Allowed

M.Mogulaiah (died) v. Ramchander

Telangana HC9 Aug 2023SA/161/2017

Case brief

AI extract

What is this about?

Second Civil Appeal regarding recovery of possession and adverse possession. The High Court allowed the appeal, setting aside the first appellate decree and restoring the trial court judgment that dismissed the suit, finding the limitation bar applicable.

What did the court decide?

Judgment and decree of the lower appellate court set aside; Trial Court judgment dismissing the suit for recovery of possession restored.

M.Mogulaiah (died) Vs Ramchander — Property and Title | Telangana HC (2023)

¶1

[³²⁵⁸ I

¶2

IN THE^{HIGH COURT FOR THE STATE OF TELANGANA} AT HYDERABAD

¶3

WEDNESDAY,^{THE MNTHDAY OF AUGUST} TWO THOUSAND^{AND TWENTYTHREE}

¶4

PRESENT

¶5

THE HONOURABLE^{SRt JUSTICE SAMBASIVARAONAIDU}

¶6

SECON^{D APPEALNO:161 0F 2017}

¶7

Appeal under^{section100 of C'P'Cagainst the Judoment and Decree Dated} 30.11.2016 made^{in n sNo]i is -oi iooEontn". file. oi the Court of the XXVII} iiiiiio]-)ii"ciiLi-Juoge,^{cit; civit courr,secunderabad preferredasainst- the} jffiI"ne;i ,""i rj."[d i, o d.r.ro- iro of iooo oatea o743-2oo7 on^{the file of the} A;i;';j'il; ill 5.nioicirii^{Lrose, citv civil court,secunderabad'}

¶8

Between:

¶9

M.lvtogulaiah^{(died), per Lrs( D2 to D9 rivere brought on recordLrs of D1)}

¶10

M.Narasamma^{(Died), Per Lrs (D3 to D5andDgwere broughton recordas} Legal heirs of^D2)

¶11

M. Satyanarayana,^{s/o late Mogulaiah, aged 58 years' Occ Dhobi'}

¶12

M Babu, s/o^{late Mogulaiah, aged55 years,Occ Dhobi'}

¶13

trrl.Pandu.^{s/o late lvlogulaiah, aged5O years, Occ Dhobi'}

¶14

6 Smt.shakuntala,^{w/o late Babu rao,aged 65 years'}

¶15

Smt Leeia,^{w/o late C-s.satyanarayana,aged64 years}

¶16

8 Smt Shashi^{(died), per lrs.Appelants10 and 1 1}

¶17

Mrs^{Savitri, w/o C.Shekar-aged59 years}

¶18

10 B.Ra;ani,^{d/o late Mogulaiah aged3O years}

¶19

1 1 B.Vanara. d/o^{Late Mogulaiah, aged 24years all} a(e R/o ' u No 93/J, Nallagutta, Secunderabad'

¶20

...AppellanUDefendants

¶21

AND

¶22

1 Ramchander, sio^{Lingaiah,(died)per lrs} 2 Smt K.Andalu,^{w/olate K'RamchanderAged 52 years'occHousehold'} 3 Ch Hemalatha,^{w/o late K RamchanderAged 40 years'occ Household} 4 K Bhasker, s/o^{late K RamchanderAged 38 years,occ Service} 5 N Dhana^{laxmi, d/o late K RamchanderAged 36 years'occHousehold}

¶23

6 K Saibaba,^{s/o late K RamchanderAged 34 years'occService}

¶24

M.Sarithir,^{D/oLate K.RamchanderAged 3'l years'occ Household' All are Rl/o} '' ir.No.zi-'oos,J/93 Ramgopalpet,Secunderaabd

¶25

...ResPondents/Plaintiffs

¶26

s P. NO: 37' t oF²⁰¹⁷

¶27

Petition rnder^{Section 151CPC praying thatifl the circumstancesstated in} the affidavit^{fil,:d in supportof the peiilion,ine Higtr} -Court^{may be pleased-to} ;;;p;;'th.^{olierationbi tnu} lrog."nt^{and decree dt'30'11'2016' passedin A'S} N".iiS .f 20Oil^{on the fite of thJ XXVII Additional Chief Judge, City CivilCourt'} Secunderabad.

