Dismissed

Durgampudi Padmamma , W/o Seetharam Reddy, v. Kallutla Kotamma (died)

Telangana HC22 Dec 2014SA/588/2007

Case brief

AI extract

What is this about?

Title by prescription and recovery of agricultural land were upheld on possession following an unregistered outright sale. The court rejected objections concerning the plaintiff’s non-examination and non-joinder of the defendant’s vendors, dismissed the second appeal and allowed two months to deliver vacant possession.

What did the court decide?

The appellant was granted two months to deliver vacant possession of the plaint schedule property to the second respondent.

Durgampudi Padmamma , W/o Seetharam Reddy, Vs Kallutla… — Property and Title | Telangana HC (2014)

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*THE HONOURABLE SRI JUSTICE M.SEETHARAMA MURTI

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+Second Appeal No.588 of 2007

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% 22-12-2014

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# Durgampudi Padmamma

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…. Appellant

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Vs.

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$ Kallutla Kottamma (died) and another

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…. Respondents !Counsel for the Petitioner : Sri K.S.Gopala Krishnan Counsel for the Respondent No.2 : Sri M.Rajamalla Reddy

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<Gist :

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>Head Note:

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? Cases referred:

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1. 2006 (6) ALD 333

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2. AIR 1996 SC 910

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3. AIR 2007 SC 1753

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4. AIR 1985 AP 200

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5. 1997 (2) ALT 625 (DB)

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6. AIR 1990 SC 553

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7. 2014 (4) ALT 808

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8. (2010) 14 SCC 316

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9. 2013 AIR (SCW) 3561

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10. AIR 2005 SC 439

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11. CDJ 2007 MHC 1562

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12. CDJ SC 6

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13. 2006 (6) ALT 523 (FB)

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THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

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SECOND APPEAL No.588 of 2007

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JUDGMENT:

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This Second Appeal under Section 100 of the Code of Civil Procedure (for short, ‘the Code’) by the sole defendant is directed against the judgment dated 05.03.2007 of the learned V Additional District Judge (Judge, Fast Track Court), Nalgonda at Miryalaguda passed in A.S.No.2 of 2007 whereby the learned Additional District Judge by allowing the said Appeal Suit with costs throughout had set aside the decree and judgment dated 31.10.2006 of the learned Senior Civil Judge, Miryalaguda and had decreed the suit in O.S. No.82 of 1999 filed by the sole plaintiff for declaration that she is the owner of the property in an extent of Ac.2.16 guntas in Survey No.63 of Kistapuram village of Miryalaguda Mandal of Nalgonda District which is more fully described in the schedule annexed to the plaint and for recovery of the said property after evicting the defendant there from.

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2. At the time of admission of the Second Appeal, this Court on 31.07.2007 had formulated the following substantial questions of law:

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(1) Whether the suit for declaration of title is maintainable without impleading the third party vendors of the defendant as parties to the suit? and

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(2) Whether there is any perversity in the judgment of the appellate Court?

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2. (a) At the time of hearing, the following additional substantial questions of law were allowed to be raised and the learned counsel for the 2^nd respondent was also allowed to argue that the case does not involve such questions.

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1. Whether the PW1/GPA holder can substantiate evidence on behalf of the plaintiff in the suit to get a decree for declaration and other ancillary reliefs?

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2. Whether the non examination of plaintiff is fatal to the grant of decree by the 1^st appellate court?

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3. Whether pre requisite conditions of the adverse possession are attracted to the grant of declaration in favour of the plaintiff by the 1^st appellate court?

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4. Whether the plaintiffs entitled for relief of declaration on the ground of adverse possession in the light of specific plea that the father (Mattayya) has purchased under agreement of sale under Ex.A29 followed by

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Ex.A31 receipt?

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5. Whether the non cross examination of PW2 and PW3 are fatal to the case of the defendant?

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6. Whether the findings of the 1^st appellate court

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regarding Ex.B2 is bogus, false or unwarranted?

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7. Whether the 1^st appellate court has properly applied the principles of Limitation Act to bring the suit within time?

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8. Whether the 1^st appellate court went wrong in

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debarring the Section 6 of the Specific Relief Act?

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9. Whether the reasonings of the 1^st appellate court are justifiable in reversing the judgment and decree passed by the trial court?

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3. It is to be first noted that during the pendency of this Second Appeal, the sole plaintiff had died. As per the orders of this Court dated 26.09.2013 in S.A.M.P. No.922/2012, the second respondent alone is brought on record being the legal representative of the deceased sole plaintiff. In the Second Appeal, the parties shall hereinafter be referred to as the appellant/defendant, the first/sole plaintiff and the 2^nd plaintiff for convenience and clarity.

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4. To adjudicate the lis and to answer the substantial questions of law, it is necessary to first refer to the pleadings of both the sides.

