Andhra HC (Pre-Telangana)
Arjuna Subramanya Reddy vs Arjuna China Thangavelu on 21 June, 2006
Equivalent citations: AIR2006AP362, 2006(5)ALD169, 2006(5)ALT231, AIR 2006 ANDHRA PRADESH 362, 2000 (10) SCC 276, 2007 (1) ALL LJ NOC 83, 2005 AIR KAR R 291, 2007 (1) AIR KAR R 72, 2007 A I H C (NOC) 73 (AP), (2006) 47 ALLINDCAS 356 (AP), (2006) 5 ANDHLD 169, (2006) 5 ANDH LT 231, (2007) 1 CURCC 199, (2007) 1 KER LT 9, (2006) 12 SCALE 163, (2007) 66 ALL LR 150, (2007) 1 ANDH LT 35, 2005 ALL CJ 3 1758
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The plaintiff in O.S. No. 20 of 1987 on the file of the District Munsiff Magistrate, Nagari, is the appellant. He filed the suit for the relief of declaration of title and recovery of possession of the suit schedule property. He pleaded that he purchased the suit schedule land under a sale deed, dated 20-2-1981 (Ex. A-1) for a consideration of Rs. 1,800/-, and thereafter he acquired the possession of the superstructure under an agreement of sale, dated 31-3-1981 (Ex. A-2) for a consideration of Rs. 1,450/-. According to him, five years before the sale of the property, his vendor, P.W. 2, had inducted the respondent (defendant) into permissive possession and when the latter was required to handover the vacant possession of the premises, he declined.
2. The appellant got issued a notice, dated 5-4-1981 (Ex.A-4) calling upon the respondent to deliver the vacant possession. To this, the respondent issued a reply (Ex. A-6) stating inter alia that the suit schedule property was purchased by his brother, about thirty years back from P.W. 2 through an oral sale and five years thereafter it was allotted to him in a partition, among the brothers. He has also taken the plea of adverse possession, apart from claiming title in himself. Hence, the appellant filed die suit for the relief of declaration of title and recovery of possession of the suit schedule property.
3. The respondent filed a written statement, virtually, repeating his stand in the reply notice marked as Ex. A-6.
4. The trial Court decreed the suit through its judgment, dated 30-9-1988. Aggrieved thereby, the respondent filed A.S. No. 35 of 1990 in the Court of Senior Civil Judge, Puttur. The lower appellate Court allowed the appeal through judgment, dated 2-3-1994.
5. Sri P. V. Sanjay Kumar, learned Counsel for the appellant, submits that the lower appellate Court committed an error in law in treating that the possession of the respondent has become adverse to that of the appellant and his vendor. He contends that whatever be the doubt as to the starting point of possession of the respondent over the suit property, once he has acknowledged the title of PW. 2 for it, and failed to prove any transfer in his favour, the possession ought not to have been treated as adverse. He further submits that even on facts, the plea of adverse possession, taken by the respondent is on a slippery footing. He placed reliance on the judgments rendered by this Court as well as the Supreme Court, which dealt with, the principle of adverse possession.
6. Sri AT. Bathi Reddy, learned Counsel for the respondent, on the other hand, submits that the possession of his client over the property was traceable atleast from the year 1970 as evidenced by Ex. B-1 and it is clearly evident that he has perfected his title by way of adverse possession. The learned Counsel points out that though PW. 2 was the original owner, the title has passed on to the brother of the respondent about thirty years prior to the filing of the suit, and in that view of the matter, it cannot be said that the respondent continues to acknowledge the title of PW. 2.
7. The appellant filed the suit for the relief of declaration of title and recovery of possession. So far as the first limb of the relief is" concerned, there did not exist much of the controversy. The vendor of the appellant i.e., PW. 2, did not dispute the execution of the sale deed (Ex. A-1) for the landed property and the agreement of sale for the superstructure namely Ex. A-2. Admittedly, the respondent herein was in possession of the suit schedule property much prior to the sale in favour of the appellant. Inasmuch as recovery of possession is sought on the strength of title, the burden squarely rested upon the respondent to prove that his possession over the property became adverse to the appellant, twelve years prior to the filing of the suit.
8. On his behalf, the appellant examined PWs. 1 to 3 and filed Exs. A-1 to A-6. The respondent examined DWs. 1 and 2 and filed Exs. D-1 to D-8. There existed some controversy as to when the possession of the respondent over the suit schedule property commenced. While according to PW. 2, vendor of the appellant, the respondent was inducted into permissive possession in the year 1976, the respondent pleaded that his brother purchased the property about thirty years prior to the filing of the suit and five years thereafter, the same was allotted to his share. To prove his contention about the possession over the property, the respondent filed Exs. B-1 to B-6, voters lists, Ex. B-1 is said to be of the year 1970. It is true that no house number was indicated against the name of the respondent in the voters list. However, the same thing can be said about Ex.A-3, the house-tax receipt issued to the appellant, almost at the time of filing of the suit i.e., on 31-3-1981. In view of the oral evidence of D.Ws. 1 to 3 also, it can be said, in a way, that the respondent started living in the premises from the year 1970 onwards. This, however, does not clinch the issue.
9. In his reply to Ex. A-4, the respondent herein stated in Ex. A-6 that the suit schedule property was purchased from PW. 2 by his brother twelve years ago, and that in the family partition, it has fallen to his share. Thereby, he acknowledged the title of PW. 2 vis-a-vis the suit schedule property. This title of PW. 2, can be said to have been extinguished in favour of the respondent, if only he was able to prove mat a transfer, has taken place from PW. 2, in accordance with law. The plea taken by the respondent is that there was an oral purchase of the suit property by his brother from PW. 2. Section 54 of Transfer of Property Act prohibits such categories of transfers. Therefore, in the absence of any valid transfer, the title continues to be vested with PW. 2, till it was transferred in favour of the appellant under Ex.A-2. The oral sale pleaded by the respondent, at the most, can be treated as an executory contract, enforceable in law, if other ingredients pleaded are proved.
10. The question as to whether the plea of adverse possession and right under executory contract, can go together, was the subject-matter of judgment of the Supreme Court in Achal Reddi v. Ramakrishna Reddiar AIR 1990 SC 553. After undertaking extensive discussion, the Supreme Court held that these two concepts cannot go together and it was observed as under:
The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong, and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to contract, it cannot be adverse.
11. The same was followed by the Supreme Court in Roop Singh v. Ram Singh .
12. Dealing with an identical situation in S. Saraswathi v. Y. Laxminarayana and Moturi Seeta Ramabrahman v. Bobba Rama Mohana Rao , this Court followed the judgments, referred to above.
13. The facts of the instant case squarely attract the ratio laid down by the Supreme Court in Achal Reddi's case (supra). Once the respondent has pleaded an executory contract in the form of an oral sale from PW. 2, he is precluded from taking the plea of adverse possession.
14. From the above discussion, it becomes evident that the appellant had established his title to the suit schedule property through Ex. A-1, and consequently he is entitled to the relief of recovery and possession. The lower appellate Court did not consider the matter on the touchstone of settled principles of law.
15. Therefore, the second appeal is allowed and the judgment and decree passed by the lower appellate Court in A.S. No. 85 of 1990, dated 2-3-1994, is set aside and consequently the judgment and decree of the trial Court in O.S. No. 20 of 1987, dated 30-9-1988, shall stand revived. There shall be no order vas to costs.