Telangana High Court
Kummari Narayana vs Manne Mutyalu on 6 June, 2023
THE HON'BLE SRI JUSTICE A. SANTHOSH REDDY
SECOND APPEAL No.455 of 2015
JUDGMENT:
This second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short "C.P.C".) is directed against the judgment and decree, dated 29.02.2012, in A.S.No.74 of 1997 on the file of I Additional District Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, wherein the said appeal filed by the respondents herein was allowed setting aside the judgment and decree, dated 09.06.1997 passed in O.S.No.382 of 1990 by the learned Principal Subordinate Judge, Ranga Reddy District at Saroornagar, Hyderabad.
2. Heard Sri P.Sridhar Reddy, learned counsel for the appellants and Sri M.S.N.Prasad, learned counsel for the respondents. Perused the record.
3. During the pendency of appeal, the sole appellant died and his legal representatives were brought on record as appellant Nos.2 to 5, respondent No.2 died and his legal representatives were brought on record as respondent Nos.3 to 8.
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4. For the sake of convenience, the parties would be referred to as they were arrayed in the suit before the trial Court.
5. Necessary facts for disposal of this second appeal are as follows:
6. The plaintiff is the owner of the land admeasuring Ac.01-9 guntas situated in Sy.No.187 of Suraram Village, Qutubullapur Mandal (hereinafter referred to as the "suit schedule land"). Originally, the plaintiff was the inamdar and got occupancy certificate from Inam Tribunal vide proceedings No.L/3300/1986 in the month of May, 1989 in respect of the suit schedule land. As such, his name has been entered in the revenue records as the owner by deleting inamdar as per the orders passed by Revenue Divisional Officer, Hyderabad East Division-cum-Inam Tribunal. In the year 1982, the defendants have filed suit in O.S.No.61 of 1982 on the file of District Munsiff, Medchal against one Police Balreddy for declaration and perpetual Injunction in respect of the suit schedule land. On knowing the same, the plaintiff filed implead petition vide I.A.No.533 of 1982 in the said suit and after hearing both sides, the said suit was dismissed on 31.03.1982 3 holding that the defendants are not having any title in respect of the suit schedule land and they are not in the possession of the same. After dismissal of the said suit, the defendants have not preferred any appeal and the said judgment and decree have become final and binding on them. But, the defendants have got entered some entries in the pahanies in collusion with revenue officials and under the guise of said entries, they have encroached into the suit schedule land. It is further averred that on 26.05.1986, the plaintiff initiated inam proceedings before the R.D.O. vide proceedings No.L/3300/86 and after due enquiry, the Inam certificate has been granted under the provisions of the Telangana Abolition of Inams Act, 1955 (for short "the Inams Abolition Act"). In view of the said certificate, the name of the plaintiff has been entered in the revenue records as the owner. After dismissal of the suit in O.S.No.61 of 1982 filed by the defendants, the plaintiff filed a petition for correction of wrong entries made in the revenue records and the same was dismissed. Taking advantage of the same, the defendants in collusion with revenue officials got entered wrong entries in the revenue records and encroached illegally and occupied the suit 4 schedule land on 20.06.1986. The defendants have no right or concern over the suit schedule land except illegal encroachers. Hence, the plaintiff filed suit for recovery of the possession of the suit schedule land and for recovery of mesne profits.
7. Defendant Nos.1 and 2 filed written statement disputing the correctness of the valuation and payment of the Court fee and contended that the suit is barred by limitation. It is stated that originally, the suit schedule land is inam land and the defendants were in possession and enjoyment being the cultivators. On 20.07.1955, when the Inam Abolition Act came into force, since these defendants were in occupation of the same and their rights are protected. Subsequently, the Andhra Pradesh Inam Abolition Act of 1967 came into force repealing the Act 8 of 1955. The plaintiff was granted patta under 1967 Act and he sold his right to one Police Balreddy in the year 1969, who, in turn sold his rights to these defendants under an unregistered agreement of sale dated 20.09.1979 and these defendants continued to be in possession by paying the land revenue and the father of the defendants personally 5 cultivating the suit schedule land and was in possession of the same since 1955.
