Andhra HC (Pre-Telangana)
T. Bhaskara Rao And Anr. vs Tangella Mudi Gabriel And Anr. on 8 August, 2003
Equivalent citations: 2004(1)ALD589, 2004(2)ALT59, AIR 2004 ANDHRA PRADESH 106, (2004) 2 CIVILCOURTC 282 (2004) 2 ANDH LT 59, (2004) 2 ANDH LT 59
JUDGMENT C.Y. Somayajulu, J.
1. Plaintiffs in O.S. No. 350 of 1978 on the file of the Court of the Principal District Munsif, Gudivada are the appellants in this second appeal.
2. For the sake of convenience, the parties would hereinafter be referred to as they are arrayed in the trial Court.
3. The case, in brief, of the plaintiffs is, second plaintiff is the son of the first plaintiff. Nakshtram, the mother of the defendants sold Ac.0.49 cents of wet land in R.S.No. 214/2 of Vennanapudi Village, specified in the plaint 'A' Schedule (the suit land) to the first plaintiff on 27-3-1958 under a registered sale deed dated 6-6-1958, in pursuance of an agreement of sale in favour of the first plaintiff and put him in possession and enjoyment of the said land. Rayappa, the father of the defendants was a member of the Field Labour Co-operative Society, which owned acres 26.65 cents of land in patta No. 199. As a member of the said society, he was allotted Ac.0.34 cents of land in the patta land. He exchanged the said land in Patta No. 199 with Ac.0.34 cents of wet land in R.S.No. 41/2 of Vennapapudi Village, belonging to the predecessors-in-title of Surapaneni Venkateswar Rao, which is described in the plaint B Schedule. For the purpose of convenient enjoyment, first plaintiff, defendants and their father exchanged plaint A Schedule land, i.e., suit land with plaint B Schedule land under an agreement of Exchange dated 11-6-1958 and as such first plaintiff has been paying cist for plaint B Schedule land. Since agreement of exchange did not transfer of the title, the title to the suit land still vests with the first plaintiff. Since an extent of Acres 1.84 cents in occupation of Surapaneni Venkateswara Rao and others including the land of the Field Labour Co-operative Society was utilized for excavation of a drainage channel Venkateswar Rao took away the plaint 'B' Schedule land from the plaintiffs on 6-12-1976 and so plaintiffs are entitled to recover possession of the plaint 'A' schedule property from the defendants.
4. The case, in brief, of the defendants in their written statement is, both their parents are illiterates. Their father was the farm servant of the first plaintiff for a long time. Their mother Nakshtram also used to work as a coolie under the first plaintiff, who is a well-versed litigant. As such first plaintiff took the signatures of the parents of the defendants on several blank papers. Their mother who is the owner of the plaint 'A' Schedule land i.e., suit land never sold or exchanged it with that of the first plaintiff and did not receive any consideration from him. The alleged exchange of suit land for plaint 'B' Schedule land is not true. They are not aware if an extent of Ac. 1.84 cents in the occupation of Surapuneni Venkateswam Rao and others was taken over by the Government for excavating drainage canal and whether Surapuneni Venkateswara Rao took back the plaint 'B' schedule land from the first plaintiff.
5. The Trial Court framed four issues and two additional issues for trial. In support of their case, plaintiffs examined five witnesses including the first plaintiff as PW1 and got marked Exs A1 to A19. In support of their case defendants examined only the second defendant as DW1 and marked Ex.B.1 on their behalf. On additional Issues 1 and 2, relating to the questions whether the exchange pleaded by the plaintiffs is true and valid and whether the plaintiffs are in possession of the plaint 'A' and 'B' Schedule lands the Trial Court held that the transaction of exchange pleaded by the plaintiffs is true and valid and is binding on the defendants and that the plaintiffs were in possession of the plaint 'A' schedule land (suit land) from 6-5-1958 to 11-6-1958 i.e., the date of Ex.A18 Exchange Deed, and from 11-6-1958, the plaintiffs were in possession of plaint 'B' Schedule land till they were dispossessed. On issue No. 1, which relates to the question whether the defendants perfected their title to the plaint 'A' schedule property (suit land) by adverse possession, the Trial Court held in favour of the defendants. On issue Nos. 2 and 3, which relate to question whether the plaintiffs are entitled to mesne profits and damages, the Trial Court held against the plaintiffs and on the basis of the findings on other issues, on issue No. 4 which relates to relief, the Trial Court dismissed the suit of the plaintiffs. Appeal preferred by the plaintiffs in A.S. No. 78 of 1981 before the Court of Subordinate Judge, Gudivada met with the same fate. Hence this second appeal by the plaintiffs.
6. The point for consideration is whether the plaintiffs are entitled to recover possession of the plaint 'A' schedule land from the defendants ?
