K.M.Kistamma,Died Per Lrs A2 To 6 And 2 ... vs Gandaiah, Malakpet, And 3 Others on 17 June, 2025

[Cites 29, Cited by 0]

Telangana High Court

K.M.Kistamma,Died Per Lrs A2 To 6 And 2 ... vs Gandaiah, Malakpet, And 3 Others on 17 June, 2025

Bench: G. Radha Rani

      THE HONOURABLE DR. JUSTICE G. RADHA RANI


                          C.C.C.A.No.169 of 1994


JUDGMENT:

This appeal is preferred by the plaintiff aggrieved by the judgment and decree dated 21.02.1994 passed by the learned V Additional Judge, City Civil Court, Hyderabad in O.S.No.531 of 1982 for dismissing the suit filed by her seeking the relief of recovery of possession of the suit schedule property.

2. The suit schedule property is bearing No.16-2-147/53-54 admeasuring 1776 square yards situated at Akbar Bagh, Malakpet, Hyderabad in Plot Nos.85 and 86, which were subsequently rectified as 285 and 286 in Survey No.107 (old) (New Survey No.134). The respondents 1 to 3 were alleged to be the owners of plot Nos.238, 255 and 256 admeasuring 730 square yards in old Survey No.107 corresponding to new Survey No.134 in Malakpet, Hyderabad purchased in the name of respondent No.2. The respondents 1 to 3 belonged to one family. The respondent No.4 is alleged to be the owner of plot No.237 admeasuring 230 square yards.

3. The appellant No.1 died after filing the appeal and her sons were brought on record as appellants 2 to 6. The appellant No.2 died during the pendency of the appeal and his LRs were brought on record as appellants 7 and 8. The 2 Dr.GRR, J ccca_169_1994 appellant No.5 also died and his LRs were brought on record as appellants 9 to

11. The appeal was initially filed against respondents 1 to 4. The same was abated against respondents / defendants 1, 2 and 4. The respondent No.2 was the wife of respondent No.1. The respondent No.3 was the son of respondents 1 and 2. The respondent No.4 was not connected with the family of respondents 1 to 3. On the death of respondents 1 and 2, the other sons of respondents 1 and 2 were brought on record as respondents 5 to 7. The respondent No.4 died and her LR was brought on record as respondent No.8. The respondent No.6, another son of respondents 1 and 2 died and his LRs were brought on record as respondents 9 to 11. The respondent No.3 died and his LRs were brought on record as respondents 12 to 14.

4. The facts of the case in brief are that the appellant - plaintiff filed O.S.No.4219 of 1978 initially against respondents 1 and 2 alone on the file of the learned VI Assistant Judge, City Civil Court, Hyderabad for delivery of the suit schedule property after ejecting the respondents 1and 2 there from. Later, the suit was transferred to the learned V Additional Judge, City Civil Court, Hyderabad and was re-numbered as O.S.No.531 of 1982.

5. The parties are herein after referred to as plaintiff and defendants.

6. As per the plaint averments, the plaintiff contended that she purchased an open land admeasuring 1776 square yards in Plot Nos.85 and 86, which were 3 Dr.GRR, J ccca_169_1994 subsequently rectified as 285 and 286 in Survey No.107 (old) (New Survey No.134) from one Smt.Akbarunnisa Begum, D/o. late Nawab Huzur Yar Jung under a registered sale deed dated 21.08.1965 for a sum of Rs.2,000/-. After purchase, the vacant possession of the plots was delivered to the plaintiff by her vendor. The plaintiff obtained permission from the Municipal Corporation of Hyderabad (for short "MCH") for construction of shed in the open land and constructed a temporary shed. The plaintiff's vendor's father late Nawab Huzur Yar Jung purchased Survey No.107 (old) known as Akbar Bagh in the auction conducted by the High Court in execution of a decree. An objection petition was filed by Sarf-e-khas with regard to the ownership and possession of the said property and the same was dismissed by the High Court in its original jurisdiction in Case No.89/2 of 1334 Fasli. Subsequent to the dismissal of claim petition, the High Court in its original jurisdiction in Case No.109/1953-54 vide judgment dated 31.08.1954 declared the plaintiff's vendor as absolute owner of the land and delivered possession to the plaintiff. The plaintiff's vendor paid land revenue as per the Dharakha to the Tahsil, Hyderabad (West), which was entered in Kirdi No.200, page No.303. Subsequently Survey NfFo.107 (old) was divided into several plots as per layout plan sanctioned by the High Court. The plaint schedule plots bearing Survey Nos.85 & 86 admeasuring 1776 square yards was part of Survey No.107 (old), Akbar Bagh, Malakpet, Hyderabad, which was the subject matter of the suit. Since the date of purchase, the 4 Dr.GRR, J ccca_169_1994 plaintiff was in exclusive possession and enjoyment of the plaint schedule property without any hindrance and interruption. The defendant No.1 was the husband of defendant No.2. Taking advantage of temporary absence of the plaintiff and her husband in the last week of May, 1978, the defendants 1 and 2 trespassed into the plaint schedule property and forcibly erected a shed in the suit property. The plaintiff made complaint of trespass and illegal possession of the defendants to police, but the police did not take any action. As the defendants failed to vacate the schedule property inspite of repeated demands and requests made by the plaintiff, the plaintiff filed the suit seeking the relief of recovery of possession by evicting the defendants or anyone claiming through them.

7. The defendants 3 and 4 were brought on record in the suit in the year 1979 under Order I Rule 10 of CPC.

8. The defendants 1 to 3 filed written statement contending that one Sri Khaja Moinuddin was the absolute owner, possessor and pattedar of the land bearing old Survey Nos.105 to 107 (corresponding to new Survey Nos.131 to

134) including their sub-division numbers situated opposite to Mahboob Mansion, Malakpet, Hyderabad. The patta of the above said land was granted in the year 1340 Fasli in favor of said Sri Khaja Moinuddin. Sri Khaja Moinuddin had been in possession and enjoyment of the above said land even 5 Dr.GRR, J ccca_169_1994 prior to the date of mutation of patta in his name. One Birbhangirji got attached the old Survey No.107 of Malakpet Village in execution of a decree against Smt.Akbarunnisa Begum, the alleged vendor of the plaintiff. Sri Khaja Moinuddin filed an objection petition in the year 1350 Fasli before the High Court of Hyderabad in its original jurisdiction. The High Court of Hyderabad allowed the said objection petition filed by Khaja Moinuddin in respect of the above said land bearing old Survey No.107 of Malakpet Village. The alleged vendor of the plaintiff viz., Smt.Akbarunnisa Begum was a party (Judgment- debtor) to the above said proceedings. The said judgment of the High Court of Hyderabad was binding on Smt.Akbarunnisa Begum and also others claiming under her including the plaintiff. While being in continuous and uninterrupted possession and enjoyment of the said land bearing Survey Nos.105 to 107 (old) corresponding to new Survey Nos.131 to 134 of New Malakpet Village, the said Khaja Moinuddin divided a major portion of his land into plots and prepared a layout and submitted the same for sanction to the MCH in the year 1961. The MCH, after verification of the relevant documents of said Khaja Moinuddin, granted sanction of layout in his favor in the year 1963. The said Khaja Moinuddin alienated or otherwise disposed of the plots in the above said layout to various persons. The purchasers of the plots had been in possession and enjoyment of their respective plots by constructing houses thereon and living in them without any objection or interference from any quarter. 6

