ONCE TITLE PROVED, IN ABSENCE OF ADVERSE POSSESSION- RECOVERY OF POSSESSION CAN BE GRANTED : NO AGENT, NO PERMISSIVE POSSESSOR CAN PLEAD ADVERSE POSSESSION ; ALL DOCUMENTS EXECUTED WITH OUT TITLE NOT VALID - Notwithstanding the fact that the 1st respondent proved his title, he could have recovered possession, if only there did not exist any formidable factor, such as acquisition of any rights by the appellants or their predecessors, such as by way of transfer or adverse possession. The record does not disclose that any valid transfer inter vivos has taken between the 1st respondent or any other person. The appellants made a feeble attempt to plead that the 1st respondent transferred the property in favour of Ratnayamma through Ex.B.20, on 01.02.1988. Admittedly, it is an unregistered document and the trial Court has rightly held the same as inadmissible in evidence. No legal consequences flow from it. The appellants could have taken the plea of adverse possession, but for the fact that they have specifically pleaded that Ratnayamma purchased the property. Added to that, Ratnayamma was appointed as power of attorney under Ex.B.1 by the 1st respondent. An agent much less his/her legal representative can never be permitted to plead any rights adverse to the interests of the principal. As a matter of fact, there is nothing on record to disclose that Ratynayamma had ever asserted any rights over the property, in herself. It is only the 1st appellant that made an attempt in this regard. When the possession of the property by Ratnayamma cannot be treated to be adverse, to the interest, of the 1st respondent, the question of the 1st appellant claiming through Ratnayamma, that too, under a Will, taking the plea of adverse possession, does not arise. Therefore, the inescable conclusion is that the 1st respondent was entitled to recover the possession of the property. The Will said to have been executed by Ratnayamma in favour of the 1st appellant is hardly of any use, unless the executrix had an independent title to the property. Therefore, the second point is also answered against the appellants and in favour of the 1st respondent. Though the 1st appellant is said to have executed a gift deed, being Ex.B.6, on 10.04.2003, in favour of his wife, the 2nd appellant, in respect of the property. It is already held that the 1st respondent did not derive any title to the property and he cannot convey a better title to his wife, the 2nd appellant.

REPORTED IN/ PUBLISHED INhttp://judis.nic.in/judis_andhra/filename=8290

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY

Appeal Suit No.319 of 2006

20.07.2011

Sai Kommoju Durga Prasada Rao and another.  

Patnala Babu Rao and others.


Counsel for the appellants      :  Sri S.Rajan

Counsel for the Respondents     : Sri P.Bhaskar Mohan

JUDGMENT:  
       
Defendants 1 and 2 in O.S.No.860 of 2003 on the file of III Additional Senior
Civil Judge, Visakhapatnam, are the appellants.  They feel aggrieved by the
judgment and decree passed by the trial Court on 24.04.2006, and filed this
appeal.  The 1st respondent-plaintiff filed the
suit for the relief of
declaration of title and recovery of possession of the suit schedule property,
R.C.C. Terraced House bearing Door No.46-15-12 of Devangula Street, Dondaparthy, 
Visakhapatnam.
He has also claimed arrears of rent to an extent of
Rs.1,44,000/- from the respondents.

The brief averments in the plaint are to the effect that, late Patnala
Lakshmayya, had three sons, by name, Varahalu, Satyanarayana and Suryanarayana @    
Suribabu.
The plaintiff is the son of Varahalu.
On the death of his first
wife, Lakshmayya married another woman, by name Akkayyamma, who is none other    
than the sister of his first wife.
Through his second wife, Lakshmayya had a
son by name Chinnayachari and two daughters - Ratnayamma and Ammaji.
The 1st  
appellant is the fostered son of Ammaji, and after her death, he started living
with Ratnayamma.

        Partition of the properties took place among the three sons of Lakshmayya,
through his first wife, in the year 1927, through a registered partition deed.
The suit schedule property fell partly to Varahalu, the father of the 1st
respondent, and partly to Satyanarayana.  
Through a sale deed, dated 23.08.1955, Satyanarayana sold his share to Varahalu.  
Thereby, the latter became the
absolute owner of the entire property.  Varahalu died in the year 1969 and the
1st respondent succeeded to his interest.

