THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
S.A. No.362 of 2003
29-03-2016
Koppisetty Ramana and others.. Appellants
Emani Ramanamma.. Respondent
Counsel for Appellants: Smt. Bobba Vijayalakshmi
Counsel for Respondent:Sri V.L.N.Gopala Krishna Murthy
<Gist:
>Head Note:
? Cases referred:
1) (1990) 4 SCC 706
2) 1998 (4) ALT 469 (DB)
3) (2000) 3 SCC 640
4) (2000) 7 SCC 60
5) (2002) 5 SCC 90
6) (2003) 4 SCC 161
7) (2004) 1 SCC 271
8) (2006) 7 SCC 570
9) (2007) 6 SCC 59
10) AIR 1995 SC 895
11) (2007) 3 SCC 114
12) AIR 2005 SC 4407
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
SECOND APPEAL No.362 of 2003
JUDGMENT:
This Second Appeal is filed by the defendants questioning the
judgment and decree dated 14.02.2003 in A.S.No.194 of 1997 passed by
the VII Additional District Judge, Kakinada wherein the learned Judge
allowed the appeal filed by the appellant/plaintiff and set aside the
judgment and decree dated 28.12.1996 in O.S.No.146 of 1987 on the file
of Principal Subordinate Judge, Kakinada and decreed the plaintiffs suit
for declaration and possession.
2) The brief facts of the case are thus:
a) The case of the plaintiff is that originally plaint A schedule
property belonged to one Ghantasala Aadilakshmi and she sold the same
under a registered sale deed dated 12.02.1961 to one Emani Bhanumathi
who in turn gifted the same to plaintiff, who is her daughter-in-law
through a registered gift deed dated 08.12.1981. While so, defendants 1
and 2 who are father and son entered into the said property claiming right
over the same. When the plaintiff questioned their act, they threatened her
with dire consequences. Then she filed a complaint before the SHO, PS
Sarpavaram who charge sheeted the defendants in C.C.No.103 of 1984
before the II Additional Judicial First Class Magistrate, Kakinada, who
after due enquiry found them guilty, of trespass and sentenced to pay fine.
Defendants carried the matter in revision to the District Court wherein the
learned Judge acquitted them on the ground that the case is of civil nature.
Basing on the acquittal order, defendants again trespassed into the plaint
schedule property and put their hayricks and started digging and taking
away the earth from the said land. Hence the suit.
b) The case of the defendants is that Ghantasala Adilakshmi was the
original owner of the property and she let out the same to the 1st defendant
on 05.07.1957 and since then he was in continuous possession and
enjoyment of the property as a lessee and after that he purchased the same
for Rs.92/- on 05.10.1966 and to that effect a receipt was also issued and
since from the date of purchase he has been in possession and enjoyment
of the property as owner.
c) The further case of the defendants is that plaintiff having influenced
the Sarpavaram police launched criminal proceedings against them but the
appellate Court set aside the conviction finding them not guilty. The
further case of the defendants is that Ghantasala Adilakshmi had not
delivered possession of the plaint schedule property to Emani Bhanumathi
on 12.02.1961 as she herself was not in possession of the land by that
date. Emani Bhanumathi had no right over the plaint schedule property as
on 08.12.1981 therefore, she cannot convey any right under gift deed to
the plaintiff. First defendant was in possession and enjoyment of the same
from 1957 upto 05.10.1966 as a lessee and thereafter as owner. They
denied the contention of the plaintiff that defendants trespassed into the
property. Therefore, plaintiff is not entitled for declaration or possession
as claimed. They prayed to dismiss the suit with exemplary costs.
d) Basing on the above pleadings, the trial Court framed the following
issues.
1. Whether the plaintiff is entitled for declaration that she is the
owner of the plaint schedule property as claimed?
2. Whether the plaintiff is entitled to eject the defendants 1 and 2
from the plaint A schedule property and for recovery of vacant
possession thereof as claimed?
3. Whether the plaintiff is entitled to future profits from D1 and D2
and if so at what rate and for what period?
4. Whether the suit is not maintainable at law?
5. To what relief?
e) During trial, PWs.1 to 3 were examined and Exs.A1 to A5 were
marked. DWs.1 to 5 were examined and Exs.B1 to B8 were marked on
behalf of defendants.
f) On appreciation of facts and evidence the trial Court dismissed the
suit holding that plaintiff is not entitled for declaration and ejectment of
defendants and any mesne profits.
g) Aggrieved, the plaintiff filed A.S.No.194 of 1997 before VII
Additional District Judge, Kakinada challenging the judgment of the trial
Court.
h) After hearing both sides, the first appellate Court allowed the
appeal with costs and decreed the suit as prayed for, granting two months
time to the defendants to vacate the suit schedule property. Hence, the
Second Appeal at the instance of the aggrieved defendants.
3) The parties in this appeal are referred as they are arrayed before the
trial Court.
4) The judgment of the trial Court would show in pra-8 it observed
that Ex.B8 will not confer any title on the defendants for the reason by the
date of oral sale dated 05.10.1966 allegedly executed by Ghantasala
Aadilakshmi in favour D1, she had no alienable title or interest over the
disputed property as she already conveyed the same to Emani Bhanumathi
by virtue of Ex.A3sale deed dated 18.02.1961.
a) Though trial Court negatived the title of D1, still it considered his
adverse possession in respect of suit property in the succeeding paras of its
judgment. In para-13 it observed that as per recital in Ex.A3, D1 was a
tenant to the disputed property under Ghantasala Aadilakshmi but there is
no record that Aadilakshmi taken over the property from D1 prior to
executing Ex.A3sale deed in favour Emani Bhanumathi. It was
observed, since D1 has been contending that he was in possession from
1957 onwards, unless the plaintiff establish by cogent evidence that
Ghantasala Aadilakshmi recovered the possession from D1 prior to
execution Ex.A3 and delivered vacant possession to Emani Bhanumathi,
plaintiff cannot succeed. The trial Court observed, in the absence of
plaintiff proving recovery of possession from D1 it is to be accepted that
D1 was in continuous possession of the property from 1957. The trial
Court further observed that as per PW2 disputes commenced with D1
since 1970 which would also show that even prior to Ex.A5 plaintiff was
aware that D1 was claiming right over plaint schedule property. On all
these observations the trial Court held that though plaintiff could prove the
title over plaint schedule property by Ex.A5gift deed, yet she is not
entitled for declaration as D1 and his successors have been in possession
and enjoyment of the disputed property beyond the statutory period and
thereby perfected their title by way of adverse possession.
b) Then coming to Appellate Judgment in A.S.No.194 of 1997,
learned Judge in Paras 11 and 12 of his judgment at first considered
respective titles setup by the plaintiff under Ex.A.3 and by the defendants
under Ex.B.8 and observed that admittedly Ghantasala Adilakshmi was
the original owner of the suit property and from her Emani Bhanumathi
purchased under Ex.A.3registered sale deed dt:18.02.1961 and later
gifted the same to her daughter-in-law i.e, plaintiff under Ex.A.5gift
deed dt:08.12.1981 and therefore, the plaintiff could establish her title.