Dr.GRR, J ccca_169_1994 8.1. The defendants 1 to 3 further submitted that they purchased plot Nos.238, 255 and 256 totally admeasuring 730 square yards from the above said layout of Khaja Moinuddin in old Survey No.107 corresponding to new Survey No.134 in Malakpet, Hyderabad, in the name of defendant No.2 from the said Khaja Moinuddin through his son and General Power of Attorney (for short "GPA") agent Sri K.Habeebuddin under a registered sale deed dated 19.03.1971 for valuable consideration. The said vendor had put the defendants in physical and actual possession of the said plots of land on the date of the sale deed itself. While being in possession and enjoyment of the said lands, the defendants through defendant No.2 applied to MCH in the year 1971 itself for permission to construct a small house and compound wall on the above said plots of land. The MCH granted permission for the above said construction on 06.08.1971. Accordingly, the defendants made pucca construction on the above said land in pursuance of the sanction granted by the MCH. After completion of the said construction, the MCH assessed the newly constructed house for property tax and allotted Municipal Number 16-2-147/55/A. The defendants also made additions to the above said house on the other plots of land subsequently. The defendants through defendant No.2 again applied to the MCH for further construction and additions to the already constructed house on the above said plots of land. The MCH granted permission for the above said construction on 16.08.1978. Accordingly, the defendants constructed a building in the above 7 Dr.GRR, J ccca_169_1994 said plot of land on the existing house. Subsequently on 22.05.1979, the defendants through defendant No.2 again applied to the MCH for construction of first floor on the existing ground floor premises bearing No.16-2-147/55/A standing on the said plot Nos.238, 255 and 256 in the above said layout of Khaja Moinuddin in old Survey No.107 (new Survey No.134) of Malakpet, Hyderabad. The MCH accordingly granted permission for construction of first floor on 11.09.1979. The defendants thereafter constructed the first floor on the existing ground floor premises as per the sanctioned plan. Since the date of purchase, the defendants had been in continuous and uninterrupted possession and enjoyment of the said property as absolute owners thereof, by living therein and also by letting out portions of the said premises to various tenants. Prior to the said purchase, Sri Khaja Moinuddin, their vendor and the original owner, the pattadar of the said land bearing old Survey Nos.105 to 107 (corresponding to new Survey Nos.131 to 134) of Malakpet Village had been in continuous and uninterrupted possession and enjoyment of the above said lands as absolute owner thereof even prior to 1340 Fasli. The defendants had been paying water and electricity consumption charges regularly. The defendants and their family members were living in the said premises and tethering their cattle in the suit property. They had also let out some portions of the building to tenants and had been receiving rents from them.

Dr.GRR, J ccca_169_1994 8.2. The defendants 1 to 3 further submitted that the alleged vendor of the plaintiff viz., Smt.Akbarunnisa Begum had no right, title or interest in the suit schedule property at any point of time and as such she could not convey any right, title or interest in respect of the suit schedule property to the plaintiff. Even otherwise, the said Akbarunnisa Begum had already executed a sale deed in respect of the suit schedule property long prior to the alleged sale in favor of the plaintiff and as such she had no subsisting title or interest in the suit schedule property. The plaintiff and her husband were fully aware that the suit schedule property originally belonged to the vendor of the defendants viz., Sri Khaja Moinuddin. The plaintiff's husband Nagappa himself had purchased a plot of land in the year 1960-61 itself in the layout of Sri Khaja Moinuddin in Survey No.107 from the very same vendor Sri Khaja Moinuddin and also constructed a house thereon. Even the land on which the house bearing No.16- 2-147/22 has been constructed by the plaintiff and her husband, in which they were residing presently, originally belonged to Sri Khaja Moinuddin. The plaintiff in order to blackmail the defendants and to make wrongful gain filed the present suit, which was false, frivolous, vexatious and speculative, only to harass the defendants and prayed to dismiss the suit with exemplary costs. 8.3. The defendants 1 to 3 further contended that the suit was time barred and undervalued. The prevailing market value of the land in and around the suit land was more than Rs.200/- per square yard at the time of presentation of the 9 Dr.GRR, J ccca_169_1994 plaint before the Court. The total value of the suit schedule property @ Rs.200/- per square yard would work out to Rs.3,55,200/- and the plaintiff ought to have paid Court fee on 3/4th of the above said market value of the suit schedule property, as she had claimed the relief of possession. The plaintiff valued the relief of possession under incorrect provision of the Court Fee Act. 8.4 They also further contended that the suit was filed long after the period of limitation. The plaintiff herself admitted that she has lost her possession of the suit schedule property 12 years prior to the presentation of filing of the suit before the Court. As such, the suit was not maintainable either in law or on facts and the same deserves to be dismissed.

8.5. The defendants 1 to 3 further contended that the description and identity of the suit schedule property was not clear and they were very vague. It was very difficult to locate the suit schedule land as per the schedule of property given in the plaint. The plaintiff was trying to falsely claim the land belonging to the defendants under the guise of the alleged sale deed. The plaintiff had given Survey Nos.85 and 86 in Survey No.107 in the plaint schedule. There were no such survey numbers in or around the suit land of the defendants. Even the house number given in the plaint as 16-2-147/53-54 was not in existence in or around the property of the defendants. The said Municipal number did not pertain to the property in the rightful possession and enjoyment of the 10 Dr.GRR, J ccca_169_1994 defendants. The cause of action shown in the plaint was imaginary and had been created only for the purpose of filing the suit. The defendants were in lawful possession of the suit schedule property since long time, as such they were entitled to be remained in possession in their own right.

