Andhra HC (Pre-Telangana)
G.V.K. Rama Rao And Anr. vs Bakelite Hylam Employees Co-Op. House ... on 25 March, 1997
Equivalent citations: 1997(4)ALT304, 1997 A I H C 3217, (1997) 2 LS 87, (1997) 2 LACC 331, (1997) 4 ANDHLD 294, (1997) 4 ANDH LT 304
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
JUDGMENT
V. Bhaskara Rao
1. The Judgment and decree in A.S. No. 98/1991 on the file of Additional Chief Judge (Temp), City Civil Court, Hyderabad, dated 1-3-1996 reversing the Judgment, Decree and findings of the IV Additional Judge, City Civil Court, Hyderabad, in O.S. No. 603/1981, dated 18-3-1991 and consequently dismissing the suit of the plaintiffs, are challenged in this second Appeal by the plaintiffs. The parties will be referred to as arraigned before the trial Court.
2. The plaintiffs filed the suit for declaration of title and recovery of possession of the plaint schedule land. Their case is that they purchased the suit land bearing R.S. No. 120/4 corresponding to old S. No. 403/5 of Shaikpet from its rightful owner through a registered sale deed dated 20-3-1967 and they have been in exclusive possession and enjoyment of the same eyersince that day. The defendant is a Co-operative Housing Building Society and it had purchased some land in S. Nos. l21/A and 129/92/3 situated near Yousufguda Police Lines, Hyderabad, sometime prior to the suit and under the guise of the said purchase, the Society occupied the suit land sometime prior to the suit. The defendant-Society has no manner of rights to the suit land which is entirely different and distinct from the land purchased by it and it was falsely claiming the suit land as the one purchased by it and it has illegally occupied the same while disputing the plaintiffs' title. On the other hand the case of the defendant-Society is that the land claimed by the plaintiffs viz., the suit land, is in S. Nos. 121 / A and 129/92/3 of Shaikpet village that the above land was never in possession of the plaintiffs or their predecessors in title within 12 years to the date of the suit and hence they are not entitled either to the declaration or to the possession. The Society purchased an extent of Ac.12-02 guntas in S. No. 129/92/3 and 10 acres in S. No. 121 /A of Shaikpet village in the year 1976 for the purpose of providing Houses to its members and it is in possession of these lands only and it never threatened the plaintiffs with dispossession of their land which is stated to be part of old S. No. 403/5 corresponding to new S. No. 120/4 of Shaikpet village. The suit is under-valued as the market value per square yard was around Rs. 100/-.
3. The following issues and additional issue have been settled on the above pleadings:
(1) Whether plaintiffs are owners and in possession of the property?
(2) Whether plaintiffs are entitled for declaration and recovery of possession?
(3) Whether the defendant is in illegal possession?
(4) Whether the Court fee paid is correct?
(5) To what relief?
Additional issue:
"Whether the suit is barred by limitation".
4. During the trial, plaintiff No. 1 examined himself as P.W.I and Exs.A-1 to A-5 are marked. In rebuttal, the Secretary of the defendant-Society Mr. T.R. Krishna, examined himself as D.W.I and one S. Atchiah as D.W.2. Exs.B-1 to B-48 are marked for the defendant. The Inspector of Survey, Settlement and Land Records, Hyderabad was appointed as Commissioner for the purpose of localisation of the suit land on the application of the plaintiffs and he has been examined as P.W.2 and his report along with plan and connected records are marked as Exs.C-1 to C-6. The learned Additional Judge scrutinized the above oral and documentary evidence and held that P.W.2 who was appointed as Commissioner was working as Inspector in Survey, Settlement and Land Records Office at Hyderabad and he was well-versed with the survey work and since the defendant did not file any objections to the report Ex.C-1, the same is fit to be accepted. Moreover, he is examined as P.W.2 and the defendant-Society had cross-examined on all the aspects. Thus, the learned Additional Judge held that the suit land is in S. No. 120/4 corresponding to old S. No. 403/5 of Shaikpet village and three boundaries thereof are tallying with the boundaries given in the plaint and that the discrepancy regarding the eastern boundary does not, however, affect the plaintiffs' case. Accordingly the suit land has been localised and then it is held that the defendant is not at all in possession of the land and hence the plea of adverse possession pleaded by the defendant is rejected. Taking up issues 1 and 2 together for consideration, the learned Additional Judge held that the plaintiffs' case that they purchased the suit land under Ex.A-1 registered sale deed dated 20-3-1967 from legal representatives of Baliah to whom the suit land was originally assigned by the Government in 1950 is made out and that the description of the property mentioned in Ex.A-1 sale deed substantially tallies with the description in Ex.C-1 report of the Commissioner and whereas the defendant has not let in any positive evidence to show that the suit land is in S. No. 121/A or 129/92/3. It is further held that Ex.A1 sale deed dated 20-3-1967isnothitbytheprovisionsofAndhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 as well as Section 47 of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act as it was a Government land and Section 102(a) of the above Act excludes the Government lands from its purview. Then the trial Court took note of a Memo filed on behalf of plaintiffs on 4-1-1988 stating that after P. W.2. Inspector of Survey, Settlement and Land Records, submitted his report showing that the suit land is in new S. No. 120/4 corresponding to old S. No. 403/5 of Shaikpet village, the defendant has not shown any interest in the said land and since then the plaintiffs are in possession of the suit land and hence the relief of only declaration of title has been granted. However, it is left open to the State to exercise such rights, if any, as it can exercise over the suit land ignoring the declaration granted in favour of the plaintiffs against the defendant.
