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2005 DIGILAW 581 (AP)

Gade Hanmandlu v. Sri Rajarajeswara Swamy Temple

2005-07-01

L.NARASIMHA REDDY

body2005
( 1 ) THE plaintiff in O. S. No. 336 of 1993 on the fife of the Court of the Junior Civil Judge, jagtial, is the appellant. The suit filed by him, forthe relief of declaration of title and perpetual injunction was dismissed, and the counter claim filed by the 1 st respondent was decreed by the trial Court, through its judgment dated 29-01-2001. A. S. No. 1 of 2001 filed by him, in the Court of Senior Civil Judge, Jagtial, was also dismissed on 17-2-2004. Hence, this second appeal. ( 2 ) THE appellant claimed that he purchased the suit schedule property, admeasuring 2 guntas of land in Sy. No. 171, through a registered sale deed dated 14-04-1965 (Ex. A-1), from one Mr. Juwaji pullaiah, for a consideration of Rs. 1,000/-, and that ever since then, he was in possession and enjoyment of the same. It is his case that he obtained construction permission from the Municipality, Jagtial, on 10-02-1982 (Ex. A-9); commenced construction, by raising pillars, but could not proceed with, on account of financial difficulties. He complained that, attempts were being made by the 1st respondent, Sri Rajarajeswara Swamy temple, for construction of a Kalyana mantapam, through the Tirumala Tirupati devasthanam, the 3rd respondent, claiming that the suit schedule property belongs to the 1st respondent. Pleading this, and other relevant facts, he filed the suit for declaration of title and perpetual injunction. ( 3 ) THE suit was resisted mainly by the 1 st respondent. It was pleaded that the property purchased by the appellant, under Ex. A-1, is totally different from the one, shown in the suit schedule, !t was pleaded that the northern boundary of the land, purchased under ex. A-1, is the land of one Erra Ramulu, whereas the northern boundary of the suit schedule property is shown as the land of the 1st respondent. They alleged that, on the strength of an order of temporary injunction obtained from the trial Court, the appellant occupied the land, and in that view of the matter, it became necessary to them to seek the relief of recovery of possession, by way of counter-claim. ( 4 ) SRI M. Jagannath Sarma, learned counsel for the appellant submits that the so called discrepancy in the boundaries, between those in the schedule to Ex. A-1, and the one in the suit schedule, was on account. ( 4 ) SRI M. Jagannath Sarma, learned counsel for the appellant submits that the so called discrepancy in the boundaries, between those in the schedule to Ex. A-1, and the one in the suit schedule, was on account. of an intervening factor, namely, construction of distributory canal of Sriram sagar Project, inthe neighbourhood. Learned counsel points out that the suit schedule tallies with the one, shown in Ex. A-9; the construction permission obtained by the appellant way back in the year 1982, and that the Courts below failed to note this important factor. He submits that the appellant placed voluminous evidence before the trial Court, to establish that he has been in possession and enjoyment of the suit schedule property since 1965, and even if there existed any defect in title, or dispute about identity, the relief of injunction oughtto have been granted, and the counter claim made by the 1st respondent ought to have been rejected. ( 5 ) SRI A. Sudershan Reddy, learned counsel for the 1st respondent submits that the land of 2 guntas, purchased by the appellant through Ex. A-1, was adjacent to the plot of Erra Ramulu, lying on the northern side, whereas in the suit schedule, the northern boundary was shown as the land of the 1st respondent. He contends that, as of now, the land on the southern side of the plot of Erra Ramulu, is covered by Canal and roads, up to the width of 75 feet, and it is obvious that the land purchased through ex. A-1 was affected thereby. Placing reliance upon Exs. A-12 and A-13, learned counsel points out that the appellant was shown as one of the claimants in the reference made under the land acquisition proceedings, in the matter of payment of compensation, and despite the same, he made a false claim against the 1st respondent with an oblique motive. As regards various pahanies filed by the appellant, learned counsel submits that the appellant worked as a superintendent in the office of the Sub-Collector s Office, and by misusing his official status, he concocted those documents. ( 6 ) APPELLANT filed the suit for the relief of declaration of title and perpetual injunction, in respect of the suit schedule property. The land was said to have been purchased by him under Ex. A-1, dated 14-04-1965 from one Mr. Juwaji Pullaiah. ( 6 ) APPELLANT filed the suit for the relief of declaration of title and perpetual injunction, in respect of the suit schedule property. The land was said to have been purchased by him under Ex. A-1, dated 14-04-1965 from one Mr. Juwaji Pullaiah. The respondents resisted the claim by urging that the land purchased by the appellant is different from the one, shown in the suit schedule. They also made