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5. The averments in the plaint, in brief, are as follows: ‘The first plaintiff’s father Mattaiah was in possession of Ac.10.30 guntas in Survey Nos.62 and 63 of Kistapuram village since prior to Durmukhi Nama Samvatsara Margashira Bahula Ekadasi. While so, on the said day he had purchased the said land from 1) Chintoju Chandra Mouli, S/o. Ramaiah 2) Chintoju Kanakaiah, S/o. Ramaiah 3) Chintoju Ramaiah, S/o. Nagabhushanam and 4) Chintoju Mallaiah S/o. Koti Lingam for an agreed consideration of Rs.1,150/- and had paid to the vendors a sum of Rs.100/- as earnest money and had obtained an agreement of sale from them on that day. Subsequently on the Ekadasi day of Magha Bahula of the same year, the plaintiff’s father had paid the balance sale consideration of Rs.1,050/- to Chintoju Kanakaiah, one of the vendors under the said sale agreement, and

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had obtained a receipt from him. Thus, the contract of sale has become an executed contract. Since the said day, the father of the sole plaintiff possessed the said land claiming absolute title thereto during his lifetime; and thereafter, the first plaintiff and her younger sister Morthala Bhadramma were in possession of the said land openly as of right and continuously for more than 12 years and had acquired title thereto by prescription. The name of the first plaintiff’s father was recorded in the cultivator column of the Pahanies continuously for the year from 1955 to 1965 in respect of the said schedule land. The first plaintiff and her sister jointly possessed the said land as joint owners and their names were recorded as cultivators of the said land. The name of the first plaintiff’s husband Kallutla Ram Reddy, was also shown in the Pahanies as cultivator of half share in the said land. In the ceiling declaration filed by him under the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, he had shown half share in the said land in his holding for the purpose of the said Act. While the first plaintiff and her younger sister were possessing the said land, the defendant herein had obtained from 1) Chintoju Satyanarayana, 2) Rama Chary, and 3) Brahma Chary, who are the sons of Kanakaiah, a fraudulent registered sale deed dated 23.02.1991 in respect of Ac.2.16 guntas out of the land in an extent of Ac.7.11 guntas in Survey No.63 of Kistapuram village in addition to some other lands in other survey numbers and had unlawfully occupied the said land wrongfully dispossessing the first plaintiff and her sister there from in the month of June 1991 and the defendant is now in possession of the said land which is more particularly described in the schedule of the plaint. Therefore, the first plaintiff is entitled to sue the defendant for recovery of possession of the said land. Hence, the suit is filed for declaration of title of the first plaintiff and to direct the sole defendant to put the first plaintiff in possession of the said land after evicting the defendant from the said land.’

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6. Per contra, the defence of the defendant, in brief, is as follows: ‘The material allegations in the plaint are false and the suit is not maintainable. The sole plaintiff ought to have filed the suit for cancelation of the registered sale deed but, not for recovery of possession. The averment about

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possession of Ac.10.30 guntas of land in Survey Nos.62 and 63 by the father of the sole plaintiff as alleged in the plaint and the further allegation that the father of the sole plaintiff had purchased the said land for consideration in the manner mentioned in the plaint and that he had continued in possession by claiming absolute title during his lifetime and that his name was entered in the cultivators column of revenue records and that thereafter, the sole plaintiff and her younger sister came into possession of the said land and that their names and the name of the husband of the first plaintiff for a half share were entered in the revenue records and that the plaintiff and her sister had acquired title by prescription by being in possession openly as of right and continuously for more than 12 years are all false. The said story in the plaint is created. The documents are fabricated in collusion with the unsocial elements and the enemies of the defendant, with an intention to grab away the land of the defendant. The averments that name of the father of the plaintiff, the names of the sole plaintiff and her sister and the name of the husband of the first plaintiff were recorded as cultivators and possessors in the revenue records are denied. The husband of the sole plaintiff had shown his share of the land in the land ceiling declaration is denied. The allegation that the defendant took a fraudulent sale deed dated 23.02.1991 from Chintoju Satyanarayana and others in respect of the plaint schedule land is denied. This defendant is a bona fide purchaser, lawful owner, possessor and enjoyer of the suit land since a long time. The sole plaintiff has no right whatsoever over the suit land and sole plaintiff was never in possession and enjoyment of the suit land for more than 12 years. The plaintiff has no right to sue and there is no cause of action for the plaintiff. The suit may be dismissed.’

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7. The trial Court had framed the following issues for trial:

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1) Whether the plaintiff is entitled for a decree to declare as title holder of the plaint schedule land and put in possession of the same as prayed for?

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2) Whether the above suit without the relief of cancellation of a registered sale deed dated 23.2.1991 is not maintainable in law as contended by the defendant in her written statement?

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3) Whether the suit is barred by limitation?

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4) Whether the suit is bad for non-joinder and mis-joinder of parties?

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5) Whether the defendant is entitled for exemplary costs of Rs.5,000/- from the plaintiff?

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6) To what relief?

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Before the trial Court, the second respondent herein (who was by then not a party to the suit) and the supporting witnesses were examined as PWs 1 to 4 and exhibits A1 to A31 were marked on the side of the sole plaintiff. The sole defendant and her supporting witnesses were examined as DWs 1 to 3 and exhibits B1 to B15 were marked on her side. On merits, the trial Court had dismissed the suit with costs and also granted exemplary costs/compensation of Rs.3,000/- under Section 35(A) of the Code to the defendant and had observed that the same is recoverable from PW1. As already noted the Court of First Appeal while allowing the appeal of the sole plaintiff had reversed the decree and judgment of the trial Court and decreed the suit of the plaintiff as prayed for and granted two months time to the defendant to vacate and deliver the possession of the plaint schedule property to the sole plaintiff. Therefore, the aggrieved sole defendant is before this Court.

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8. Now the substantial questions of law are taken up.