The learned Judge observed that whereas D.1 is concerned, he claimed
that he was a tenant under Ghantasala Adilakshmi as per Ex.B.7lease
deed dt:05.05.1957 and later he purchased the suit property from her under
an oral sale covered by Ex.B.8receipt dt:05.10.1966. He observed that
even if Ex.B.8 is held to be true, the first defendant cannot get title since
G. Adilakshmi had no title or interest in the suit property by the date of
Ex.B.8. He further observed that if really D.1 purchased the property, he
would have obtained possession of Ex.A.1sale deed i.e, the title deed of
G. Adilakshmi. He also noticed that as per Ex.A.1sale deed, Adilakshmi
purchased the suit property for a consideration of Rs.300/- by 1950 and
she sold the same under Ex.A.3registered sale deed dt:18.02.1961 to
E.Bhanumathi for Rs.500/- which shows the value of the property by 1961
was Rs.500/-. In that view, no prudent owner would sell away the
property in 1966 for a lesser price of Rs.92/- as claimed by D.1. Thus he
held that plaintiff could establish her title and defendants failed in that
regard.
c) Then the learned Judge considered the other plea of the defendants
i.e, their adverse possession and barring of the suit by limitation. Having
referred the case law filed by both sides, the learned Judge in Para 19
observed that since the suit was filed by the plaintiff basing on her title,
the burden would be on the defendant to establish that he perfected his
title by way of adverse possession. The appellate Court noticed that
Art.65 of the Limitation Act is applicable to the instant case. Having thus
fixed the burden of proving adverse possession on the defendants, learned
Judge observed that the defendants failed to prove their possession adverse
to the knowledge and interest of Bhanumathi or plaintiff beyond the
statutory period of limitation. He noticed that defendants though claimed
to have cultivated the land but they could not establish the same because
the disputed property is a barren land but not a cultivable land and the
defendants failed to produce any village accounts or cultivation adangals.
He also observed that the evidence of PW.2 that disputes commenced with
D.1 from the year 1970 cannot be taken into consideration as by 1970 the
property was not gifted to his mother and hence, there cannot be any
dispute at all by then. Ultimately the Appellate Court held that it was for
the defendants to prove that they perfected adverse title but they failed in
that regard. Learned Judge also observed that unless the lease was
determined and D.1 handed over the suit property and other property
which was leased to him, Adilakshmi who sold away the part of the
property to Gorla Gangamma and Rameshwarapu Chalapathi, could not
have handed over the said property to them. With these observations, he
allowed the appeal.
Hence, the instant Second Appeal by defendants.
5) Heard arguments of Smt. Bobba Vijayalakshmi, learned counsel for
appellants/defendants and Sri V.L.N.Gopala Krishna Murthy, learned
Counsel for respondent/plaintiff.
6) Impugning the appellate Judgment, learned counsel for appellants/
defendants argued that the defendants perfected their title by adverse
possession beyond the statutory period of limitation as can be seen from
the facts and evidence which would show that from 1957 till date they
have been in continuous and uninterrupted possession of the suit property
and they raised dry crops and also placed their hayrick and bricks in the
suit property. The factum of lease was clearly mentioned in Ex.A.3 and
no iota of evidence is produced by the plaintiffs to show that before
selling the property to Bhanumathi under Ex.A.3, the vendor
G.Adilakshmi recovered the suit property from D.1. Further, PW.2 who
is son of plaintiff admitted that disputes commenced in the year 1970
itself with D.1 relating to the suit property. All these would cumulatively
show that the defendants have been enjoying the suit property adverse to
the interest of Bhanumathi as well as the plaintiff. Though they have not
specifically raised a plea in the written statement about the adverse
possession, the substance of their plea is to the same effect. Learned
counsel submitted that the appellate Court committed grave error in fixing
the burden on the defendants and holding that they failed to discharge the
same. Learned counsel thus prayed to allow the appeal.
Learned counsel placed reliance on the following decisions:
(i) Achal Reddy vs. Ramakrishna Reddiar and others
(ii) Mohd. Iqbal vs. N.Prabhakar and another
(iii) Bank of India vs. Lekhimoni Das and others
(iv) Santakumari and others vs. Lakshmi Amma Janaki Amma
(dead) by LRs and others
(v) P.John Chandy and Co. (P) Ltd. vs. John P.Thomas
(vi) Bondar Singh and others vs. Nihal Singh and others
(vii) Md. Mohammad Ali (dead) by LRs vs. Jagadish Kalita and
others
(viii) T. Anjanappa and others vs. Somalingappa and another
7) Per contra, supporting the judgment learned counsel for
respondent/plaintiff argued that as observed by the appellate Court, the
defendants miserably failed to prove their title because Ex.B.8, even if
assumed to be true, was long after Ex.A.3sale deed and therefore, by
the date of Ex.B.8, G. Adilakshmi had no title or interest in the suit
property to convey to defendants. He further argued that the adverse
possession is concerned, the defendants have not taken a specific plea in
their written statement and even if the said claim is considered, still it
being a suit for title and possession, when the plaintiff proved her title, the
burden of proving the adverse possession against E.Bhanumathi and
plaintiff rests on the defendants as per Art.65 of the Limitation Act. He
relied upon the decision reported in P.T.Munichikkanna Reddy and
others vs. Revamma and others on the aspect of burden of proof. He
argued that the defendants failed to prove their adverse possession against
Bhanumathi and also plaintiff and therefore, the Appellate Court rightly
granted decree in favour of the plaintiff. He thus prayed to dismiss this
appeal.
8) In the light of above rival arguments, the following substantial
questions of law are framed for consideration in this second appeal:
(i) Whether the Lower Appellate Court is right in holding that
the appellants have not perfected title to the suit scheduled
land when the evidence adduced on behalf of the
respondents itself show the disputes with the appellants
started right from 1970, when admittedly the appellants are
lessees ?
(ii) Whether the suit is maintainable in the absence of notice
under Sec.106 of Transfer of Property Act to the appellants
herein to vacate?
(iii) Whether the Lower Appellate Court is right in coming to
the conclusion that the appellants have not perfected their
title to the suit property in view of the fact that they never
demanded any rent and when appellants did not pay rent at
any time and no owner would keep quiet without
demanding rent unless appellants perfected title?
(iv) To what relief?
9) POINT Nos.1 and 3: These two points are taken up together since
they are more or less similar and relating to adverse possession of
defendants. It is not in dispute that G.Adilakshmi was the original owner
of suit schedule property and surrounding property and she purchased
them in two items under Ex.A.1registered sale deed. Then under
Ex.A.3registered sale deed dt:18.02.1961, she sold the suit property to
E.Bhanumathi. In the said sale deed, the vendor mentioned that earlier
the suit property was under the lease of D.1 but the lease was determined
and she was selling the property, free from obstructions from the lessee.
