HC - It is also well-recognized proposition of law that mere possession how long does not necessarily mean that it is adverse to the true owner and the possession can never be considered adverse if it is referable to a lawful title


IN THE HIGH COURT OF JUDICIATURE OF ANDHRA PRADESH
AT HYDERABAD

THE HONOURABLE SRI JUSTICE N.V. RAMANA

SECOND APPEAL No.  884 of 2010


JUDGMENT:


          Appellant herein is the 1st defendant in the suit in O.S. No. 148 of 1990 filed by the 1st respondent herein (since died) on the file of the Principal District Munsif, Hyderabad East and North, Ranga Reddy District, seeking to declare the plaintiff as owner of the suit schedule property, to evict defendants 1 and 2 from the suit schedule property, to direct the Mandal Revenue Officer, Hayathnagar, not to register the documents submitted by defendants 1 and 2 and to award mesne profits at the rate of Rs.5,000/- per annum till possession of the suit schedule property is delivered.   The trial Court dismissed the said suit, by judgment and decree dated 11.08.1997.  Assailing the same, the plaintiff preferred an appeal in A.S. No.111 of 1997 before the III Additional District Judge, Ranga Reddy District, and the learned appellate Judge has allowed the said appeal, by setting aside the judgment and decree of the trial Court, and decreed the suit with the terms indicated in the judgment and decree dated 27.04.2004.  Aggrieved by the same, the present second appeal is filed.

          At the outset, it is to be noted that during the pendency of the appeal, the plaintiff, who is the 1st respondent herein, died and his legal representatives were brought on record as respondents 4 and 5, by order of this Court dated 19.07.2010 passed in S.A.M.P. No. 2382 of 2008.
         
The parties hereinafter will be referred to as arrayed in the suit, for the sake of convenience.
         
The case of the plaintiff, 1st respondent herein, before the trial Court, in brief, is as follows:
The plaintiff is the absolute owner and possessor of the suit schedule property in Sy.No.105 admeasuring Ac. 7.30 gts. of Munganur Village.  The plaintiff’s father acquired the suit property in the name of the plaintiff.   Later the plaintiff shifted to Hayathnagar when he was aged about 15 years and from there he had been to Hyderabad and under the care and custody of one Medala Babaiah.  The suit schedule property was orally leased out to the father of defendants 1 and 2 for an annual rent of Rs.100/- and 25 pots of Jawar. After the death of their father and at the request of defendants 1 and 2, the suit schedule property was leased out to them on the same terms and as such they were put in permissive possession of the property.   While so, in the month of March 1989, the plaintiff demanded defendants 1 and 2 to vacate the suit land and defendants 1 and 2 also agreed to vacate the same in the monthly of July 1989.  But, they did not vacate the suit land as agreed and instead, they have applied to defendant No.3- Mandal Revenue Officer, Hayathnagar Mandal, for mutation of their names in the revenue records as pattadars of the suit property.  When a notice was issued by defendant No.3 in the month of October 1989, the plaintiff enquired and came to know that defendants 1 and 2, with the help of fabricated and bogus documents, are claiming title to the suit property, by virtue of an unregistered document said to have been executed by one Y. Sathi Reddy and two others, who are no way concerned with the suit property, and they filed an application before defendant No.3 to get a registered sale deed in their favour, on the basis of that unregistered document.   The said documents relied on by defendants 1 and 2 are not binding on the plaintiff, since the said Y. Sathi Reddy and others have no right in the suit land.   Further, the tenancy being terminated in the month of March, 1989, continuation of defendants 1 and 2 in the suit land would amount to trespass and as such the plaintiff is entitled to mesne profits at the rate of Rs.5,000/- per annum. 

