Telangana High Court
G.Rajappa Kandukur R.R.Dt vs G.Srisailam Kandukur R.R.Dt5 Ors on 23 August, 2022
Author: M.Laxman
Bench: M.Laxman
THE HONOURABLE SRI JUSTICE M.LAXMAN
SECOND APPEAL No.898 OF 2001
JUDGMENT:
1. The present appeal has been directed against judgment and decree dated 17.11.1995 in A.S.No.3 of 1992 on the file of the Court of the District Judge, Ranga Reddy District (for short, 'first appellate Court'), whereunder the judgment and decree dated 09.09.1995 in O.S.No.184 of 1991 on the file of the Court of the Munsif Magistrate, Ibrahimpatnam, Ranga Reddy District (for short, 'trial Court'), was confirmed. The said suit, filed by respondent No.1 herein for partition and separate possession, was dismissed.
2. Appellant No.1 herein filed the said suit against respondent No.1 herein. During the pendency of A.S.No.3 of 1992, respondent No.1 died and his legal heirs were brought on record as respondent Nos.2 to 7. During the pendency of the present appeal, appellant No.1 herein also died and his legal heirs were brought on record as appellant Nos.2 to 5. For the sake of convenience, the parties are referred to as they were referred to in the suit.
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3. The sum and substance of the case of the plaintiff is that he and the defendant are sons of late Srisailam. They together have acquired the land admeasuring Ac.9-15 guntas in Sy.No.511 of Kandukoor Village, Maheshwaram Mandal, Ranga Reddy District (suit property) and they were jointly enjoying the same. The suit property was mutated in the name of the defendant, who was the eldest brother. On account of some differences between them, the defendant denied the rights of the plaintiff over the suit property, for which, the plaintiff filed the present suit.
4. The case of the defendant is that he denied the claim of the plaintiff that the suit property is jointly held by them. According to him, he is holding absolute title and possession over the suit property independently, but not as a joint owner, as the property is his self-acquired one. The suit property was acquired by him when the plaintiff was very young. At the time of marriage of the plaintiff, the defendant gave 45 tulas of gold to the wife of the plaintiff and he also performed the marriages of his sisters.
5. It is the further case of the defendant that in the year 1966, the joint family properties were partitioned between the plaintiff and the defendant. The suit property was 3 ML,J SA_898_2001 placed at the disposal of their mother towards her maintenance. The gold jewellery and the loans existing with the joint family were divided. After the death of their mother, which was 15 years prior to institution of the suit, the joint family properties were divided including the suit property in the presence of elders viz., S.Laxma Reddy, S.Narsimha Reddy and C.Narsimha Chary, the residents of Kandukur village. In the said division, the plaintiff retained entire gold jewellery and gave the suit property to the defendant. As such, he became the absolute owner of the suit property, and since then, he has been in possession of the same. He has perfected title by adverse possession. On the above pleadings, he prayed to dismiss the suit.
6. Basing on the above pleadings, the trial Court framed the following issues:
"1. Whether the suit lands have been partitioned as claimed by the defendant?
2. Whether the suit is bad for non-joinder of necessary parties?
3. Whether the suit filed by the plaintiff is hit by Order VII Rule 3 CPC?
4. Whether the defendant has perfected his title by way of adverse possession?
5. To what relief?"4
ML,J SA_898_2001
7. The plaintiff in order to prove his case, himself got examined as PW.1 and relied upon Exs.A-1 to A-3. On behalf of the defendant, himself got examined as DW.1 and relied upon Exs.B-1 to B-11.
8. The trial Court, after appreciating the evidence on record, found that the suit property is self-acquired property of the defendant and also held that even if it is joint family property, since the partition is effected between the parties, it is no more available for partition. The trial Court also accepted the defendant's claim that he perfected his title by adverse possession. Challenging the same, the plaintiff filed A.S.No.3 of 1992 before the first appellate Court. The first appellate Court reversed the finding of the trial Court that the suit property is self-acquired property of the defendant and held that the trial Court has not properly appreciated the pleadings and the admissions of the parties which show that the suit property was the joint family property. Having held so, the first appellate Court confirmed the judgment and the decree of the trial Court on the ground that the defendant perfected his title on the proof that the plaintiff was staying in Vasulnagar Village for more than 15 years. 5
ML,J SA_898_2001 Challenging the same, the present Second Appeal is filed at the instance of the plaintiff.
