Second appeal in a suit for declaration of title to assigned government land. Appellants claimed owner status via sale agreements. Court found no legal possession and dismissed the appeal.
Second Appeal dismissed. No costs.
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HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO
S.A.No.334 of 1988
J U D G M E N T:
The unsuccessful defendant in OS.No.340 of 1977 on the file of the Principal District Munsif, Nizamabad is the first appellant herein. During pendency of the second appeal, first appellant died and his LRs were brought on record as appellants 2 and 3. The suit was one filed for declaration of title to the schedule property saying that the land was assigned and patta was granted by the Government in the year 1962 and earlier also he was in possession and enjoyment. The plaintiff has permitted the first defendant to plough the land and to take the grass towards remuneration. Accordingly, the first defendant has been in possession of the property for one year. But subsequently during the year June, 1965 the 1st defendant has unlawfully entered into possession of the property and the matter was referred to the village elders but he did not vacate the land. Hence the suit.
2. The appellants herein contended that the plaintiff was the owner of the suit land and further it was contended that the property was sold on 01.07.1962 for a consideration of Rs.2,200/- and executed an agreement of sale and since then the D.2 started cultivation of the suit land. Subsequently, on 19.02.1965 D.2 sold Ac.01.00 cents of land out of the suit land to D.1 under an agreement of sale for a consideration of Rs.700/- and delivered possession. Subsequently on 12.04.1965, D.2 sold the remaining land to D.1 under another agreement of sale for a consideration of Rs.1,800/-. Therefore, D.1 has become owner of the property by virtue of the sale by D.2 and the agreement of sale, dated 01.07.1962, in favour of the D.2 has created right in him.
3. The trial Court after framing necessary issues has decreed the suit and as against that, A.S.No.7 of 1987 was preferred to the Principal District Judge, Nizamabad who dismissed the appeal. As against that, the present second appeal is preferred and the appeal was
admitted on the following questions of law.
1. Whether the vendor of assigned lands is estopped from questioning the validity of the sale?
2. Whether the plaintiff can be allowed to rely on the plea which does not find a place in the plaint?
3. Whether the defendant can invoke the provisions of Section 53-A of Transfer of Property Act and retain possession in the circumstances of the case?
4. Whether the defendant has proved his title by adverse possession in the inconsistencies of the case?
4. The learned counsel for the appellants contend that the first appellant has been in possession and enjoyment of the property and perfected title to the property. It is not in dispute that the property belongs to the Government and it is an assigned land and it cannot be alienated. The specific case of the first defendant in the suit is that the suit property was sold on 01.07.1962 to the second defendant and the second defendant in turn sold the land to the first defendant in 1965 and therefore he has been in continuous possession and enjoyment of the property. The possession, if at all to be considered for the first defendant, can only be from 1965 onwards, when he has purchased the property under alleged agreements of sale. Unless and until the right of the second defendant is established, the first defendant cannot get any rights. The second defendant, who was the purchaser of the property from the plaintiff under the agreement of sale, dated 01.07.1962, did not prefer any appeal against the original judgment of the trial Court nor did he participate in the trial Court pleading the agreement in his favour. Unless and until the purchase by D.2 is established by himself by going into the box and by filing a suit for specific performance or obtaining a sale deed, his oral evidence can have no relevancy and any amount of effort made by the first defendant can have no result.
5. Furthermore, when the first defendant has been labouring under the opinion that he is a purchaser under agreements of sale, the question of getting title by adverse possession does not arise since he is treating the plaintiff as the owner of the property. In order to get the
protection under Section 53-A of the Transfer of Property Act, 1882, it is to be shown that the first defendant and his vendor are always ready and willing to perform the part of the contract and they are in continuous possession of the property. The evidence adduced on these aspects is very meagre and therefore, in view of the above circumstances, it cannot be said that the first defendant is entitled for protection of the possession of the property either as a purchaser or setting up a title by adverse possession. Therefore, in view of the above circumstances, the title of the plaintiff have been admitted and the possession of the first defendant/appellants is not found to be legal, the judgment passed by the Courts below does not call for any interference by this Court.
6. Accordingly, the Second Appeal is dismissed. No costs. Miscellaneous petitions, if any, pending in this Second Appeal shall stand closed.
_________________________________ JUSTICE N.R.L. NAGESWARA RAO 14.08.2012 vjl
3 issues framed by the court
Whether the defendant can invoke Section 53-A of the Transfer of Property Act to retain possession.
Whether the vendor of assigned government land is estopped from questioning the validity of the sale.
Whether the plaintiff can rely on a plea not found in the plaint.
Heirs LRs of the first appellant
Plaintiff
N.R.L. Nageswar Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
