Andhra HC (Pre-Telangana)
Mahendra C. Mehta And Others vs Kousalya Co-Op. Housing Society Ltd., ... on 13 June, 2001
Equivalent citations: 2001(5)ALD102, 2001(5)ALT197
JUDGMENT
1. Aggrieved by the dismissal of OS No. l of 1985 on the file of the Court of the Additional Chief Judge-cum-II Additional Special Judge for SPE and ACB cases, Hyderabad, the plaintiffs in the said suit have preferred this appeal.
2. Appellants filed the suit against respondents 1 and 2 for declaration of their title to 7013.88 sq. yards of land at Yellareddyguda, Ameerpet, Hyderabad, within the boundaries specified, which hereinafter would be called the 'suit land' and consequential injunction alleging that Chabildas P. Mehta, father of appellants 1 to 6 and husband of 7th appellant, purchased the suit land from its owner Smt. Sharadamma under a registered sale deed dated 14-11-1959 (Ex.A1) and was enjoying the same till the date of his death on 3-9-1972, and that thereafter they have been enjoying the same and that respondents 1 and 2 though have no right, title or interest therein, have been trying to encroach thereon, and filed an application seeking an injunction during the pendency of the suit to restrain respondents 1 and 2 from interfering with their possession over the suit land. An exparte ad-interim injunction was granted, which, after contest by respondents 1 and 2, was vacated by the trial Court, and confirmed by this Court. Thereafter by way of amendment, appellants sought the relief of recovery of possession of suit land also alleging that that after filing of suit respondents 1 and 2 entered into possession thereof and raised structures.
3. Respondents 1 and 2 filed a common written statement, and additional written statement after amendment of plaint, alleging that the description of the suit land is vague because survey number and actual location thereof are not mentioned, and since neither the appellants nor their predecessors in title were ever in possession of the suit land from 30 years prior to the filing of the suit, and since the 1st respondent and its predecessors in title have been continuously in possession thereof by paying land revenue for more than 15 years prior to the filing of the suit, appellants have lost their right, if any, in the suit land, and that the suit land originally belonged to Ceramic and Lime Company (hereinafter called the 'Company') which went into voluntary liquidation in 1952, and the liquidator of the company took possession of all the properties of the company, including the suit land, and put them to public auction during which one Srinivasachary purchased Ac. 7-29 gts. and sold Ac. 6-12 gts. to A.M.V. Prasada Rao, who in turn sold Ac. 6-00 to the 1st respondent along with his sons under different sale deeds, after 0-12 gts from out of the land purchased by him was acquired by Government, and that after purchase a lay out was obtained and plots were sold, and since appellants and their predecessors were never in possession of the suit land for over the statutory period, they are not entitled to any relief.
4. Basing on the above pleadings six issues and after amendment of the plaint, two additional issues, were framed by the trial Court for trial. In support of their case, appellants examined five witnesses i.e., four witnesses (PWs. 1 to 4) in Court and Saradamma, executant of Ex.A1 on commission. But the appendix of evidence to the judgment under appeal shows that only PWs.1 to 4 were examined and Exs.A1 to A35 were marked on behalf of the appellants. Therefore, for the sake of convenience in this judgment I would refer to Saradamma who was examined on commission as PW5. In support of their case respondents 1 and 2 examined two witnesses as DW1 and DW2 and marked Exs.B1 to B42, the trial Court clubbing issues 1 to 3, which relates to the question whether the appellants have title to and possession over the suit land and are entitled to the perpetual injunction sought, held that appellants have no title to the suit land and that neither they nor their predecessors in title were ever in possession thereof at any time, and hence are not entitled to the relief of possession or perpetual injunction. On issue No.4 which relates to the question whether respondents 1 and 2 are in adverse possession through their predecessors in title and themselves, held in favour of the respondents 1 and 2. On issue No. 5, which relates to question if the suit is in time held that the suit cannot be said to be based on title under Article 65 of Limitation Act, and that respondents perfected their title by adverse possession. On additional issues 1 and 2 which relate to the valuation of the suit and Court fee, held in favour of the appellants. On the basis of findings on issues 1 to 5, on issue No. 6 relating to relief, the suit was dismissed with costs by the judgment and decree under appeal. Hence this appeal by the plaintiffs in the suit.
5. During the pendency of the appeal, on an application filed by them, in CMP No. 25644 of 1999, respondents 3 to 24, who are members of 1st respondent-society, and who purchased plots sold by respondents 1 and 2 and constructed houses therein, are impleaded as parties to the appeal.
