suit for declaration of her title over plaint schedule property, and also for possession of the same from the appellants/defendants. “Whether the plaintiff was not in possession of plaint schedule site prior to granting of patta to the 2nd defendant”?

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE FIFTH DAY OF DECEMBER

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B SYAMSUNDER

SECOND APPEAL NO: 255 OF 2000

Between:

1. K.VEDAVATHI & 2 OTHERS -

...PETITIONER(S)

AND:

1. V.CHENCHAMMA & 2 OTHERS -

...RESPONDENTS

Counsel for the Petitioner(s): M RAVINDRANATH REDDY

Counsel for the Respondents: M P CHANDRAMOULI

The Court made the following: ORDER

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 S.A.No.255 of 2000

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

S.A.No.255 OF 2000

Between:

1.Konduru Vedavathi, W/o.Venkatarami Reddy,

 50 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

2.Konduru Nagarathnamma (Died)

3.Konduru Krishnavenamma, D/o.Venkatarami Reddy,

 28 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

4.K.Radha Reddy, S/o.Venkatarami Reddy,

 65 years, R/o.Kovvur, Nellore District.

5.K.Srinivasulu Reddy S/o.Venkatarami Reddy,

 62 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

6.Smt K.Bhanumathamma, W/o.Bhasker Reddy,

 54 years, R/o.Attapalem, Naidupet,

 Nellore District.

7.K.Narayan Reddy, S/o.Venkatarami Reddy,

 52 years, R/o.Naidupet, Nellore District.

8.Smt Y.Sada Lakshmi, W/o.Y.Gopal Reddy,

 48 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

(Appellant Nos.4 to 8 are brought on record as L.Rs of the deceased

appellant No.2, vide Court Order, dated 26.07.2016 in SAMP No.280

of 2016)

 ….Appellants/Defendants.

 Versus

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 S.A.No.255 of 2000

1.Volipi Chenchamma, W/o.V.Venkata Ramanaiah,

 31 years, Coolie, R/o.Chendodu village, Kota mandal,

 Nellore District.

….Respondent/Plaintiff.

2.The State of Andhra Pradesh,

 Rep.by the District Collector,

 Nellore District.

3.The Mandal Revenue Officer, Kota.

(2nd and 3rd respondents are not necessary)

….Respondents/Defendants.

DATE OF JUDGMENT PRONOUNCED: 05.12.2023

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 S.A.No.255 of 2000

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

1. Whether Reporters of Local Newspapers

 may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Judgment? Yes/No

________________________

BANDARU SYAMSUNDER, J

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 S.A.No.255 of 2000

* HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

+ S.A.No.255 OF 2000

% Dated 05.12.2023

# Between:

1.Konduru Vedavathi, W/o.Venkatarami Reddy,

 50 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

2.Konduru Nagarathnamma (Died)

3.Konduru Krishnavenamma, D/o.Venkatarami Reddy,

 28 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

4.K.Radha Reddy, S/o.Venkatarami Reddy,

 65 years, R/o.Kovvur, Nellore District.

5.K.Srinivasulu Reddy S/o.Venkatarami Reddy,

 62 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

6.Smt K.Bhanumathamma, W/o.Bhasker Reddy,

 54 years, R/o.Attapalem, Naidupet,

 Nellore District.

7.K.Narayan Reddy, S/o.Venkatarami Reddy,

 52 years, R/o.Naidupet, Nellore District.

8.Smt Y.Sada Lakshmi, W/o.Y.Gopal Reddy,

 48 years, R/o.Chendodu village, Kota mandal,

 Nellore District.

(Appellant Nos.4 to 8 are brought on record as L.Rs of the deceased

appellant No.2, vide Court Order, dated 26.07.2016 in SAMP No.280

of 2016)

 ….Appellants/Defendants.

 Versus

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 S.A.No.255 of 2000

1.Volipi Chenchamma, W/o.V.Venkata Ramanaiah,

 31 years, Coolie, R/o.Chendodu village, Kota mandal,

 Nellore District.

….Respondent/Plaintiff.

2.The State of Andhra Pradesh,

 Rep.by the District Collector,

 Nellore District.

3.The Mandal Revenue Officer, Kota.

(2nd and 3rd respondents are not necessary)

….Respondents/Defendants.

