Andhra Pradesh High Court - Amravati
Katuri Rambabu vs Gottumukkala Venkateswara Raju on 3 March, 2020
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
HON'BLE SRI JUSTICE M. VENKATA RAMANA
APPEAL SUIT Nos.182 of 2005 & 1192 of 2017
COMMON JUDGMENT:
Defendants 1 to 3 are the appellants. They preferred A.S.No.182 of 2005 against granting relief in favour of the respondents 1 to 4 and against them in the suit. They also presented A.S.No.1192 of 2017 against dismissal of their counter claim in the same suit. Both these appeals are being disposed of by this judgment now. Respondents 1 to 4 are the plaintiffs and respondent No.5 is defendant No.4. He is stated to be not a necessary party to this appeal.
2. During pendency of the appeal, first respondent and fourth respondent died. The second respondent is the LR of deceased 4th respondent and it was recorded in this appeal. 6th respondent is the LR of first respondent.
3. The parties shall be referred to hereinafter as arrayed in the suit for convenience.
4. The plaintiffs laid the suit against the defendants in respect of the plaint schedule property. It is an extent of 800 square yards of open site in R.S.No.97/3 along with super structure thereon at Ayodhya Nagar, Vijayawada, out of 1200 square yards stated to contain A1, B1, C1 and D1 plots of 300 square yards each shown within the boundaries described in the plaint schedule, for the following reliefs:
"(a) Directing the defendants 1 to 3 to vacate and deliver vacant possession of an extent of 800 square yards of site and super-
structures if any in R.S.No. 97/3 said to be in the possession of the defendants with unspecified boundaries as per the judgment and decree in O.S.No. 967/90.
(b) for a declaration that the judgment and decree made in O.S.No.967/90 on the file of Principal District Munsif Court, Vijayawada dated 27.9.1996 is not binding on the plaintiffs MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 2
(c) for a permanent injunction restraining the defendants 1 to 3, their men and agents from ever raising any structures in the plaint schedule property in any manner
(d) for costs of the suit and
(e) for grant of such other relief or reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case."
5. A plan is appended to the plaint depicting this plot. It shall be hereinafter referred to as 'suit plot' for convenience.
6. It is desirable to consider the pleadings set out by the parties.
7. The plaintiffs claimed that they have been absolute owners with right, title and interest of the suit plot having had purchased the same for valuable consideration from original owner Smt.Namburu Lakshamma under registered sale deeds. They further stated that they negotiated with the original owner, through her GPA, viz., the fourth defendant in the year 1990 itself to purchase this property and that there was delay in obtaining permission from the Special Officer and competent authority under Urban Land Ceiling Act, Vijayawada. According to the plaintiffs, it was secured on 31.03.1995 and that thereafter they entered into registered sale deeds in respect of the suit plots.
8. The plaintiffs further stated in the plaint that they were not informed of pending suit in O.S.No.967 of 1990 and the disputes between defendants 1 to 3 on one hand and the fourth defendant on the other in respect of the suit plot. In the above suit, according to the plaint averments, the fourth defendant colluded with defendants 1 to 3 filing a written statement to suit their convenience and thus a decree for permanent injunction was obtained in that suit against the fourth defendant. The plaint averments are also that the first plaintiff also attempted to join as a party to the above suit, which was not considered MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 3 and even otherwise, the outcome in that suit is not binding on them. It is also averred in the plaint that possession of this property was delivered to them immediately upon execution of the sale deeds and that the defendants 1 to 3 without any manner of right, on account of the judgment in the above suit tried to raise superstructures in the suit plot highhandedly upon grabbing this property. In the above circumstances, though defendants 1 to 3 were not in actual possession of any of the suit plots, in view of the judgment and decree in the above suit, as per the plaint averments, the present suit had to be laid for the relief so claimed.