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9. The learned counsel for the appellant/defendant, while urging that the judgment of the trial Court is a well considered judgment, had further contended that the Court of First Appeal had based its findings on assumptions and presumptions, but, not on evidence and sound principles of law, justice, equity and good conscience; and that the First Appellate Court had misinterpreted the provision of Section 6 of the Specific Relief Act and had erroneously decreed the suit of the plaintiff by unnecessarily interfering with the well considered judgment of the trial Court. He would further contend that the suit is bad for mis-joinder and non-joinder of necessary parties; and that the evidence given by PW1, who is the GPA holder of the

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sole plaintiff, shall not be relied upon and hence, the reliance placed on the said evidence of PW1 is erroneous; and that the Court of First Appeal had erred in considering the possession of the plaintiff in spite of the fact that the names of the others are also seen in the entries in the possessory column of the copies of Pahani patrikas under exhibits A22 to A25; and that therefore, there is evidence to show that there is a break in the alleged continuity of peaceful possession that was claimed by the sole plaintiff; and that the appellate Court had improperly appreciated the contents of the copies of Pahani patrikas; and that the First Appellate Court had also erred in relying upon the unchallenged evidence of PW2 by affirming that ‘it speaks volumes’; and that the Court of First Appeal had based its conclusions only on entries in pahanies, but, not on material evidence by giving much weight to the evidence of PW2 and the exhibit A29, even though no material witnesses were examined. He had also contended that the Court below had failed to note that in a suit for declaration of title and recovery of possession, the plaintiff succeeds on her own strength but not on the weakness of the defendant and that the sole plaintiff had failed to prove her pleaded case, much less, the plea of acquisition of title by adverse possession/prescription and that the plea of acquisition of title by prescription is not available to the plaintiff who is claiming that her predecessor in interest is an agreement holder. He had finally contended that the judgment of the First Appellate Court is unsustainable and is liable to be set aside and that the judgment and decree of the trial Court are to be restored.

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10. On the other hand, the learned counsel for the second plaintiff/second respondent herein would submit that there is no perversity either in appreciation of the evidence or the facts and that the Court of First Appeal having considered the facts and evidence in the right perspective and also the correct legal position had rendered a well considered and sustainable judgment after finding that the judgment and decree of the trial Court are unsustainable and that the well reasoned and well considered judgment of the Court of First Appeal does not call for interference and that the substantial questions of law and the additional substantial questions of

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law are all not pure questions of law, much less substantial questions of law, and that there is no substance in those questions and that therefore, the Second Appeal is devoid of merit and is liable to be dismissed confirming the judgment of the First Appellate Court.

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11. I have carefully perused the pleadings and the oral and the documentary evidence on record. I have also carefully perused the written submissions filed by the learned counsel for the appellant/defendant and also the copies of rulings relied upon by the learned counsel for both the sides. The law is well settled that in a suit for declaration of title not only the initial onus of proof but also the legal burden of proof, which never shifts, are on the plaintiff and that in a suit of this nature the plaintiff succeeds on her own strength but not on the weakness of the defendant. Considering the provision of law under Section 100 of the Code, the decision in the Second Appeal shall be confined to the substantial questions of law raised in the Second Appeal. Since the second question as to whether there is any perversity in judgment of the appellate Court is a comprehensive question, it is necessary to consider the said question along with additional questions in the first instance.

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12. (a) It is necessary to examine as to whether the plaintiff had established her title to the property for granting the relief of declaration of title. It is not in dispute that neither the sole plaintiff nor her predecessor in interest i.e., her father have a document of title like a regular registered sale deed in respect of the plaint schedule property. Her specific pleading is that her father had originally possessed a large extent of Ac.10.30 guntas of land in survey nos.62 and 63 of Kistapuram village even prior to Durmukhi Nama Samvatsara Margashira Bahula Ekadasi and that being the possessor he had purchased the said land from Chintoju Chandra Mouli and three others on the same day under an agreement of sale for an agreed consideration of Rs.1,150/- and that the vendors having received Rs.100/- as earnest money had executed an agreement of sale in favour of her father on the same day. The said agreement of sale, on which necessary stamp duty and penalty were paid, is exhibited as A29. A neat copy of it is exhibit A30. The same on

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a perusal would show that Chintoju Chandra Mouli, Chintoju Kanakaiah, Chintoju Ramaiah and Chintoju Mallaiah have together executed the said document styled as ‘Jameen Vikraya Dasta Veju’ (sale deed) in favour of the father of the sole plaintiff. The said document in which the Telugu Vernacular year and day are mentioned relates to the year 1956. In this document, the consideration agreed to was Rs.1,150/- and it was also recited that Rs.100-/ was paid as earnest money. It is recited that the vendors and their legal representatives are not going to question the transaction and that the document executed is a ‘Jameen Vikraya Dasta Veju’ (Sale Deed). Thus, under this document the parties to the document had not contemplated execution of a further document like a sale deed. It is also averred in the plaint that subsequently Rs.1,050/- was paid to Chintoju Kanakaiah, who is one of the vendors under exhibit A29 (=A30) and a receipt was obtained. The said receipt is exhibited as A31. In this receipt, which evidences the said payment, the introductory sentence refers to the day of execution of the said sale deed as ‘Durmukhi Nama Samvatsara Magha Bahula Dasami’ instead of referring to the day of execution of the said sale deed as ‘Durmukhi Nama Samvatsara Margashira Bahula Ekadasi’. Pointing out this discrepancy it is sought to be contended that the sole plaintiff’s case is not consistent even as per her own documents and that her case is not true and cannot be believed. This contention is not having acceptable merit for the reasons which are assigned infra. Though, much reliance was placed by the learned counsel for the defendant on the said discrepancy and it was strenuously contended that there is no consistency in the recitals in the two documents viz., the agreement of sale and the receipt, however, the fact remains that the two documents when harmoniously read disclose a sale transaction in favour of the father of the plaintiff by Chintoju Kanakaiah and three others way back in the year 1956. The discrepancy in regard to description of the day by itself is not enough to view the said documents with suspicion, more particularly in the light of the other evidence on record. Further, the vendors of the father of the plaintiff are not disputing the sale transaction made as long back as in the year 1956. The sole plaintiff’s father, having already been in possession and

