Telangana High Court
Vadde Advaiah vs Vadde Anjaiah on 5 March, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
SECOND APPEAL No.46 of 2007
JUDGMENT:
This Second Appeal is filed by the appellants - respondents - plaintiffs aggrieved by the judgment and decree dated 03.08.2006 passed in A.S.No.22 of 2004 by the learned Special Judge for Trial of Offences under SC / ST (POA) Act - cum - V Additional District & Sessions Judge, Medak at Sangareddy reversing the judgment and decree dated 27.01.2004 passed in O.S.No.355 of 2000 by the learned Principal Junior Civil Judge, Sangareddy.
2. The plaintiffs filed the suit for declaration, recovery of possession and correction of revenue records of land in Survey No.408/EE (408/4) admeasuring Ac.1-14 ½ guntas situated at Rajampet Village, Sangareddy Mandal, Medak District. The plaintiffs contended that they were the pattadars and owners of the above agricultural land. Their father Vadde Venkaiah along with three others Golla Antaiah, Vadde Sailoo (father of defendants) and Munnuru Narayana, purchased Ac.5-18 guntas of land in Survey No.408 from M.Ramaiah and M.Pochaiah under registered sale deed No.716 of 1966 on 27.06.1966 for a consideration of Rs.1000/-. All the purchasers made the land into four equal parts. Each got Ac.1-14 guntas of land in Survey No.408. Accordingly, mutation was made in their names by giving separate sub-numbers in revenue 2 Dr.GRR, J sa_46_2007 records as 408/A, 408/AA, 408/E and 408/EE (408/1, 408/2, 408/3 and 408/4). The suit land was in Survey No.408/EE (408/4) admeasuring Ac.1-14 ½ guntas that fell to the share of the father of the plaintiffs Vadde Venkaiah. During the lifetime of Venkaiah, he cultivated the land personally. Six years ago, due to ill-health, the father of the plaintiffs gave the suit land for cultivation on batai (year to year crop sharing basis) to the father of the defendants Vadde Sailoo. The father of the defendants Vadde Sailoo died five years ago. The defendants continued cultivation on the same condition. The father of the plaintiffs also died four years ago, leaving behind the plaintiffs as his only legal heirs. After the death of the plaintiffs' father, the defendants gave share in the crop till Ugadi festival of 2000. But, on 11.09.2000, the defendants made tomtom in the village that they would not give any share in the crop to the plaintiffs. The plaintiffs approached the defendants on 15.09.2000 along with their relatives and caste elders to know the reason for denial to give share in the crop for the season. But the defendants without disclosing any reason, refused to give the share in the crop and denied the title of the plaintiffs over the suit land. Neither the plaintiffs nor their father during his lifetime created any kind of ownership rights in favor of the defendants or their father, except giving land for cultivation on crop share basis. The plaintiffs verified the records in the Revenue Office and the Sub-Registrar Office, Sangareddy. As per the Sub- Registrar, Sangareddy, no encumbrances were created over the suit land in favor 3 Dr.GRR, J sa_46_2007 of anybody. In the revenue records of recent year, the names of defendants were recorded as pattadars without any kind of transfer right created by any member of the plaintiffs' family. The entries in the revenue records were false and concocted. Without the knowledge of the plaintiffs, the said entries were made. The defendants were in permissive possession of the suit land as cultivators. As such, the plaintiffs got issued a legal notice on 09.11.2000 to the defendants demanding them to vacate from the suit land. They also filed an application before the Mandal Revenue Officer (for short "MRO"), Sangareddy for correction of revenue records and filed the suit seeking the above reliefs.
3. The defendants filed written statement contending that the suit land was sold by the father of the plaintiffs to the father of the defendants in the year 1975. The defendants' father purchased the suit land on 12.07.1975 for a total sale consideration of Rs.1,050/- and the defendants succeeded to the said land after their father's death. The plaintiff No.1 was the attesting witness to the sale deed executed by the father of the plaintiffs. The suit was time barred and the plaintiffs were estopped from claiming that they were owners of the property. The defendants perfected their title by way of adverse possession, even otherwise. The name of the father of the defendants was incorporated in the revenue records in respect of the suit land as owner, pattadar and possessor. The defendants' father filed an injunction suit in O.S.No.95 of 1994 on the file of the Principal Junior Civil Judge, Sangareddy against the relatives of the 4 Dr.GRR, J sa_46_2007 plaintiffs for a total extent of Ac.2-29 guntas including the suit land and the said suit was decreed in favor of the father of the defendants. In O.S.No.95 of 1994, the father of the plaintiffs filed a third party affidavit, in which, he admitted that his share of land was sold to the defendants' father. The defendants' father obtained agricultural loan from Sangareddy Cooperative Agricultural Development Bank at Sangareddy in the year 1985 on the lands including the suit land. They gave a reply notice to the legal notice issued by the plaintiffs denying all the allegations of ownership and claim over the suit land and prayed to dismiss the suit.