9. The first defendant filed a written statement adopted by defendants 2 and 3 disputing the claim of the plaintiffs. They asserted in the written statement that they were in possession and enjoyment of the suit plot well prior to the year 1990 for about 15 years and that the decree and judgment in O.S.No.967 of 1990 is binding on the plaintiffs, since the 4th defendant is the GPA of their vendor/original owner, who contested the above matter. They further claimed that the suit plot is a part of Government Poramboke and that they have raised structures therein, who have been in possession and enjoyment of this property. They also claimed in their written statement that they perfected their right, title and interest to the suit plot by adverse possession on account of their continuous possession well over statutory period and enjoyment of this property, to the knowledge of everyone including the plaintiffs, denying that the plaintiffs were ever in possession of the suit plot. It is further stated in the written statement that the plaintiffs suppressed pendency of O.S.No.463 of 1996 on the file of the Court of learned I Additional Subordinate Judge, Vijayawada. Thus disputing right, title and interest claimed by the plaintiffs and that even their alleged predecessors MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 4 did not have any such right in the suit plot, they stated that they were not raising any constructions or structures in the suit plot. They also stated in the written statement that the sale deeds under which plaintiffs have been claiming their right, title and interest of the suit plot are all nominal, collusive and concocted for the purpose of present suit and that the recitals therein are all false. They further stated in the written statement that the suit is bad for mis-joinder of parties. Thus stating, they sought dismissal of the suit.
10. Stating as such in the written statement, the defendants also raised a counter-claim requesting for declaration of their right, title and interest on the ground that they perfected by adverse possession to the suit plot and for consequential permanent injunction against the plaintiffs 1 to 4 from interfering with their possession and enjoyment of the same.
11. The plaintiffs 1 to 4 filed rejoinder against the counter claim denying the plea of adverse possession raised by the defendants stating that the defendants did not specifically state the date from when they came into possession of the property, while asserting that the judgment and decree in O.S.No. 967 of 1999 is not binding on them wherein the question of title was not decided. They also stated that the principle of lis pendens did not affect the sale deeds in their favour in respect to the suit plot, which are legal and valid and that the appellants have raised a new plea setting up title in Smt. Namburi Lakshamma, the principal of the respondent No.5, as well as his grandmother.
12. Basing on the above pleadings, the following issues were settled for trial:
MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 5 "1. Whether the plaintiffs are entitled for a declaration that the judgment and decree in O.S.No.967 of 1990 are not binding on them?
2. Whether the plaintiffs are entitled for recovery of possession?
3. Whether the plaintiffs are entitled for permanent injunction as prayed for?
4. To what relief?
Additional issues:
1. Whether the claim of the defendants (Plaintiffs in counter claim) is barred by limitation?
2. Whether the defendants (Plaintiffs in the counter claim) perfected their title by way of adverse possession?
3. Whether the defendants (plaintiffs in the counter claim) are entitled for injunction as prayed for?
4. To what relief?"
13. On the basis of the evidence let-in by the parties, the trial Court decreed the suit in favour of the plaintiffs and against the defendants 1 to 3 as prayed including setting aside the judgment and decree in O.S.No.967 of 1990 on the file of the Court of learned Principal District Munsif, Vijayawada. The counter-claim of the defendants was dismissed. It is against this decree and judgment the present appeals are preferred.
14. Sri C. Raghu, learned counsel for the appellants, seriously assailing the decree and judgment under appeal basing on the effect of the decree and judgment in O.S.No.967 of 1990 in favour of the appellants and against the respondent no.5 and their alleged long possession, which has ripened into the title to the suit plot by adverse possession, requested to set aside the decree and judgment under appeal. It is also contended for the appellants that mere suit simpliciter for possession, when there is a serious dispute in respect of the title presented by the appellants, could not have been maintained.
MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 6
15. Sri S. Subba Reddy, learned counsel for the respondents 1 to 4 supported the judgment under appeal mainly referring to the shifting stands of the appellants in setting up right, title and interest to the suit plot once in favour of the Government and later in favour of Smt. Namburi Lakshamma, the admitted owner of this property. It is further contended by Sri Subba Reddy, the learned counsel, that there is no evidence on record to prove that the appellants were in possession and enjoyment of the suit plot from a definite and particular point of time to set up a plea of adverse possession against the respondents 1 to 4 and considering the fact that the appellants are not sure as to the owner of this property, their contention cannot lie. Defending the nature of the suit so filed and structured, it is stated that when the respondents 1 to 4 are claiming right, title and interest to the suit plot from the admitted original owner Smt.Namburi Lakshamma, it is not necessary that a relief of declaration in respect thereof should be sought by them. Thus, elaborating on the material, it is requested not to interfere with the decree and judgment under appeal.
16. The following points arise for determination in this appeal:
1. What is the effect of a decree for perpetual injunction granted in favour of the defendants 1 to 3 in O.S.No.967 of 1990 vis-à-
vis the claim of the plaintiffs, of right, title and interest to the suit plot alleged to have been acquired under Ex.A1 to Ex.A4?