Be that it may, E.Bhanumathi gifted the said property to the plaintiff who
is her daughter-in-law under Ex.A.5gift deed dt:08.12.1981. That is
how the plaintiff traces her title to the suit property. According to her,
she was enjoying the property by collecting soap nuts and other usufructs
and in the year 1983, defendants 1 and 2 trespassed into the suit land. So
the plaintiff filed C.C.No.103 of 1984 and the accused/defendants were
convicted by the learned II Additional Judicial First Class Magistrate,
Kakinada in the said C.C. However, the CRP No.54 of 1985 filed by the
defendants was allowed by the III Additional Sessions Judge, Kakinada
on the ground that it was a civil dispute. Hence the suit by the plaintiff
for declaration of title and possession.
a) The case of defendants is that the property belonged to
G.Adilakshmi and she inducted D.1 into tenancy under Ex.B.3lease
deed dt:05.05.1957 and ultimately she sold the suit property to him for
Rs.92/- under an oral sale dt: 05.10.1966 and executed Ex.B.8receipt. It
is the case of the defendants that they are in continuous possession and
enjoyment in their own right and Adilakshmi never gave possession to
E.Bhanumathi. So also E.Bhanumathi was never in possession of plaint
schedule property and she had no subsisting right to execute any gift deed
dt:08.12.1981.
10) In the light of above rival contentions and evidence placed on
record, it is clear that the suit is laid by the plaintiff basing on her title
and
for recovery of possession. In a suit of this nature, the law is clear that
Art.65 of Limitation Act would apply and when once the plaintiff
establishes her title to suit property, the burden will be shifted to the
defendants to prove adverse possession i.e, nec vi, nec clam, nec precario
against Bhanumathi as well as plaintiff beyond the statutory period of
limitation. Art.65 of the Limitation Act, 1963 prescribes limitation as
follows:
Description of suit
Period of
limitation
Time from which
period begins to run
65.
For possession of immovable property
or any interest therein based on title.
Explanation.-- For the purposes of this
article --
(a) where the suit is by a remainder
man, a reversioner (other than a
landlord) or a devisee the possession of
the defendant shall be deemed to
become adverse only when the estate
of the remainder man, reversioner or
devisee, as the case may be, falls into
possession;
(b) where the suit is by a Hindu or
Muslim entitled to the possession of
immovable property on the death of a
Hindu or Muslim female, the
possession of the defendant shall be
deemed to become adverse only when
the female dies;
(c) Where the suit is by a purchaser at
a sale in execution of a decree when
the judgment-debtor was out of
possession at the date of the sale, the
purchaser shall be deemed to be a
representative of the judgment-debtor
who was out of possession.
Twelve
years
When the possession
of the defendant
becomes adverse to
the plaintiff.
a) Then regarding the burden of proof, Honble Apex Court has time
and again reiterated that in a case based on title, Art.65 of the Limitation
Act is applicable and it is suffice for the plaintiff to establish her title and
the burden will be on the defendants to prove the adverse possession.
i) In Annasaheb Bapusaheb Patil and others vs. Balwant @
Balasaheb Babusaheb Patil (dead) by LRs and heirs etc. the Apex
Court has observed thus:
Para 13: Article 65 of the Schedule to the Limitation Act, 1963
prescribes that for possession of immovable property or any
interest therein based on title, the limitation of 12 years begins to
run from the date the defendant's interest becomes adverse to the
plaintiff. Adverse possession means a hostile assertion i.e. a
possession which is expressly or impliedly in denial of title of the
true owner. Under Article 65, burden is on the defendants to
prove affirmatively. A person who bases his title on adverse
possession must show by clear and unequivocal evidence i.e.
possession was hostile to the real owner and amounted to a denial
of his title to the property claimed. In deciding whether the acts,
alleged by a person, constitute adverse possession, regard must
be had to the animus of the person doing those acts which must be
ascertained from the facts and circumstances of each case. The
person who bases his title on adverse possession, therefore, must
show by clear and unequivocal evidence i.e. possession was
hostile to the real owner and amounted to a denial of his title to
the property claimed.
ii) In Md. Mohammad Alis case (7 supra) cited by appellants, the
Apex Court while delineating subtle distinction between the old
Limitation Act, 1908 and the new Limitation Act, 1963 in the matter of
burden of proof of adverse possession, has observed thus:
Para 20: By reason of Limitation Act, 1963 the legal position as
was obtaining under the old Act underwent a change. In a suit
governed by Article 65 of the 1963 Limitation Act, the plaintiff
will succeed if he proves his title and it would no longer be
necessary for him to prove, unlike in a suit governed by
Articles 142 and 144 of the Limitation Act, 1908, that he was in
possession within 12 years preceding the filling of the suit. On the
contrary, it would be for the defendant so to prove if he wants to
defeat the plaintiff's claim to establish his title by adverse
possession.
Para 21: For the purpose of proving adverse possession/ ouster
the defendant must also prove animus possidendi.
iii) The above point was again reiterated by the Apex Court in
P.T.Munichikkanna Reddys case (9 supra) thus:
3. New Paradigm to Limitation Act
Para 34: The law in this behalf has undergone a change. In terms
of Articles 142 and 144 of the Limitation Act, 1908, the burden of
proof was on the plaintiff to show within 12 years from the date of
institution of the suit that he had title and possession of the land,
whereas in terms of Articles 64 and 65 of the Limitation Act,
1963, the legal position has underwent complete change insofar
as the onus is concerned: once a party proves its title, the onus of
proof would be on the other party to prove claims of title by
adverse possession.
iv) In M.Durai vs. Madhu and others the Apex Court held that when
once plaintiff proved his title, burden shifts to the defendants to establish
that he perfected his title by adverse possession.
v) In Saroop Singh vs. Banto and others referring Art.64 and 65 of
Limitation Act, the Apex Court observed thus:
Para 26: The statutory provisions of the Limitation Act have
undergone a change when compared to the terms of Articles 142
and 144 of the schedule appended to the Limitation Act, 1908, in
terms whereof it was imperative upon the plaintiff not only to
prove his title but also to prove his possession within twelve
years, preceding the date of institution of the suit. However, a
change in legal position has been effected in view of Articles 64
and 65 of the Limitation Act, 1963. In the instant case, plaintiff-
respondents have proved their title and, thus, it was for the first
defendant to prove acquisition of title by adverse possession. As
noticed hereinbefore, the first defendant- Appellant did not raise
any plea of adverse possession. In that view of the matter the suit
was not barred.
vi) In T. Anjanappas case (8 supra) cited by appellants, the Apex
Court held thus:
Para 20: It is well recognized proposition in law that mere
possession however long does not necessarily means that it is
adverse to the true owner. Adverse possession really means the
hostile possession which is expressly or impliedly in denial of title
of the true owner and in order to constitute adverse possession
the possession proved must be adequate in continuity, in publicity
and in extent so as to show that it is adverse to the true owner.