6. The contention of the learned Additional Advocate-General, appearing on behalf of the appellants, is that since admittedly the company was the owner of the suit land and other properties, and since the suit land and some other property was sold to one Faszal Ur Rahman, by the agent of the company under Ex.A2 as per the resolution of the Board of Directors of the Company, who in turn sold that land to PW5 (Saradamma) under Exs.A3 to A7, and since she (PW5), from out of the land purchased by her under Ex.A3, sold the suit land to the father of the appellants 1 to 6 and husband of respondent No. 7 under Ex.A1 sale deed with Ex.A8 plan after Ex.A11 paper publication, the vendee under Ex.A1 sale deed acquired valid title to the suit land. He contended that the failure of the trial Court to keep in view Ex.A2 while discussing the evidence for giving a finding on issues 1 to 3 and 5 resulted in erroneous findings, because Ex.A2 establishes that long before the company going into voluntary liquidation, the suit land and some other property belonging to the company were sold away to Afzal Ur Rahaman under Ex.A2, and therefore they ceased to be properties of the company by the date it went into liquidation and so the properties covered by Ex.A2 could not and did not, vest the liquidator, for him to sell them in public auction and so liquidator could not have validly sold the land covered by Ex.A2 to Srinivasachary under Ex.Bl. He further contended that the trial Court was in error in not believing the evidence of PW4 and Ex.A35 merely on the ground that he did not specifically state that he took measurements of the suit land when the evidence of DW1 clearly establishes that a surveyor came and took measurements of the suit land, and contended that since Ex.A35 report clearly shows that 1st respondent is in occupation of more land than that was purchased by it, it is clear that 1st respondent encroached into the suit land, and further contended that since the suit land is a vacant land, the presumption is that possession follows title and so it is for respondents 1 and 2 to establish that they have perfected their title to the suit land by adverse possession by adducing acceptable evidence, and since they failed to do so, appellants are entitled to a decree in their favour. The contention of Sri R. Subba Rao, learned advocate, on behalf of respondents 1 and 2 is that the suit against the 1st respondent, which is a society registered under the provisions of A.P. Cooperative Societies Act, 1964 (hereinafter called the 'Act') is not maintainable and is liable to be dismissed because notice under Section 126 of the Act was not issued before filing of the suit to the Registrar of the Co-operative Societies. He placed reliance on Karimnagar Dist. Co-op. Central Bank Ltd. v. Mogili Bakka Veeraiah, , The Jawali Harijan Co-operative Agricultural Society v. Maghu, , Kona Ramu v. The Payakaraopeta Primary Agricultural Cooperative Credit Society, and V.J. Danekar v. Meera Co-operative Housing Society Ltd., . In support of his said contention. His next contention is that none of the sale deeds relied on by the appellants disclose the survey number or the location of the land covered by those deeds, and there is also no evidence on record to show whether the land is agricultural or non-agricultural land and if it was agricultural land when it was converted into non-agricultural land, and contended that the evidence adduced by the 1st respondent in the shape of pahanis from 1955 to 1961 (Exs.B21), 1958-59 to 1979-80 i.e., Ex.B23, B24, B22, B25 to B26, ryot pass book (Ex.B37) and the original revenue receipts Exs.B38 to B42 clearly establishes the long standing possession of the 1st respondent and its predecessors in title over the land purchased by it, and since the evidence adduced by the appellants does not disclose that appellants or their predecessors in title were ever in possession of the suit land, the trial Court rightly held that the appellants are not entitled to declaration of title, as the right if any of the appellants was lost by adverse possession of 1st respondent and its predecessor in title. Placing strong reliance on J. Manikyam v. K. Tatayya, 1972 APHN 244, he contended that 1st respondent can take advantage of the possession of its predecessor in title and so it is clear that since 1st respondent and its predecessors in title have been in possession of the land purchased by it for over 25 years prior to the filing of the suit, the right, if any, of the appellants got extinguished by the adverse possession of 1st respondent and its predecessors in title. He further contended that the fact that compensation for Acs. 0-12 gts of land in Sy.No. 104 acquired for Manjeera Water Works, was received by the predecessor in title of the 1st respondent, but not by any of the appellants or the father of appellants 1 to 6, makes it clear that the predecessor in title of the 1st respondent alone was treated as the owner of the land in Sy.No. 104, and so the evidence of PW1 during cross-examination that the suit land is a part of Sy.No.104 cannot be believed or accepted. He further contended that old Sy.No. 118 was made into three survey numbers i.e., Sy.No. 104 consisting of Acs.6-12 gts., Sy.No. 98 consisting Acs. l-12 gts. and Sy.No. 109 consisting 0-05 gts. whose total extent is Ac. 7-29 gts., and the said Ac. 7-29 gts was sold by the liquidator of the company to Srinivasa Chary under the original of Ex.B1, after obtaining permission under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. He further contended that Srinivasa Chary who purchased Ac. 7-29 gts. from the liquidator under Ex.B1, sold Acs. 6-12 gts to Sri A.M.V. Prasada Rao under Ex.B? and after Ac. 0-12 gts. of land was acquired from him for Manjeera Water Works, the said Prasada Rao and his sons, who were given shares during partition, sold Ac. 6-00 of land to the 1st respondent under Exs.BS to B11 and contended that Srinivasachary, vendor of Prasada Rao filed a suit against 1st respondent and some of the members of the 1st respondent alleging that they have encroached into the remaining land of Ac. 1-12 gts. belonging to him in Sy.No.98, purchased under Ex.Bl and the said suit ended in a compromise under which the members of the 1st respondent, who are defendants in the said suit, paid money to Srinivasachary and that that fact clearly establishes that the extra land said to be in occupation of the respondents is in S.No.98, and for that reason also Ex.35 would not be of much help to the appellants.
He contended that to establish that fact respondents have filed CMP No.20724 of 2000 to receive the compromise petitions and the decree passed in the suit filed by Srinivasachary as additional evidence in this appeal, and since the said documents are public documents and require no further proof they may be received as additional evidence in this appeal. It is his contention that the boundaries of the suit land mentioned in the plan and sale deeds relied on by the appellants cannot be said to be well defined or clear or specific because 'neighbours land', without mentioning the name of the neighbour, cannot be a definite or clear or specific boundary to a land, and so there are no grounds to interfere with the decree of the trial Court. Sri V.L.N.G.K, Murthy on behalf of other respondents supported the contention of the learned Counsel for respondents 1 and 2. In reply, the contention of the learned Additional Advocate-General is that since 1st respondent did not take the plea that the suit is bad for non-issue of notice under Section 126 of the Act, it should be deemed that such plea was waived and contended that in any event since the cause of action and the relief claimed in the suit does not relate to any act touching the constitution, business or management of the 1st respondent, no notice under Section 126 of the Act is necessary.
7. Basing on the above contentions, the following points arise for consideration in this appeal:
(1) Whether the suit is not maintainable for want of notice under Section 126 of the Act?
(2) Whether Chabil Das P. Mehta, father of the appellants 1 to 6 and husband of 7th appellant, acquired title to the suit land by virtue of Ex.A1 sale deed, and if so whether the said title is lost by the adverse possession of 1st respondent and its predecessors in title?
