HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
C.C.C.A. No.86 of 2005
19-02-2016
G.Narayan Reddy.Appellant
P.Narayana Reddy . Respondent
Counsel for the Appellant:M/s.Bharadwaj Associates
Sri Vedula Venkata Ramana senior counsel
Counsel for the Respondent : Sri K.Raghuveer Reddy
<Gist :
>Head Note:
? Cases referred:
1. (2015) 7 SCC 601
2. (2009) 12 SCC 101
3. (2004) 10 SCC 779
4. (2005) 8 SCC 330
5. (2009) 13 SCC 229
6. 2003(3) ALT 716 (D.B)
7. AIR 1953 Patna 365
8. AIR 1919 Privy Council 44
9. AIR 1970 SC 1778
10. AIR 1951 SC 469
11. AIR 2003 SC 1905(1)
12. 2011(1) ALT 1 (SC)
13. AIR-1976-SC-634
14. AIR-1969-SC-1144
15. AIR 2003 SC 1880
16. AIR 2003 SC 1989=2003(9) SCC 606
17. AIR 1963 SC 1516=1964(1) SCR 980
18. AIR 1953 SC 235
19. 965(3) SCR 550
20. AIR 2003 SC 4548=8 SCC 752=(8) Supreme Today 194
21. (2004)1 SCC 271
22. 2002 (1) SCC 134
23. 2000 (5) SCC 652
24. 2000 (1) SCC 434
25. (2000) 8 SCC 123
26. 2003(5)ALD 241(DB)
27. 2002(2)ALD 753(DB)
28. (2000)3 SCC 350
29. (2000) 7 SCC 543=AIR 2000-SC-3272
30. 2005 (6) SCC 202
31. AIR 2010 SC 818.
32. 2005(2) ALD 675 (FB)
33. 2011 AIR SC 3590
34. AIR 2015 SC 3360
35. (2004)1 SCC 271
36. 2001 3 SCC 537 at paras 10 to 14
37. 1989 (1) SCC 101
38. 1991 4 SCC 139
39. 2000 (5) SCC 488
40. 2013 (4) ALD 725
41. AIR 1989 SC 38
42. Third report of the Law Commission of India,
43. AIR 1932 PC 165 at 167=ILR(60)-Cal-1
44. AIR-1941-PC 6
45. AIR-1962-SC 1716
46. Halsbury's Laws of England, 4thEdition, Volume-28, para-605(page-266.
47. 1906 ILR 29 Madras 305
48. 2007(3) MLJ 85 at 91
49. AIR 1997 Guj 46
50. (2007) 3 SCC 569
51. AIR 1968 SC 1165
52. 2001(5)ALT197
53. AIR 1964 SC 1254
54. (2004) 10 SCC65
55. (1981)2 SCC 764
56. (2005) 8 SCC 330
57. (2004) 3 SCC 376
58. (2011)10 SCC 404
59. AIR 2009 SC 103
60. (2007)6 SCC 59
61. AIR 1966 SC 605
62. 1985(3) APLJ 83
63. AIR-1955-Mysore-33
64. AIR 1953 Patna 365
65. AIR 1946 PC 51
66. AIR 1919 PC l 44
67. AIR 1959 AP 79 (FB)
68. AIR 1973 All.201
69. AIR 1970 SC 1778
70. AIR 1951 SC 469
HONBLE Dr. JUSTICE B. SIVA SANKARA RAO
C.C.C.A.No. 86 of 2005
JUDGMENT:
The unsuccessful plaintiff in O.S.No.2268 of 2003 on the file
of the VIII Additional Senior Civil Judge (Fast Track Court), City
Civil Court, Hyderabad, by name G.Narayana Reddy filed against
the defendant, P.Narayana Reddy, (for more convenience hereafter
being referred plaintiff-appellant as G and defendant-respondent
as P and for more clarity, sister of G was given in marriage to P,
both were originally staying at Hyderabad and now both at abroad)
for declaration that plaintiff is lawful owner of the plaint
schedule property of 401 square yards in S.No.300, house
bearing No.2-3-703/2 of Amberpet, Hyderabad; within the
boundaries described of South and East-House Nos.2-3-703/3/A
and 1 respectively and North and Westroad; for order restoring
possession of the suit property to the plaintiff and for such
other reliefs, impugning the dismissal decree and judgment dated
22.03.2005, filed the present appeal.
2. The contentions in the grounds of appeal are that the decree
and judgment of the trial Court are contrary to law, weight of
evidence and probabilities of the case and outcome of improper
appreciation of the pleadings, issues framed and the evidence on
record, that trial Court should have seen that Ex.A.2 is
inadmissible for want of stamp duty and registration and the same
is void in law and no rights flow in favour of the defendant
therefrom, that the trial Court should have seen that the plaintiff G
is the absolute owner of the property by virtue of Ex.B.1=A1 (B1 is
original sale deed,1963 and CC of it is A.1) and is entitled for the
relief of declaration of title and for possession, however, the trial
Court failed to see that the defendant P has not even produced any
evidence in support of his plea of adverse possession and the
demand notices issued by Water Works Department under Exs.B.8
to B.29 for the years, 1971 to1973 did not substitute his case and
that too when the suit property stands in the name of the plaintiff
G in the municipal records and Exs.B.3 and B.5 dated 13.10.1984
and 05.08.2005 respectively relied on by the defendant P clearly
show the tax being paid by the plaintiff G and the trial Court was
erred therefrom in holding that the judgment in O.S.No.7098/1991
became final, whereas it was only an injunction suit, in fact the
finding therein that the gift is invalid in law operates against the
defendant P herein, that was failed to consider by the trial Court
including the fact that the plaintiff G was in possession throughout
until he was dispossessed in the year, 1992 by the defendant P by
virtue of injunction order obtained in the injunction suit
O.S.No.7098 of 1991 and the question of his filing the suit within
three years after execution of Ex.B.2 does not arise and the trial
Court erred in improper appreciation of the evidence of P.Ws.1 and
2 or in relying upon the evidence of D.Ws.1 to 3. Hence to set
aside the dismissal decree and judgment of the trial Court and
allow the appeal decreeing the plaintiff- Gs suit as prayed for.
3)(a). The learned counsel for G in support of the above grounds of
appeal contended that besides the dowry asking and taking is
opposed to public policy and also an offence under the Dowry
prohibition Act and consequently the un registered document
executed to meet the demand for not even a pasupukunkuma gift
to sister or daughter to give to brother-in-law at time of marriage
does not confer or create any rights, otherwise also from the
transaction is a nullity being opposed to public policy and virtually
thereunder any subsequent entry into possession does not give
any right much less to claim with any plea of adverse possession to
oppose the suit prayers for possession even declaration sought if
otherwise not entitled for no need to ask and that no way effects
the entitlement to possession of said property, there is no any
delivery of possession pursuant to Ex.B.2 un-registered gift deed
which confers no rights thereunder to P even from the recitals
therein and there is no proof from the P to set up adverse
possession for which burden lies to establish the three ingredients
of Nec vi, Nec clam and Neck Precario and there is no any
positive evidence as to when from P sets up hostile title with
animus against G for claiming adverse possession, that such
possession even to be established for more than 12 years with
such animus open, peaceful and uninterrupted possession and in
the absence of which mere length of possession does not
extinguish the title of G in order to create any right by prescription
in favour of P by adverse possession over the property and the trial
Court went wrong in improper appreciation of the evidence.
3)(b). In this regard and in support of the contentions, G placed
reliance upon the three Judge Bench expression of the Apex Court
in Rajasthan Housing Board Vs. New Pink City Nirma Sahkari
Samithi Ltd. and another paras 25-29 which read:
25. In the instant case, the transaction is ab-initio-void that is right from
its inception and is not voidable at the volition by virtue of the specific
language used in section 42 of the Rajasthan Tenancy Act. There is
declaration that such transaction of sale of holding shall be void. As the
provision is declaratory, no further declaration is required to declare
prohibited transaction a nullity. No right accrues to a person on the basis
of such a transaction. The person, who enters into an agreement to
purchase the same, is aware of the consequences of the provision carved
out in order to protect weaker sections of Scheduled Castes and Scheduled
Tribes. The right to claim compensation accrues from right, title or interest
in the land. When such right, title or interest in land is inalienable to non-
SC/ST, obviously the agreements entered into by the Society with the
Khatedars are clearly void and decrees obtained on the basis of the
agreement are violative of the mandate of section 42 of the Rajasthan
Tenancy Act and are a nullity. Such a prohibited transaction opposed to
public policy, cannot be enforced. Any other interpretation would be
defeasive of the very intent and protection carved out under section 42 as
per the mandate of Article 46 of the Constitution, in favour of the poor
castes and downtrodden persons, included in the Schedules to Articles
341 and 342 of the Constitution of India.
26. In State of Madhya Pradesh Vs. Babu Lal & Ors. [1977 (2) SCC
435] the provisions contained in section 165(6) of M.P. Land Revenue
Code, 1959 came up for consideration before this Court. The High Court
directed the State to file a suit for declaring the decree null and void. The
decision was set aside. It was held that the case was a glaring instance of
violation of law as such the High Court erred in not issuing a writ. The
decision of the High Court was set aside. The transfer which was in
violation of proviso to section 165(6) transferring the right of Bhuswami
belonging to a tribe was set aside.
27. This Court in Lincal Gamango & Ors. Vs. Dayanidhi Jena & Ors.
[AIR 2004 SC 3457] while considering the provisions of Orissa Scheduled
Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation,
1956 which prohibited alienation of rural property by a tribal to a non-
tribal, declared such transaction to be null and void. This Court while
relying upon the decision in Amrendra Pratap Singh Vs. Tej Bahadur
Prajapati & Ors. [AIR 2004 SC 3782] has laid down that no right can
be acquired by adverse possession on such inalienable property.
Adverse possession operates on an alienable right. It was held that
non-tribal would not acquire a right or title on the basis of adverse
possession. Relevant discussion is extracted hereunder:
7. We find both these reasons given by the High Court are not
sustainable. Coming first to the second point, we find that there is a
decision of this Court direct on the point. It is reported in AIR 2004
SC 3782, Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and
Ors. The matter related to transfer of land falling in tribal area
belonging to the Scheduled Tribes. The matter was governed by
Regulations 2, 3 and 7-D of the Orissa Scheduled Areas Transfer of
Immovable Property (By Scheduled Tribes) Regulations, 1956 viz. the
same Regulations which govern this case also. The question involved
was also regarding acquisition of right by adverse possession.
Considering the matter in detail, in the light of the provisions of the
aforesaid Regulation, this Court found that one of the questions
which falls for consideration was-whether right by adverse
possession can be acquired by a non-aboriginal on the property
belonging to a member of aboriginal tribe?-(Para 14 of the judgment).
In context with the above question posed, this Court observed in
Para 23 of the judgment as follows:
"......The right in the property ought to be one which is alienable
and is capable of being acquired by the competitor. Adverse
possession operates on an alienable right. The right stands
alienated by operation of law, for it was capable of being
alienated voluntarily and is sought to be recognized by doctrine
of adverse possession as having been alienated involuntarily, by
default and inaction on the part of the rightful claimant....."
This Court then noticed two decisions -one that of the Privy
Council reported in AIR 1923 P.C.205 Madhavrao Woman
Saundalgekar Vs. Raghunath Venkatesh Deshpande and
Karimullakhan Vs. Bhanupratapsingh, holding that title
by adverse possession on inam lands, Watan lands and
Debutter was incapable of acquisition since alienation of
such land was prohibited in the interest of the State. We
further find that the decision in the case of Madhiya Nayak
(supra) relied upon by the High Court was referred to before
this Court and it is observed that the question as to whether a
non-tribal could at all commence prescribing acquisition of
title by adverse possession over the land belonging to a tribal
which is situated in a tribal area, was neither raised nor that
point had arisen in the case of Madhiya Nayak. It is further
observed that the provisions of Section 7-D of the Regulations
are to be read in the light of the fact that the acquisition of
right and title by adverse possession is claimed by a tribal
over the immovable property of another tribal but not where
the question is in regard to a non-tribal claiming title by
adverse possession over the land belonging to a tribal situate
in a tribal area. It is, therefore, clear in view of the decision in
the case of Amrendra Pratap Singh (supra) that a non-tribal
would not acquire right and title on the basis of adverse
possession. Therefore, the second ground for setting aside the
order passed by the appellate court falls through. Therefore,
the other factual aspect about the possession of the
respondents over the disputed land and entries in their favour
may also not be of much consequence, in any case, this
aspect of the matter has to be seen and considered afresh in
the light of other facts and circumstances of the case.
This Court in Amrendra Pratap (supra) has laid down that
the expression transfer would include any dealing with
the property when the word deal with has not been defined
in the statute. Dictionary meaning as the safe guide can be
extended to achieve the intended object of the Act. The
transaction or the dealing with alienable property to transfer
title of an aboriginal tribe and vesting the same in non-tribal
was construed as transfer of immovable property. Extending
the meaning of the expression transfer of immovable property
would include dealing with such property as would have the
effect of causing or resulting in transfer of interest in
immovable property. When the object of the legislation is to
prevent a mischief and to confer protection on the weaker
sections of the society, the court would not hesitate in placing
an extended meaning, even a stretched one, on the word, if in
doing so the statute would succeed in attaining the object
sought to be achieved. When the intendment of the Act is that
the property should remain so confined in its operation in
relation to tribals that the immovable property to one tribal
may come but the title in immovable property is not to come
to vest in a non-tribal the intendment is to be taken care by
the protective arm of the law and be saved from falling prey to
unscrupulous devices, and this Court concluded any
transaction or dealing with immovable property which would
have the effect of extinguishing title, possession or right to
possess such property in a tribal and vesting the same in a
non-tribal, would be included within the meaning of transfer
of immovable proper.
Thus, what was laid down by the three Judge Bench
expression of the Apex Court in Rajasthan Housing Board
(supra) is a prohibited transaction opposed to public policy,
cannot be enforced, however, the right in the property ought
to be one which is alienable and is capable of being acquired
by the competitor, adverse possession operates on an
alienable right, even transaction is prohibited. The right
stands alienated by operation of law, for it was capable of
being alienated voluntarily and is sought to be recognized by
doctrine of adverse possession as having been alienated
involuntarily, by default and inaction on the part of the
rightful claimant.
3)(c). The other decision relied upon is a Division Bench expression
of the Apex Court in Vishwanath Bapurao Sabale Vs.
Shalinibai Nagappa Sabale and others that the relationship
between the parties is also one of the important considerations in
considering the claim of title by adverse possession with pleading
and proof of animus possidendi with peaceful, open and
continuous possession to constitute any adverse possession which
is lacking in the facts.
3)(d). The other decision of the Division Bench of the Apex Court in
Karnataka Board of Wakf Vs. Government of India and
others particularly placing reliance upon paras 11 and 12 that in
the eye of law an owner would be deemed to be in possession of the
property so long as there is no intrusion. Non-use of property by
owner even for long time will not affect his title. But the position
will be altered when another person takes possession of the
property and asserts rights over it and the person having title
omits or neglects to take legal action against such person for years
together. The process of acquisition of title by adverse
possession springs into action essentially by default or
inaction of the owner. Adverse possession is a hostile possession
by clearly asserting hostile title in denial of the title of the true
owner. It is a well-settled principle that a party claiming adverse
possession must prove that his possession is peaceful, open and
continuous and it must be adequate in continuity, in publicity and
in extent to show that their possession is adverse to the true
owner. It must start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile and continued over
the statutory period. Physical fact of exclusive possession and the
animus possidendi to hold as owner in exclusion of the actual
owner are the most important factors that are to be accounted in
cases of this nature since adverse possession plea is blended
question of fact and law and the person pleading adverse
possession has no equities in his favour since he trying to defeat
the rights of true owner and it is for him to clearly plead and
establish all facts necessary to establish his adverse possession
and whenever the plea of adverse possession is projected, inherent
in the plea is that someone else was the owner of the property.