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having come into possession of the property way back in the year1956 by virtue of the purchase from the owners had continued in possession of the property as absolute title holder/owner during his lifetime by exercising peaceably the rights of the ownership as per the case of the plaintiff. It is also the case of the sole plaintiff that she and her younger sister came into possession of the property after the death of their father and had remained in possession openly and as of right and continuously for more than 12 years and had acquired title by prescription. Thus, according to the case of the plaintiff, her father, who was in possession of the land having paid consideration under exhibits A29 (=A30) and A31 to the vendors and having acquired title/possessory title, had continued in possession till his death as owner thereof and had acquired absolute title to the property and that his name was also entered in the revenue records as cultivator and that the said records establish his exclusive enjoyment and long possession, which had matured into ownership. Though the plaintiff was not examined, her natural daughter claiming herself also to be the GPA holder of the sole plaintiff had deposed in line with the pleadings and had exhibited A1 to A31. In her cross examination, it was brought out that the present suit is filed for an extent of Ac.2.16 guntas of land and that the remaining extent of land was sold by the plaintiff to Malreddy Saidi Reddy in the year 1991 under a registered sale deed and that the said registered sale deed was got executed by Chintoji Narayana and others. When it was suggested to her that the sole plaintiff who is her mother did not sell the lands and that the real pattedars i.e., Chintoju Satyanarayana Chary and others sold the land in favour of the purchasers, she had denied the suggestion as ‘not true’. She had asserted that there is a registered sale deed with document No.494/1991 dated 23.02.1991 in favour of her husband Malreddy Saidi Reddy for an extent of Ac.2.16 guntas. She had admitted that the defendant is the daughter-in-law of the younger sister of the sole plaintiff. When it was further suggested to her that she is not the adopted daughter of Smt. Morthala Bhadramma, the younger sister of her mother, the sole plaintiff, she had denied the said suggestion also as ‘not true’. She had admitted that her maternal grandfather Mattaiah and his vendors were not alive by the date of filing of the suit. She

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had denied the suggestions that they have created false documents and that no amount of Rs.1,050/- was paid to Kanakaiah as consideration and that the plaintiff has intentionally avoided to give evidence in the case and that she is giving false evidence. It is important to note that PW2, Manchala Ramaiah, a person aged 82 years, testified that the father of the sole plaintiff was in possession of Ac.10.30 guntas of land in survey nos.61 and 63 of Kistapuram village since before Durmukhi Nama Samvatsara Margashira Bahula Ekadasi and that the sole plaintiff’s father had purchased the above said land from Chintoju Chandra Mouli and others for a consideration of Rs.1,150/- and that Rs.100/- was paid as earnest money and that he (PW2) had figured as a witness to the said document and that again subsequently on the Ekadasi day of Magha Bahula of the same year, the said Mattaiah had paid Rs.1,050/to Chintoju Kanakaiah, who is one of the vendors and had obtained a receipt and that he is the scribe of the said receipt and that since that time Mattaiah, the father of the sole plaintiff, had claimed absolute title to the property during his lifetime and that thereafter his daughters namely, the plaintiff and Morthala Bhadramma were in continuous possession and enjoyment of the above said land openly as of right and continuously for more than 12 years and had acquired title by prescription. He had also stated that Mattaiah’s name was recorded in the cultivator’s column in the pahanis continuously for the years from 1955 to 1965 in respect of the land of Ac.10.30 guntas and that thereafter the names of the plaintiff and her sister were entered and that the plaintiff and her sister are having equal shares. He had also asserted that the wife of one late Morthala Linga Reddy had fraudulently obtained a registered sale deed on 23.03.1991 from Chinthoju Sathyanarayana and others and had unlawfully occupied the said land after wrongfully dispossessing the plaintiff and her sister in the month of June 1991. He had further asserted in his examination-in-chief that the defendant has no manner of right over the suit land. After this witness was cross-examined on 29.11.2004 only on preliminary aspect, the defendant had failed to cross-examine this witness on the material aspects spoken to by this witness in spite of affording sufficient opportunities and therefore, the right to cross-examine this witness was forfeited. In the cross-examination which was done, it was elicited that PW2