a counter claim for recovery of possession of the property. The trial Court framed the following issues in the suit as well as in the counter claim: in the suit:" (1) Whether the plaintiff is entitled for suit relief as prayed for? (2) To what relief? in counter claim: (1) Whether the defendant No. 1 is entitled to file his counter claim against the plaintiff in the main suit, even if the defendant No. 1 is not in possession and enjoyment of the suit property? (2) Is there any proof by the defendant no. 1 that he was in possession and enjoyment of the suit property? (3) Whether the suit land is located at the place where it is shown in plaint sketch plan? (4) Whether the defendant No. 1 is entitled to recover possession of suit land as claimed in counter-claim? (5) To what relief? additional Issue in counter claim: (6) "whether the location of the suit land as shown in plaint schedule sketch plan is the same which is purchased by the plaintiff from Late Javvaji pullaiah". ". ( 7 ) THE appellant deposed as D. W. 1. NO other witness was examined on his behalf. P. W. 2, is an Advocate-Commissioner, appointed by the Court. He ought to have been shown as the Court witness. Exs. A-1 to a-40 were marked on behalf of the appellant. D. Ws. 1 and 2 were examined and Exs. B-1 and B-2 were marked on behalf of the respondents. ( 8 ) THERE is no dispute as to the purchase of land by the appellant under Ex. A-1. Much controversy arose, on account of subsequent event, namely, acquisition of land in sy. No. 171, by the Government, for the purpose of excavation of a distributory canal of the Sriram Sagar Project. ( 9 ) THE record discloses that Sy. No. 171 is a larger area, and the 1st respondent had an extent of Ac. 7. 15. 25 guntas in it. No. 171, by the Government, for the purpose of excavation of a distributory canal of the Sriram Sagar Project. ( 9 ) THE record discloses that Sy. No. 171 is a larger area, and the 1st respondent had an extent of Ac. 7. 15. 25 guntas in it. The vendor of the appellant held some extent in the same survey number. Through Ex. A-1, the appellant purchased an extent of 2 guntas from Juvvaji Pullaiah. On the same day, the same vendor sold an extent of 2 guntas, with same dimensions, in favour of one Mr. Erra ramulu. This sale deed is marked as ex. B-1, at the stage of appeal. A comparison of the schedules of these two documents discloses that the plot purchased by Erra ramulu is on the northern side of the plot purchased by the appellant. No other plot or land existed in between these two plots. ( 10 ) THE eastern boundary, of both the plots is road and western boundary; is the land of the 1st respondent. The southern boundary of the plot purchased by the appellant under Ex. A-1, is also the land of the 1st respondent. . From this, it becomes evident that the boundaries of the plot purchased under Ex. A-1 are: north: Plot of Erra Ramulu; south: land of the 1st respondent; east: Road, and west: the land of the 1st respondent as against this, the boundaries of the suit schedule property are as under: north: land of the 1st respondent south: land of the 1st respondent east: road, and west: land of the 1st respondent ( 11 ) THIS substantial and radical difference in the boundary on the northern side was not at all explained by the appellant. Further, in the sketch filed by the appellant along with the plaint, depicting the suit schedule property, and in Ex. A-9, the permission obtained from the Municipality; the plot of Erra Ramulu ard the plot purchased by the appellant, which were adjacent to each other, are shown to have been separated by a canalof 75 feet and open land belonging to the 1 st defendant. The Court below have discussed this aspect and recorded a clear finding to the effect that the suit schedule property was not the same, as the one, purchased by the appellant under ex. The Court below have discussed this aspect and recorded a clear finding to the effect that the suit schedule property was not the same, as the one, purchased by the appellant under ex. A-1 ( 12 ) THE appellant would certainly have been entitled for a decree for declaration of his title and injunction, in respect of the property covered by Ex. A-1, if it existed on the ground. It is a matter of record that, certain extent of land in Sy. No. 171 was acquired for the purpose of digging a distributory canal, of Sri ram Sagar Project. In the notification issued under the Land acquisition Act (for short the Act ), the land purchased by the appellant, under Ex. A-1, was shown as having been affected. The said piece of land was dealt with, under the award passed by the Land Acquisition Officer. Since disputes arose, as to the payment of compensation, a reference was made to the court of Subordinate Judge, Jagtial, under section 30 of the Act. It was taken up as OP. No. 22 of 1981. The appellant figured as claimant No. 3. He did not press his claim in the O. P. , obviously, because he wanted to claim the land, in the rest of the survey number, which belongs to the 1 st respondent. He realized that if he receives the compensation, he cannot lay any claim for the land. ( 13 ) BEFORE proceeding