9. The defendant No.4 filed written statement contending that the premises owned and possessed by the defendant was bearing No.16-2-147/55. The suit was filed for recovery of possession of premises bearing No.16-2-147/53-54, as such the defendant No.4 was not a necessary party. The plaintiff had no cause of action against the defendant and the suit was liable to be dismissed on the ground of misjoinder of parties alone. She also contended that the suit was undervalued at Rs. 1,42,000/- and it ought to have been valued for Rs.3,60,000/- and Court fee ought to have been paid thereupon accordingly. The plaint was liable to be rejected on that ground.

9.1. The defendant No.4 further contended that the premises in possession of the defendant was in Plot No.237. The plot was sold to Mohd.Issa by one Khaja Moinuddin vide registered document on 24.04.1961 for a valuable sale consideration. The said Mohd.Issa in his turn sold the said plot to one Sri C.Vaikuntam for a valuable consideration on 16.06.1961. The said C.Vaikuntam sold the same by registered sale deed dated 19.09.1961 to Sri V.Keshava Reddy, who inturn sold the same to one Sri K.Ratna Reddy under 11 Dr.GRR, J ccca_169_1994 registered sale deed dated 18.11.1963. Sri K.Ratna Reddy obtained municipal permission for construction of sheds in the said plot and constructed two rooms. The premises was numbered as 16-2-147/55 admeasuring 220 square meters. He also obtained connections of electricity and water from the authorities to the said premises. The said Ratna Reddy sold the said plot to Smt. K.Laxmi Bai for a consideration of Rs.4,000/- under a registered sale deed dated 27.06.1968. The said Smt.K.Laxmi Bai inturn sold the said plot to the defendant under registered sale deed dated 12.09.1968 for a consideration of Rs.5,000/-. The defendant there after obtained municipal permission for construction of building vide Permit No.15/37 of 1972 from the MCH and constructed the same thereon. The defendant had been in continuous and uninterrupted possession and enjoyment of the said premises from 1968. Earlier to 1968, as could be seen from the various sale deeds of her predecessors-in-title, they were in continuous possession and enjoyment of the same as true owners. The plaintiff was aware of all the said facts. The defendant apart from her sale deeds, even otherwise had perfected her title to the premises under possession and enjoyment of which she had always been asserting as the owner thereof. The plaintiff was ill- advised to file the suit for the purpose of illegally grabbing the property of the defendant, which infact was not the subject matter of the suit and prayed to dismiss the suit with exemplary costs.

Dr.GRR, J ccca_169_1994

10. Basing on the said pleadings, the trial court framed the issues as follows:

i) Whether the plaintiff had valid and subsisting title to the suit property?

ii) Whether the plaintiff had been in possession of the suit property till 1978?

iii) Whether the alleged encroachment by the defendants on the suit land was proved?

iv) Whether the suit was barred by limitation?

v) Whether the suit property was in Survey Nos.85 and 86 of Malakpet Village, Hyderabad?

vi) Whether the valuation of the suit and Court fee thereon were not correct?

vii) Whether the plaintiff was entitled for recovery of possession of suit property?

viii) To what relief?

11. The husband of the plaintiff was examined as PW.1 and the building material supplier was examined as PW.2. Exs.A1 to A16 were marked on behalf of the plaintiff. The defendant No.3, the son of defendants 1 and 2 was examined as DW.1. The husband of defendant No.4 was examined as DW.2. Exs.B1 to B54 were marked on behalf of the defendants. Out of these exhibits Exs.B32 to B54 pertain to defendant No.4.

12. On considering the oral and documentary evidence on record, the trial court decided the issues 5 and 6 in favor of the plaintiff and decided the other 13 Dr.GRR, J ccca_169_1994 issues against the plaintiff holding that the plaintiff failed to prove her title and possession over the schedule property and that the suit was barred by limitation.

13. Aggrieved by the dismissal of the suit, the plaintiff preferred this appeal.

14. Heard Sri P.Gangaiah Naidu, learned Senior Counsel representing Sri N.Bharat Babu, learned counsel for the appellant on record and Sri I.V.Radha Krishna Murthy, learned counsel for respondent No.8 (LR of respondent No.4), Sri M.R.S.Srinivas, learned Senior Counsel for respondents 9 to 11 (LRs of deceased respondent No.6) and Sri K.G.Krishna Murthy, learned Senior Counsel representing Ms.K.Kiran Mayee, learned counsel for the respondents 12 to 14 (LRs of deceased respondent No.3).

15. Learned Senior Counsel for the appellants contended that the suit property and the property being claimed by the defendants were different and distinct. The suit land was in Survey No.107 (old), Survey No.134 (new) of Akbar Bagh, Malakpet, Hyderabad, whereas the land claimed by the defendants was located in Old Malakpet, Hyderabad. The respective Survey Numbers, extent of land, location and even the boundaries were not tallying with one another. In such circumstances, the trial court ought to have framed a specific issue as to whether the suit property and the property claimed by the defendants was one and the same. However, the trial court failed to frame such a crucial issue, which was central to resolving the entire dispute. Non-framing of 14 Dr.GRR, J ccca_169_1994 relevant issue was fatal and the said omission rendered the entire proceedings defective warranting a remand for proper adjudication. Order XLI Rule 25 of CPC would enable this Court to frame an issue and direct the trial court to try the issue and relied upon the judgment of the Hon'ble Apex Court in Makhan Lal Bangal v. Manas Bhunia and Others 1 on the aspect that:

"19. ... The stage of framing the issues is an important one inasmuch as oh that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures there from. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the 'two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided."

15.1. Learned Senior Counsel for the appellants further relied upon the Division Bench judgment of the High Court of Andhra Pradesh in Maddala Sai Lakshmi v. Medisetti Lakshmi Narasamma and Others 2, wherein also it was held that:

"10. Before parting, we are very often coming across a situation where it is noticed that the issues as framed at the inception are not correctly representing the dispute in between the parties.

AIR 2001 SC 490 2 2006 (3) ALT 708 (DB) 15 Dr.GRR, J ccca_169_1994 We are conscious of the fact that immediately after filing any written statement, no serious attention is being paid by either side in the Court below nor due assistance is given at the time of framing issues. No draft issues are being filed at that stage. No attempt is made to point out whether the issues as framed are proper at the stage of commencement of trial. It is only after proceeding with the trial or may be at a later stage, including arguments stage, it is noticed that the issues are not properly framed and it requires reframing. This is a clear instance where the Court below totally lost sight of the core dispute, which arises between the parties, in regard to the adoptions as set up by them in their respective pleadings and yet, we do not find any issue framed thereon. To avoid such lapses or late realization, in every case, before commencement of trial, a specific date has to be posted for hearing both the sides once again on the issues, to see if they have been properly framed or needs any reframing and it is only after such exercise is done, the trial should be allowed to commence and proceeded with. Even at the hearing, both the sides can be called upon to file any draft issues for warranting reframing. This exercise ultimately can safely avoid orders of remand by Appellate Courts, as is being done in this case."