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is residing in Miryalaguda for the last 7 or 8 years and that he gave evidence earlier in O.S. No.36/1999 and that the dispute in this case is between Kotamma and Padmamma and that the suit is filed for recovery of possession on the ground that the land was registered in the name of the defendant. No further points were elicited. Thus, the evidence of PW1, which is well corroborated by the documentary evidence and also the evidence of PW2, who was not even cross-examined and whose evidence remained un-refuted and unchallenged is sufficient to come to a safe conclusion that the sole plaintiff’s pleaded case stands established and that the initial onus of proof and legal burden which are on the sole plaintiff stood discharged. Thus, on account of the failure of the defendant to cross examine PW2, his evidence remained unchallenged and un-rebutted. He being the attestor to exhibit A29 and the scribe of exhibit A31-receipt, his evidence which is vital and critical and is of importance by itself is sufficient to safely hold that the plaintiff’s case stands established as required under the facts and the law. Apart from the evidence of PW2, there is also evidence of PW3 on record. PW3, who was 55 years of age as on the date of his deposition, also testified that the sole plaintiff’s father late Mattaiah was in possession of Ac.10.30 guntas of land in survey nos.61 and 63 of Kistapuram village having purchased the same about 50 years back from Chintoju Chandra Mouli, Chintoju Ramaiah and Chintoju Mattaiah for a consideration of Rs.1,150/and that he was in continuous possession of the said land and that after his death the plaintiff and her sister continued in possession and that in the year 1991 the plaintiff and her sister sold their land to some persons and that even though he (PW3) and his brothers, Ramana Chary and Brahma Chary, have no manner of right over the said land, the plaintiff and her sister got executed registered sale deeds through him and his brothers, as their names i.e., the names of the plaintiff and her sister are not recorded in pattedar’s column but the names of PW3 and his brother continued in the pattedar’s columns. According to his further evidence, the defendant i.e., the wife of late Mortha Lingareddy took a registered sale deed on 23.03.1991 from him, Rama Chary and Brahma Chary in respect of Ac.2.16 guntas out of Ac.7.11 guntas in survey no.63 of Kistapuram village and also for some other lands in some

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other survey numbers and that at that time he had also stated to the defendant that he and his brothers are not the owners of the land and that the land belongs to the plaintiff and her sister and that despite his statement the defendant had obtained a registered sale deed from them in respect of the above land by paying some meagre amounts. Even this witness was not cross examined on behalf of the defendant. Thus, one of the vendors of the defendant did not support the defence of the defendant and the evidence of such a witness (PW3), which remained uncontroverted and unchallenged as he was not cross examined fortifies further the case of the plaintiff that the exhibit B2 sale deed dated 23.02.1991 obtained by the defendant is not a genuine document and that it was obtained to grab the property of the plaintiff and her sister. When the evidence in examination-in-chief of the witnesses (PWs2 and 3) remained unchallenged for lack of cross examination, such evidence has to be accepted as the said evidence is not shown to be inherently improbable. In exhibits A2 to A28 which are copies of pahani patrikas from the years 1955-1956 to 1990-1991 which contain the name of the plaintiffs’ father, the sole plaintiff, her sister and her husband would sufficiently show that the sole plaintiff and her sister are possessors and enjoyers of the said land and that prior to them their father possessed and enjoyed the said land. The name of the pattedar in respect of the land in survey no.63 is Chintoju Kanakaiah. The defendant is admittedly claiming possession of the suit land from the year 1991. One of her vendors who is examined as PW3 had categorically stated that the land sold to the defendant under exhibit B2 does not belong to him and his brother but belongs to the plaintiff and her sister. Thus, one of the vendors of the defendant had himself stated that they have no alienable right in the property sold to the defendant. The evidence of PW3 also shows that since the plaintiff and her sister are owners of the land purchased by their father, when they had sold a part of the land of their father, which devolved upon them, they had got executed sale deed in favour of their vendors through PW3 and his brothers as the revenue records do not disclose the name of the plaintiff and her sister as pattedars though they are the possessors and owners of the property. From the years 1955-1956 to 1965-1966 the name of the father of the sole plaintiff i.e.,

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Mattaiah appears in the revenue record in the possessory column is not in dispute and the said fact is evident from exhibits A2 to A9. In exhibit A10pahani patrika of the year 1966-1967, the names of the sole plaintiff and her sister Bhadramma appear. During the years 1968-1969 to 1982-1983 i.e., pahani patrikas under exhibits A11 to A21 the name of the husband of the plaintiff appears. Thus, in some of the said pahani patrikas, the name of Kallutla Ramreddy, the husband of the sole plaintiff, was also recorded. In some of the pahani patrikas i.e., for the years 1983-1984 to 1986-1987 i.e., in exhibits A22 to A25, in the possessory column names of any person are not mentioned. In exhibits A26 to A28 which are the pahani patrikas for the years 1987-1988, 1989-1990 and 1990-1991 the names of P.Saidi Reddy and Laxma Reddy are shown as enjoyers of the suit survey no.63. Even though the entries in the revenue records/pahani patrikas do not support the possession of the sole plaintiff for some interregnum period, still the copies of pahani patrikas exhibited sufficiently prove long possession of the father of the sole plaintiff and also the possession of the plaintiff, her sister and the husband of the sole plaintiff continuously for a long time and there is no rival claimant for the claims of plaintiff and her sister till the year 1991. Therefore, when once long possession of the sole plaintiff and her predecessor in interest was proved for a continuous period of long time, it can safely be presumed that the sole plaintiff continued in possession of the suit land till she was dispossessed by the defendant in the year 1991 as the presumption of continuity within a reasonable proximate time both forwards and backwards can be drawn in the facts and circumstances of this case. It may be restated that there is no rival claim in regard to the suit land of the plaintiff and her sister till the year 1991. Even the defendant’s vendors did not make a claim adverse to the plaintiff and her sister till date. Therefore, from the evidence available on record, the continuous possession of the sole plaintiff’s father till his death and the possession of the sole plaintiff and her sister for over and above the statutory period can safely be accepted. It is not out of place to note that the evidence on record also would establish the possession of the husband of the sole plaintiff, over a part of the land. Exhibit A1 is the judgment of the Land Reforms Tribunal, Nalgonda dated

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29.03.1985 wherein the declarant is the husband of the plaintiff. As per this judgment, it is clear that the husband of the plaintiff had shown in his declaration under the Ceiling Act an extent of Ac.3.63 cents in S.No.63 as part of his holding and his declaration in respect of the said land was accepted while determining his surplus holding. Therefore, the evidence on record when harmoniously considered would show that the father of the sole plaintiff by name Mattaiah having purchased the suit land and other lands under exhibit A29 styled as sale deed and having paid earnest money under it and the balance of sale consideration under exhibit A31 receipt and having continued in possession for over statutory period and having enjoyed the property as a person in possession in assumed character of owner and having exercised peaceably the ordinary rights of ownership had acquired by prescription a perfectly good title against the whole world. The fact remains that the real owners/the vendors of Mattaiah had accepted and recognised his rightful ownership. They are not even disputing the ownership of the plaintiff and her sister. Therefore, it can be safely held that he had acquired title by prescription.

