Andhra HC (Pre-Telangana)
Pavan Kumar And Anr. vs K. Gopalakrishna And Anr. on 17 February, 1998
Equivalent citations: 1998(2)ALD421, 1998(2)ALT313, AIR 1998 ANDHRA PRADESH 247, (1998) 1 LS 423, (1998) 3 CIVILCOURTC 60, (1998) 2 ANDHLD 421, (1998) 1 APLJ 382, (1998) 3 CIVLJ 665, (1998) 2 CURCC 536, (1998) 2 ANDH LT 313
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi, B.V. Ranga Raju
ORDER P. Venkatarama Reddi, J.
1. This Letters Patent Appeal is preferred against the judgment of the learned single Judge in the appeal filed against the judgment and decree in OS.No.14 of 1981 (on the file of the Additional District Judge, Adilabad).
2. The appellants in this LPA as well as the first appeal are the defendants in the suit. The suit was filed for a declaration of title over a site of 375 Sq. Yards situated within the Municipal limits of Adilabad Town. The plaintiff also sought for restoration of possession of the suit land after removing the temporary structure erected by the defendants. The suit was decreed by the trial Court holding all the issues in favour of the plaintiff on appeal, the trial Court's judgment was confirmed by the impugned judgment. That judgment of the learned single Judge is reported in Pavan Kumar v. K. Gopala Krishna, 1990 (1) A.L.T. 209.
3. It is the admitted case that the plot of land, which is the subject-matter of the suit, originally belonged to one Sri Lateef Ahmed. The plaintiff's case is that he purchased from Sri Lateef Ahmed a plot of land measuring 110 x 80 Yards pursuant to an agreement of sale (EX A3) dated 22-4-1952 executed by the said Lateef Ahmed, who died in the year 1971. The plaintiff left Aditabad in the year 1959 leaving the suit land in the custody of one Nazimuddin. Out of the same parcel of land, a small portion thereof measuring 15 x 30 Cubits was sold by Lateef Ahmed to Nazimuddin under an unregistered sale deed. The plaintiff submits that in order to avoid litigation, he agreed to adjust with Nazimuddin. It is the further case of the plaintiff that after the death of Sri Lateef Ahmed, he paid the balance consideration to the sons of Lateef Ahmed and they confirmed the agreement of sale executed by their father on 24-8-1976. As the sons neglected to execute a registered sale deed, the plaintiff filed OS.No.40 of 1976 for specific performance of the agreement.
The said suit-OS.No.40 of 1976 filed against the L.Rs. of Lateef Ahmed, was decreed ex parte on 11-10-1976. The sale deed was executed and registered on 3-12-1976.
4. While so, the possession of the suit plot was delivered to the defendants on 17-7-1976 in EP.No.12of 1976 in execution of decree in OS.No.43 of 1974 on the file of the District Munsif. That suit was filed by the defendants (appellants herein) against one Choudary Rajanna, who according to the defendants, executed an agreement of sale dated 28-8-1974 (Ex.B-9) in respect of the very same land. Choudary Rajanna, even according to the defendants, got title to the land through the plaintiff i.e., the 1st respondent herein. As per the defendants, Gopala Krishna sold the land in question to Choudary Rajanna under an agreement of sale Ex.B22 dated 8-10-1952. OS.No.43 of 1974 was filed by the appellants for specific performance of the agreement against Rajanna on 4-ll-1974. Within a few days, the suit was decreed, as Rajanna admitted the suit claim. A sale deed was got registered through Court on 22-2-1976. EP.No.12 of 1976 was filed for possession, as already noted.
5. Thus, it is seen that the plaintiff filed the suit OS.No.40 of 1976 against the sons of late Lateef Ahmed and obtained an ex parte decree for specific performance. The appellants herein filed a suit OS.No.43 of 1974 against Choudary Rajanna and obtained a consent decree for specific performance. Both the decrees are alleged by each other--not without justification, as collusive decrees. It is to be further noted that the appellants-defendants claim to have derived title through Choudary Rajanna (examined as DW3), who according to the appellants themselves, purchased the land from the plaintiff Gopala Krishna. Be it noted at this juncture that the sale by the plaintiff Gopala Krishna in favour of Choudary Rajanna was disbelieved by the trial Court and the trial Court was not inclined to accept the genuineness of the agreement (Ex.B9) alleged to have been executed by Choudary Rajanna.