15.2. Learned Senior Counsel for the appellants further contended that the claim of the plaintiff that the suit land was purchased from Smt.Akbarunnisa Begum was duly established through oral and documentary evidence. The registered sale deed dated 21.08.1965 contained all the essential particulars / recitals required for lawful transfer of the ownership including source of title, survey number, location, extent and boundaries. In contrast, the recitals in the sale deed of defendants were vague, incomplete and ambiguous. The conduct 16 Dr.GRR, J ccca_169_1994 of the defendants was neither bonafide nor credible. In such circumstances, the burden would lie on the defendants to establish their right over the suit property by producing clear and conclusive evidence. The plaintiff discharged her initial burden, as such, the burden would shift to the defendants to prove their title and disprove the title of the plaintiff. In the instant case, the defendants failed to do so and hence the suit ought to have been decreed as prayed for. He further contended that the plaintiff was in possession of the property, which was admittedly purchased under a registered sale deed prior to the purchase of defendants. Since the defendants' purchase of property was subsequent to the plaintiff's purchase, the burden would lie upon the defendants to establish their right over the property. However, the defendants failed to rebut the plaintiff's title and possession up to the year 1978. Even if the defendants had a valid title in respect of some other property, it would not confer upon them any right to the plaintiff's property. The defendants 1 to 3 relied upon Exs.B1 to B31 to establish their title over the land to an extent of 730 square yards. However, the said property was different and distinct from the suit schedule property. Merely showing title over the land not related to the suit land would not entitle the defendants to claim any right over the suit land. Their documents and evidence pertain to a different parcel of land and had no bearing on the present dispute. The defendants developed their case in the written statement as if their land was in Survey No.107 (old), Survey No.134 (new), Akbar Bagh, Malakpet, 17 Dr.GRR, J ccca_169_1994 Hyderabad. Such an attempt should not have been allowed by the trial court. Their sale deed marked under Ex.B11 would not disclose the source of title, exact extent of land, survey numbers, location and boundaries. Insufficient and ambiguous document would not help the party in relying on it for any purpose. 15.3. Learned Senior Counsel for the appellants further contended that the sale deed of defendants 1 to 3, dated 19.03.1971 was said to be executed by one Khaja Habeebuddin as GPA holder of his father Khaja Moinuddin. Notably, the said Khaja Moinuddin earlier filed O.S.No.2089 of 1973 for declaration and mandatory injunction in respect of land in Survey Nos.105 to 107 particularly claiming that the total land in Survey No.107 was Ac.17.1 guntas as against the Ac.-12-20 guntas and he was unsuccessful. Similarly, another suit O.S.No.22 of 1970 was filed by him which also met the same fate. The observations of the Court in both the judgments (Exs.A12 to A16) was that their possession of any portion of land in Survey No.134 was doubtful and hence held that they were not in possession of the land. The Court also held that to the knowledge of Khaja Moinuddin, Smt.Akbarunnisa Begum sold out several plots and they constructed buildings even and as such the claim of Khaja Moinuddin was not entertainable at that stage. The entries in the revenue records relied by the defendants had been considered in the suits filed by their vendor and ruled out that they were not conclusive proof of title. In view of the judgments of this Court, the defendants could not claim any property through Khaja Moinuddin 18 Dr.GRR, J ccca_169_1994 much less the suit property. The plaintiffs made out a strong case for the relief sought for in the suit and the evidence produced would clinchingly establish their title and possession over the suit land till 1978. The defendants failed to make out even a prima facie case to establish their right over the suit land. Their entitlement for possession on the strength of Exs.B11 and B12 which related to some other land was unlawful and unsustainable and prayed to set aside the judgment and decree dated 21.02.1994 in O.S.No.531 of 1982 passed by the learned V Additional Judge, City Civil Court, Hyderabad and decree the suit as prayed for or alternatively to remand the matter to the trial court for consideration by framing the relevant issue relating to the properties claimed by both the parties.

16. Learned Senior Counsel for the respondents 12 to 14, the LRs of respondent No.3 contended that the suit was filed for eviction and delivery of vacant possession. The defendant no.3 purchased the property through Ex.B11. The respondent No.3 - defendant No.3 obtained municipal permission vide Ex.B13 and constructed a building. The suit was barred by limitation, as the plaintiff herself admitted that she lost her possession of the suit schedule property 12 years prior to the filing of the suit. The trial court dismissed the suit on the said ground also. The issues framed cover the case of the plaintiff and there was no need to frame any additional issue. As an abundant caution, the trial court also framed the issue on title, though it was strictly not necessary. 19

Dr.GRR, J ccca_169_1994 The plaintiff had not taken any steps for identification of property by a surveyor or by appointment of an Advocate Commissioner. The plaintiff never entered into witness box. The husband of the plaintiff examined as PW.1, had not filed the GPA. No GPA was marked as an exhibit. The defendant No.3 was examined as DW.1. The defendant No.3 (DW.1) filed Exs.B8 and B9, the sessala pahani and khasra pahani, which were reflecting the name of Khaja Moinuddin, their vendor. The plaintiff did not challenge the sale deed of the defendant till date, though there was a cloud over his title. No link document pertaining to the vendor of the plaintiff was filed by the plaintiff. The common judgment marked under Ex.A14 had no relevance to the facts of the case. The claim petition filed by Sri Khaja Moinuddin, the vendor of the defendants was allowed stating that the property could not be attached. The said order was not challenged by the plaintiff or her vendor and relied upon the judgments of the Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs. & Others 3, Muddasani Venkata Narsaiah (dead) per LRs v. Muddasani Sarojana 4, Rangammal v. Kuppuswami and Another 5 and A.Subramanian v. R.Paneerselvam6 and of the judgment of this Court in Patti Manemma v. Balamani & Others 7.

3 2008 (4) SCC 594 4 (2016) 12 SCC 288 5 AIR 2011 SC 2344 6 AIR 2021 SC 821 7 MANU/TL/0898/2022 20 Dr.GRR, J ccca_169_1994

17. Learned Senior Counsel for the respondents 9 to 11 (LRs of respondent No.6) contended that the plaintiff filed the suit against the defendants seeking the relief of eviction and delivery of vacant possession. The relief of eviction could be granted only when there was a jural relationship between the parties or when the defendant was in permissive possession. The plaintiff had not used the word "ejectment". There was a distinction between the suit for eviction and ejectment and relied upon the judgment of the Hon'ble Apex Court in Brahma Nand Puri v. Nelci Puri (since deceased) represented by Mathra Puri and Another8. He further contended that the rectification deed (Ex.A10) was filed by the plaintiff during the pendency of the suit after an objection was taken by the defendants in their written statement on 11.10.1982. Ex.A10 was not executed by the same person, who executed Ex.A1 sale deed. The said document marked under Ex.A10 was not valid. It was created. Both the parties were claiming title from two different sources. When there was a cloud, the plaintiff ought to have filed a suit for declaration. Mere filing a suit for recovery of possession was not sufficient and relied upon the judgment of the Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs. & Others (cited supra).