2. Whether the defendants 1 to 3 perfected their right and title to the suit plot by adverse possession and against the interest of the plaintiffs 1 to 4 and their predecessor-in-title in respect of the same?
3. Whether relief of possession without praying for declaration of right and title, sought by the plaintiffs against the defendants 1 to 3 is proper and if such relief be granted?
4. Whether the relief of permanent injunction sought by the plaintiffs and the defendants 1 to 3 against each other in respect of the suit plot, be granted?
MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 7
5. Whether the defendants 1 to 3 are entitled for declaration of right to the suit plot, in the circumstances stated in the counter-claim?
6. To what relief?
POINT No.1:-
17. Smt. Namburi Lakshamma was the owner of the suit plot. She acquired an extent of 1200 Sq.yards in R.S.No.97/3 from her late husband Sri Namburi Subba Rao. An extent of Ac.0-73 cents was purchased by (1) Sri Namburi Subba Rao, Son of Sri Tataiah, (2) Sri Batchu Sriramulu, S/o. Sri Panakalu and (3) Sri Lakshmi Perumallu, S/o. Potti Subba Rao, under a registered sale deed dated 04.05.1946 (original of Ex.A7) from Sri Uppalapati Appala Raju and his sons Sri Venkata Ramaraju and Sri Seetharamaraju, for a valuable consideration of Rs.2,500/-, at Vijayawada.
There was a division of this land among the above stated purchasers. Out of it 1200 Sq.yards was allotted towards the share of Sri N. Subba Rao, husband of Smt. Namburi Lakshamma. She succeeded to this 1200 Sq.yards from her late husband, on his demise, under a Will.
18. This land was subject matter of declaration under Urban Land Ceiling Act and a proceedings was issued under the original of Ex.A10 on 31.03.1995 in respect thereof. The suit plot was sought to be sold by Smt. Namburi Lakshmamma to all the plaintiffs in separate extents of 300 Sq.yards each, through her GPA viz., the 4th defendant. These plots are shown in the plaint plan separately with distinct identity.
19. It is the specific case of the plaintiffs that this suit plot including the entire extent of 1200 Sq.yards belonged to Smt. Namburi Lakshamma and that the 4th defendant was her GPA. They also contended that the suit plot was purchased by them through the 4th defendant, MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 8 representing the original owner as her GPA. Ex.A9 is registration extract of this GPA in favour of the 4th defendant executed by Smt. N. Lakshamma.
20. The fact that this land is a private patta land belonging to the original owner Smt. Namburi Lakshamma, is established by the contents of Ex.A8 an extract of Adangal for fasli 1403. The name of pattadar as per Ex.A8 is Uppalapati China Lakshamma and in the year 1993, its entries recorded that there were houses in this land. Being an urban property at Vijayawada, such entries have to be accepted. Possibility of cultivation of this extent cannot be expected. It is also for the reason that the contents of Ex.A7 as before as the year 1946 clearly indicated that it was a land considered for the purpose of development of house sites. The contents of Ex.A8-Adangal, shall be considered along with Ex.A10-proceedings of Urban Land Ceiling Authority. They clearly indicate that this land is a private land and did not belong to the Government nor a part of Government Poramboke.
21. This factor is considered now, in as much as the defence of the defendants initially was that this land is a Government Poramboke. However, later on, they resiled from such stand, taking an altogether different stand admitting and confirming with this land originally belonged to Smt. N.Lakshamma and that she had acquired it from her late husband, who along with others had purchased a vast extent as stated in Ex.A7- Registration extract of sale deed dated 04.05.1946. Therefore, the later stand of the defendants is confirming the stand of the plaintiffs and in consonance with it. This later stand was taken when the defendants amended the plaint raising a counter-claim, in the year 2003 and when it was permitted in I.A.No.1075 of 2002, as per orders dated 28.03.2003. A more unequivocal stand of the defendants 1 to 3 in this respect is seen MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 9 from the deposition of the 1st defendant as D.W.1. He clearly stated in examination-in-chief itself supporting the case of the plaintiffs that Smt. N.Lakshamma being the owner of this property, which she had acquired from her husband Sri N. Subba Rao.
22. When once the defendants 1 to 3 admit the ownership of Smt. N.Lakshamma, particularly when this site under her ownership remained a vacant one, the possession of the same shall be deemed and presumed to be with her, being the title holder. The presumption in respect of vacant sites always goes with the title holder.
