Andhra HC (Pre-Telangana)
Basappa vs Nagojappa on 1 September, 2006
Equivalent citations: 2006(6)ALD229
JUDGMENT V.V.S. Rao, J.
1. This second appeal is filed against the reversing judgment, dated 26-10-1994, in A.S. No. 25 of 1991 passed by the Court of the Additional District Judge, Hindupur, setting aside the judgment of the trial Court, dated 8-7-1991 in O.S. No. 45 of 1986 on the file of the Court of the District Munsif, Madakasira, and decreeing the suit in favour of the plaintiff. The plaintiff/respondent is one Nagojappa and the defendant/appellant is Basappa. They are referred to as such in this second appeal.
2. The property involved in the present suit is l/6th share in dry land admeasuring Acs. 10.92 cents in Survey No. 292, stone rivetted well, an irrigation channel and fruit bearing and other trees in the land. The property is situated at Tamadehalli Village of Madakasira Mandal in Anantapur District. This property had been contentious issue between Basappa and Nagojappa. It originally belonged to one Thimmappa. Basappa allegedly purchased the property under registered sale deed, dated 5-8-1966. The same property was purchased by Nagojappa also under another registered sale deed, dated 25-10-1969 perhaps this led to the lis. Basappa filed a suit being O.S. No. 87 of 1969 on the file of the Court of the District Munsif, Madakasira, for declaration of title and perpetual injunction against Thimmappa (original owner), Nagojappa and one Mahalingappa based on the sale deed. The suit was decreed on 21-11-1970. Basappa then filed A.S. No. 29 of 1971 on the file of the Court of the District Munsif, Anantapur. The same was allowed on 1-7-1977 reversing the judgment and decree in OS No. 87 of 1969. Basappa then filed second appeal being SA No. 676 of 1980 before this Court. By judgment dated 10-11-1983, this Court dismissed the second appeal. Thus, the declaration of title in favour of Basappa as made by the Court of the District Munsif, Madakasira, in O.S. No. 87 of 1969 was no more available to Basappa from 10-11-1983.
3. After dismissal of SA No. 676 of 1980, Nagojappa filed suit being O.S. No. 45 of 1986 on 2-4-1986 on the file of the Court of the District Munsif, Madakasira, out of which the present second appeal arises; for declaration of right, title over the same property and for recovery of possession. In the plaint, Nagojappa alleged that Basappa was delivered possession fifteen days after the delivery of judgment by the Court of District Munsif in O.S. No. 87 of 1969 and as he lost the suit in the appeal as confirmed by the second appeal, Nagojappa is entitled for declaration of title and possession based on the sale deed. Basappa opposed the suit mainly on two grounds : that the suit is barred by limitation and that he perfected title by adverse possession as the suit was filed on 2-4-1986 when the suit ought to have been filed within twelve years from 21-11-1970 on which day the Court of District Munsif decreed O.S. No. 87 of 1969.
4. The trial Court framed five issues, namely, (i) whether the plaintiff is entitled for declaration and possession as prayed for; (ii) whether the decree and judgment in A.S. No. 29 of 1971 operates as res judicata; (iii) whether the defendant has perfected his title to the suit property by adverse possession; (iv) whether the suit is barred by limitation; and (v) to what relief. Nagojappa as plaintiff examined himself as P.W.I and marked Exs. A.1 to A.4. Ex. A.1 is the copy of the sale deed executed by Thimmappa in favour of Nagojappa and Exs. A.2, A.3 and A.4 are the certified copies of the decrees in O.S. No. 87 of 1969, A.S. No. 29 of 1971 and S.A. No. 676 of 1980 respectively. The trial Court dismissed the suit holding that the suit is barred by limitation and that Basappa, the defendant perfected his right by adverse possession. Placing reliance on Padmamma v. Parvathamma 1987 (2) ALT 188, the trial Court also came to the conclusion that in the absence of any prohibition in the earlier suit preventing Nagojappa for filing a suit for possession the time spent in the earlier proceedings cannot be excluded for the purpose of limitation. In A.S. No. 25 of 1991, the appellate Court on consideration of the evidence opined that Nagojappa was prevented by the decree of permanent injunction in O.S. No. 87 of 1969, Ex.A2, from approaching the Court for recovery of possession and declaration and that the suit filed on 2-4-1986 after disposal of S.A. No. 676 of 1980 on 10-11-1983 is within time. The appellate Court also came to the conclusion that the possession of Basappa pursuant to the decree in O.S. No. 87 of 1969 was not adverse to the right of Nagojappa.