7. The main contention of the learned Counsel for the plaintiffs is that since the defendants were inducted into possession of the suit land under Ex.A18 agreement, their possession is but permissive in nature, and so the essential ingredient for adverse possession i.e., it should be in the nature of trespass, is lacking in this case and so, both the Courts below erred in holding that defendants perfected their title to the plaint 'A' schedule land (suit land) by adverse possession and that both the Courts below were in error in ignoring the provisions of Section 119 of the Transfer of Property Act (for short "the Act"). It is his contention that since the suit land was sold to the plaintiffs by the mother of the defendants, and since in every sale there is a warranty of title and since as per Section 119 of the Act, if the property received in exchange is lost due to any defect in title of one of the parties thereto, the other party is liable to return the thing transferred, if he is still in possession of such property, and since the plaint 'B' schedule property was lost because of the defective title of the defendants, plaintiffs are entitled to recover possession of the suit land from the defendants. Relying on the observations in Mahendra C Mehta v. Kousalya Co-operative Housing Society Limited, Hyderabad, , he contended that long standing possession, without animus, does not constitute adverse possession. Relying on Alakhdeo Singh v. The Gaya District Board, , and Raju Roy v. Kasinath Roy, , he contended that a person entering into possession of property in a particular capacity, can at best prescribe title to the property in that capacity, i.e., the capacity in which he entered into possession, and so plaintiffs are entitled to recover possession of the suit land from the defendants. He also relied on Rajagopalan v. Kasivasi Somasundara Thambiran, ILR 30 Mad. 316, and S.M. Karim v. Bibi Sakina, , in support of the contentions raised by him. The contention of the learned Counsel for the defendants, is that the first plaintiff, taking advantage of the fact that the parents of the defendants who were illiterates, were their servants, took their signatures on several blank papers and so the documents allegedly executed by them cannot be said to be genuine. It is his contention that in any event since the averments in the plaint and the evidence on record, does not show that possession of the plaint 'B' Schedule was lost due to any defect in their title of the parents of the defendants and since the specific averment in the plaint is that the plaintiffs were forcibly dispossessed by a third party from the plaint 'B' Schedule land, the remedy of the plaintiffs, if any, was to proceed against the person who wrongfully dispossessed them and any forcibly dispossessed by a third party is not and cannot be a ground for seeking recovery of the suit land allegedly taken in exchange for the plaint 'B' Schedule land by invoking Section 119 of the Act and in any event and since Ex.A18 is an unregistered document, and since defendants have been in continuous possession of the suit land from the date of Ex.A18, as held in Kasinath v. Makchhed, AIR 1939 All. 504, defendants should be deemed to have perfected their title to the suit land by adverse possession. He also relied on Bondar Singh v. Nihal Singh, 2003 (2) Scale 589. In reply, the contention of the learned Counsel for the plaintiffs is that the ratio in Kasinath's case (supra) has no application to the facts of this case because in that case, the applicability of Section 119 of the Act was not considered and since the ratio in Bondar Singh's case (supra) is that this Court can interfere with the concurrent findings of the Subordinate Courts which are contrary to the evidence on record, and since both the Courts below in this case have not properly appreciated the evidence on record on the question of adverse possession, this Court can interfere with the said concurrent findings.
8. I find force in the contention of the learned Counsel for the defendants that since it is not the case of the plaintiffs that they lost possession of the plaint 'B' Schedule property, taken in exchange of the suit land, due to a defect in the title of the defendants or their father, the provisions of Section 119 of the Act do not apply to this case. The specific averment in paragraph 4 of the plaint is "recently the field society lands of an extent of Acres 1.84 cents in the occupation of the said Suprapaneni Venkateswar Rao and some others was used by the Government to excavate a drainage channel in it. So the said Venkateswar Rao took back the said plaint B schedule land from the plaintiffs on 6-12-1976 together with the crop thereon."
If Surapaneni Venkateswar Rao had forcibly taken possession of the plaint 'B' schedule land from the plaintiffs, their remedy was to file a suit against the said Venkateswar Rao and recover possession of that property from Venkateswar Rao on the basis of their possession, on the basis of their long standing possession if not on the basis of their title, because, according to them, they have been in continuous possession of the plaint 'B' schedule property from the date of Ex.A18 dated 11-6-1958 up to the date of the filing of the suit in 1976 i.e., nearly for a period of 18 years. The reasons for not initiating proceedings against Surapaneni Venkateswar Rao are not even mentioned in the plaint.