4. Basing on the said pleadings, the following issues were framed by the trial court:
i) Whether the plaintiffs were entitled to the declaration as sought for?
ii) Whether the plaintiffs were entitled to recover possession of the suit land from the defendants?
iii) Whether the plaintiffs were entitled to the relief of correction of revenue records as sought for?
iv) Whether the defendants purchased the suit land from the father of the plaintiffs or alternatively whether the defendants acquired title by way of adverse possession?
v) To what relief?5
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5. On behalf of the plaintiffs, PWs.1 to 3 were examined and Exs.A1 to A9 were marked. PW.1 was the plaintiff No.1. PWs.2 and 3 were neighboring land owners having land in Survey Nos.407 and 405/E respectively. On behalf of the defendants DWs.1 and 2 were examined and Exs.B1 to B10 were marked. The defendant No.1 was examined as DW.1 and a witness to the un-registered sale deed dated 12.07.1975 marked under Ex.B12 was examined as DW.2.
6. On considering the oral and documentary evidence on record, the trial court placed the burden upon the defendants to prove their title to the suit schedule land, as they were admitting the ownership of the father of the plaintiffs and set up the plea of purchase under Ex.B1 and on appreciating the evidence of DWs.1 and 2, held that, DW.2 was not an attesting witness to Ex.B1 and the evidence of DWs.1 and 2 was inconsistent with each other and found Ex.B1 to be a suspicious document. The trial court also considered the plea of adverse possession taken by the defendants and observed that 12 years period was also not completed from the date the name of the father of the defendants appeared in the pahani for the year 1999-2000, marked under Ex.A6, and Exs.B8 and B9, title deed and pattadar passbook of the father of the defendants Vadde Sailoo would not disclose as to the mode of acquisition of Ac.2-29 guntas, dismissed the said plea of adverse possession also. The trial court further by considering the evidence of PWs.2 and 3, which supported the evidence of PW.1, wherein they stated that the defendants were cultivating the 6 Dr.GRR, J sa_46_2007 suit schedule land on batai basis, held that the defendants were in permissive possession and that the plaintiffs were entitled to recover the suit schedule land from the defendants apart from their entitlement of declaration as pattadars and answered all the issues in favor of the plaintiffs.
7. Aggrieved by the said judgment and decree passed by the trial court, the defendants preferred A.S.No.22 of 2004. The said appeal was decided by the learned Special Judge for Trial of Offences under SC / ST (POA) Act - cum - V Additional District & Sessions Judge, Medak at Sangareddy and vide its judgment and decree dated 03.08.2006 allowed the appeal setting aside the judgment and decree passed by the learned Principal Junior Civil Judge, Sangareddy dated 27.01.2004 in O.S.No.355 of 2000 with costs. The lower Appellate Court observed that Ex.B1 was a 30 year old document and its genuineness could not be questioned and there was no restriction to register the document at the relevant point of time. If further held that Exs.B1 and B2 were not compulsorily registerable documents and found them to be genuine documents. The lower Appellate Court observed that the father of the defendants filed O.S.No.95 of 1994 against PW.2 and the relatives of the plaintiffs, which was decreed and even though the plaintiffs were not parties to the said suit, as the plaintiffs and their father had not taken any steps challenging the decree in the said suit, held that the suit property belonged to the appellants - defendants. The lower Appellate Court had also taken into 7 Dr.GRR, J sa_46_2007 consideration the third party affidavit alleged to be filed by the father of the plaintiffs in O.S.No.95 of 1994 and held that even though the said document was not marked in the Court, as it was part and parcel of the case, had taken it into consideration. The lower Appellate Court also observed that the defendants were in continuous possession for the past 30 years and that they perfected their title by adverse possession and allowed the appeal suit with costs by setting aside the judgment and decree passed by the learned Principal Junior Civil Judge, Sangareddy.
