticle 65 of the Limitation Act?Article 65 of the Limitation Act?

2. Whether the suit is maintainable for non-joinder ofproper and necessary parties?proper and necessary parties?

It is well settled that the High Court, in a Second Appeal, can

interfere with the findings of the lower Court, if the findings are basedon misinterpretation of documentary evidence or on consideration ofinadmissible evidence or ignoring material evidence, or the appellateCourt wrongly casts the burden of proof. A finding of fact ignoringsuch admissions or concessions is vitiated in law and can beinterfered with by the High Court in Second Appeal. This Court,exercising power under Section 100 of the Code of Civil Procedure,cannot go into the question of finding of fact, but at the same time it issettled principal of law that in a case where the finding of fact had beenarrived at upon taking into consideration inadmissible evidence andbased on presumptions which could not have been raised, the HighCourt’s jurisdiction to interfere with a finding of fact may not be limitedand it can interfere with the judgments of the Courts below by treatingsuch anomaly as a substantial question of law, as held by theSupreme Court in U. R. Virupakshappa v. Sarvamangala[[1]]. Buthowever, the High Court, under Section 100 of C.P.C., cannot act as alower appellate Court and re-appreciate the findings of fact recordedby the lower Court. As the case on hand is the one where the lowerappellate Court reversed the judgment of the trial Court, it is to beconsidered whether the findings arrived by the lower appellate Courtare perverse and they are not based on material evidence on recordand whether any substantial question of law arises for consideration inthe second appeal.

In the present case, the plaintiff relied on the documentaryevidence of Exs.A1 to A24 and oral evidence of P.Ws. 1 to 4 to provehis case. Exs.A1 and A2 are the orders passed by the Revenueauthorities on the application filed by the defendants for issuance ofpattadar books. The revenue authorities have held that plaintiff is theowner of the property and the defendants are not entitled for mutationand have got nothing to do with the suit schedule property. Exs. A3 toA14 are the pahanies and cist receipts. All these documents clearly

show that the plaintiff is the owner of the property. Exs. A15 to A24 arethe contradictions from the previous statements of D.W.3 before theM.R.O. marked during cross-examination of D.W.3 in the suit. D.W.3namely Ch. Sami Reddy, according to the defendants, is theperson who purchased the properties from the father of the plaintiffalong with other persons. The evidence of D.W.3 was referred to atparagraph 24 of the lower appellate Court’s judgment, which wouldshow that he deposed that Raavi baavi chelka was given to the fatherof the defendants, whereas it is the evidence of D.W.2 and D.W.4 thatsuit schedule property is known as madibanda chelka and the same isgiven to the defendants’ father and Raavi baavi chelka is given to theother purchasers. D.W.3 did not speak about Ex.X1 and Ex.B1 in hisevidence. D.W.3, before the M.R.O., has stated that the land inSy.No.105 of an extent of Ac.7.30 gts. was in his name, since about40 years as pattedar and he sold the said lands to the father of thedefendant for Rs.2,000/- and Mallaiah is cultivating the same. Thisevidence of D.W.3 is contrary to the very case of the defendants andruns contradictory to their plea in the written statement. The plaintiffgot examined P.Ws.1 to 4, who support the case of the plaintiff that heis the owner of the property and the property was let out to defendants1 and 2.

Now, the evidence on behalf of the defendants has to be lookedinto. But, before the same, it is necessary to look into Article 65 of theLimitation Act and its applicability to the facts of the present case.

Article 65 of the Limitation Act, reads as under:

For possession of immovable property of any interesttherein based on title, the limitation to file the suit is 12years and the time begins to run when the possession ofthe defendant therein become adverse to the plaintiff.

By the recitals of the above provision of law itself, it is quietevident that the burden lies on the defendant to prove that his possession was adverse to the interest of the plaintiff.

The starting point of limitation as per Article 65 of the LimitationAct does not commence from the date when the right of ownershiparises to the plaintiff, but commences from the date when defendant’spossession becomes adverse. Animus possidendi is one of theingredients of adverse possession. Unless the person possessing theland has a requisite animus, the period for prescription does notcommence. It is also well-recognized proposition of law that merepossession how long does not necessarily mean that it is adverse tothe true owner and the possession can never be considered adverse ifit is referable to a lawful title.