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12. (b) Coming to the evidence of the defendant, she had testified that during the lifetime of her first husband-Morthala Lingareddy, she had purchased the suit land and another land in an extent of Ac.0.12 guntas in survey no.64 of Kistapuram village under exhibit B2 registered sale deed dated 23.02.1991 from Chintoju Satyanarayana and others and that her vendors had delivered possession of the property to her and that she had obtained title deed book and pattedar pass book in her favour. According to her, after the death of her first husband she had again married one D.Seetharam Reddy and that the plaintiff and her younger sister having colluded with each other are creating troubles to grab her property and that the daughter of the plaintiff by name Malreddy Laxmamma filed a suit O.S. No.36/1999 against her for partition and one P.Lingamma had also filed a suit O.S. No.87/1991. She had filed exhibit B1, the copy of sale deed dated 23.02.1991 in favour of M.Saidireddy, exhibit B2-her sale deed, exhibit B3, the copy of the sale deed of P.Sharabha Reddy, Saidi reddy and Venkat

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reddy, exhibit B4, the copy of sale deed of Narsamma, exhibit B5, the copy of the sale deed of E.Linga Reddy and also pahani patrikas viz., exhibit B6 for the year 1991-1992, exhibit B7 for the year 1993-1994, exhibit B8 for the year 1994-1995, exhibit B9 for the year 1995-1996, exhibit B10 for the year 19961997, exhibit B11 for the year 1997-1998 besides exhibit B12-copy of title deed book, exhibit B13, the copy of pattedar pass book, exhibit B14, the copy of judgment in O.S. No.114/1999 and exhibit B15, the copy of decree in the said suit. DW2, Manchala Biksham, also stated in support of DW1 that she had purchased the suit land from Chintoju Satyanarayana and others and that her vendors delivered possession of the land to her. DW3 who was a neighbouring land owner had also stated that DW1 purchased the suit land from Chintoju Satyanarayana and others and that the plaintiff and her father were never in possession of the suit land and that the revenue authorities had issued title deed book in favour of the defendant and that the defendant is in possession since 1991. It is to be noted that even the sole plaintiff did not dispute the possession of the defendant since June 1991. The sole plaintiff’s case is that by virtue of fraudulent transaction under exhibit B2 the defendant had trespassed into the suit land after obtaining exhibit B2 in the year 1991. Therefore, the documents showing the possession of the defendant subsequent to 1991 are of no avail to the defendant. The decree and judgment in the suit for perpetual injunction filed in the year 1999 by the defendant are of no avail as the present suit is for declaration of title and recovery of possession. As already noted one of the vendors of the defendant under exhibit B2 did not support her case during his evidence as PW3 and his evidence remained unchallenged. His evidence also would show that he and his brothers had knowledge of enjoyment of the suit land by the plaintiff and her sister as owners.

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12. (c) Therefore, a careful and analytical examination of evidence would show that the plaintiff had established her title to the suit schedule property as required under facts and in law and is therefore, entitled to the relief of declaration of title.

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12. (d) The learned counsel for the defendant relied upon the following three decisions: (i) K. Mallikarjuna Vara Prasad v. K. Poornachander Rao (died) and others^[1] ; (ii) Mohan Lal (deceased) through his LRs v. Mirza Abdul Gaffa r^[2] and (iii) P.T. Munichikkanna Reddy v. Revamma^[3] . The decision in K. Mallikarjuna vara Prasad case (1 supra) is relied upon in support of the proposition that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property and that the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. The decision in Mohan lal case (2 supra) was also relied upon in support of the proposition that when a party is in possession of suit land pursuant to an agreement, the plea of title by adverse possession is not available to him. The decision in P.T. Munichikkanna Reddy case (3 supra) is also relied upon in support of the same proposition that when a party’s claim is founded on an agreement of sale with possession and also on the provision of Section 53A of the Transfer of Property Act, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession and that thereby the plea of adverse possession is not available to such agreement holder. Having regard to the ratios in the above three decisions, what is to be noted is that the plaintiff’s father purchased property from his vendors under exhibit A29; and the said document deals with an out and out sale transaction; under the said document the execution of no further document was contemplated; further, the vendors covenanted that they and their legal representatives are not going to dispute the title of the father of the plaintiff who is the vendee under exhibit A29. The vendors of the plaintiff’s father and their legal representatives are not disputing the fact that the father of the plaintiff had acquired title against them by long possession and prescription. The title by prescription is claimed based on long possession and possessory title on extinguishment of the right of the vendors by virtue of provision of Section 27 of the Indian Limitation Act. As per the provision of Section 27 of the Indian Limitation Act, the law is well settled that