¶28

Counsel for the^{Appellant : SRl. P RAMCHANDER}

¶29

Counsel forthe^{Respondents:SRI'D MADHAVARAO}

¶30

The Court delirrered^{the following:JUDGMENT}

¶31

HONOURABLE^{SRI JUSTICESAMBASIVARAO NAIDU}

¶32

S.A.NO.161 of²⁰¹⁷

¶33

JU DGMENT:

¶34

This Second Civil^{Appeal has been filed bythe} appellants/defendants^{under Section 100 of C'P'C' against the} judgment and decree of^{the first appellate Court in AS'No'119of} 2008dated30-11-2O16,whereunderthefirstappellateCourt allowed the appeal^{preferredby the respondents/plaintiffs'by} setting aside^{the judgmentand degree of the trial Courtin} OS.No.216^{of 2000 dated 07-03-2007'}

¶35

According to the^{record placedbefore this Court'} oS.No'2l6or2000hasbeenfiledbythefirstrespondent/plaintiff for recovery of^{possessionof the suit scheduleproperty' The wife} of respondent/plaintiff^{being GPA holder filed the suit against the} first defendant^{and in view of the death of defendant No'1during} the course of trial,^{his legal representativeswere impleadedas} defendantsNo.2togandtheyhavecontestedtheSuitbeforethe trial Court

¶36

According to the^{plaint filed by the trial Court' it was} claimed on^{tlehalf of the respondentthat the father of 1't plaintiff}

¶37

SSRN '' S a-No-161 of m17

¶38

¶39

was the orvner of a house which includes the suit schedule property ha ring purchased the same from Municipal Corporation of Hyderabad rrnder a registered sale deed dated 25-08-1981.

¶40

It was further contended in the^plaint that even^prior to purcha.se of the house, the same was allotted to the^father of the first pla ntiff in 1963 and during his life time. the^father of the first plalntifl'permitted defendant No.1 to occupy a^portion of^the house whiclt is shown suit schedule^property, thereby, the^first defendant has been in^{permissivepossession} of the suit^schedu{e propefi. The respondents/plaintiffs have claimed that after the death of fa1:her of first^plaintiff, he^succeeded the^{suit schedule} property in the year 1992 and subsequently during 200O, he has terminated the^{permissiongiven} to frrst defendant by^{issuing a} legal notice and by demanding him to^vacate the^property.

¶41

iowever, defendant No.l failed to vacate the^suit schedule property and contended that the suit^{schedule property} and other portion of the house rn the^occupation of^plaintiffwas allotted.to one Sundaraiah in 1934 and on the^{invitation of said} Sundaraiah, who was a bachelor with^{someill-health,} the^first defendant^j rined the said Sundaraiah and started^{living in the} house, ther()after, on the request of Sundaraiah,^{defendantNo.1}

¶42

l?,

¶43

55RN,J s.A.No.161 0f 2017

¶44

paid rents for the said house to the Municipal Corporation. The said Sundaraiah engaged the father of first plaintiff namely Lingaiah as his servant, who was also allowed to live in the.house with Sundaraiah and first defendant. Subsequenuy, Sundaraiah died in 1954. Thereafter, father of plaintiff No.1 and first defendant lived in the entire house. There was a partition between father of plaintiff and first defendant in 1957 and since then they have been residing in their respective portions. The father of 1st plaintiff never raised any objection for the occupation of suit schedule property by the l't defendant and his family. Therefore, the defendants have claimed that they have perfected their title to the suit property by adverse possessron.

¶45

The third defendant filed additional written statement before the trial Court stating that derendant No.1 obtained electricity service connection, water connection From the respective authorities. He has been paying electricity charges, water charges for more than 30 decades. Therefore, they have perfected their title on the suit schedule property, and prayed for dismissal of the suit.