17.1. Learned Senior Counsel for the respondents 9 to 11 further relied upon the judgment of the Hon'ble Apex Court in Union of India and Others v. 8 AIR 1965 SC 1506 21 Dr.GRR, J ccca_169_1994 Vasavi Co-operative Housing Society Limited and Others 9 on the aspect that the entire burden would lie upon the plaintiff to prove his case, wherein it was specifically held that:

"18. In Nagar Palika, Jind v. Jagat Singh, Advocate [(1995) 3 SCC 426], this Court held as under:

"The onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."

19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non- suited."

17.2. Learned Senior Counsel for the respondents 9 to 11 further relied upon the judgment of the Hon'ble Apex Court in Vidhyadhar v. Manikrao and 9 (2014) 2 SCC 269 22 Dr.GRR, J ccca_169_1994 Another10 on the aspect that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct and an adverse inference need to be drawn against him. 17.3. Learned Senior Counsel for the respondents 9 to 11 further relied upon the judgment of this Court in Poreddy Venkata Narisireddy (died) per LRs. V. Mukkamala Venkata Narasamma (dead) per LRs.11 on the aspect that Rule 32 of the Civil Rules of Practice is mandatory and the failure of the GPA holder to seek the permission of the Court before taking any steps in the proceedings is fatal.

17.4. Learned Senior Counsel for the respondents 9 to 11 further contended that the property claimed by the plaintiff and defendants were entirely different. Their extents, plots, boundaries were not matching with each other. Once identification was in dispute, burden would lie heavily on the plaintiff to show that the property claimed by her was the same in possession of the defendants. The plaintiff also would need to establish that Exs.A1 and A10 were both relating to the same property. The admissions made by PW.1 also would disclose that the building was constructed by defendants 3 and 4 in the year 1967. As such, the defendants were in possession since 1967. There was a 10 AIR 1990 SC 1441 11 2019 (3) ALT 36 (SB) 23 Dr.GRR, J ccca_169_1994 presumption forward and backward with regard to the possession of the defendants. From 1961 onwards, the defendants or their predecessors were in possession. Considering all these aspects, the trial court rightly dismissed the suit and prayed to dismiss the appeal.

18. Learned counsel for respondent No.8 (LR of respondent No.4) contended that defendant No.4 was the mother of respondent No.8. The defendant No.4 died on 19.09.2004. Subsequently, the LRs of defendant No.4 were brought on record in the year 2018. Originally, the respondent's mother was not party to the proceedings. She was brought on record in the year 1979 under Order I Rule 10 of CPC. But the appellant - plaintiff failed to bring consequential amendments as per Rule 28 of Civil Rules of Practice. The same was fatal since there was no cause of action against defendant No.4. There was no prayer in the suit against defendant No.4. It was settled principle of law that without pleading there could not be any relief against any defendant. Assuming that the suit was based on title and recovery of possession, Article 65 of the Limitation Act, 1963 would come into operation. As per the said Article, 12 years limitation period was prescribed. Admittedly, the vendor's vendor of defendant No.4 i.e. K.Ratna Reddy obtained permission from the Municipal Authorities and a door number was allotted as 16-2-147/55 in the year 1965. The predecessors of defendant No.4 obtained Municipal Number in the year 1965 itself. As such, the suit against defendant No.4 was hopelessly barred by 24 Dr.GRR, J ccca_169_1994 limitation. The title of defendant No.4 and her vendors were marked as Exs.B33 to B38. The appellant - plaintiff miserably failed to show that the property of the respondents was part of the suit schedule property. Apart from that there was no pleading to show that H.No.16-2-147/55 constructed on plot No.237 was part of the suit schedule property. As per the pleadings of the plaint, the plaintiff was dispossessed by defendants 1 and 2. But there was no pleading as to when defendant No.4 had dispossessed the plaintiff and occupied the suit schedule property. Infact, the defendant No.4 purchased the property under registered sale deed. The vendors of defendant No.4 originally purchased plot No.237 in the year 1961 and subsequently K.Ratna Reddy, predecessor-in- title of defendant No.4 obtained permission in the year 1965 and constructed a house. Therefore, the question of any dispossession of the plaintiff in respect of plot No.237 in May 1978 would not arise at all.

18.1. Learned counsel for respondent No.8 further contended that the plaintiff had not entered into the witness box and since she failed to enter into the witness box, an adverse inference could be drawn against her and relied upon the judgment of the Hon'ble Apex Court in Vidhyadhar v. Manikrao and Another (cited supra). He further contended that as per the pleadings in the plaint, there was a cloud over the title of the plaintiff, as such the plaintiff ought to have converted the suit claiming the relief of declaration apart from recovery of possession. He further contended that as the plaintiff's title was at stake, the 25 Dr.GRR, J ccca_169_1994 plaintiff has to file a suit for declaration and recovery of possession and relied upon the judgment of the Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (dead) per LRs and Others (cited supra). He further contended that the father of the plaintiff's vendor did not have title for the suit schedule property. Hence, the plaintiff could not have better title than him. Though the plaintiff contended that she was in possession of 1776 square yards, even for the sake of arguments, if the total extent of the defendants was calculated, it was not more than 900 square yards. What happened to the remaining extent was not explained by the plaintiff. The plaintiff was unable to prove that she was in possession of even one square yard in respect of the suit schedule property. The court below on considering all the aspects rightly held that the suit of the plaintiff was devoid of merits by giving cogent reasons. Apart from that, the respondents clearly demonstrated their title and possession and that their property was not part of the suit schedule property and prayed to dismiss the appeal.

19. Now the points for consideration in this appeal are:

1) Whether the failure of the plaintiff to enter into witness box is fatal to her case?

2) Whether the suit filed by the plaintiff for recovery of possession alone is maintainable?

Dr.GRR, J ccca_169_1994

3) Whether the plaintiff is able to prove her possession over the suit schedule property till May 1978 and was entitled to claim the relief of recovery of possession from the defendants 1 to 4 or their LRs?

4) Whether the suit is barred by limitation?