8. Aggrieved by the said judgment and decree passed by the lower Appellate Court, the plaintiffs preferred this Second Appeal.
9. This Court admitted the Second Appeal on the following substantial questions of law on 05.02.2007:
a) Whether an un-registered document could be admitted to prove the title simple on the ground that it was 30 years old?
b) Whether there was any perversity in the judgment of the lower Appellate Court?
10. Heard Sri N.Ashok Kumar, learned counsel representing Sri S.R.Deshmukh, learned counsel for the appellants on record and Sri Kotagiri Sreedhar, learned counsel for the respondents.
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11. Learned counsel for the appellants contended that the defendants admitted the title and possession of the plaintiffs and set up Ex.B1, which was an un-registered and inadmissible document. Ex.B2 was its translation. Ex.B1 was not proved by the evidence of DWs.1 and 2. The defendants also failed to prove their adverse possession continuously. The defendants neither proved the document filed by them nor adverse possession in respect of the suit schedule property. The lower Appellate Court erroneously accepted an inadmissible document, which was in dispute and allowed the appeal. The finding given by the lower Appellate Court that Ex.B1 was a 30 year old document and the same could be admitted in evidence, was an erroneous finding. The plaintiffs were disputing the genuineness of the said document. The father of the plaintiffs had not filed any third party affidavit in O.S.No.95 of 1994 admitting the claim of the defendants. The defendants without the knowledge of the plaintiffs or their father got filed the said affidavit by forging the signature of the father of the plaintiffs. The said third party affidavit was neither filed nor proved before the trial court. As such, the finding given by the lower Appellate Court that the father of the plaintiffs filed a third party affidavit admitting the claim of the defendants, was erroneous and relied upon the judgments of the Hon'ble Apex Court in Pavitri Devi and another v. Darbari Singh and others 1, Balwant 1 1993 (4) SCC 392 9 Dr.GRR, J sa_46_2007 Singh and another, etc. v. Daulat Singh (Dead) by LRs and others 2, Mohan Lal (deceased) through his LRs. Kachru and others v. Mirza Abdul Gaffar and another 3 , M. Radheshyamlal v. V. Sandhya and another and etc. 4 , M.Durai v. Muthu and others 5, State of Andhra Pradesh and others v. M/S. Star Bone Mill and Fertilizer Company 6, Rajesh Mitra alias Rajesh Kumar Mitra and another v. M/S.Karnani Properties Limited 7 and the judgments of erstwhile High Court of Andhra Pradesh in M. Gopal and another v. K. Jangareddy (died) by LRs and another8 and Kesarapu Manikyalu v. Venna Perumallayya (died) by LRs and others 9.
12. Learned counsel for the respondents on the other hand contended that the respondents were claiming their title basing on a simple sale deed dated 12.07.1975. The said sale deed had been executed by the father of the appellants in favor of the father of the respondents. The said sale deed was impounded by collecting requisite stamp duty and penalty and the same was validated by the revenue authorities and issued pattadar passbook and title deed in favor of the father of the respondents and since then they were in possession of the subject land. The appellant No.1 (Vadde Adavaiah) was the attestor to 2 1997 (7) SCC 137 3 1996 (1) SCC 639 4 2024 (4) SCALE 35 5 2007 (3) SCC 114 6 2013 (9) SCC 319 7 2024 (11) SCALE 260 8 2011 (4) ALD 821 9 2000 (1) ALD 32 10 Dr.GRR, J sa_46_2007 the said sale deed. Therefore, the appellants were estopped from denying the sale made by their father. The main contention of the appellants was that the subject land was given on batai basis by their father to the father of the respondents, but they failed to prove the same. There was no documentary evidence filed in support of the same. The said plea was invented only for the purpose of taking defence to the plea of adverse possession. The father of the respondents filed O.S.No.95 of 1994, wherein the father of the appellants filed a third party affidavit stating that he sold his share to the father of the respondents. The said third party affidavit was filed in A.S.No.22 of 2004 and the same was accepted and the appeal was allowed by dismissing the suit filed by the appellants herein. The positive evidence produced by the respondents would disprove the claim of the appellants that they were the owners of the suit property and were not entitled to the reliefs claimed in the suit. All the witnesses examined on behalf of the appellants during trial stated that the respondents were in possession of the subject land and that they were cultivating the same. Since the father of the appellants filed a third party affidavit acknowledging the title of the father of the respondents in the year 1994, the possession of the respondents being continuous, they had perfected their title by adverse possession. Since the respondents were in possession of the property for a period of more than 25 years, the alleged rights of the appellants whatsoever over the suit schedule property had been extinguished 11 Dr.GRR, J sa_46_2007 long back due to efflux of time under Section 27 of the Limitation Act read with Articles 64 and 65 of the Limitation Act, 1963. There was no question of law, much less substantial question of law involved or that could be formulated in the Second Appeal. The First Appellate Court gave a positive finding with regard to ownership and possession of the respondents. Factual aspects could not be gone into in the Second Appeal under Section 100 of CPC and relied upon the judgments of the Hon'ble Apex Court in Mst.Sugani v. Rameshwar Das and another 10, Punjab Wakf Board v. Santokh Singh and others 11, Laxmidevamma and others v. Ranganath and others 12, Lisamma Antony & another v. Karthiyayani and another13, Damodar Lal v. Sohan Devi and others14, Syeda Rahimunnisa v. Malan Bi (Dead) by LRs and another, etc.15, Gurudev Kaur and others v. Kaki and others 16, Dagadabai (Dead) by LRs v. Abbas alias Gulab Rustum Pinjari 17 , Rame Gowda (Dead) by LRs v. M.Varadappa Naidu (dead) by LRs and another18.
