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2006 DIGILAW 1375 (AP)

Bhudevi v. Bhagirathi Bai

2006-11-07

C.Y.SOMAYAJULU

body2006
JUDGMENT Since these two second appeals arise out of the same judgment, they are being disposed of by a common judgment. 2. Appellant in Second Appeal NO.206 of 1996 is the plaintiff and appellants in Second Appeal NO.390 of 1996 are the defendants in the suit. For the sake of convenience, the parties would hereinafter be referred to as they are arrayed in the trial Court. 3. Plaintiff filed the suit as an indigent person for recovery of possession of the plaint schedule property which is O.22 gts of wet land in Sy. No.129 of Arsepalli village within the boundaries mentioned therein which hereinafter would be called as 'the suit land', alleging that her father gifted the suit land to her long back and that her brother, Bhoomaiah, husband of the first defendant and father of the second defendant, who died about two years prior to filing of the suit, was managing the same on her behalf and was giving half share of the produce to her for being in permissive possession of the suit land on her behalf, and after his death the defendants did not pay her the half share of the produce and in spite of her request refused to deliver possession of the suit land to her and so she got issued a legal notice to them on 28-12-1981 requesting them to vacate the suit land, but they having received the same failed to send a reply or comply with her request and hence the suit. Defendants filed a common written statement denying gift of the suit land to plaintiff by her 1ather and contending that the suit land was mutated in her name as pattedar to avoid tenancy and ceiling laws and such nominal entry cannot be treated as proof of her title and denied the allegation that Bhoomaiah was cultivating the suit land on behalf of the plaintiff and was giving half share of the produce to her. They also denied receipt of notice dated 28-12-1981 said to have been issued by the plaintiff to them and contended the inasmuch as they and their predecessors-in-title have been in continuous possession and enjoyment of the suit land for over 28 years openly and continuously, they have, in any event, prescribed title thereto by adverse possession. 4. On the basis of the pleadings, the trial Court framed as many as 7 issues for trial. 4. On the basis of the pleadings, the trial Court framed as many as 7 issues for trial. In support of her case, the plaintiff examined herself as P.W.1 and three other witnesses as P.Ws.2 to 4 and marked Exs.A-1 to A-10. On their behalf, defendants examined the first defendant as D.W.1 and second defendant as D.W.2 and two other witnesses as D.Ws.3 and 4 and marked Exs.B-1 to B-21. On the basis of the evidence, the trial Court decreed the suit and awarded mesne profits of 4 bags of paddy or equivalent value thereof as the share of plaintiff per year for three years prior to the filing of the suit and thereafter till she is put in possession. Aggrieved thereby;" the defendants preferred an appeal to the District Judge. The first appellate Court, by the judgment under appeal, confirmed the judgment and decree of the trial Court with regard to the possession and set aside the judgment and decree with regard to the mesne profits. Aggrieved thereby, the defendants preferred Second Appeal No.390 of 1996 and aggrieved by the dismissal of the prayer relating to mesne profits, plaintiff preferred Second Appeal No.206 of 1996. 5. Both the appeals were admitted without framing the substantial questions of law for consideration in the appeals by a learned single Judge of this Court. 6. The substantial question of law alleged in Second Appeal NO.390 of 1996 relates to the plea of adverse possession set up by the defendants and the substantial question of law alleged in the Second Appeal No.206 of 1996 filed by the plaintiff relates to the negativing of the plea relating to mesne profits. 7. The contention of the learned counsel for plaintiff is that since the evidence on record clearly shows that Bhoomaiah was cultivating the land on behalf of the plaintiff and since both the courts below gave cogent reasons for their conclusion that the plaintiff is entitled to the relief of possession, the finding arrived at by the courts below that the plaintiff is entitled to recover possession cannot be disturbed. It is his contention that the first appellate Court was in error in negativing the plea relating to mesne profits on the ground that there is. It is his contention that the first appellate Court was in error in negativing the plea relating to mesne profits on the ground that there is. no evidence and contended that if the Court felt that there is no evidence regarding the profits realized, it should have relegated the enquiry relating to profits to separate proceedings. The contention of the learned Counsel for defendants is that the first appellate Court having rightly held that the evidence on both sides is not reliable ought not to have decreed the suit for possession when the plaintiff who admitted in her evidence that there is a gift deed in her favour failed to produce the gift deed. It is his contention that since the entries in the revenue records do not confer title, merely because the name of the plaintiff is recorded as pattadar in the pattadar column, the first appellate Court was in error in believing the theory that the plaintiff was gifted the suit land by her father. It is his contention that since payment of tax by Bhoomaiah, husband of the first defendant and father of the second defendant, is admitted and since admittedly Bhoomaiah has been in possession of the suit land more than 4 decades prior to filing of the suit it is easy to see that' the suit land was in possession and enjoyment of Bhoomaiah and after the death of Bhoomaiah the defendants were in possession and enjoyment of the suit land and so the courts below were in error in decreeing the suit without going into the question whether the defendants have perfected their title to the suit land by virtue of adverse possession or not. 8. Since two courts below found that the plaintiff has title to the property, I cannot, sitting in second appeal, disturb that finding. The only substantial question of law that arises for consideration is whether the defendants have perfected their title to the suit land by adverse possession. 