¶46

Based on the pteadings of both parties, the trial Court framed certain issues on 04-04-2001 and it appears that some

¶47

¶48

SSRN,' 5.A.No.l6t ol20l7

¶49

more issu€s were framed on 25-04-2005. However, the triat Court having floticed that two sets of issues have been framed during the course of time, considered that issues framed on 04-04-2001 wi{l serve the purpose of the suit and ignored the issues dated 25-04-2001i and proceeded with the triat. During the trial, the wife of first plaintiff has been examined as^pW.1 and she has marked Exs.Al to AB. DWs.1 to 3 were examined on behalf of defendants and they have marked Exs.81 to 813 and record summoned from the Municipal Authorities has been marked as Exs.Xl and X2. The learnerj trial Judge having appreciated the record. evidence and docurrents, disrnissed the suit by judgment dated 07-032007.

¶50

B. Being ag,grieved by the judgment, the tegal representatives of the original plaintiff who were brought on record by virtue of orders in IA.No.1890 of 2012 fited AS.No. 119 of 2008 before the learned XXVII Addl. Chief -ludge, City Civil Court, the said appeal was allowed by the first appellate Court by setting aside the^judgment and decree of the trial Court and OS.No.216 of 2000 has been decreed in favour of the plaintiffs in the origina I suit

¶51

7^r lr-

¶52

SSRN,J S.A.No.r61of^mr7

¶53

Being aggrieved^{by the said judgment,tfrc appellants} i.e., defendants^{have filed this secondappeal by raising the} following four^{substantial questions of law:}

¶54

Whether the^{interpretationof the lower appellate Court that} ' the appellants^{herein are in permissive possessionof th€} suit ProPertY?

¶55

Whether a misconception^{and mis-interpretationof the} pleas taken by the^{lower appellateCourt amounts to error} of law?

¶56

Whether a decree^and Judgment^{of the trial Court canbe} reversed on the^{basis of surmises, conjectures?}

¶57

The following^{are the grounds on which the appellants}

¶58

have filed the^aPPeal:

¶59

The^{judgment and decree of the first appellateCourtis} contrarytolaw,weightofevidenceandprobabilitiesofthecase' thereby, not^{sustainable.In this case, they have noted that the} burden of^{proving permissivepossessionis on the respondentbut} thecouftbelowcommittedanerrorinnotdrawingadverse inferenceagainsttherespondentsfortheirfailureinnotadducing evidence and for^{the failureoF the original plaintiff in enteringinto} thewitnessbox.Therespondent/plaintifffailedtodischargethe onus of^proof that^{the appellants/defendantsare in permissive} possession of the ProPertY.

¶60

¶61

55RN,I s_a.No.16t of 2017

¶62

The judgrnent and decree in AS.No.119 of 2008 is not on the bar;is of proper appreciation of facts and evidence. The first appellate court should have noted that the respondents/plaintiFfs are not entitled to rely on the weakness of the defendank;/defendants and they have to stand on their own legs but the lorver appellate Court mis-interrupted the law relied on by the appell. nts.

¶63

L2. The appellants further contended that the lower appellate rlourt misconstrued the case law cited and gave an erroneous reasoning whith cannot be sustained either on Facts or in law. Tl-ereby, they have claimed that the Court below should have dismissed the aBpeal instead of allowing the same by disturbing well rsasoned judgment of the trial Court, as such, sought for setting aside the judgment and decree of the lower a ppellate Crturt.

¶64

This second appeal has been admitted by this Court on

¶65

the followin 7 substantial questions of law:

¶66

1 Whether the finding recorded by the lower appe ate Court that the appellants are in permissive possessron rs correct) 2 Whether the misconception of pleas taken by the tower lppellate Court would amount to error of law 7 3 /Vhether the lower appellate Court went wrong rn noI ,:onsidering the Fact that in view of Sectron 2Z of te

¶67

7 SSRN,I S a.tto.l6l of 2Ol7

¶68

¶69

Limitation Act, the respondent/plaintiff^{is not entitledto th€} relief of recovery of^{possessionfrom the appellants?}

¶70

L4. As per the^pleadinqs and^{evidence placed before the'} Court, it shows that the^{suit scheduleproperty consisting of two} differert portions, which are^{in occupation of the families of} plaintiffs and defendants. The 1st^plaintiff who filed^{the suit for} recovery of^possession of the^{portion whichis in possessionof the} defendant specifically^{pleaded that his Fatherby name Lingaiah} purchased the entire property from the Contonment^througha registered document. The^{first defendantwas allowedto stay in a} portion of the house, thereby^possession of defendant^{No.1 and} after his death^possession by^{the family membersof defendant} No.1 is a^{permissive possession,thereby, they are liable to vacate} the property.