The plea of title and adverse possession are mutually inconsistent
and the latter does not begin to operate until the former is
renounced.
3)(e). The contention therefrom is when the defendant claims title
under the void gift by recognizing the original owner i.e., the
plaintiff, there can be no animus possidendi with hostile title much
less by wrongful dispossession of the plaintiff and there is no even
sufficient pleading and in the absence of such animus possidendi
the claim for adverse possession is unsustainable from any length
of possession even leave about no certainty as to when actually
entered possession much less continued with animus when from.
3)(f). The other decision placed reliance is Saroop Singh Vs.
Banto and others where it was observed in a suit of plaintiff for
possession based on title the onus to prove acquisition by adverse
possession lies on the defendant once the plaintiff proved his title
and the defendant having not raised plea of adverse possession
from any length of possession. The plaintiffs suit held not time
barred for possession devoid of requisite animus to make it adverse
to commence the prescription period for the claim of adverse
possession and the animus possidendi is one of the ingredients of
adverse possession and for that placed reliance on Karnataka
Board of Wakf supra.
3)(g). The other decision placed reliance is L.N.Aswathama Vs.
P.Prakash in relation to person in possession to claim adverse
possession against true owner to maintain a suit to seek
declaration of claim of title by prescription. In para 17, it was
observed that to establish a claim of title by prescription, that is,
adverse possession for 12 years or more, the possession of the
claimant must be physical/actual, exclusive, open, uninterrupted,
notorious and hostile to the true owner for a period exceeding 12
years and it is also well settled that long and continuous
possession by itself would not constitute adverse possession if it
was either permissive possession or possession without animus
possidendi and the pleas based on title and adverse possession are
mutually inconsistent and the latter does not begin to operate until
the former is renounced and unless the person possessing the
property has the requisite animus to possess the property hostile
to the title of the true owner, the period for prescription will not
commence.
3)(h). It is also the submission by the counsel for the appellant
referring to the judgment of a Division Bench of this Court in
R.V.S.Vara Prasad and others Vs. Dr. V.Ramdas on the
contention that earlier injunction suit in O.S.No.7098 of 1991, no
way operates as res judicata in the present suit.
4)(a). Whereas, it is the contention in the course of submissions by
learned counsel for the successful defendant P of the trial Court as
respondent herein, in support of the trial Courts decree and
judgment, saying nothing to interfere with the trial Courts
dismissal decree and judgment for the very unregistered gift deed
that is invalid from the date of execution, the possession delivered
as pleaded, the defendant perfected title by adverse possession
long back and further the earlier suit for injunction in favour of the
defendant against the plaintiff was even granted that was made
final and operates as res judicata otherwise, besides suit for
declaration to be filed within three years after injunction suit plaint
denying title. It also contended that the very possession under
invalid document empowers to adverse possession and the trial
Court was right in its conclusion by placing reliance on the
expression of the Patna High Court in Sm.Kheni Mahatani Vs.
Charan Napit saying under unregistered sale deed which is
inadmissible in proving title, nevertheless it could be referred to as
explaining the nature and character of the possession thereof held
by the party and from the transfer effected in violation of the law,
the transferee would be deemed to be in adverse possession ever
since the date of the transfer. For that conclusion, the learned
Single Judge of the Patna High Court referred several earlier
expressions of the Calcutta High Court, Patna High Court,
Allahabad High Court and of the Privy Council in AIR 1946 PC 51
saying unregistered documents are admissible to show nature of
possession as a collateral purpose and so far as the unregistered
sale deed not admissible to prove title but explaining character of
possession mainly placed reliance on the expression of the Privy
Council in N.Varada Pillai Vs. Jeevarathnammal wherein it
was held that gift though invalid as not being made by a registered
document could be looked into as explaining the nature and
character of possession thenceforth. In fact, said Privy Council
expression arising out of Madras High Courts judgment is a short
and crisp of a Four-Judges Bench in Varada Pillai (7 supra) in
relating to the unregistered gift where under donee enters in
possession and holding it for over 12 years held perfected title by
adverse possession, saying when the donor did not effect a
registered gift deed but allowed donee to enter into possession of
the gifted property and the donee thus remained in possession for
over 12 years, and his title became perfected as against the donor
and his heirs. It was also observed in this regard that the gift
must be a registered one under Section 123 of the Transfer of
Property Act and under Section 91 of the Evidence Act the recitals
cannot be used as evidence of a gift having been made. But, the
defendants case is that Doraiswamy although may have acquired
no legal title under said gift transaction, in fact, took possession of
the property when it was transferred in her name and retained
such possession until her death in December, 1911 and after
which it passed to the defendant as her successor and accordingly
the plaintiffs claim is barred by upwards of 12 years adverse
possession and the High Court upheld the contention in arriving a
right conclusion.
4)(b). The P also placed reliance upon three more judgments viz.,
State of West Bengal Vs. The Dalhousie Institute Society
where under Articles 64 and 65 of the Limitation Act, 1963 the
question of title by adverse possession was the issue from the facts
of the grant of land in favour of the Institute when not as per law
being invalid and evidence when showing grantee was in open,
continuous and uninterrupted possession thereunder with
enjoyment for over 60 years. The Institute treated as owner not
only by Municipal Corporation but also by Government. The
persons in possession thereby of the Institute acquired title by
adverse possession and entitled to compensation money for the
land subsequently acquired under the Land Acquisition Act. For
that conclusion, the Apex Court placed reliance on the earlier
expression in Collector of Bombay Vs. Municipal Corporation of
the City of Bombay and from that quoted following:
The position of the respondent Corporation and its predecessor in title
was that of a person having no legal title but nevertheless holding
possession of the land under colour of an invalid grant of the land in
perpetuity and free from rent for the purpose of a market and such
possession not being referable to any legal title it was prima facie
adverse to the legal title of the Government as owner of the land from
the very moment the predecessor in title of the respondent Corporation
took possession of the land under the invalid grant and this
possession has continued openly, as of right and uninterruptedly for
over statutory period, thereby the respondent Corporation acquired
right to hold the land in perpetuity and the above extract establishes
that a person in such possession clearly acquires title by adverse
possession.
4)(c). The other decision placed reliance by P is Bondar Singh
and others Vs. Nihal Singh and others where it was held that
though an unregistered sale deed not admissible in evidence of
contents, it can be looked into for collateral purpose, such as, to
see nature of possession of the party over the property and the
plaintiffs claiming title over the land by adverse possession since
they were in possession of the land by virtue of the unregistered
and unstamped sale deed executed in their favour by the
predecessors in interest of the defendants, whereas the defendants
are alleging that the plaintiffs were trespassers, however admitting
their possession since life time of their father and order of Revenue
Authority also establishing the plaintiffs possession for last 26
years and the claim of the defendants regarding taking over of
possession from the plaintiffs when found to be false plaintiffs in
hostile and continuous possession, thereby proved prescriptive
right perfected by adverse possession.
4)(d). The other decision placed reliance is Md.Nooman and
others Vs. Md.Jabed Alam and others of the Apex Court on the
principles of res judicata where on facts it was a suit of Court of
limited jurisdiction for eviction against father of the appellants that
was ended in dismissal by the trial Court and confirmed in appeal
and thereafter the plaintiff filed another suit claiming declaration
of title and possession against very same property and the
defendant contested taking the plea of res judicata and limitation,
where though the trial Court decreed the suit and reversed by the
1st appellate Court, the 2nd appellate Court-cum-High Court held
earlier decree and judgment operates as res judicata and when the
matter came for consideration before the Apex Court in a civil
appeal, it was observed that the question of title is directly and
substantially in issue between the parties in the earlier suit for
eviction operates as res judicata in the subsequent suit for
declaration of title and recovery of possession between the parties,
as rightly held by the High Court.
5). From above rival contentions of both sides, heard at length with
reference to the above propositions on the factual matrix.
6). The points arise for consideration in deciding the appeal are:
1) Whether the defendant has perfected any right by
adverse possession against the plaintiff over the suit
schedule property also by virtue of the invalid gift
deed and whether any possession pursuant to which
with animus possidendi, peaceful and uninterrupted
for more than the statutory period and that
extinguished the plaintiffs right and title otherwise
over the property as the plaintiff is original owner not
in dispute in the factual scenario?
2) If not, whether the trial Courts decree and judgment
is unsustainable and requires interference by this
Court while sitting in appeal, and if so, to what extent
and with what observations including as to any
operation of res judicata of the earlier injunction suit
or any of its findings to the present suit for
declaration and possession?
3) To what relief?
POINT Nos.1&2:
7. Before coming to decide plaintiff`s entitlement to declaration of
title and possession or the suit claim is barred by limitation and
adverse possession and otherwise also by principles of resjudicata,
coming to scope of appreciation of evidence and powers and
limitations in this regard of the 1st appellate court, more
particularly from Order XLI, Rules 33 and 24 C.P.C. and from
several expressions of the Apex Court including- Koksingh Vs
Deokabai ; Gaisi Ram Vs Ramji Lal and Madan Lal Vs.
Yogabai ; the 1stappellate court is competent to grant relief if
finds appropriate on any facts though that was not granted by the
trial Court in rendering complete justice and prevent to the extent
possible scope for further litigation and to give finality to the lis.
But as held in Banarsi Vs Ramphal and Pannalal Vs State of
Bombay there are three limitations on the said power-Viz., it
must not be to the prejudice of persons not parties (Rule 24), if
given up a claim not to revive on its own and if part of the lis in the
claim for relief not appealed (by cross objections or otherwise) and
made final, Court cannot grant relief on the un-appealed portion
and the relief to be granted may be lesser to the plea, but not
higher or totally outside the pleadings and evidence . Among the
defendants to the suit, generally they won`t prefer appeal and it is
not a bar to decide their claims interse in spite of non-filing of
appeal or cross-objections with any specific plea. In
Nirmalabalaghosh Vs Balaichandghosh (three judge Bench) - it
was held that Order XLI Rule 33 is undoubtedly expressed in
terms which are wide, but it has to be applied with discretion, and
to cases where interference in favour of appellant necessitates
interference also with a decree which has by acceptance or
acquiescence become final so as to enable the Court to adjust the
rights of the parties.
8). Coming to the appreciation of evidence, it is no doubt from
experience and knowledge of human affairs depending upon facts
and circumstances of each case and regard must be had to the
credibility of the witness, probative value of the documents,
relationship of the parties in actions and inactions, lapse of time if
any in proof of the events and occurrences, from consistency to the
material on record to draw wherever required the necessary
inferences and conclusions from the broad probabilities and
preponderances, from the overall view of entire case to judge as to
any fact is proved or not proved or disproved and the conclusions
arrived by the trial court are sustainable or not.
9). Coming to the proof of facts, out of the facts in issue, to the
extent of relevant facts as to what is meant by proved, not proved
or disproved with reference to Section 3 of the Evidence Act and
nature of proof in civil matters, including in a suit based on title
concerned, in R.V.E. Venkatachala Gounder Vs. A.V.& V.P.
Temple at paras 25-28, the Apex Court discussed that, in civil
cases the proof is by preponderance of probabilities, including in
suits relating to ejectment or declaration of title or for possession;
and the onus shifts from initial burden on the plaintiffs if able to
establish from preponderance of probabilities the entitlement on
the defendant to rebut the same, including with specific claim on
their part, if any. It is in explaining the earlier propositions of law
that, in a suit for ejectment, plaintiff shall win or lose his case only
on his own strength principle, since it does not mean the onus of
proof is statically always on the plaintiff or it shall never shifts on
the defendant, even if the plaintiff is able to establish his case from
preponderance of probability with reference to Section 3 of
Evidence Act. It was clearly held that in a suit for ejectment, once
plaintiff has been able to create a high degree of probability so as
to shift the onus on the defendant, it is for the defendant to
discharge his onus and in the absence thereof, the burden of proof
lies on the plaintiff shall be held to have been discharged so as to
prove the plaintiffs title for entitlement of the relief. Further, in
cases relating to proof of title or possession based on right or title
where defendant pleads adverse possession concerned, on whom
burden of proof lies and how onus probandi shifts concerned, in
Md.Mohammad Ali V. Jagdish Kalita it was held in relation to
the proof in an ejectment suit by plaintiff to shift burden on the
defendant pleading adverse possession that plaintiffs proof of title
is enough to succeed and it is for the defendant to prove any
plea of adverse possession and in the absence of which once
plaintiff has proved his title, he is entitled to declaration or
possession with any consequential reliefs as the case may be.
10. Before coming to decide how far the trial Court was correct or
not in arriving at the findings impugned in the appeal concerned,
the basic principle of law that also to be kept in mind by the
appellate Court is that, where trial Court rely on facts and
probabilities basing on credibility also with opportunity to observe
the demeanor of the witnesses, the findings of the trial Court when
based on reasons and by consideration of the contents of the
documents and oral evidence and on all facts and relevant
circumstances, merely because some other view is also possible,
the appellate Court shall not ordinarily or casually interfere with
and reverse the findings in the trial Courts judgment. In case the
appellate Court desires to reverse the judgment and decree of the
trial Court, it should discuss the findings and set aside the same,
which are contrary to law or weight of evidence or probabilities of
the case or perverse or arbitrary or superficial or capricious or
unsustainable, either on fact or on law. Same is the expression in
Veerayee Ammal v. Seeni Ammal at para-14; State of
Rajasthan v. Harphool Singh at para-(b) and Ishwar Dass
Jain v. Sohan Lal at 437-k).
11. From the above general principles on appreciation of
evidence and the scope of the appeal lis vis--vis the powers
of the 1st appellate Court, before coming to the factual matrix
of the case on hand it is necessary to consider from the points
formulated above, how far the earlier suit operates as res
judicata or any finding in the earlier suit to prevent to raise
the same issue in the present suit.
12. Now, coming to the question of the earlier suit
operates as res judicata or not concerned: as per
Section 11 of CPC particularly from Explanation 8 an issue heard
and finally decided by a Court even of limited jurisdiction
competent to decide such issue shall operate as res judicata in a
subsequent suit, notwithstanding that such Court of limited
jurisdiction was not competent to try such subsequent suit or the
suit in which such issue has been subsequently raised. It is to say
from the expression placed reliance by the defendant of the Apex
Court in Md.Nooman (11 supra) is within the Explanation-8 of
Section 11 of CPC as the earlier eviction suit by Court of limited
jurisdiction since competently decided by going into the title in
dismissing the claim for eviction, the subsequent suit for
declaration of title and recovery of possession held operates as res
judicata. In fact, in Md.Nooman (11 supra) the Apex Court relied
upon its earlier expression in Shamim Akhtar Vs. Iqbal Ahmad
and another where in a suit under the Rent Act, the question of
title held can be incidentally gone into and final determination of
title must be left to the decision of competent Court for the case
arising out of U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 and among other expressions in saying to
bar a second suit for title, the question of title has to be expressly
raised and decided between the parties earlier and that to be
shown proved by referring to Calcutta and Patna High Courts
expressions in that regard to the conclusion where title was in
issue in the earlier suit even of limited jurisdiction that operates as
res judicata to the subsequent suit for declaration of title. It is, in
fact, at cost of repetition within the purview of Explanation-8 of
Section 11 CPC, whereas the present case on hand is different but
for if at all to say from that expression of any finding therein where
necessary to decide to bind the parties to the subsequent lis.
