Andhra HC (Pre-Telangana)
K. Rajeshwar Reddy And Ors. vs N. Laxmikantam And Ors. on 8 March, 2002
Equivalent citations: 2002(3)ALD731, 2002(4)ALT632
ORDER L. Narasimha Reddy, J.
1. In this appeal the defendant in O.S.No.125 of 1981 on the file of the Subordinate Judge at Karimnagar assails the judgment and decree therein. The parties are referred to as arrayed in the suit.
2. The plaintiffs filed the suit for the relief of declaration of title and perpetual injunction in respect of the suit schedule property. All the plaintiffs claim to have purchased different extents of plots in S.No.277/2 of Choppadandi village through sale deed dated 11-11-1976, 22-11-1976 and 14-2-1977 in Ex. A.2 to A.4. According to them the 1st defendant was the original owner of the said land admeasuring Ac. 1.01 gunta. In the year 1956 the 1st defendant exchanged the same with one Mr. Bujidi Muttam Bhadraiah for the land in S.No.22 and Bhadraiah in turn sold the same to one Mr. Chintala Yellaiah under an unregistered sale deed dated 16-5-1957 (Ex.A.5). Ever since the date of purchase under Ex.A.5, Chintala Yellaiah was in possession and enjoyment of the same. Yellaiah and his son Mallaiah have sold the two plots in favour of the plaintiffs as well as the defendant No.3 in the year 1976 and 77. The defendants 1 and 4 to 7 have been trying to interfere with the possession of the plaintiffs over the plots purchased by them. Hence they approached the court seeking relief of declaration of title on the basis of the document in Ex. A.5 as well as the adverse possession enjoyed by the predecessor in title.
3. The defendants filed written statement disputing the very factum of exchange and the subsequent sale. According to them the land in S.No.277/2 was always held, enjoyed and possessed by the 1st defendant. Thereafter he sold plots therein in favour of other defendants and neither the plaintiffs nor their predecessor have the title or possession over the same. On the basis of the pleadings the trial court framed the following issues.
1. Whether Chintala Yellaiah and the alleged predecessor in tile of the plaintiffs had acquired title to the suit land by adverse possessor and whether the sale deeds set-up by the plaintiffs are true and whether the plaintiffs acquired title to the suit lands under them?
2. Whether the plaintiffs are in possession of the suit land?
3. To what relief?
4. On behalf of the plaintiffs P.Ws.1 to 9 were examined and Exs.A.1 to A.42 were marked. On behalf of the defendants D.Ws.1 to 8 were examined and documents Exs.B.1 to B.20 were marked. In addition to the said documentary evidence Exs.C.1 and C.2 were also marked. On appreciation of oral and documentary evidence the trial court decreed the suit as prayed for. Hence this appeal.
5. Sri Ramesh Sagar, learned counsel for the defendants, submits that the trial court ought not to have granted the decree and declaration of title on the basis of adverse possession, when there was no valid conveyance of title in respect of the suit schedule property. It is also his contention that the plaintiffs have failed to establish the factum of their being in possession for the required period or at any rate before filing the suit. It is also his contention that even the so called possession of the plaintiffs was unlawful and the same cannot confer any title on them nor does it entitle them to seek injunction against the rightful owner.
6. Sri P.V. Narayana Rao, learned counsel for the plaintiffs on the other hand submits that the evidence on record had clearly established that ever since the year 1957, Ch. Yellaiah's, the predecessor in title of the plaintiffs, was in possession of the suit schedule property till the year 1976 and thereafter the plaintiffs were put in possession of the same and the same was sufficient to constitute adverse possession and entitle the plaintiffs to get declaration of title in their favour. It is also his contention that once the record establishes the continuance of possession and passage of long period, the relief of injunction was almost inevitable.
7. In view of the contentions of the learned counsel and the pleadings and evidence on record, the questions that arise for consideration in this appeal are a) whether the plaintiffs are entitled for a decree of declaration of title and b) whether they are entitle for the relief of permanent injunction.
8. Normally the plea of adverse possession would only enable the person taking the same to resist any attempt by any other person to evict him. It is almost in the form of defence. It was for this reason that the plea of adverse possession is treated as shield and not a sword. The doubt is as to whether an individual who continued in possession of an immoveable property and whose possession was adverse to the lawful owner can seek a declaration of his title. However, the same is no longer res integra in view of the judgment of the Supreme Court reported in BALAKISHAN VS. SATYAPRAKASH1. In that case the trial court decreed the suit for declaration of title on the basis of adverse possession. The appeal filed against the same was dismissed. However, in the second appeal, the High Court reversed the judgments of the courts below by observing as under.
" In spite of the fact that the plaintiff continued in possession, in spite of the order against him in proceedings under Section 250 MP LR Code, his possession cannot be said to be sufficient in eye of. Law to confer a title upon him by adverse possession, as claimed."
9. The judgment of the High Court was reversed by the Supreme Court with the following observation.
" From the above discussion it follows that the judgment and decree of the High Court under challenge cannot be sustained. They are accordingly set aside and the judgment and decree of the first appellate court confirming the judgment and decree of the trial court is restored. The appeal is accordingly allowed but in the circumstances of the case without costs."
10. Therefore it emerges that adverse possession for the required length of time would not only enable the person pleading such possession to resist the plea of recovery of possession but would also enable him to get his title declared on the strength of the same.