¶71

Whereas, it is the^{specificcontentionof defendants} that much prior to 1934,^{the housebearing blockNo.93-lwas} allotted to one Sundaraiah^{and on the invitation ofsaid} Sundaraiah, who was a^{bachelor and sufferrngfromsome} ill-health, the first defendant^{joined the said Sundaraiahin the suit} house and subsequently, Sundaraiah^{engaged the father of First} plaintiff as a servant and allowed him to stay in the same^house.

¶72

(

¶73

S5RN.' s.a-No-151 0l 20r7

¶74

¶75

The said Sundaraiah died in 1954. Thereafter, the father of first plaintiff an(l first defendant jointly resided in the house. There was a partition among Lingaiah and Mogulaiah, the first defendant in 1957. They have been staying in their respective portion. There was no interference by anybody.

¶76

In addition to this contention, the defendants have also claimed that during the course of time, the family members of first defendant lrave obtained separate electric city, water connection and they have been^paying respective charges to the concerned Municipal Authorities. There was no demand by the above said Lingaiah for vacation, recovery of possession, Therefore, it is not permissive possession and they perfected their title, thereby, sought for clismissal of the suit.

¶77

The trial Court accepfed the contention of defendants and dismissed the suit. On appeal, the first appellate Court having re-apprecialed the evidence, disbelieved the contention of defendants and having accepted the claim of^plaintiff that the property wils originally purchased by Lingaiah which is evident from Ex.44 and even though the defendants^produced electricity bill payment receipts, their possession being^permissive possession, they cannot claim any right on the property and

¶78

,..

¶79

55RN,J S.a No.16l of 2017

¶80

¶81

allowed the appeal^passing a degree in^favour of^{the plaintiff for} recovery of possession.

¶82

The second appeal has been admitted on three substantial^questions of law about the finding of lower appellate Court in respect of^{permissivepossession} of the defendant and whether the plaintiffs are not entitled to sought for recovery of possession in view of Section 27 of Limitation Act.

¶83

In view of the specific cont€ntions raised by the^parties and in view of the evidence^placed before the Court. it is^quite clear that the father of first plaintiff by name Lingaiah and first defendant Mogulaiah resided in the suit schedule^property since a long time. The evidence produced before the Court indicates that the house was originally in^possession and occupataon of Sundaraiah, who died later and the records summoned from the Municipal Authorities indicates that a sale deed vrde Ex.A4 was obtained in the name of Lingaiah. It is also a fact from the evidence that defendant No.1 is in^possession of the^property right from 1957. The First appellate Court having consrdered the oral and documentary evidence held that there is^proof in support of the contentions raised by the plaintiff about the^purchase of the property under Ex.44 in favour of Lingaiah. The defendants though

¶84

¶85

¶86

SSRN,I S.A.No.16l of 2017

¶87

pleaded thirt Lingaiah and Mogulaiah purchased the property could not substa ntiate the claim and were not able to prove the first defendant :ontributed consideration for purchasing the house. To that extenl:, there is sufficient evidence in favour of the plaintiff and defe.nriants are not able to show that both the father of plaintiff No 1 and first defendant purchased the property.

¶88

The evidence placed by the parties clearly shows that the first pltrintiff, who filed the suit through his wife did not enter into the witness box. Whereas, the wife of the first plaintiff herself adduced th3 oral evidence. As rightty held by the trial Court, PW.1 who came to the house as a wife of plaintiff No.1 may not have sutficient krrowledge about the circumstances under which the first defendant ,lnd his family members were allowed to stay in the house. In order to depose about the said facts, the first^plaintiff is an appropriate^person but he did not enter into the box and kept quiet. Therefore, an adverse inference can be drawn in favour of the defend.rnts holding that the best available evidence about the alleged perrnrssrve^possession of the defendants is with held by the pla in tiff.