13. Here, coming to the case on hand, the earlier suit is for
prohibitory injunction relief and the plaintiff therein (who is the
defendant herein-P) did not base his case on title but for from
alleged possession based on unregistered gift deed at his marriage
time and his possession was approved in decreeing the suit that
was no doubt made final even by appeal filed ended in dismissal
without deciding on merits for non-prosecution. It is to say even
there is no prayer in the earlier suit of P as plaintiff therein of he
perfected title by adverse possession and acquired right thereby to
declare his title, but for a bare injunction and in the plaint pleaded
by P of G (defendant therein) executed an unregistered gift deed in
his favour and put him in possession. Then, the trial Court
should have been granted in that earlier suit for injunction,
the relief till evicted through due process of law to continue
the possession; for against a true owner no injunction can be
granted for no entitlement except till evicted through due process
of law at best and that too for the unregistered gift does not create
right much less confer title to claim title thereunder, that was
undisputedly as the original title holder G executed, and that too, a
person claiming adverse possession has no equities in law. Thus
from that perusal, the earlier suit for injunction in
O.S.No.7098/1991 practically no way operates as resjudicata to
maintain the present suit of G for the relief of declaration of title
and recovery of possession, but for as referred supra, any finding
in reference to any issue answered from necessity of deciding the
lis between the same parties P & G that reached finality to bind
them, being same parties herein litigating for same property as per
the settled law including from the expression in B.Narasimha
Reddy Vs. Bhaskara Rao Joshi .
14. In this regard, coming to the other decisions placed reliance
of the Division Bench expressions of this Court of suit for
injunction will not operate as res judicata to the subsequent suit
for declaration of title and possession; K. Lakshminarasimha
Chary vs. K.Satyanarayana referring to Sajjadanashin
Sayed Vs. Musa Dadabhai Ummer and Gram Panchayat of
Village, Naulakha Vs. Ujagar Singh and others including
Mulla on CPC and Halsburrys Laws of England in
holding that a judgment is not a conclusive if any matter
came collaterally in question or if any matter was incidentally
cognizable and that Judicial approach today is justice
oriented and no Court ought to base its decision on
technicalities alone, to the conclusion that the principles of
resjudicata applies in cases where findings on fact are given
collaterally or incidentally on an issue in a suit.
15. Further in R.V.S.Vara Prasad (5supra) referring to Gram
Panchayat-Naulakha and Sajjadanashin Sayed supra that the
earlier suit was only suit for injunction and not one based on title
and no question of title was gone into or decided therein and
thereby that decision cannot bind on the question of title and even
if in an earlier suit for injunction, there is an incidental finding on
title, the same will not be binding in a later suit or proceeding
where title is directly in question, unless it is established that it
was necessary in the earlier suit to decide the question of title for
granting or refusing injunction and that the relief for injunction
was founded or based on the finding on title. Even mere framing of
an issue on title may not be sufficient as pointed out in that case.
In Sajjadanashin Sayed supra it is held further that "Where title
to property is the basis of the right of possession, a decision on the
question of possession is res judicata on the question of title to the
extent that adjudication of title was essential to the judgment; but
where the question of the right to possession was the only issue
actually or necessarily involved, the judgment is not conclusive on
the question of ownership or title." The same was relied upon in
the subsequent expressions of Apex Court in Annaimuthu
Thevar v. Alagammal and Ramchandra Dagdu Sonavane V.
Vithu Hira Mahar.
16. Coming to the other question whether finding in earlier suit
binds parties in subsequent suit concerned, in Nooman supra a
finding on the question of title recorded in a suit for eviction would
how far be binding in a subsequent suit for declaration of title and
recovery of possession between the same parties is the question
that arisen for consideration before the Apex Court, where held the
answer to the question would depend on, in what manner the
question of title was raised by the parties and how it was dealt with
by the court in the eviction proceedings; ordinarily, in a suit for
eviction even if the court goes into the question of title and
examines the issue in an ancillary manner and in such cases any
observation or finding on the question of title would certainly not
be binding in any subsequent suit on the dispute of title; but there
may be exceptions to the general rule and ultimately held on facts
from case on hand that the High Court was right in holding that
the finding recorded in favour of the plaintiff in the earlier suit for
eviction would operate as res judicata in the subsequent suit for
declaration of title and recovery of possession between the parties.
17. Having regard to the above and in the factual matrix
referred supra, the earlier suit for injunction since not based
on title but for on previous possession, same no way operates
as res judicata to maintain the present suit, so also any
finding therein in deciding the present suit for the
entitlement by plaintiff to declaration and possession or not,
including on the claim of adverse possession by defendant.
18. From this, now coming to consider the
entitlement by plaintiff to declaration and or
possession or not, including on the claim of adverse
possession by defendant; the fact that the G is the original
owner of the property is established as P himself by his admitting
and exhibiting the Ex.B.1 registered sale deed dt.05.08.1963
(original of Ex.A1) standing in the name of G as titleholder and in
claiming that title of G conveyed to him(P) under the Ex.B.2
unregistered gift deed dt.21.02.1966 (original of Ex.A2) which is
even not duly stamped, once marked without objection, the
objection relating to the stamp duty not left open to raise (though
the appellate Court can otherwise under Section 61 of the Stamp
Act), from the unregistered document of gift which is contrary to
Sections 123 to 128 of the Transfer of Property Act no way
conferred any title or right in favour of P from G pursuant to the
document and the contents of the document otherwise cannot be
looked into, but for to say the collateral purpose if any from the
unregistered document under Section 49 of the Registration Act as
to nature of possession and enjoyment by P, the alleged donee,
from G, the alleged donor. Whether such possession of P when
from it commenced and with what animus possidendi
continuously, openly and uninterruptedly in hostility to the right of
G from any such claim of unlawful possession and enjoyment and
whether it extinguishes the right of G under Section 27 of the
Limitation Act with reference to acquiring of any title by adverse
possession by P, as per Article 65 of the Limitation Act is
concerned, it is necessary to mention the pleadings and the
evidence on record.
19. The plaint averments in the suit for declaration of title and
possession of G in nutshell are that, it is in connection with the
marriage of sister of G with P, when P wanted huge amount of
dowry and insisted immovable property of Hyderabad city being
given to him as security as amount could not be arranged in full
on pain of marriage being held up for other brothers of G had no
immovable properties that could be made available for purpose of
satisfaction of P and at request of mother of G, he was constrained
to sign a document as gift-(Ex.B2) of his self acquired property-
(Ex.B1) which is the suit schedule property as security in part
fulfillment of dowry and so even asked to and given his original
sale deed-(Ex.B1), that was not intended to act upon nor was ever
acted upon and the amount that was agreed upon was paid to P in
due course, but documents were not returned to G by P and said
document of gift deed neither registered nor attested and it does
not create any right or interest in favour of P, being null and void
abinitio and G a non-resident Indian given his house on rent to a
tenant by name Gopaldas (P.W-2) and his brother Subash and left
for U.S.A. on 03.11.1991 with his wife and children and P filed
earlier permanent injunction suit O.S.No.7098 of 1991 dated
15.12.1991 with false allegations that G was trying to disturb his
alleged possession of said property with the help of unsocial
elements twice in November and middle of December, 1991, when
G was still in U.S.A., in collusion with other respondents 1 and 2
of the suit namely Rukkamma-mother of G and G.Sudhakar
Reddy-an Inspector of Police, one of the four brothers of G, who
was hardly 13 years at the time of the marriage of his sister and
the P`s-G.P.A-Mohan Reddy and said Sudhakar Reddy threatened
the Gs tenant supra to vacate and hand over possession to Mohan
Reddy and unable to withstand the pressure, Gs tenant vacated
the suit premises by kept it under lock and addressed a letter to G
asking him to come back and resume possession and before
vacating the suit premises, the tenant recovered Rs.8,000/-rental
deposit paid to G from said Mohan Reddy by passing on a receipt
and after G had to return to India on 18.06.1991 and took
possession of the house by broke open the lock under intimation to
police and placed two police guards to safeguard his possession
and while so, said Mohan Reddy, G.P.A. of P with connivance of
the said guards and the Inspector of Police, Amberpet P.S. and
with anti-social elements attacked and smashed the doors and
windows and thrown away Gs belongings and the matter was
reported to the Inspector of Police, Amberpet P.S. who booked a
trespass case against G herein instead against said Mohan Reddy,
the G.P.A. of P, and the trespass by gaining into possession is an
organized crime through anti-social elements and police help and
under the guise of temporary injunction order in I.A.No.1483 of
1991 in O.S.No.7098 of 1991 by playing fraud on Court and G
thus left with no other course than contested the suit and the
temporary injunction was later vacated and it was G herein who
was in possession of the suit property and not P and thereafter G
could not prolong his stay in India being NRI and left USA again on
10.06.1993 entrusting the matter to his Advocate Padmakar Rao
and it was hoped that at the trial, the Court would look into the
material evidence not to mention that the cause of action for
O.S.No.7098 of 1991 was missing and delivered judgment on
merits; however, contrary to that, the Court held that G failed to
adduce any evidence and decreed the suit for injunction, virtually
exparte and under these circumstances hit by the Limitation Act G
was denied the opportunity to agitate his rights on merits by way
of first appeal and the possession obtained by criminal trespass
against the real owner came to be perpetuated by the injunction
decree in O.S.No.7098 of 1991 is not maintainable in law and
thereby filed the present suit for declaration of title of him-G as
rightful owner and for recovery of effective possession by setting up
cause of action on 14.10.1996 when O.S.No.7098 of 1991 was
decreed and thereafter he was unsuccessful in agitating that
injunction suit decree before the High Court and the Apex Court
where SLP was dismissed on 24.11.2003.
20. The written statement filed by P on 30.01.2004 in opposing
the suit claim of G is with contest while denying of the plaint
averments and by disputing any existence of cause of action and
maintainability of the suit, by saying outcome of suppression of
material facts and second round of litigation having unsuccessful
in contesting the earlier suit for injunction including in the appeal
and by agitating up to Supreme Court unsuccessfully in SLP in
saying this Court by entertaining declaration and possession suit
cannot sit against the earlier suit for injunction made finally in the
legal battle. The other contest is that the plaint averments of P to
marry the sister of G wanted huge amount of dowry and insisted
immovable property in the city to give as security till arranging of
the money and from request of Gs mother for his other brothers
got no property G given his property as a security by signing on an
unregistered gift deed as security to fulfill the dowry amount and
also give the original sale deed though not intended to act upon or
even consider later paid the amount, P did not return the
document or gift deed and earlier title deed are denied as untrue
and incorrect facts. The further contest of G let out the property to
Gopaldas and Subash and after filing of suit O.S.No.7098 of 1991
for injunction against G by P in collusion with his mother, brother,
etc., the Ps G.P.A. Holder and Sudhakar Reddy threatened the
tenant of G who could not withstand the pressure, vacated by kept
the premises under lock and key calling G to resume possession
and G returned back to India on 18.06.1991 and broke open the
lock and resumed possession under intimation to police by kept
the police guards to keep up his possession and the GPA Holder of
P with the connivance of Police Inspector of Amberpet P.S. and
other anti-social elements occupied the premises by thrown away
the things of G as an organized crime under the guise of injunction
obtained in the permanent injunction suit supra and also denied
as not true and created averments. The further contest of P is that
G suffered the decree in O.S.No.7098 of 1991 and unsuccessfully
agitated up to the Supreme Court has no right to impugn the same
reached finality and thereby not entitled to suspend the operation
of that permanent injunction decree by maintaining present suit.
21. It is also contended by P that he is the absolute owner and
possessor of the suit property that was conveyed to him by a gift
deed executed by G (Ex.B.2) and ever since he is in possession of
the property and as on the date of execution of the gift deed itself
he was has put in actual and physical possession of the property
and original title deed of the property also given to him by G and it
is P who has been paying the monthly tax, electricity and water
consumption charges and in view of the strained relationship
between them, G made attempts to interfere with Ps possession,
which constrained P to maintain O.S.No.7098/1991 for injunction
and also obtained temporary injunction and though the temporary
injunction order was later vacated, he filed appeal C.M.A.No.292 of
1992 that was allowed and G suppressed the factum of C.M.A.
order of injunction in favour of P in the injunction suit pending
trial and it was ultimately decreed and that the said injunction suit
decree was on merits and not an ex parte decree and judgment and
the appeal filed also with delay condonation application ended in
dismissal including in revision against the dismissal order
confirmed so also before the Apex Court unsuccessfully and P
thereby in lawful possession of the property with right and title
and the findings in the earlier suit for injunction also became final.
22. It is also contended that the plaintiffs contest of he is in
deemed possession under law and is deprived of the enjoyment of
the property because of the permanent injunction decree in
O.S.No.7098 of 1991 held untenable and contradictory as not open
to say G in possession as he himself claims deprived of enjoyment
and possession and the decree for perpetual injunction in favour of
P itself shows said averments in present plaint as untrue and G
has not stated as to when he was dispossessed and in seeking
possession for himself not in possession and there is no meaning
in saying recovery of effective possession for not at all in
possession and the alleged illegal taking possession by P is untrue
and it is G who made attempts to trespass and dispossess P that
could be prevented by P including by maintaining the suit for
injunction and an F.I.R was also registered against G for the
attempts of trespass, etc. It is further averred that by virtue of the
long standing, continuous and uninterrupted possession over the
suit property, P perfected his title by adverse possession also as G
is out of possession for more than 30 years and lost any of his
rights that were extinguished and the suit claim is thereby also
barred by limitation and sought for dismissal of the suit.
23. It is from the above pleadings before the trial Court the
following issues and additional issues were formulated:
ISSUES:
1) Whether the gift deed dated 05.12.1966 is valid and binding
on the plaintiff?
2) Whether judgment in O.S.No.7098 of 1991 became final
against the plaintiff and binding on him?
3) Whether the plaintiff is entitled for declaration over the suit
property?
4) Whether the plaintiff is entitled for possession?
5) To what relief?
ADDITIONAL ISSUE:
Whether the defendant perfected title to the schedule
property by adverse possession?
24. It is pursuant to which in the course of trial, on behalf of the
plaintiff-G, besides himself as P.W.1 one Gopal Das, alleged ex-
tenant of him was examined as P.W.2 and placed reliance upon
Exs.A.1 to A.37 viz.,
Ex.A.1 Certified copy of registered sale deed dt.5.8.1963
Ex.A.2 Zerox copy of gift deed dt.21.2.1966
Ex.A.3 Passport showing departure and arrivals in India
Ex.A.4 Rent receipt dt.7.10.1991
Ex.A.5 Certified copy of plaint in O.S.No.7098/1991
Ex.A.6 Letter dt.5.4.1992 along with translated copy in English written by
the then tenant Mr.Subash
Ex.A.7 Copy of application to Home Minister of A.P. dt.15.7.1992
Ex.A.8 Certified copy of orders of High Court of A.P. dt.23.10.92 in CMP
No.16914/1992 in CRP No.2304 of 1992.
Ex.A.9 Certified copy of common orders in I.A.Nos.957/91 and 1483/91
Ex.A.10Copy of application dt.26.5.1992 for disconnection of water
supply along with two receipts showing payment of existing arrears by
the plaintiff.
Ex.A.11Copy of application dt.5.6.1993 for disconnection electricity
supply along with receipts of payment of arrears.
Ex.A.12Certified copy of judgment and decree in O.S.No.5098/1995.
Ex.A.13Copy of complaint dt.28.6.1992 to S.H.O., Amberpet
Ex.A.14Copy of application dt.3.7.1992 to the Asst.Commissioner of
Police.
Ex.A.15Copy of letter dt.8.8.1992 to S.H.O., Amberpet.
Ex.A.16Copy of another application dt.21.9.1992 to the S.H.O.
Ex.A.17Copy of orders of High Court.dt.23.4.86 in WP No.4833/1986.
Ex.A.18Notice issued by the Asst.Medical Officer, Hyderabad to the
tenant Subash
Ex.A.19Notice issued by the Asst.Medical Officer, Hyderabad to the
tenant Subash
Ex.A.20Letter issued by the M.C.H. authority in favour of plaintiff.
Ex.A.21Letter issued by the M.C.H. authority in favour of plaintiff.
Ex.A.22Encumbrance certificates obtained from Registration authorities.
Ex.A.23Encumbrance certificates obtained from Registration authorities.
Ex.A.24Tax assessment register by M.C.H. Hyderabad from1992 to 2004.
Ex.A.25Tax passbook in favour of the plaintiff.