9. This Court framed the following substantial question of law:
"Whether the findings of Courts below in denying the relief of partition and separate possession, suffer from any perversity?"
10. Heard learned counsel for both sides on the above substantial question of law.
Findings on the substantial question of law:
11. The contention of the learned counsel for the appellants/plaintiff is that both the Courts have not rightly appreciated the admissions of the defendant which clearly show that the defendant got the suit property in the partition, and when the defendant failed to establish that there was a partition, the suit ought to have been decreed. According to him, the defendant failed to establish the case set up by him that the suit property was partitioned after the death of their mother. Therefore, the suit ought to have been decreed and the trial Court wrongly held that the suit property is a self-acquired property of the defendant in spite of such admissions available from the defendant. It is also contended that though the first appellate Court reversed the 6 ML,J SA_898_2001 findings rendered by the trial Court on the aspect of nature of the suit property, but it has wrongly confirmed the findings of the trial Court holding that the defendant had perfected his title by adverse possession. According to him, the findings of the trial Court and the first appellate Court in dismissing the suit suffer from perversity.
12. The learned counsel for the respondents/defendant has contended that the plaintiff failed to establish his own case set up by him. According to him, the plaintiff set up the case that the suit property is jointly acquired by the plaintiff and the defendant. It is not the case of the plaintiff that the suit property is joint family property. When such is the case of the plaintiff, he has to establish that the suit property was acquired by him and the defendant jointly, but he failed to do so. Therefore, ambiguous and equivocal admissions, if any, which were subsequently withdrawn by the defendant cannot be foundation to decree the suit. According to him, the admissions in the written statement with regard to partition of joint family properties and allocation of the suit property to his share were result of improper pleadings on the part of the counsel, and such pleadings when confronted to the witness under Exs.A-1 7 ML,J SA_898_2001 and A-2, they were explained and withdrawn and such withdrawal was not even denied by way of suggestion. It is also his contention that the plaintiff is not admitting the case set up by the defendant. According to him, the plaintiff denied the claim of the defendant that after initial partition of joint family properties in the year 1966, the suit property was allotted to their mother, and after her death, the suit property was partitioned. When that is not accepted, the case of the plaintiff must fall on his own pleadings and evidence and he cannot rely upon such ambiguous and equivocal admissions, if any made by the defendant in the written statement.
13. The learned counsel for the respondents/defendant has also contended that the trial Court rightly found that the suit property is self-acquired property of the defendant, and such finding was disturbed by the first appellate Court basing on admissions of the defendant, which were subsequently withdrawn. According to him, withdrawal of such admissions by the defendant was not impeached. Therefore, the first appellate Court has misconstrued the admissions and evidence and reversed the findings of the trial Court on the aspect of nature of the property. Hence, 8 ML,J SA_898_2001 such findings of the first appellate Court suffer from perversity on that aspect.
14. It is his last submission that the first appellate Court rightly dismissed the appeal on the ground that the defendant had acquired the title by adverse possession in the light of the evidence and admissions made by the plaintiff that he is out of possession staying away to the village where lands are located and that he was denied the share in the suit property for the last more than 15 years. Therefore, such findings cannot be disturbed by this Court in the present Second Appeal.
15. The background of the pleadings and the evidence on record would show that this is a peculiar suit and classic example of how the pleadings are drafted in a casual way and is an example how standard of legal profession is falling. The plaintiff's case is that the suit property is a jointly acquired by him and the defendant. This means, the case set up by the plaintiff is that there is a common ownership and possession, whereas the pleadings were drafted in such a way that it is a jointly owned property. The evidence of the plaintiff shows that his case is that he and the defendant together purchased the suit property for Rs.800/-. It is not 9 ML,J SA_898_2001 his case that such a property was acquired from the joint nucleus. It is also not the case of the plaintiff that after purchasing the suit property jointly by them, the same was treated as a joint family property by blending such a property with joint family property by both of them.