! Counsel for the Appellants : Sri M.Ravindra Nath Reddy

^ Counsel for the

 Respondent : Sri M.P.Chandramouli

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 S.A.No.255 of 2000

< Gist:

> Head Note:

? Cases referred:

1. C.A.No.Nil/2022, dt.22.09.2022

(Arising out of S.L.P.(C) No.8736/2016)

2. C.A.No.3142/2010, dt.09.08.2023 (SC)

This Court made the following:

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 S.A.No.255 of 2000

HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

SECOND APPEAL NO.255 of 2000

JUDGMENT:

The defendant Nos.1 to 3 in O.S.No.159 of 1988 on the

file of District Munsif, Kota of Nellore District are the

appellants. The 2nd appellant died, and then the appellant

Nos.4 to 8 brought on record as legal representatives of the

deceased-2

nd appellant. The 1st respondent is the plaintiff in

the suit. Originally, the suit was instituted by the 1st

respondent/plaintiff against the appellant Nos.1 to 3 for

declaration of her title over plaint schedule property, and also

for possession of the same from the appellants/defendants.

2. The appellant Nos.1 to 3, 2nd respondent, 3rd respondent

and the 1st respondent hereinafter referred to as defendant

Nos.1 to 5 and plaintiff as arrayed before the trial Court.

3. The plaintiff instituted the suit against the defendant

Nos.1 to 5 for declaration of her title over plaint schedule

property, and also for possession. The plaint schedule property

as shown in the plaint, which reads as under:

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 S.A.No.255 of 2000

SCHEDULE

Nellore District Registration – Kota – Sub-Registration

house site of 30 ankanams with 3 ankanams, thatched house

in Chendodu village, Kota mandal, Nellore District within the

following boundaries:

East : Garden land of Vasudevarao;

West : House of Malli Sundaraiah;

South : Lane leading to plaintiff’s house to some

 extent and house of Alla Bhakshu;

North : Garden land of Ogilli Seetharamaiah.

Market value Rs.1,250/-.

It is the contention of the plaintiff that the plaint

schedule property occupied by her long back, which is a

Gramakantam site. The plaintiff submits that prior to that her

father was in occupation of the same, and in the year 1979

she constructed 3 ankanams of thatched house in that site,

and she had been in possession and enjoyment of the same.

The plaintiff submits that in the year 1981, the sons of the 2nd

defendant, and brothers of 1st and 2nd defendants by name

Mr.Dhananjaya Reddy and Mr.Narayana Reddy with active

support of the then Revenue Minister tried to occupy the plaint

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 S.A.No.255 of 2000

schedule property accompanied by the Taluk Surveyor, and

then she filed suit before the District Munsif Court, Gudur in

OS No.107 of 1981 to protect her possession, which was

decreed on 02.11.1981 restraining the defendants therein and

the Government to interfere with her possession and

enjoyment of the plaint schedule property. It is also the

contention of the plaintiff that when herself and her family

members along with her father went to her relatives house in

the first week of January, 1988, in her absence, the

defendants with the active support of Mr.Konduru Narayana

Reddy and Mr.Dananjaya Reddy entered into the plaint

schedule site and thrown-out her articles in front of her

father’s house, which the plaintiff questioned the defendants

about their high-handed behaviour, but the defendants gave

an adamant reply and refused to vacate the house taking

advantage of her helpless condition, due to that she got issued

legal notice, dated 11.06.1988, who gave reply with false

allegations. Hence, the plaintiff filed the suit for declaration of

her title and for recovery of possession from the defendant

Nos.1 to 3.

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 S.A.No.255 of 2000

4. The 3

rd defendant filed written statement resisting the

claim of the plaintiff, which also adopted by the defendant

Nos.1 and 2. It is the contention of the 3rd defendant that they

are not aware of the previous suit filed by the plaintiff against

Mr.Dananjaya Reddy and Mr.Narayana Reddy. She also

submits that the 2nd defendant is in possession and enjoyment

of house site since long time, due to that on 25.04.1981 the

Government granted patta for the site to an extent of Ac.0.6

1/3 cents equivalent to 38 ankanams, which house plot is

described as plot No.16B and Block No.155 under patta

bearing No.RCA 5/245/75, and thereafter the 2nd defendant

constructed a thatched house, wherein all her family members

living, but due to misunderstandings between the family of the

plaintiff and her family, the plaintiff filed the suit with malafide

intention to grab the property. She prays to dismiss the suit.

5. The trial Court at the time of pronouncing Judgment felt

that the Government is a proper and necessary party to decide

the actual question involved in the suit with regard to granting

of patta in favour of the 2nd defendant, directed the plaintiff to

implead the Government also as party to the suit, and

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 S.A.No.255 of 2000

thereafter the plaintiff added the defendant Nos.4 and 5 as

defendants in the suit.

