Judgment :- Common Judgment: (Per Dar, J) 1. These two appeals, A.S.No.4116 of 2004 and A.S.No.4119 of 2004, arise out of a common decree and judgment in O.S.143 of 2002 and O.S.24 of 2003 (old O.S.869 of 1998), respectively, on the file of learned II Additional District Judge, Ranga Reddy District. 2. O.S.143 of 2002 was filed by the appellants for declaration that they have perfected their title by adverse possession over Ac.7-03 gts situated in Sy.No.289 in Puppalaguda village and for a permanent injunction restraining the respondent from interfering with the said property. Equally, respondent Rithu Malhotra filed O.S.No.24 of 2003 for a permanent injunction restraining the appellants from interfering with the above said property. 3. The case of the appellants, in brief is, that they and their ancestors have been in possession of the suit property right from 1936. Originally it belonged to one Fakaryar Jung. Their father Gandaiah took the land on lease from Fakaryar Jung. During partition, Fakaryar Jung migrated to Pakistan in 1947. Since then no one has claimed ownership or possession. In the year 1988, the revenue authorities issued notice dated 3-12-1988 under Encroachment Removal Act. They engaged an advocate and approached the authority on 27-12-1988 and sought time for filing counter. The advocate has informed that he would inform the date of hearing. Nothing was heard thereafter. While so, in the year 1992 the officials of the state government with the assistance of the police tried to dispossess them from the schedule property then they filed W.P.No.2692 of 1992 for issuance of Mandamus to protect their interest and possession and an interim direction was obtained not to disturb their possession. On 2-11-1994, writ petition was disposed directing the revenue authorities to consider their representations. In the above proceedings from the counters they could know that the suit land was declared to be evacuee property under the provisions of Administration of Evacuee Property Act, 1950 (for short ‘Act 1950’) and that the suit land was allotted to one Motilal, a migrant from Pakistan, under the Displaced Persons Rehabilitation and Compensation Act 1957 (for short the ‘Act 1957’) and that the G.P.A holder of Motilal sold the land to the respondent-Ritu Malhotra. She alleged that Motilal inducted her into possession. On that they approached the government requesting for allotment of those lands to them. She alleged that Motilal inducted her into possession. On that they approached the government requesting for allotment of those lands to them. The Mandal Revenue Officer on the report of the Mandal Revenue Surveyor, after full-fledged enquiry, sent his report dated 29-5-1993 admitting their possession for more than thirty years. When the revenue authorities tried to dispossess them, they approached the High Court by way of W.P.No.7288 of 1996 and the High Court directed the government to maintain status quo. When there was violation of the orders, they filed contempt case C.C.477/2000. The District Collector gave undertaking to remove the fencing. After dismissal of their writ petition, Special Leave Petition was filed before the Supreme Court and the same was listed for admission. Neither Motilal nor the vendee Ritu Malhotra was ever in possession. In view of the false claims made by the respondent, they were forced to file this suit. The custodian has never exercised any right in the property. Therefore they filed the suit for declaration of their title and perpetual injunction. 4. The defendant Ritu Malhotra filed written statement resisting the suit. She stated that the custodian of evacuee property declared the suit land as evacuee land and allotted the same to one Motilal Chandumal in the year 1955 and issued sale certificate to the said allottee in 1956. The custodian directed the Collector to deliver the possession to the said allottee as per the sale certificate. The revenue authorities accordingly delivered the possession to the allottee. The Settlement Officer, Bombay informed Gandaiah, the father of the appellants on 21-7-1970 that the land was already allotted to Motilal and the question of allotting the said land to them will not arise. Against which a revision No. 147/BY/54 was filed in the year 1970 under Section 24 of the Displaced persons (C&E) Act, 1954 for allotment of evacuee property bearing Sy.No.289, 291,292, 293 and 295 situated at Poppalaguda requesting for cancellation of patta granted to Motilal. The same was dismissed on 29-1-1972 holding that the said lands were allotted to Motilal Chandumal. Aggrieved they filed writ petition W.P.7288 of 1996. The same was dismissed on 29-1-1972 holding that the said lands were allotted to Motilal Chandumal. Aggrieved they filed writ petition W.P.7288 of 1996. While dismissing the Writ, a Division Bench of this Court observed “The land in question was allotted to Motilal Chandumal and the said allotment became final and that the defendant herein as transferee of that land is entitled to hold, possess and enjoy the said land in question in accordance with law.” Therefore, they cannot once again claim title to the property. The suit is not maintainable. The civil Court has no jurisdiction to entertain the suit by virtue of Section 46 of Act, 1950 as well as under the provisions of the Displaced persons (C&E) Act, 1954. In fact, the father of the plaintiffs filed suit O.S.75/1970 for declaration of title and grant of injunction and the same was not dismissed for non-payment of court-fee. The appellants cannot once again approach the Court and file the suit. In fact her name was mutated in the revenue recorded. She filed O.S.No.869 of 1998, on the file of Junior Civil Judge, West & South, Ranga Reddy District and obtained injunction order against the appellants. Since the property was declared as evacuee property, the plaintiffs cannot make any claim over the suit property on the ground that they were protected tenants. When plaintiffs have trespassed the property, a criminal case was filed, and it was ended in conviction. The appeal preferred by them was also dismissed. Criminal revision case in Crl.R.C.No.702 of 1999 filed against the said judgment was also dismissed by the High Court on 22-1-2000, confirming the orders of conviction. They were never in possession. They were not entitled to any declaration or injunction. Therefore, she prayed for dismissal of the suit. 5. The respondent herein filed O.S.869 of 1998 (O.S.24 of 2003) for a permanent injunction restraining the appellants from interfering with their property reiterating the pleadings made in the written statement filed in the above suit. She asserted that she purchased the suit land from Motilal Chandumal under registered sale deed dated 21-7-1990 and her name was mutated in the revenue records. She has been in possession although. When the appellants tried to interfere with her possession, she filed the suit for perpetual injunction restraining the appellants from interfering with the property. 