11. Now it remains to be seen as to whether the plaintiffs have established their continuous and adverse possession in respect of the suit schedule property. They claim through their vendor Ch. Yellaiah. Therefore the possession of Ch. Yellaiah has to be tacked on to that of the plaintiffs also.
12. It is the claim of the plaintiffs that Ch. Yellaiah was inducted into the suit schedule property in the year 1957. In support of their plea they have examined number of witnesses. P.W.5 is the scribe of Ex.A.5 under which the suit schedule property was said to have been sold by one Bhadraiah. Since it is not a registered document, it cannot validly transferred title. However it needs to be seen whether the possession of the property was delivered to Ch. Yellaiah in the year 1957. P.W.5, apart from asserting the fact that he scribed the document Ex.A.5 and also stated as under:
" I am also the owner of S.No.272. Its extent is about 4 or 5 acres. There is a well and motor to the well. Whenever I was going to my fields I was seeing that the suit lands being cultivated by Ch. Yellaiah and Chinthala Mallaiah. Ever since the time of purchase the Vendees i.e. Ch. Yellaiah and Mallaiah were in possession and enjoyment of the lands."
13. Nothing was elicited from him to discredit the said statement.
14. P.W.6 is another witness who had the lands by the side of the suit land. He stated as under.
" My land was on the southern side of the suit land ........ I sold my land about 15 - 16 years ago. The suit land was sold by Chintala Yellaiah. He has sold away subsequent to the sale of my land. When I was owning and cultivating my land and the suit land, when it was owned by Chintala Yellaiah, I know that he himself was cultivating it."
15. It was suggested to this witness by the defence that it was only the defendant No.1 who was in possession of the said land.
16. P.W.7 is another witness whose land was on the East side of the suit schedule land. He has also stated;
"Chintala Yellaiah cultivated his land for the past 20 years and Yellaiah sunk awell in his land."
17. The suggestion that was put this witness was also that Yellaiah was never in possession of the same.
18. P.W.8 was the patwari of the village who worked as such from 1957 to 1983. His statement is to the following effect "By the time of my assuming charge as patwari of the village, Chinthala Yellaiah was in possession and enjoyment and cultivating the lands of Sy.No.277/2."
19. Nothing was elicited to discredit his evidence.
20. Coming to the documentary evidence, it needs to be observed that the plaintiffs have filed the pahanis from the year 1958-59 to 1978-79 being Exs.A.7 to A.24. These records evidence the possession of Chintala Yellaiah. Ex.A.25 is a book maintained for the purpose of making entries by the Revenue Authorities. In that book, entries are marked from A.25 (A to D) and A.26 (A to I) from the years 1957 to 1976 evidencing the payment of land revenue.
21. One important aspect to be noted is that defendant No.1 who claimed to be the original owner, in his written statement stated that he inducted Yellaiah into the property in the year 1960 as a tenant. He is however, silent as to when the tenancy was terminated and when he re-entered the land. Being the holder of various items of agricultural land he submitted declarations under the A.P. Agricultural Lands (Ceiling on Holdings) Act. Ex.B.1 is declaration submitted by him. In that, the suit schedule property which is in S.No.277/2 does not figure. On the other hand, the other part viz., S.No.277/1 is declared by him. It is also relevant to note that his statement was recorded by the revenue authorities in the course of verification of the declaration. Ex.A.37 is the statement made by the defendant No.1, recorded by the Deputy Tahasildar of the Land Reforms Tribunal. In the statement recorded in 1975 he has categorically stated that 25 years ago the land in S.No.277/2 was sold in favour of Ch.Yellaiah and that he has been cultivating the same ever since.
22. These facts would clearly and clinchingly establish that the possession of land Ch. Yellaiah over the suit schedule property was open, continuous and adverse to the 1st defendant. The possession was continuous from 1957 and there is nothing on record to show that there was any interruption. It can be said that the plaintiffs have discharged their burden to establish that their possession was continuous for the requisite period and was adverse to the 1st defendant. The defendants did not place any evidence before the court to discredit the evidence adduced by the plaintiffs. On the other hand the suggestions were rather vague and contradictory. While in the written statement it has been categorically pleaded that Yellaiah was inducted into possession in the year 1960 as a tenant, in the oral evidence the 1st defendant as D.W.1 admitted that he continued till 1975. The suggestions that were put to some of the P.Ws. was that the Yellaiah was never in possession of the suit schedule property.
23. The cumulative effect of this discussion is that the plaintiffs have established that themselves and their predecessor in title have perfected their title by adverse possession and in view of the judgment of the Supreme Court referred to above they are entitled to decree of declaration of their title.
24. Since it has been found that the plaintiffs have established their continuous possession ever since 1957, they are also entitled for permanent injunction. In a way, even if for any reason they were not entitled for the declaration of title on the basis of their continuous possession they were entitled for the decree of permanent injunction. Therefore, no exception can be taken to the judgment and decree of the trial court.
25. In its judgment the trial court while dealing with issue No.3 held that the sale deeds executed by P.W.1 in favour of D.Ws.1 to 7 are null and void. It is clarified that if the defendant executed any sale deeds in respect of any property other than the suit schedule property, such sale deeds will not be affected by virtue of the decree of the trial court.
26. The appeal is therefore dismissed. There shall be no order as to costs.