5. Aggrieved by the above findings, judgment and decree, the defendant-Society carried the matter in appeal to the Court of Additional Chief Judge (Temp), City Civil Court, Hyderabad, in A.S. No. 98/1991, a certified copy of the order in W.A.Nos. 860/1989 and batch of this Court has been filed with I. A. No. 661 of 1995 as additional evidence and received in evidence and marked as Ex.A-6. After hearing both sides, the learned Additional Chief Judge formulated the following points:-
(1) Whether the plaintiffs have got title to and possession of the suit property?
(2) Whether the defendant-Society and its vendors have perfected their title to the suit property by adverse possession?
(3) Whether the suit is hit by provisions of Section 34 of Specific Relief Act?
(4) Whether the suit is barred by limitation?
(5) Whether the plaintiffs are entitled to the declaration of title to the suit (5)property as prayed for?
(6) To what relief?
He took up points 1 and 2 together for consideration and held that Ex.A-1 sale deed is hit by the provisions of the Assigned Lands (Prohibition of Transfers) Act, 1977 as well as Section 47 of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950. In that context the learned Additional Chief Judge adverted to the report of the Inspector of Survey, Settlement and Land Records and noted that the defendant has failed to show that the suit land is in S.Nos. 121/A and 129/92/B and that Exs.B-1 to B-39 pertain to S.Nos. 121/A and 129/92/B of Shaikpet village and not S. No. 120/4, but the plaintiffs admitted in the plaint that the defendants were in possession of the suit land by the date of institution of the suit and hence the plaintiffs have no title or possession over the suit land. Under point No. 2 it is also held that the defendant-Society has failed to prove that its vendors or predecessors in title have perfected their title to the suit property by adverse possession. It is also held that the plaintiffs are not entitled for a mere declaration in view of proviso to Section 34 of the Specific Relief Act. On the question of limitation, it is held on the one hand that the plaintiffs filed the suit after a lapse of 12 years from the date of Ex.A-1 and hence the suit is barred by limitation and on the other hand that the defendant-Society has failed to establish that its vendors have perfected their title by adverse possession. In view of the above findings, the appeal filed by the defendant-Society has been allowed and the judgment and decree of the trial Court has been set aside. Hence, the plaintiffs preferred this Second Appeal.
6. Mr. D. Gopal Rao, learned Counsel for the appellants-plaintiffs assailed the findings of the learned Additional Chief Judge on all the points. He contends (1) that Ex. A1 sale deed is not hit by the provisions of A.P. Assigned Lands (Prohibition of Transfers) Act, 1977, inasmuch as the sale was longbefore the Act came into force and it is not retrospective in operation; (2) that Section 47 of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 is not applicable to Government lands as provided for in Section 102(a) of the Act and admittedly it is a Government land and assigned in favour of Baliah and the character of the land does not change even subsequent to its assignment; (3) that in view of repeal of Section 47 retrospectively, Ex.A1 under which entire consideration was passed and possession also delivered, the same is not affected; (4) that the proviso to Section 34 of the Specific Relief Act has no application to this case and (5) that the plaintiffs have succeeded in establishing their subsisting title to the suit land and hence Article 65 of the Limitation Act is applicable and in that case it is for the defendant to establish adverse possession. He has, therefore, vehemently contended that all the findings recorded by the appellate Court are liable to be set aside and the judgment and decree of the trial Court is fit to be restored.