16. The case of the defendant is also not consistent. At one stage, he himself claims that he is the absolute owner of the suit property having purchased the same with his own funds. At another stage, he claimed that the joint family properties were partitioned in the year 1966; that the suit property, which is owned by him, was allotted to his mother and that after her death, all the joint family properties were partitioned including the suit property and in the partition, gold jewellery was allotted to the plaintiff and the suit property was allotted to him. These admissions were confronted to the witness i.e., D.W.1 in the cross- examination by the plaintiff. Those admissions were marked as Exs.A-1 and A-2. He denied that such pleadings were made on his instructions. This means, his case is that such pleadings were not result of his instructions, but self-pleadings of his counsel. This claim of the defendant was not denied by way of any suggestion. On the contrary, 10 ML,J SA_898_2001 the plaintiff's evidence shows that he himself is not accepting the admissions of the defendant. His claim shows that he has not accepted that the suit property was given to their mother, and after her death, there was a partition.
17. From the evidence on record, one thing is clear that the plaintiff failed to establish his initial case that the suit property was jointly acquired by the plaintiff and the defendant. Having failed to establish such a cause of action, now he set up his claim basing on the admissions made by the defendant in the written statement, which creates new case.
18. The true effect of the admissions was considered by the Apex Court in Nagindas Ramdas v. Dalpatram Ichharam1, wherein it has been held as under:
"...Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."1
(1974) 1 SCC 242 11 ML,J SA_898_2001
19. A reading of the above judgment would indicate that the admissions were categorized into evidentiary admissions and judicial admissions. Now we are concerned with judicial admissions only i.e., admissions during the judicial proceedings. The admissions in judicial proceedings have stand on higher footing than the evidentiary admissions. Such admissions are binding on the parties who make it. It amounts to waiver of proof. To consider any admission as the foundation, such admission must be true, clear and it must be unequivocal terms. Section 58 of the Indian Evidence Act, which deals with judicial admissions, is the relevant provision and it reads as under:
"58. Facts admitted need not be proved:- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
20. A reading of the above provision would show that admission made by the parties dispense with the burden of proof by the other party, but the Court has a discretion in spite of such admission to prove the fact admitted otherwise an admission.
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21. The Apex Court in Chikkam Koreswara Rao v. Chikkam Subba Rao2 had an occasion to consider the effect of admissions and it was held that before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive; that there should be no doubt or ambiguity about the alleged admission and that while relying upon such admission, efforts shall be made to read of the statement together, but not part thereof.
22. In many instances, the judicial admissions are result from inadvertence rather than voluntary determination to foreclose a particular issue. Sometimes, such admissions may be deliberate in order to avoid unnecessary controversy to obviate the imposition of a continuance or to limit the introduction of evidence at the trial. The adversary system which we follow does not favour the admission in all cases. This principle is recognized by way of proviso to Section 58 of the Indian Evidence Act.
23. The learned counsel for the appellants/plaintiff relied upon the decision of the Apex Court in Thiru John v. 2 AIR 1971 SC 1542 13 ML,J SA_898_2001 Returning Officer3 to contend that such admissions are substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it. Though they are not conclusive, but places onus on the maker to explain such admission on the principle that what a party himself admits to be true may reasonably be presumed to be so. Until the presumption was rebutted, the fact admitted must be taken to be established.
24. The learned counsel for the appellants/plaintiff has also relied upon the decision of the Apex Court in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju4 to contend that admission of one party is the best evidence to the other party.
25. The learned counsel for the respondents/defendant has relied upon the decision of the Apex Court in Balraj Taneja v. Sunil Madan5, wherein it has been held as follows:
"21. There is yet another provision under which it is possible for the Court to pronounce judgment on admission. This is contained in Rule 6 of Order 12 which provides as under:3
(1997) 3 SCC 540 4 (2006) 1 SCC 212 5 (1999) 8 SCC 396 14 ML,J SA_898_2001 '6 Judgment on admissions:- (1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-
rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.' This Rule was substituted in place of the old Rule by the Code of Civil Procedure (Amendment) Act, 1976. The objects and reasons for this amendment are given below:
"Under Rule 6, where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable a party to obtain a speedy judgment at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled. The rule is wide enough to cover oral admissions. The rule is being amended to clarify that oral admissions are also covered by the rule."