Ex.A.26Tax Receipt
Ex.A.27Tax Receipt
Ex.A.28Tax Receipt
Ex.A.29Tax Receipt
Ex.A.30Domestic service ration card
Ex.A.31Bill payment passbook in favour of plaintiff issued by APSEB
Ex.A.32Orders of water supply department
Ex.A.33Water bill paid by the plaintiff
Ex.A.34Water bill paid by the plaintiff
Ex.A.35Water bill paid by the plaintiff
Ex.A.36Copy of declaration affidavit of plaintiff.
Ex.A.37Copy of document No.644 of 1983
After closure of Gs evidence, on behalf of defendant-P, his G.P.A-
Mohan Reddy was examined as D.W.1 and one G.Rukkamma
(mother of G & mother in law of P) and P(defendant) were
examined as D.Ws.2 and 3 respectively and placed reliance upon
Exs.B.1 to B.34 viz.,
Ex.B.1Original sale deed Doc.No.2259/63 dt.5.8.1963
Ex.B.2Original Gift Deed dt.21.2.1966 in favour of P.Narayan Reddy
Ex.B.3Copy of M.C.H.Tax receipt dt.13.10.84.
Ex.B.4Original Provisional receipt for cheque dt.31.3.1978.
Ex.B.5Copy of M.C.H. Tax receipt dt.5.8.05
Ex.B.6Tax receipt issued by M.C.H. dt.9.8.76.
Ex.B.7Tax receipt issued by M.C.H. dt.19.8.81
Ex.B.8Demand notice issued by Water Works Dept. dt.7.1.73.
Ex.B.9 Demand notice issued by Water Works Dept.dt.8.12.72
Ex.B.10 Demand notice issued by Water Works Dept.dt.6.11.72
Ex.B.11Demand notice issued by Water Works Dept.dt.7.4.72
Ex.B.12Demand notice issued by Water Works Dept.dt.3.4.72
Ex.B.13Demand notice issued by Water Works Dept.dt.2.3.72
Ex.B.14Demand notice issued by Water Works Dept.dt.3.1.72
Ex.B.15Demand notice issued by Water Works Dept.dt.5.11.71
Ex.B.16Demand notice issued by Water Works Dept.dt.7.10.71
Ex.B.17Demand notice issued by Water Works Dept.dt.3.6.72
Ex.B.18Demand notice issued by Water Works Dept.dt.3.8.72
Ex.B.19Demand notice issued by Water Works Dept.dt.4.8.72
Ex.B.20Demand notice issued by Water Works Dept.dt.6.9.72
Ex.B.21Demand notice issued by Water Works Dept.dt.6.12.73
Ex.B.22Demand notice issued by Water Works Dept.dt.4.1.73
Ex.B.23Demand notice issued by Water Works Dept.dt.5.5.73
Ex.B.24Receipt issued by Public Works Dept.dt.3.11.72
Ex.B.25Receipt issued by Public Works Dept.dt.3.4.72
Ex.B.26Receipt issued by Public Works Dept.dt.2.3.72
Ex.B.27Receipt issued by Public Works Dept.dt.7.9.72
Ex.B.28Receipt issued by Public Works Dept.dt.2.8.73
Ex.B.29Receipt issued by Public Works Dept.dt.4.1.73
Ex.B.30Tax receipt issued by M.C.H., dt.3.3.72.
Ex.B.31Tax receipt issued by M.C.H., dt.6.9.75
Ex.B.32Cess receipt issued by Water Supply Board dt.13.7.92.
Ex.B.33Original ration card
Ex.B.34Copy of judgment in CMA No.292/92 on the file of the
A.C.H.(temporary) CCC, Hyderabad.
25.(i). It is from the above evidence, the trial Court observed for
plea of adverse possession from P`s written statement by relied on
Ex.B.2 gift deed to the claim that, in Bondar Singh (10 supra) the
claim of plaintiff therein was based on unregistered and
unstamped sale deed and it was held plaintiff perfected title by
adverse possession against the real owner defendant by virtue of
his possession under the unregistered sale deed and here also Ps
claim is under Ex.B.2 unregistered and void gift deed and the suit
filed by G about 37 years after Ex.B.2 gift deed dated 21.02.1966
and P also filed in support of his possession besides oral evidence
of him as D.W.3 as two others as D.Ws.1 and 2 relying upon other
documents Ex.B.1 original sale deed dated 05.08.1963 of G who
executed the Ex.B.2 gift deed and Exs.B.3 and B.32 the tax
receipts of which Ex.B.16 is the oldest water consumption demand
from 07.10.1971 and the oldest one is Ex.B.5 dated 05.08.2005
and G has not filed any payment of tax receipts and Exs.A.4 to
A.29 though G relied upon as tax assessment register and receipts,
Ex.A.24 tax assessment register shows the name of the owner
Narayan Reddy and there is no surname mentioned to say it is of G
or P and Ex.A.25 Hyderabad Municipal Corporation Tax Payment
Passbook, not even before surname of G as G.Narayan Reddy but
for Exs.A.26 to A.29 that bear the surname of G-G.Narayan Reddy
which are the documents subsequent to the filing of injunction suit
in O.S.No.7098 of 1991 and cannot be given much weight, and on
the contrary, Exs.B.3, B.4, B.7 all stand in the name of G.Narayan
Reddy, the others in the name of P-P.Narayan Reddy and at least
from Ex.B.8 dated 07.01.1973, the tax receipts etc. showing the
name of P, he perfected his title to the property by adverse
possession from the year, 1972 and as per Exs.B.8 to B.32 which
is more than 12 years from which P perfected title by adverse
possession and Gs right and title over the property is extinguished
and there is nothing even to say by G of he paid the alleged dowry
amount due subsequently if at all any receipt for claiming the
unregistered gift by handing over of original sale deed of G to P
executed and given nominally and as security and not acted upon
for no action even taken pursuant thereto to get back the
documents if true and P.W.2 so-called tenant under G is an
introduced witness and Ex.A.6 is not even written by P.W.2 but his
brother Subash who was not even examined and same not even
proved and even the notice issued by G under Exs.A.18 and 19 to
the Municipal Corporation authorities and Ex.A.17 writ petition
copy of Subash no way improves the case of G much less to say
Subash was tenant of G for any period and G not even filed any
suit much less for declaration of title at least within three years
after the suit for injunction filed by P and once the earlier suit for
injunction made final it is binding between the parties and it also
operates as res judicata to the present suit.
25.(ii). However, ultimately held referring to Grampanchayat of
Village Naulakha and Sajjadanshin Sayed supra that referred
in R.V.S.Vara Prasad supra of earlier suit is not res judicata to
maintain the present suit for declaration of title but for after
injunction suit decree, G could have filed the suit within 3 years
and thereby also the suit claim is barred by limitation apart from P
perfected title by adverse possession in dismissing Gs suit claim.
25.(iii). Now same is impugned with the contentions referred in
detail supra in the appeal filed by G and the contentions
propounded with reference to the propositions by both sides
therefrom raised supra for answering. From this, as answered
already the present suit claim is not barred by resjudicata and
there is no finding in earlier suit even to bind.
26. Now coming to the appeal claim and contention
by plaintiff of the claim of adverse possession made
by defendant is unavailable under the Ex.B2
document concerned, it is not only a connection of at the
marriage of sister of G with P, when P wanted dowry and asked
immovable property of Hyderabad city being given to him as
security as amount could not be arranged in full on pain of
marriage being held up for other brothers of G had no immovable
properties that could be made available for purpose of satisfaction
of P and at request of mother of G, he was constrained to sign a
document as gift-(Ex.B2) of his self acquired property-(Ex.B1)
which is the suit schedule property as security in part fulfillment
of dowry and so even asked to and given his original sale deed-
(Ex.B1), that was not intended to act upon nor was ever acted
upon and the amount that was agreed upon was paid to P in due
course, but documents were not returned to G by P and said
document of gift deed neither registered nor attested and it does
not create any right or interest in favour of P, being null and void
abinitio, but also deposed from evidence of P as D.W-1 and mother
of G as D.W-2 that Rs.9,000/- cash given as dowry out of
Rs.25,000/- and to meet the rest Rs.16,000/- in lieu of it the
property was given that belongs to G to P and G was compensated
with other agricultural lands of the family and thereby as per the
arrangement the property was given to P and delivered possession
by execution of the said gift deed supra. It is showing therefrom of
to meet the dowry requirement, the property was given at the time
of marriage of P with sister of G as gift by execution of the
document, though what G stating supra of given nominally and
later amount paid by him and property not reconveyed and
documents not returned, quite unbelievable for no one could not
keep quite without further recourse. There is no proof in this regard
from G, further same is disproved from the evidence of mother of G
supra, apart from no prudent person would keep quiet if true of
the version and asked to return the documents and if given as
security without even a demand notice or legal recourse for getting
back the documents, that too, the G is an Advocate by profession
even by then undisputedly and there are no receipts even if at all
paid muchless pleading any date of payments and respective
amounts and with any little proof in this regard but for his self-
serving version, to the alleged version to give credence. In fact, P
specifically besides denied said version, disproved also from
evidence of his mother-in-law (no other than mother of G). The
further contest of G let out the property to Gopaldas and Subash
and after filing of suit O.S.No.7098 of 1991 for injunction against
G by P in collusion with his mother, brother, etc., the Ps G.P.A.
Holder and Sudhakar Reddy threatened the tenant of G who could
not withstand the pressure, vacated by kept the premises under
lock and key calling G to resume possession and G returned back
to India on 18.06.1991 and broke open the lock and resumed
possession under intimation to police by kept the police guards to
keep up his possession and the GPA Holder of P with the
connivance of Police Inspector of Amberpet P.S. and other anti-
social elements occupied the premises by thrown away the things
of G as an organized crime under the guise of injunction obtained
in the permanent injunction suit supra, same is even not
substantiated of Ps alleged wrongful entry under the guise
injunction and not in possession prior to that. In fact, the evidence
of P and mother of G supra as D.Ws-1 and 2 not only in this suit,
but also in the earlier suit disproves said contest of G herein. It is
mainly contended by P that he is the absolute owner and
possessor of the suit property that was conveyed to him by a gift
deed executed by G (Ex.B.2) and ever since he is in possession of
the property and as on the date of execution of the gift deed itself
he was put in actual and physical possession of the property and
same is substantiated by evidence of D.W-2 (mother of G) not only
in this suit but also in earlier suit for injunction including the own
brothers also of G in support of the said claim of P and disproving
the claim of G. The fact that original title deed of the property also
given by G to P besides not in dispute by G his inaction to get back
the document atleast by notice if at all Gs version and
substantiates Ps version. P has also been proved paying the
property tax, electricity and water consumption charges and in
view of the strained relationship between them, G made attempts
to interfere with Ps possession, which constrained P to maintain
O.S.No.7098/1991 for injunction was his plea and temporary
injunction in support of it also granted exparte and though later
vacated, with reversal order on the C.M.A.No.292 of 1992 pending
injunction suit supra that injunction order was in force and from
the decree of the suit continues later and the so called letting out
to Subhash is not even proved for not even examined and so also
the receipts said to have been given by him in dispute not proved
by summoning him, leave about the further discussion to
undertake in foregoing paras on adverse possession in this regard.
As stated supra, the evidence of P and his mother-in-law as
DW2&3 also disproves said version of G. Thus what was laid down
by the three Judge Bench expression of the Apex Court in
Rajasthan Housing Board supra of a prohibited transaction
opposed to public policy, cannot be enforced even considered
to equally apply herein to say P does not get any rights under
the unregistered Gift deed which is void and opposed to public
policy, that does not take away claim of adverse possession to
plead and prove. What was laid down in the expression
referring to several earlier expressions is that the right in the
property ought to be one which is alienable and is capable of
being acquired by the competitor to claim any sort of rights
over the property. Adverse possession operates on an
alienable right. The right stands alienated by operation of law,
for it was capable of being alienated voluntarily and is sought
to be recognized by doctrine of adverse possession as having
been alienated involuntarily, by default and inaction on the
part of the rightful claimant. Thus, the contention of G of
adverse possession claim with any plea and proof is
unavailable to P from Ex.B2 document to said claim, is
untenable and with no basis.
27. Before discussing further facts so far as the adverse
possession is concerned, it is practically a blending of limitation
and prescription, though Section 27 of the Limitation Act (for
short, the Act) no way speaks conferment of title to wrong doer,
but extinguishment of title of true owner. Section 27 of the Act is
the only exception to the general effect of the act in barring only
the remedy and not the right. This section, in cases of recovery of
possession, if an action is not brought within the period stipulated,
destroys the very right, known as the doctrine of adverse
possession. This section even not contemplated any seeking of
declaration of true owner, but for the person claiming adverse
possession against the true owner to claim acquiring title by
prescription. Subject to further discussion to undertake with
reference to Articles 64 and 65 of the Act hereunder, suit for
declaration need not be asked in the present facts but for
ejectment to recover possession and for that proving of title is
enough leave about admitted facts need not be proved even. No
doubt, if use of property/its care or attempt to regain is foregone
for a period and an adverse title being established is not opposed
to through the instrumentality of law or otherwise, the other
person does acquire a right by prescription, even this is baffling for
a reasonable man as to how does some years of illegality turn into
a legality. The Supreme Court in the recent past in about three
expressions observed that adverse possession is an area where
justice and law do not happily coincide and the twelve years period
under Articles 64 & 65 of the Act are too short to extinguish right if
proved by other side of perfected right by adverse possession, to
increase the period atleast to 30 years, if not to delete this concept
of adverse possession as affront to the notions of justice, equity
and run counter to modern ideas of proprietary rights and
international conventions.
27(i). Needless to say, from the scope of adverse possession claim
and keeping in mind the inherent unjust nature of this principle,
courts have been consistently insisting on a very rigid satisfaction
of conditions for the claim of adverse possession to be specifically
pleaded and proved.
27(ii).The relevant provisions mainly are Section 27 and
Articles 64 to 67 of the Act, 1963. Before going to it, it is
necessary to mention that Schedule is an extension of the Section
which includes it and material put into a schedule because it is too
lengthy or detailed to be conveniently accommodated in a section,
or because it forms a separate document. It is often found
convenient to incorporate part of the operative provisions of an Act
in the form of a schedule as stated by Francis Bennin in Statutory
Interpretation while adverting to the importance to the schedule
and the same quoted with the approval of the Full Bench of this
Court in Mohd.Siddiq Ali Khan V. Shahsun Finance Ltd .
Section 27 - Extinguishments of right to property: At the
determination of the period hereby limited to any person for
instituting a suit for possession of any property, his right to
such property shall be extinguished.
Coming to Articles 64 & 65 out of Part V of the Articles in
the Schedule to the Limitation Act:
64.
For possession of immovable property
based on previous possession and not on
title, when the plaintiff while in
possession of the property has been
dispossessed.
Twelve
years
The date of dispossession.
65.
For possession of immovable property
or any interest therein based on title.
Twelve
years
When the possession of the
defendant becomes adverse to the
plaintiff.
Explanation for the purposes of this
article -
(a) Where the suit is by a remainder-
man, a reversionary (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, reversionary 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.
27(iii). The other relevant provision is Article 58 out of Part III
of the Articles in the Schedule to the of the Limitation Act,
1963.
58.
To obtain any other declaration.
Three
years
When the right to sue first accrues.
Article 58 is replaced by Article 120 of old Act, 1908. Article 120
provides six years limitation and the time from which it is to
commence, as to when the right to sue accrues. Whereas, Article
58 provides three years limitation and the time from which it is to
commence, as to when the right to sue first accrues. Thus, the
difference is right to sue accrues and right to sue first accrues. It
is to say on right to sue first accrues as to when right to sue of a
suit based on multiple causes of action, the period of limitation will
begin to run from the date of when right to sue first accrues. In
this regard, the Apex Court in Khatri Hotels Private Limited Vs.