¶89

2l . As rightly held by the trial Court, there is no explanation from the plaintiff as to why they allowed the first

¶90

5SRN,I 5.A.No.l5l ot 20l7

\ i

I I

defendantandhisfamilymemberssincelg5T.Inspiteofthefact that the defendants^{obtained separate electricity meter, separate} water connection^{and enjoyingthe property for more than 30} years. .^{There is no explanationfrom PW' 1 or from the other} evidence to accept^{the contention of the plaintiFfsthat the} possession of defendants on^{the suit schedule house portion is only} a^{permissivepossession.The first appellate Court having held that} the^{property was purchasedby Lingaiahwithout any basis,came} to the conclusion^{that the possessionof the defendants on the suit} house is a^{permissivepossession.In order to show that it is a} permissive possession, the best^{witness couldbe the first plaintiff} whose evidence was^{withheld'The plaintiffs are not able to explain} why they allowed the^{family of defendantsto remain in half of the} house without any evidence^{about the payment of rent or} consideration.^{The circumstancesand evidence placed before the} Court shows that the^{defendantsare enjoyingthe suit property as} if, they are owners by obtaining^{electricityconnection,water} connection and even without^{payingany rent The propertYis} srtuated in the Heart of the^{city. Therefore, it is quite natural for} real owners to seek eviction^{and recoveryof the property which} was not done during the lifetime^{of Lingaiahand even though, the}

¶96

¶97

55RN,J S.A.ilo.161of 2017

¶98

first prairtiff fired a suit but did not try to appear before the court to substa ltiate his contention.

¶99

, 22- Therefore, absorutery there is no evidence to believe that the filmiry oF the first defendant were arowed to remain in the property by way of a permissive possession. As such, the contention of the defendants that they are enjoying the property by perfecting tifle by the adverse possession could have been accepted lry the first appet,ate Court. The suit flled by the first plaintiff for recovery of position is barred by rimitation. Therefore, the appeal is entiUed to be allowed.

¶100

In the result, the appeal is allowed. The judgment of the first apllellate Court is set aside restoring the judgment of the trial Court by which the suit fited by the plaintiff was disrnissed.

¶101

Consequenuy, Misce aneous applications if any, are closed. No cosits.

¶102

SDl. B.S. CHIRANJEEVI, JOINT REGISTRAR.

//TRUE COPY//

sEcTto OFFICER

To,

The X) Vll Additronat Chref Judge, City Civil Court, Secunderabad (With recordlr, iI any)

¶107

The lll Senior Crvrt Judge, Crty Crvil Court, Secunderabad

¶108

One CO to SRt P RAM CHANDER, Advocate [OpUCl

¶109

One CO to SRt D MADHAVA RAO, Advocare tOpUCl

¶110

5, Two C[) Copres

ADK

61v

HIGH COURT

DATED:09108t2023

JUDGMENT+DECREE

SA.No.161 ot 2017

STATE
i oA
?( lut .bo
C ri
lt
+.
o
i( nts F r,j

¶119

ALLOWINI3 THE SA WITHOUT COSTS

¶120

¶121

IN THE HIGH COURT^{FORTHE STATE OF TELANGANA} AT HYDERABAD

¶122

WEDNESDAY, THE NINTH DAY OF AIJGUST TWO THOUSAND AND TWENryTHREE

¶123

PRESENT

¶124

THE HONOURABLE SRI JUSTICE SAMBASIVARAO^NAIDU

¶125

SECOND APPE NO: 161 OF 20'17

¶126

Between:

¶127

'l . M.Mogulaiah (died), per Lrs( D2 to D9 were brought on record Lrs of Dl )

¶128

M.Narasamma (Died), Per Lrs^(D3 to D5andD9 were^{brought on record as} Legal heirs of D2)