        The 1st respondent pleaded that since he was employed in the railways, he
entrusted the management and administration of the suit schedule property, to
his maternal aunt by name Ratnayamma and for that purpose, he executed a General  
Power Attorney, on 04.01.1988.  According to him, after the death of Ratnayamma
on 17.05.1999, the 1st appellant was looking after the property.
The 1st respondent got a notice,
dated 01.07.2003 issued, demanding delivery of possession of the property, when
the 1st appellant started asserting rights in himself.
He found that respondents 2 to 5 (defendants 2 to 6) were in possession of part
of the property, as tenants.  
On verification, it emerged that the
1st appellant executed a gift deed on 10.04.2003, in favour of his wife, the 2nd
appellant, in relation to the property.  
The reply given by the
1st appellant asserting title in himself, constituted the cause of action for
the 1st respondent to file the suit.
        The suit was opposed mainly by the 1st appellant and other defendants in
the suit adopted his written statement.  The gist of his written statement is
that
after the partition took place among Varahalu and his brothers, Ratnayamma
purchased the entire property and all the original documents pertaining to it, were handed over to her together with the property in the year 1965.  
She is
said to have executed a registered Will in the year 1972 in favour of the 1st
respondent.  
It was also stated that the 1st respondent and his family members
executed an unregistered sale deed, being Ex.B.20, in favour of Ratnayamma, in
the year 1988.

        On the basis of the pleadings in the suit, the trial Court framed the
following issues for its consideration:

i) "Whether the Patnala Ratnayamma is the owner of the property?
ii) Whether the Ratnayamma perfected her right by adverse possession? 
iii) Whether the will executed in favour of D.1 is true, valid and acted upon?
iv) Whether D2 became owner of plaint schedule by virtue of settlement deed
dated 10.04.2003 executed by D1?  
v) Whether suit is barred by limitation?
vi) Whether plaintiff is entitled for declaration and possession?
vii) Whether the plaintiff is entitled for arrears of rent?
viii) Whether the plaintiff is entitled for permanent injunction?"

The 1st respondent deposed as PW.1 and filed Exs.A.1 to A.14.  On behalf of the
appellants, DWs.1 and 2 were examined and Exs.B.1 to B.20 were filed.  The trial
Court decreed the suit as prayed for, with costs.

Sri S.Rajan, learned counsel for the appellants, submits that there was hardly
any evidence in support of the plea of the 1st respondent, since no other
witnesses were examined and still the trial Court decreed the suit.  He contends
that the very fact that the 1st respondent was not in possession of the
property, for decades together, nor his name was found anywhere in the connected
records, discloses that the property was under possession and enjoyment of
Ratnayamma as owner.  Learned counsel further submits that the appellants have
placed before the trial Court, voluminous documentary evidence to establish that
Ratnayamma purchased the suit schedule property from the original owners,
including the father of the 1st respondent and that there was no basis for the
claim in the suit.

Sri P.Bhaskar Mohan, learned counsel for the 1st respondent, on the other hand,
submits that the appellants admitted that part of the suit schedule property
fell to the share of Varahalu, the father of the 1st respondent, in the family
partition, that was effected through Ex.B.7, in the year 1927, but have not
substantiated their plea that it was sold in favour of Ratnayamma.  He contends
that the very fact that a GPA, being Ex.A.5, dated 01.02.1998, equivalent to
Ex.B.1,  was executed by the 1st respondent, nearly six decades thereafter,
discloses that he continued to exercise the ownership rights, upon the property.
He further submits that the item of property said to have been purchased by
Ratnayamma, under Ex.B.8, was different from the suit schedule property and that
a futile effort was made to rely upon Ex.B.20, an unregistered sale deed dated
01.02.1988, which was rightly held by the trial Court, as inadmissible in
evidence.

The relationship between the contesting parties is not disputed.  Common
ancestor, late Patnala Lakshmayya, had three sons through his first wife and the
1st respondent is the son of one of them, by name Varahalu.  Through his second
wife, Lakshmayya had one son and two daughters.  The first appellant is the
fostered son of one of daughters, by name Ammaji, and after her death, he was
residing with another daughter  Ratnayamma.  The 1st respondent pleaded that
part of the suit property has fallen to the share of his father and the other
half was purchased way back in the year 1955 by his father from Satyanarayana,
another son of Lakshmayya and that he succeeded to the entire property.  He
filed the suit for declaration of title and recovery of possession, when the
appellants 1 and 2 started asserting title in themselves.  The suit was decreed.

In view of the submissions made by the learned counsel for the parties, the
following points arise for consideration:

i) Whether the 1st respondent proved his title to the suit schedule property?
ii) Whether the suit schedule property was acquired in any manner by late
Ratnayamma and if so,
iii) Whether the suit schedule property has devolved upon the 1st appellant by
operation of Will Ex.B.10?