 Resisting the claim of the plaintiff, defendants 1 and 2 filed written statement and they denied that the father of the plaintiff was in possession of the suit land and after his death the plaintiff became the absolute owner of the same.   Their stand, in brief, is as follows:

 The father of defendants 1 and 2 obtained the lands in S.No. 97, 98, 99 and 105 from Medala Babaiah, on lease, in the year 1953-54, and the lease continued till 1956.  Thereafter, the plaintiff sold the land through Medala Babaiah to one E. Sathi Reddy, China Yadi Reddy, Chinna Advi Reddy, Pedda Advi Reddy, under an unregistered sale deed dated 02.12.1956, without informing the father of defendants 1 and 2.  Thereafter, disputes arose between those purchasers and the father of defendants 1 and 2 and at the intervention of elders, it was agreed that the father of defendants 1 and 2 shall continue in S.No. 105 and the purchasers have to take the lands in S.Nos. 97, 98 and 99.   The said purchasers executed agreement in favour of father of defendants 1 and 2, agreeing to execute registered sale deed in respect of the suit land.  Since then, the father of defendants continued in possession of the suit land. Defendants 1 and 2 deny that their father was the tenant of the suit land after him, they have been continuing in possession of the same as tenants.  The plaintiff estopped his rights to suit land after execution of unregistered sale deed dated 02.12.1956 in favour of E. Sathi Reddy and others.  The plaintiff never approached them to vacate the suit land.    They, being the purchasers, are in continuous possession of the suit land for more than 35 years and applied to defendant No.3 for regularization of the sale deed under A.P. Rights in Land and Pattadar Passbooks Act, 1971 (for short ‘the Act’).   The proceedings before defendant No.3 are still pending and they cannot be challenged in this suit and that no suit shall lie against the Government under Section 8 of the Act.  The suit is bad for non-joinder of necessary parties i.e. the vendor of defendants 1 and 2 and it is also barred by limitation, as defendants 1 and 2 are continuing in possession of the suit land since 1957, adverse to the interests of the plaintiff, and that they have established their right of ownership by paying land revenue for the suit land.  The plaintiff is not entitled for mesne profits.   There is no cause of action for the suit and the plaintiff undervalued the suit.  Thus, defendants 1 and 2 prayed for dismissal of the suit with costs.

          On the basis of the above pleadings of the respective parties, the trial Court framed the following issues for trial:

1.                 Whether the Court has no jurisdiction to try the case?
2.                 Whether the suit is barred by limitation?
3.                 Whether the suit is bad for non-joinder of necessary parties to the suit?
4.                 Whether the plaintiff is entitled for declaration as prayed for?
5.                 Whether the plaintiff is entitled to evict D-1 and D-2 from suit property?
6.                 Whether the plaintiff is entitled for direction against D-3?
7.                 Whether the plaintiff is entitled for mesne profits?
8.                 To what relief?


Before the trial Court, on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A1 to A24 were marked.   On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B1 to B46 were marked and Exs.X1 to X3 were also marked.

So far as issue No.1 is concerned, the trial Court held that during pendency of the suit, the proceedings before M.R.O. were dismissed and the appeal filed before the District Collector was also dismissed and in view of the same the plaintiff did not press the relief of direction to defendant No.3 not to proceed with registration of documents submitted by defendants 1 and 2.  Even otherwise, it was held, the suit against defendant No.3 is not maintainable, in view of specific provisions of Section 8 of the Act and accordingly answered issue No.1 against the plaintiff.   So far as issue No.2 is concerned, the trial Court held that there is no evidence to show that the defendants are tenants of the suit land and the plaintiff failed to prove his possession of the suit land at any time within 12 years prior to the suit, that Ex.B29 pattadar passbook, which was issued in the year 1972, categorically reveals that defendants 1 and 2 are the purchasers of suit land, but not tenants, and the plaintiff has to file the suit within 12 years from 1972, in which year Ex.B29 pattadar passbook was issued, whereas he filed the suit in 1990, and thus the suit is barred by limitation, in view of Article 65 of the Limitation Act.    So far as issue No.3 is concerned, the trial Court held that when defendants 1 and 2 are tracing their title through Elimeti Sathi Reddy and others, who are in turn claiming title through plaintiff, the said Elimeti Sathi Reddy and others are proper and necessary parties to the suit and the suit is bad for non-joinder of necessary parties, and accordingly answered the issue against the plaintiff.    The trial Court, further, having appreciated the oral and documentary evidence on record, held that the plaintiff is not entitled to any of the reliefs prayed for and accordingly answered the issues 4 to 7 against the plaintiff and, hence, dismissed the suit with costs.

Assailing the dismissal of suit with costs, the plaintiff preferred appeal before the lower appellate Court i.e. III Additional District Judge, Ranga Reddy District, in A.S. No.111 of 1997, and the following points were framed for consideration by the lower appellate Court:

1)                Whether the appellant is entitled for declaration of title to the suit schedule land?
2)                Whether the appellant is entitled for recovery of possession?
3)                Whether the judgment and decree passed by trial Court suffers from any illegalities or infirmities and liable to be set aside?
4)                To what relief?