Union of India observed that the right to sue first accrues for
declaration of title under Article 58 of the Act of three years began
to run from the date when in the pleading (written statement)
denied title of other party. It was therefrom held the suit for
declaration filed beyond three years therefrom is barred by
limitation and same is casually referred in para-29 of the latest
expression of the Apex Court L.C.Hanumanthappa Vs.
H.B.Shivakumar , where the issue is amendment whether
relates back to date of suit or not in the suit for specific
performance of the contract for sale. In fact, Section 21 of the Act
takes care of it, enabling the Court while permitting to say it
relates back.
27(iv). In fact, in Khatri Hotels supra, it was mainly referring to
bar of declaratory relief from first denial, if not filed within three
years under Article 58 of the Act, 1963; and it was not dealt with
the scope of Section 27 and Articles 64 to 67 of the Act, 1963. It is
important to note here that the scope of Section 27 and
Articles 64 and 65 of the Act, 1963 are dealing with right of
recovery of possession and not with title, though Section 27
alone speaks of person claiming adverse possession by
prescription to seek for declaration. Of which, as per Article 64
of the Act, 1963 for possession of immovable property based on
previous possession and not on title, when the plaintiff while in
possession of the property has been dispossessed, the limitation
period is 12 years from date of actual dispossession; whereas, as
per Article 65 of the Act, 1963 for possession of immovable
property or any interest therein based on title (and not on previous
possession and with no need of saying when the plaintiff was and if
so, while in possession of the property has been dispossessed), the
limitation period is 12 years, when the possession of the
defendant becomes adverse to the plaintiff. That is the reason
why and from scope of the provisions of law, in cases relating to
possession based on right or title, where defendant pleads adverse
possession concerned, in Md.Mohammad Ali V. Jagdish Kalita
it was held that it shifts burden on the defendant pleading adverse
possession where plaintiff proved his right, as plaintiffs proof of
right or title is enough to succeed for recovery of possession
(without need of claiming title even merely defendant denied
plaintiffs title) and it is for the defendant to prove from any plea of
adverse possession and in the absence of which, once plaintiff has
proved his title he is entitled to the relief of possession with any
further relief of declaration or other consequential reliefs like
injunction etc, as the case may be. Further in same lines, the
Apex Court in Karnataka Board of Wakf supra among other
decisions relied therein and referring to it later reiterating the
scope of law particularly at paras 11 and 12 that adverse
possession is a hostile possession by clearly asserting hostile title
in denial of the title of the true owner. Party claiming adverse
possession must plead and prove that his possession is peaceful,
open and continuous and it must be adequate in continuity, in
publicity and in extent to show that their possession is adverse to
the true owner. It must start with a wrongful disposition of the
rightful owner and be actual, visible, exclusive, hostile and
continued over the statutory period. Physical fact of exclusive
possession and the animus possidendi to hold as owner in
exclusion of the actual owner are the most important factors that
are to be accounted in cases of this nature since adverse
possession plea is blended question of fact and law and the person
pleading adverse possession has no equities in his favour since he
trying to defeat the rights of true owner and it is for him to clearly
plead and establish all facts necessary to establish his adverse
possession and whenever the plea of adverse possession is
projected, inherent in the plea is that someone else was the owner
of the property and by placed reliance on Karnataka Board of
Wakf supra, in Saroop Singh supra, it was observed further
that in a suit of plaintiff for possession based on title the onus to
prove acquisition by adverse possession lies on the defendant once
the plaintiff proved his title and the defendant having not raised
plea of adverse possession from any length of possession. The
plaintiffs suit held not time barred for possession devoid of
requisite animus to make it adverse to commence the prescription
period for the claim of adverse possession and the animus
possidendi is one of the ingredients of adverse possession and for
that placed reliance on Karnataka Board of Wakf supra and as
per L.N.Aswathama supra, at Para 17, it was observed that long
and continuous possession by itself would not constitute adverse
possession if it was either permissive possession or possession
without animus possidendi and the pleas based on title and
adverse possession are mutually inconsistent and the latter does
not begin to operate until the former is renounced and unless the
person possessing the property has the requisite animus to
possess the property hostile to the title of the true owner, the
period for prescription will not commence.
27(v). Therefore, even title claim under Article 58 supra is
barred by limitation for not filing within three years from
cause of action first accrues to say first denial, that is not a
bar to the recovery of possession either under Article 64
supra based on previous possession from date of
dispossession within 12 years or under Article 65 supra
based on right or title for which even for a defendant where
has set up adverse possession to establish when from the
possession of the defendant becomes adverse to the plaintiff
and to show the suit claim for recovery of possession based
on title thereafter not filed within 12 years, to extinguish
title of the plaintiff under Section 27 of the Limitation Act to
bar recover of possession based on title.
27(vi). From the above, even the present suit for relief of
declaration shown not filed within three years from denial of
plaintiff-Gs title is a bar under Article 58 supra, that is not a bar
to the suit relief for recovery of possession under Article 65 supra
based on right or title of the G unless to non-suit G, P has to plead
and proof perfected title by adverse possession. It is needless to
say once the scope of Section 27 and Articles 64 and 65 of the Act,
1963 dealing with right of recovery of possession are not dealt with
by the expression in Khatri supra and L.C.Hanumanthappa
supra, based on the principle laid down in M/s A-One Granites Vs.
State of U.P. , referring to earlier expressions in Municipal
Corporation of Delhi Vs. Gurunam Kour and State of U.P. Vs.
Synthetics and Chemicals Limited and Arneethdas Vs. State
of Bihar including referring to Article 141 of the Constitution of
India on the principle of sub-silentio, same was followed by the
Division Bench of this Court in Gadda Balaiah vs The Joint
Collector, Ranga Reddy . In Gadda Balaiah supra, it was
observed that: The Supreme Court proceeded to examine question
on a sub silentio assumption of the validity of the transaction. No
arguments were advanced and the Court did not address itself to
it. This judgment falls squarely within the description of sub
silentio judgments. The test set out by Salmond was approved by
the Supreme Court in Municipal Corporation of Delhi V.
Gurnam Kaur . It is observed in Para 11 of said Judgment as
under:
"A decision should be treated as given per incuriam when it is given in
ignorance of the terms of a statute or of a rule having the force of a statute.
So far as the order shows, no argument was addressed to the court on the
question whether or not any direction could properly be made compelling
the Municipal Corporation to construct a stall at the pitching site of a
pavement squatter. Professor P. J. Fitzgerald, editor of Salmond on
Jurisprudence, 12th Edn. explains the concept of sub silentio at p. 153 in
these words: "A decision passes sub silentio, in the technical sense that
has come to be attached to that phrase, when the particular point of law
involved in the decision is not perceived by the Court or present to its
mind. The Court may consciously decide in favour of one party because of
point A, which it considers and pronounces upon. It may be shown,
however, that logically the Court should not have decided in favour of the
particular party unless it also decided point B in his favour; but point B
was not argued or considered by the Court. In such circumstances,
although point B was logically involved in the facts and although the case
had a specific outcome, the decision is not an authority on point B. Point B
is said to pass sub silentio."
In fact, the Supreme Court in a later decision of A-One
Granites held that a judgment sub silentio is not law declared
within the meaning of Article 141 of the Constitution of India.
27(vii). Thus, above expression of Khatri supra or any other
referring to Article 58 supra no way bars the suit for recovery
of possession under Article 64 or 65 supra even claim of
relief of declaration of title though need not be asked and
asked and even same barred by Article 58 of the Act.
28). From the above, now coming back to adverse
possession and period of limitation and right by
prescription concerned:
28.(I).(i). Limitation is defined in THE LAW LEXICON-2nd Edition
reprint, 2009 at pages 1128 & 1129 as in the ordinary sense,
restriction or circumspection. In legal and popular sense it refers
to the time prescribed by the authority of law within which an
action may be brought or some act done, to preserve a right and
after the time no action can be legally brought.
As per NOLOS plain-English law dictionary The legally
prescribed time limit in which a law suit must be filed. It is a law
fixing the periods of time within which a person has to file his
claim within the court against the defendant to enforce. It is the
law which sets the maximum period which one can wait before
filing a lawsuit, depending on the type of case or claim. The
Statutes of limitation, which are the Acts limiting the time within
which actions shall be brought, differ depending up on the type of
legal claim and time prescribed by the law.
The rules of Limitation are though not meant to destroy
the rights of parties; they are definitely meant to see that
parties must seek their remedies within the time fixed by the
Legislature.
It is aptly said by John Voet that, controversies are
restricted to a fixed period of time, lest they should become
immortal while men are mortal.
28.(I).(ii). Prescription is defined in THE LAW LEXICON-
2ndEdition reprint,2009 at pages 1502 & 1503 as A title acquired
by use and time, and allowed by law. It is a manner of acquiring
the ownership of property by the effect of time and under the
conditions regulated by law in the ordinary sense, a restriction or
circumspection. At common law, prescription is the mode of
acquiring title by long continued enjoyment with
uninterrupted possession. Three things are necessary to
establish a right by prescription: (i).Use and occupation or
enjoyment,(ii). The identity of the thing enjoyed & (iii).That it
should be adverse to the rights of some other person.
28.(I).(iii). The statutory law on Limitation & Prescription-was
established in India in stages. Earlier there were two systems
prevailing-viz., in the territories within the jurisdiction of Courts
established by Royal charter in the presidency towns of Calcutta,
Madras and Bombay, the English law and in the Muffusil courts,
the law laid down by regulations. The very first Limitation Act was
enacted for all courts in India in 1859 as Act, XIV/1859-that came
into force in 1862, followed by Act, IX/1871; that later by Act,
XV/1877 that was also repealed by another Legislation in the
year,1908 and finally took the form of the Indian post
Independence new Limitation Act in 1963, which received the
assent of the president of India on dt.05-10-1963 and on same day
published in the Gazette of India, Extraordinary, part-II. The
Statutory Law of Limitation' prescribes the time-limit for different
suits or other proceedings within, which an aggrieved person can
approach the court for redress or justice. The suit, if filed after the
expiry of time-limit, is struck by the law of limitation.
It's basically meant to protect the long and established
user and to indirectly punish persons who go into a long
slumber over their rights.
28.(I).(iv). Limitation & Condition: The principle difference
between Limitation & Condition is that a Condition doesnt defeat
the estate when broken until it is avoided by the act of the grantor,
but a limitation marks the period which is to determine the estate,
without entry of claim.
28.(I).(v). Limitation & Obligation: A legally enforceable
obligation for neglect to lay action within time prescribed though
ceases legal enforceability, it doesnt cease the obligation. Thus,
Statute of Limitations alters the common law by introducing
limitations to the right of action with an object to secure and quiet
men in their actions and under the penalty of losing the right of
action in case of neglect to sue within the prescribed time. For
example in case of pronote, the debt is not abolished even suit not
filed for its recovery within time, but for remedy in the judicial
forum that is denied by reason of the creditors default to lay action
within time.
28.(I).(vi). Thus, Limitation & Prescription are not totally the
new concepts to Indian law as not for first time barrowed the
concept from any Anglo Saxon Law, but for to say the Anglo Saxon
Law was imposed on us by legislations during the British colonial
rule. Hindus in fact foresaw the concept at the drawn of their
civilization in visualizing practical problems and designing the
concept to serve the purpose and object viz., to prevent fraudulent
and stale claims from arising after all evidence has been lost or
after the facts have become obscure through the passage of time or
the defective memory, death, or disappearance of witnesses.
Various texts of Hindu authors like Manu prescribed the
period of limitations for several civil and property rights and
enforcement of criminal prosecutions. It is no doubt true, under
the Hindu Jurisprudence, there was only law of prescription and
not limitation in property rights, like acquisition of title by
prescription over immovable property by person in possession
against the true owner openly and uninterruptedly for over 20
years or the like. Under the Hindu uncodified Laws, there was no
Limitation and prescription relating to the properties of Deities,
women and children as those used to be under the control of one
or other human being either as elder family member for women
and children or elder of the village for the deity and their control
and possession is always regarded as trustees and thus no
question of claiming adverse possession from any length of
possession even with hostile enjoyment by abusing the status.
Gradually after the advent of the British Colonial Rule the age old
concepts given goby and the English & Roman law are adopted and
imposed.
28.(I).(vii). Thus, the Statutes of limitations date back to
early Roman-law, applied to us and later following with
modifications to it by us both in civil and criminal actions. The
statute of limitations is thereby not only to put the claimant to be
diligent to lay his claim for legal enforceability within the
prescribed time limit, but also to serve as defense that is ordinarily
asserted by the defendant to defeat an action, if brought against
him after the appropriate time has elapsed. Therefore, generally
the defendant must plead the defense before the court upon
answering the plaintiff's claim. If the defendant does not do so, he
is regarded as having waived the defense and will not be permitted
to use it in any subsequent proceedings.
28.(I).(viii). The Statutes of limitations are thus enacted by the
legislature, that sets the maximum time after an event that legal
proceedings based on that event may be initiated; known
collectively as periods of prescription. It is to say, Lawsuits are
unlikely to be successful if they are filed after the end of the
statute of limitations time period.
28.(I).(ix). Pursuing remedy within time and with reasonable
diligence is said in equity a VIGILANTIBLIS ET NON
DORMIENTIBUS LEX SUCCURRIT. The provisions of the statute
of limitation have the remedy and not the rights, thus it is part of
adjectival law and form part of lex-fori, to say the law of Limitation
as not a substantive law, but for part of adjectival law saying to
make a claim regarding the legal enforceability of substantive law-
rights only within the prescribed time and otherwise, the
substantive rights lost legal enforceability-in the sense gives
substantive right on opposite party to oppose the claim. It is
thereby law permits to lay a claim not only for eviction of
encroacher by owner with in prescribed period, but also the wrong
doer`s right to lay a claim that he got prescriptive right against the
owner who lost his substantive right of enforceability for slept over
during the prescribed period, with no action against him, though
such a second type of legal claim is not based on equity.
28.(I).(x). Thus, either parties interse (but for acknowledgement of
right to be within statutory period for legal enforceability as per the
Limitation Act or acknowledgement of time barred debt from the
subsisting obligation as valid consideration to enforce under
Sec.25 of the Indian Contract Act) or even a court; cannot extend
the time period unless the statute provides such authority. With
respect to civil lawsuits, a statute must afford a reasonable period
in which an action can be brought. A statute of limitations is
unconstitutional if it immediately curtails an existing remedy or
provides so little time that it deprives an individual of a reasonable
opportunity to start a lawsuit. Depending upon the period stated in
the statutes, the parties themselves may prescribe time period by
agreement, as a provision in a contract, to enforce; though no right
to prescribe time beyond what is prescribed by the statute, but for
by acknowledgement to give fresh or extended cause of action.
28(I).(xi). The Laws of Limitation are thereby known as
statutes of peace and repose, statues that manifest the policy
of law in lending its aid only to those who are vigilant and not
those who sleep over their rights- (Vigilantibus Non
Dormentibus Juria Subvenient). Limitation laws suggest that all
disputes/claims/remedies should be kept alive only for a
legislatively fixed period of time, for otherwise disputes would be
immortal when man is mortal. Though arbitrarily fixed limits
may seem unfair to some, however they are most pragmatic
in so far as there is rarely any justice in stale claims- and
evidence also gets destroyed, hence keeping remedy alive
serves no useful purpose.
28(I).(xii). The fixation of periods of limitation must always be to
some extent arbitrary, and may frequently result in hardship. But
in construing such provisions, equitable considerations are out of
place and the strict grammatical meaning of the words is the only
safe guide-as held in Nerendra Nath Dey Vs. Suresh Chandra
Dey ; General Accident Fire and Life Assurance Corp. Ltd.,
Vs. Janmaahmoed Abdul Rahim & Boota Mal Vs. Union Of
India .