(3) To what relief are the appellants entitled to?
Point No. 1:
8. In Karimnagar Dist. Co-op. Central Bank Ltd. case (supra), The Jawal Harijan Co-operative Agricultural Society case (supra), Kona Ramu case (supra) and V.J. Danekar case (supra) relied on by the learned Counsel for respondents 1 and 2, it is held that notice under Section 126 of the Act is mandatory in respect of a suit filed against a co-operative society "touching its constitution, management and business". In order to find out what the 'constitution, management and business' of the society are one has to look into the rules or the bye-laws of the society. From the language in which Section 126 of the Act is couched it is clear that notice is required only when the act complained of, or cause of action alleged, touches the 'constitution, management and business' of the society and conversely, if the relief sought in the suit has no relation to the 'constitution, management and business', of a co-operative society, no notice under Section 126 of the Act would be required. See D.M. Co-operative Bank v. Dalichand, . This suit is filed alleging that 1st respondent is trying to encroach into the suit land, and the amended plaint states that 1st respondent encroached into the suit land belonging to the appellants. So, the question would be whether trying to occupy, or occupying, the land belonging to the another, by a society, is an act 'touching its 'constitution, management or business'? 1st respondent did not produce its bye-laws to show what its main activities are. If occupying or encroaching into the lands of others for the benefit of its members is one of the objects of the 1st respondent society, it could not and would not have been registered, because such a collective activity, though may be a 'co-operative' activity amongst its members, is an activity opposed to public policy and is a crime punishable under the Indian Penal Code, as trespass and in some cases may amount to an act of 'land grabbing' under the provisions of A.P. Land Grabbing (Prohibition) Act, 1982. This apart the question whether an activity of the society touches its 'constitution, management or business' is a pure question of fact. When the 1st respondent who had an opportunity to take a plea that the suit is bad for want of notice under Section 126 of the Act had not taken such a plea, nor adduced evidence with regard thereto, it should be deemed that 1st respondent waived the requirement of notice under Section 126 of the Act. Since no plea is taken in the written statement of 1st respondent that the suit is bad for want of notice under Section 126 of the Act, even if notice under Section 126 of the Act was required that plea should be deemed to have been waived. Therefore, I hold that the suit is maintainable though notice under Section 126 of the Act is not issued. The point is answered accordingly.
Point No.2:
9. It is an admitted case that the suit land originally belonged to the company which went into voluntary liquidation in 1952. Ex.A2 is the registered sale deed dated 23-1-1947 with plan, executed by Syed Arifuddin, Director and Administrator, for and on behalf of Syed Harifuddin and Co., Managing Agents of the company, in favour of Md. Fazal Ur Rahman Syed, which is in Urdu, and English translation thereof is furnished," correctness of which is not disputed. From a reading of the translation of Ex.A2 sale deed and the plan attached to it, it is seen that it relates to two extents i.e., plot 'A' measuring 12,5777-07 sq.yards with structures and plot B measuring 7013-88 sq.yards of vacant land, and the recitals in the sale deed show that the sale is being made with the approval of the Board of Directors of the company. The doctrine of 'Indoor Management' applies to Ex.A2 sale, and it can be taken that the sale was made only with the Board Directors of the company.
10. Though the vendor or vendee of Ex.A2 is not examined, in view of the evidence of PW5, and since the same property is resold under Ex.A3 to PW5 and the property sold under Ex.AI is a part of the property covered by Ex.A3, and since father of appellants 1 to 6 is the purchaser of the property sold under Ex.A1 (i.e., suit land), it is clear that Ex.A2 is produced from proper custody. Since Ex.A2 is of the year 1947 and the suit is filed in 1980, which is more than 30 years from the date of Ex.A2, presumption under Section 90 of the Evidence Act that it was duly executed can be drawn. See M. Acharyulu v. M. Venkayyamma, 1971 (1) APLJ 350 (DB).
11. The plan attached to Ex.A2 delineates both the plots A and B sold thereunder distinctly and very clearly. Ex.A3 is the registration extract of the sale deed dated 3-4-1957 executed by Fazal Ur Rahman (Vendee under Ex.A2) in favour of Smt. Saradamma i.e., PW5, in respect of the entire property purchased by him under Ex.A2. The plans attached to Ex.A3 are marked as Exs,A4 and A7. In the body of Ex.A3 sale deed it is stated "All that property consisting of (3) houses and one godown bearing Municipal Nos.669, 670 and 672, including the open land measuring (Schedule 1 plot A) 12577.7 square yards shown as .....(not clear) and another Plot No.B measuring 7013.88 sq.yards situated on the other side of the road known as .....(not clear) situated at Yellareddyguda near Ameerpet, Hyderabad Deccan fully described in the schedule hereto and far greater clearness delineated on the plan hereto annexed and thereon shown with its boundaries coloured Red". ExA4 relates to House No. 672. Ex.A5 plan relates to H.No. 671. Ex.A6 is the comprehensive plan relating to both sites, and Ex.A7 plan relates to H.Nos. 669 and 670. Ex.A1 is the registration extract of the sale deed dated 14-11-1959, executed by PW5 (Saradamma), vendee under Ex.A3, in favour of Chabil Das P. Mehta (father of appellants 1 to 6 and husband of appellant No. 7) in respect of 7013.88 sq.yards i.e., plot B covered by Ex.A3 shown in Ex.A6. Ex.A8 is the plan attached to Ex.A1. If we carefully look into the plan annexed to Ex.A2 and compare it with Ex.A6 plan attached to Ex.A3 sale deed, and Ex.A8 plan attached to Ex.A1, and the boundaries mentioned in the body of the sale deeds and the plans attached to them, it is very clear that the land covered by Ex.A8 plan attached to Ex.A1 sale deed is the same as plot B shown in Exs.A3 and A6, shown as plot B measuring 7013 sq.yards shown in Ex.A2 sale deed and plan attached to it. Therefore, it is very clear that the suit land was first sold by the company under Ex.A2 dated 23-1-1947 to the executant of Ex.A3 i.e., vendor of Saradamma (PW5) under Ex.A2. Therefore, the entire property, covered by Ex.A2, which includes the suit land also, ceased to be the property of the company by the date it went into liquidation in 1952. The recitals in Ex.B1 show that the extraordinary meeting, for a decision to go into voluntary liquidation, was held on 24-11-1952 i.e., five years after Ex.A2. Therefore, by the time the company went into liquidation the suit property, and the property covered by Ex.A9 and A10 purchased Chabildas Mehta & Co., as the company floated by the family of appellants, as seen from the evidence of PW2, did not belong to the company for it to vest in the liquidator of the company. In view thereof it is for respondents to establish as to how they claim that the suit land vested in the liquidator of the company and as to when the liquidator took possession of the suit land and the property covered by Exs.A9 and A10 and put them also to auction. There is no such evidence in this case, and respondents also did not adduce evidence to Show what properties were taken possession of by the liquidator of the company.