6. After the possession was delivered to the appellants pursuant to the decree they obtained in OS.No.43 of 1974 filed against Rajanna, the plaintiff (1st respondent herein) did not take immediate legal steps to recover possession, but he waited till the year 1981 when he filed the present suit alleging that the defendants came into possession of the suit land by virtue of a collusive decree and their vendor namely Rajanna had no title. It was also alleged that the defendants put up a temporary shed in the year 1972 without the permission of the plaintiff. It is averred by the plaintiff that the extent of plot purchased originally has since diminished with the formation of National Highway and the suit is laid for recovery of possession of the remaining land, which is 375 Sq. Yards.
7. Let us now notice the developments between 1976 and 1981, i.e. after the admitted dispossession of the plaintiff and the filing of the present suit. Nazimuddin, who according to the plaintiff, was in actual possession of the suit plot by the date of dispossession and who purchased a small portion of the same land from the original owner Lateef Ahmed, filed EA.No.11 of 1976 under Order 21 Rule 100 CPC on 6-8-1976 in the Court of the District Munsif, Adilabad complaining against dispossession Gopala Krishna (respondent-plaintiff) was examined as PW-1 in that suit. After enquiry, the learned District Munsif dismissed the E. A on 6-2-1981 on the ground that Nazimuddin was not having title and possession. Within ten days thereafter, OS.No.14 of 1981 i.e. the present suit was filed by Gopala Krishna. Nazimuddin filed AS.No.12 of 1981 in the District Court, Adilabad questioning the order in EA.No. 11 of 1976. The Additional District Judge allowed the appeal by his judgment dated 3-3-1986. The appellate Court, while confirming the findings of the trial Court on the question of title, however, held that the appellant (Nazimuddin) was in possession of the land on the date of dispossession on 17-7-1976. Against the judgment in AS.No.12 of 1981, SA.No.368 of 1986 was filed in this Court. The second appeal was dismissed by the learned single Judge by a common judgment along with AS.No.1162 of 1987, out of which the present LPA arises. As far as the second appeal is concerned, the matter was carried in appeal to the Supreme Court and me same is pending. We are told that the hearing of the appeal has been postponed by the Supreme Court, awaiting the judgment in this LPA.
8. The first and foremost contention raised before us as well as before the learned single Judge by the learned Counsel for the appellants is that the suit is not maintainable in the light of the provisions of Order 21 Rule 99 read with Rule 101 CPC. The first limb of this argument is that the order passed by the Executing Court in E.A.No. 11 of 1976 is binding on the plaintiff Gopala Krishna as well and it is not open to him to file a separate suit after the dismissal of the E.A. filed by Nazimuddin. The underlying basis of this argument is that Nazimuddin who was the applicant in E. A.No. 11 of 1976 is or shall be deemed to be the representative of Gopala Krishna. Having regard to the pleadings and the evidence and the scope of the application in E.A.No. 11 of 1976, we find it difficult to countenance this argument. The learned Counsel for the appellants wants to seek reliance on the statement in paragraph 3 of the plaint that the plaintiff left for Adilabad in the year 1959 "leaving the suit land in the custody and care of one Syed Nazimuddtn" coupled with the deposition of Nazimuddin examined as PW5 that the plaintiff asked him to 'supervise' the land, while leaving Adilabsd. But, as rightly pointed out by the teamed trial Judge, Nazimuddin did not say a word in the E.A. filed by him about his being in possession of the adjacent plot belonging to Gopala Krishna at the instance and on behalf of Gopala Krishna.
9. Nazimuddin claimed title to a part of the suit land in his own right. He merely stated in the application that he was also in possession of the adjacent vacant plot which was of no use to the vendor." There was no specific mention of Gopala Krishna or he being the 'custodian' of the suit plot on behalf of Gopala Krishna. It was only in the course of oral evidence that some attempt was made to explain that his possession of the suit plot was on behalf or at the behest of Gopala Krishna. That apart, it may be seen that the subject-matter of E.A.No.11 of 1976 was a smaller plot of land claimed by Nazimuddin. There could not have been an adjudication in E.A.No.11 of 1976 in respect of the suit plot. Therefore, it cannot be said that Nazimuddin was representing the plaintiff in E.A.No.11 of 1976 or espousing the cause of the plaintiff.