The classical requirements of acquisition of title by adverse
possession are that such possession in denial of the true owner's
title must be peaceful, open and continuous. The possession must
be open and hostile enough to be capable of being known by the
parties interested in the property, though it is not necessary that
there should be evidence of the adverse possessor actually
informing the real owner of the former's hostile action.
11) In the light of above precedential jurisprudence, it has to be seen at
first, whether plaintiff could establish her title to deserve for decree. It is
an undisputed fact that the Adilakshmi was the owner of the suit property
and other surrounding property. The defendants have not disputed the
factum of Adilakshmi executing sale deed in favour of Bhanumathi and
also Bhanumathi executing gift deed in favour of plaintiff. Since his
alleged oral sale covered by Ex.B.8receipt was long after Ex.A.3sale
deed executed by G.Adilakshmi, the said oral sale even if held to be true,
will not confer any title on D.1. Further, as rightly observed by the
appellate Court, there are some defects in the oral sale claimed by D.1.
He claims to have purchased the property for Rs.92/- whereas Adilakshmi
herself purchased the property in the year 1950 for Rs.300/-. Even she
sold the said property for Rs.500/- to Bhanumathi. Therefore, it is hard to
believe that she would sell the suit property for a throw away price of
Rs.92/- to D.1. Further, D.1 did not secure the title deed of Adilakshmi at
the time of oral sale. In contrast, Bhanumathi collected the title deed of
Adilakshmi at the time of Ex.A.3. For these reasons, the parallel title
setup by D.1 as against the plaintiff cannot be accepted. On the other
hand, the plaintiff could establish her title by virtue of Ex.A.5gift deed.
Hence, going by the above precedents, the plaintiff prima facie deserves
decree. However, the claim of adverse possession of defendants needs to
be discussed.
12) Going by the law, the burden is heavy on the defendants to
establish by cogent evidence that they have been enjoying the suit
property to the knowledge of Bhanumathi and plaintiff, adverse to their
interest beyond the statutory period.
a) Firstly, defendants claim continuous and adverse possession basing
on the recitals in Ex.A.3. Their claim is that admittedly D.1 was the
tenant under G.Adilakshmi and no evidence is placed by the plaintiff to
show that Adilakshmi secured possession of the suit property from D.1
before selling the same to Bhanumathi and hence it shall be deemed that
they are in continuous and uninterrupted possession. This argument is
untenable for the reason that though in Ex.A.3 Adilakshmi admitted that
the suit property was initially under the lease of D.1 but she emphatically
stated that the lease was determined and she was delivering the possession
to Vendee without any obstructions from the lessee. If it is the contention
of D.1 that inspite of the said recital, he still continued in possession
more-so against the interest of Bhanumathi and plaintiff, it is for him to
establish the said fact by adducing evidence. On the contrary, he cannot
throw burden on plaintiff to show that Adilakshmi obtained receipt from
D.1 delivering the suit property. As rightly observed by the appellate
Court, the Commissioners Report and other evidence would show that
the property to the North of the disputed property was sold by Adilakshmi
to Gangamma and Rameshwarapu Chalapathi. D.1 claimed the entire
property including the said alienated property. Unless D.1 handed over
the property to Adilakshmi, she could not convey and handover the
property to Gorla Gangamma and Rameshwarapu Chalapathi. This would
indicate that as recited in Ex.A.3, Adilakshmi got back the property from
D.1 before alienating the same to Bhanumathi.
b) Nextly, the adverse possession was sought to be proved claiming
that D.1 cultivated the land till 1966 as tenant by paying annual rent of
Rs.15/- and after purchasing the same in the year 1966 he raised Chollu
and Gantulu and also some Vegetable plants for about 4 or 5 years and
later he used the land for keeping cattle and hayricks and bricks. DW.1
the son of D.1 gave evidence in that regard. However, the documentary
evidence including the photos filed by defendants would show that the
suit property is a barren land and it never had any traces of cultivation.
The defendants also not produced the copies of cultivation adangals
showing that they have cultivated the suit land more-so to the knowledge
and against the interest of Bhanumathi and plaintiff. So this argument
cannot be accepted.
13) The defendants tried to clench the admission of PW.2 in their
endeavor to prove their adverse possession. PW.2 made a stray admission
in his cross-examination that the disputes commenced from the year 1970
onwards with D.1. Thus the claim of defendants is that ever since 1957
they were in possession of the suit property and therefore, in 1970 when
Bhanumathi claimed property by virtue of her sale, the D.1 asserted his
title and possession against her and in that view, the present suit which is
filed long after, is barred by limitation. This argument does not hold
water. PW.2 is the son of plaintiff. In his cross-examination no doubt he
made some admissions. For instance, he deposed as if the suit property
was in possession of plaintiff since 1970 when Bhanumathi handed over
the possession. He also admitted that disputes commenced from the year
1970 onwards with D.1. He further admitted that D.1 used to come to the
site and go away and he used to obstruct their entry into the site from the
beginning. Now the point is whether these admissions would amount to
establishment of adverse possession by the defendants. PW.2 was born in
the year 1959 and he was 11 years old by 1970. In view of his tender age
by 1970, it is difficult to believe his words that his mother obtained
possession of suit property in 1970 itself. In contrast, plaintiff (PW.1) in
her evidence stated that she obtained possession of the property one week
after execution of Ex.A.5. Therefore, the evidence of PW.2 with regard to
delivery of possession cannot be viewed seriously. Similarly his other
admission that the disputes commenced from the year 1970 onwards with
D.1 also cannot be taken seriously as by 1970, PW.2 was only a tender
aged boy. Therefore, his evidence will not clinch the adverse possession.
So none of the points raised by the appellants would clinchingly establish
that defendants have enjoyed the suit property openly, continuously and
against the right, title and interest of Bhanumathi and plaintiff beyond the
statutory period of limitation. The appellate Court upon proper
consideration of the facts and evidence rightly held that the plaintiff
deserved decree in her favour and the said finding does not suffer any
legal infirmity. The other decisions cited by the appellants will not
improve their case.
14) POINT No.2: It is the case of the plaintiff that the defendants are
trespassers into the suit land and not the tenants as on the date of suit.
Therefore, the question of their issuing quit notice under Sec.106 of
Transfer of Property Act, does not arise. Hence, the argument that the suit
is not maintainable without issuing notice under Sec.106 of T.P Act is
unsustainable.
15) POINT No.4: In view of the above findings on the substantial
questions of law raised by the appellants, I find no merits in this Second
Appeal and the same is accordingly liable to be dismissed.
In the result, this Second Appeal is dismissed by confirming the
judgment and decree dt:14.02.2003 in A.S.No.194 of 1997 passed by the
VII Additional District Judge, Kakinada decreeing the plaintiffs suit. The
time for eviction is two (2) months from the date of this judgment. No
costs in this Second Appeal.