12. Here I would like to refer to the contention of the learned Counsel for respondents relating to the Exs.A1, A2 and A3 sale deeds not containing S.No. of the land, and the recitals relating to boundaries therein being vague. It is no doubt true that mentioning 'neighbour's land' as a boundary of the land sold, without naming the neighbour, may not be a definite and identifiable boundary, especially in case of vacant land. But when a plan is annexed to the sale deed, and when the plan clearly shows the dimensions and the boundaries of the land sold and the details of the land of 'neighbour' mentioned as a boundary in the body of the sale deed, and the sale deed itself contain a recital like 'more fully described (or delineated) in the plan annexed' and the like, it cannot be said that the boundaries mentioned in the sale deed as 'neighbour's land' are not clear or definite because a sale deed with a plan annexed thereto has to be read along with the plan, as the plan annexed to the deed becomes an integral part and parcel of the deed. If the plan also does not contain the details of neighbours' mentioned in the deed, and also shows the boundary as 'neighbour's land,' it can be said that the boundaries are not clear to identify the property covered by the deed. Here I must state that when the plan annexed to a document is not produced, though the deed contain a recital like 'more fully described or delineated in the plan', the document will have to be treated as an inchoate document and therefore cannot be permitted to be relied on by the party producing it. It is well known that when boundaries of a land covered by a deed are specific and clear, wrong mention of the survey number or door number etc., of the property covered by the deed is of no consequence, because boundaries prevail over the extent and survey number mentioned, see P. Udayani Devi v. V.V, Rajeswara Prasad, 1995 (2) APLJ 5 (SC), following Sheodhyan Singh v. Mussamma Sanicharakver, . The same principle applies where no S.No. is mentioned, and boundaries are clear, specific and identifiable.
12-A. The liquidator of the company must be imputed with knowledge of Ex.A2. If he had no knowledge of Ex.A2, he would have taken possession of property covered by Ex.A9 with Ex.A10 plan also, which also was sold under Ex.A2. The evidence of PW2 clearly establishes that Chandulal Mehta & Co., is still in possession of the property purchased under Ex.A9. Therefore, it is clear that the property covered by Exs.A9 and A10, which also belonged to the company, was not taken possession of by the liquidator. Therefore, the probability is in favour of the liquidator not taking over possession of the suit land and putting it to auction. Except the interested testimony of DW1 there is no other evidence on record to show that the suit land also was taken possession of and sold in public auction by the liquidator under Ex.B1.
13. The observation of the Court below that "plaintiffs have not chosen to approach the liquidator soon after he entered possession of the properties of the liquidated company to make the claim that the suit properties were sold to them under Ex.A3 and purchased by them under Ex.Al and sought for the exclusion of the property covered by Ex.Al from the proceedings in the liquidation"
is obviously made on an assumption that the liquidator took possession of suit land also, though there is no evidence on record to show that the liquidator had taken possession of the properties sold under Ex.A2 by the managing agent to Fazal Ur Rahman.
14. Respondents 1 and 2 who claim that the suit land is a part of old S.No. 118 measuring Ac.7-29 gts belonging to the company sold by the liquidator of the company in favour of T.K. Srinivasachary under Ex.Bl, have not produced the plan annexed thereto i.e., Ex.B1, though there is a specific recital in Ex.Bl reading 'described more fully in the plan annexed thereto". Therefore, Ex.Bl has to be treated as an inchoate instrument and cannot be looked into for the purpose of this case, and an adverse inference also has to be drawn against respondents I and 2 for non-production of the plan annexed to Ex.B1. Ex.Bl sale deed executed by the liquidator in favour of Srinivasachary does not contain the corresponding new Sy.Nos. of old S.No. 118 mentioned therein. But the proceedings of the office of the Deputy Collector, Western Division, Hyderabad mentioned in the last page of Ex.Bl which obviously must have been annexed to the sale deed, as it was written towards the end of Ex.B2 (which is a registration extract of the sale deed) shows that old Sy.No. 118 correspondents to New S.Nos.98, 104 and 108. Ex.B7 is the sale deed executed by vendee under Ex.B1 in respect of Ac.6-12 gts. in Sy.No. 104 from out of the land purchased by him under Ex.Bl, in favour of A.M.V. Prasada Rao. Exs.B8 to B11 are sale deeds executed by the said Prasada Rao and his sons in favour of the 1st respondent in respect of Ac. 6-00 gts. In S.No. 104 from out of Ac. 6-12 gts purchased by Prasada Rao under Ex.B7.
