Andhra HC (Pre-Telangana)
Kalal Thimmanna And Ors. vs Krishna Reddy And Anr. on 23 February, 2004
Equivalent citations: AIR2004AP390, 2004(3)ALD645, 2004(4)ALT136, AIR 2004 ANDHRA PRADESH 390, (2004) 3 ANDHLD 645, (2004) 4 ANDH LT 136, (2004) 4 CIVLJ 443
JUDGMENT B.S.A. Swamy, J.
1. Both the appeals can be disposed of by a common Judgment, since the disputed property is one and the same and it is between the same parties.
2. The parties are referred as arrayed in O.S. No. 54 of 1986 for the sake of convenience.
3. The defendants in O.S. No. 54 of 1986 initially filed O.S. No. 25 of 1986 on the file of District Munsif Court, Atmakur, seeking permanent injunction restraining the plaintiffs in this suit (Defendants therein) from interfering with their possession over the suit schedule properties (i.e.,) Ac.6-08 gts., of land in Sy.No. 138/A and in Sy.No. 13S/AA for an extent of Ac.6-07 gts., of Motlampally Village, Atmakur Revenue ' Mandal, Mahabubnagar District by contending that they purchased these properties for a consideration of Rs. 1,800/-about 25 years back and since, then they are in peaceful possession and enjoyment of the properties. They further stated that their sale deed was lost due to heavy rains in the year 1964 and therefore the original sale deed could not be filed in the Honourable Court, and the defendants (i.e.,) Kalal Thimmanna and Pedda Ramulu sons of late Thimmanna and Balachandrudu, who have no right over the suit schedule properties, are trying to dispossess them taking advantage of the entries in Column No. 11 of the pahanies showing the name of their paternal uncle-Hanmanthu. They also contended that they are in continuous possession and enjoyment of the suit schedule properties for more than 25 years and perfected their title by adverse possession. Having received the suit notices, the plaintiffs (i.e.,) Ashamma wife of late Hanmanthu, her brother-in-laws Thimmanna and Balachandrudu son of Thimmanna (i.e.,) Defendants 2 to 4 in O,S. No. 25 of 1986 filed O.S. No. 54 of 1984 by contending that they are the absolute owners and possessors of the land and in the year 1969 or so they have leased out the lands to the defendants herein (i.e.,) plaintiffs in O.S. No. 25 of 1986 on crop share basis. Since they are living like one family member the plaintiffs did not care to take share in the rent or crop from the suit land, but defendants used to give some grains now and then to the plaintiffs. The defendants perhaps at the behest of some anti-social elements in the village filed O.S. No. 25 of 1986 seeking permanent injunction restraining them from interfering with his possession and enjoyment of the suit schedule properties and obtained injunction orders by filing some pahanies, which were got prepared in collusion with the village patwari. Hence, they sought for declaration that they are the owners of the suit lands bearing Sy.No-138/A and in Sy.No. 138/AA admeasuring Ac.6-08 gts., and Ac.6-07 gts. of land respectively situated in Motlampally Village, Atmakur Revenue Mandal, Mahabubnagar District and to put them in possession of the suit schedule properties by evicting the defendants and for other reliefs.
4. Basing on the above pleadings the Court below framed the following issues in O.S. No. 25 of 1986:
(1) Whether the plaintiffs are entitled for permanent injunction?
(2) To what relief?
The Court below framed the following issues in O.S. No. 54 of 1986:
(1) Whether the plaintiffs are entitled for declaration as owners of the suit property?
(2) Whether the defendants did not purchase the suit property and in alternative whether they did not perfect the title over the suit property by way of adverse possession?
(3) Whether the plaintiffs entitled for the possession of the suit property?
(4) To what relief?
Both the suits were clubbed and the evidence was recorded in O.S. No. 54 of 1986.
5. Plaintiff No. 3 was examined as P.W.1 and one Harijan Gattanna was examined as P.W.2 and Exs.A1 certified copy of the pahani for the years 1983-84, Ex.A2 temporary injunction order dated 6.6.1986 were marked on behalf of the plaintiffs. On behalf of the defendants, Defendant No. 2 Mr. Ramchander Reddy was examined as D.W.1 and one Mr. Kista Reddy alleged to be the scribe of the private sale, set up by the defendants was examined as D.W.2 and documents Exs.B1 to B20 were marked as exhibits. Ex.B.15 claimed to be the rythwari passbook and all other exhibits are pahanies for various years.