5. Learned Counsel for Basappa, the defendant/appellant, placed strong reliance on Padmamma v. Parvathamma (supra), and submits that mere pendency of the suit proceedings at the stage of Appeal and second appeal does not amount to precluding the plaintiff from filing the suit for declaration of title and possession within a period of limitation as per Article 65 of the Schedule to the Limitation Act, 1963 and as the suit was filed after a period of fifteen years on 2-4-1986, the suit was barred by limitation. Per contra, learned Counsel for Nagojappa, plaintiff/ respondent, strenuously contends that till 10-11-1983 when second appeal was dismissed, the suit proceedings in O.S. No. 87 of 1969 was pending, and therefore, the plaintiff could not have filed a separate suit for declaration of title and possession when there was already a declaration and injunction operating against the plaintiff by virtue of the decree in O.S. No. 87 of 1969.
6. The background facts and rival contentions would throw a question for consideration whether pendency of the suit in O.S. No. 87 of 1969 for declaration of title and injunction filed by Basappa explicitly or impliedly precluded Nagojappa from filing a suit for declaration of title and recovery of possession. It is admitted case of plaintiff and defendant that Thimmappa sold l/6th share in suit schedule property initially to Basappa under registered sale deed, dated 5-8-1966. When O.S. No. 87 of 1969 was filed for declaration of title and injunction, Thimmappa opposed the suit alleging that the said sale deed was not a sale out and out and it was intended to be acted upon and that Basappa also executed a re-conveyance agreement on the same day when sale deed was executed (1. This is evident from the judgment of this Court in SA No. 676 of 1980, dated 10-11-1983. Though Ex.A4, the decree in SA No. 676 is marked in the proceedings, the entire judgment was not marked, and therefore it was sent for.). The Court of District Munsif, however, rejected the said contention of Thimmappa and decreed the suit on 21-11-1970. But, for the said decree, Basappa"'s title was amorphous and nebulous. He continued to enjoy the fruits of the decree in O.S. No. 87 of 1969, during the pendency of A.S.No. 29 of 1971 filed by Thimmappa and Nagojappa, which ultimately went against Basappa. Ex.A2, decree, passed by the Court of District Munsif was for declaration of title and injunction, and unless Nagojappa gets over such declaratory decree, he could not have filed the suit for declaration of possession from which he was dispossessed by Basappa after obtaining the decree, Ex.A.2. The question, therefore, is whether lis pendense in Re. the title of Basappa, does not bar a fresh suit ? The trial Court in O.S. No. 45 of 1986 proceeded on the premise that Nagojappa was dispossessed by Basappa in December, 1970 pursuant to Ex.A.2, decree in the earlier suit. There cannot be any doubt that Basappa came to be in possession only pursuant to Ex.A.2, decree, as observed by the trial Court, which passed the said decree. The observations made by the trial Court in O.S. No. 45 of 1986, dated 8-7-1991 are as under:
Now that according to the plaintiff the defendant has been in possession of the suit land even till today that is to say that the defendant having obtained possession. The present suit is filed on 2-4-1986. So the defendant has been in possession of the suit land from the first week of December 1970 to till the date of filing of the suit that is on 2-4-1986 that means for about more than 15 years. Thus according to plaintiff the defendant has been in possession of the suit land for about more than 15 years.
...In view of these facts and in view of the principles laid down in the above referred decision, the contention on behalf of the plaintiff that the period that is from the 21-11-1970 to 10-11-1983 which was spent during the earlier proceedings in O.S. No. 87/ 96 should be excluded for computing the period of limitation for adverse possession could not be accepted.