6. The 5th defendant/Mandal Revenue Officer filed written

statement, which adopted by the 4th defendant by filing a

memo. It is the contention of the 5th defendant/Mandal

Revenue Officer that the plaint schedule site is a

Gramakantam site, which was not in occupation of any person

prior to granting of patta in favour of the 2nd defendant. They

submit that prior to granting of patta to the 2nd defendant, the

Taluk Surveyor measured the extent of the site, prepared a

plan and submitted the report to the Tahsildar, Gudur, and

after considering the actual possession of the sit and report of

the Revenue Inspector and Taluk Surveyor, the then Tahsildar,

Gudur issued patta on 25.04.1981 in favour of the 2nd

defendant, wherein she constructed a thatched house and

residing therein. They categorically stated that the plaintiff is

no way concerned with the said site and they also pray to

dismiss the suit.

7. The trial Court basing on the above pleadings, settled the

following issues and additional issue for trial:-

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 S.A.No.255 of 2000

1. “Whether the plaintiff is entitled to a declaration as

prayed for?

2. Whether the 2nd defendant has been granted patta by the

Revenue authorities?

3. Whether the plaintiff is entitled to recovery of possession

of the plaint schedule property?

4. To what relief”?

ADDITIONAL ISSUE:

“Whether the plaintiff was not in possession of plaint

schedule site prior to granting of patta to the 2nd

defendant”?

8. The parties went to trial. On behalf of the plaintiff,

PWs.1 to PW.6 were examined. Exs.A1 to A12 were marked.

On behalf of the defendants, DWs.1 to DW.7 were examined.

Exs.B1 to B16 were marked.

9. On appreciation of oral and documentary evidence, the

trial Court dismissed the suit filed by the plaintiff with an

observation that the plaintiff failed to prove her title over the

entire plaint schedule site to an extent of 38 ankanams as

claimed by her.

10. Aggrieved by the Judgment and Decree passed by the

trial Court, the plaintiff presented AS.No.9 of 1995 on the file

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 S.A.No.255 of 2000

of Additional Senior Civil Judge’s Court, Gudur, which was

allowed by the first Appellate Court, setting aside the

Judgment and Decree passed by the trial Court and decreed

the suit, and directed the defendants to deliver the possession

of the plaint schedule property to the plaintiff within three

months, on the ground that the plaintiff able to prove

possessory title.

11. In these circumstances, the present Second Appeal is

presented.

12. I have heard learned Counsel Mr.P.Rama Koteswara Rao,

representing on behalf of Mr.M.Ravindranath Reddy, learned

Counsel for the appellants through virtual hearing as well as

learned Counsel for the respondent. There is no representation

today for the respondent. The learned Counsel for the

respondent already submitted his arguments on previous

occasion.

13. The learned Counsel for the appellants would submit that

the trial Court rightly dismissed the suit, which was

erroneously decreed by the Appellate Court, though there is no

pleading and proof with regard to possessory title by the

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 S.A.No.255 of 2000

plaintiff. He would further submit that all Gramakantam sites

are vested with the Government, which has got authority to

issue pattas to landless poor persons, which also deposed by

the Mandal Revenue Officer, who was examined as DW.7 in

the suit. He relied on the following precedent law:

1) Banne Gandhi and others vs. District Collector,

Ranga Reddy District and others. 2007 SCC OnLine AP 136,

wherein the Hon’ble Single Judge of this Court while

considering the Writ Petition with regard to Gramakantam sites

held at Para No.7, which reads as under:

“7. A perusal of sub-section (1) of Section 58 of the Act would show

that only certain classes of lands described therein which are not

required by the Government for any specific purpose shall vest in

the Gram Panchayat. The village site poramboke/Grama Kantam

land is conspicuous by its absence in the category of lands

enumerated in sub-section (1) of Section 58 of the Act. Therefore,

Section 58(1) of the Act is not attracted. In an unreported

judgment, being W.P. No. 18865 of 2006, dated 25.9.2006, this

Court has considered this aspect having regard to the Sarpanch,

Polakala Gram Panchayat, Irala Mandal, Chittoor District v.

District Collector, Chittoor (supra), and also Board Standing

Order 15 of the Andhra Pradesh Board of Revenue Standing Orders.