8. It is further stated that on the date of vesting as tenant, either it is on 20.07.1955 or 01.11.1973, the plaintiff was never in possession of the suit schedule land. Hence, no occupancy certificate can be granted in favour of the plaintiff. The possession of the defendants is in their own right and adverse to the claim of the plaintiff. Their possession was more than twelve years over the suit schedule land to the knowledge of the plaintiff. The land revenue receipts, village records, the order passed by the Tahsildar, dated 25.05.1985, dismissing the application of the plaintiff holding that these defendants have been in possession under a claim purchase etc., The said order was not challenged and the entries in the revenue records were not questioned and therefore, the said order has became final. Hence, prays to dismiss the suit.
9. The plaintiff filed rejoinder to the said written statement and contended that the plaintiff never sold the lands to police Balreddy in the year 1969 and said Balreddy has no concern or legal right over the suit schedule land and any purchase made by the 6 defendants on 20.09.1969 from said Balreddy would not confer any right on them. The defendants are claiming right under the agreement of sale. Hence, they cannot claim adverse possession. The defendants have not preferred any appeal against granting of occupancy certificate in favour of the plaintiff and the civil Court has no jurisdiction to raise objection regarding the issuance of the occupancy certificate or its binding nature. It is also stated that the suit is well within limitation.
10. Basing on the above pleadings, the following issues have been settled for trial:
1. Whether the plaintiff has got title to the suit property?
2. Whether the plaintiff sold his right in the suit property to one Police Balreddy in the year 1969?
3. Whether the defendants have perfected their title to the suit property by adverse possession as alleged in the written statement?
4. Whether the plaintiff is entitled to recover possession of the suit property as prayed for?
5. Whether the plaintiff is entitled for past and future mesne profits as prayed for?
6. To what relief?7
11. On behalf of the plaintiff, Pws.1 and 2 were examined and Exs.A.1 to A.20 were marked. On behalf of the defendants, DWs.1 and 2 were examined and Exs.B.1 to B.41 were marked.
12. The trial Court on appreciation of the evidence, oral and documentary, held issue Nos.1 to 5 in favour of the plaintiff and decreed the suit vide judgment and decree, dated 09.06.1997, directing the defendants to deliver the vacant possession of the suit schedule land within one month and also directed them to pay mesne profits of Rs.3.000/- to the plaintiff etc.,. Aggrieved by the same, the defendants filed appeal in A.S.No.74 of 1997 before the I Additional District Judge, Ranga Reddy District at L.B.Nagar, Hyderabad.
13. Before delving further into the discussion, it would be apt to state the earlier proceedings pertaining to this case before this Court.
14. The decree and judgment of the trial Court in O.S.No.382 of 1990 was challenged by the defendants in A.S.No.74 of 1997 on the file of I Additional District Judge's Court, Ranga Reddy District at Saroornagar and the same was allowed on 24.03.1999. 8 The plaintiff filed the second appeal before this Court. When this Court observed that the second appeal is not maintainable and given liberty to move appropriate application and the plaintiff filed CMA.No.1572 of 2008 before this Court. This Court allowed the said CMA setting aside the order of remand in the suit to the trial Court as the same is not tenable and further directed the appellate Court to dispose of the appeal within a period of three months. Accordingly, the first appeal was disposed of by the appellate Court vide judgment and decree dated 29.02.2012, which is under challenge in the present second appeal.
15. The learned I Additional District Judge, Ranga Reddy District at L.B.Nagar has framed the following points for consideration:
i) Whether the plaintiff is entitled for recovery of possession of the suit schedule property?
ii) Whether the suit for recovery of possession without declaration is maintainable in law?
iii) To what relief?