with acquisition, the concerned revenue authorities undertake extensive survey and verification and notify the names of the affected parties. Normally, one comes across cases, where persons put forward with claims, at subsequent stages, particularly in the award enquiry, pleading that their names were omitted in the proceedings at various stages. Even if a semblance of interest is noticed, the matter is referred to the Civil Court. In the instant case, the reverse had happened. The appellant, who was shown as the person, whose land was acquired; disclaimed it. ( 14 ) ONCE it has emerged that the suit schedule property is not the same, as the one under Ex. A-1, the appellant was not entitled for the relief of declaration. ( 15 ) THE relief of injunction claimed by the appellant, and the one for recovery of possession, pressed by the 1st respondent through the counter-claim, deserve to be dealt with, together. A-1, the appellant was not entitled for the relief of declaration. ( 15 ) THE relief of injunction claimed by the appellant, and the one for recovery of possession, pressed by the 1st respondent through the counter-claim, deserve to be dealt with, together. ( 16 ) THE appellant sought to assert his possession over the suit schedule property, on the strength of Ex. A-9 and the entries in various pahanies. lt has come in the evidence that when the appellant started construction in the plaint schedule land, on the strength of the permission obtained under Ex. A-9, d. Ws. 1 and 2 and others, on behalf of D-1, had obstructed; and in fact, cut away the steel rods, used for raising pillars. The fact that, for the past more than a decade, the same condition subsists on the ground, discloses that the appellant did not exercise rights of possession over it. The pahanies are hardly of any use to it. The reason is that the land became part of the municipality and revenue records maintained in respect of agricultural land, do not have any bearing on such lands. Except making an assertion by himself, the appellant did not examine anyone, in support of his claim, that he is in possession of the suit schedule property. ( 17 ) THE 1 st respondent made a counterclaim for re-delivery of possession, by stating that the appellant entered into the land on the strength of the orders obtained by him in the i. A. , filed in the suit. With a view to resist the counter-claim, the appellant raised the plea of adverse possession. Learned Counsel for the appellant points out that the Courts below did not deal with this aspect. ( 18 ) FOR one reason or the other, the trial court did not frame any issue on the question of adverse possession. The appellant also did not insist on, framing of such an issue. However, it is permissible for a Court, to deal with a controversy, and to record a finding thereon, if the parties have recognized the existence of such controversy, and adduced evidence in support of the respective pleas. The appellant did not choose to adduce any evidence worth its name, in support of its plea as to adverse possession. However, it is permissible for a Court, to deal with a controversy, and to record a finding thereon, if the parties have recognized the existence of such controversy, and adduced evidence in support of the respective pleas. The appellant did not choose to adduce any evidence worth its name, in support of its plea as to adverse possession. ( 19 ) BY its very nature, the plea of adverse possession is predominantly, one of fact, and it acquires legal significance, only after the basic factual foundation is laid; obviously, through pleadings and evidence. A party pleading adverse possession, has to prove to the satisfaction of the Court, that he is in continuous possession, spread over a particular period, upon the property, such possession was as of right, open and was adverse to the interests of the other party. Under Article 65 of the Limitation Act, it is no longer necessary for a party seeking recovery of possession, to plead, as to when he lost the possession. On the other hand, it is for the party claiming adverse possession to prove that his possession was adverse to the rights of the actual owner and that such possession continued fora period, exceeding 12 years. ( 20 ) TO establish the plea of adverse possession, much more than mere assertion is needed. It is necessary to examine the persons, who have seen or witnessed such party exercising the rights of ownership, adverse to the interests of the other. Further, the possession should be in respect of a property, which, such party knows, that it does not belong to it. If he is in possession of any property under the impression that he is the absolute owner, it is rather difficult to import the theory of adverse possession to such cases. To certain extent, the lower appellate Court dealt with the plea. However, once it has emerged that the appellant did not lead any evidence, in support of his plea as to adverse possession, nor insisted on, framing of any issue, his claim in this regard, cannot be accepted. ( 21 ) FOR the foregoing reasons, the second appeal is dismissed. There shall be no order as to costs.