10. The next limb of the argument based on Rule 99 to Rule 101 of Order 21 CPC is that in a situation contemplated by Order 21 Rule 99 CPC, the procedure laid down therein has to be necessarily followed and it is not open to the person dispossessed to file a separate suit in view of the bar contained in Rule 101. In other words, it is contended by the learned Counsel for the appellants that after the amendment of Order 21 Rule 101 by the C.P.C. Amendment Act, 1976, the resort to suit is altogether barred and the application under Order 21 Rule 99 and the appeal under Rule 103 are the exclusive remedies available. We find it difficult to accept this contention. We agree with the learned single Judge that the bar against filing of a separate suit would apply only if there was an application under Rule 99 but not otherwise. The third party aggrieved by dispossession in execution of a decree, may make an application to the Court complaining such dispossession. If he makes such an application, all questions including questions relating to right, title and possession in the properties shall be decided in that application as if it were a full-fledged suit for title and possession and no separate suit would lie for this purpose. However, an appeal lies under Rule 103 as if the order passed on such application were a decree. We are unable to visualise the provisions of Rules 99 to 101 even after amendment as laying down an exhaustive Code on the remedies of the third parties dispossessed in execution of a decree for possession. The remedy under Order 21 Rule 99 CPC is no doubt one of the remedies available to the person dispossessed. But, we are unable to construe Order 21 Rule 99 as placing a bar on bringing an independent suit for possession, without filing an application under the said Rule. Such a bar, in our view, does not arise even by necessary implication.
11. No doubt, there is a qualitative change in the scope of determination after the amendment of 1976 and it is no longer a summary proceeding to determine the question of possession but it embraces within its scope all questions relating to right, title and interest in the property. But, this change, by itself, does not deprive the aggrieved person of the resort to ordinary civil suit. Apart from the expression 'may' employed in Rule 99 which prima facie denotes that the remedy under Rule 99 is not compulsive, there is one relevant consideration which weighed with us in coming to the conclusion that the suit is not intended to be barred. The limitation prescribed for filing an application of the nature contemplated by Order 21 Rule 99 is as short as 30 days. It is not uncommon that the dispossession might often take place in the absence and without the knowledge of the person in possession. The person in possession may be residing at a distant place or in a different country. In such a situation, it is hard to visualise that the legislative intent was to deny the remedy on the expiry, of 30 days. Whether 30 days' time has to be computed from the date of knowledge of dispossession and what is the date of knowledge would evoke controversies. All these considerations have impelled us to concur with the view expressed by the learned single Judge and to hold that the suit is not barred.
12. The second point argued with vehemence by Mr. Vilas Afzalpurkar, the learned Counsel for the appellants, is the point of limitation. Here again, we are not inclined to differ with the view taken by the learned single Judge. It cannot be seriously disputed that the relevant Article applicable is Article 65, as the suit is not for declaration simplicitor. Article 65 says :
"65. For possession When the posses-
of immovable sion of the de-
property or any Twelve fendant becomes interest therein years adverse to the based on title. plaintiff."
13. The suit is essentially and primarily a suit for possession based on title. The mere fact that the declaration of title is also sought for therein does not bring it within Article 58 or 113 so as to attract the three years period of limitation, as observed by the learned single Judge. There is practically no controversy as to title for the simple reason that the defendants recognise the plaintiff as the predecessor-in-title and it is the specific case of the defendant that the plaintiff sold the property to Choudary Rajanna, who in turn effected the sale to them. As already noticed, the sale by Gopala Krishna to Choudary Rajanna was disbelieved by the trial Court. Under these circumstances, as far as the title of the plaintiff is concerned, there could hardly be any controversy that a formal declaration of title from the Court was sought for, may be by way of caution. Realising the difficulty in pursuing the argument as regards inapplicability of Article 65, the learned Counsel for the appellants has chosen the obvious course of highlighting the alternative argument that even if Article 65 applies, the suit is barred.