6. On appreciation of evidence, both oral and documentary, the Trial Court decreed O.S. No. 54 of 1986 and dismissed O.S. No. 25 of 1986 by holding that the defendants failed to prove the oral sale set up by them as well as adverse possession.
7. Aggrieved by the said judgment and decree, the defendants carried the matter in appeal to the Sub-Court, Gadwal by filing A.S. No. 4 of 1993 against the Judgment and Decree in O.S. No. 25 of 1986 and A.S. No. 2 of 1993 against the Judgment and Decree in O.S. No. 54 of 1986. The appellate Court reversed the judgment of the Trial Court by observing that in view of the admitted fact that the Defendants 1 and 2 are in open and continuous possession over the suit lands to the knowledge of the plaintiffs since 1968-69, it is for the plaintiffs to establish that the said possession of the defendants was permissive and then only the burden of proof of adverse possession shifts to the defendants, or the plaintiffs have to prove that they are in possession of the property within 12 years in view of the claim of the defendants that they are in open and continuous possession of the land for about 25 years. The learned Judge while recording such a finding relied on certain decisions of this Court as well as Supreme Court and other High Courts.
8. These two Second Appeals are filed questioning the correctness of the judgment of the Appellate Court.
9. Now the only question that falls for consideration in these Second Appeals would be "whether the plaintiffs have to prove that the defendants are in permissive possession of the property after rejecting their claim that they have perfected their title to the property by adverse possession".
10. Referring to the judgment relied on by the appellate Court, I have to stab that the judgments on which the appellate Court placed reliance based on Article 142 of the Schedule under Indian Limitation Act, 1908, which is extracted hereunder:
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"142 For possession of immovable Twelve The date of the property when the plaintiff, years dispossession while in possession of the or discontinuance."
property, has been dis-
possessed or has discon-
tinued the possession.
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But there is a change in law under the new Limitation Act, 1963, which came into force on 5th October, 1963. Corresponding Article in the Schedule under the new Act is Article 65, which is extracted hereunder:
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"65. For possession of Twelve When the possession of immovable property years the defendant becomes or any interest therein adverse to the plaintiff."
based on titile.
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From the above, it is seen that under the old Limitation Act, the period of limitation commences from the date of dispossession or discontinuance of the possession by the plaintiffs, whereas under the new Act, the period of limitation commences only after the possession of the defendant becomes adverse to the plaintiff. If that is so, the question that falls for consideration would be "when the possession of the defendant became adverse to the plaintiff".
11. A Division Bench of this Court in a decision reported in Soham Modi v. Special Court under A.P. Land Grabbing (Prohibition) Act, at Hyderabad, (DB), elaborately considered in Para 31, when the possession of opposite party becomes adverse.
"31. Adverse possession is a mixed question of facts and law which has to be decided on the material placed by the parties. It commences in wrong and maintains against a right. To establish adverse possession, the burden of proof lies on those who sets up adverse possession. Adverse possession means, possession by a person holding the property on his own behalf or on behalf of some person other than the true owner having a right to immediate possession, provided the true owner is not under a disability of incapable of suing. The requirement of adverse possession are that "the possession must be nec vi nec clam nec precario which means the possession required must be adequate in continuity, in publicity and in extent which one must establish. It implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. It contemplates hostile possession namely possession expressly or impliedly denying the title of the true owner. Here possessor must prove, that he is not acknowledging the right of others but denies the same. To make a claim on the basis of adverse possession, such possession shall be hostile, under a claim or colour of title, actual, open, notorious, exclusive and continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possessor by the operation of the limitation of action. If an owner of the land having notice of the fact that his property is occupied by another who is claiming dominion over it, nevertheless stands-by during the entire statutory period and makes no effort to eject the claimant or otherwise protect his title, ought not to be permitted, for reasons of public policy, to maintain an action thereafter for the recovery of his property land. In other words the establishment of title by adverse possession is said to be on the basis of the theory of presumption that the owner has abandoned the land to the adverse possessor. It is sufficient that the possession should be overt and without any attempt at concealment so that the person against whom time is running ought if he exercises due vigilance to be aware of what is happening."