16. On re-appreciation of the entire evidence, the appellate Court allowed the appeal setting aside the judgment and decree, dated 09.06.1997, in O.S.No.382 of 1990 passed by the trial Court. 9
17. Feeling aggrieved and dissatisfied, the plaintiffs filed the present second appeal.
18. This Court admitted the second appeal on the following substantial questions of law:
1. Whether the findings of the appellate Court are perverse and based on no evidence?
2. Whether the jurisdiction of Civil Court is barred under Section 29 of the Inam Abolition Act, in considering the validity of the Occupancy Right Certificate issued under the Act?
3. Whether a suit for recovery of possession is maintainable without seeking declaration of title even though defendants trace their source of title from the plaintiff?
19. Learned counsel for the appellants submitted that the findings of the appellate Court are contrary to the evidence on record and on facts and law. He submitted that the appellate Court grossly erred in finding that the respondents perfected their title by way of adverse possession and resisted the suit for recovery of possession filed by the appellant. He has submitted that the Court below has not considered the provisions of Inam Abolition Act, while considering the validity of occupancy right certificate issued under the said Act. Learned counsel further submitted that the finding of the appellate Court that the suit for recovery of possession is not 10 maintainable in the facts and circumstances of the case without seeking declaration of title is legally incorrect. He further submitted that the appellate Court has not appreciated the evidence and law properly and rendered the perverse findings. Hence, he prays to set aside the same and allow the appeal. Learned counsel has placed reliance on the following decisions:
1. Chatti Konati Rao v. Palle Venkata Subba Rao1, wherein the Apex Court at para Nos.12 and 3 held as under:
12. We have bestowed our thoughtful consideration to the submission advanced and we do not find any substance in the submission of Mr Bhattacharyya. What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea, etc. have been the subject matter of decision in a large number of cases. In T. Anjanappa v. Somalingappa [(2006) 7 SCC 570] , it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows: (SCC p. 577, para 20)
"20. It is well-recognised proposition in law that mere possession however long does not necessarily mean 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 1 (2010) 14 Supreme Court Cases 316 11 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."
13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] . It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. SCC para 11 of the judgment which is relevant for the purpose reads as follows: (SCC p. 785) "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 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 favour. 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 v. Raj Kumari Sharma [(1996) 8 SCC 128] .)"
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2. S.M.Karim v. Mst.Bibi Sakina2, wherein the Apex Court at para No.5 held as under:
" As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. The High Court did not accept this case. Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession,for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made andproved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two courts below. The plea of adverse possession is raised here. Reliance is placed before us on Sukan Das v. Krishanand(ILR 32 Pat 353) and Sri Bhagwan Singh and others v. Ram Basi and others( AIR 1957 Pat 157) to submit that such a plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case 2 AIR 1964 Supreme Court 1254 13 must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad [A.I.R. 1940 P.C. 202], the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea.
3. Narasamma v. A.Krishnappa (Dead) through Lrs.3, the Apex Court at para Nos.32, 34, 35 and 37 held as under:
32. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.
33. In Karnataka Board of Wakf case [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779, para 11] , it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "... The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced."
34. The aforesaid judgment in turn relied upon the judgment in Mohan Lal [Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639] , which observed in para 4 as under: (SCC pp. 640-41) "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 thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to 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 3 AIR 2020 Supreme Court 4178 14 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."
35. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. [P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59]
37. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1].
4. C.Natarajan v. Ashim Bai4, wherein, the Apex Court at para No.18 held as under:
18. In S.M. Karim [AIR 1964 SC 1254 : (1964) 6 SCR 780] this Court was considering a question of benami as also adverse possession. In the aforementioned context, it was opined: (AIR p.
1256, para 5) "5. ... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad [AIR 1940 PC 202] the Judicial Committee did not accept an 4 AIR 2008 Supreme Court 363 15 alternative case based on possession after purchase without a proper plea."