7. At this stage itself, it would be convenient to refer to the observations made by the appellate Court in A.S.No. 25 of 1991, dated 26-10-1994, which are as under:
...In the present case under appeal, it is to be kept in mind that the appellant was restrained by the decree of permanent injunction passed against him in O.S.No. 87/ 69 by the learned District Munsif, Madakasira on 21-11-1970. Injunction was in force till 1-7-1977. When the learned District Judge, Anantapur reversed the decisions of the District Munsif, Madakasira by his judgment in A.S.No. 29/71. The possession of the respondent of the suit schedule property from 21-11-1970 till 1-7-1977 therefore cannot be regarded as illegal or hostile to that of the appellant. The respondent came into possession of the suit property in pursuance of the decree of permanent injunction passed in his favour of by the learned District Munsif, Madakasira.
8. The appellate Court further observed:
...In this case as pointed out by me earlier the respondent came into possession of the property in pursuance of the decree of permanent injunction granted in his favour. His entry into possession being not wrongful, there is no question of his obtaining title by prescription. While deciding the question of adverse possession the character of possession should be looked into. In this case, it cannot be said that there is invasion of the title of the appellant by the respondent. Therefore, his possession cannot be adverse to that of the appellant. Originally the respondent filed O.S.No. 87 of 1969 for declaration of his title and permanent injunction. By the first and second appellate Court it was found that he has no title to the plaint schedule property and he was not in possession of the plaint schedule property on the date of his suit. Merely because he came into possession in pursuance of the decree for permanent injunction, his possession cannot be said to be adverse to that of the appellant. The respondent did not establish that his possession is adverse to that of the appellant for a period of 12 years.
9. It may be noticed that under Section 34 of the Specific Relief Act 1963, the civil Court grants - of course, in its discretion; a declaration that a person is entitled inter alia to any right to the property and under Section 35 of the Specific Relief Act, such declaration made by the civil Court, which is binding only on the parties to the suit or persons claiming through them. Reading Sections 34 and 35 of the Specific Relief Act,(34. Discretion of Court as to declaration of status or rights :-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 35. Effect of declaration :-A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.), together would show that when the civil Court declares the title of a person - plaintiffs; the same is binding absolutely on the parties to the suit - defendants; and the possession obtained by the plaintiff pursuant to such declaration is neither illegal nor wrongful insofar as the defendants are concerned. The possession obtained by such person pursuant to declaratory decree can never be adverse insofar as the parties to the suit. Therefore, in the present case, Nagojappa who was dispossessed in December, 1970, could not have filed the suit for declaration and title when the trial Court decree was operating against him. The only remedy was to wait till the proceedings arising out of Ex.A.2 decree reach finality and take further action. Hereagain, assuming that Nagojappa had lost the first appeal and the second appeal, he could not have even filed a suit for declaration of title and possession as Ex.A.2, decree would certainly bind him by virtue of Section 35 of Specific Relief Act.
10. Article 65 of the Schedule to Limitation Act prescribes twelve years for filing a suit for possession of immovable property based on title and such twelve years begins to run when the possession of the defendant becomes adverse to the plaintiff. Possession of Basappa, who is defendant in the present suit, by no stretch of imagination can be treated as adverse to possession of Nagojappa as admittedly he got possession by reason of Ex.A2, decree, in the earlier suit. The first appellate Court has correctly appreciated the factual background, has drawn proper conclusions and applied the law, and therefore, the same does not warrant any interference.
11. The decision relied on by the learned Counsel for the appellant in Padmamma v. Parvathamma (supra), is a case arising out of altogether different situation. In this case, as found supra, Basappa got into possession by reason of a declaratory decree and therefore, unless and until that is set at naught, the limitation does not being to run for Nagojappa to file a suit for declaration and possession. This Court in Ex.A4, second appeal decree, confirmed the Ex.A.2, decree, on 10-11-1983, and the suit was filed on 2-4-1986, which is within limitation. Further, the possession of Basappa from December, 1970, to 10-11-1983 can never be treated as adverse to the possession of Nagojappa by reason of a declaratory decree, Ex.A.2, in favour of the former, and therefore, the trial Court certainly committed an error, which was appropriately corrected by the first appellate Court.
12. The second appeal is devoid of any merit and is accordingly dismissed.