23. Purchase of the property under Ex.A1 to Ex.A4 by the plaintiffs, in this backdrop, from the 4th defendant, representing Smt. N.Lakshamma as her GPA, is perfectly in order.
24. In this context, the evidence of the 4th defendant as D.W.4 needs attention. He clearly supported sale of the suit plot in favour of the plaintiffs and for consideration. He is none other than the grandson of Smt. N.Lakshamma. It is further to be noted that he was examined on behalf of the defendants 1 to 3 and he was not a witness for the plaintiffs. In the cross-examination on behalf of the plaintiffs, he affirmed that Smt. N.Lakshamma had acquired the suit plot from her husband by virtue of a Will. In the light of the evidence of D.W.4 viz., the 4th defendant the contention of the defendants 1 to 3 that Ex.A1 to Ex.A4 were sham and nominal and were executed without receiving any consideration falls to ground.
25. P.W.2 is an attestor to Ex.A1 to Ex.A4 as well as an identifying witness at the time of registration of these sale deeds. His version supported the claim of the plaintiffs. No material was elicited from this witness in cross-examination on behalf of the defendants 1 to 3 to MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 10 discredit his testimony. Evidence of P.W.2 thus corroborated the testimony of D.W.4 as well as the claim of the plaintiffs as deposed by P.W.1, of purchase of suit plots under E.A1 to Ex.A4.
26. One of the contentions of the defendants 1 to 3 is that the case of the plaintiffs is not certain, of delivery of possession of the suit plot under the so-called sale deeds. The circumstance that relief of possession is sought in the plaint is strongly relied on in this respect, apart from certain statements elicited from the 1st plaintiff as P.W.1 in cross- examination.
27. It is true that in the plaint, the case set up by the plaintiffs is that at the time of sale of the suit plot, they were delivered possession of the same and yet they claimed the relief for possession. There is also reference to occupation of certain portions of the suit plot by the defendants and others, by that time. The evidence of the 1st plaintiff as P.W.1 is also to that effect. D.W.4 also stated that by the date of these sale deeds one Sri Ganapathi, Sri Current Srinivas and Wife of Sri Pingali Dasaradahram were living in this site.
28. The recitals in Ex.A1 to Ex.A4 are that the suit plot was delivered in possession to the purchasers prior to the date of execution. In this context, the case of the plaintiffs that they negotiated and purchased this property in the year 1990 as per their version in the plaint and in the year 1991, as deposed by the 1st plaintiff as P.W.1, shall be considered. But in the cross-examination for the defendants 1 to 3, at one stage, P.W.1 stated that his vendor did not hand over or deliver possession of the suit plot to him for which reason they filed the suit for possession. However, in later cross-examination, it was elicited from this witness on behalf of the defendants 1 to 3 that this property was vacant, MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 11 when it was given in possession to him. It was also elicited from this witness specifically in cross-examination that, on 10.03.1995 this property under Ex.A1 to Ex.A4 was delivered to the purchasers.
29. However, when sale of the suit plot under Ex.A1 to Ex.A4 is established, which is also affirmed by D.W.4 as their executant on behalf of the admitted original owner Smt.Lakshamma, these inconsistencies do not bear significance. Valid transfer of title, right and interest as required under Section 8 of the Transfer of Property Act is effected thereunder.
30. As this stage, it is relevant to consider the defence set up by the defendants 1 to 3 particularly with reference to earlier suit in O.S.No.967 of 1998. The defendants 1 to 3 along with two others, as already referred to above, instituted the above suit for the relief of perpetual injunction against the 4th defendant alleging that they have been in possession and enjoyment of the suit plot with which the 4th defendant tried to interfere to forcibly dispossess them. On the material, the suit was decreed by the decree and judgment dated 27.09.1996 vide Ex.A13 (Ex.B1) and Ex.A14. This suit was pending by the date of Ex.A1 to Ex.A4.
31. As seen from the contents of the Judgment in the suit (Ex.A13), the contention of the defendants 1 to 3 was accepted more on account of observations of an Advocate commissioner regarding existence of certain structures therein and also of possession of certain individuals viz., the plaintiffs 1 and 2 therein, Sri Srinivasulu and Sri Ganapathi Rao. D.W.4 confirmed this fact. But, they did not pursue the suit and it was dismissed so far as their claim is concerned.