20. On the other hand, learned counsel for the respondents submitted that the appellate Court has rightly appreciated the entire evidence, oral and documentary and set aside the judgment and decree of the trial Court. He has further submitted that the respondents have been in possession of the suit schedule land right from 1967 and the revenue record would fortify their contention. He also submitted that the appellate Court has rightly held that in view of long possession of more than twelve years, the respondents perfected their title by adverse possession. He has further submitted that the suit of the plaintiff is not maintainable without seeking the relief of declaration of title. He has further submitted that there are no merits in the appeal. Hence, he prayed to dismiss the appeal. Learned counsel has placed reliance on the following decisions:
1. Ananthula Sudhakar v. P.Buchi Reddy5, wherein, the Apex Court at para No.12 held as under:5
Laws (SC) 2008 3 175 16 " We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
2. Narendra Kumar Tripathi v. Karuna Auddy6, wherein the Apex Court at para No.2 held as under:
" ......The High Court has non-suited the appellant who was the plaintiff in the trial court on the ground that the plea of adverse possession cannot be used as a sword by the plaintiff and has relied upon the judgment of this Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] . This judgment has been specifically overruled by a three-Judge Bench of this Court in Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] , wherein it has been 6 Laws (SC) 2019 12 109 17 held as under: (Ravinder Kaur Grewal case [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] , SCC pp. 777-78, paras 62-63) "62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession.
By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit."
63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession."
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3. Commissioner of Survey, Settlements and Land Records, A.P., Hyderabad v. Kunsam Saranarayana7, wherein, the Apex Court at para No.3 held as under:
3. Before the Division Bench of the High Court, it appears the principal contention that was canvassed was that the ryotwari patta dated 3-10-1974 in respect of the land measuring 28 acres and 82 cents was a fraudulent and spurious document.
It was asserted that no patta had ever been granted to the respondents and that the same had been manipulated with ulterior motives. In view of the stand taken by the appellant before the High Court, and the counter-stand of the respondents, the Division Bench, after taking note of the provision of the Act, issued the following directions:
"(1) The Government represented by the appropriate authority shall file a suit within three months from the date of receipt of this order under Section 14 of the Act against the petitioners challenging the genuineness of the ryotwari patta allegedly granted to the petitioners on 3-10-1974, by the Tahsildar, Narsipatnam in respect of acres 28-
82 cents of land in S. Nos. 1, 5, 7, 8, 9, 12, 15, 18, 20, 22 and 23 situated in Gopalapatnam Village, Visakhapatnam District. (2) The petitioners shall prove their claim regarding the genuineness of the patta in the aforementioned suit directed to be filed. (3) Independent of the suit directed to be filed by the State Government as above mentioned, the petitioners shall also file a separate suit against the Government after complying with the necessary formalities of giving notice etc., claiming compensation or damage in respect of acres 28-82 cents of land above referred and 'Veeraparaju Kathu'. The suit should be filed within a period of 4 months from the date of receipt of this order.
(4) The suit filed by the Government as well as the petitioners in accordance with the above directions shall be entertained by the court and both of them shall be tried jointly. Considering the long-standing claims the court should make every possible endeavour to dispose of both the suits within a period of nine months from the date of institution of suits.
7 AIR 1997 Supreme Court 3867 19 (5) If the civil courts should uphold the genuineness of the patta, a decree would be passed by the civil court granting damages or compensation as may be considered appropriate on such basis as may be found reasonable by the civil court.
(6) It is needless to state that the Government as well as the petitioners will be entitled to seek further remedies if they are aggrieved by the judgment and decree of the civil court."
21. The plaintiff's case is that the suit schedule land is an Inam land, he is Inamdar and he was issued occupancy certificate from the Inam Tribunal vide proceedings No.L/330/1986. The defendants have illegally occupied the suit schedule property on 20.06.1986. The defendants in the earlier suit i.e. in O.S.No.61 of 1982, filed against one Police Balreddy on the file of District Munsiff, Medchal, accepted that the plaintiff is the owner of the suit schedule land. The plaintiff filed the present suit basing on the occupancy certificate for recovery of possession of suit schedule land from the defendants.