From the above it is seen that adverse possession means, possession by a person holding the property on his own behalf or on behalf of some person other than the true owner having a right to immediate possession, provided the true owner is not under a disability or incapable of suing. Hostile possession contemplates possession expressly or impliedly denying the title of the true owner and the possessor must prove that he is not acknowledging the right of others but denies the same.
12. Nextly, in this decision their Lordships observed establishment of title by adverse possession should be on the basis of the theory of presumption that the owner has abandoned the land to the adverse possessor. It is sufficient that the possession should be overt and without any attempt at concealment so that the person against whom time is running ought if he exercises due vigilance to be aware of what is happening.
13. The change in the law was considered by this Court in a case reported in Hussain Begum v. Madu Ranga Rao, , and held in paras 18 and 19 as follows:
"8. To establish the plea of adverse possession, undoubtedly the burden is upon the second defendant. He should show by cogent evidence that he has been in possession of the suit property for more than the statutory period of 12 years. Possession per se is not sufficient to prescribe tide by extinguishments of the title of the real owner. The classical requirement as laid down by the Apex Court in the case of Lakshmi Reddy v. Lakshmi Reddy, , is nec vi nec clan and nec precario. The possession required must be adequate, in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. There is no need for this Court to quote the relevant precedents on the point of the Apex Court and various Courts in the country as the position has been well established. The possession of Defendant No. 2 over the suit property is only that of a trespasser. Mere possession of even a trespasser will not constitute adverse possession unless accompanies by assertion of hostile title. The relevant article which governs the period of limitation and which is germane for consideration in this regard is Article 65 of the Limitation Act. Article 65 reads as follows:
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Description of Suits Period of Time from which
limitation period beings to run
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65. For possession of Twelve When the possession of immovable property or years the defendant becomes any interest therein adverse to the plaintiff.
based on title.
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19. As can be seen from the third column of the schedule the starting point of limitation is obviously the point when the possession becomes adverse to the real owner. Now, in view of the established fact that the second defendant is in possession of the property and the possession of the second defendant is that of a tress passer and the real owners of the suit property are the plaintiffs, the crucial question that crops up for consideration at this juncture is as to when the possession of the second defendant became adverse to the plaintiff. If that could be established that becomes the starting point of limitation to reckon the period of limitation preceding to the date of filing of the suit. The learned Counsel for the respondents relied upon a judgment of this Court reported in Pedda Maddileti v. Mandli Sanjeevu, 1964(1) An.WR 330. Obviously, that was a case, which is prior to the advent of the new Limitation Act of 1963. The contention of the learned Counsel for the respondents that the plaintiffs cannot sleep over the matter and should approach the Court within a period of limitation cannot be countenanced in view of the change of position of law from the relevant Article under the old Limitation Act, 1908 to the relevant provision under the new Act of 1963. The learned Counsel for the appellants relied upon a judgment of the Apex Court in Indira v. Arumlugam, , wherein the Apex Court held as follows:
"Once title is established on the basis of the relevant documents and other evidence, unless the defendant proves the adverse possession of the prescriptive period, plaintiff cannot be non-suited. It clearly casts the burden upon the defendants."
From this it is seen when the possession of the second defendant becomes adverse to the plaintiff. If that could be established that becomes the starting point of limitation to reckon the period of limitation preceding to the date of filing of the suit.
14. In Annasaheb Bapusaheb Patil v. Balwant Alias Balasaheb Babusaheb Patil (Dead) by LRs. , the Supreme Court considered the change in law held in paras 12 and 13 as hereunder:
"12. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e., a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
13. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
From this it is seen that under newly introduced Article 65 the burden is shifted on the defendant to prove adverse possession affirmatively (i.e.,) by clear and unequivocal evidence he has to prove that his possession was hostile to the real owner and amounted to denial of his title to the property. Nextly a person having entered into possession cannot be allowed to set up the plea of adverse possession by pretending that the real owner had no title at all.