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when a person acquires title by adverse possession and the real owners fail to recover possession from such occupant of the property within the statutory period, the right of the owners to such property stands extinguished at the determination of the period limited to owners for instituting a suit for possession of the property. Therefore, this section of law of limitation not only bars the remedy of the real owners but also extinguishes their title/right to the property. Further, in the decision in M.Lakshmi Devamma Vs. Land Acquisition Office r^[4] a Division Bench of this Court held as follows: “It is now well settled that in the case of an invalid or void sale the purchaser would be in possession and adverse to the title of the vendor and that even though the sale itself does not confer any title immediately still the vendee acquires a valid title on the expiry of 12 years from the date of sale by virtue of the provisions of Sec. 27 of the Indian Limitation Act read with Article 64 thereof. It is also well settled that the position is no different in the case of an oral sale of immovable property of a value more than Rs.100/-. In the latter case also the vendee acquires title by adverse possession on the expiry of 12 years from the date of the oral sale.” Further, in the decision in Mohd.Kareemuddin Khan (died) and others v. Syed Aza m^[5] a Division Bench of this Court referred to various precedents and also the decision in Achal Reddy v. Ramakrishna Reddia r^[6] wherein it was held as follows: - ‘The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his

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enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is clear manifestation of the intention of the owner to divest himself of the right over the property.’ Having referred to the above decision, the Division Bench summed up the proposition of law as follows: - ‘The position of law being thus, we proceed on the footing that even if the sales in favour of the respondent-defendant were void for any reason, yet if he was in possession of the properties in pursuance of the invalid sale deeds his possession would be ipso facto adverse to the appellants.’ There is no dispute with the legal proposition that when a suit is filed for recovery of possession based on title the plaintiff has only to prove her title. It is for the defendant to prove acquisition of title by adverse possession. The plaintiff need not prove her possession within twelve years preceding the suit to recover possession, though in the case on hand, such possession is established by the plaintiff. In the absence of plea of adverse possession, the issue as to suit being barred by limitation does not arise for a decision. This proposition finds support from the decision in Bayyarapu

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Narayana Raidu v. Pagadala Varlaxm i^[7] .

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Therefore, the law of limitation also supports the case of the plaintiff that her father acquired title by prescription and that the title of the vendors of the father under exhibit A29 stood extinguished on the determination of the period limited to them for instituting a suit for possession of the property. Coming to the contention of the defendant based on the provision of Section 6 of the Specific Relief Act, it is to be noted that the said section deals with a suit by a person dispossessed of immovable property. This section says that if a person is dispossessed without his consent of immovable property otherwise than in due course of law, he and or any person claiming through him may, by a suit, recover possession thereof notwithstanding any other title that may be set up in such suit. The limitation for such a suit is six months from the date of dispossession. The purpose behind this section is to restrain

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a person from using force and dispossess a person without his consent otherwise than in due course of law. The question of title is irrelevant in a suit of this nature filed having recourse to section 6 of the Specific Relief Act. In the case on hand, the suit is for declaration of title in respect of immovable property and for recovery of possession thereof. Hence, the court of first appeal is correct in stating that the provision of Section 6 of the Specific Relief Act has no application to the case on hand. Viewed thus, this Court finds that the first appellate court had properly appreciated the facts and had applied the correct principles of law and that therefore, there is no perversity in the judgment of the Court below on any aspect.

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12. (e) Before taking up finally the 2^nd substantial question originally formulated, it is necessary to refer to the contentions of the learned counsel for the defendant/appellant based on precedents. The decision in Chatti Konati Rao v. Palle Venkata Subba Rao^[8] is relied upon in support of the settled proposition of law that mere possession however long does not necessarily mean that it is adverse to the true owner and that adverse possession really means the hostile possession which is expressly or impliedly in denial of the title of the true owner and that in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner and that the classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owners title must be peaceful, open and continuous. In the case on hand, neither the vendors nor anybody claiming through them are disputing the possessory ownership of the plaintiff and her father who is her predecessor. Further, even the vendors of the defendant are supporting the enjoyment and ownership of the suit land by the plaintiff and her sister. This court already held that the possession obtained under exhibit A29 coupled with A31 by the father of the sole plaintiff had blossomed into possessory title/ownership in the facts and circumstances of

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the case. The decisions in S.Kesari Hanuman Goud v. Anjum Jehan^[9] and Janaki Vashdeo Bhojwani v. Indsind Bank Ltd. ,^[10] are relied upon in

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support of the proposition that a GPA holder cannot depose for the principal in respect of a matter, as regards which only the principal has personal knowledge and in respect of which the principal is entitled to be cross examined and that the power of attorney holder can appear, apply or act in any court but such act cannot be extended to depose in the witness box in the place of the principal. The learned counsel for the defendant herein had thus contended that the non examination of the sole plaintiff is fatal to the case of the plaintiff and that the evidence of GPA holder is not sufficient to establish the alleged case of the plaintiff. In the case on hand, since PW1 is the daughter of the sole plaintiff and as her evidence spells out that she is having knowledge of the facts, her evidence cannot be brushed aside by saying that the sole plaintiff is not examined. Moreover in a suit for declaration of title in respect of immovable property, the documentary evidence is of significance. In fact, by orders dated 02.01.2004 in I.A. No.786/2003 the trial Court accorded permission to PW1 to appear as a witness on behalf of her mother/the sole plaintiff. In the case on hand, though PW1 had originally appeared as a witness (PW1) in the suit filed by her natural mother, during the pendency of the proceedings, her mother had died and recognizing her right of inheritance and her right to prosecute the proceedings, she was permitted to be brought on record as the second respondent (2^nd plaintiff) in this second appeal. Therefore, she is now a party to the present proceedings having acquired right through inheritance, which had opened in her favour after the death of her natural mother. Therefore, though as on the date of institution of the suit and as on the date of her evidence, PW1 has no title to the suit property, on the death of her mother she had acquired the right through inheritance which had opened in her favour after the death of her natural mother during the pendency of this second appeal. Therefore, her evidence cannot be brushed aside by stating that she is not a party interested in the property involved in the lis. Moreover the question is as to whether any material witness was not examined. In this case the father of the sole plaintiff, who had purchased the property under exhibit A29 and had paid the balance sale consideration under exhibit A31, and the vendors under exhibit A29 are all no more. The sole plaintiff had examined PW2, who is the attestor of