As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 29.03.2016
S.A. No.362 of 2003
29-03-2016
Koppisetty Ramana and others.. Appellants
Emani Ramanamma.. Respondent
Counsel for Appellants: Smt. Bobba Vijayalakshmi
Counsel for Respondent:Sri V.L.N.Gopala Krishna Murthy
<Gist:
>Head Note:
? Cases referred:
1) (1990) 4 SCC 706
2) 1998 (4) ALT 469 (DB)
3) (2000) 3 SCC 640
4) (2000) 7 SCC 60
5) (2002) 5 SCC 90
6) (2003) 4 SCC 161
7) (2004) 1 SCC 271
8) (2006) 7 SCC 570
9) (2007) 6 SCC 59
10) AIR 1995 SC 895
11) (2007) 3 SCC 114
12) AIR 2005 SC 4407
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
SECOND APPEAL No.362 of 2003
JUDGMENT:
This Second Appeal is filed by the defendants questioning the
judgment and decree dated 14.02.2003 in A.S.No.194 of 1997 passed by
the VII Additional District Judge, Kakinada wherein the learned Judge
allowed the appeal filed by the appellant/plaintiff and set aside the
judgment and decree dated 28.12.1996 in O.S.No.146 of 1987 on the file
of Principal Subordinate Judge, Kakinada and decreed the plaintiffs suit
for declaration and possession.
2) The brief facts of the case are thus:
a) The case of the plaintiff is that originally plaint A schedule
property belonged to one Ghantasala Aadilakshmi and she sold the same
under a registered sale deed dated 12.02.1961 to one Emani Bhanumathi
who in turn gifted the same to plaintiff, who is her daughter-in-law
through a registered gift deed dated 08.12.1981. While so, defendants 1
and 2 who are father and son entered into the said property claiming right
over the same. When the plaintiff questioned their act, they threatened her
with dire consequences. Then she filed a complaint before the SHO, PS
Sarpavaram who charge sheeted the defendants in C.C.No.103 of 1984
before the II Additional Judicial First Class Magistrate, Kakinada, who
after due enquiry found them guilty, of trespass and sentenced to pay fine.
Defendants carried the matter in revision to the District Court wherein the
learned Judge acquitted them on the ground that the case is of civil nature.
Basing on the acquittal order, defendants again trespassed into the plaint
schedule property and put their hayricks and started digging and taking
away the earth from the said land. Hence the suit.
b) The case of the defendants is that Ghantasala Adilakshmi was the
original owner of the property and she let out the same to the 1st defendant
on 05.07.1957 and since then he was in continuous possession and
enjoyment of the property as a lessee and after that he purchased the same
for Rs.92/- on 05.10.1966 and to that effect a receipt was also issued and
since from the date of purchase he has been in possession and enjoyment
of the property as owner.
c) The further case of the defendants is that plaintiff having influenced
the Sarpavaram police launched criminal proceedings against them but the
appellate Court set aside the conviction finding them not guilty. The
further case of the defendants is that Ghantasala Adilakshmi had not
delivered possession of the plaint schedule property to Emani Bhanumathi
on 12.02.1961 as she herself was not in possession of the land by that
date. Emani Bhanumathi had no right over the plaint schedule property as
on 08.12.1981 therefore, she cannot convey any right under gift deed to
the plaintiff. First defendant was in possession and enjoyment of the same
from 1957 upto 05.10.1966 as a lessee and thereafter as owner. They
denied the contention of the plaintiff that defendants trespassed into the
property. Therefore, plaintiff is not entitled for declaration or possession
as claimed. They prayed to dismiss the suit with exemplary costs.
d) Basing on the above pleadings, the trial Court framed the following
issues.
1. Whether the plaintiff is entitled for declaration that she is the
owner of the plaint schedule property as claimed?
2. Whether the plaintiff is entitled to eject the defendants 1 and 2
from the plaint A schedule property and for recovery of vacant
possession thereof as claimed?
3. Whether the plaintiff is entitled to future profits from D1 and D2
and if so at what rate and for what period?
4. Whether the suit is not maintainable at law?
5. To what relief?
e) During trial, PWs.1 to 3 were examined and Exs.A1 to A5 were
marked. DWs.1 to 5 were examined and Exs.B1 to B8 were marked on
behalf of defendants.
f) On appreciation of facts and evidence the trial Court dismissed the
suit holding that plaintiff is not entitled for declaration and ejectment of
defendants and any mesne profits.
g) Aggrieved, the plaintiff filed A.S.No.194 of 1997 before VII
Additional District Judge, Kakinada challenging the judgment of the trial
Court.
h) After hearing both sides, the first appellate Court allowed the
appeal with costs and decreed the suit as prayed for, granting two months
time to the defendants to vacate the suit schedule property. Hence, the
Second Appeal at the instance of the aggrieved defendants.
3) The parties in this appeal are referred as they are arrayed before the
trial Court.
4) The judgment of the trial Court would show in pra-8 it observed
that Ex.B8 will not confer any title on the defendants for the reason by the
date of oral sale dated 05.10.1966 allegedly executed by Ghantasala
Aadilakshmi in favour D1, she had no alienable title or interest over the
disputed property as she already conveyed the same to Emani Bhanumathi
by virtue of Ex.A3sale deed dated 18.02.1961.
a) Though trial Court negatived the title of D1, still it considered his
adverse possession in respect of suit property in the succeeding paras of its
judgment. In para-13 it observed that as per recital in Ex.A3, D1 was a
tenant to the disputed property under Ghantasala Aadilakshmi but there is
no record that Aadilakshmi taken over the property from D1 prior to
executing Ex.A3sale deed in favour Emani Bhanumathi. It was
observed, since D1 has been contending that he was in possession from
1957 onwards, unless the plaintiff establish by cogent evidence that
Ghantasala Aadilakshmi recovered the possession from D1 prior to
execution Ex.A3 and delivered vacant possession to Emani Bhanumathi,
plaintiff cannot succeed. The trial Court observed, in the absence of
plaintiff proving recovery of possession from D1 it is to be accepted that
D1 was in continuous possession of the property from 1957. The trial
Court further observed that as per PW2 disputes commenced with D1
since 1970 which would also show that even prior to Ex.A5 plaintiff was
aware that D1 was claiming right over plaint schedule property. On all
these observations the trial Court held that though plaintiff could prove the
title over plaint schedule property by Ex.A5gift deed, yet she is not
entitled for declaration as D1 and his successors have been in possession
and enjoyment of the disputed property beyond the statutory period and
thereby perfected their title by way of adverse possession.
b) Then coming to Appellate Judgment in A.S.No.194 of 1997,
learned Judge in Paras 11 and 12 of his judgment at first considered
respective titles setup by the plaintiff under Ex.A.3 and by the defendants
under Ex.B.8 and observed that admittedly Ghantasala Adilakshmi was
the original owner of the suit property and from her Emani Bhanumathi
purchased under Ex.A.3registered sale deed dt:18.02.1961 and later
gifted the same to her daughter-in-law i.e, plaintiff under Ex.A.5gift
deed dt:08.12.1981 and therefore, the plaintiff could establish her title.