This Court rejected a similar contention observing as under:

A bare perusal of Section 58 of the Act would show that

grazing grounds, threshing floors, burning and burial

grounds, cattle stands, carts tanks and topes at the disposal

of the Government vests in the Gram Panchayat. If the

Government requires these lands for any specific purpose,

sub-section (2) of Section 58 of the Act requires the

Government to direct that the poramboke land referred to

hereinabove is mentioned in Section 58(1) of the Act and

shall cease to vest in the Gram Panchayat. When only

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 S.A.No.255 of 2000

specific items of land find place in sub-section (1) of Section

58 of the Act, it is not possible to enlarge these items by

including the Government land classified as grama kantam

land. Learned Counsel for petitioner placed reliance on

judgment of this Court in Sarpanch, Polakala Gram

Panchayat, Irala Mandal, Chittoor District v. District

Collector, Chittoor. (supra). The judgment appears to

have been rendered per incuriam without noticing subsection (1) of Section 58 of the Act and there is no discussion

or reference to any precedent. Therefore, the judgment being

subsilentio is not binding precedent. Secondly under Paras 2

and 3 to BSO 15 of the Andhra Pradesh Board of Revenue

Standing Orders, village site poramboke land (grama natham

area/grama kantam land) always vests in the Government

and is intended for being allotted as house sites in future”.

2) Krishnamurthy S.Setlur (Dead) by LRs. vs.

O.V.Narasimha Setty and others. (2007) 3 Supreme Court

Cases 569, wherein the Hon’ble Apex Court held that in the

matter of adverse possession, the Courts have to find out the

plea taken by the plaintiff in the plaint. In the plaint, the

plaintiff who claims to be owner by adverse possession has to

plead actual possession. He has to plead the period and the

date from which he claims to be in possession. The plaintiff

has to plead and prove that his possession was continuous,

exclusive and undisturbed to the knowledge of the real owner

of the land. He has to show a hostile title. He has to

communicate his hostility to the real owner. None of these

aspects have been considered by the High Court in its

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 S.A.No.255 of 2000

impugned judgment. As stated above, the impugned judgment

is under Section 96 CPC, it is not a judgment under Section

100 CPC. As stated above, adverse possession or ouster is an

inference to be drawn from the facts proved that work is of the

first Appellate Court. (part of para 13)

3) G.Saraswathi and another vs. Rathinammal and

others. (2018) 3 Supreme Court Cases 340, wherein it is held

that while disposing of appeals, the Appellate Court has to

follow Order 41, Rule 31 of CPC by framing necessary points

and shall decide the same.

4) Corporation of City of Bangalore vs. Zulekha Bi and

others. (2008) 11 Supreme Court Cases 306, wherein it is

held that when suit is filed for declaration of title, it is for the

plaintiff to prove its title and possession by producing

document in their possession.

5) Union of India and others vs. Vasavi Cooperative

Housing Society Limited and others. (2014) 2 Supreme Court

Cases 269, wherein it is held by the Hon’ble Apex Court that

burden is on the plaintiff to establish its case, irrespective of

whether defendants prove their case or not.

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He prays to allow the Second Appeal.

14. The learned Counsel for the 1st respondent/plaintiff would

submit that the plaintiff occupied Gramakantam land, which is

not belong to the Government, which vested with the village,

due to that the Tahsildar has no authority to issue Ex.B1/patta

to the 2nd defendant. He would further submit that as per

Section 58 (1) of A.P.Panchayat Raj Act, the Tahsildar has no

right to grant patta in favour of the 2nd defendant, and the

evidence of the plaintiff’s witnesses coupled with documentary

evidence produced by the plaintiff proved her contention with

regard to long possession, which rightly considered by the First

Appellate Court. He prays to dismiss the Second Appeal.

15. This Second Appeal was admitted on the following

substantial questions of law, which are:

“1.Whether in the light of the Provisions of Order 41,

Rule 31 of CPC, Appellate Court can render a Judgment

without framing points for consideration (vide Judgment

Order 41, Rule 31, 1997 (3) ALT 266; 1999 (1) ALT 821;

1997 (2) ALT 785 and 1999 (2) ALT 256. Whether the

Provisions of Order 41, Rule 31 of CPC are mandatory

and hence, the Decree and Judgment of 1st Appellate

Court are not legal?

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2.Whether in a suit filed for declaration of title and

recovery of possession of which plaintiff has no title that

plaint schedule land belongs to Government, possession

cold be granted in favour of the plaintiff and admittedly

the land was gone to Government?

3.Whether the suit filed for declaration of title and

recovery of possession with respect to the Government

poramboke land, which is hit for not issuing notice under

Section 80 of CPC and hence the suit itself is not

maintainable”?