28(I).(xiii). A statute of limitation is thus an enactment in a
common law legal system that sets the maximum time after an
event that legal proceedings based on that event may be initiated;
known collectively as periods of prescription; to say Law suits are
unlikely to be successful if they are filed after the end of the
statute of limitations time period; as Legal claims presented or
instituted after expiry of the time prescribed, law of prescription
applies, which prevents them from filing the case. These statutes
of limitations were adopted specifically to control Sycophants. The
purpose and effect of Statutes of Limitation is to neither to take
away the substantial rights of claimant not to protect the opposite
party; but for on principles of equity and to prevent stale and
belated claims to rise after long lapse of time; as Statutes of
limitations are intended to encourage the resolution of legal claims
within a reasonable amount of time. Courts and legislatures have
had to reconsider the purpose of time limits in dealing with the
controversial issues with reference to nature of lis. There are three
main reasons behind the policy of law of limitation that support
the existence of Statutes of Limitation, namely: (a) that a plaintiff
with good causes of actions should pursue them with reasonable
diligence; (b) that a defendant might have lost evidence to disprove
a stale claim; and (c) that long dormant claims have more of
cruelty than justice in them as per Halsburys .
28(I).(xiv). The period fixed to enforce a claim is different from the
prescribed period when to commence from any enforceable
disability to not to reckon, as limitation once started will not stop.
In this regard, the general rule is that the limitation period begins
when the plaintiffs cause of action accrues or is made to be aware
of the injury that might have happened and attached with no legal
disability to the enforcement of right from the time of injury unless
in matter requires knowledge and special knowledge when from the
period to commence-(like proof of knowledge to the claim of
adverse possession by ouster among coparceners and co-owners
etc.). The statute of limitations may begin either when the harmful
event such as fraud or injury, occurs-(the "standard rule" as to
when the time begins to be "when the plaintiff has a complete and
present cause of action") or when it is discovered-(the "discovery
rule" where applies) or when the person capable of discovering
assumed office like in the case of a Trustee of an endowment.
28(I).(xv). The law of limitation is a kind of imperfect
perfection which may not destroy the substantive right as
such, but imposes a bar on right of action, in contra
distinction to prescription .
28(I).(xvi). The law of limitation is based on laches and delay.
Although such limitations periods generally are mainly, though not
purely, issues of law prescribed by Statutes, unspecified
limitations periods known as laches may apply in situations
of equity which are subject to broad judicial discretion (i.e., a judge
will not issue an injunction if the party requesting the injunction
waited too long to ask for it).
28(I).(xvii).Important Exceptions & Exclusions to it are:
A. Fraud upon the court: By which the court is impaired in
the impartial performance of its legal task, it is fundamentally
opposed to the operation of justice and thereby that it is not
subject to any statute of limitation.
B. International crimes: Subject to International
conventions and treaties to which the countries are parties
prescribing any period of limitation for international crimes,
usually those are not subject to statute of limitations, nor to
prescription.
C). Heinous crimes: Crimes that are considered
exceptionally heinous by society have no statute of
limitations. As a rule, there is no statute of limitations for
murder.
D). Continuing violations doctrine: In tort law, if a
defendant commits a series of illegal acts against another
person, or, in criminal law, if someone commits a continuing
crime, the period of limitation may begin to run from the last
act in the series.
(E) Special Legislations: Where a special legislation
provides separate period of limitation, the general law under
Indian Limitation Act has no application. In Subrahmanyam
Vs. Devanadha Swamy Devasthanam it was held that the
Limitation Act, 1963 is not applicable to the properties of the
religious institutions which contain separate provisions of
Limitation. A special enactment prevails over general
enactment, when both operate on same field Rajkot Municipal
Corp., Vs. State .
28(I).(xviii). The concepts of Limitation and prescription are
thus correlated, to say if the claim is not enforced within the
prescribed period of limitation law, it not only lasts legal
enforceability, but also prescribes right on opposite party-
defendant and that is the basic difference between limitation
and prescription. To say in more precise, legal claims if
instituted after expiry of the time prescribed, law of
prescription applies, which prevents the claimants from
filing the claims legally.
28(I).(xix). Law of Limitation and Prescription regarding
immovable property under the Limitation Act: Section 27 of the
Act operates to extinguish the right to property of a person who
does not sue for its possession within the time allowed by law. In
Krishnamurthy S.Setlur vs O.V.Narasimha Setty the Apex
Court held further that- the right extinguished is the right
which the lawful owner has and against whom a claim for
adverse possession is made, therefore, the person who makes
a claim for adverse possession has to plead and prove the date
on and from which he claims to be in exclusive, continuous
and undisturbed possession. The question whether possession
is adverse or not is often one of simple fact but it may also be
a conclusion of law or a mixed question of law and fact. The
facts found must be accepted, but the conclusion drawn from
them, namely, ouster or adverse possession is a question of law
and has to be considered by the court.
28(I).(xxi). On possessory title and scope of Art.64, the Supreme
Court (3JB) held in Nair Service Society Ltd. Vs.
Alexander that even if the time for filing a summary suit under
Section 9 the Specific Relief Act, 1877 expired, the dispossessed
person could still file a suit for possession on the basis of prior
possession. Such a suit is described as one based on possessory
title. But in such a suit filed by the dispossessed plaintiff beyond
the period specified in section 9 of the Specific Relief Act, 1877 (or
Section 6 of the 1963 Act) defendant who dispossessed the plaintiff
could defend himself by proving title and if he proved title, he
could remain in possession. After an exhaustive examination of the
law on this aspect, Hidayatullah, J. (as he then was) observed as
follows (p 1173): "When, however, the period of 6 months has
passed, questions of title can be raised by the defendant and if he
does so, the plaintiff must establish a better title or fail." The
difference between the right to possession in summary suit under
the specific Relief Act and a regular suit based on possessory title
was explained further as follows (p.1173) "....the right is only
restricted to possession only in a suit under Section 9 of the
specific Relief Act but does not bar a suit on prior possession
within 12 years and title need not be proved, unless the defendant
can prove one". On the question whether the defendant, inspite of
dispossessing the plaintiff, could, by proving title, remain in
possession, it was held that the defendant could, in such a
situation, be permitted to retain his possession if he proved title. It
was stated that the law was so laid down in Asher vs. Whitcock
[1865 (1) QB 1] and was accepted by the House of Lords in Perry
vs. Clissold [1907 AC 73], that was also the law applicable in our
country and it was this principle that was engrafted into Articles
64 and 65 of the Indian Limitation Act, 1963. The said articles
were, it was held, declaratory of the law.
Relying upon Nair Service Society Ltd. supra and several other
earlier and subsequent expressions to it, in another expression of the Apex
Court
(3JB) of Rame Gowda (D) By Lrs vs M. Varadappa Naidu, dt.15.12.2003, the
principles laid down are the following:
It is thus clear that so far as the Indian law is concerned the person in
peaceful
possession is entitled to retain his possession and in order to protect such
possession he may even use reasonable force to keep out a trespasser. A rightful
owner who has been wrongfully dispossessed of land may retake possession if he
can do so peacefully and without the use of unreasonable force. If the
trespasser
is in settled possession of the property belonging to the rightful owner, the
rightful owner shall have to take recourse to law; he cannot take the law in his
own hands and evict the trespasser or interfere with his possession. The law
will
come to the aid of a person in peaceful and settled possession by injuncting
even
a rightful owner from using force or taking law in his own hands, and also by
restoring him in possession even from the rightful owner (of course subject to
the
law of limitation), if the latter has dispossessed the prior possessor by use of
force. In the absence of proof of better title, possession or prior peaceful
settled
possession is itself evidence of title. Law presumes the possession to go with
the
title unless rebutted. The owner of any property may prevent even by using
reasonable force a trespasser from an attempted trespass, when it is in the
process
of being committed, or is of a flimsy character, or recurring, intermittent,
stray or
casual in nature, or has just been committed, while the rightful owner did not
have enough time to have recourse to law. In the last of he cases, the
possession
of the trespasser, just entered into would not be called as one acquiesced to by
the true owner.
It is the settled possession or effective possession of a person
without title which would entitle him to protect his possession even
as against the true owner. The concept of settled possession and the
right of the possessor to protect his possession against the owner
has come to be settled by a catena of decisions. Illustratively, we
may refer to Munshi Ram and Ors. Vs. Delhi Administration
(1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab
(1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar
Pradesh (1977) 1 SCC 188. The authorities need not be multiplied.
In Munshi Ram & Ors.'s case (supra), it was held that no one,
including the true owner, has a right to dispossess the trespasser by
force if the trespasser is in settled possession of the land and in
such a case unless he is evicted in the due course of law, he is
entitled to defend his possession even against the rightful owner.
But merely stray or even intermittent acts of trespass do not give
such a right against the true owner. The possession which a
trespasser is entitled to defend against the rightful owner must be
settled possession, extending over a sufficiently long period of time
and acquiesced to by the true owner. A casual act of possession
would not have the effect of interrupting the possession of the
rightful owner. The rightful owner may re-enter and re- instate
himself provided he does not use more force than is necessary.
Such entry will be viewed only as resistance to an intrusion upon
his possession which has never been lost. A stray act of trespass, or
a possession which has not matured into settled possession, can be
obstructed or removed by the true owner even by using necessary
force. In Puran Singh and Ors.'s case (supra), the Court clarified
that it is difficult to lay down any hard and fast rule as to when the
possession of a trespasser can mature into settled possession. The
'settled possession' must be (i) effective, (ii) undisturbed, and (iii)
to the knowledge of the owner or without any attempt at
concealment by the trespasser. The phrase 'settled possession' does
not carry any special charm or magic in it; nor is it a ritualistic
formula which can be confined in a strait-jacket. An occupation of
the property by a person as an agent or a servant acting at the
instance of the owner will not amount to actual physical
possession.
The Apex Court laid down the following tests which may be
adopted as a working rule for determining the attributes of 'settled
possession:
i) that the trespasser must be in actual physical possession of the
property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or
implied) of the owner or without any attempt at concealment by the
trespasser and which contains an element of animus possidendi.
The nature of possession of the trespasser would, however, be a
matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser
must be complete and final and must be acquiesced to by the true
owner; and
iv) that one of the usual tests to determine the quality of settled
possession, in the case of cultivable land, would be whether or not
the trespasser, after having taken possession, had grown any crop.
If the crop had been grown by the trespasser, then even the true
owner has no right to destroy the crop grown by the trespasser and
take forcible possession.
28(I).(xxii). On the scope of Article 64 & 65 and the difference to
the same from Articles 142 and 144 of the repealed Act, besides
the above expressions cited by both sides those were discussed in
the earlier paras, it was well laid down by this Court in Mahendra
C Mehata Vs. M/s.KCPHS Ltd., Hyderabad that person
claiming adverse possession must know that someone else was the
real owner of the property in his possession and that he is holding
it adverse to him. Possession however long without the said
animus does not amount to adverse possession. Article 65 is
enacted in the Limitation Act, 1963 in respect of the suits based on
title. Therefore, when the suit is based on title, the plaintiff need
not prove that he was in possession of the land sought to be
recovered within 12 years of the suit. Suits falling under Article 64
of the Act, 1963 are based purely on previous possession of the
plaintiff and therefore is not covered by Art.65, because he is not
claiming recovery of possession basing on his title. Therefore, if the
appellants establish their title to the suit land, the burden of proof
would be on respondents to establish that they have perfected their
title to the suit land by adverse possession, and appellants need
not establish that they were in possession of the suit land within
12 years from the date of the suit. In a suit falling under Art.65,
the defendant, who wants to defeat rights of the plaintiff, has to
establish his adverse possession which has the effect of
extinguishing the title of the owner by operation of Sec.27 of the
Act and if he fails to do so plaintiff cannot be non-suited merely
because he was not able to prove possession within 12 years.
Articles 142 and 144 of the repealed Act had given rise to a good
deal of confusion with respect to suits for possession by owners of
property. Article 64 of the present Act petitioner replaces Article
142 but is restricted to suits based on promissory title so that an
owner of property does not lose his right to the property unless the
defendant in possession is able to prove adverse possession.
Articles 64 and 65 correspond to Articles 142 and 144 of the
Limitation Act of 1908. Article 142 dealt with the suit for
possession of immovable property, when the plaintiff, while in
possession of the property, had been dispossessed or had
discontinued the possession; in such a case the period of limitation
was 12 years from the date of the dispossession or discontinuance.
Article 144 related to suits for possession of immovable property or
any interest therein not specifically provided for in the schedule to
the Act of 1908. The period of limitation was 12 years from the
date when the possession of the defendant became adverse to the
plaintiff. It may be seen that Article 144 was in the nature of a
residuary article, which would come in for application only if there
was no other specific provision in the other Articles of that Act. In
other words if in a given situation Article 142 could apply then
residuary Article 144 would be ruled out of the application. Articles
142 and 144 gave rise to a good deal of confusion by owners of
property. The law as it stood appeared to favour a trespasser as
against an owner because the decisions had held that in an
ejectment action by the owner of the property it was not sufficient
for him to establish his title but he had also to go further and
establish that he was in possession of the property within 12
years before the date of the institution of the suit, in order to
redress this anomaly. Articles 64 and 65 were suitably altered.
Article 64 deals with suits based on possession and not on title;
in such a case the plaintiff, who while in possession had been
dispossessed could file a suit within a period of 12 years from the
date of dispossession. For the purpose of Article 64 there is no
question of proving any title. Article 65 relates to suits for
possession based on title. In such a case the period of limitation
is 12 years when the possession of the defendant became adverse
to the plaintiff. If in a suit falling under Article 65 if the defendant
wants to defeat the rights of the plaintiff, he has to establish his
adverse possession for a period of 12 years, which has the effect
of extinguishing the title of the owner by the operation of Section
27 of the present Act. If he fails to do so, then the plaintiff cannot
be non-suited merely because he was not able to prove possession
within 12 years. A person in possession of property acquires
rights by prescription, if he has been in such possession
adversely to the true owner. On the other hand Article 64
operates negatively and it destroys right of a person without
creating right in another person. It may be that the negative and
positive aspect of limitation may coincide, for instance, when a
person acquires title by adverse possession, the title of the true
owner is extinguished.
29) Adverse possession, ouster vis--vis tacking, estoppel
etc, co-relation: The concept of adverse possession can be dealt
with in relation to estoppel, co-owners, co-heirs, co-parceners,
benami transactions, minor's property, public rights, Section 53-
A of Transfer of Property Act, trusts, licences, leases, riparian
rights, limited owners, mortgagors, mortgages, invalid
transactions, symbolic possession, institution of suit, Section
145 Cr.P.C. proceedings etc., and these are only illustrative and
cannot be said to be exhaustive since this concept may have to be
dealt with in the context of different types of facts and
circumstances.
30) Doctrine of tacking is one relating to computation of
period of adverse possession. Where a person has been in
possession without title short of statutory period and another
person succeeds such person and completes the rest of the
period, such person is entitled to compute the whole period for
invoking the concept of adverse possession. This principle cannot
be extended in case of independent trespassers.
31) In the land mark expression of Apex Court on the basic
requirements of adverse possession in S.M. Karim v. Mst. Bibi
Sakina , it has been ruled that adverse possession must be
adequate in continuity, in publicity and extent and a plea is
required at the least to show when possession becomes adverse so
that the starting point of limitation against the party affected can
be found. The claim to rights and interests in relation to property
on the basis of possession has been recognized in all legal systems.
Uninterrupted and uncontested possession for a specified
period, hostile to the rights and interests of true owner, is
considered to be one of the legally recognized modes of
acquisition of ownership. The prescription of periods of
limitations for recovering possession or for negation of the
rights and interests of true owner is the core and essence of
the law of adverse possession. Permissive possession or
possession without a clear intention to exercise exclusive rights
over the property is not considered as adverse possession.