7. On the other hand Mr. K.G. Kannibiran, learned Counsel for the respondent-defendant Society has taken me through the impugned judgment and contended that the findings of the lower appellate Court are well reasoned and supported by a catena of decisions and that the findings need not be interfered with on any of the legal questions that have arisen in this case. Thus, he supported the impugned judgment and sought for dismissal of the Second Appeal.
8. Having regard to the pleadings, findings of two Courts below, grounds of appeal and the rival contentions, the following substantial questions of law arise for determination in this Second Appeal.
(I) Whether Ex.A1 sale deed is hit by the provisions of Assigned Lands(Prohibition of Transfers) Act, 1977?
(II) Whether Ex.A1 sale deed is hit by Section 47 of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950?
(III) What is the effect of proviso to Section 34 of Specific Relief Act on the case of the plaintiffs?
(IV) Whether Article 64 or Article 65 of the Limitation Act is applicable?
9. The suit land is part of old Survey No. 403/5 corresponding to R.S. No. 120/4. As per Ex.C-1 report of Inspector of Survey, Settlement and Land records which is accepted by the trial Court, three boundaries shown in Ex.A-1, sale deed dated 20-3-1967 are tallying with the boundaries of the piece of land located by him with the aid of Tippan and Survey Map. It is also stated in Ex.C-1 report that R.S. No. 121/A and 129/92/3 covered by sale deeds of Exs.B-1 to B.21 are not found in Shaikpet village. The trial Court found that the land located by P.W.2 is the suit land in R.S. No. 120/4 and that finding has not been disturbed by the lower appellate Court. Be that as it may. I shall now take up the aforesaid substantial questions of law for consideration.
Question No. 1:
10. The lower appellate Court held that Ex.A-1 sale deed is hit by the provisions of A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (hereinafter referred to as Act 9 of 1977), and hence it is void. The defendant raised this objection for the first time at the stage of arguments though there was no plea and no evidence but the same was permitted on the ground that it is a legal objection.
11. Sri D. Gopala Rao, learned Counsel for the plaintiffs firstly contended that the trial Court erred in permitting the defendant to raise this objection without there being a plea to that effect in the written statement and relied on Ram Sarup Gupta v. Bishun Narain Inter College, , but I am unable to agree. It being a pure question of law it is well settled that it can be raised at any stage. However, it may be noted that proper course for the defendant would have been to seek amendment of written statement so as to incorporate the above plea and thereby the plaintiffs would have been put to proper notice of the above plea. It is noteworthy that this objection is said to have been taken for the first time at the Bar and the learned Counsel for the plaintiffs hascriticised the manner in which this objection is put forth. Nonetheless the objection has been met by the plaintiffs in both the Courts below as well as in this Court.
12. It is not in dispute that the suit land has been assigned to one Baliah on 4-1-1953 under the Laoni Rules, 1950. The learned Counsel for the plaintiffs pointed out that there was no condition of non-alienability of such assigned lands as on 4-1-1953 under the Laoni Rules, 1950, and that the same was incorporated for the first time in the revised Assignment Policy in G.O.Ms. No. 1406, Revenue, dated 25-7-1958 which was issued integrating the provisions relating to the assignment of the Government lands in the Andhra and Telangana areas of the State with a view to follow a common policy for both the areas and Rules have been framed thereunder. He, therefore, strenuously contended that the assignment of suit land is not covered by the definition of "assigned land" Under Section 2(1) of Act 9 of 1977 and Ex.A-1 does not fall within the mischief of Section 3 thereof. On the other hand, Sri K.G. Kannabiran argued that patta of the original assignee, Balaiah, has not been filed and hence it cannot be contended that there was no restriction of alienation.
13. I have carefully perused the Laoni Rules of 1950 as well as the Rules of revised Assignment Policy in G.O.Ms. No. 1406 Revenue, dated 25-7-1958. It is true that in the Laoni Rules of 1950, there is no Rule imposing a restriction upon the assignee from transferring or alienating the assigned land and the same has been introduced in the revised Assignment Policy. The relevant Rule in G.O.Ms. No. 1406, Revenue, dated 25-7-1958 is in the following terms:
"VI. Terms and Conditions of assignment:
(i) xxx xxx xxxxxx xxx xxx.
(ii) lands assigned shall be heritable but not alienable;
14. It can therefore be held that there could not have been any condition of the assigned land being non-alienable in 1953 when Balaiah was granted patta for the simple reason that the above Rule was enforced in 1958.