The learned Judge observed that whereas D.1 is concerned, he claimed
that he was a tenant under Ghantasala Adilakshmi as per Ex.B.7lease
deed dt:05.05.1957 and later he purchased the suit property from her under
an oral sale covered by Ex.B.8receipt dt:05.10.1966. He observed that
even if Ex.B.8 is held to be true, the first defendant cannot get title since
G. Adilakshmi had no title or interest in the suit property by the date of
Ex.B.8. He further observed that if really D.1 purchased the property, he
would have obtained possession of Ex.A.1sale deed i.e, the title deed of
G. Adilakshmi. He also noticed that as per Ex.A.1sale deed, Adilakshmi
purchased the suit property for a consideration of Rs.300/- by 1950 and
she sold the same under Ex.A.3registered sale deed dt:18.02.1961 to
E.Bhanumathi for Rs.500/- which shows the value of the property by 1961
was Rs.500/-. In that view, no prudent owner would sell away the
property in 1966 for a lesser price of Rs.92/- as claimed by D.1. Thus he
held that plaintiff could establish her title and defendants failed in that
regard.
c) Then the learned Judge considered the other plea of the defendants
i.e, their adverse possession and barring of the suit by limitation. Having
referred the case law filed by both sides, the learned Judge in Para 19
observed that since the suit was filed by the plaintiff basing on her title,
the burden would be on the defendant to establish that he perfected his
title by way of adverse possession. The appellate Court noticed that
Art.65 of the Limitation Act is applicable to the instant case. Having thus
fixed the burden of proving adverse possession on the defendants, learned
Judge observed that the defendants failed to prove their possession adverse
to the knowledge and interest of Bhanumathi or plaintiff beyond the
statutory period of limitation. He noticed that defendants though claimed
to have cultivated the land but they could not establish the same because
the disputed property is a barren land but not a cultivable land and the
defendants failed to produce any village accounts or cultivation adangals.
He also observed that the evidence of PW.2 that disputes commenced with
D.1 from the year 1970 cannot be taken into consideration as by 1970 the
property was not gifted to his mother and hence, there cannot be any
dispute at all by then. Ultimately the Appellate Court held that it was for
the defendants to prove that they perfected adverse title but they failed in
that regard. Learned Judge also observed that unless the lease was
determined and D.1 handed over the suit property and other property
which was leased to him, Adilakshmi who sold away the part of the
property to Gorla Gangamma and Rameshwarapu Chalapathi, could not
have handed over the said property to them. With these observations, he
allowed the appeal.
Hence, the instant Second Appeal by defendants.
5) Heard arguments of Smt. Bobba Vijayalakshmi, learned counsel for
appellants/defendants and Sri V.L.N.Gopala Krishna Murthy, learned
Counsel for respondent/plaintiff.
6) Impugning the appellate Judgment, learned counsel for appellants/
defendants argued that the defendants perfected their title by adverse
possession beyond the statutory period of limitation as can be seen from
the facts and evidence which would show that from 1957 till date they
have been in continuous and uninterrupted possession of the suit property
and they raised dry crops and also placed their hayrick and bricks in the
suit property. The factum of lease was clearly mentioned in Ex.A.3 and
no iota of evidence is produced by the plaintiffs to show that before
selling the property to Bhanumathi under Ex.A.3, the vendor
G.Adilakshmi recovered the suit property from D.1. Further, PW.2 who
is son of plaintiff admitted that disputes commenced in the year 1970
itself with D.1 relating to the suit property. All these would cumulatively
show that the defendants have been enjoying the suit property adverse to
the interest of Bhanumathi as well as the plaintiff. Though they have not
specifically raised a plea in the written statement about the adverse
possession, the substance of their plea is to the same effect. Learned
counsel submitted that the appellate Court committed grave error in fixing
the burden on the defendants and holding that they failed to discharge the
same. Learned counsel thus prayed to allow the appeal.
Learned counsel placed reliance on the following decisions:
(i) Achal Reddy vs. Ramakrishna Reddiar and others
(ii) Mohd. Iqbal vs. N.Prabhakar and another
(iii) Bank of India vs. Lekhimoni Das and others
(iv) Santakumari and others vs. Lakshmi Amma Janaki Amma
(dead) by LRs and others
(v) P.John Chandy and Co. (P) Ltd. vs. John P.Thomas
(vi) Bondar Singh and others vs. Nihal Singh and others
(vii) Md. Mohammad Ali (dead) by LRs vs. Jagadish Kalita and
others
(viii) T. Anjanappa and others vs. Somalingappa and another
7) Per contra, supporting the judgment learned counsel for
respondent/plaintiff argued that as observed by the appellate Court, the
defendants miserably failed to prove their title because Ex.B.8, even if
assumed to be true, was long after Ex.A.3sale deed and therefore, by
the date of Ex.B.8, G. Adilakshmi had no title or interest in the suit
property to convey to defendants. He further argued that the adverse
possession is concerned, the defendants have not taken a specific plea in
their written statement and even if the said claim is considered, still it
being a suit for title and possession, when the plaintiff proved her title, the
burden of proving the adverse possession against E.Bhanumathi and
plaintiff rests on the defendants as per Art.65 of the Limitation Act. He
relied upon the decision reported in P.T.Munichikkanna Reddy and
others vs. Revamma and others on the aspect of burden of proof. He
argued that the defendants failed to prove their adverse possession against
Bhanumathi and also plaintiff and therefore, the Appellate Court rightly
granted decree in favour of the plaintiff. He thus prayed to dismiss this
appeal.
8) In the light of above rival arguments, the following substantial
questions of law are framed for consideration in this second appeal:
(i) Whether the Lower Appellate Court is right in holding that
the appellants have not perfected title to the suit scheduled
land when the evidence adduced on behalf of the
respondents itself show the disputes with the appellants
started right from 1970, when admittedly the appellants are
lessees ?
(ii) Whether the suit is maintainable in the absence of notice
under Sec.106 of Transfer of Property Act to the appellants
herein to vacate?
(iii) Whether the Lower Appellate Court is right in coming to
the conclusion that the appellants have not perfected their
title to the suit property in view of the fact that they never
demanded any rent and when appellants did not pay rent at
any time and no owner would keep quiet without
demanding rent unless appellants perfected title?
(iv) To what relief?
9) POINT Nos.1 and 3: These two points are taken up together since
they are more or less similar and relating to adverse possession of
defendants. It is not in dispute that G.Adilakshmi was the original owner
of suit schedule property and surrounding property and she purchased
them in two items under Ex.A.1registered sale deed. Then under
Ex.A.3registered sale deed dt:18.02.1961, she sold the suit property to
E.Bhanumathi. In the said sale deed, the vendor mentioned that earlier
the suit property was under the lease of D.1 but the lease was determined
and she was selling the property, free from obstructions from the lessee.