15. From the reasoning given by the trial Court while dealing with and answering issue No.5, after referring to certain decisions, and holding that the suit of appellants cannot be said to be based on title. Coming under Article 65 of Limitation Act, 1963 it is clear that the trial Court did not properly look into the Pahanis exhibited on either side, and also did not keep in view the change in the legal position subsequent to the coming into force the Limitation Act, 1963.
Obviously that must be the reason why the learned Counsel for respondents 1 and 2 tried to support the findings of the trial Court by relying on Manikyam case (supra). Before considering whether the said decision renders help to the case of respondents, it is should be kept in view that Article 64 of the Limitation Act, 1963 deals with suits for possession which are not based on title, but based on previous possession, and Article 65 thereof deals with suits for possession based on title. Article 64 of the Limitation Act replaced Article 142 of Limitation Act, 1908, and restricted it to suits based on possessory title. Articles 136, 137, 138, 47, 140, 141 and 144 of Limitation Act,-1908 are replaced by Article 65 of Limitation Act, 1963. Since Article 142 of the Limitation Act, 1908, as interpreted by judicial decisions, indicated that it is attracted to the suits filed by the owners against the trespasser, irrespective of the fact whether the suit was based on proprietor title or possessory title, the onus was on the plaintiff to prove possession within 12 years from the date of filing of the suit and as such the person having title, on being dispossessed, was obligated not only to establish his title but also his previous possession at any point of time within 12 years from the date of filing of the suit, the Law Commission felt that the legal position needed a legislative change. The relevant portion of recommendation of the Law Commission in its 3rd report is as follows:
"If the defendant wants to defeat the right of the plaintiff, he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of Section 28 of the Limitation Act read with Article 144. If he fails to do so there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within 12 years. In our opinion Article 142 must be restricted only to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession".
In accordance with the recommendation made by the Law Commission, Article 65 is enacted in the Limitation Act, 1963 in respect of the suits based on title. Therefore, when the suit is based on title, the plaintiff need not prove that he was in possession of the land sought to be recovered within 12 years of the suit. Suits falling under Article 64 of the Limitation Act, 1963 are based purely on previous possession of the plaintiff and therefore is not covered by Article 65, because he is not claiming recovery of possession basing on his title. Therefore, if the appellants establish their title to the suit land, the burden of proof would be on respondents to establish that they have perfected their title to the suit land by adverse possession, and appellants need not establish that they were in possession of the suit land within 12 years from the date of the suit. In Bhagavathy Pillai v. Savarimuthu, AIR 1976 Mad. 121, it is held that in a suit falling under Article 65, the defendant, who wants to defeat rights of the plaintiff, has to establish his adverse possession which has the effect of extinguishing the title of the owner by operation of Section 27 of Limitation Act, 1963 and if he fails to do so plaintiff cannot be non-suited merely because he was not able to prove possession within 12 years. See Indira v. Arumugam, also. In P. Periasami v. P. Periathambi, , the Supreme Court, observed in para 6 at page 527, that whenever a plea of adverse possession is projected, it is inherent in that plea that someone else was the owner of the property. The Supreme Court has to say this in Mahavir v. Pural Institute, Amaravathi, :
"No question of adverse possession arises unless it is pleaded and proved that after possession was taken and handed over to the third respondent, the petitioners have asserted their own right to the knowledge of the third respondent and it had acquiesced in it and remained in uninterrupted possession and enjoyment, NEC VI, NEC LAM and NEC PRE CARIO" (3rd respondent in that case is a society) Therefore, it is clear that for adverse possession to begin the person who entered into possession must know that the property in his possession belongs to somebody else, and not to him, and should have the ANIMUS to hold the property adverse to the real owner. In this case there is no evidence on record to show that the purchasers of the property under Exs.B1 and B7 i.e., Srinivasachary and Prasadarao, had, with a knowledge that some of the property purchased by them, as according to respondents the property purchased by them included suit land also, does not belong to them, and it belongs to somebody else, and have taken possession of the same with an animus to hold it adverse to the real owner. It is well known that possession however long, per se, without animus to hold it adversely to the real owner, does not amount to adverse possession.
16. In Manikyam case (supra) the case of the defendant was that he was in adverse possession of the property covered by the suit for over 40 years. 1st appellate Court found in his favour. Second appeal preferred by the plaintiff also was dismissed because the predecessors in title of the defendant were in possession for 30 years prior to 1955 and from 1955 the defendant was in possession. During 1955 Limitation Act, 1908 was in force, and as per Article 142 of that Act, as per the law prevailing at that time, if the owner was out of possession, and some one else was in possession thereof, the real owner would lose his right to file suit for recovery of possession in view of Section 28 of Limitation Act, 1908, and thus the right to seek recovery of possession was lost to the plaintiff in that suit even by the date, Limitation Act, 1963 came into force. In view thereof and since Section 31 of the Limitation Act, 1963 did not revive the rights extinguished under the Limitation Act, 1908, it was held that the plaintiff cannot succeed. The said decision is of no help to respondents at all in this case, because the liquidator of the company sold the land belonging to the company in public auction to Srinivasachary under Ex.B1, which is dated 1-2-1960. The recitals in Ex.B1 shows that vendor delivered possession, but the date of delivery of possession is not mentioned. The auction, as per the recitals in Ex.B1, was held on 5-8-1956. Since the case of respondents is that both the liquidator and Srinivasachary sought permission to alienate the land covered by Ex.B1, under the provisions of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, and since date of delivery of possession is not mentioned in Ex.B1, it has to be taken that possession was delivered to the purchaser Srinivasachary only on the date of Ex.B1 i.e., 1-2-1960. The Limitation Act, 1963 came into force on 1-4-1964. Even assuming that the suit land was a part of the land sold under Ex.B1, as is being contended by the respondents, the right of the vendee under Ex.A1 i.e., father of appellants 1 to 6, was not extinguished because he purchased the same under Ex.A1 on 14-11-1959 and Ex.B1 is dated 1-2-1960 both less than 12 years prior to 1-1-1964. After coming into force of Limitation Act, 1963 in a suit for possession, based on title, it is for the person who claims that he perfected title by adverse possession, to establish that fact. As stated earlier Exs.A2, A3 and A1 clearly establish the title of appellants to the suit land. Therefore it is for the respondents to establish that they perfected their title to the land by adverse possession. Therefore, the above decision has no application to the facts of this case.