16. As per Section 100 of CPC, this Court can interfere with

the Judgment of the Appellate Court, if it is satisfied that case

involves a substantial question of law.

17. The Hon’ble Apex Court in Chandrabhan (Deceased)

Through LRs. And Others – Appellants vs. Saraswati and

Others – Respondent(s) in Civil Appeal No.NIL of 2022

(Arising out of S.L.P.(C) No.8736 of 2016) Judgment dated

22.09.2022, explained the scope of Section 100 of CPC and

laid down the principles relating to Section 100 of CPC at Para

No.33 of the Judgment, which reads as under:

"33. The principles relating to Section 100 of the CPC relevant for

this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a

document is question of fact. But the legal effect of the terms of a

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document is a question of law. Construction of a document

involving the application of any principle of law, is also a question of

law. Therefore, when there is a misconstruction of a document or

wrong application of a principle of law in constructing a document,

it gives rise to a question of law. (Emphasis supplied)

(ii) The High Court should be satisfied that the case involves

a substantial question of law, and not a mere question of law. A

question of law having a material bearing on the decision of the

case (that is, a question, answer to which effects the rights of

parties to the suit) will be a substantial question of law, if it is not

covered by any specific provisions of law or settled legal principle

emerging from binding precedents and involves a debatable legal

issue. A substantial question of law will also arise in a contrary

situation, where the legal position is clear, either on account of

express provisions of law or binding precedents, but the Court

below has decided the matter, either ignoring or acting contrary to

such legal principle. In the second type of cases, the substantial

question of law arises not because the law is still debatable, but

because the decision rendered on a material question, violates the

settled position of law.

(iii) The general rule is that the High Court will not interfere

with findings of facts arrived at by the Courts below. But it is not an

absolute rule. Some of the well-recognised exceptions are where (i)

the Courts below have ignored material evidence or acted on no

evidence; (ii) the Courts have drawn wrong inferences from proved

facts by applying law erroneously; or (iii) the Courts have wrongly

cast the burden of proof. When we refer to "decision based on no

evidence," it not only refers to cases where there is a total dearth

of evidence, but also refers to any case, where the evidence, taken

as a whole, is not reasonably capable of supporting the finding."

18. In the present case, the claim of the plaintiff is based on

possession who admittedly failed to plead adverse possession

in the plaint. When the plaintiff is claiming declaration of title

basing on her possession, she has to prove her possession for

a period of 30 years, as she is claiming adverse possession

over Gramakantam land, and she shall prove that her

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possession is hostile, open and uninterrupted. The Hon’ble

Apex Court in Government of Kerala and another. Appellants

vs. Joseph and others. Respondents in Civil Appeal No.3142

of 2010, Judgment dated 09.08.2023 extensively discussed

the ‘principles’ of adverse possession at Para Nos.20, 21, 21

(1) to 21 (8), which reads as under:

“20. The principle of adverse possession has been defined by the

Privy Council in Perry v. Clissold in the following terms:

“It cannot be disputed that a person in possession of land in

the assumed character of the owner and exercising

peaceably the ordinary rights of ownership has a perfectly

good title against all the world but the rightful owner. And if

the rightful owner does not come forward and assert his title

by the process of law within the period prescribed by the

provisions of the statute of Limitation applicable to the case,

his right is forever extinguished and the possessory owner

acquires an absolute title.”

21. Before proceeding to do so, it is essential to take note of the

law governing such a claim. After a perusal and consideration of

various judgments rendered by this Court, the following principles

can be observed:

21.1 Possession must be open, clear, continuous and hostile to the

claim or possession of the other party; all three classic

requirements must coexist- nec vi, i.e., adequate in continuity; nec

clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a

competitor, in denial of title and knowledge;

(a) In Radhamoni Debi v. Collector of Khulna, the Privy

Council held that-

“The possession required must be adequate in

continuity, in publicity, and in extent to show that it is

possession adverse to the competitor.”

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(b) Further, the Council Maharaja Sri Chandra Nandi v.

Baijnath Jugal Kishore observed-

“It is sufficient that the possession should be overt and

without any attempt at concealment, so that the

person against whom time is running ought, if he

exercises due vigilance, to be aware of what is

happening.”

(c) A Bench of three judges of this Court in Parsinni v.

Sukhi held that

“Party claiming adverse possession must prove that his

possession must be ‘nec vi, nec clam, nec precario’ i.e.

peaceful, open and continuous. The possession must

be adequate, in continuity, in publicity and in extent to

show that their possession is adverse to the true

owner.”