In this context, it is appropriate to refer to the judgment of theHon’ble Apex Court in Karnataka Board of Wakf v. Govt. of Indiaand others[[2]], wherein it was held that in the eye of law, an ownerwould be deemed to be in possession of a property so long as there isno intrusion. Non-use of the property by the owner even for a long timewon’t affect his title. But the position will be altered when anotherperson takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly assertinghostile title in denial of the title of the true owner. It is well settledprinciple that a party claiming adverse possession must prove that hispossession is “nec vi, nec clam, nec precario” that is, peaceful, openand continuous. The possession must be adequate in continuity, inpublicity and in extent to show that their possession is adverse to thetrue owner. It must start with a wrongful dispossession of the rightfulowner and be actual, visible, exclusive, hostile and continued over thestatutory period. Thereafter, a person who claims adverse possessionshould show a) on what date he came into possession b) what was thenature of his possession c) whether the factum of possession wasknown to the other party d) how long his possession has continued, and e) his possession was open and undisturbed. A person pleadingadverse possession has no equities in his favour. Since he is trying todefeat the rights of true owner, it is for him to clearly plead andestablish all facts necessary to establish his adverse possession.

In the present case, it is the case of the defendants that byvirtue of Ex.X1 and Ex.B1, they are in possession and enjoyment ofthe suit schedule property and as such they have perfected their titleby adverse possession. In view of Article 65 of the Limitation Act andbasing on the judgments of this Court and the Hon’ble Apex Court, theburden lies on the defendant to show his possession over theproperty. The defendants have examined D.Ws.1 to 4 and theevidence of D.Ws.3 and 4 is contrary to the case and evidence of thedefendants. Exs.A15 to A24 clearly show that D.W.3 has noknowledge about Ex.X1 and B1. As recorded by the lower appellateCourt at paragraph 26 of its judgment, D.W.4 in his cross-examinationstated that the plaintiff was about 40 or 50 years by the date of Ex.X1. This part of the evidence of D.W.4 would suggest that Ex.X1 wasbrought into existence in or about the year 1990. The age of theplaintiff was mentioned as 45 years by the date of filing of the suit on17.04.1990. Ex.X1, which was alleged to have been executed in1956, is in Telugu and Ex.B1, which was executed in 1957, is writtenin Urdu. Nowhere in Ex.X1 and Ex.B1, the schedule of the property ismentioned. Even the cist receipts, pahanies and other documentsrelied on by the defendants in fact strengthen the case of the plaintiffby showing that the plaintiff is the owner of property and defendantsare cultivating the same. Exs.X1 and B1 cannot be considered inevidence, as both of them being unregistered documents areinadmissible in evidence. Exs.X2 and X3, which were obtained behindthe plaintiff, are not binding on the plaintiff and needs no consideration.Defendants 1 and 2, by adducing both oral and documents, havemiserably failed to establish that they have perfected their title by

adverse possession in view of Article 65 of the Limitation Act, whereasit is the case of the plaintiff that he has demanded the defendants 1and 2 in March 1989 to vacate the suit land, but instead of vacating thesame, they have approached the M.R.O. for issuance of patadarpassbooks, upon which he received notice from defendant No.3 inOctober 1989. The suit was instituted in the year 1990 well within thelimitation. The lower appellate Court has, thus, rightly held that the suitis within limitation.

It is also the case of the defendants that their vendor is notmade party to the suit and as such the suit is bad for non-joinder ofproper and necessary parties to the suit. The trial Court, on anerroneous view of facts and law, has held that E.Satti Reddy is aproper and necessary party to the suit and the suit is bad for non-joinder of proper and necessary parties. The plaintiff filed the suit fordeclaration of title, recovery of possession and for mesne profits andhis case is that defendants 1 and 2, who are tenants of the suitschedule property, failed to vacate the land and filed application beforethe revenue authorities for obtaining pattadar passbook in their favourin respect of the suit land. Thus, the plaintiff is claiming the reliefsagainst the defendants and E. Satti Reddy is not at all a proper andnecessary party to the suit. Proper and necessary party is a personwithout whom the dispute cannot be properly adjudicated and finallydecided, but in the present case, in view of the nature of the reliefsclaimed by the plaintiff, the presence of E. Satti Reddy, for adjudicationof the lis, is not necessary and as such he is not a necessary andproper party to the suit.

In view of the above discussion, I am of the considered opinionthat the findings recorded by the lower appellate Court, while reversingthe judgment of the trial Court, being well considered findings arrivedon appreciation of both oral and documentary evidence and thereasons recorded being cogent, need no interference by this Court in second appeal.

Hence, the second appeal is devoid of merits and the same isaccordingly dismissed with costs.

31[st] December 2010IBL

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JUSTICE N.V. RAMANA

[1] (2009) 2 SCC 177[2]2004 (4) ALD 124 (SC)