17. CMP No. 20724 of 2000:
In the circumstances stated in the affidavit filed in support of the application, I am of the opinion that the documents produced with the petition can be received as additional evidence in this appeal. They, being certified copies of compromise petitions and a decree in the suit, can be marked without examining any witness. Therefore, the petition is allowed. Exs.B43 to B45 are marked.
18. Before proceeding to discuss the evidence on record with regard to the question of adverse possession, I have to mention that it is one of the contentions of the learned Counsel for respondents that since appellants in their counter-affidavit in CMP No. 25644 of 1999 filed by respondents 3 to 24 to be impleaded as parties to this appeal, have admitted the sale by the liquidator of the company to Srinivasachary and sale by Srinivasachary to Prasada Rao and sale by Prasada Rao and his sons to 1 st respondent, it is clear that the sale in favour of 1st respondent by Prasada Rao and his sons is admitted and consequently the possession of the land sold by the predecessors in title of 1st respondent is admitted and thus it is clear that appellants arc not in possession of the suit land for over statutory period. Here I would like to refer to the affidavit of 2nd respondent, the Secretary of the 1st respondent society, filed in support of CMP No. 20724 of 2000 referred to above, in para 2 at page 2 reading:
"The petitioners herein contested the claim of the respondents alleging that the plaintiffs have not chosen to give the actual location and survey number of the suit land. The petitioners pleaded that the petitioners purchased the suit property which originally belonged to Ceramic Lime Company which went into voluntary liquidation by a resolution in 1952 passed by the Board of Directors that the voluntary liquidator took possession of all the assets of the said company including the suit property and sold it in public auction."
Therefore it is clear that the case of respondents is that the suit land was also taken possession of by the liquidator of the company and sold it to Srinivasachary. As stated earlier respondents did not adduce any evidence to show that the suit land, which was sold away by the company way back in 1947, was also taken possession of by the liquidator, and have in fact suppressed the plan annexed to Ex.B1 which would have revealed the location of the land sold thereunder. They did not even choose to examine Srinivasachary the purchaser under Ex.B1 or Prasada Rao who purchased the land under Ex.B7 to swear to the fact that they took possession of the suit land also in pursuance of the sales in their favour, though they are very much available. The suit was disposed of by the trial Court on 8-8-1985. Exs.B43 and B45 show that the compromise was entered into between Srinivasachary, purchaser under Ex.Bl, 1st respondent and some of its members in 1986 i.e., subsequent to the disposal of this suit by the trial Court. From Ex.B45 it is seen that Srinivasachary filed OS No.400 of 1982 for declaration, possession and injunction in respect of Ac.1-12 gts of land in S.No.98 of Yellareddyguda on 8-4-1982 in the Court of Vth Addl. Judge, City Civil Court, Hyderabad against 1st respondent and others, and that it was subsequently transferred to the Court of the Additional Chief Judge-cum-II-Spl. City Civil Court, Hyderabad and was renumbered as OS No. 510 of 1983. It is thus clear that OS No. 510 of 1983 was filed long subsequent to the appellants filing this suit, and the said suit ended in a compromise after this suit was dismissed by the trial Court. A compromise decree is nothing but the Court putting its seal to an agreement between the parties to the suit, and is not an adjudication by the Court of the dispute between the parties to the suit, and therefore does not have the same force of a decree passed by Court after contest between the parties to the Us. Thus, Ex.B43 to B45 which have come into existence long subsequent to the appellants filing of the suit, cannot be relied on for deciding this suit.
19. For reasons best known to them respondents 1 and 2 did not produce the sketches or tippons showing the location of the lands in S.No. 104 purchased by 1st respondent and S.No. 109, and S.No.98 which is the subject-matter of OS No. 510 of 1983. During cross-examination of PW1 it was elicited that a Commissioner was appointed by High Court to locate the suit land. During cross-examination DW1 (2nd respondent) stated that some Commissioner visited the suit locality and took measurements and that he was present then. The trial Court in para-8 of the judgment under appeal observed:
"The appointment of surveyor by the order of High Court to locate the land did not improve the matter"
but did not believe the evidence of PW4, who prepared Ex.A35 report and Ex.A34 sketch. The evidence of PW4 is that 3rd appellant asked him to survey the lands as per the directions of the High Court and when he went to take measurement he was prevented from taking measurements and that he returned without conducting any survey by actual measurements and that he prepared Ex.A35 report and Ex.A34 correlation sketch on the basis of Exs.A2, B8 to B11. Ex.B35 report of PW4 dated 22-3-1981, shows that the total area covered by the lay out submitted by the 1st respondent including roads, open space calculated on the basis of dimensions given in the lay out plan is nearly seven acres. Therefore, it is clear that 2nd respondent, who represents 1st respondent, was very much aware that PW4 (surveyor) submitted a report to Court showing that 1 st respondent is in possession of more land than purchased by it. Since Ex.B8 to B11 sale deeds in favour of 1 st respondent are for 6 acres on ly and since Prasada Rao, executant of Exs.B8 to Bl 1, purchased only Acs.6-12 gts from Srinivasachary under Ex.B7, and Ac. 0-12 gts was acquired from him, getting a suit filed by Prasada Rao against them i.e., respondents 1 and 2 would not serve any purpose. So there is every likelihood of the office bearers of 1st respondent approaching Srinivasachary to file a suit against 1st respondent and some members, alleging encroachment, to explain away the