32) In Amrendra Pratap Singh vs. Tej Bahadur
Prajapati , it was held that the essential requisites to establish
adverse possession are that the possession of the adverse
possessor must be neither by force nor by stealth nor under the
license of the owner. It is important to note that the starting point
of limitation of 12 years under Article 65, Schedule I of the
Limitation Act is to be counted from the point of time when the
possession of the defendants becomes adverse to the plaintiff for a
suit for possession of immovable property or any interest therein
based on title. Article 65 is an independent Article applicable to all
suits for possession of immovable property based on title i.e.,
proprietary title as distinct from possessory title. Article 64 governs
suits for possession based on possessory right and 12 years from
the date of dispossession is the starting point of limitation under
Article 64. Article 65 as well as Article 64 shall be read with
Section 27 which bears the heading Extinguishment of right to
property. It lays down: At the determination of the period hereby
limited to any person for instituting the suit for possession of any
property, his right to such property shall be extinguished. That
means, where a cause of action exists to file a suit for possession
and if the suit is not filed within the period of limitation prescribed,
then, not only the period of limitation comes to an end, but the
right based on title or possession, as the case may be, will be
extinguished. The section assists the person in possession to
acquire prescriptive title by adverse possession. When the title to
property of the previous owner is extinguished, it passes on to the
possessor and the possessory right gets transformed into
ownership. Section 27 is an exception to the well accepted rule
that limitation bars only the remedy and does not extinguish the
title. It lays down a rule of substantive law by declaring that after
the lapse of the period, the title ceases to exist and not merely the
remedy. It means that since the person who had a right to
possession has allowed his right to be extinguished by his inaction,
he cannot recover the property from the person in adverse
possession and as a necessary corollary thereto, the person in
adverse possession is enabled to hold on to his possession as
against the owner not in possession.
33) It was clarified by a three-Judge Bench of the Supreme
Court in Kshitish Chandra Bose vs. Commissioner of Ranchi
of what the law requires is that the possession must be open and
without any attempt at concealment. It is not necessary that the
possession must be so effective so as to bring it to the specific
knowledge of the owner. Such a requirement may be insisted on
where an ouster of title is pleaded.
34) It was also clarified in a series of decisions that while
possession shall be open and exclusive and in assertion of ones
own right, the fact that the possessor did not know who the real
owner was, will not make his possession any the less adverse. The
intention to exclude others from the control of property is an
essential element of factual possession. The intention to possess
the property exclusively implies the intention to exclude all others
including the true owner whether known or unknown to the
adverse possessor.
35) The rationale for adverse possession rests broadly on the
considerations that title to land should not long be in doubt, the
society will benefit from someone making use of land the owner
leaves idle and that that persons who come to regard the occupant
as owner may be protected. The maxim that law and equity does
not help those who sleep over their rights is invoked in support of
prescription of title by adverse possession. In other words, the
original title holder who neglected to enforce his rights over the
land cannot be permitted to re-enter the land after a long passage
of time. A situation lasting for a long period creates certain
expectations and it would be unjust to disappoint those who trust
on them. Another justification for the law of adverse possession is
captured in the quote that possession is nine points of the law.
36) In Saroop Singh v. Banto , relying upon earlier
expression in Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak the Apex Court observed: "29. In terms of
Article 65, the starting point of limitation does not commence from
the date when the right of ownership arises to the plaintiff, but
commences from the date the defendant's possession becomes
adverse.
37) The Supreme Court of India has in the recent expressions,
viz., State of Haryana Vs. Mukesh Kumar referring to Hemaji
Waghaji vs. Bhikhabhai Khengarbhai and same by referring
to the earlier expressions particularly of P.T.Munichikkanna
Reddy vs. Revamma pointed out the need to have a fresh look
at the law of adverse possession. Borrowing the language from the
judgment of the High Court (Chancery Division) of England in J.A.
Pye (Oxford) Ltd. vs. Graham17, the Supreme Court in the
former case, described the law of adverse possession as irrational,
illogical and wholly disproportionate and extremely harsh for the
true owner and a windfall for dishonest person who had illegally
taken possession of the property. The Supreme Court, after
extensively quoting from Munichikkanna Reddy supra reiterated
the observation therein that the law ought not to benefit a person
who in clandestine manner takes possession of the property of the
owner in contravention of law. This in substance would mean that
the law gives seal of approval to the illegal action or activities of a
rank trespasser or who had wrongfully taken possession of the
property of the true owner. We fail to comprehend why the law
should place premium on dishonesty by legitimizing possession of
a rank trespasser and compelling the owner to lose its possession
only because of his inaction in taking back the possession within
limitation. It was therefrom observed as follows: In our
considered view, there is an urgent need of fresh look regarding the
law on adverse possession. We recommend the Union of India to
seriously consider and make suitable changes in the law of adverse
possession. A copy of this judgment be sent to the Secretary,
Ministry of Law and Justice, Department of Legal Affairs,
Government of India for taking appropriate steps in accordance
with law.
38) Needless to say till such legislation brings a change on the
concept of adverse possession, as on date and same so long as it is
in the statute book, the claim of benefit of adverse possession by
persons can no way be negated by any Court of law unless the
apex Court within its constitutional powers declare any law with
modification to abide.
39) From the above, coming back to further facts including
from earlier judgement-Ex.A12, in O.S. No.7098 of 1991 (Ex.A-12)
P-as plaintiff therein the suit for bare injunction by showing three
defendants including G-the plaintiff herein as second defendant
and his brother as 3rd defendant and mother as 1st defendant,
contended that he married daughter of the 1st defendant and sister
of D-2 and D-3 and D-2 executed gift deed dated 21.02.1966
(Ex.B-2=Photostat copy of it Ex.A-2) for the suit property of 401
Square yards and he was inducted into physical possession and
since then in exclusive possession and enjoyment and D2-G was
reimbursed by his other brothers and mother with cash and other
properties to compensate and the suit property by virtue of the
same gifted by all the brothers of D2 and D3 and later there were
strained relations between P and G and ever since P left India, G
and other defendants are trying to take over possession and to
induct third parties into it and on 25.11.1991 they unsuccessfully
made an attempt which could be thwarted by timely action of Ps
GPA holder. In that suit for bare injunction supra from plaint as to
how and when he was inducted into possession, it was by saying
the gift was made and it was executed and possession was
delivered as contemporaneous. The G`s written statement contest
was that he is the owner of the said property which he purchased
under original of Ex.A-1 registered sale deed dated 05.08.1963 and
the alleged gift deed does not create any title or interest in P and it
is G that in possession as it`s owner all along and about 10 years
back it was in possession of Gs tenant Gopaldas and his brother
and while so G left U.S.A on 03.11.1991 and in his absence a plan
was hatched by P and other defendants to appropriate the property
and to alienate, that he effectively redeemed the pledge he made by
offering his self-acquired property supra as security in fulfillment
of dowry over period of 20 years and made it clear to every one
concerned as early as 1987 that he has thus extracted himself
from the commitment to pay any more money, yet as it transpires
now P with ulterior motive not returning the documents concerned
and the cash he received from his father who died in 1988 while he
was alive by realization of amount, that G is shuttling between
U.S.A and India and sought for dismissal. It is claim thereby of
property not delivered but original title deed and so called gift deed
delivered under which the property was purchased and same was
not even returned and in claiming as security for the amount of
dowry properly given and later paid. Curiously if paid and if really
for security no prudent person could keep quite without asking for
return of document atleast by mentioning as to when paid and as
to it was given as security only the original gift deed and original
title deed, thus to be returned, it was not done as discussed in
earlier paras supra in this regard to avoid repetition of facts. In
the earlier suit for injunction from the pleadings, he did not set up
any title much less any previous possession but for saying he got
right under the gift supra. The gift deed exhibited is not only not
duly stamped but un-registered. A gift without registration does
not confer any right over the property even exhibited without
proper stamp duty, though objection regarding deficit stamp duty
taken waived and not open to raise, apart from if it is not a
contemporaneous document but only a oral gift acknowledgement
subsequently which is also not legally valid to create any right
thereunder. Here the crux is under the unenforceable and void
document, if in possession of the property to any claim, in the
earlier suit for injunction does not even a claim of adverse
possession specifically, from the issues framed therein were
whether alleged gift true, valid and binding and whether plaintiff
therein in lawful possession with right and title and entitlement to
permanent injunction as referred supra, plaintiff has no lawful title
no right conferred on him by that document, however, the trial
Court ultimately granted the injunction saying P.Ws 1 to 3 therein
Mohana Reddy, one Rukkamma and Dr.Rama Krishna Reddy
deposed with regard to the gift and execution of the document and
hand over of original title deed for the suit house property with
possession and they are attesters to the deed of gift and held same
proved including from evidence of P.W-3 Dr.G.Rama Krishna
Reddy-no other than brother of G and said Rukkamma-no other
than mother of G of suit property gifted to P at the marriage time
and there from proved pursuant to the said oral gift the document
executed thereby even though required to be registered not
registered. It was observed further off besides proof of execution,
property was also delivered to the P and he was in actual
possession since that gift besides he was hand over the original
title deed also by G and P was paying taxes and while P was at
America authorized his brother Mohan Reddy as power of attorney.
G having admitted the gift contended same does not create any
rights for un-registered, besides disputing giving of property by gift
at the time of marriage of his sister and contended that he
benevolently permitted P to stay in the property by paying taxes
and electrical charges and by further saying P later left and G
came into possession through tenant Gopaldas. Further, said
Gopaldas not even examined and that G did not even come to
witness box to dispute any of the facts and therefrom held G who
opposes the injunction suit failed to prove his contentions and P in
possession by payment of taxes to the municipal and electricity
from the property mutated in his name and his mother-in-law-
cum-mother of G also supported the same was also brother of G as
P.Ws2 and 3 and thereby even under the invalid un-registered gift
document dated 21.02.1966 once P came into possession, he is in
adverse possession and thereby perfected title by adverse
possession and entitled to injunction.
40) No doubt, so far as adverse possession concerned there
was no specific plea in the plaint to give such a finding there was
no even any issue even indirectly framed and the finding has no
basis even to say that conclusive finding if at all to operate to bind
the G herein as 2nd defendant therein from the marking of the
judgment Ex.A-12. Thus, the judgment besides no way resjudicata
as observed, not even any of the findings operates as estoppel
against the G herein.
41) From the above, coming to present plaint for declaration of
title and possession reliefs from averments detailed and discussed
in the earlier paragraphs, now so far as the claim of possession
concerned, the G claims that while he was in possession, under
the guise of injunction order, P came into possession. The claim of
P in the earlier suit is pursuant to gift deed dated 21.02.1966 he
was given possession and since then he is in possession. G as D-2
in the injunction suit supra did not come to witness box and there
was no oath against oath. In this back ground, it is to be seen
whether P came into possession of the property pursuant to the
un-registered gift with effect from that day or a subsequently came
into possession after earlier suit for injunction, either pursuant to
injunction order, that was even dismissed, reversed and allowed in
C.M.A No.292 of 1992 of P entitled to injunction, leave about the
suit was decreed by judgment dated 14.10.1996. As referred supra
in the earlier suit G has pleaded in his written statement as 2nd
defendant, that he left U.S.A on 03.11.1991 and in his absence P
hatched a plan with other defendants therein to gain the entry.
The chief-examination affidavit of G in present title suit covered by
the appeal is by referring to his plaint averments and in the cross-
examination he deposed about he admitted about execution of
Ex.A-2=original Ex.B-2 gift settlement saying as security for falls
short of dowry amount and even later paid the amount, Ex.B-1
and B-2 documents were not returned. As discussed supra, no
notice even issued much less in writing calling for return of the
documents that is voucher sale deed and said gift deed and did not
take any legal recourse for its return. He denied the suggestion of
having voluntarily gifted at the time of marriage and executed the
document to which his mother is also one of the attester he is
deposing falsely. So far as Ex.A-6 letter said to have been executed
by tenant of G alleged Subash brother of Gopaldas on 05.04.1992
in Hindi it is admitted that by the time the letter addressed, G-
P.W-1 herein was in America and there is nothing to show sent by
post or otherwise with any proof but for saying through some other
person coming to U.S.A the letter is sent and not even named so
called some other person to give any credence to such version and
said Subash not even examined. In fact that letter appears to be a
subsequent creation for not even mentioned in the plaint and not
even shown if at all really addressed through whom he received
much less by name any person and importantly in the Ex.A-7
application of him to Home Minister dated 15.07.1992 so called
letter dated 05.04.1992 no way find place that is also one of the
circumstances to say the Ex.A-6 is a creation. Pending suit for
declaration and possession, injunction order obtained was only not
to alienate. G admitted that Crime No.133 of 1992 registered by
P.S.Amberpet against him on the report of P and even he has
stated given complaints to police against P under Exs.A-13 to A-16
no action was taken. G further deposed that Ex.A-32 is the order of
Water Supply Department including name of G to the premises
and he denied the suggestion of the corrections not attested in
Ex.A-32 by officials and the Department and he cause corrected
himself for purpose of the suit. G admitted in the cross-
examination that to say P trespassed through his G.P.A holder-
cum-brother, he did not file any private complaint case and denied
the suggestion of he was never in possession after the gift deed and
thereby he did not take any steps for the alleged trespass, which is
not true. He deposed that P.W-2 Gopaldas not a tenant but for his
brother Subash thereby P.W-2s evidence as if tenant cannot be
given credence. Further what P.W-1 deposed of the tenant was
threatened and thereby unable to bear with, kept the premises in
lock and key and informed him. In fact P.W-2 in the cross-
examination stated he was not threatened by P or anybody and he
himself voluntarily vacated and he does not remember to whom he
handed over the key if voluntarily vacated and if really in
occupation before alleged vacation. He deposed that there was
none as mediator between them for alleged oral lease. P.W-2
deposed that there are no any receipts for payment of any rent as
tenant, though denied the suggestion of never a tenant and he was
set up. In the cross-examination, P.W-2 further deposed that his
brother Subash is younger to him and he is not a bed ridden but
for diabetic. The non-examination of said Subash, even to prove
alleged Ex.A-4 (so called rent receipt) of Subash by G also speaks
against said claim of G. This is the only evidence of G and on
behalf of the defence among D.Ws 1 to 3, D.W-3 is the defendant-
P, leave about D.W-1 G.P.A holder of P and D.W-3 is mother-in-law
of P and no other than mother of G, she was also witness in earlier
suit as referred supra against G, own son and supporting case of
the son-in-law P. It is her evidence in chief affidavit that at the
time of marriage of P with her daughter, the suit property which
was purchased in the name of G, was gifted to P on behalf of their
entire family and G was reimbursed the value of the suit property
by giving of agricultural land to G later of Aripiral village of Torrur
mandal and said gift deed cause prepared by G and G & P signed
before her and other family members and later she attested the
same. She further deposed that the actual and physical possession
was handed over to P on the date of said gift deed and since then P
is in possession, and P is absolute owner thereby. She also
deposed same version in the earlier suit for injunction and in her
cross-examination she deposed that G who is her one of the sons
besides Rama Krishna Reddy and Sudhakar Reddy, after marriage
of Rama Krishna Reddy of 01.09.1963, six months later separated
from family and it is with his money he purchased the suit
property in his name during that period and he constructed the
house therein and after giving of the property to P at the marriage
P, G was compensated with other agricultural land of the family of
G and his brothers and mother. She deposed that dowry fixed was
Rs.25,000/- for the marriage and for that cash given of Rs.9,000/-
and the suit property given in lieu of the balance by gift and P did
not agree for marriage without giving of entire dowry or any
property equivalent and denied the suggestion of but for G the
other sons of her did not cooperate to perform marriage and the
property of G was thereby given as security and later the amount
due was paid by G to P. She deposed that in the earlier suit filed
against G by P in the year 1991 in O.S. No.7098 of 1991. She
deposed that G herein is residing at Amberpet in his house
adjacent to the suit property and she does not know whether G
resided at any time at Begumpet and she did not reside at
Begumpet and she deposed that she is residing with her youngest
son Sudhakar Reddy and denied the suggestion and at the force of
Sudhakar Reddy she is deposing falsehood. She deposed that P
stayed in suit house about one year or so and afterwards moved to
DLRL quarters allotted to him and denied the suggestion of G is
residing in suit premises. Importantly in the cross-examination of
D.W-2 mother of G though in her chief-examination she
categorically deposed at the time of said gift executed at the
marriage of P with sister of G and daughter of her on 22.02.1966,
the property was delivered by G to P, there is no specific
suggestion in the cross-examination of D.W-2 by G of the property
was not delivered and she is deposing falsehood, but for the
suggestion of the property was not given as gift but as security and
the amount even paid by G to P, the documents were not returned.