9. It is no doubt true that as per Section 119 of the Act, if by reason of any defect in the title a party to exchange is deprived of the thing that was received by him in exchange, the other party is liable to return the thing transferred if he is still in possession of such property. Therefore, the sine qua non of the applicability of Section 119 of the Act is a party to the exchange losing possession by virtue of the 'defect in title' of the property or thing received in exchange. If some body forcibly dispossesses a person who has taken a property or thing in exchange by him he cannot, by invoking Section 119 of the Act, seek recovery of the property or thing, which he gave in exchange to the other party. In case of sale also if the purchaser is deprived of his possession of the property purchased by him by a trespasser his remedy would be to proceed against the trespasser but not against his vendor for recovery of the sale price on the ground of trespass. Similarly in the case of exchange also only if the deprivation is due to the defect in title can, Section 119 of the Act be invoked, but not in a case of trespass by third parties. From the allegations in the plaint itself it is clear that Section 119 has no application to the facts of this case.
10. In my considered opinion Rajagopalan's case (supra) has no application to the facts of this case. In that case A, the trustee of a temple, exchanged certain temple lands with B and took possession of the lands from B. C, a third party, brought a suit against A for recovery of the land obtained by A in exchange from B that suit was decreed in favour of C. On 18-12-1890, A, the trustee, was deprived of the possession of the property in execution of the decree by C. Appeals preferred by A to the District Court and High Court were dismissed. The Second Appeal was disposed of on 23-2-1892. On 22-2-1904, As successor trustee brought a suit against B for recovery of the lands taken in exchange by him from A. B contended that the suit was barred by limitation. Repelling that contention it was held that since the right to invoke Section 119 of the Act can be said to have arisen only when the decree for possession against B was confirmed in second appeal by the High Court, but not earlier, the suit filed within 12 years from the date of disposal of the second appeal is well within time. Therefore, it is clear that the said decision relates to the question as to when limitation for invoking Section 119 of the Act would arise. Since the said decision does not lay down that Section 119 can be invoked even in cases where the dispossession was not due to the defect in title of a party to the exchange the said decision is of no help to the plaintiffs.
11. The ratio in Raju Roy's case (supra) is that though an action against a transferee under a void lease or sale, when it is brought beyond 12 years, would be barred by limitation under the statute, the possessor cannot acquire a right higher than what he was actually prescribing for. In that case the transaction of lease was held to be void, but the lessee under such void lease cannot claim a higher interest in the land than that of a permanent lessee. The same view was taken in Alakhdeo Singh's case (supra) by another Division Bench of the same High Court.
12. A Division Bench of this Court in Satyapramoda Thirthaswamulavaru v. M. Gunnayya, , held that a lessee in possession of lands for over 55 years, should be deemed to have acquired rights of perpetual lease by adverse possession. In my considered opinion, this decision instead of helping the contention of the plaintiffs in a way helps the contention of the defendants that they perfected their title the suit land by adverse possession because they admittedly entered into possession of the suit land in the capacity of the owners but not in any other capacity and have been in possession thereof from 1958 till the date of filing of the suit in 1978. If we apply the ratio in the three decisions relied on by the learned Counsel for the plaintiffs, it is easy to see that defendants prescribed their title to the suit land by adverse possession as owners. Therefore, both the Courts below placing reliance on Kashinath's case (supra) for holding that defendants prescribed title to the suit land by adverse possession cannot be said to be erroneous.
13. In S.M. Karim's case (supra) while dealing with a suit filed on a plea by the plaintiffs that they have prescribed title to the land covered by the suit by adverse possession the Supreme Court held that for prescribing title by adverse possession, possession must be adequate in continuity, in publicity so that the starting point of limitation against the party affected can be known. In this case, defendants are resisting the plaintiff's suit for recovery of possession. They are not seeking any relief on the ground of adverse possession. It is well known that in suits for recovery of possession, the plaintiff should succeed on the strength of his case but not on the weakness, or the defects in the case of the defendants. So, merely because there are some defects in the pleadings of the defendants, plaintiffs who did not make out a case for recovery of possession, cannot be granted the relief sought.
14. Mahendra C. Mehta's case (supra), is a suit for recovery of possession of immovable property, where the defendant pleaded acquisition of title to the property covered by the suit by adverse possession. In that case the distinction between Article 64 and Article 65 of Limitation Act, 1963 was considered. The said decision is of no help in deciding this case, because even according to the plaintiffs, they put the defendants in possession of the suit land in exchange of the plaint 'B' schedule land, and the plaintiffs enjoyed the 'B' schedule property as owners till they were dispossessed by the Surapaneni Venkateswar Rao, and defendants have been enjoying the suit land as owners. Plaintiffs are seeking recovery of the suit property by taking recourse to Section 119 of the Act on the ground that they were deprived of the plaint 'B' land by a third party high-handedly. Since the plaintiffs failed to make out a case for invoking the benefit under Section 119 of the Act, and since the long standing possession of the defendants cannot be disturbed at the whims and fancy of the plaintiffs, I find no grounds to interfere with the concurrent findings of the Courts below that the plaintiffs are not entitled to relief sought against the defendants. The point is answered accordingly.
15. In the result, the appeal is dismissed but in the circumstances without costs.