excess land in possession of 1st respondent. It is significant that appellants approached the Court in 1980 itself seeking an injunction against respondents 1 and 2 alleging that they are plotting the land, including the suit land, and obtained an injunction. After vacation of the injunction they applied for amendment of plaint in 1981 itself seeking the relief of recovery of possession also. Therefore, encroachment, if any, by the 1st respondent into Srinivasachary's land also should have been made in 1980 itself. But in Ex.B45 shows that Srinivasachary filed the suit alleging that he came to know about the "society's mischief in including" his land in its layout in January, 1982, and filed the suit on 8-4-1982. If his land was encroached in 1980 he would not have waited for two years to file a suit. Therefore, I am unable to agree with the contention of the learned Counsel for the respondents that the excess land found to be in possession of 1st respondent was the land of Srinivasachary. This clearly shows that 1st respondent included the land not belonging to it also in the lay out obtained by it. So the Ex.A34 sketch and Exs.A35 report prepared by PW4 cannot be said to be wrong. It is necessary to mention here that plans attached to Exs.B8 to B10 contain measurements of the lands sold thereunder on all the four sides. But in the plan annexed to Ex.B11, measurement on only one side is given but not of the remaining three sides. Ex.A35 clearly refers to this fact and the inability of PW4 to locate the land covered by Ex.B1, because it does not contain dimensions. Ex.A34 plan, as per the evidence of PW4 and Ex.A35, was prepared on the basis of the plan annexed to Ex.Al to A3 which are drawn to scale and Ex.B7 to Bll. Therefore, there are no grounds to disbelieve Exs.A34 and A35. For that reason also Ex.A34 and A35 cannot be rejected.
19-A. Exs.A26 to A29 show that some of the appellants obtained exemption from the Government in respect of the land in S.No. 104 at Yellareddyguda under Urban Land Ceiling Act. This shows that they are exercising right over the suit land. The suit land is a vacant land. It is well settled that in respect of vacant land, and land not capable of cultivation and lands not cultivated, the presumption is that possession follows title. Pahanis produced by both the parties i.e., Exs.A19 to A24 and Exs.B21, B23 to B36 do not render assistance in knowing or deciding the possession of the land mentioned therein, because Exs.A19 to A24, Exs.B23, B25, B27 to B36 relating to S.No. 104, show that the land is 'Padava' which means kept fallow during the years mentioned therein. Ex.B21 pahani relating to S.No. 98, 104 and 109 shows that land in all those S.Nos. was kept fallow during the years mentioned therein. In Ex.B24 relating to 1959-60 and in Ex.B26 relating to 1962-63, only some extent of land is shown as cultivated i.e., in Ex.B24 relating to 1959-60 it is stated that Jawar in 0-03 gts. and paddy in 0-02 gts was cultivated and in Ex.B26 relating to 1962-63 it is stated that jawar in Ac.3-11 gts was raised in S.No. 104. The entry in Ex.B24 relating to cultivation of about Ac. 0-05 gts out of an extent of Ac. 6-12 gts, can be made use of only to show that only Ac. 0-05 gts was cultivated, and the remaining land was kept fallow. Obviously those small extents might have been cultivated by some encroachers because a owner of a huge extent of land will not cultivate two small portions of the land with two different varieties of crops. So is very clear that except in two years i.e., 1959-60 and 1962-63, at no other point of time, was the land in S.No. 104 cultivated. Ex.B7 dated 6-11-1962 shows that the land covered by the said sale deed was converted into non-agricultural land as per proceedings dated 16-12-1961. So the land sold under Ex.B7 was non-agricultural land, but not agricultural land. Question of cultivating a land which is converted into non-agricultural land does not arise. The entries in pahanies also show that the land was never cultivated except in 1959-60 and 1962-63 in small extents. In Ex.B.30 pahani relating to 1973-74, V.K. Srinivasa Rao is shown as pattedar, and in column No. 16, relating to the person who actually cultivated, it is shown as "self. It is not the case of respondents that after sale under Ex.B7, Srinivasachary, who probably by mistake or oversight is described as Srinivasa Rao, came back into possession of the land sold by him in 1973-74, as shown in Ex.B30.
19-B. It is well settled that entries in revenue records do not confer title. Title to a property of a person would not be lost merely because his name is not mutated in the revenue registers. So entry showing the name of a person as owner of the property, in the column relating to 'owner' does not confer title on him in relation to that property, if he is not really the owner of that property. Similarly, because the name of an individual is entered in column No. 16 of the pahani, relating to 'person in actual possession', when the land is kept fallow or vacant, that entry by itself would not help him in establishing his possession during that year. The question as to who is in possession of a land kept fallow or vacant, mainly has to be decided on title. In respect of lands kept fallow or vacant, or the like, merely because the owner is not physically present thereon the land, or merely because somebody else made use of the land for a short span for temporary purpose, it cannot be said that the owner lost his possession over such land. Pahanies are maintained mainly for purpose of revenue collection, and statistics as to who raised what crop on what extent of land. Therefore when a land is kept fallow or vacant, column No.16 need not, and should not, be filled in because it relates the name of the person who "actually cultivated" the land. So merely because a person who is not the owner could manage to get his name entered in column No. 16 of pahani, when the land is kept fallow, or when it is a vacant land, it cannot, merely on the basis of that entry without his establishing or proving positive overt acts of possession thereon, be held mat he is in possession of such vacant land, of which he is not the owner.