¶129

M.Satyanarayana, s/o late Mogulaiah, aged^{58 years, Occ Dhobi,}

¶130

M.Babu, s/o late Mogulaiah, aged 55^years, Occ^Dhobi,

¶131

M.Pandu, s/o late Mogulaiah, aged 50^years, Occ^Dhobi,

¶132

Smt.Shakuntala, W/o late Babu rao,aged 65^years,

¶133

Smt.Leela, w/o late C.S.Satyanarayana,aged 64^years

¶134

Smt.Shashi (died), per lrs.Appelants 10 and¹¹

¶135

Mrs.Savitri, w/o C.Shekar.aged 59^years

¶136

B.Rajani, d/o late Mogulaiah aged 30 years

¶137

1 1. B.Vanaja, dlo Late Mogulaiah, aged 24^years all ate^R:/o H.No.93/J, Nallagutta, Secunderabad.

¶138

...AppellanUDefendants

¶139

AND

¶140

1 Ramchander, s/o Lingaiah,(died)per lrs

¶141

2 Smt.K.Andalu, w/o late K.Ramchander Aged^{52 years,occHousehold.}

¶142

3 Ch.Hemalatha, Wo late K.Ramchander Aged^{40 years,occ Household.}

¶143

4 K.Bhasker. s/o late K.Ramchander Aged 38^{years,occ Service} N.Dhana laxmi, d/o late K.Ramchander Aged 36^{years,occHousehold.}

¶144

6 K Saibaba, s/o late K.Ramchander Aged 34^{years,occ Service}

¶145

7 M.Saritha, D/o Late K.Ramchander Aged 31^{years,occHousehold.All are R/o} H.No 2-4-609,J/93 Ramgopalpet,Secunderaabd

¶146

...Respondents/Plaintiffs

¶147

Appealun<lersectionl0oofC.P.CagainsttheJudgmentandDecreeDated 30.1,1.2016 mad() in^{A.S' No. 119 of 2oo8 on the file of the Court of the XXVII} Additional chief Judge,^{city civil court,secunderabad preferredagainst the} Judgment and Dt:cree^{in o.s.No. 216 of 2000 dated 07-03-2007 on the file of the} Court of the lll St:nior^{CivilJudge, City CivilCourt, Secunderabad'}

¶148

oRDER: This second^{appeal coming on for hearing, uponperusing the grounds of} appeal, the^{judgrnentand Decreeof the Lower Appellatecourtand the court of} the First lnstanc e^{and the material papersin the Suit and upon hearingthe} arguments of SRI.P^{RAM CHANDER, Advocatefor the Appellantand SRI'} D MADHAVA RAr),^{Advocatefor the respondents.}

¶149

This Court doth^{C rder and Decree as follows:}

¶150

That the Jttdgment^{and decree of the Lower Court passedin A.S.119 of 2008} on the file tf ine Court^{of the XXVII Additional Chief Judge, City Civil Court,} Secunderabad^be and^{herebyis set aside by restoring the Judgment of the} Trail Court by which^{the suitfiledby the Plaintiff was dismissed; and}

¶151

That there shall^{be no order as to costsin this second appeal}

¶152

SD/. B.S. CHIRANJEEVI, JOINT REGISTRAR.

//TRUE COPY//

SECTION OFFICER

To,

The XXV I Additional Chief^{Judge,City Civil Court, Secunderabad (With} records, if any)

¶157

The lll Senior Civil Judge,^{City Civil Court, Secunderabad}

¶158

Two CD^Oopies

ADK

HIGH COURT

DATED:09,!OB2O23

DECREE

SA.No.161 of 2017

ALLOWIN(i THE SA WITHOUT COSTS

M.Mogulaiah (died) v. Ramchander

Case brief

What is this about?

What did the court decide?

M.Mogulaiah (died) v. Ramchander

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/s. Reliance General Insurance Company Limited Vs P.Bichupalli

Bommidi Krishnaveni Vs B. Narsing Rao

United India Insurance Co. Ltd. Vs Vadla Lakshmi

D. Sanjeevaiah Vs N. Mogulaiah

The Managing Director and Another Vs Ashwin Kumar Kola

United India Insurance Compnay Limited Vs Mr. Garipally Jagadishwar And Another