HC - person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner


IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD

*THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
+ SECOND APPEAL NO.372 OF 1997
% 22-02-2010

# Between:
Gundu Parvathamma
                                                     ….Appellant

A N D

Penubarthi Sreenivasulu                     …Respondent
         
                                                                               

! COUNSEL FOR THE APPELLANT:  Sri V.Ravinder Rao
 ^ COUNSEL FOR RESPONDENT:   Sri V.Eswaraiah Chowdary
                                                             

?  CITATIONS:

1.     (2004) 10 Supreme Court Cases 779
2.     2000 (3) ALT 687
3.     AIR 2009 SC 103

Dated 22nd February, 2010

Between:

Gundu Parvathamma                            …Appellant

And

Penubarthi Sreenivasulu                     …Respondent


Counsel for the appellant:               Sri V.Ravinder Rao
Counsel for the respondent:          Sri V.Eswaraiah Chowdary



The Court made the following

JUDGMENT:

          This Second Appeal arises out of judgment and decree dated 17.06.1996 in A.S.No.12 of 1990 on the file of learned Principal Subordinate Judge, Gudur, Nellore District, whereby he confirmed the judgment and decree dated 31.03.1990 in O.S.No.192 of 1983 on the file of learned District Munsif, Venkatagiri, Nellore District.
          For convenience, the parties are referred to as they are arrayed in the suit.
          The plaintiff is the appellant. She filed the above mentioned suit for declaration of title and recovery of possession of the small extent of
21 square yards of property in Venkatagiri Town. The plaintiff had set up her title to the suit schedule property on the basis of registered sale deed dated 20.06.1983 purchased from the original owner of the property i.e., hereditary trustee of Sri Kasi Viswanadhaswamy Temple.  The said sale deed was marked as Ex.A1. It is admitted case that a part of the suit property on the southern side was in occupation of the defendant.  As the defendant refused to vacate the said property, the plaintiff filed the suit for the above mentioned relief. The suit was resisted by the defendant.  According to him, one P.Krishnaiah (D.W.1) occupied the property in the year 1960 and sold the same to the defendant under a purported agreement of sale on 30.04.1979. This agreement of sale was marked as Ex.B12. The defendant has pleaded that his predecessor-in-interest was in open, continuous and uninterrupted possession since the year 1960 and that after his purchase, he also continued in possession till the filing of the suit and that thereby, the defendant has perfected his title by adverse possession. 
          On behalf of the plaintiff, P.Ws. 1 to 4 were examined and Ex.A1 was marked. On behalf of the defendant, D.Ws. 1 and 2 were examined and Exs.B1 to B23 were marked. The trial Court framed the following issues:
1.      Whether the plaintiff is entitled to the declaration to the suit site and for possession of the same?
2.      Whether the defendant’s vendor had perfected his title to the said property as pleaded by him?
3.      Whether the plaintiff’s vendor is estopped by conducted from questioning the title of the defendant’s vendor?
4.      To what relief?

On all the issues, the trial Court held in favour of the defendant and against the plaintiff. The judgment of the trial Court was affirmed in the appeal by the lower appellate Court.
     At the hearing, Sri V.Ravinder Rao, learned counsel for the appellant, submitted that both the Courts below have committed serious error of law in holding that the defendant has perfected his title by adverse possession. The learned counsel submitted that admittedly there is no evidence to show that the property was in the possession of the defendant or his predecessor-in-interest till the year 1972 and that both the Courts below having found that the documentary evidence clearly shows that the defendant’s predecessor-in-interest was in possession since 1972 only ought not to have held that the defendant perfected his title by adverse possession. The learned counsel also submitted that since the plea of adverse possession lacks morality, the defendant was not entitled to any indulgence and the Courts below ought to have taken a strict view while construing the evidence placed by him before the Court.
     Sri V.Eswaraiah Chowdary, learned counsel for the defendant, opposed these contentions of the learned counsel for the plaintiff and submitted that the findings of both the Courts below being concurrent, this Court, exercising its jurisdiction under Section 100 CPC, will not interfere with such concurrent findings of fact. The learned counsel placed reliance on the evidence of D.W.1 to buttress his contention that since the year 1960, the defendant’s predecessor-in-interest had been in possession of the property and thereby the defendant had perfected his title by adverse possession.
     I have carefully considered the submissions of the learned counsel for the parties and gone through the record.
     As regards the first objection raised by the learned counsel for the defendant that the findings of fact being concurrent, this Court would not interfere with the findings rendered by the Courts below, undoubtedly this Court, while exercising jurisdiction under Section 100 CPC, will not
re-appreciate the evidence. But if the findings are not based on evidence and the case raises a substantial question of law, this Court will not refrain from looking into the evidence in order to find out whether the findings are based on evidence or not even while exercising jurisdiction under Section 100 CPC, lest there will be grave miscarriage of justice to the parties. The aspect of adverse possession is a mixed question of fact and law because when the owner establishes his title, his claim is defeated on the plea of adverse possession set up by the defendant under Article 65 of the Limitation Act, 1963 (Karnataka Board of Wakf v. Government of India and others[1]Modem Rajamouli v. Modem Roshaiah[2]). It is, therefore, necessary for this Court to examine whether the findings of the Courts below are supported by the evidence produced by the defendant on his plea of adverse possession.
The material documents that were filed by the defendant in support of his plea of adverse possession are Ex.B1, extract of house tax register of Gram Panchayat for the year 1972-73; Exs.B2 to B8, tax receipts issued by the Gram Panchayat; Ex.B9, tax revision register of the year 1978-79; Exs.B10 and B11, tax receipts for the subsequent years; Ex.B23, dated 14.12.1973 obtained in evidence of payment of
non-agricultural assessment tax (NALA) from the years 1963-75.
     At the outset, it is required to be noted that the Courts below have not placed reliance on Ex.B23. Therefore, it is not necessary for this Court to delve into the said document. The documents, which show the possession of the defendant or his predecessor-in-interest at the earliest point of time, are Exs.B1 and B2.  It is not in dispute that for the first time, tax was paid in the month of November, 1972 by D.W.1 for the assessment year 1972-73 which commences from 1st March, 1972 and ends with 28th February, 1973.  The suit was filed on 2ndDecember, 1983.  By the time, the suit was filed, the period of 12 years was not completed if reliance is placed on Ex.B1. As observed, there is no document, which shows the possession of the defendant or his predecessor-in-interest for the period anterior to 1st March, 1972 except Ex.B23 which was not relied upon by both the Courts below. Obviously being conscious of this fact, the defendant examined D.W.1, who sought to supply the shortfall in the evidence of the defendant by orally contending that he had been in possession of the property from the year 1960. It is noteworthy that in his cross-examination, D.W.1 categorically admitted that there is no documentary evidence to show that he constructed a thatched house even before 1960 and has been in possession of the same. He admitted that prior to 1972, taxes were not collected by the Panchayat, that he started paying taxes only from the year 1972 up to the year 1983. He admitted that he did not obtain any licence for running an alleged tea stall and that he also does not remember as to in which year, cycle shop was set up.  The oral evidence of D.W.1 does not in any manner support the plea of the defendant that D.W.1 was in possession prior to 1972. The trial Court, while dealing with issue No.1, gave the following finding.
“In this case also the possession of the vendor of the defendant and the defendant is proved from the year 1972 onwards and hence the period of more than 12 years was completed by the date of filing of the suit because if the period is taken from 01.04.1972 to June, 1983, the statutory period of 12 years will be completed.”

