Andhra HC (Pre-Telangana)
Eerappa vs Golla Nagaiah And Ors. on 12 December, 2007
Equivalent citations: 2008(2)ALD349, 2008(2)ALT416, AIR 2008 ANDHRA PRADESH 191, 2008 (5) ALL LJ NOC 1085, 2008 (6) AIR KAR R 920, 2008 A I H C (NOC) 732 (AP), (2008) 65 ALLINDCAS 743 (AP), 2008 (65) ALLINDCAS 743, (2008) 2 ICC 724, (2008) 2 ANDH LT 416
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The plaintiff in O.S. No. 3 of 1979 on the file of the learned District Munsif, Andole at Jogipet is the appellant. He filed the suit originally against one Mr.Golla Nagaiah, the sole defendant, for the relief of declaration of title, recovery of possession and ascertainment of mesne profits, in respect of the land in Survey No. 105 F (English letter equivalent to that of Telugu) of Bodmatpally Village, Medak District. During the pendency of the suit, the sole defendant died and his brothers, defendants 2 and 3 were brought on record. Subsequently, defendant No. 3 died and his legal representatives are brought on record.
2. The appellant pleaded that his mother, by name Papamma, was the owner of the said property and after her death, he succeeded to the same. It was his case that succession has been granted in his favour by the revenue authorities in the year 1970. He alleged that the defendant dispossessed him from the suit land in the 1st week of June, 1977 with the help of antisocial elements.
3. A written statement was filed by the sole defendant. He admitted that the land was originally owned by the mother of the appellant and after her death, the appellant succeeded to the same. According to him, the appellant and his brother-in-law, by name Sangappa, sold the suit land to him, vide document dated 29.07.1957, marked as Ex.B.1, for a consideration of Rs. 525/- and that a receipt, marked as Ex.B.2, was issued evidencing the receipt of the entire consideration. According to him, he is in continuous and uninterrupted possession of the land ever since 1957 and he denied the allegation of trespassing into the land in the year 1977.
4. Through its judgment, dated 26.09.1991, the trial Court decreed the suit. Thereupon, the respondents filed A.S. No. 15 of 1991 in the Court of Subordinate Judge, Medak. The appeal was allowed on 14.03.1996. Hence, this Second appeal.
5. Sri L. Prabhakar Reddy, the learned Counsel for the appellant submits that once the respondents admitted the title of the plaintiff, it was not open to them to take the plea of adverse possession. He contends that respondent did not take any plea under Section 53-A of the Transfer of Property Act and in that view of the matter, there was no basis for the lower appellate Court in reversing the judgment and decree of the trial Court. He further contends that the appellant flatly denied the execution of Ex.B.1 and at any rate, he was minor as on the date of execution of the said document.
6. Ms. Padma Saranappa, the learned Counsel for the respondents, on the other hand, submits that the lower appellate Court recorded a clear finding to the effect that the respondents are in continuous possession of the land from the year 1957 and that the suit was barred by limitation. She contends that the appellant failed to prove that he was minor as on the date of execution of Ex.B.1 and in that view of the matter, the said document deserved to be taken as proved.
7. The appellant deposed as P.W.1 and another witness was examined as P.W.2. He filed Exs.A.1 to A.13. Out of them, Ex.A.1 to A.12 are the pahanies from the year 1964-65 to 1976-77 and Ex.A.13 is the Faisal Patti for the year 1969-70, in which the succession over the suit schedule property was granted in favour of the appellant. On behalf of the respondents, D.W.1 to 3 were examined and Exs.B.1 to B.11 were marked. It has already been pointed out that Exs.B.1 and B.2 are unregistered sale deed and receipt respectively. Ex.B.3 is the pouthi bahi book and Ex.B.4 is the land revenue pass book. Exs.B.5 to B.9 are the land revenue receipts, Ex.B.10 is the pahani for the year 1963-64 and Ex.B.11 is a ryot pass book.
8. On the basis of the pleadings before it, the trial Court framed the following issues:
1. whether the plaintiff is entitled for declaration or ownership of the suit land?
2. whether the plaintiff is entitled for possession of suit land?
3. whether the plaintiff is entitled for mesne profits during the pendency of the suit?
4. whether the suit is barred by limitation?
5. whether the court fee paid is not sufficient?
All the issues, except issue No. 3, were answered in favour of the appellant and the suit was decreed, declaring the title of the appellant and directing recovery of possession. The plea of mesne profits was rejected. The lower appellate Court framed the following points for its consideration:
1. whether the respondent/plaintiff is entitled for declaration and possession of suit land?
2. whether the suit filed by respondent/plaintiff is barred by limitation?
3. whether court fee paid by the respondent/plaintiff is not sufficient?
All the points were answered against the appellant and the appeal was allowed.
9. After hearing the learned Counsel for the appellant and the learned Counsel for the respondents and on a consideration of the grounds of appeal in this Second Appeal, this Court is of the view that the following questions of law arise for consideration:
a) Whether the defendant, who admits the title of the plaintiff, can raise the plea of adverse possession; and
b) Whether the defendant claiming the rights under an unregistered document can resist the plea of recovery of possession, without taking the defence under Section 53-A of the Transfer of Property Act.
10. The gist of the pleas taken by the appellant, on the one hand, and the respondents, on the other, has already been referred to above. The appellant asserted his title and complained of unlawful dispossession by the ancestors of the respondents about two years prior to the date of filing of the suit. Respondents, on the other hand, pleaded title in themselves and alternatively, raised the plea of adverse possession.