32. A reference is also made in Ex.A13 Judgment that a site belonging to the 1st defendant by the side of the shed of Sri Pingali MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 12 Dasaradha Ram is available in which certain construction material was stored apart from presence of 9 cement pillars as well as cement bricks. Similarly, as per Ex.A13, the learned commissioner observed a shed belonging to the defendant No.2 herein along with a site belong to the 3rd defendant as a part of it. Apart from it, the averments in the written statement filed therein by the 4th defendant that the plaintiffs 1 and 2 therein occupied the suit plot about an year ago raising two huts as well as wife of Sri Pingali Dasaradha Ram occupying a portion of it, were referred in Ex.A13-Judgment.
33. Coupled with these averments, the statements of the 4th defendant examined in the above suit as D.W.1 that he did not have anything to do with this property and in respect of title or interest thereto, were considered. Thus, on such material, it was observed in Ex.A13- Judgment that even if the defendants 1 to 3 herein trespassed into the suit plot, they could not be evicted without recourse to due process of law. On such premise a decree was granted in their favour and against the 4th defendant. However, there is also an observation in Ex.A13 Judgment that the defendants 1 to 3 herein, failed to prove that they were in possession and enjoyment of this property for the last 15 years prior to the institution of the above suit. The instance as to threat of dispossession by the 4th defendant of defendants 1 to 3 was accepted as a matter of fact, in coming to such conclusion.
34. Now, the contention of the plaintiffs is that the conduct of the 4th defendant with reference to the above suit amounted to collusion with the defendants 1 to 3 and therefore, not only that they made him one of the defendants but also on account of the decree for permanent MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 13 injunction, though did not bind on them, they were constrained to seek the relief of possession in the present matter.
35. The learned trial Judge accepted the version of the plaintiffs in this respect and observed that the 4th defendant did not offer any contest in the earlier suit and admissions made by him with reference to the claim of the defendants 1 to 3 herein in the above suit manifested the collusion among them.
36. Interestingly, neither the plaintiffs nor the defendants 1 to 3 choose to cross-examine the 4th defendant at the trial in this respect. Thus, his testimony is silent either way. He did not depose that the defendants 1 to 3 were in possession of the suit plot, by the date of the earlier suit or later.
37. Eviction or dispossession of the defendants 1 to 3 herein from this site taking recourse to due process of law, appears to be the main grain in this judgment and not otherwise. Neither there was any consideration of right title and interest of the defendants 1 to 3 herein with reference to the suit property in Ex.A13- Judgment nor effect was given to alleged possession claimed by the defendants 1 to 3 herein.
38. It is further significant to consider the deposition of the 1st defendant as D.W.1 in this respect and how he tried to explain occupation of the suit plot by them. His version in examination-in-chief itself is that it was a 'trespass' and that it was never questioned by Smt. N.Lakshamma or her husband, when they occupied it. At this stage itself, it should be stated that there is no evidence on record to hold that the defendants 1 to 3 were in possession and enjoyment of the suit plot for about 15 years prior to institution of O.S.No.967 of 1990. Even Ex.A13 judgment did not support their version.
MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 14
39. These facts are considered to evaluate the effect of the decree and judgment in O.S.No.967 of 1990. A cumulative consideration of the material on record in this respect, leads to infer that the said judgment and decree binds only the 4th defendant and they did not have any bearing on the plaintiffs. Purchase of the suit plot under Ex.A1 to Ex.A4 in the circumstances by the plaintiffs, as rightly observed in the judgment under appeal, is not affected nor the doctrine of lis pendens, as enshrined in Section 52 of the Transfer of Property Act, affects these sales.
40. The above suit did not involve any instance where right to the said property was directly and specifically in question nor the nature of the suit as well as the claim set up by the defendants 1 to 3 therein was a factor of hindrance to sell the same to the plaintiffs. The nature of the suit being only for perpetual injunction and having regard to its scope, particularly in the light of the reasons assigned in Ex.A13 judgment, being based on specific cause of action, it can only bind the 4th defendant.
41. Irrespective of the fact whether there was collusion of the 4th defendant and the defendants 1 to 3 herein in the suit covered by Ex.A13, having regard to the nature of the decree and judgment therein, where a personal relief was granted affecting the person of the 4th defendant, it has to be held that they did not in any manner affect the claims of the plaintiffs nor bind them.