          This finding is wholly erroneous because going by the mathematical calculation, the period of 12 years is not completed from 01.04.1972 till June, 1983 or till the plaint was presented in November, 1983. The
12 years period would be completed only by 31.03.1984.  As against this finding, the lower appellate Court observed as under.
“The defendant by filing Ex.B1 could establish that the house bearing D.No.8/185 was in existence prior to the preparation of Ex.B1 extract.  If the Gram Panchayat officials had given any receipt etc in 1960 or later to 1960, the vendor of the defendant would have produced the same.  The available documents have been produced by the defendant.  The oral evidence adduced on behalf of the defendant is consistent.  The documents produced on behalf of the defendant will support the oral evidence of the defendant.  When such is the evidence adduced on behalf of the defendant, it cannot be said that the defendant and his vendor are in possession of the suit property only since 11 years 6 months to the date of filing of the suit.  The learned counsel for the defendant submitted that the house was not at all constructed in 1972 and that it was constructed prior to 1972.”

          The above findings of the Courts below are inconsistent with each other. From the admitted position emerging from the facts recorded by both the Courts below, it is indisputable that the documentary evidence produced by the defendant did not establish that his
predecessor-in-interest was in possession prior to 1st March, 1972 and the period of 12 years was not completed before the suit was instituted by the plaintiff. One other aspect that is noticeable from the judgments of the Courts below is that the burden is thrown on the plaintiff to establish that the defendant has not perfected his title by adverse possession. The law is well settled that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, i.e. peaceful, open and continuous. The person who sets up the plea of adverse possession must establish the physical fact of exclusive possession and the
animus possidendi to hold as owner in exclusion to the actual owner. As the person who sets up the plea of adverse possession tries to defeat the rights of the true owner, the burden lies on him to clearly plead and establish all facts necessary to establish his adverse possession [D.N.Venkatarayappa v. State of Karnataka (1997) 7 SCC 567; Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma
(1996) 8 SCC 128 and Karnataka Board of Wakf (2 supra)].  In a recent judgment in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others[3], the Supreme Court while reiterating that adverse possession is not a pure question of law but a blended one of fact and law further restated the requirements for establishing the plea of adverse possession, namely; on what date he came into possession; what was the nature of his possession; whether the factum of possession was known to the other party; how long his possession has continued and whether his possession was open and undisturbed. The Apex Court observed that a person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. Indeed the Hon’ble Supreme Court in the said judgment suggested to the Union of India to seriously consider and make suitable changes in the law of adverse possession as it ousts an owner on the basis of inaction within the limitation which is irrational, illogical and wholly disproportionate and that it is extremely harsh for the true owner and windfall for a dishonest person who had illegally taken possession of the property of the true owner.
          Having carefully analysed the facts of the case and the findings rendered by the Courts below, I am of the opinion that the defendant, on the basis of the evidence, failed to discharge the burden placed on him by law that he has perfected his title by adverse possession and both the Courts below have committed a serious error of law in dismissing the suit by upholding the plea of adverse possession set up by the defendant.  Ground Nos. 1 to 6 raised by the appellant in general and ground
Nos.1, 2, 3 and 5 in particular constitute substantial questions of law in the opinion of this Court and the Second Appeal deserves to be allowed on these grounds.
          Therefore, the judgments under appeal are set aside. The suit is decreed as prayed for with costs.
          The Second Appeal is, accordingly, allowed.
C.V.NAGARJUNA REDDY, J

Dated 22nd February, 2010
vrn


[1] (2004) 10 Supreme Court Cases 779
[2] 2000 (3) ALT 687
[3] AIR 2009 SC 103

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