15. In this context, it is necessary to refer to previous litigation arising from cancellation of patta by Collector, Hyderabad in proceedings dated 17-7-1985 which was challenged by the plaintiffs in W.P. No. 13097 of 1987. The Writ Petition was allowed by a learned Single Judge on 4-4-1989 and the said order dated 17-7-1989 was quashed and the matter was remanded to the Collector for fresh enquiry. Ex.A-5 is a copy of the order. The plaintiffs filed Writ Appeal No. 1015 of 1989 assailing the order of remand to the Collector. A Division Bench of this Court allowed the Writ Appeal on 25-9-1995 and set aside the judgment in W.P. No. 13097 of 1987 dated 4-4-1989 and quashed the impugned order of the Collector dated 17-7-1985 and confirmed the assignment made on 4-1-1953 in favour of plaintiff-vendor. Ex. A-6 is the copy of the judgment in W.A. No. 1015 of 1989. It is noteworthy that this very provision relating to a condition of non-alienation of the assigned land was canvassed before the Division Bench.
16. However, the Writ Appeal has been allowed accepting the first contention that the District Collector had no jurisdiction to revise the order of Tahsildar after a lapse of nearly thirty years and no other contention was gone into.
17. The argument of Mr. Gopal Rao, learned Counsel for the plaintiffs is that all the contentions raised by them in the Writ Appeal including the one under consideration herein are deemed to have been accepted by the Division Bench though the appeal has been allowed on the sole ground of enormous delay. I am afraid, I cannot accept this contention also. When the Division Bench recorded specifically that they are not going into any other contention, it cannot be said that those other contentions have been accepted or rejected. The fact remains that the Writ Appeal filed by the plaintiffs has been allowed and the order of the Collector cancelling the patta granted in favour of Baliah, their predecessor in title has been quashed. Having regard to those proceedings and the pleadings in this case issuing patta in favour of Baliah assigning the above land in the year 1953 cannot be doubted even for a moment. Otherwise, the proceedings of the Collector cancelling the very same patta, filing of Writ Petition No. 13097/1987, dated 4-4-1989 and the order culminating in W.A. No. 1014/1989 would be meaningless. I have already held above that there could not have been any condition of non-alienability of the assigned land in 1953 as that Rule was framed in the year 1958.
18. The question is whether an assigned land without a condition of non-alienability falls within the mischief of Section 3 of Act 9 of 1977 or not. Section 2(1) of Act 9 of 1977 defines "assigned land" as under:-
" assigned land" - means lands assigned by the Government to the landless poor persons under the rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or transferred to landless poor persons under the relevant law for the time being in force relating to land ceilings; and the word "assigned" shall be construed accordingly."
It is evident from the above definition that the condition of non-alienation is an essential ingredient of the assigned land for the purpose of Act 9 of 1977. As the suit land which was assigned to Baliah in the year 1953 when the condition of non-alienation was not comtemplated by the Laoni Rules, 1950 as then in force, I am satisfied that the provisions of Act 9 of 1977 are not applicable to the suit land and hence Ex.A-1 sale deed is not hit by the provisions of Act 9 of 1977. Question No. 1 is answered accordingly in favour of the plaintiffs.
19. Question No. 2:
This question also springs from the contentions of the learned Counsel for the defendant at the Bar and there is no formal amendment of written statement raising the above plea. This also being a pure question of law has been permitted to be raised, but the learned Counsel for the plaintiffs urges that it cannot be considered without there being a plea or issue. It is true that no steps have been taken by the defendants to amend the written statement to incorporate this plea, but nevertheless it was permitted to be raised in the trial Court and hence it has to be gone into.
20. Be it noted that the trial Court held this issue in favour of the plaintiffs holding that Ex.A-1 sale deed is not hit by Section 47 of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. This finding has been reversed by the first appellate Court and it being a substantial question of law, it is necessary to consider all the facts of this question.
21. Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as 'Tenancy Act') was enacted by erstwhile State of Hyderabad in the year 1950. Section 47 of the said Act required previous sanction of Talukdar (District Collector) for non-alienation (sic. alienation) of all agricultural lands. That Section was amended subsequently and Talukdar (District Collector) has been substituted by Tahsildar. It was, however, repealed with effect from 18-3-1969. As the transaction under Ex.A-1 is of 1967, it was contended on behalf of the defendant that previous sanction of Tahsildar Under Section 47 of the Tenancy Act was essential and want of sanction renders the transaction void. As already indicated above, the trial Court repelled the above contention, but the lower appellate Court held the same in favour of the defendant. Hence Question No. 2 has arisen in this Second Appeal.