13. The judgments in Laxmidevamma and others v. Ranganath and others (cited supra), Lisamma Antony & another v. Karthiyayani and another (cited supra), Damodar Lal v. Sohan Devi and others (cited supra), 10 2006 (11) SCC 587 11 2010 (15) SCC 449 12 2015 (4) SCC 264 13 2015 (11) SCC 782 14 2016 (3) SCC 78 15 2016 (10) SCC 315 16 2007 (1) SCC 546 17 2017 (13) SCC 705 18 2004 (1) SCC 769 12 Dr.GRR, J sa_46_2007 Syeda Rahimunnisa v. Malan Bi (Dead) by LRs and another, etc. (cited supra), Gurudev Kaur and others v. Kaki and others (cited supra) are all on the aspect that the Second Appeal cannot be admitted unless there is a substantial question of law involved in it and it cannot be a third trial on facts and concurrent findings of courts below on pure question of facts could not be interfered.
14. The Hon'ble Apex Court in Krishnan v. Backiam and another 19 held that:
"The First Appellate Court under Section 96 of CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the First Appellate Court under Section 96 CPC. No doubt the findings of fact of the First Appellate Court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
15. The contention of the learned counsel for the appellants was that the document marked under Ex.B1 was not a 30 year old document and the observation of the lower Appellate Court that since Ex.B1 was a 30 year old document, its genuinity could not be questioned and that there was no restriction to register the document at the relevant point of time, was nothing but 19 2007 (12) SCC 190 13 Dr.GRR, J sa_46_2007 perverse. His further contention was that the lower Appellate Court accepting the document filed by the respondents - defendants during the course of appeal in A.S.No.22 of 2004 and placing reliance upon the same, though the said affidavit was neither filed nor proved by the respondents - appellants in O.S.No.95 of 1994, was erroneous and the same would also amount to perversity.
16. As seen from the pleadings of both the parties, the respondents - defendants admitted the ownership of the father of the plaintiffs over the suit schedule land, but contended that the father of the plaintiffs sold the suit schedule land to their father on 12.07.1975 for a consideration of Rs.1,050/- and inducted them in possession and enjoyment of the same. As they were admitting the title of the father of the plaintiffs, the burden would lie upon the defendants to prove that the father of the plaintiffs sold the suit schedule land to their father. The trial court rightly placed the said burden upon the defendants and on appreciating the evidence of DWs.1 and 2 observed that though DW.1 stated in his cross-examination that the negotiations for sale of the suit schedule land had taken place in the tea stall of Hasanamma of Rajampet village in the presence of Vadde Rukkaiah (DW.2) and the son of Hasanamma by name Khaleel and in the presence of Kapu Narayana Reddy, and he had also seen the registered sale deed executed in favor of his father and further stated that the sale consideration was paid at the hotel of Hasanamma and it took place during 14 Dr.GRR, J sa_46_2007 winter season, DW.2 stated that the negotiations with regard to the sale of the land by the father of the defendants had taken place at the house of Hasansab. Hasansab, Narayana Reddy, DW.2, Venkaiah, Sailoo and Adavaiah (plaintiff No.1) were present at the time of negotiations and further stated that two or three days after the negotiations, consideration was paid and that he did not remember during which season, the negotiations and the registration took place.