Be that it may, E.Bhanumathi gifted the said property to the plaintiff who
is her daughter-in-law under Ex.A.5gift deed dt:08.12.1981. That is
how the plaintiff traces her title to the suit property. According to her,
she was enjoying the property by collecting soap nuts and other usufructs
and in the year 1983, defendants 1 and 2 trespassed into the suit land. So
the plaintiff filed C.C.No.103 of 1984 and the accused/defendants were
convicted by the learned II Additional Judicial First Class Magistrate,
Kakinada in the said C.C. However, the CRP No.54 of 1985 filed by the
defendants was allowed by the III Additional Sessions Judge, Kakinada
on the ground that it was a civil dispute. Hence the suit by the plaintiff
for declaration of title and possession.
a) The case of defendants is that the property belonged to
G.Adilakshmi and she inducted D.1 into tenancy under Ex.B.3lease
deed dt:05.05.1957 and ultimately she sold the suit property to him for
Rs.92/- under an oral sale dt: 05.10.1966 and executed Ex.B.8receipt. It
is the case of the defendants that they are in continuous possession and
enjoyment in their own right and Adilakshmi never gave possession to
E.Bhanumathi. So also E.Bhanumathi was never in possession of plaint
schedule property and she had no subsisting right to execute any gift deed
dt:08.12.1981.
10) In the light of above rival contentions and evidence placed on
record, it is clear that the suit is laid by the plaintiff basing on her title
and
for recovery of possession. In a suit of this nature, the law is clear that
Art.65 of Limitation Act would apply and when once the plaintiff
establishes her title to suit property, the burden will be shifted to the
defendants to prove adverse possession i.e, nec vi, nec clam, nec precario
against Bhanumathi as well as plaintiff beyond the statutory period of
limitation. Art.65 of the Limitation Act, 1963 prescribes limitation as
follows:
Description of suit
Period of
limitation
Time from which
period begins to run
65.
For possession of immovable property
or any interest therein based on title.
Explanation.-- For the purposes of this
article --
(a) where the suit is by a remainder
man, a reversioner (other than a
landlord) or a devisee the possession of
the defendant shall be deemed to
become adverse only when the estate
of the remainder man, reversioner or
devisee, as the case may be, falls into
possession;
(b) where the suit is by a Hindu or
Muslim entitled to the possession of
immovable property on the death of a
Hindu or Muslim female, the
possession of the defendant shall be
deemed to become adverse only when
the female dies;
(c) Where the suit is by a purchaser at
a sale in execution of a decree when
the judgment-debtor was out of
possession at the date of the sale, the
purchaser shall be deemed to be a
representative of the judgment-debtor
who was out of possession.
Twelve
years
When the possession
of the defendant
becomes adverse to
the plaintiff.
a) Then regarding the burden of proof, Honble Apex Court has time
and again reiterated that in a case based on title, Art.65 of the Limitation
Act is applicable and it is suffice for the plaintiff to establish her title and
the burden will be on the defendants to prove the adverse possession.
i) In Annasaheb Bapusaheb Patil and others vs. Balwant @
Balasaheb Babusaheb Patil (dead) by LRs and heirs etc. the Apex
Court has observed thus:
Para 13: Article 65 of the Schedule to the Limitation Act, 1963
prescribes that for possession of immovable property or any
interest therein based on title, the limitation of 12 years begins to
run from the date the defendant's interest becomes adverse to the
plaintiff. Adverse possession means a hostile assertion i.e. a
possession which is expressly or impliedly in denial of title of the
true owner. Under Article 65, burden is on the defendants to
prove affirmatively. A person who bases his title on adverse
possession must show by clear and unequivocal evidence i.e.
possession was hostile to the real owner and amounted to a denial
of his title to the property claimed. In deciding whether the acts,
alleged by a person, constitute adverse possession, regard must
be had to the animus of the person doing those acts which must be
ascertained from the facts and circumstances of each case. The
person who bases his title on adverse possession, therefore, must
show by clear and unequivocal evidence i.e. possession was
hostile to the real owner and amounted to a denial of his title to
the property claimed.
ii) In Md. Mohammad Alis case (7 supra) cited by appellants, the
Apex Court while delineating subtle distinction between the old
Limitation Act, 1908 and the new Limitation Act, 1963 in the matter of
burden of proof of adverse possession, has observed thus:
Para 20: By reason of Limitation Act, 1963 the legal position as
was obtaining under the old Act underwent a change. In a suit
governed by Article 65 of the 1963 Limitation Act, the plaintiff
will succeed if he proves his title and it would no longer be
necessary for him to prove, unlike in a suit governed by
Articles 142 and 144 of the Limitation Act, 1908, that he was in
possession within 12 years preceding the filling of the suit. On the
contrary, it would be for the defendant so to prove if he wants to
defeat the plaintiff's claim to establish his title by adverse
possession.
Para 21: For the purpose of proving adverse possession/ ouster
the defendant must also prove animus possidendi.
iii) The above point was again reiterated by the Apex Court in
P.T.Munichikkanna Reddys case (9 supra) thus:
3. New Paradigm to Limitation Act
Para 34: The law in this behalf has undergone a change. In terms
of Articles 142 and 144 of the Limitation Act, 1908, the burden of
proof was on the plaintiff to show within 12 years from the date of
institution of the suit that he had title and possession of the land,
whereas in terms of Articles 64 and 65 of the Limitation Act,
1963, the legal position has underwent complete change insofar
as the onus is concerned: once a party proves its title, the onus of
proof would be on the other party to prove claims of title by
adverse possession.
iv) In M.Durai vs. Madhu and others the Apex Court held that when
once plaintiff proved his title, burden shifts to the defendants to establish
that he perfected his title by adverse possession.
v) In Saroop Singh vs. Banto and others referring Art.64 and 65 of
Limitation Act, the Apex Court observed thus:
Para 26: The statutory provisions of the Limitation Act have
undergone a change when compared to the terms of Articles 142
and 144 of the schedule appended to the Limitation Act, 1908, in
terms whereof it was imperative upon the plaintiff not only to
prove his title but also to prove his possession within twelve
years, preceding the date of institution of the suit. However, a
change in legal position has been effected in view of Articles 64
and 65 of the Limitation Act, 1963. In the instant case, plaintiff-
respondents have proved their title and, thus, it was for the first
defendant to prove acquisition of title by adverse possession. As
noticed hereinbefore, the first defendant- Appellant did not raise
any plea of adverse possession. In that view of the matter the suit
was not barred.
vi) In T. Anjanappas case (8 supra) cited by appellants, the Apex
Court held thus:
Para 20: It is well recognized proposition in law that mere
possession however long does not necessarily means that it is
adverse to the true owner. Adverse possession really means the
hostile possession which is expressly or impliedly in denial of title
of the true owner and in order to constitute adverse possession
the possession proved must be adequate in continuity, in publicity
and in extent so as to show that it is adverse to the true owner.