(d) In Karnataka Board of Wakf v. Govt. of India (twoJudge Bench) it was held:-

“It is a well-settled principle that a party claiming

adverse possession must prove that his possession is

“nec vi, nec clam, nec precario”, that is, peaceful, open

and continuous. The possession 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.”

This case was relied on in the case of M.Venkatesh v.

Bangalore Development Authority (three-Judge Bench),

Ravinder Kaur Grewal v. Manjit Kaur (three-Judge

Bench).

(e) This Court in a recent case of M Siddiq (D) through LRs

v. Mahant Suresh Das & Ors. (five-Judge Bench) reiterated

this principle as under –

“748. A person who sets up a plea of adverse

possession must establish both possession which is

peaceful, open and continuous - possession which

meets the requirement of being ‘nec vi nec claim and

nec precario’. To substantiate a plea of adverse

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possession, the character of the possession must be

adequate in continuity and in the public because the

possession has to be to the knowledge of the true

owner in order for it to be adverse. These

requirements have to be duly established first by

adequate pleadings and second by leading sufficient

evidence.”

21.2 The person claiming adverse possession must show clear and

cogent evidence substantiate such claim;

This Court in Thakur Kishan Singh v. Arvind Kumar (twoJudge Bench) held that –

“5. A possession of a co-owner or of a licensee or of an agent

or a permissive possession to become adverse must be

established by cogent and convincing evidence to show

hostile animus and possession adverse to the knowledge of

real owner. Mere possession for howsoever length of time

does not result in converting the permissive possession into

adverse possession…”

Reference may also be made to M. Siddiq (supra).

21.3 Mere possession over a property for a long period of time does

not grant the right of adverse possession on its own;

(a) In Gaya Prasad Dikshit v. Dr.Nirmal Chander and Anr.

(two-Judge Bench), this court observed-

“1… It is not merely unauthorised possession on termination

of his licence that enables the licensee to claim title by

adverse possession but there must be some overt act on the

part of the licensee to show that he is claiming adverse title.

It is possible that the licensor may not file an action for the

purpose of recovering possession of the premises from the

licensee after terminating his licence but that by itself cannot

enable the licensee to claim title by adverse possession.

There must be some overt act on the part of the licensee

indicating assertion of hostile title. Mere continuance of

unauthorised possession even for a period of more than 12

years is not enough.”

Reference may also be made to Arvind Kumar (supra);

Mallikarjunaiah v. Nanjaiah (two-Judge Bench); Uttam Chand

(supra).

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21.4 Such clear and continuous possession must be accompanied

by animus possidendi - the intention to possess or in other words,

the intention to dispossess the rightful owner; in Karnataka Board

of Wakf (supra) it was observed-

“…Physical fact of exclusive possession and the animus

possidendi to hold as owner in exclusion to the actual owner

are the most important factors that are to be accounted in

cases of this nature…”

(a) The case of Annakili v. A. Vedanayagam (two-Judge Bench)

also shed light on this principle as under -

“24. Claim by adverse possession has two elements: (1) the

possession of the defendant should become adverse to the

plaintiff; and (2) the defendant must continue to remain in

possession for a period of 12 years thereafter. Animus

possidendi as is well known is a requisite ingredient of

adverse possession. It is now a well-settled principle of law

that mere possession of the land would not ripen into

possessory title for the said purpose. Possessor must have

animus possidendi and hold the land adverse to the title of

the true owner. For the said purpose, not only animus

possidendi must be shown to exist, but the same must be

shown to exist at the commencement of the possession…”

(b) In Des Raj and Others v. Bhagat Ram (two-Judge Bench)

this Court observed –

“21. In a case of this nature, where long and continuous

possession of the plaintiff-respondent stands admitted, the

only question which arose for consideration by the courts

below was as to whether the plaintiff had been in possession

of the properties in hostile declaration of his title vis-a-vis his

co-owners and they were in know thereof.”

(c) This court in L.N. Aswathama v. P. Prakash (two- Judge

Bench) had observed that permissive possession or possession in

the absence of Animus possidendi would not constitute the claim of

adverse possession.