23. Under this Rule, the Court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This Rule empowers the Court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit.
24. In Razia Begum vs. Sahebzadi Anwar Begum (AIR 1958 SC 886 = 1959 SCR 1111), it was held that Order 12 Rule 6 has to be read along with Proviso to Rule 5 of Order 8. That is to say, notwithstanding the admission made by the defendant in his pleading, the Court may still require the plaintiff to prove the facts pleaded by him in the plaint.
25. Thus, in spite of admission of a fact having been made by a party to the suit, the Court may still require the plaintiff to prove the fact which has been admitted by the defendant. This is also in consonance with the provisions of Section 58 of the Evidence Act which provides as under :
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ML,J SA_898_2001 '58. Facts admitted need not be proved - No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
26. The Proviso to this Section specifically gives a discretion to the Court to require the facts admitted to be proved otherwise than by such admission. The Proviso corresponds to the Proviso to Rule 5(1) Order 8 CPC.
27. In view of the above, it is clear that the Court, at no stage, can act blindly or mechanically. While enabling the Court to pronounce judgment in a situation where no Written Statement is filed by the defendant, the Court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the Court can either pronounce judgment against the defendant or pass such order as it may think fit.
28. Having regard to the provisions of Order 12 Rule 6; Order 5 Rule 8, specially Proviso thereto; as also Section 58 of the Evidence Act, this Court in Razia Begum's case (supra) observed as under:
'In this connection, our attention was called to the provisions of R.6 of O.12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff. These provisions have got to be read along with R.5 of O.8 of the Code with particular reference to the proviso which is in these terms:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
The proviso quoted above, is identical with the proviso to Section 58 of the Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted.' 16 ML,J SA_898_2001 The Court further observed:-
Hence, if the Court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the Court, in pursuance of the terms of Section 42 of the Specific Relief Act, decides, in a given case, to insist upon clear proof of even admitted facts, the Court could not be said to have exceeded its judicial powers."
26. The learned counsel for the respondents/defendant has also relied upon the decision of the Apex Court in Canbank Financial Services Ltd. v. Custodian6 to contend that the creation of title by act of parties is subject to law.
Once the title vests with a particular person, he cannot be divested therefrom except in accordance with statute and not otherwise. Admission does not create any title or extinguish the right to title.
27. In the above background of principles on admission, a close reading of the evidence and the pleadings of the defendant goes to show that the defendant's claim with regard to nature of suit property is not consistent. It appears, at one stage, the defendant set up that the suit property as his self-acquired property and at another stage, he set up that the same was given to his mother for her maintenance. His evidence shows that though the property was given to his mother, but he cultivated it and usufructs 6 (2004) 8 SCC 355 17 ML,J SA_898_2001 were only given to her. The pleadings also show that the joint family properties were partitioned including the suit property. Such admissions were marked as Exs.A-1 and A-2 in the cross examination of D.W.2.
28. The theory set up by the defendant that the suit property was given to his mother for maintenance is not accepted by the plaintiff in his own evidence. His case is that the suit property was purchased by the plaintiff and the defendant. According to the plaintiff, the suit property is a jointly acquired property. This means, there is common ownership and not joint ownership. In the pleadings, he never pleaded that the property purchased by jointly was blended with joint family property so as to constitute a joint family property to say that they are they are jointly owning and possessing the property.
29. The admissions made by the defendant in the pleadings create a different case than the case set up by the plaintiff. In true sense, admission is one party alleges certain facts and other party admits such facts. Such admissions, if taken altogether, are result of unclearness, ambiguous and not in unequivocal terms. When the admissions are unclear, ambiguous and not in unequivocal 18 ML,J SA_898_2001 terms, the Courts are at liberty to insist the plaintiff to prove the fact admitted in addition to the admissions.
30. The plaintiff, instead of proving the admissions, has disclaimed the very pleadings of the defendant. His own case is that the joint-acquisition in spite of admissions. He has not accepted the theory of blending of the property. The plaintiff has not accepted that the suit property was given to his mother towards maintenance, so that after her death, he could claim the property for partition.