17. The trial court observing that though DW.1 referred the name of DW.2 as having been present at the Registration Office, but DW.2 did not proclaim himself as having been present at the time of registration and was unable to say, who scribed Ex.B1 and further observing that DW.1 was 43 years old and the sale under Ex.B1 was alleged to have took place on 12.07.1975 i.e. 28 years ago by which date DW.1 was 15 years old, which would mean that he had not even attained majority, disbelieved the evidence of DW.1 with regard to execution of Ex.B1 in his presence. The trial court also held that DW.2 was not an attesting witness to Ex.B1. As per Exs.B1 and B2, Narayana Reddy, Vadde Bovaiah, Ramaiah, Adavaiah, Mallaipalli Buchaiah, and Hasan Ali were the attesting witnesses to Ex.B1, the defendants failed to examine either the scribe or the attesting witnesses of Ex.B1, DW.2 was unable to say on what date, month and year and the season, in which the negotiations or the registration took place, disbelieved the inconsistent evidence of DWs.1 and 2 and held that it would throw any amount of suspicion as to the genuineness of Ex.B1. Ex.B1 was also 15 Dr.GRR, J sa_46_2007 dated 12.07.1975, which would fall in rainy season, but as per the evidence of DW.1, it was executed in winter reason. The evidence of DWs.1 and 2 is also inconsistent with regard to the gender of the person, who was running the tea stall. While DW.1 referred the owner of the tea stall as Hasanamma, a female person, DW.2 referred him as Hasansab, a male person. While DW.1 stated that negotiations took place at the tea stall, DW.2 stated that negotiations took place at the house of Hasansab, which were contradictory to each other.
18. Apart from these factual inconsistencies, Ex.B1 is an un-registered document. The defendants got the un-registered sale deed, marked as Ex.B1, impounded and paid the requisite stamp duty and penalty. An un-registered sale deed is not admissible in evidence as per Section 49 of the Registration Act, 1908 and cannot be relied on as evidence of transaction. The buyer would not get legal rights over the property without registration of the sale deed and the same cannot be used as evidence in the Court. Thus, no reliance can be placed upon Ex.B1 to consider that the father of the defendants acquired right over the suit property though Ex.B1.
19. The lower Appellate Court considering that Ex.B1 was dated 12.07.1975 and by the date of its passing judgment in A.S.No.22 of 2004 by the year 2006, as 30 years had completed, considered the same as 30 year old document and held that its genuineness could not be questioned. 16
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20. Ex.B1 is a private document produced by the defendants from their custody.
21. The Hon'ble Apex Court in Pavitri Devi and another v. Darbari Singh and others (cited supra) held that a private document produced from the custody of a private party, even though 30 years old, cannot have the same weight as a public document.
22. The erstwhile High Court of Andhra Pradesh in Kesarapu Manikyalu v. Venna Perumallayya (died) by LRs and others (cited supra), while considering the presumption under Section 90 of the Indian Evidence Act, 1872, held that the period of 30 years have to be counted with respect to the date on which the document is sought to be used as an evidence in the suit, but not with respect to the date of filing of the suit. It specifically held as follows:
"7. To the same effect is also the law declared by the High Court of Calcutta in Sarat Chandra Mondal and Others v. Panchanan Mondal and Another [AIR 1953 Calcutta 481], in which the Division Bench of that Court followed the judgment of Privy Council, AIR 1936 PC 15, (supra) which I have already referred to above. The other High Courts in Konda v. Pichireddi [AIR 1925 Madras 184], Mahadeo Prasad v. Nasiban [AIR 1920 Oudh 11] and in Duluram v. Rameshwar [AIR 1955 NUC (Rajasthan) 4606], also have taken the same view and they have held that the period of 30 years should be computed from the date of its execution, to the date when the document was sought to be marked in evidence.17
Dr.GRR, J sa_46_2007 In the instant case, it is not in dispute that, as on the date the evidence was recorded in the year 1978, 30 years period had completed and if that is so as on the date the document was sought to be put into evidence 30 years period had completed and the appellate Court rightly raised presumption under Section 90 of the Evidence Act as to its genuineness and execution of the document Ex.A2."
23. Thus calculating the document as 30 years old from the date of execution of the document till the date of passing of the judgment in the appeal is improper and irregular.