Having framed the above points for consideration and having appreciated the oral and documentary evidence on record and taking into consideration the settled legal principles, the lower appellate Court has allowed the appeal and set aside the judgment of the trial Court with costs throughout.  Aggrieved by the same, the present second appeal is preferred.

The substantial questions of law that arise for consideration before this Court are as follows:

1.                 Whether the suit is barred by limitation in view of Article 65 of the Limitation Act?

2.                 Whether the suit is maintainable for non-joinder of proper and necessary parties?


It is well settled that the High Court, in a Second Appeal, can interfere with the findings of the lower Court, if the findings are based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence, or the appellate Court wrongly casts the burden of proof.   A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in Second Appeal.  This Court, exercising power under Section 100 of the Code of Civil Procedure, cannot go into the question of finding of fact, but at the same time it is settled principal of law that in a case where the finding of fact had been arrived at upon taking into consideration inadmissible evidence and based on presumptions which could not have been raised, the High Court’s jurisdiction to interfere with a finding of fact may not be limited and it can interfere with the judgments of the Courts below by treating such anomaly as a substantial question of law, as held by the Supreme Court in U. R. Virupakshappa v. Sarvamangala[1].    But however, the High Court, under Section 100 of C.P.C., cannot act as a lower appellate Court and re-appreciate the findings of fact recorded by the lower Court.  As the case on hand is the one where the lower appellate Court reversed the judgment of the trial Court, it is to be considered whether the findings arrived by the lower appellate Court are perverse and they are not based on material evidence on record and whether any substantial question of law arises for consideration in the second appeal.

In the present case, the plaintiff relied on the documentary evidence of Exs.A1 to A24 and oral evidence of P.Ws. 1 to 4 to prove his case.   Exs.A1 and A2 are the orders passed by the Revenue authorities on the application filed by the defendants for issuance of pattadar books.  The revenue authorities have held that plaintiff is the owner of the property and the defendants are not entitled for mutation and have got nothing to do with the suit schedule property.   Exs. A3 to A14 are the pahanies and cist receipts.  All these documents clearly show that the plaintiff is the owner of the property.  Exs. A15 to A24 are the contradictions from the previous statements of D.W.3 before the M.R.O. marked during cross-examination of D.W.3 in the suit.   D.W.3 namely        Ch. Sami Reddy, according to the defendants, is the person who purchased the properties from the father of the plaintiff along with other persons. The evidence of D.W.3 was referred to at paragraph 24 of the lower appellate Court’s judgment, which would show that he deposed that Raavi baavi chelka was given to the father of the defendants, whereas it is the evidence of D.W.2 and D.W.4 that suit schedule property is known as madibanda chelka and the same is given to the defendants’ father and Raavi baavi chelka is given to the other purchasers.  D.W.3 did not speak about Ex.X1 and Ex.B1 in his evidence.  D.W.3, before the M.R.O., has stated that the land in Sy.No.105 of an extent of Ac.7.30 gts. was in his name, since about 40  years as pattedar and he sold the said lands to the father of the defendant for Rs.2,000/- and Mallaiah is cultivating the same.  This evidence of D.W.3 is contrary to the very case of the defendants and runs contradictory to their plea in the written statement.  The plaintiff got examined P.Ws.1 to 4, who support the case of the plaintiff that he is the owner of the property and the property was let out to defendants 1 and 2.

Now, the evidence on behalf of the defendants has to be looked into. But, before the same, it is necessary to look into Article 65 of the Limitation Act and its applicability to the facts of the present case.

Article 65 of the Limitation Act, reads as under:

For possession of immovable property of any interest therein based on title, the limitation to file the suit is 12 years and the time begins to run when the possession of the defendant therein become adverse to the plaintiff.


By the recitals of the above provision of law itself, it is quiet evident that the burden lies on the defendant to prove that his possession was adverse to the interest of the plaintiff. 

The starting point of limitation as per Article 65 of the Limitation Act does not commence from the date when the right of ownership arises to the plaintiff, but commences from the date when defendant’s possession becomes adverse.  Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus, the period for prescription does not commence.  It is also well-recognized proposition of law that mere possession how long does not necessarily mean that it is adverse to the true owner and the possession can never be considered adverse if it is referable to a lawful title. 