22. Mr. D. Gopal Rao, learned Counsel for the plaintiffs contended that it was originally Government land and it was assigned to Baliah and Section 102 of the Tenancy Act excludes such lands. He further contended that the repeal of the said Act operates retrospectively as held by the Supreme Court in Subrahmanyam v. Hyderabad Municipality, (FB); C.V. Narayan Reddy v. K. Raghava Reddy, .; Syed Rafinddin v. S. Asaduddin, 1984 (2) APLJ 75 . and S. Yadamma v. S.N. Co-op. Housing Bldg. Society, 1987 (1) ALT 742 and contended that Ex.A-1 sale is a valid transaction. He has, however, argued that the judgment cited supra (5) which was followed by the lower appellate Court on this aspect has no application to the facts of the case. On the other hand, Mr. K.G. Kannibhiran, learned Counsel for the defendant vehemently contended that Section 47 of the Tenancy Act is a bar for all transactions of agricultural lands and Ex.A-1 sale deed which was executed prior to the repeal of Section 47 is a void document and no rights flow from such a transaction. He further contended that Section 102 (a) of the Tenancy Act cannot be pressed in to service as the character of the land changed from Government land to patta land consequent upon grant of patta in favour of Baliah and it was not a Government land in the hands of Baliah.
23. I have applied my earnest consideration to all the contentions raised by both the learned Counsel. I shall first consider whether Section 102(a) of the Tenancy Act is applicable or not. A reading of Section 102(a) of the Tenancy Act shows that certain categories of lands are excluded from the purview of the Act. They are lands leased, granted, alienated or acquired in favour of or by the Central Government or the State Government, a local authority or a Co-operative Society. Ex.A1 sale deed was executed by the legal representatives of Baliah, the original assignee. Although it was a Government land prior to assignment in favour of Baliah, its character has changed subsequently and when it passes on to third parties, it is understandable that the character of the land is only an agricultural land. I have, therefore, no hesitation to hold that Section 102(a) of the Tenancy Act does not apply to the transaction under Ex.A-1.
24. I shall now consider the effect of repeal of Section 47 of the Tenancy Act. In Satyadhyan v. Smt. Deorajin Debi, . , the Supreme Court considered the effect of amendment of Calcutta Thika Tenancy (Amendment) Act, 1953, omitting Section 28 thereof and held that Section 28 cannot, after the Amendment Act came into force, be applied to any proceeding pending on the date of commencement of Calcutta Thika Tenancy Ordinance, 1952. Sri Gopal Rao, thus, argued that Section 47 Tenancy Act has been repealed even before the institution of the present suit and hence the rigour of Section 47 cannot be applied either to the suits pending on the date of the repeal or to the suits that are filed subsequently. The learned Counsel for the plaintiffs placed strong reliance upon judgments cited supra 2,3 and 4 and contended that the repeal of Section 47 of Tenancy Act has to be construed as retrospective and it has, therefore, no effect upon Ex.A-1 sale deed.
25. In the judgment cited supra (2), a Full bench of this Court held:
"...........But it has to be noted that in view of the recent legislation viz., Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (Third Amendment) (Act 12 of 1969) which came into force on 18-3-1969, Section 47 and the other connected provisions of the main Act have been omitted with the result that no sanction is at all necessary before confirming the sale in favour of the 5th respondent".
26. In the judgment cited supra (3), it is held: "Subsequent to deletion of Section 47 of the Tenancy Act, it is needless to establish for the purpose of availing Sec.53-A of the T.P. Act, that the contracts of sale entered into during the period when Section 47 was in vogue were with permission. Since it stood deleted, it is no more imperative to show that any such permission was obtained nor the absence would invalidate either the transaction or the possession of the land in the hands of alienee or transferee. Subsequent to deletion of Section 47, no sanction at all is necessary for finalisation even with regard to agreements of sale entered into prior to the deletion of Section 47, by way of registration of sale deeds or otherwise. A fortiori, the possession of the lands giver in pursuance of agreements of sale is quite valid and lawful and therefore the parties concerned are entitled to avail the provisions of Section 53-A T.P. Act".
27. In the judgment cited supra (4), it is held:
"In the instant case at the time when Ex.B-1 was obtained there was prohibition contained in Section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act. It was however repealed with effect from 18-3-1969 and the suit was filed on 20-3-1969, two days after Section 47 was repealed. As by the time the suit was instituted Section 47 of the Act stood deleted, no sanction for finalisation of registration of Ex.B-1 was necessary".