5) To what relief?

20. POINT No.1:

Whether the failure of the plaintiff to enter into the witness box is fatal to her case?

As seen from the record, the plaintiff filed the suit in her own capacity.

She did not enter into the witness box. Her husband was examined as PW.1.

No GPA was given by her to her husband to depose on her behalf. As per his evidence, he purchased the suit schedule property in the name of his wife, he was acquainted with the facts of the case and gave evidence on her behalf.

Learned counsel for the respondents contended that the same was not permissible and an adverse inference would need to be drawn against the plaintiff when the plaintiff failed to enter into the witness box and relied upon the judgment of the Hon'ble Apex Court in Vidhyadhar v. Manikrao & Another (cited supra), wherein it was held that:

"17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held 27 Dr.GRR, J ccca_169_1994 in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Another [AIR 1927 PC 230]. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. [AIR (1930) Lahore 1] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR (1931) Bombay 97]. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225] also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Another [AIR 1971 All 29] held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Baghwan Dass v. Bhishan Chand and Others [AIR 1974 P&H 7] , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

21. Admittedly, the suit was filed in the name of K.M.Kistamma, W/o.Nagappa, showing her as the plaintiff. The registered sale deed document marked as Ex.A1 is showing that the suit schedule property was purchased by her. Learned counsel for the appellants contended that under Section 120 of the Indian Evidence Act, 1872, a husband is competent to give evidence on behalf of his wife and vice versa even in the absence of a written authority of power of attorney, as such PW.1 was competent to give evidence on behalf of the plaintiff.

Dr.GRR, J ccca_169_1994

22. On a perusal of Section 120 of Indian Evidence Act, 1872, it only provides that in all civil proceedings, the parties to the suit, and the husband or wife of any such party, shall be competent witnesses. This Section only says that the spouse is a competent witness i.e. someone who can be examined in the Court. It does not authorize the husband to step into the shoes of his wife and testify on her behalf. There was a key distinction between a competent witness and a substitute witness. A competent witness can testify if his evidence is relevant, but a substitute witness cannot depose in the place of a party unless validly authorized and having personal knowledge. Even a GPA holder cannot depose for the principal on matters of personal knowledge as per the judgment of the Hon'ble Apex Court in Janki Vashdeo Bhojwani & Another v. Indusind Bank Limited & Others 12. So, a husband who was not even a GPA holder, certainly cannot depose on behalf of his wife invoking Section 120 of the Indian Evidence Act, 1872.

23. If the plaintiff is alive, competent and capable of deposing, she must enter into the witness box herself. Her husband can only depose as a witness if he had independent personal knowledge. If he was supporting her version, without being a party or attorney holder, his testimony has limited evidentiary value. As such, an adverse inference can be drawn against the plaintiff for not entering into the witness box as per the judgment of the Hon'ble Apex Court in 12 (2005) 2 SCC 217 29 Dr.GRR, J ccca_169_1994 Vidhyadhar v. Manikrao & Another (cited supra). As such, this point is answered accordingly against the appellant - plaintiff.

24. POINT No.2:

Whether the suit filed by the plaintiff for recovery of possession alone is maintainable?

The plaintiff filed the suit seeking the relief of recovery of possession alone and not sought for any declaration of title. It was the contention of the defendants that when there was a cloud over the title of the vendor of the plaintiff, the suit for recovery of possession alone was not maintainable without seeking the relief of declaration of title.

25. As seen from the written statement filed by the defendants 1 to 3, they contended that the alleged vendor of the plaintiff Akbarunnisa Begum had no right, title or interest over the suit schedule property at any point of time and that she could not convey any better interest in respect of the suit schedule property to the plaintiff. Neither the plaintiff nor her vendor were at any time in possession and enjoyment of the suit schedule property and there was no question of dispossession of the plaintiff from the suit schedule property. The defendant No.4 also filed his written statement contending that the question of dispossessing the plaintiff from the suit property never arose, as the plaintiff had no manner of right, title or interest to the property belonging to the defendants. 30

Dr.GRR, J ccca_169_1994

26. Thus, the defendants raised a cloud over the title of the vendor of the plaintiff and contended that the vendor of the plaintiff who had no title could not pass a better title to the plaintiff.

27. When the plaintiff had ownership over the suit schedule property and when her title was not seriously disputed and when he or she was dispossessed and if the ownership of the plaintiff was admitted or not seriously contested, a simple suit for possession is maintainable without seeking declaratory relief. A person without title, but in lawful possession can also sue for possession under Section 6 of the Specific Relief Act, 1963, if he was dispossessed without following due process of law, as there is no need to prove his ownership and possession itself is sufficient under the above Section. If the possession follows from derivative title like lessee, licensee, mortgagee, they can sue for possession based on their possessory right alone without seeking the relief of declaration of ownership. A tenant, who was wrongfully evicted can file a suit for possession without seeking any declaration because the right to possession flows from tenancy. But, however, when title is seriously disputed or clouded and when the defendants sets up rival title and the plaintiff's title is not clear and it was contended that the plaintiff was never in possession of the suit schedule property and the plaintiff had not filed the suit basing solely on prior possession, filing a bare suit for possession is not maintainable without seeking the relief of declaration.

Dr.GRR, J ccca_169_1994

28. The Hon'ble Apex Court in Annamalai v. Saraswathi 13 held that when the title is in serious dispute and cannot be established without a declaration, a bare suit for possession is not maintainable.

29. As the suit was filed by the plaintiff basing on her title placing reliance upon Ex.A1 registered sale deed executed in her favor by her vendor and when the defendants were raising a dispute over the validity of the title of the vendor of the plaintiff, the plaintiff ought to have amended the suit seeking the relief of declaration of title apart from the relief of recovery of possession.

30. Learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court in Muddasani Venkata Narsaiah (dead) per LRs v. Muddasani Sarojana (cited supra), wherein the Hon'ble Apex Court while considering the question whether it was necessary to seek the relief of declaration of title, held that:

"The plaintiff has filed the suit for possession on the strength of title and not only on the basis of prior possession. It was not a summary suit for ejectment filed under Section 6 of the Specific Relief Act, 1963. Thus, plaintiff could succeed in suit for possession on the strength of the title.