24. The Hon'ble Apex Court in State of Andhra Pradesh and others v. M/S. Star Bone Mill and Fertilizer Company (cited supra) held that:
"14. Admittedly, the High Court erred in holding that the sale deed dated 11.11.1959, must be considered in the light of the provisions of Section 90 of the Evidence Act, instead of the period mentioned therein, thereby treating the appeal as a continuation of the suit. Therefore, the period of 30 years mentioned therein, has been calculated from 1959, till the date of the decision of the appeal, i.e. 22.3.2004. This view itself is impermissible and perverse, and cannot be accepted. The courts below have not given any reason, whatsoever, for the said lease deed to be treated as having been executed on 21.5.1943, under Section 90 of the Evidence Act and, thus, for believing that the land belonging to the Forest Department, which had in turn, given it to M/s. A. Allauddin & Sons on lease.
15. Section 90 of the Evidence Act is based on the legal maxims : nemo dat quid non habet (no one gives what he has not got); and nemo plus juris tribuit quam ipse habet (no one 18 Dr.GRR, J sa_46_2007 can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age. The period is to be reckoned backward from the date of offering of the document, and not any subsequent date, i.e., the date of decision of suit or appeal. Thus, the said section deals with the admissibility of ancient documents, dispensing with proof as would be required, in the usual course of events in usual manner.
25. Thus, the observation of the lower Appellate Court with regard to considering Ex.B1 as a 30 year old document is perverse and against the settled principles of law.
26. The further observation of the lower Appellate Court that at the relevant point of time of execution of Ex.B1 dated 12.07.1975, there was no restriction to register the document and the same was amended after 1989, was meaningless, absurd and perverse, as an un-registered sale deed cannot be looked into at any period of time, to claim title basing on the said document.
27. The lower Appellate Court taking into consideration the certified copy of the third party affidavit alleged to be filed by Vadde Venkaiah in O.S.No.95 of 1994 on the file of the learned District Munsif, Sangareddy along with I.A.No.118 of 2006 in A.S.No.22 of 2004 under Order XLI Rule 27 of CPC is also considered as illegal.
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28. A perusal of the judgment and decree in O.S.No.95 of 1994 dated 24.02.1995 on the file of the learned District Munsif, Sangareddy, marked under Ex.B3 would disclose that the said suit was filed by the father of the defendants seeking the relief of perpetual injunction in respect of the land in Survey No.408/AA to an extent of Ac.2-29 guntas against Vadde Veeraiah, S/o.Kishtanna and sons of Veeraiah (Vadde Durgaiah, Vadde Mallaiah, Vadde Anjaiah and Krishna). The said suit was decreed with a one line judgment as "PW.1 examined. Suit claim is proved. Suit is decreed with costs as prayed for." As seen from the appendix of evidence, only one witness Vadde Sailoo was examined. No documents were marked on behalf of the plaintiff as well as the defendants.
29. Thus, the third party affidavit alleged to be filed by the father of the plaintiffs was not marked in the said suit. The unmarked document filed by the father of the defendants in the said suit, which was disputed by the plaintiffs, ought not to have been received by the lower Appellate Court without assigning any reasons for accepting the same, as to why the defendants could not file the same before the trial court or in accordance with the provisions mentioned under Order XLI Rule 27 of CPC. The plaintiffs were disputing that their father had never filed the said affidavit. The affidavit only bears the thumb impression, but not even the signature of Vadde Venkaiah. There was no opportunity for 20 Dr.GRR, J sa_46_2007 the plaintiffs to cross-examine the defendants on the said document, as it was not marked through any of the witness in O.S.No.355 of 2000.
30. The plaintiffs are not parties to O.S.No.95 of 1994, as such the said judgment and decree in O.S.No.95 of 1994 is not binding upon them. The observation of the lower Appellate Court that the plaintiffs or their father had not taken any steps to challenge the said decree and judgment is also absurd. The said disputed document ought not to have been taken into consideration by the lower Appellate Court. The observation of the lower Appellate Court that even though the said document was not marked before it, it was part and parcel of the case, was a perverse finding.