11. The respondents categorically admitted the title of the mother of the appellant and after her death, that of the appellant himself at least up to the date of execution of Ex.B.1, i.e., 25.07.1957. It is not in dispute that Ex.B.1 is not a registered document and by itself, it is not capable of conveying any title in favour of the respondents. Unless there is a valid conveyance of the suit property in favour of the respondents, the appellant does not get divested of his title. Therefore, the title continued to vest with the appellant.
12. On his part, the appellant pleaded that he was in possession of the land till the year 1977 and was dispossessed by the deceased-sole defendant, in first week of June, 1977. To prove his possession up to that date, he filed Exs.A.1 to A.12, which are the pahanies from the year 1964-1965 to 1976-77. They disclose the uninterrupted possession of the appellant over the land. In contrast, the respondents filed the pahani for only one year viz., 1963-64 as Ex.B.10. If these documents are to be taken on their face value, they disclose that the respondents were in possession of the property only for one year i.e., 1963-64 and subsequently, the appellant is in possession till 1977. The respondents are not able to demonstrate that Exs.A.1 to A.12 do not reflect the correct picture. If they are to be disbelieved, same thing holds good for Ex.B.10 also, since it was issued by the same authority, which issued Exs.A.1 to A.12. In such an event, the solitary or stray entry ceases to be available to the respondents. The receipts of land revenue said to have been issued by the patwari would hardly be of any help, to prove possession or to tilt the balance vis--vis Exs.A.1 to A.12. The burden to prove the plea of adverse possession squarely rests upon the one, who raises it. There is hardly any evidence adduced on behalf of the respondents to prove their possession prior to 1977. Therefore, the respondents failed to prove the factum of possession over the land between 1963-64 and 1976-77.
13. Assuming that the possession of the respondents over the suit land admitted by the appellant at least from the year 1977 deserves to be presumed backwards, it needs to be seen as to whether it can be treated adverse, to the appellant. Several Judgments were rendered by the Hon'ble Supreme Court and this Court, interpreting Articles 64 and 65 of the Schedule to the Limitation Act as well as the corresponding provisions under the Limitation Act, 1908. A clear distinction as to the burden to prove in the context of adverse possession was noticed. Latest of the decision of the Supreme Court, which extensively reviewed the earlier case law, is the one in M. Durai v. Muthu . It was pointed out that the plea of adverse possession must be inconsistent with the title of the original owner. In other words, if the party taking the plea of adverse possession admits the title of his opponent, he cannot be extended the benefit thereof. In Madipeddi Rajalingam v. Rudroju Chinna Somaiah , this Court held as under:
The plea of adverse possession is available only to such person, who does not acquiesce in the title of the person pleading ownership. The very concept of adverse possession connotes that it commenced in wrong and is maintained against the right. Acquiescence in the title of the owner would not go along with the plea of adverse possession. In categorical terms, the appellant pleaded that the land was purchased by Sarvi Rajaiah from the respondent and thereafter he purchased it. This implies that the appellant admitted that the respondent had title to the land and it is yet to pass on, to himself through his vendor. Therefore, the appellant cannot take the plea of adverse possession.
14. Similarly in K. Ramabrahmam v. G. Narsingh Rao , this Court observed as under:
An individual who claims to have transacted with the rightful owners, in relation to a property and claims possession, vis--vis the property, on the basis of such a transaction, cannot be permitted to plead adverse possession. In the instant case, apart from basing his claim on Ex.A.1 and other documentary evidence, the appellant has taken the alternative plea of adverse possession, as the basis for declaration of his title. It is true that the adverse possession, which, till recently, used to be a mere defence for recovery of possession; was recognized as a basis for declaration of title. However, once the origin of the possession is traceable to an incomplete transaction, with the rightful owner, the resultant possession, even if true, cannot be treated as adverse, and in that view of the matter, the appellant cannot be granted the relief of declaration of title on the plea of adverse possession, assuming that he had been in possession, for a fairly long time.
15. It has already been pointed out that the respondents have admitted the title of the appellant and in that view of the matter, it was not open to them to take the plea of adverse possession. Therefore, the inescapable conclusion is that the appellant was entitled to be declared as the owner of the suit schedule property. The first question is answered accordingly.
16. Coming to the second question, it remains to be seen as to whether the respondents were entitled to resist the claim for recovery of possession of the suit schedule property on the strength of Ex.B.1. The appellant categorically denied the execution of Ex.B.1 and in fact, he has taken the plea that he was a minor as on 29.07.1957. That apart, being not a registered sale deed, Ex.B.1, if held to have been proved, at the most, deserves to be treated as an agreement of sale. In such an event, the only way, that the respondent could have resisted the plea for recovery of possession, was by taking the plea under Section 53-A of the Transfer of Property Act. Such a plea, however, was not taken. Therefore, the appellant is entitled for the relief of recovery of possession.
17. The lower appellate Court proceeded on certain assumptions, which do not have support of law. For instance, it expected the appellant to explain the nature of possession of the respondents over the suit land as well as the delay in approaching the Court. In a suit for declaration of title and recovery of possession, the only thing a plaintiff has to satisfy the Court is about the existence of title. Under Articles 64 and 65 of the Schedule to the Limitation Act, the burden squarely rests upon the person, who raises the plea of adverse possession, to prove it.
18. The observation and finding of the lower appellate Court as regards the adequacy of Court fee are also untenable and contrary to record.
19. For the foregoing reasons, the second appeal is allowed and the judgment and decree of the lower appellate Court in A.S. No. 15 of 1991 are set aside. Consequently, the judgment and decree passed by the trial Court in O.S.No. 3 of 1979 are upheld. There shall be no order as to costs.