Since the right claimed by the 2nd appellant on the basis of Ex.B.6, a gift
deed, dated 10.04.2003, would depend upon the answer to the points framed above,
it is not necessary to deal with the same independently.

POINT No.(i)

        The pedigree of the family of Patnala Lakshmayya was presented by the 1st
respondent.  The partition among the three sons of Lakshmayya, through his first
wife, was in a way proved by the appellants, when they filed Ex.B.7 - registered
partition deed, dated 18.12.1927.  The appellants did not dispute the fact that
one of the sons, Satyanarayana sold his share in the suit schedule property, to
his brother Varahalu, through Ex.B.8 in the year 1955.  Even this was proved by
the 1st respondent, by filing the document.  Once they did not dispute that the
1st respondent is the son of Varahalu, nothing more was needed for the 1st
respondent to prove his title to the property.   The appellants could have non-
suited the 1st respondent, only by pleading the transfer of title to the
property from Varahalu, in accordance with law or by taking the plea of adverse
possession and by establishing it.  With the filing of Exs.B.7 and B.8 by the
appellants, it stood established that the father of the 1st appellant was the
absolute owner of the property and being the Class-I heir, the 1st respondent
succeeded to his estate.  If any doubt existed as to the continued enjoyment and
the title by the 1st respondent in respect of the property, that stood removed
with the filing of the original power of attorney executed by the 1st respondent
in favour of Ratnayamma, for administration thereof.  Incidentally, the original
of the G.P.A. is filed as Ex.B.1 by the appellants.  Therefore, it can safely be
held that the 1st respondent proved his title to the suit schedule property.

POINT Nos.(ii) and (iii)

        Notwithstanding the fact that the 1st respondent proved his title, he
could have recovered possession, if only there did not exist any formidable
factor, such as acquisition of any rights by the appellants or their
predecessors, such as by way of transfer or adverse possession.  The record does
not disclose that any valid transfer inter vivos has taken between the 1st
respondent or any other person.  The appellants made a feeble attempt to plead
that the 1st respondent transferred the property in favour of Ratnayamma through
Ex.B.20, on 01.02.1988.  Admittedly, it is an unregistered document and the
trial Court has rightly held the same as inadmissible in evidence.  No legal
consequences flow from it.

        The appellants could have taken the plea of adverse possession, but for
the fact that they have specifically pleaded that Ratnayamma purchased the
property.  Added to that, Ratnayamma was appointed as power of attorney under 
Ex.B.1 by the 1st respondent.  An agent much less his/her legal representative
can never be permitted to plead any rights adverse to the interests of the
principal.  As a matter of fact, there is nothing on record to disclose that
Ratynayamma had ever asserted any rights over the property, in herself.  It is
only the 1st appellant that made an attempt in this regard.  When the possession
of the property by Ratnayamma cannot be treated to be adverse, to the interest,
of the
1st respondent, the question of the 1st appellant claiming through Ratnayamma,
that too, under a Will, taking the plea of adverse possession, does not arise.
Therefore, the inescable conclusion is that the 1st respondent was entitled to
recover the possession of the property.

        The Will said to have been executed by Ratnayamma in favour of the 1st
appellant is hardly of any use, unless the executrix had an independent title to
the property.  Therefore, the second point is also answered against the
appellants and in favour of the 1st respondent.

        Though the 1st appellant is said to have executed a gift deed, being
Ex.B.6, on 10.04.2003, in favour of his wife, the 2nd appellant, in respect of
the property.   It is already held that the 1st respondent did not derive any
title to the property and he cannot convey a better title to his wife, the 2nd
appellant. 
 In addition to that, it was elicited from the 1st appellant as DW.1
that there are no documents to show that Ratnayamma purchased the plaint
schedule property from the father of the
1st respondent, and that the Will marked as Ex.B.10 is in respect of a different
item of property.  He admitted that the property mentioned therein i.e. House
bearing No.46-15-11 has fallen to the share of Ratnayamma.  He was not entitled
to lay any claim to the suit schedule property, on the basis of the said
document.

        Viewed from any angle, this Court does not find any merits in the appeal
and it is accordingly dismissed.   On a request made by the learned counsel for
the appellants, three months time is granted to them to put the 1st respondent
in possession of the suit property, subject to payment of rents.
There shall be no order as to costs through out.
       
______________________  
L.NARASIMHA REDDY, J

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