31. With regard to the aspect of adverse possession also, the trial court held that:
"Apart from the plea of transfer of title by virtue of Ex.B1 on 12.07.1975, the defendants alternatively pleaded that they acquired title to the suit schedule land by adverse possession. The written statement as well as the evidence of DWs.1 and 2 is silent as to from which period, the defendants perfected title by adverse possession. The name of the father of the defendants appears as the pattadar and possessor in respect of Ac.2-29 guntas for the first time in Ex.B5, which is the pahani for the year 1999-2000, which is also equivalent to Ex.A6. Except this document, there is no other material on record as to from which period the defendants perfected their title by adverse possession. If we take into consideration 1999-2000, as the relevant period, the defendants cannot be permitted to plead the plea of adverse possession for the reason that 12 years period is not completed. Apart from Ex.B5, of course there are 21 Dr.GRR, J sa_46_2007 Exs.B7 to B9. In Ex.B7 as against the extent of Ac.2-29 guntas comprised in Survey No.408, the number of the registered document is noted as the mode of acquisition. The said document is none other than Ex.A1, which is not in dispute and under which the father of the plaintiffs', father of the defendants and two others jointly purchased the total extent of Ac.5-18 guntas. Exs.B8 and B9 do not disclose as to the mode of acquisition of Ac.2-29 guntas by the father of the defendants. Thus, what all Ex.B7 reflects is with regard to Ex.A1 only and not Ex.B1. Thus, there is no clear picture given by the defendants as to when they acquired title by adverse possession."
32. On considering the case law on the said aspect, the trial court further observed that:
"From the foregoing case-law, what is established is that mere possession for a long time does not enable that party to plead adverse possession, the party pleading adverse possession shall establish that he has been in continuous possession for over a period of 12 years to the knowledge of the true owner, adverse possession implies that it commenced in wrong and is maintained against right and in the case of sale deed, etc., under which the party obtains possession and acknowledges title from the vendor, then the theory of adverse possession is excluded. None of the first three elements are established by the defendants. In so far as the 4th element is concerned, the defendants are trying to ride on two boats simultaneously. Initially, they pleaded the execution of Ex.B1 by the father of the plaintiffs, which means that they have acknowledged or recognized the title of the father of the plaintiffs. Alternatively, they pleaded adverse possession without asserting as to the period from which they are in possession of the suit schedule land to the knowledge of the plaintiffs. When once the defendants plead the existence of Ex.B1, as held by the authoritative pronouncements, the theory of adverse possession is no more available to them and they are debarred from taking the alternative plea of adverse possession."22
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33. The lower Appellate Court on this aspect observed that since the date of Ex.B1, the appellants - defendants were in continuous possession of the suit lands and as such they had perfected their title by adverse possession.
34. Learned counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in M.Durai v. Muthu and others (cited supra) wherein by relying upon its earlier judgment in Saroop Singh v. Banto and Others [(2005) 8 SCC 330], it was held that:
"28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit.
However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.
29. In terms of Article 65 the starting point of limitation does not commence from the date 23 Dr.GRR, J sa_46_2007 when the right of ownership arises to the plaintiff but commences from the date defendant's possession becomes adverse.
[See Vasantiben Prahladji Nayak and Others
vs. Somnath Muljibhai Nayak and
Others [(2004) 3 SCC 376]
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [See Md.
Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others [(2004) 1 SCC 271], para 21]
10. Yet again in T.Anjanappa v. Somalingappa [(2006) 7 SCC 570], this Court opined as under:
"14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents.
It was furthermore held as under:
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sa_46_2007
It is well recognized proposition in law that
mere possession however long does not
necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
35. Learned counsel for the appellants further relied upon the erstwhile judgment of the High Court of Andhra Pradesh in M. Gopal and another v. K. Jangareddy (died) by LRs and another (cited supra), wherein it was held that:
"29. Although in the instant case, the plaintiff is able to show that all the essential requirements of Section 53-A of the Transfer of Property Act are satisfied whether he can ask the Court to declare him as owner of the suit property on the ground that he having obtained possession of the property under unregistered sale deed remained in possession of the same for more than the statutory period with hostile animus and 25 Dr.GRR, J sa_46_2007 open assertion of his title to the knowledge of his transferor and the subsequent purchasers and thus perfected his title by adverse possession.
28. In Achal Reddi v. Ramakrishna Reddiar and others [AIR 1990 SC 553], the Supreme Court has laid down in vivid terms that when the possession of the purchaser is under executory contract of sale, his possession cannot be said to be adverse. The Apex Court clarified that adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. The Constitution Bench of the Apex Court in Ram Gopal Reddy v. Additional Custodian Evacuee Property, Hyderabad [AIR 1966 SC 1438], held categorically that:
"When a suit has been filed to establish the right of the appellant as owner of the property, the appellant cannot take the benefit of Section 53- A of the Transfer of Property Act. Section 53-A of the Transfer of Property Act would come to the aid of the appellant in defence."