9. The suit land admittedly belonged to the father of Bhoomaiah i.e. father-in-law of the first defendant and grand father of the second defendant. The pahanis produced by the second defendant as D.W.2 i.e. Exs.B-2 to B-20 show that Bhoomaiah was in possession of the suit land in his capacity as brother of the pattadar. In fact, Ex. B-2, which is the pahani for the year 1961-62 shows that Ac. The pahanis produced by the second defendant as D.W.2 i.e. Exs.B-2 to B-20 show that Bhoomaiah was in possession of the suit land in his capacity as brother of the pattadar. In fact, Ex. B-2, which is the pahani for the year 1961-62 shows that Ac. O-30gts in Sy.No.129 was in possession of Bhoomaiah as a tenant. Of-course" the suit is filed for an extent of O.22 gts only and the extent of Sy.No.129 which is shown as O.30 gts in 1961-62 dwindled to O.22gts from 1964-65 and in all the pahanis the plaintiff is shown as pattadar and Bhoomaiah is shown as person in cultivation and in the column 'Swadheenapu Vidhanam' it is shown as 'Pattadar Chellelu' and so an inference can be drawn that Blioomaiah was cultivating the land on behalf of the plaintiff who is no other than his sister. It is well known that documentary evidence prevails over oral evidence. Though there is no reliable oral evidence to show that the land was kept under the management of Bhoomaiah by the plaintiff, since the documentary evidence adduced by the defendants itself shows that Bhoomaiah was cultivating the land on behalf of his sister, the case of the plaintiff that she handed over the management of the suit land to Bhoomaiah on crop share basis cannot be viewed with suspicion. 10. It is true that no documentary evidence was adduced by the plaintiff to show that she was gifted the suit land. The suit land is alleged to have been gifted to her by her father. Judicial notice can be taken of the fact that earlier, in Telangana area the transactions relating to alienation of lands were not through registered documents probably because of the advent of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, Section 47 of which contemplated permission being obtained from the Tahsildar of any transfer of the land by one person to another person The Section was subsequently repealed. Be that as it may, lacked documentary evidence to show that the suit land was gifted to the plaintiff by her father may not be of much consequence in this case because as stated earlier two courts below concurrently found that she is the owner of the suit land. Be that as it may, lacked documentary evidence to show that the suit land was gifted to the plaintiff by her father may not be of much consequence in this case because as stated earlier two courts below concurrently found that she is the owner of the suit land. As stated earlier, the only point for consideration in this appeal would be whether the defendants perfected their title to the suit land by adverse possession by Bhoomaiah. In my considered opinion, the plea of adverse possession cannot be sustained by the defendants because for a person to acquire title by adverse possession the owner must be a person different from the person who is in actual possession of the land. It is also well known that possession for long period per se would not be adverse unless the animus of the person in possession to perfect title by adverse possession is established. As stated earlier, all the pahanis disclose that Bhoomaiah was cultivating the land on behalf of his sister. Bhoomaiah does not seen to have asserted his title to the suit land against the plaintiff any time Admittedly he died a few years prior to filing of the suit. When there is no evidence no record to show that Bhoomaiah asserted his title to the suit land against the plaintiff, question of defendants perfecting their title to the suit land by adverse possession does not arise. The fact that the defendants took a plea that they perfected their title by adverse possession also shows that they impliedly admit the title of the plaintiff. Question of the Defendants acquiring title to their own land or the land of Bhoomaiah who is the husband of first defendant and father of second defendant does not arise. Recently the apex Court in T. Anjanappa v. Somalingappa1 held that if the defendants are not sure who is true owner question of their being in hostile possession and question of denying title of true owner do not arise. 11. In this case, as stated earlier, the case of the defendants is that they perfected their title by adverse possession against the plaintiff, so they impliedly admit the title of the plaintiff. The evidence adduced does not disclose that Bhoomaiah ever asserted title to the suit land against the plaintiff by way of adverse possession during his life time. 11. In this case, as stated earlier, the case of the defendants is that they perfected their title by adverse possession against the plaintiff, so they impliedly admit the title of the plaintiff. The evidence adduced does not disclose that Bhoomaiah ever asserted title to the suit land against the plaintiff by way of adverse possession during his life time. In these circumstances, it cannot but be said that the defendants failed to establish that they have perfected their title to the suit land by adverse possession. 12. With regard to the mesne profits as rightly contended by the learned counsel for plaintiff the lower appellate Court was in error in dismissing the claim for mesne profits merely on the ground that thee is no evidence. A person in whose favour a decree of possession is passed is entitled to recovery of past and future profits by way of a separate enquiry also in view of Order XX Rule 12 CPC. 13. Therefore, the Second Appeal No.390 of 1996 is dismissed and the Second Appeal No.206 of 1996 is allowed. The trial Court shall enquire into the profits from a period of 3 years prior to the filing of the suit and future profits till the date of delivery of possession on a separate application to be filed by the plaintiff. In view of the relationship between the parties, they are directed to bear their own costs in these appeals.