31. The important aspect is that Exs.A-1 and A-2 were confronted to the witness and the witness said that he has not instructed his counsel to incorporate such admissions. This claim made by the defendant in the cross-examination was unimpeached by way of any suggestion. This means, the explanation given for such admissions was unchallenged. Therefore, the admissions under Exs.A-1 and A-2 pale into insignificant. Hence, the plaintiff cannot rely upon such unclear, ambiguous and unequivocal admissions, as they have no help to the plaintiff and the plaintiff must stand on his own.
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32. Both the Courts below have not properly appreciated the above admissions in right and proper perspective. The first appellate Court has not given any attention to the explanation offered by D.W.1 when Exs.A-1 and A-2 were confronted to the witness. Had this explanation was considered, the decision of the first appellate Court would have been otherwise on the aspect of nature of property. Hence, the finding of the first appellate Court in reversing the finding of the trial Court holding that the suit property is the self-acquired, suffers from perversity.
33. Both the Courts below have held that the defendant perfected title by adverse possession. In fact, there is no pleading from the defendant about the date of commencement of adverse possession. Both the Courts rendered such findings based on some claim made by the witness in the evidence that by the date of examination of P.W.1, he was out of possession for the 15 years. Another reason for holding the adverse possession was on the basis of evidence to show that the plaintiff was denied the half share for more than 15 years.
34. Both the Courts below failed to note the requirement of the pleadings with regard to adverse possession and the 20 ML,J SA_898_2001 evidence thereon and also the requirement to establish the adverse possession. In order to claim adverse possession, the party must recognize the ownership of others, and when the party claims his ownership without admitting the ownership of others, he cannot set up alternative plea of adverse possession. Both the claims are mutually exclusive and both cannot exist together, though the defendant is entitled to take a different stand, such defence cannot be mutual exclusive.
35. The learned counsel for the appellants/plaintiff relied upon the decisions of the Apex Court on the aspect of adverse possession in Janaki Pandyani v. Ganeshwar Panda (dead) by LRs.7, Karnatka Board of Waqf v. Government of India8 and Chandra Mohan Ramchandra Patel v. Bapu Koyappa Patel (dead) Thr. LRs.9
36. The learned counsel for the respondents/defendant relied upon the decisions of the Apex Court in Bhagwati Prasad v. Shri Chandramaul10 to contend that the general principles that the decision of a case cannot be based on the grounds outside the pleadings of the parties cannot be 7 J.T. 2000 (Suppl.2) SC 345 8 (2004) 10 SCC 779, 9 (2003) 3 SCC 552 10 AIR 1966 SC 735 21 ML,J SA_898_2001 applied uniformly and the consideration of form cannot override the legitimate consideration of substance. According to him, if a plea is not specifically made and yet it is covered by issue by implication, and the party went to trial with the knowledge of such plea, mere fact that plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. This judgment was relied upon to contend that even though the plaintiff did not set up the case that it is joint family property, such a case even if he failed to plead, since the parties went to trial to show that the property is joint family property, the relief cannot be denied. This argument is unmerited. The entire case of the plaintiff has been not established. He is trying to make out a case from the pleadings of the defendant. As this Court, in supra paras, held that on reading of the entire pleadings and evidence, the admissions are not clear and suffered with ambiguity, and hence, such admissions cannot be foundation to deny the title to the defendant. The principles laid down in the said decision is on different set of facts and not similar to the present set of facts. Therefore, the judgment does not help to the defendant. 22
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37. There is no dispute on the proposition laid down by the Apex Court in the above said judgments relied upon by the learned counsel for the appellants/plaintiff touching the adverse possession. Both the Courts below erred in law in not taking the cognizance of the above principles that possession how-so-long without intention to possess such property adverse to the owner cannot be treated as adverse possession. The possession of the defendant must be open, hostile and more than prescriptive period. The pleadings and the evidence are lacking in this regard. Therefore, both the Courts ought not to have held that the defendant had perfected his title by adverse possession. Hence, the said findings of the both the Court below require to be set aside. Accordingly, the substantial question of law is decided.
38. In the result, the Second Appeal is dismissed, however on different grounds, confirming the final conclusions arrived at by both the Courts below in dismissing the suit. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
________________ M.LAXMAN, J Date: 23.08.2022 TJMR