29. From the above two judgments of the Apex Court it is thus obvious that a person who obtained the possession of the property under executory terms of contract of sale, cannot ask for declaration of his title even on the ground that he remained in possession of the property for more than 12 years period and contending that his possession is adverse to the real owner. The Apex Court said in the above two judgments that possession of such person cannot be adverse and he cannot set up the plea of adverse possession. Therefore, in my view the trial court has fallen into error in declaring the title of the plaintiff holding that he perfected his title to the schedule mentioned property by adverse possession against the defendants 1 and 2 who are the 26 Dr.GRR, J sa_46_2007 real owners and defendants 3 and 4 who are the subsequent purchasers."
36. Learned counsel for the appellants further relied upon the judgment of the Hon'ble Apex Court in M. Radheshyamlal v. V. Sandhya and another and etc. (cited supra), wherein it was held that:
10. As far as the plea of adverse possession is concerned, a Constitution Bench of this Court in the case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [(2020) 1 SCC 1], in paragraph 1142 and 1143 has held thus:
"1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit No. 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
1143. A person who sets up a plea of adverse possession must establish both possession which 27 Dr.GRR, J sa_46_2007 is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence."
(Underline supplied)
11. In the case of Karnataka Board of Wakf v. Govt. of India and Ors [(2004) 10 SCC 779], in paragraph 11, this Court has laid down the law regarding the plea of adverse possession. Paragraph 11 reads thus:
28
Dr.GRR, J sa_46_2007 "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See:
S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567]. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of 29 Dr.GRR, J sa_46_2007 possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favor. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128]"
12. Therefore, to prove the plea of adverse possession :-
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession; and
(d) The plaintiff must establish that his possession was open and undisturbed.
It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favor. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.
37. Considering the principles reiterated by the Hon'ble Apex Court in the above cases, the plea of adverse possession is also not available to the 30 Dr.GRR, J sa_46_2007 respondents, as the respondents had not stated as to since when they started to exhibit hostile animus of their possession over the suit schedule property adverse to the knowledge of the plaintiffs.
38. The plea of adverse possession and title taken by the defendants are also inconsistent with each other.
39. Learned counsel for the appellants also relied upon the judgment of the Hon'ble Apex Court in Mohan Lal (deceased) through his LRs. Kachru and others v. Mirza Abdul Gaffar and another (cited supra) on the aspect that the plea of adverse possession cannot be sustained when alternative plea for retention of possession by operation of Section 53-A of the Transfer of Property Act, 1882 was also made, the first plea was being inconsistent with the second plea. The Hon'ble Apex Court specifically held that:
"3. The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from 08-03-1956, he has perfected his title by prescription. Secondly, he pleaded that he is entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882 (for short, 'the Act').
4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest 31 Dr.GRR, J sa_46_2007 and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
40. The observation of the trial court on the aspect that mutation of revenue records in the name of father of the defendants would not create any title in favor of the defendants also is a well settled principle of law. Learned counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Balwant Singh and another, etc. v. Daulat Singh (Dead) by LRs and others (cited supra) on the aspect that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. As such, no reliance can be placed on these entries to decide the title / ownership of the defendants to the suit schedule property.
41. As the observation of the lower Appellate Court in appreciation of evidence of the witnesses or of the documents is not in accordance with law or in accordance with the principles reiterated by the Hon'ble Apex Court on these aspects, it is considered as perverse and the same is liable to be set aside on the above grounds.
32
Dr.GRR, J sa_46_2007
42. In the result, the Second Appeal is allowed setting aside the judgment and decree dated 03.08.2006 passed in A.S.No.22 of 2004 by the learned Special Judge for Trial of Offences under SC/ ST (POA) Act - cum - V Additional District & Sessions Judge, Medak at Sangareddy. The judgment dated 27.01.2004 passed in O.S.No.355 of 2000 by the learned Principal Junior Civil Judge, Sangareddy is confirmed decreeing the suit in favor of the plaintiffs as prayed for by the plaintiffs.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.
____________________ Dr. G. RADHARANI, J Date: 05th March, 2025 Nsk