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exhibit A29 and the scribe of exhibit A31 receipt. This material witnesses was not cross examined on behalf of the defendant. Thus, the evidence of PWs2 and 3 which remained unchallenged due to non cross examination of the said witnesses coupled with the evidence of PW1 and the documentary evidence can be considered sufficient by any standards to record a finding in favour of the plaintiff. The decisions in Sundaram v. Lakshmikantha m^[11] and Union of India and others v. Vasavi Co-operative Housing Society and others^[12] are relied upon in support of the proposition that in a suit for declaration of title the plaintiff can succeed only on the basis of a valid title to the property and that the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendant would not be a ground to grant the relief. Keeping in view the above settled proposition of law the relevant findings are recorded in the case on hand. In the instant case, after considering harmoniously the evidence in entirety, it is held that the plaintiff’s title is proved; and, the evidence on the side of the defendant is further examined; and on such examination it was noticed that the evidence on the side of the defendant is not sufficient to dislodge the case established by the plaintiff; therefore, it follows that the plaintiff is entitled to the relief prayed for. Moreover, in this case, when the plaintiff’s title on the basis of long possession and prescription is held established on the facts peculiar to the case, the decisions relied upon are not helpful to the defendant.

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13. Coming next finally to the question in regard to non-joinder of the vendors of the defendant as parties to the suit, the defendant claims that she had purchased the property under a registered sale deed under exhibit B2 from her vendors. Therefore, when she claims absolute title under exhibit B2, there is no need to implead her vendors in a suit by the plaintiff for declaration of title and recovery of possession from the defendant, more particularly when the vendors of the defendant are not disputing the claim of the plaintiff and are not in possession of the property. Exhibits B1 to B4 are sale deeds got executed by the plaintiff through the pattedars in respect of lands in survey

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no.62. Exhibit A1 is the ceiling declaration under which plaintiff’s husband has shown Ac.3.63 cents in survey no.63 in his holding. Except the defendant, nobody is challenging the right of the plaintiff. Further, PW3, one of the vendors, under exhibit B2 sale deed of the defendant deposed against the defendant and in favour of the plaintiff and therefore, it is for the defendant to examine the other executants of her sale deed but, she did not do so. PW3 had categorically stated that at the time when the defendant had obtained exhibit B2 sale deed from him and his brothers, he had stated to her that he and his brothers are not the owners of the land and that the land belongs to the plaintiff and her sister and that despite his statement, the defendant had obtained a registered sale deed from them in respect of the above land by paying some meagre amount. Therefore, one of the vendors of the defendant fairly concedes that he and his brothers who are the vendors of the defendant have no title to the property. The law is well settled that unless a person is competent to transfer the property, valid transfer cannot take place and that title in the property does not pass to the transferee if the transfer is made by a person without title. The settled legal position finds support from the decision

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in Yanala Malleshwari and others v. Ananthula Sayamma and others^[13] . Therefore, when the vendors of the defendant are not supporting her case and when it is possible to hold that exhibit B2 is not a true document and is sham in nature there is absolutely no necessity for the plaintiff to implead the vendors of the defendant as parties to the suit. Moreover the question in regard to the non joinder of a necessary party is also a mixed question of fact and law. Further, non joinder of the vendors of the defendant does not affect the merits of the case of the plaintiff and therefore, the decree of the first appellate court need not be reversed on account of the non joinder of the vendors of the defendant. Hence, the second question of law raised has no substance.

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14. In this second appeal, in view of the provision of Section 100 of the Code of Civil Procedure, the appeal shall be heard on the questions formulated and the court cannot make a roving enquiry into the facts and cannot consider questions which are not involved in the second appeal and

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also cannot re-examine the questions of fact or consider questions, which are not pleaded and which are not the subject matter of any issue. Adjudication of any questions without formulating substantial questions of law is impermissible. Therefore, any contentions raised on issues which are not covered by the formulated substantial questions of law are of no avail to the defendant and such contentions need not be countenanced.

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15. Accordingly, all the substantial questions, in the well considered view of this Court have to be necessarily answered in favour of the second respondent/second plaintiff and against the appellant/defendant.

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16. In the result, the Second Appeal is dismissed. The defendant/appellant is granted a time of two months from today to deliver vacant possession of the plaint schedule property to the 2^nd respondent. Failing compliance, the 2^nd respondent is at liberty to recover possession in accordance with the procedure established by law. There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this Second Appeal shall stand dismissed.

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____________________________ M. SEETHARAMA MURTI, J

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22^nd December 2014

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Note: L.R. copy to be marked (B/O) MVA

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[1] 2006 (6) ALD 333 [2] AIR 1996 SC 910 [3] AIR 2007 SC 1753 [4] [AIR 1985 AP 200]. [5] 1997(2) ALT 625 (DB)

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