(d) It was also held in the case of Chatti Konati Rao v. Palle

Venkata Subba Rao (two-Judge Bench) –

“15. Animus possidendi as is well known is a requisite

ingredient of adverse possession. Mere possession does not

ripen into possessory title until the possessor holds the

property adverse to the title of the true owner for the said

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purpose. The person who claims adverse possession is

required to establish the date on which he came in

possession, nature of possession, the factum of possession,

knowledge to the true owner, duration of possession and that

possession was open and undisturbed…”

 (Emphasis supplied)

Referring to the above judgement Subha Rao (supra) this

Court has reiterated the cardinality of the presence of Animus

possidendi in a case concerning adverse possession in Brijesh

Kumar & Anr. v. Shardabai (dead) by LRs.(two- Judge Bench).

21.5 Such a plea is available not only as a defence when title is

questioned, but is also available as a claim to a person who has

perfected his title;

The prior position of law as set out in Gurudwara Sahab v.

Gram Panchayat Village Sirthala (two-Judge Bench) was that

the plea of adverse possession can be used only as a shield by the

defendant and not as a sword by the plaintiff. However, the position

was changed later by the decision of this Hon’ble Court in the case

of Ravinder Kaur (supra) had held that - “…Title or interest is

acquired it can be used as a sword by the plaintiff as well as a

shield by the defendant within ken of Article 65 of the Act and any

person who has perfected title by way of adverse possession, can

file a suit for restoration of possession in case of dispossession…”

The position in Ravinder Kaur (supra) was followed in

Narasamma & Ors. v. A. Krishnappa (Dead) Through LRs.

(three-Judge Bench).

21.6 Mere passing of an ejectment order does not cause brake in

possession neither causes his dispossession;

In Balkrishna v. Satyaprakash (two-Judge Bench) this

Court held:

“…Mere passing of an order of ejectment against a person

claiming to be in adverse possession neither causes his

dispossession nor discontinuation of his possession which

alone breaks the continuity of possession.”

21.7 When the land subject of proceedings wherein adverse

possession has been claimed, belongs to the Government, the Court

is duty-bound to act with greater seriousness, effectiveness, care

and circumspection as it may lead to Destruction of a right/title of

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the State to immovable property. In State of Rajasthan v.

Harphool Singh (two-Judge Bench) it was held:

“12. So far as the question of perfection of title by adverse

possession and that too in respect of public property is

concerned, the question requires to be considered more

seriously and effectively for the reason that it ultimately involves

destruction of right/title of the State to immovable property and

conferring upon a third-party encroacher title where he had

none.”

Further, in Mandal Revenue Officer v. Goundla Venkaiah

(two-Judge Bench) it was stated:

“…It is our considered view that where an encroacher, illegal

occupant or land grabber of public property raises a plea that

he has perfected title by adverse possession, the court is

duty-bound to act with greater seriousness, care and

circumspection. Any laxity in this regard may result in

destruction of right/title of the State to immovable property

and give an upper hand to the encroachers, unauthorized

occupants or land grabbers.”

21.8 A plea of adverse possession must be pleaded with proper

particulars, such as, when the possession became adverse. The

court is not to travel beyond pleading to give any relief, in other

words, the plea must stand on its own two feet. This Court has held

this in the case of V. Rajeshwari v. T.C. Saravanabava(twoJudge Bench):

“…A plea not properly raised in the pleadings or in issues at

the stage of the trial, would not be permitted to be raised for

the first time at the stage of appeal…”

It has also been held in the case of State of Uttrakhand v.

Mandir Sri Laxman Sidh Maharaj (two-Judge Bench):

“…The courts below also should have seen that courts can

grant only that relief which is claimed by the plaintiff in the

plaint and such relief can be granted only on the pleadings

but not beyond it. In other words, courts cannot travel

beyond the pleadings for granting any relief…”

Mandir Sri Laxman Sidh Maharaj (supra) was relied on in

Dharampal (Dead) v. Punjab Wakf Board (two-Judge Bench) on

the same principle”.

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19. A perusal of plaint, it is nowhere mentioned by the

plaintiff that she acquired the property by adverse possession

in respect of Gramakantam land and her only contention in the

plaint is that she occupied the plaint schedule property long

back, which is Gramakantam site and prior to that also her

father was in occupation of the same. It is nowhere explained

when her father occupied the plaint schedule property. She

also pleaded that in the year 1979 she constructed 3

ankanams of thatched house in that site, but rightly discussed

by the learned trial Judge that house tax receipts, marked as

Exs.A7 to A9 are not disclosing the door number of the house

and assessment number or any other particulars in order to

establish that tax was collected for the house existing in the

plaint schedule property. A perusal of Judgment of the

Appellate Court, which shows that from Para Nos.2 to 9, the

learned Appellate Judge re-produced the Judgment of the trial

Court, but failed to frame any points as required under Order

41, Rule 31 of CPC, which reads as under:

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“31. Contents, date and signature of judgment.-

The judgment of the Appellate Court shall be in writing

and shall state—

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or

varied, the relief to which the appellant is entitled, and

shall at the time that it is pronounced be signed and

dated by the Judge or by the Judges concurring there

in”.