13. We are fortified in our aforesaid conclusion by a decision in Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma [(2008) 15 SCC 150], wherein this Court has examined the question of maintainability of suit for possession 13 AIR 1960 Madras 36 32 Dr.GRR, J ccca_169_1994 without prayer for declaration of title. This Court has referred to its earlier decision in Anathula Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594], wherein the plaintiff had purchased the suit land under registered sale deed dated 10.4.1957 and the defendant did not claim the title with reference to any document but claimed to have perfected title by adverse possession. It was held by this Court that the said plea did not prima facie put any cloud over the plaintiff's title calling him to file suit for declaration of title. Unless there is serious cloud over the title of the plaintiff there is no need to file suit for declaration of title. The suit for possession was maintainable. This Court laid down as follows:

"16. The plaintiff had purchased the suit land under registered sale deed dated 10.4.1957. Defendant did not claim title with reference to any document but claimed to have perfected title by adverse possession. A mere claim by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over plaintiff's title and that the plaintiff who is the owner, should file a suit for declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. The plaintiff had title and she only wanted possession and therefore a suit for possession was maintainable. We are fortified in this view by the following observations of this Court in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594:

"14. We may however clarify that a prayer for declaration will be necessary only if the denial 33 Dr.GRR, J ccca_169_1994 of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration. ...."

31. In the present case, the defendants were also claiming title basing upon the registered sale deeds and were contending that their vendor Khaja Moinuddin had filed a claim petition against one Birbhangirji and Akbarunnisa Begum (vendor of the plaintiff) and the Court allowed the claim petition of Khaja Moinuddin and held that Khaja Moinuddin was the owner of the land in Survey No.107 and the said judgment is binding on Akbarunnisa Begum (vendor of the plaintiff). As such a serious cloud was raised by the defendants over the title of the vendor of the plaintiff. As such, the plaintiff ought to have filed a suit for declaration apart from seeking the relief of recovery of possession. Since the plaintiff failed to convert the suit seeking the relief of declaration of title inspite of the pleadings of the defendants, who raised a cloud 34 Dr.GRR, J ccca_169_1994 over the title of the plaintiff, the suit filed by the plaintiff seeking the relief of recovery of possession alone is not maintainable.

32. POINT No.3:

Whether the plaintiff is able to prove her possession over the suit schedule property till May 1978 and was entitled to claim the relief of recovery of possession from the defendants 1 to 4 or their LRs?

As the plaintiff is contending that she was in possession of the property and that she was dispossessed by the defendants 1 and 2 in May, 1978, the burden lies upon her to prove the said fact.

33. Section 101 of the Indian Evidence Act, 1872 states that the burden of proving a fact lies upon the person, who asserts it. The Hon'ble Apex Court in Rangammal v. Kuppuswami and Others (cited supra), held that:

"14. Section 101 of the Indian Evidence Act, 1872 defines `burden of proof' which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such 35 Dr.GRR, J ccca_169_1994 conclusion, he cannot proceed on the basis of weakness of the other party."

34. The husband of the plaintiff was examined as PW.1. He stated that he purchased plot Nos.285 and 286 comprising an area of 1776 square yards as against the pleadings in the plaint that the plaintiff purchased an open land admeasuring 1776 square yards in Survey Nos.85 and 86 situated at Akbar Bagh, Malakpet, Hyderabad from Akbarunnisa Begum, D/o.late Nawab Huzur Yar Jung under a registered sale deed on 21.08.1965 for a sum of Rs.2,000/-. He stated that he applied for permission for construction to the Municipal Office and obtained permission vide Ex.A3. But he had not stated about constructing of any house by the plaintiff in the suit schedule property. He only stated that in the year 1978 in the month of May, the defendants forcibly occupied the land purchased by the plaintiff taking advantage of plaintiff's absence.

35. In his cross-examination, he stated that he did not remember in respect of which plots he had taken permission and vaguely stated that it could be plot Nos.285 and 286. He stated that he applied for permission for the plot numbers, which were mentioned in the sale deeds and that it was in the year 1965, he obtained permission. He stated that a sanction plan was also issued along with permission, but he did not remember whether the original permission and sanction plan were filed in the Court. He stated that the original permission, which was obtained in the year 1965 was lost.

Dr.GRR, J ccca_169_1994

36. PW.1 stated that defendants 1 to 3 were in possession since 1978, but could not say in how much land they were in occupation. He stated that they lodged a police complaint. But the police did not come. He did not know whether the complaint was filed in the Court or not. He approached the Advocate for issuing notice, but after taking time for about one year, the Advocate returned all the papers and he did not know whether the Advocate issued notice or not to the defendant.

37. Thus, no proof was filed by the plaintiff for lodging the police complaint or issuing any notice to the defendants seeking to vacate the property. PW.1 admitted that there was a building over the suit schedule property, which was constructed by defendants 3 and 4. He could not say in how much area it was constructed but admitted that the said building was constructed in the year 1967. It has got Municipal No.16-2-147/55-56. The house was standing in the names of defendants 3 and 4. He admitted that previously there was no number for the suit schedule house.

38. The admissions made by PW.1 were fatal to his case. When he was admitting that a building was constructed in the year 1967 by defendants 3 and 4 and a house number was allotted to it at that time and there was no number for the suit schedule house earlier, his stating that they were dispossessed in May, 1978 proves to be incorrect.

Dr.GRR, J ccca_169_1994

39. In his further cross-examination. PW.1 admitted that in Ex.A1 sale deed Survey Nos.85 and 86 were mentioned. But it was plot Nos.285 and 286, but not the survey numbers. In 1987, he got rectification of the mistakes crept in Ex.A1 in respect of survey number as plot number. In Ex.A1, Survey Nos.85 and 86 were corrected as plot Nos.285 and 286. 10 years after filing of the suit he got corrected the sale deed. He denied that by the time of getting the rectified sale deed, defendants 1 and 2 constructed their house 20 years prior to it.

40. Thus, there were no correct plot numbers in the sale deed purchased by the plaintiff and the same were corrected 10 years after filing of the suit. When the defendants had already constructed houses in the said plots making corrections in her sale deed about the plot numbers subsequently raises a strong suspicioin over the identity of the property. No document was filed by the plaintiff to prove her vendor's title or possession over Survey No.107 (old) (new Survey No.134). On the other hand, the defendants relied upon Ex.B6, order in claim petition, which would disclose that Khaja Moinuddin filed the claim petition against the father of the plaintiff's vendor and the said claim petition was allowed. The said judgment in Case No.18/2 was marked as Ex.B6 and the translation copy was marked as Ex.B7. The said judgment became final. When the decree against the plaintiff's vendor's father has become final in respect of land in Survey No.107 (old) (new Survey No.134), the plaintiff cannot claim 38 Dr.GRR, J ccca_169_1994 title for the very same land. Once the decree is passed against any person, the same is binding. Without challenging the same, filing the suit is barred by res judicata.. The judgment in the claim petition marked as Ex.B6 is binding on Akbarunnisa Begum and the plaintiff herein. The plaintiff who has claimed title from Akbarunnisa Begum cannot claim better title than that of Akbarunnisa Begum.