The classical requirements of acquisition of title by adverse
possession are that such possession in denial of the true owner's
title must be peaceful, open and continuous. The possession must
be open and hostile enough to be capable of being known by the
parties interested in the property, though it is not necessary that
there should be evidence of the adverse possessor actually
informing the real owner of the former's hostile action.
11) In the light of above precedential jurisprudence, it has to be seen at
first, whether plaintiff could establish her title to deserve for decree. It is
an undisputed fact that the Adilakshmi was the owner of the suit property
and other surrounding property. The defendants have not disputed the
factum of Adilakshmi executing sale deed in favour of Bhanumathi and
also Bhanumathi executing gift deed in favour of plaintiff. Since his
alleged oral sale covered by Ex.B.8receipt was long after Ex.A.3sale
deed executed by G.Adilakshmi, the said oral sale even if held to be true,
will not confer any title on D.1. Further, as rightly observed by the
appellate Court, there are some defects in the oral sale claimed by D.1.
He claims to have purchased the property for Rs.92/- whereas Adilakshmi
herself purchased the property in the year 1950 for Rs.300/-. Even she
sold the said property for Rs.500/- to Bhanumathi. Therefore, it is hard to
believe that she would sell the suit property for a throw away price of
Rs.92/- to D.1. Further, D.1 did not secure the title deed of Adilakshmi at
the time of oral sale. In contrast, Bhanumathi collected the title deed of
Adilakshmi at the time of Ex.A.3. For these reasons, the parallel title
setup by D.1 as against the plaintiff cannot be accepted. On the other
hand, the plaintiff could establish her title by virtue of Ex.A.5gift deed.
Hence, going by the above precedents, the plaintiff prima facie deserves
decree. However, the claim of adverse possession of defendants needs to
be discussed.
12) Going by the law, the burden is heavy on the defendants to
establish by cogent evidence that they have been enjoying the suit
property to the knowledge of Bhanumathi and plaintiff, adverse to their
interest beyond the statutory period.
a) Firstly, defendants claim continuous and adverse possession basing
on the recitals in Ex.A.3. Their claim is that admittedly D.1 was the
tenant under G.Adilakshmi and no evidence is placed by the plaintiff to
show that Adilakshmi secured possession of the suit property from D.1
before selling the same to Bhanumathi and hence it shall be deemed that
they are in continuous and uninterrupted possession. This argument is
untenable for the reason that though in Ex.A.3 Adilakshmi admitted that
the suit property was initially under the lease of D.1 but she emphatically
stated that the lease was determined and she was delivering the possession
to Vendee without any obstructions from the lessee. If it is the contention
of D.1 that inspite of the said recital, he still continued in possession
more-so against the interest of Bhanumathi and plaintiff, it is for him to
establish the said fact by adducing evidence. On the contrary, he cannot
throw burden on plaintiff to show that Adilakshmi obtained receipt from
D.1 delivering the suit property. As rightly observed by the appellate
Court, the Commissioners Report and other evidence would show that
the property to the North of the disputed property was sold by Adilakshmi
to Gangamma and Rameshwarapu Chalapathi. D.1 claimed the entire
property including the said alienated property. Unless D.1 handed over
the property to Adilakshmi, she could not convey and handover the
property to Gorla Gangamma and Rameshwarapu Chalapathi. This would
indicate that as recited in Ex.A.3, Adilakshmi got back the property from
D.1 before alienating the same to Bhanumathi.
b) Nextly, the adverse possession was sought to be proved claiming
that D.1 cultivated the land till 1966 as tenant by paying annual rent of
Rs.15/- and after purchasing the same in the year 1966 he raised Chollu
and Gantulu and also some Vegetable plants for about 4 or 5 years and
later he used the land for keeping cattle and hayricks and bricks. DW.1
the son of D.1 gave evidence in that regard. However, the documentary
evidence including the photos filed by defendants would show that the
suit property is a barren land and it never had any traces of cultivation.
The defendants also not produced the copies of cultivation adangals
showing that they have cultivated the suit land more-so to the knowledge
and against the interest of Bhanumathi and plaintiff. So this argument
cannot be accepted.
13) The defendants tried to clench the admission of PW.2 in their
endeavor to prove their adverse possession. PW.2 made a stray admission
in his cross-examination that the disputes commenced from the year 1970
onwards with D.1. Thus the claim of defendants is that ever since 1957
they were in possession of the suit property and therefore, in 1970 when
Bhanumathi claimed property by virtue of her sale, the D.1 asserted his
title and possession against her and in that view, the present suit which is
filed long after, is barred by limitation. This argument does not hold
water. PW.2 is the son of plaintiff. In his cross-examination no doubt he
made some admissions. For instance, he deposed as if the suit property
was in possession of plaintiff since 1970 when Bhanumathi handed over
the possession. He also admitted that disputes commenced from the year
1970 onwards with D.1. He further admitted that D.1 used to come to the
site and go away and he used to obstruct their entry into the site from the
beginning. Now the point is whether these admissions would amount to
establishment of adverse possession by the defendants. PW.2 was born in
the year 1959 and he was 11 years old by 1970. In view of his tender age
by 1970, it is difficult to believe his words that his mother obtained
possession of suit property in 1970 itself. In contrast, plaintiff (PW.1) in
her evidence stated that she obtained possession of the property one week
after execution of Ex.A.5. Therefore, the evidence of PW.2 with regard to
delivery of possession cannot be viewed seriously. Similarly his other
admission that the disputes commenced from the year 1970 onwards with
D.1 also cannot be taken seriously as by 1970, PW.2 was only a tender
aged boy. Therefore, his evidence will not clinch the adverse possession.
So none of the points raised by the appellants would clinchingly establish
that defendants have enjoyed the suit property openly, continuously and
against the right, title and interest of Bhanumathi and plaintiff beyond the
statutory period of limitation. The appellate Court upon proper
consideration of the facts and evidence rightly held that the plaintiff
deserved decree in her favour and the said finding does not suffer any
legal infirmity. The other decisions cited by the appellants will not
improve their case.
14) POINT No.2: It is the case of the plaintiff that the defendants are
trespassers into the suit land and not the tenants as on the date of suit.
Therefore, the question of their issuing quit notice under Sec.106 of
Transfer of Property Act, does not arise. Hence, the argument that the suit
is not maintainable without issuing notice under Sec.106 of T.P Act is
unsustainable.
15) POINT No.4: In view of the above findings on the substantial
questions of law raised by the appellants, I find no merits in this Second
Appeal and the same is accordingly liable to be dismissed.
In the result, this Second Appeal is dismissed by confirming the
judgment and decree dt:14.02.2003 in A.S.No.194 of 1997 passed by the
VII Additional District Judge, Kakinada decreeing the plaintiffs suit. The
time for eviction is two (2) months from the date of this judgment. No
costs in this Second Appeal.
As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 29.03.2016
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