In this context, it is appropriate to refer to the judgment of the Hon’ble Apex Court in Karnataka Board of Wakf v. Govt. of India and others[2], wherein it was held that in the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion.  Non-use of the property by the owner even for a long time won’t affect his title.  But the position will be altered when another person takes possession of the property and asserts a right over it.  Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner.  It is 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.  Thereafter, a person who claims adverse possession should show a) on what date he came into possession b) what was the nature of his possession c) whether the factum of possession was known to the other party d) how long his possession has continued, and e) his possession was open and undisturbed.  A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

 In the present case, it is the case of the defendants that by virtue of Ex.X1 and Ex.B1, they are in possession and enjoyment of the suit schedule property and as such they have perfected their title by adverse possession.  In view of Article 65 of the Limitation Act and basing on the judgments of this Court and the Hon’ble Apex Court, the burden lies on the defendant to show his possession over the property.  The defendants have examined D.Ws.1 to 4 and the evidence of D.Ws.3 and 4 is contrary to the case and evidence of the defendants. Exs.A15 to A24 clearly show that D.W.3 has no knowledge about Ex.X1 and B1.  As recorded by the lower appellate Court at paragraph 26 of its judgment, D.W.4 in his cross-examination stated that the plaintiff was about 40 or 50 years by the date of Ex.X1.  This part of the evidence of D.W.4 would suggest that Ex.X1 was brought into existence in or about the year 1990. The age of the plaintiff was mentioned as 45 years by the date of filing of the suit on 17.04.1990.  Ex.X1, which was alleged to have been executed in 1956, is in Telugu and Ex.B1, which was executed in 1957, is written in Urdu.  Nowhere in Ex.X1 and Ex.B1, the schedule of the property is mentioned.  Even the cist receipts, pahanies and other documents relied on by the defendants in fact strengthen the case of the plaintiff by showing that the plaintiff is the owner of property and defendants are cultivating the same.  Exs.X1 and B1 cannot be considered in evidence, as both of them being unregistered documents are inadmissible in evidence. Exs.X2 and X3, which were obtained behind the plaintiff, are not binding on the plaintiff and needs no consideration. Defendants 1 and 2, by adducing both oral and documents, have miserably failed to establish that they have perfected their title by adverse possession in view of Article 65 of the Limitation Act, whereas it is the case of the plaintiff that he has demanded the defendants 1 and 2 in March 1989 to vacate the suit land, but instead of vacating the same, they have approached the M.R.O. for issuance of patadar passbooks, upon which he received notice from defendant No.3 in October 1989.   The suit was instituted in the year 1990 well within the limitation. The lower appellate Court has, thus, rightly held that the suit is within limitation.  

It is also the case of the defendants that their vendor is not made party to the suit and as such the suit is bad for non-joinder of proper and necessary parties to the suit.  The trial Court, on an erroneous view of facts and law, has held that E.Satti Reddy is a proper and necessary party to the suit and the suit is bad for non-joinder of proper and necessary parties. The plaintiff filed the suit for declaration of title, recovery of possession and for mesne profits and his case is that defendants 1 and 2, who are tenants of the suit schedule property, failed to vacate the land and filed application before the revenue authorities for obtaining pattadar passbook in their favour in respect of the suit land.  Thus, the plaintiff is claiming the reliefs against the defendants and E. Satti Reddy is not at all a proper and necessary party to the suit. Proper and necessary party is a person without whom the dispute cannot be properly adjudicated and finally decided, but in the present case, in view of the nature of the reliefs claimed by the plaintiff, the presence of E. Satti Reddy, for adjudication of the lis, is not necessary and as such he is not a necessary and proper party to the suit.

In view of the above discussion, I am of the considered opinion that the findings recorded by the lower appellate Court, while reversing the judgment of the trial Court, being well considered findings arrived on appreciation of both oral and documentary evidence and the reasons recorded being cogent, need no interference by this Court in second appeal.

Hence, the second appeal is devoid of merits and the same is accordingly dismissed with costs.

__________________
JUSTICE N.V. RAMANA
31st December 2010
IBL


[1]  (2009) 2 SCC 177
[2] 2004 (4) ALD 124 (SC)

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