41. The plaintiff relied upon Exs.A14 to A16, more particularly, Ex.A14 judgment which was the common judgment dated 18.06.1983 in C.C.C.A.No.146 of 1979 and S.A.No.759 of 1983, wherein the Court categorically held at page No.32 of the Judgment that the disputed land was not part of old Survey No.107 (new Survey No.134). No credence can be placed on Ex.A4 judgment as the subject matter of the said judgment does not relate to the land in Survey No.107 (old) (new Survey No.134). When the entire dispute was with regard to identification of the property, the plaintiff failed to file any sanction plan or failed to take any steps to demarcate, localize the suit schedule property by way of appointing an Advocate Commissioner.

42. The suit schedule property is an open plot admeasuring 1776 square yards. Even if the plots of the defendants 1 to 3 and 4 were put together, the extent is not more than 960 square yards i.e. 730 square yards of defendants 1 to 3 and 230 square yards of defendant No.4. Thus, the plaintiff must be in 39 Dr.GRR, J ccca_169_1994 possession of the balance extent of the property. However, the plaintiff failed to show that she was in possession of the balance extent of the property also.

43. The evidence of PW.2, the building material supplier is to the extent that when he supplied the material, PW.1 was residing in the site in asbestos and tin sheets and he supplied two lorries of stone and moram to the site situated at Akbar Bagh. The said evidence is no way useful to decide the title, ownership or possession of the property.

44. As rightly contended by the learned counsel for the respondent No.8 - LR of deceased defendant No.4, the suit was originally filed against defendants 1 and 2. The defendants 3 and 4 were subsequently impleaded as per the order dated 11.07.1979. But the appellant - plaintiff failed to bring the consequential amendments as per Rule 28 of Civil Rules of Practice. Admittedly, there were no pleadings against defendants 3 and 4 that they had dispossessed the plaintiff and occupied the suit schedule property. There was no pleading to show that the H.No.16-2-147/55 constructed on plot No.237 was part of the suit schedule property. In the absence of such pleading, it was not open for the plaintiff to say that the property of the defendant was part of the suit schedule property.

45. The evidence adduced by defendant No.4 would disclose that the defendant No.4 purchased the property under registered sale deed and the vendors of defendant No.4 originally purchased Plot No.237 in the year 1961 40 Dr.GRR, J ccca_169_1994 and subsequently K.Ratna Reddy, predecessor-in-title of defendant No.4 obtained permission in the year 1965 and constructed a house. Therefore, the question of any dispossession of the plaintiff in respect of plot No.237 would not arise. When there was no pleading against defendant No.4, no relief can be granted against defendant No.4.

46. The plaintiff cannot take advantage of the weakness of the case of the defendants. The plaintiff has to prove her case basing on the strength of her own pleadings and evidence adduced by her to prove her title and possession over the suit schedule property. Whether the recitals in the sale deed of defendants were vague, incomplete, and ambiguous are not valid considerations to decide the suit. When the plaintiff failed to prove her case, the suit is liable to be dismissed. There is no necessity to decide the aspect whether the suit schedule property claimed by the plaintiff and the suit schedule property claimed by the defendants are one and the same or distinct and different, as the plaintiff had not sought for the relief of declaration of title. Even in a suit for declaration of title, the burden heavily lies upon the plaintiff to prove that he or she has a valid title over the suit schedule property and the case could not be decided basing upon the weakness of the case of the defendants. As such, this Court does not consider any necessity to re-frame any issue or to remand the matter to the trial court.

Dr.GRR, J ccca_169_1994

47. The Hon'ble Apex Court in Union of India and Others v. Vasavi Co- operative Housing Society Limited and Others (cited supra), held that:

"In a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited."

48. Learned counsel for the respondents 12 to 14 (the LRs of respondent No.3) also relied upon the judgment of the Hon'ble Apex Court in A.Subramanian & Others v. R.Paneerselvam (cited supra), on the same aspect.

49. As the plaintiff failed to prove her possession over the suit schedule property till May 1978, which was the alleged date of her possession, she was not entitled to claim the relief of recovery of possession from the defendants 1 to 4.

Dr.GRR, J ccca_169_1994

50. Point No.4:

Whether the suit is barred by limitation?

As point No.2 is answered holding that the plaintiff ought to have filed the suit seeking the relief of declaration of title and that the suit for recovery of possession alone is not maintainable without seeking the relief of declaration, when her vendor's title was in cloud, the suit has to be filed within 3 years when the right to sue first accrues as per Article 58 of the Schedule to the Limitation Act, 1963. The right to sue first accrues when the plaintiff had the cause of action to seek the declaration.

51. As PW.1 admitted that the defendants 3 and 4 constructed a building in the suit schedule property in the year 1967 itself, the plaintiff's possession was admittedly disturbed by the said date itself. The plaintiff filing the suit stating that she was dispossessed in May, 1978 appears to be only to bring the suit within the period of limitation claiming the relief of recovery of possession alone. Not seeking the relief of declaration of title and only seeking the relief of recovery of possession appears to be to bring the suit under Article 65. The admission in cross-examination is crucial and unless explained will go against the plaintiff's case. It can be considered as substantive evidence and can be relied upon as it goes against the pleadings. As the documents filed by the defendants would disclose that the defendants or their predecessors in interest 43 Dr.GRR, J ccca_169_1994 were in possession of the property since 1961 onwards, the suit was barred by limitation even under Article 65.

52. Section 27 of the Limitation Act, 1963 deals with extinguishment of right to property. It states that if a person is barred from instituting a suit for possession of any property due to the expiration of the prescribed limitation period, their right to that property is extinguished. As such, if someone fails to sue to recover their property within the time limit, they loose their ownership rights. It is a consequence of not acting within the prescribed time and applies to cases where a person is seeking to recover possession of property. It is not only a procedural right, but a substantive right having the effect of extinguishing ownership over the property. This Section is an exception to the general principle that Law of Limitation only bars the remedy but not the right. As such, the plaintiff's right over the suit schedule property was also extinguished and the plaintiff has to be non-suited on the said ground.

53. Point No.5:

To what relief?

In the result, the C.C.C.A is dismissed confirming the judgment of the learned V Additional Judge, City Civil Court, Hyderabad in O.S.No.531 of 1982 in dismissing the suit.

No order as to costs.

Dr.GRR, J ccca_169_1994 As a sequel, miscellaneous applications pending in this appeal, if any, shall stand closed.

____________________ Dr. G.RADHA RANI, J Date: 17.06.2025 Nsk.

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