42. Therefore, on a careful consideration of the entire material, it has to be held that the decree and judgment in O.S.No.967 of 1990 covered by Ex.A13 and Ex.A14 did not bind the plaintiffs nor affect their claim in relation to the suit plot. The fact that the version of the defendants 1 to 3 itself that they trespassed into the suit plot is indicative of nature of their possession viz., squatting over the property illegally and MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 15 without any manner of right. Such an instance cannot in any manner affect valid transfer of the property in terms of Section 8 of the Transfer of Property Act coupled with sale carried out in terms of Section 54 of the Transfer of Property Act under Ex.A1 to Ex.A4 in favour of the plaintiffs. Thus, this point is answered in favour of the plaintiffs and against the defendants 1 to 3.
POINT No.2:-
43. Having regard to the nature of entry into the suit plot as per the defence of the defendants 1 to 3 demonstrated by the deposition of the 1st defendant as D.W.1 itself is a prohibiting and inhibiting factor to raise a plea of adverse possession by them. A wrong doer, who highhandedly entered the property, cannot in any manner claim that on account of his long and uninterrupted possession gets a right to the property either in terms of Section 27 of the Limitation Act or under Article 65 of the Limitation Act. Even otherwise, there is no proof that the defendants 1 to 3 were in possession and enjoyment of the suit plot beyond 12 years from the date of the institution of the suit (This suit was instituted on 01.10.1996).
44. Even if the defence of the defendants 1 to 3 is accepted that there was threat of dispossession at the instance of the 4th defendant by the date of institution of the earlier suit on 11.10.1990 and that they had the advantage of the order of status quo granted in I.A.No.213 of 1990 in the earlier suit in O.S.No. 967 of 1990, at best they make out that they were in occupation of the suit plot immediately prior to the institution of the above suit. No other inference can be drawn from the material to support the claim of adverse possession of the suit plot and acquisition of right title and interest in respect thereof by them and against the interest MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 16 of either Smt. N.Lakshamma, the original owner, or her successors-in- interest viz., the plaintiffs 1 to 4.
45. Explaining the instances when the question of adverse possession can be considered, the learned counsel for the plaintiffs contended that the defendants 1 to 3 must prove animus possedendi as against the interest of the plaintiffs or their predecessors-in-interest and a trespasser in the circumstances cannot set up such plea.
46. Reliance in this context is placed by the learned counsel for the plaintiffs in Meenugu Mallaiah & Others vs. Ananthula Rajaiah & Another1. The learned Judge in the above ruling elaborately discussed the concept of adverse possession referring to various rulings of Hon'ble Supreme Court including certain judgments of other countries. In Para-42 of this ruling in this context, it is observed as under:-
"42. The concept of adverse possession may be understood as, such possession commencing in wrong and being continued as against right. It is actual hostile possession as against true owner by express or implied denial of title. The expression adverse possession means a holistic possession, that is the possession which is in denial of the title of the true owner. It must be adequate in continuity, in publlicity and in extent to show that it was possession adverse to the real owner....."
In para 61 of this ruling, it is observed as under:-
"61. If Article 65 and Section 27 of the Limitation Act are read conjointly, it indicates that where a cause of action exists to file a suit for possession and if the suit is not filed within the period of limitation prescribed, then, not only the period of limitation comes to an end, but the right based on title or possession, as the case may be, will be extinguished. Article 65 of the Limitation Act assists the person in possession to acquire prescriptive title by adverse possession. When the title to property of the previous owner is extinguished, it passed on to the possessor and the possessory right gets transformed into ownership. Section 27 of Limitation Act lays down a substantive law by declaring that after the lapse of the period, the title ceases to exist and not merely the remedy. It means that since the person who had a right to possession has allowed his right to be extinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto, the
1. (2017) 1 ALD 457 MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 17 person in adverse possession is enabled to hold on to his possession as against the owner not in possession."
47. Md. Mohammad Ali (Dead) by Lrs. Vs. Jagadish Kalita2 is relied on by the learned counsel for the plaintiffs in this respect. But it is a case of claiming adverse possession among the co-owners and law relating to adverse possession stand on a different footing in such given facts and circumstances.