22. It is the case of the defendants that the father of the defendants was personally cultivating the suit schedule land and he was in possession of the same since 1955. They have admitted that it is originally Inam land and also admitted that the plaintiff was granted a patta under the Andhra Pradesh (Telangana Area) Inams Abolition Act, 1967 and sold his right to one Police Balreddy 20 in the year 1969, who, in turn sold his rights to these defendants under an unregistered agreement of sale, dated 20.09.1979. The defendants continued to be in possession by paying the land revenue. It is stated that the plaintiff applied to the Tahsildar vide B6/4186/83 for change of name of the revenue records by deleting the name of defendants, but the said application was dismissed by order dated 25.05.1985 upholding the possession of the defendants. The defendants claim that right of the plaintiff is extinguished long ago, in view of their adverse possession over the suit schedule land. The defendants admitted that despite the sale under the unregistered document by Police Balreddy to these defendants, he tried to interfere with their possession, they filed suit in O.S.No.61 of 1982 as stated above for declaration and injunction and the plaintiff herein filed I.A.No.533 of 1982 for impleading him as party in the said suit and the same was dismissed. However, the suit was ultimately dismissed against Police Balreddy on the ground that only xerox copies of the documents were filed and no oral evidence was adduced to prove his interference. The defendants claimed that their father was in possession of the suit 21 schedule land long before 1954-55 and subsequent to the death of their father, they have been in continuous possession of the suit schedule land. The defendants further contended that the title and right of Inamdars have been abolished and vested in the State, physical possession and personal cultivation of the land is being continued. The defendants are in continuous possession and cultivating the suit schedule land and the certificate granted in favour of the plaintiff, dated 26.05.1989, is null and void and it does not create any title.
23. The admitted facts of the case are that the suit schedule land is an Inam land. It is also admitted that the plaintiff is the owner of the suit schedule land and he was issued Ex.A.2 occupancy certificate. It is the case of the defendants that the plaintiff sold his property in favour of one Police Balreddy in the year 1969, who in turn sold his rights to these defendants under an unregistered agreement of sale dated 20.09.1979. From the pleadings of the defendants in the written statement, it can be safely concluded that the plaintiff is the owner of the suit schedule land. 22
24. The defendants stated that they filed O.S.No.61 of 1982 on the file of District Munsiff, Ranga Reddy District at Medchal for declaration and injunction against the said Police Balreddy. It appears from the evidence, oral and documentary, that the defendants have not proved that the plaintiff sold his rights over the suit schedule land in favour of Police Balreddy, who, in turn sold his rights in favour of the defendants. It is also evident that the defendants throughout contend that they are in possession of the suit schedule land, but they have not adduced any evidence as to how they came into possession and in what capacity, they are in possession of the same.
25. It emerges from the judgment of the appellate Court that the appellate Court has not properly appreciated the above said aspects.
26. Coming to the substantial question as to whether the jurisdiction of Civil Court is barred under Section 29 of the Inams Abolition Act in considering the validity of occupancy right certificate issued under the Act, it is relevant to refer to the Section 29 of the Inam Abolition Act, which is as under:
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" 29. Save as otherwise provided in this Act, no order passed by the Collector or by the Special Tribunal under this Act shall be liable to be cancelled or modified except by the High Court as aforesaid or be questioned in any Court of law."
27. Section 29 of the Inams Abolition Act declares that decision of authority subject to the orders of High Court cannot be called in question by any other authority or even in a civil Court. However, in Commissioner of Survey, Settlements and Land Records, A.P., Hyderabad's case (7 supra), the Apex Court infact held that when the decision of the Tahsildar, Revenue Court or a Collector in granting patta is fraudulent or a spurious document, the jurisdiction of the civil Court is not barred.
28. Coming to the facts of the present case, it is not the case of the defendants that Ex.A.2 occupancy certificate obtained by the plaintiff is a fraudulent or spurious document. It is evident from the record that the defendants filed Ex.B.41 which is an order issued by the Joint Collector in the proceedings initiated by the defendants against the issuance of occupancy certificate in favour of the plaintiff under Ex.A.2 by preferring the appeal with condonation of delay and the same was dismissed. Therefore, 24 unless and until, it is proved that the authority who has issued Ex.A.2 occupancy certificate has got no competency to issue the same or the same is fraudulent or spurious document and unless and until, it is cancelled by proper forum, the validity of Ex.A.2 document would prevail. It is evident that the defendants did not file any suit or initiated separate proceedings before the competent forum to cancel the same on the ground that the same was issued without following due procedure. Therefore, the Ex.A.2 occupancy certificate issued in favour of the plaintiff establishes prima facie title in his favour over the suit schedule land.