20. Exs.B37 to B42 are strongly relied on by the learned Counsel for the 1st respondent in support of his contention that the predecessors in title of the 1st respondent have been paying land revenue and so it is clear that 1st respondent and its predecessors in title are in possession of the suit land. Exs.B38 to B41 are issued on plain white paper. Receipts like Exs.B38 to B41 can be brought into existence at any time. Ex.B37 does not contain any authentic rubber stamp or seal of any revenue official, and any blank old book like Ex.B37 can be procured and entries can be made therein. Neither Prasada Rao, nor the Patwari who issued Exs.B38 to B42 and who made entries in Ex.B37, are examined. Usually title deeds only, but not all the revenue receipts obtained by, and in possession of the vendor, would be given as vouchers to a purchaser. How Exs.B37 to B42 came into possession of 1st respondent and why they were delivered to it is not explained. The entries in Ex.B37 show that payments were made through cheques by Prasada Rao.
Respondents 1 and 2 did not adduce evidence to show that the said cheques were encashed. The Court below in para 10 of its judgment held:
"although it may not be the practice to remit the land revenue by cheque, it is still seen from Ex.B.37 that the process of remittance of land revenue by cheque is adopted and hence there is nothing to doubt the remittance made on the account".
It is well known that a payment by cheque is valid only when the cheque is encashed. There is no evidence on record to show that the cheques mentioned in Exs.B37 to B42 were encashed, nor is there evidence to show that the amounts covered thereby were credited to the account of Government after being debited to the account of drawer of the cheque. Though they have not examined Prasada Rao, respondents 1 and 2 did not even take steps to produce a copy of the account of Prasada Rao from the bank to show that cheque books containing the leaves mentioned in Exs.B37 to B41 were issued to him and that the cheques were encashed.
21. Even assuming that Ex.B37 to B42 are true, since respondents failed to establish that the suit land also was sold under Ex.B1 and that the purchaser thereunder i.e., Srinivasachary, or Prasada Rao who purchased part of the land from him, to swear to the fact that he took possession of the suit land also, and continued to be in possession thereof and paid land revenue thereto, basing on the self serving testimony of DW1 alone, it cannot be held that the land revenue allegedly paid under Exs.B37 to B42 included the land revenue payable for the suit land also.
22. Since respondents did not adduce evidence to show that 0-12 guntas of land acquired for Manjeera Water Works Project is near the suit land or a part of the suit property, the fact that 0-12 guntas of land in Sy.No. 104 was acquired by Manjeera Water Works Project and compensation thereof was paid for A.M.V. Prasada Rao is of a little consequence.
23. The various contentions raised by the learned Counsel for the respondents regarding the lack of evidence on the side of the appellants on the question of nature of the land as to when the suit land was converted into agricultural land have no force. All Exs.A2, A3 and A1 show that the suit land was being treated as vacant land alone, and was never treated as agricultural land. In fact Exs.A25 to A.28 show that appellants obtained clearance from Urban Land Ceiling Authority in respect of the suit land. It is no doubt true that in Wealth Tax Assessments of appellants i.e., Exs.A31 and A32 relating to 1979-80 disclose that they have shown the suit land as an agricultural land. I have already referred to the entries in the pahanies which show that the land was always kept fallow and never cultivated. So, probably the appellants might have, for tax purpose or other purposes, wanted to show it as such. Therefore, merely because the appellants have shown the land as agricultural in their Wealth Tax Return, the suit land does not become agricultural land. The question of obtaining permission from the Collector for conversion of agricultural land to vacant land arises if the land was at any time used as agricultural land. It is not the case of the appellants that the land was ever used as agricultural land. Therefore, the question as to when permission for conversion of the suit land into non-agricultural land was obtained has little relevance.
24. Since the evidence adduced by respondents 1 and 2 does not establish that the liquidator of the company took possession of the suit land also, along with the land belonging to the company and sold the suit land to Srinivasachary under Ex.B1 and that Srinivasachary had ever enjoyed the suit property as his own knowing it as not belonging to him and belonging to others with an animus to create a title in his favour, and since the evidence adduced by respondents 1 and 2 also does not establish that the land sold by Srinivasachary to A.M.V. Prasadarao under Ex.B7 includes the suit land also and since Prasada Rao did not come into the witness box to swear to the fact that he was in possession and enjoyment of the suit land and paid land revenue thereto at any point of time, and had, with a knowledge that the land not belonging to him also was in his possession and that he enjoyed it with an animus to create hostile title in his favour, it cannot but be held that respondents 1 and 2 failed to establish that they perfected their title to the suit land by adverse possession. Therefore, I hold that the appellants have title to the suit land and respondents failed to establish that they perfected their title to the suit land by adverse possession. The point is answered accordingly.
Point No.3:
25. I have given my anxious thought and consideration to the relief to be granted to the appellants, because it is the contention of the respondents 3 to 24 that they have, in good faith, purchased the plots sold by 1st respondent and constructed houses therein by spending their hard earned money. It should not be forgotten that the suit originally filed was one for declaration of title and injunction. After the interim injunction granted earlier was vacated, respondents 3 to 24 made constructions knowing fully well that the suit for declaration of title and possession by the appellants is pending. A person who makes construction in the property with eyes wide open knowing fully well that in case of success by the plaintiff he will have to vacate the premises, is akin to a person who closes his eyes and complains that he is unable to see. Therefore, respondents in occupation of suit land are to be treated as trespassers, and a trespasser is not entitled to any equity. So the question of granting any equities does not arise in this case, and the appellants are entitled to recover possession of the suit land from the persons in occupation therein.
26. In the result, the appeal is allowed. The judgment and decree of the trial Court are set aside and the suit is decreed with costs throughout as prayed for.
CCCA No. l47 of l985 (On being mentioned) This petition having been set down "for being mentioned" on 14-6-2001 and upon perusing the judgment of the Court, dated 13-6-2001 and upon hearing the arguments of the above Counsel, the Court made the following order :--
In the circumstances, three months time is granted for vacation of the suit land by respondents.