20. The first Appellate Court’s Judgment should show

application of mind and reflect the reasons on the basis of

which it agrees or disagrees with the trial Court. It is the duty

of the first Appellate Court to appreciate the entire evidence

and arrive at its own independent conclusion for the reasons

assigned, either of affirmance or difference. So, the Appellate

Court must address itself to the dispute and so frame the

points for consideration, which is mandatory, which failed to

follow by the learned Appellate Judge. Though, the plaintiff has

not specifically pleaded in her plaint that she acquired title by

adverse possession, the Appellate Judge declared the title of

the plaintiff by observing that the plaintiff filed the suit on the

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basis of possessory title and proved her possession by filing

Ex.A1, which is certified copy of Decree in previous suit, and

failed to consider Ex.B1/patta admittedly granted to the 2nd

defendant, which deposed by DW.7/Mandal Revenue Officer.

As per the ratio laid by the Hon’ble Single Judge of this Court

in Banne Gandhi and others case referred supra, who

interpreted Section 58 (1) of AP.Panchayat Raj Act and

categorically held that “as per Paras 2 and 3 to BSO 15 of the

Andhra Pradesh Board of Revenue Standing Orders, village site

poramboke land (Gramanatham area/Gramakantam land)

always vests in the Government and is intended for being

allotted as house sites in future”. Therefore, it cannot be said

that the 5th defendant has no authority to issue Ex.B1, though

DW.7.Mandal Revenue Officer has deposed that Ex.B1 was

stayed, that itself is not a ground to grant the relief of

declaration of title and possession in favour of the plaintiff,

when she failed to plead and prove possessory title in respect

of plaint schedule property.

21. The learned trial Judge elaborately discussed the oral

evidence available on record and documents produced by the

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trial Court came to right conclusion that the plaintiff failed to

prove her title over plaint schedule property before alleged

dispossession. There is no dispute that Ex.B1/patta was

granted in favour of the 2nd defendant in respect of plaint

schedule property, and thereafter the 2nd defendant along with

her family members have been residing in the plaint schedule

property and they also filed Exs.B6 to B15/electricity

consumption charges in respect of plaint schedule property. As

rightly argued by the learned Counsel for the appellants/

defendant Nos.1 to 3 that in a suit for declaration of title and

recovery of possession, the plaintiff has to succeed on its own

contention, irrespective of defendants’ proving their case or

not. When the plaintiff is claiming possessory title over the

plaint schedule property, she has to specifically plead and

prove the same, which failed by the plaintiff as seen from the

averments in the plaint and evidence, which failed to consider

by the learned Appellate Judge.

22. Therefore, this Court is of an opinion that the Judgment

of the first Appellate Court, declaring possessory title of the

plaintiff and granting the relief of recovery of possession is

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erroneous. Even when the plaintiff filed the suit in respect of

Gramakantam site, she failed to add the Government as one of

the defendants in the suit, which noticed by the learned trial

Judge and rightly directed the plaintiff to add the Government

as one of the defendants, who supported the contention of the

defendant Nos.1 to 3. As the Government is added as one of

the defendants in the suit by the plaintiff after filing the suit

before pronouncing the Judgment, there is no requirement of

issuing Section 80 of CPC notice, as no relief is claimed by the

plaintiff in the plaint at the first instance, and the relief is

claimed against the defendant Nos.1 to 3 only.

23. The substantial questions of law 1, 2 framed by this

Court for consideration are answered in favour of the

appellants/defendants.

24. In the result, this Second Appeal is allowed. The

Judgment and Decree in AS No.9 of 1995 are set aside.

Consequently, OS No.159 of 1988 on the file of District Munsif,

Kota is hereby dismissed. There shall be no order as to costs.

Consequently, pending miscellaneous petitions, if any, shall

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stand closed. The Interim Orders granted earlier, if any, shall

stand vacated.

___________________________

JUSTICE BANDARU SYAMSUNDER

Dt:05.12.2023.

Bsv

LR Copy.

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HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

S.A.No.255 of 2000

Date: 05.12.2023

Bsv

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