I carefully perused the above cases and I am of the view that the ratio laid down by this Court in all three judgments including that of Full Bench is that in view of repeal of Section 47 of Tenancy Act with effect from 18-3-1969 all previous transactions are in no way affected. Ex.A-1 sale deed dated 20-3-1967 is, therefore, a valid transaction. Question No. 2 is thus held in favour of the plaintiffs.
28. Question No. 3:
The plaintiffs sought for declaration of title and possession as on the date of institution of the suit. Their case is that the defendant-Society purchased 15 acres of land in R.S.Nos. 121/A and 129/92/3 and tresspassed into the suit land which is in R.S. No. 120/4 corresponding to old S. No. 403/5. It may be noticed from the pleadings that the plaintiffs have been asserting that the disputed land is in S. No. 120/4 of Shaikpet village, whereas the defendant-Society has been contending that it is part of R.S.Nos. 121/A and 129/92/3. The trial Court appointed the Inspector of Survey, Settlement and Land Records as Commissioner to survey the land and localise the suit land with the aid of Tippan and Survey map. The Commissioner executed the warrant and localised the disputed land reported to the Court that it is part of R.S. No. 120/4 (old S. No. 403/5) of Shaikpet village. Ex.C1 is the report and the Commissioner is examined as P.W.2. The plaintiffs then filed a Memo on 4-11-1988 stating that the defendant vacated the disputed land in view of the report of the Commissioner. Hence the relief of possession has not been pressed. Then remained the relief of declaration of title only. On behalf of the defendant it is now argued that suit for mere declaration is not maintainable under proviso to Section 34 of Specific Relief Act, whereas Mr. Gopal Rao contends that subsequent change of circumstances will have to be kept in view and in such a case, there is no necessity for any further relief and hence the proviso to Section 34 does not apply.
29. Section 34 of Specific Relief Act reads as under:
"Discretion of Court as to declaration of status or right:- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no-Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so".
30. In Nurimian v. Ambika Singh, 44 Culcutta 47 it is held:
"Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application and in a long series of decision.... the doctrine has been recognised that there are cases where it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties".
31. In Meghaji v. Anant Pandurang, AIR 1948 Bombay 396 it is held:
".........The consequential relief viz., recovery of possession or partition could have been prayed for by an amendment in the plaint. As this was not done till the decree was passed, it is contended that the suit was bad under the proviso to Section 42 Specific Relief Act and should have been dismissed. This very question arose in 16 Lab. 729 where it was held that the plaintiff's right to maintain a suit for a declaratory decree is not affected by the fact that during the pendency of the suit the right to possession has also accrued to him. The same view was taken in AIR 1925 Cal. 819. The ordinary rule is that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. But as held in 31 Bom. L.R.476 the Court is bound to take notice of events that had happened since the institution of the suit and to mould its decree according to the circumstances as they stood at the time the decree was made. This does not mean that the suit which was maintainable at the institution of the suit becomes bad by reason of the subsequent event which required the moulding of the decree in a manner appropriate to the altered circumstances."
It is noteworthy that in both the above cases the subsequent events have been considered and it has been held that in view of the subsequent events there was no need to claim any consequential relief of recovery 6f possession. Hence I hold that the suit is in no way affected by proviso to Section 34 Specific Relief Act. Question No. 3 is answered accordingly.
32. Question No. 4:
The suit is based upon title. It is needless to repeat the facts. Suffice it to say that Article 65 of the Limitation Act is applicable. It is well settled that it is for the defendant to establish adverse possession for more than 12 years to non-suit the plaintiffs. Both the Courts below have concurrently held that the defendant-Society failed to establish adverse possession for more than 12 years and hence it follows that the plaintiffs cannot be non-suited. Question No. 4 is, therefore, held in favour of the plaintiffs.
33. In view of my findings on substantial questions 1 to 4, this Second Appeal is fit to be allowed and consequently the plaintiffs' suit has to be decreed. In the result, the Second Appeal is allowed and the judgment and decree of Additional Chief Judge (Temporary), City Civil Court, Hyderabad, in A.S. No. 98 /1991, dated 1-3-1996 is set aside and the judgment of the trial Court IV Additional Judge, City Civil Court, Hyderabad, in OS. No. 603/1981, dated 18-3-1991 is restored. There will be no order as to costs.