Coming to D.W-3, P in his chief-examination he deposed several
facts including of gift deed date, he is in possession as possession
was given to him and enjoying the property in his own right by
paying municipal taxes, electricity charges and also obtained water
connection and paying water charges, with continuous possession
since 1966 February and that G never in possession from 1966
February. In the cross-examination P deposed that under Ex.B-33
original ration card of the year 1973 there are entries up to 1973
and referring suit premises address. He denied the suggestion of
same is a fabricated document. It is important to note from that
document, even exhibited the same by P as plaintiff in earlier suit
for injunction as Ex.A-33 therein. The authenticity having not even
disputed in the earlier suit much less can be now, leave about
there is no basis to dispute, and the same establishes with entries
up to 1973 even of P in occupation of the suit property even by
then to say Ps possession of the suit property and also the
evidence of mother of G-cum-mother-in-law of P of execution of gift
deed and putting of P in possession on that day and G is not in
possession therefrom. Thus, from said evidence more particularly
with reference to that Ex.B-33 original ration card of the year 1973
there are entries up to 1973 and referring suit premises address of
P, presumption backwards to Ex.B-2 gift deed dated 22.02.1966
can be drawn besides also to draw under Section 114 of the Indian
Evidence Act there from the presumption forwards from the old
documents the existence of which cannot be disputed and Ex.B-33
as Ex.A-32 even filed by P in his earlier suit for injunction since it
was exhibited and there is nothing to suggest anything to believe
the alleged fabrication. The drawing of presumption backwards
and forwards in this case on hand can be taken aid from the
settled expression of the Apex Court in Ambika Prasad Thakur
Vs. Ram Ekbal Rai with reference to Section 114 and also to
draw the inference under Section 3 of Indian Evidence Act. Said
expression also reiterated in Anjali Devi V. S.Lingaswamy by
this Court. It is also because evidence of D.W-1 and D.W-3/P also
supports the evidence of D.W-2 supra. D.W-3 deposed that he was
allotted DLRL lab quarters in the year 1973 and shifted thereafter
to that quarter and denied the suggestion of since 1968 itself he
shifted to Malakpet and staying in the lab quarters. He deposed
that the suit premises has been leased out by him after he shifted
to lab quarters in 1973 in saying in his possession since before
and after the gift deed date. He deposed that P.W-2 during the
years 1990 and 1991 was tenant under him and denied the
suggestion of he was tenant under G in that period or P forcibly got
him vacated with threats. He deposed that Ex.B-2 gift deed
executed prior to his marriage which is in the year 1966 and
denied the suggestion of to meet the demand for additional dowry
it was nominally executed and as security and with no intention to
give or convey that property. He deposed that he does not
remember whether his brothers were paid Rs.9,000/- as dowry at
the time of Varapooja. He denied the suggestion of subsequently G
paid balance amount to him and demanded to give back the
property to him. This suggestion also shows P is in possession and
G asked to give back possession and what G claimed as if he was
in possession and only after 1991-92 under the guise of injunction
suit P came into possession. He deposed that though he cannot
say his entry into physical possession of the suit property was on
the exact date of gift deed or not, it was immediately after the gift
deed. He denied the suggestion of G allowed him after marriage of
him with Gs sister to stay in the suit premises for he has no other
house. Even from that suggestion P is in possession of the property
from 1966 is one way corroborating. He deposed that he did not
demand G to register Ex.B-2 unregistered gift deed or to execute
any other registered document after his marriage with sister of G.
He deposed that even Ex.B-2 was voluntarily executed and gifted
the property to him by G and that was also not asked by him. He
deposed that Ex.A-37 reveals G sold away part of his property and
it is not related to suit property and denied the suggestion of G
paying electricity charges, house tax and water charges to suit
property or brother of P (D.W-1) trespassed into the suit property.
In the re-examination P deposed further that Ex.A-36 of 1983 in
the affidavit obtained his address shown at West Marredpally
because in the suit property under his possession a tenant was
residing.
42) From this evidence what the gift Ex.B-2 document
contents not in dispute. Even it speaks G is donor and absolute
owner and possessor it was dated 21.02.1966 and the same is
bearing house No.2-3-703/2 standing on a plot of 401 Square
yards at Amberpet and the donor/G out of love and affection for
the donee/P is making the gift of said house property at the time of
his marriage as marriage gift and thereby transfers to the donee
free from all encumbrances. All the property described in the
schedule of the property to hold the same by the donee absolutely
forever and the donee accepts said transfer and the donee is
entitled to enjoy absolutely in whatever manner he likes and donor
shall not have any objection and the gift is irrecoverable and the
donor have no right to question the gift of the property to the donee
and not entitled to interfere in its enjoyment by the donee and the
donor shall take all steps to get transfer of the house property in
the name of the donee in the municipal and other records. It is in
fact outright gift and even there is no specific reference of delivery
of possession there is giving and acceptance and voucher sale deed
of 1963 under which donor got title (G) also undisputedly along
with original gift deed given to the donee (P) and the covenant
further from the undisputed facts of the terms though it is
otherwise not admissible but for nature of possession, since
attention drawn to rely even by G on the contents, it clearly speaks
the donee shall absolutely enjoy the property and donor shall not
have any right or interference. Thus, without possession, the
question of enjoyment does not arise and even donor undertakes to
transfer in municipal records the property in the name of donee.
All that itself is sufficient to say there is possession also given and
that substantiates the evidence discussed supra and possession if
not contemporaneous atleast from the date of gift deed or atleast
from next day pursuant thereto and the evidence further shows P
as a donee in possession of the property after that gift under Ex.B-
2 dated 21.02.1966 or from next day 22.02.1966 till 1973 even
from Ex.B-33 herein marked already as Ex.A-33 in earlier suit and
even later. Even in the earlier suit for injunction plaint copy
marked as Ex.A-5 relied by G there is at page-2 para-2 specific
mention of P was inducted into actual and physical possession of
the suit property as per the gift, on the date of gift dated
21.02.1966 and ever since in absolute possession and enjoyment
without interference from anybody and G was even compensated
for the gift with other agricultural lands by Gs brothers and
mother who also deposed in support of it, on behalf of P, as
referred supra and also from memo of evidence at page No.14 of
Ex.A-12 judgment and Gs mother in the present suit also deposed
on behalf of P as D.W-2 saying P was inducted into possession
pursuant to the gift and since then in possession and G was
compensated for the gift property given to P with other agricultural
lands of the family. The above evidence categorically shows
pursuant even to the invalid document of gift executed by G as
donor in favour of P as donee and put him in possession of the
property and allowed enjoyment and covenanted for the same with
full knowledge of by delivering possession, Ps possession since
then is when open, peaceful and uninterrupted and that is
sufficient to say in support of the plea of P of he perfected title by
adverse possession right from 1966 pursuant to the said gift
original Ex.B-2=Ex.A-2. Once these are the admissions including
cross-examination of D.W-3 supra and D.W-2 supra what are the
documents showing as if one Subash was tenant for some time or
he filed writ petition against municipal authorities for running
paints industry in the premises, to which the counsel is no other
than G has practicing advocate as can be seen from Ex.A-17 herein
to say, G knows all the legal implications and made the covenant
and put him in possession and later conceived the idea to get back
the property in one way or the other is apparent from the attending
facts and circumstances. Said Subash not even examined to prove
the version though material witness with no reason for non-
examination even hale and healthy as per P.W-2 brother of
Subash. A perusal of Ex.A-25 shows only the initials for payment
made with dates for 1991-92 on 14.07.1992 and so on, not with
any initials or date and it doubts the genuineness of getting only
after litigation started in the own suit, so also the receipts Exs.A-
26 to 29 after the filing of the suit, so also Ex.A-31 to 35. Ex.A-36
is shown on the stamp purchased on 17.01.1990 for Rs.5/- in the
name of P as resident of somewhere at Hyderabad, which stamp
used for the affidavit given by G and G not even shown resident of
the suit premises, but for at Barkatpura. There is explanation from
P of by then he was staying at that address as in suit premises
tenant was residing. G referred in his affidavit of a sale deed
executed by him in favour of one Sri P.Narasinga Rao in 1983 for
premises bearing No.2-3-703/2C and P as D.W-3 in his evidence
in cross-examination when confronted stated said referred
premises does not relate to suit property but some other.
43) Coming to the documents placed relied on by P, Ex.B-
10=A-10 in earlier suit filed by P herein shows it is standing in his
name and it was dated 16.11.1972 demand notice issued by
Hyderabad Water Works Department so also Ex.B-11=A-11 of 1972
in the name of P so also Ex.B-13=A-13 in old suit of 1972 so also
Ex.B-13=A-13, B-14=A-14, B-15=A-15 in old suit, B-16=A-16 in
old suit of the year 1971 so also Ex.B-17=A-17, B-18=A-18 and B-
19, B-20=A-19 and A-20 of 1972 so also from Ex.B-21 B-22=A-21,
A-22 of 1972, Ex.B-23, B-24=A-23, A-24 of 1972-73 so also Ex.B-
25, B-26=A-25, A-26 and so also Ex.B-27, B-28=A-27, A-28, B-29,
B-30=A-29, A-30 and Ex.B-31=A-31 of the year 1975, Ex.B-32
municipal revision notice=Ex.A-8 of earlier suit for injunction of
the year 1972 and Ex.B-33 ration card already discussed. This
documentary evidence also shows P while in exclusive possession
and enjoyment in his own way paying taxes. Though payment of
taxes does not confer title, this also coupled with other facts
establishes Ps exclusive possession and enjoyment of the suit
property right from 21/22-2-1966. The contention that P in
possession even by virtue of said gift document which conveyed no
title by recognizing title of G and not in adverse to the right to
claim possession by G, with any nec-vi nec-calm and nec-
precario, is untenable, for P in possession and enjoyment ever
since the gift document in own right by paying taxes and not on
behalf of G. As answered supra, even taken from the evidence of
D.W-2 and D.W-3 for balance dowry amount the property was
given as gift and same is opposed to public policy and against to
Law and the gift thereby void, it does not run adverse possession is
untenable, as it is not correct to contend that the provisions of the
Limitation Act would have no application at all in the event the
transaction is held to be void but for the property transfer is
prohibited by law and in such event to say no adverse possession
that can be claimed in respect of such property as answered supra.
Even from Vishwanath Bapurao Sabale Supra of relationship
between the parties is also one of the important considerations in
considering the claim of title by adverse possession with pleading
and proof of animus possidendi with peaceful, open and
continuous possession to constitute any adverse possession, same
was also laid down way back in Puttathayamma vs.
Rathanarajiah ; however, from the facts proved supra, there is
nothing to say the possession is permissive or otherwise and not
adverse possession, for the reason the Physical fact of exclusive
possession and the animus possidendi to hold as of right by P in
exclusion of the actual owner G over and beyond statutory period
is made out which extinguishes the right and title of G, even the
Gift unregd. Not conveyed or conferred right or title, suffice
therefrom to count adverse possession. The very possession under
invalid document empowers to claim adverse possession for not a
case of the land is unalienable to say adverse possession concept
has no application. The trial Court in fact relied up on the
expression of the Patna High Court in Sm.Kheni Mahatani Vs.
Charan Napit saying under unregistered sale deed which is
inadmissible in proving title, nevertheless it could be referred to as
explaining the nature and character of possession thereof held by
the party and from the transfer effected in violation of the law, the
transferee would be deemed to be in adverse possession ever since
the date of the transfer. For that conclusion, the learned Single
Judge of the Patna High Court referred several earlier expressions
of the Calcutta High Court, Patna High Court, Allahabad High
Court and of the expression of the Privy Council in Rattan v,
Parma Nand saying unregistered documents are admissible to
show nature of possession as a collateral purpose and so far as the
unregistered sale deed not admissible to prove title but explaining
character of possession mainly placed reliance on the expression of
the Privy Council in N.Varada Pillai Vs. Jeevarathnammal
wherein it was held that gift though invalid as not being made by a
registered document could be looked into as explaining the nature
and character of possession thenceforth. In fact, said Privy Council
expression arising out of Madras High Courts judgment is a short
and crisp of a Four-Judges Bench in Varada Pillai (7 supra) in
relating to the unregistered gift where under donee enters in
possession and holding it for over 12 years held perfected title by
adverse possession, saying when the donor did not effect a
registered gift deed but allowed donee to enter into possession of
the gifted property and the donee thus remained in possession for
over 12 years, and his title became perfected as against the donor
and his heirs. It was also observed in this regard that the gift must
be a registered one under Section 123 of the Transfer of Property
Act and under Section 91 of the Evidence Act the recitals be used
as evidence of a gift having been made. But, the defendants case is
that Doraiswamy although may have acquired no legal title under
said gift transaction, in fact, took possession of the property when
it was transferred in her name and retained such possession until
her death in December, 1911 and after which it passed to the
defendant as her successor and accordingly the plaintiffs claim is
barred by upwards of 12 years adverse possession and the High
Court upheld the contention in arriving a right conclusion. Bondar
Singh supra is also a similar case based on an unregistered sale
deed, even not admissible in evidence, it can be looked into for
collateral purpose, such as, to see nature of possession of the
party over the property and the party claiming title over the land
by adverse possession since in possession of the land by virtue of
the unregistered and unstamped sale deed executed in their favour
by the predecessors in interest of the other party who are while
admitting the possession claims as trespasser and the plaintiffs
possession for last 26 years proved and the claim of the defendant
regarding taking over of possession from the plaintiff when found
to be false, from plaintiff in hostile and continuous possession
thereby held proved prescriptive right perfected by adverse
possession. Similar are the expressions even earlier saying where
no arrangement proved to show possession permissive and not
adverse, the possession is adverse from not otherwise vide
Mudragada Satyanarayana V. Jammi Veerraju and if in
possession under invalid document by virtue of which the
transferee gets no title or right, his possession is adverse to the
transferor to count for adverse possession as person in possession
claiming right of his own against the real owner under invalid
document is tantamount to denial of title vide, Bharit V The
Hon'Ble Board Of Revenue following the apex Courts
expression in State of West Bengal v. Dalhousie Institute
Society , where it was held that a person in possession under an
invalid grant acquired title by adverse possession and for that
referred the earlier expression of the apex Court in Collector of
Bombay v. Municipal Corporation of the City of Bombay
where the Court observed:
"......... the position of the respondent Corporation and its
predecessor in title was that of a person having no legal title but
nevertheless holding possession of the land under colour of an
invalid grant of the land in perpetuity and free from rent for the
purpose of a market. Such possession not being referable to any
legal title it was prima facie adverse to the legal title of the
Government as owner of the land from the very moment the
predecessor in title of the respondent Corporation took possession
of the land under the invalid grant.
44) Having regard to the above, when P perfected title by
adverse possession from his open, peaceful and uninterrupted
possession in his own way of enjoyment and not on behalf of G the
original owner under the void gift, right from said un-registered gift
deed dated 21.02.1966 (Ex.B-2) the plaintiffs suit for declaration
which is beyond three years barred by law under Article 58 of the
Limitation Act, though otherwise maintainable for recovery of
possession under Article 65 of the Act, since the right and title of G
since extinguished and right by adverse possession created in
favour of P, G is not entitled to the suit reliefs and thereby, the
trial Court when dismissed the suit, for this Court while sitting in
appeal there is nothing to interfere.
45) In the result, the appeal is dismissed, as the dismissal
decree and judgment of the trial Court is otherwise sustainable for
nothing to interfere. No order as to costs. Miscellaneous petitions
pending, if any, shall stand closed.
________________________________
Dr.Justice B.Siva Sankara Rao
Dt. .02.2016