48. Neither there is acceptable evidence except the interested testimony of D.W.1 and D.W.2, nor is there proof to apply the concept 'nec vi, nec clam, nec precario' and against the plaintiffs. On facts, required period of 12 years in order to attract Article 65 and Section 27 of the Limitation Act is not established. Therefore, it is a stale plea set up by the defendants 1 to 3 and therefore it has to be rejected. Thus, this point is answered in favour of the plaintiffs and against the defendants 1 to 3. POINT No.3:-
49. In a suit of this nature, particularly in the course of time, when the defendants 1 to 3 themselves accept this property belonged to Smt. N.Lakshamma, from whom the plaintiffs 1 to 4 trace their right, title and interest, it is not necessary that a relief of declaration in respect thereof should have been sought. The admitted and self professed stand of the defendants 1 to 3 that they are trespassers is the prime reason to negate such defence set up by them against the plaintiffs questioning the nature and structure of this suit.
50. In Anathula Sudhakar vs. P. Butchi Reddy3, the circumstances when a declaratory relief shall be requested has been
2. 2003(7) Supreme 159 3 . (2008) 4 SCC 594 MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 18 clearly explained by his Lordship Sri R.V.Raveendran,J in para-17 (a), and it is as under:
"17(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
51. In the later judgment of Hon'ble Supreme Court in Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana4, necessity of prayer for relief of declaration and maintainability of a suit simpliciter for possession have been explained following Anathula Sudhakar case.
Relevant portion in this ruling of Hon'ble Supreme Court is as under:-
"13. We are fortified in our aforesaid conclusion by a decision in Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150, wherein this Court has examined the question of maintainability of suit for possession without prayer for declaration of title. This Court has referred to its earlier decision in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594, wherein the Plaintiff had purchased the suit land under registered sale deed dated 10.4.1957 and the Defendant did not claim the title with reference to any document but claimed to have perfected title by adverse possession. It was held by this Court that the said plea did not prima facie put any cloud over the Plaintiff's title calling him to file suit for declaration of title. Unless there is serious cloud over the title of the Plaintiff there is no need to file suit for declaration of title. The suit for possession was maintainable."
52. In the light of the fact situation as well as legal position referred to above, it is held that the suit, as framed for the relief of possession by the plaintiff, is appropriate. Declaratory relief, as contended by the defendants 1 to 3, is unnecessary. Thus, this point is answered. POINT No.4:
53. The relief of permanent injunction is requested by the plaintiffs to prohibit the defendants 1 to 3 from raising any structures in the suit 4 . AIR 2016 SC 2250 MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 19 plot. When the plaintiffs held the title in respect of the suit plot as proved, when the occupation of this plot by the defendants 1 to 3 admittedly is as of trespassers, any structures either raised or proposed to be raised, are illegal. Thus, on account of the tainted nature of such activity by the defendants 1 to 3, in given facts and circumstances of the case, rightly the trial Court granted permanent injunction against them and in favour of the plaintiffs. At the same time, the defendants 1 to 3 cannot have similar relief against the plaintiffs. Thus, this point is answered. POINT No. 5:-
54. In respect of the plea set up by the defendants either for declaration and consequential permanent injunction against the plaintiffs, in view of the findings recorded on points 1 and 2, in as much as they failed to make out acquisition of right, title and interest by adverse possession and having regard to the fact that they are the trespassers squatting over the suit plot, they are neither entitled for a declaratory relief nor the relief of consequential permanent injunction as per their counter-claim. A trespasser is not entitled for injunction as such. Grant of permanent injunction in O.S.No. 967 of 1990 against the 4th defendant herein, cannot in any way add strength to their contention and interdict the entitlement of the plaintiffs to the suit property. Therefore, the defendants 1 to 3 are not entitled for the relief so claimed in the counter claim and against the plaintiffs.
55. Thus, this point is answered in favour of the plaintiffs and against the defendants 1 to 3.
POINT No.6:-
56. In view of the findings on points 1 to 5, the result to follow is that the judgment and decree of the trial Court shall be confirmed. The MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 20 learned trial Judge has considered the material on record in right perspective covering all parameters required in a title suit, rightly with reference to issues of fact and law. The findings so recorded do not call for any interference.
57. In the result, both the appeals stand dismissed with costs confirming the decree and judgment of the trial Court.
All pending miscellaneous petitions, if any, shall stand closed and interim orders, if any, shall stand vacated.
____________________ M. VENKATA RAMANA, J Dt: 03.03.2020 Rns/RR MVR,J A.S.No. 182/2005 & A.S.No.1192 of 2017 21 HON'BLE SRI JUSTICE M. VENKATA RAMANA APPEAL SUIT Nos.182 of 2005 & 1192 of 2017 Dt: 03.03.2020 Rns/RR