29. Coming to the third substantial question of law, learned counsel for the defendants contended that the suit filed for recovery of possession is not maintainable without seeking declaration of title. He has relied on the law laid down in Ananthula Sudhakar's case (5 supra). As per the ratio laid down in the said judgment, a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of the plaintiff to the property. In the instant case, it is an admitted fact that the plaintiff is the owner of 25 the suit schedule land. Though it is pleaded by the defendants that the plaintiff sold his rights in the suit schedule land to one Police Balreddy and said Balreddy in turn sold his rights to them under an unregistered agreement of sale, dated 20.09.1979, but they failed to get those documents marked and proved that they purchased the suit schedule land from said Balreddy either by examining him or getting them marked as exhibits.
30. Apart from that, though the defendants filed O.S.No.61 of 1982 against said Balreddy basing on the sale deed, dated 20.09.1979, the same was dismissed on the ground that they have not chosen to file the original conveyance deed properly stamped and proved the same. There is no dispute that plaintiff is the owner of the suit schedule land and he has got clear title supported by the oral and documentary evidence. When the defendants without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for him to file suit for declaration. Therefore, the suit filed for recovery of possession is maintainable without seeking declaration of title. 26
31. Coming to the other contention with regard to the findings of the appellate Court that the possession of the defendants over the suit schedule land under unregistered agreement of sale is adverse to the plaintiff and they perfected their title by remaining in possession for more than 12 years, learned counsel for the appellants submitted that the said finding of the appellate Court is perverse and a party cannot simultaneously take plea of title and adverse possession, the same would amount to taking contradictory pleas. He has placed reliance on the judgment of Narasamma's case (3 supra), wherein the Apex Court while dealing with the question whether simultaneously a plea taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas, by referring to the earlier judgments, held that plea of title and adverse possession cannot be taken simultaneously and from the same date, as it would amount to taking of contradictory pleas. In the instant case, the plea of the defendants that they have purchased the suit schedule land from one Police Balreddy under an unregistered agreement of sale and simultaneously pleaded that their possession is adverse and they perfected their title by way of 27 adverse possession, which is more than 12 years. It is evident that first plea is inconsistent with the second plea. As held by the Apex Court in Karnataka Board of Wakf v. Govt. of India8, a person pleading adverse possession has no equities in his favour. 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. Therefore, when the defendants claim adverse possession, burden is on them to show that on what date they came to possession and what was the nature of possession, whether the factum of possession was known to the other party, how long his possession has continued and his possession was open and undisturbed as held by Apex Court in Mahesh Chand Sharma v. Raj Kumari Sharma9. Undisputedly, the defendants failed to plead only adverse possession and in fact, they have taken contradictory pleas and also failed to establish the essentials for grant of adverse possession as already noted.
32. On consideration of the oral and documentary evidence, I find that the appellate Court has not properly re-appreciated the 8 (2004) 10 SCC 779 9 (1996) 8 SCC 128 28 evidence in proper perspective, keeping in view the legal position discussed above. Therefore, I am of the view that the appellate Court erred in concluding that the defendants perfected their title by remaining in possession for more than 12 years and that the suit for recovery of possession without declaration is not maintainable. The said findings of the appellate Court are based on misreading and improper appreciation of the evidence and against the settled principles of law, which warrants interference by this Court under Section 100 of C.P.C.
33. In the result, the second appeal is allowed. The judgment and decree of the appellate Court in A.S.No.74 of 1997 dated 29.02.2012 is hereby set aside confirming the judgment and decree of the trial Court in O.S.No.382 of 1990, dated 09.06.1997. No order as to costs. As a sequel, interlocutory applications, if any pending in this second appeal, shall stand closed.
________________________ A. SANTHOSH REDDY, J.
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