15. In the case on hand, the specific plea raised by the defendant was that he purchased the property under a private sale in 1969, but he says that the sale deed was lost in rains. In fact, both the Courts disbelieved his plea that he purchased the property under a sale deed. Having set up title to the property under a sale, he cannot turn round and contend that he perfected his title to the property by adverse possession. In fact all the pahanies filed by him from 1969 onwards till 1989-90 (i.e.,) even after the suit is filed the name of the pattedar was clearly shown in Column No. 11. In fact, admittedly, these are all certified copies said to have been given by the officer concerned on the basis of public document. But a look at these pahanies will clearly show that the survey number from the year to year was changed, the extent of the land was not even uniform. As far as Ex.B.15, the ryotwari passbook is concerned, no one was examined to prove that this passbook was issued by following the procedure prescribed under Record of Rights Regulations. Admittedly, Record of Rights Regulations came into force in the year 1971 and a bare look at this passbook will amply prove that the papers of this passbook are atleast hundred years old are in 'such a torn condition and most of the pages were pasted with papers. Further, in this passbook the name of the pattedar was shown as Krishna Reddy (i.e.,) Defendant No. 1. Though the signature of Deputy Tahsildar is found on this passbook, it is not known when he signed on this passbook. At any rate, he might have signed before the suit is filed in this Court. But the pahanies that were filed upto 1990 shows the name of Hanumanthu in pattedar column (i.e.,) Column No. 11. Hence, no importance can be given for either Ex.B.15 or the pahanies. On the other hand, the pahanies clearly establish that Mr. Hanumanthu was continuously shown as the owner of the property till 1989-90.
16. In Jugeshar Tewari v. Sheopujan Tiwary, AIR 1986 Patna 35, a learned Single Judge of Patna High Court held as follows:
" ....It may be remembered that the suit was instituted after the coming into force of the Lim. Act of 1963 and the plaintiffs were not required to prove their subsisting title in view of the change in the law of limitation. The Trial Court has stated "There is no evidence that the plaintiffs have remained in possession of the suit lands in spite of the auction sale". It is not the defendants' case that they have purchased the land under auction sale. The trial Court has further said that the plaintiffs have not been able to prove that they were first dispossessed in the year 1969 and they have not been able to produce rent receipts for the entire area of the disputed land. From all these I am satisfied that the defendants have not been able to discharge their onus cast upon them in support of their claim of acquiring Schedule 5 land by virtue of being in adverse possession and, therefore, the plaintiffs' suit for the plots mentioned in Schedule 5 of the written statement of Defendant No. 2 could not be dismissed. The onus has been cast upon the plaintiffs to prove their subsisting title, which has vitiated the judgment on this score."
From this it is seen that after change in law in 1963 the burden has shifted to the defendant to prove that he perfected the title by adverse possession and there is no obligation on the plaintiff to prove that they are in possession within the statutory period of 12 years.
17. In opposition Mr. Raju cited a judgment of this Court reported in Pedda Maddileti v. Mandli Sanjeevu, 1964 (1) An.WR 330, Admittedly, this case has arisen under the old Act and there is substantial change in the legal position. This judgment will not be of any help to him.
18. He also cited a decision of the Supreme Court reported in Arumugham (Dead) by LRs. v. Sundarambal, , for, the proposition that the High Court shall not interfere with the finding of fact recorded by the appellate Court in Second Appeal under Section 100 CPC, only on substantial questions of law alone the High Court is empowered to interfere with the judgments of the Courts below.
19. There cannot be any dispute with regard to the proposition. But in this case, the appellate Court without noticing the change in law, relying on the earlier view, reversed the well considered judgment of the Trial Court and dismissed the suit O.S. No. 54 of 1986 and granted injunction. Hence, I do not find any merit in the contention raised by the Counsel.
20. In the result, both the appeals are allowed by setting aside the judgment and decree of the Appellate Court in AS No. 4 of 1993 and AS No. 2 of 1993 on the file of Subordinate Judge, Gadwal, arising out of OS No. 25 of 1986 and OS No. 54 of 1986 respectively on the file of District Munsif, Atmakur, and the Judgment and Decree of the Trial Court is restored. In the circumstances, there shall be no order as to costs.