14. It is the contention of the appellants' Counsel that the appellants-defendants have successfully established that either they or their predecessor-in-title namely Choudary Rajanna had been in possession for more than 12 years prior to the dale of filing of the suit and such possession was adverse to the interests of the plaintiff. In other words, according to the learned Counsel, the facts reveal the open, hostile and exclusive possession of the defendants for more than the statutory period of 12 years, which by necessary implication means that the plaintiff was not in possession. On the other hand, it is contended by the learned Counsel for the respondents that the plaintiff was dispossessed only in July 1976 in execution of the decree and it is not at all established by the defendants that they were in adverse possession of the suit land for atleast 12 years prior to the date of filing of the suit in 1981.
15. It is now settled law that in a case falling under Article 65, the burden lies on the defendants, who would like to defeat the plaintiff's title, to establish that they remained in adverse possession for 12 years. According to the learned Counsel for the appellants, the defendants must be held to have established this fact on the basis of the evidence on record. The documents-Exs.B15 to B20 which show the defendants' vendor Rajanna applying for permission of the Municipal Council to build on the disputed site in December, 1964 and the Municipal Council sanctioning the building plan subject to certain conditions in 1965 have been relied upon. The learned Counsel for the appellants commented that the lower Court failed to consider and attach due weight to the acts of possession as evidenced by the afore-mentioned documents. Though it is true that the trial Court did not consider the effect of the said documents which will have some bearing on the appellants' vendor's possession, we are unable to say that the trial Judge's finding on the issue of limitation is unsustainable the learned trial Judge rightly commented that the defendants did not raise the plea of adverse possession. It was also commented by the trial Judge that stray acts of putting some construction material on the site even if true do not prove continuity in possession. The view taken by the learned trial Judge, in our view, cannot be faulted. The plea of adverse possession has not been specifically taken by the defendants nor there are any words which undoubtedly and unerringly point to the inference that the plea of adverse possession must be deemed to have been raised by the defendants. The appellants were content with saying that the plaintiff was never in possession of the suit land within 12 years prior to the filing of the suit. It is on this ground the appellants wanted to non-suit the respondent-plaintiff. As regards the exercise of possessory rights by the defendants or their predecessor-in-title, what all is stated in the written statement is this:
"... Sri Choudari Rajanna was the owner and possessor of the suit land. He filed an application for grant of permission to construct a house on the suit land. The City Municipality Adilabad has granted conditional permission to construct the house to him in the year 1964-65. The defendants have also erected a shed over the suit land adjacent to Brundavan lodge for Garrage of their car in the year 1972 after obtaining permission from Chowdari Rajanna..."
Even assuming that the appellants' vendor Choudari Rajanna applied for permission to build a house and secured the permission during the year 1965, that fact by itself does not impart an element of openness and continuity to the alleged possession of Rajanna. From 1965 onwards, how and in what manner the disputed land was being enjoyed and acts of possession were being exercised, there is no iota of evidence. Even Choudary Rajanna who was examined as DW3, did not give an account of the alleged acts of possession after 1965. He merely spoke to the fact that he put up a fencing in the year 1952 soon after the alleged purchase from the plaintiff and having applied to the Municipality for permission to construct a house in 1964. He, however, stated that he did not construct the house for the reason that the Municipality imposed a condition that he must leave 75 feet from the centre of the National Highway. He admitted that when the Bailiff delivered possession of the suit site to the defendants, the building-material of PW1 was available on the site. Thus, the evidence of DW3 does not go to establish the open, continuous and exclusive possession till the date of the sale to the appellants herein in the year 1974. The period of 12 years prior to the suit takes us to 1969. It is only in 1972, the appellants admittedly put up a temporary structure. But, in 1976 it is the admitted case of the appellants that the possession was taken over through the Court and the plaintiff was dispossessed. As already noted, DW3 admitted that when the possession was delivered to the defendants the building material of PW1 (Plaintiff) were stored on the site. In this state of evidence, it is difficult to come to the conclusion that atleast for a period of 12 years prior to the date of the suit, the appellants-defendants were having the exclusive and continuous possession of the suit land. Thus, we find no satisfactory evidence to prove adverse possession-which plea, of course, has not been taken, as already observed. We have therefore no hesitation in rejecting the appellants' plea that the suit is barred by limitation.
16. In the result, the Letters Patent Appeal fails and is hereby dismissed. In the circumstances of the case, we direct both parties to bear their own costs.