6. She asserted that she purchased the suit land from Motilal Chandumal under registered sale deed dated 21-7-1990 and her name was mutated in the revenue records. She has been in possession although. When the appellants tried to interfere with her possession, she filed the suit for perpetual injunction restraining the appellants from interfering with the property. 6. The appellants filed written statement reiterating the pleadings made in the plaint in O.S.143 of 2002. They alleged that they have been in continuous possession right from 1936 under the original owner Fakaryar Jung, and after his migration to Pakistan, nobody has claimed any title over the land. The plaintiff is a stranger and she had no manner of right to seek interim injunction since they have been in active possession the respondent was not entitled to any injunction. 7. The trial Court upon the pleadings framed the following appropriate issues in both the suits: O.S.No.143 of 2002 1. Whether this court has got jurisdiction to entertain the suit in view of Sec.46 of the Administration of Evacuee Property Act 1950 and in view of the Displaced Persons (C&E) Act, 1954 ? 2. Whether the suit is barred by the principle of res-judicata in view of the judgment in OS.No.75/1970 on the file of Dist .Munsif Court, West, Hyd ? 3. Whether the suit is properly valued and the court fee paid is correct? 4. Whether the suit is in time? 5. Whether the plaintiffs are entitled to the declaration of their title over the suit schedule property as prayed for? 6. Whether the plaintiffs are entitled to the perpetual injunction against the Defendant with respect to the suit schedule property as prayed for? Whether the defendants are entitled to compensatory costs ? 7. To what relief ? O.S.NO.24 OF 2003 (869/1998) 1. Whether the plaintiff was in possession of the suit schedule property by the date of filing of the suit? 2. Whether the plaintiff is entitled to the perpetual injunction against the defendants with respect to the suit schedule property as prayed for? 3. Whether the defendants are entitled to exemplary costs? 4. To what relief? 8. Both the suits were clubbed for common trial. The appellants, plaintiffs in O.S.No.143 of 2002, have been examined as PWs.1 to 9. The 1st plaintiff as PW.1. He filed Exs.A.1 to A.64. 3. Whether the defendants are entitled to exemplary costs? 4. To what relief? 8. Both the suits were clubbed for common trial. The appellants, plaintiffs in O.S.No.143 of 2002, have been examined as PWs.1 to 9. The 1st plaintiff as PW.1. He filed Exs.A.1 to A.64. Refuting their evidence, the defendant has examined Inder Mohan Kapoor as DW.1 and filed Exs.B.1 to B.25. The report of the Commissioner and photos were marked as Exs.C.1 to C.5. 9. The trial Court after considering the documentary and oral evidence placed on record, opined that the suit land, which was declared as evacuee property, stood vested in the custodian. It was allotted in favour of one Motilal, the displaced person, who in turn sold it to respondent-Rithu Malhotra. The property having been notified under the Act 1950 and allotted in favour of displaced person, the revenue authorities can no longer deal with the said property. The appellants cannot pray for allotment of the said land in their favour on the ground of tenancy. They were never in possession adverse to the interest of the real owner for more than 12 years. The name of the respondent was mutated in the revenue records evidenced under the pahanis etc. Therefore, the suit filed by the appellants for declaration and injunction was dismissed. Consequently, the suit filed by the respondent in O.S.24 of 2003 was decreed and the appellants were restrained from interfering with the possession and enjoyment of the suit land. 10. Aggrieved by the said decision, the appellants preferred these appeals contending that the trial Court did not appreciate the facts or law in correct perspective. The trial court ought to have considered that the respondent was never in possession of the property. Admittedly, they have been in possession all through. The revenue records would undoubtedly show their continuous possession. At any rate, even if the respondent was continuing in possession, by orders of the Court, it would in no way confer title in her. The record shows that they have been in continuous possession. At no point of time possession was taken by either the original allottee or by the subsequent purchaser, the respondent herein. Therefore, they prayed that the appeals be allowed and set aside the Judgements and decrees under the appeals. 11. The points that arise for consideration are: 1. Whether the appellants had acquired title by way of adverse possession? At no point of time possession was taken by either the original allottee or by the subsequent purchaser, the respondent herein. Therefore, they prayed that the appeals be allowed and set aside the Judgements and decrees under the appeals. 11. The points that arise for consideration are: 1. Whether the appellants had acquired title by way of adverse possession? 2. Whether the respondent is having title to the said property? 3. Who among the parties is entitled to permanent injunction? 12. It is not in dispute that the suit schedule property Ac.7-10 gts in Sy.No.289 of Puppalaguda village in Ranga Reddy district was originally owned and possessed by one Faquaryar Jung. The ancestors of the appellants had taken the said land on lease from Faquaryar Jung some time in the year 1936. Later when he had migrated to Pakistan in the year 1947, the Government of India had notified entire property of Faquaryar Jung, including the suit land, as evacuee property, under the provisions of Act 1950. The appellants alleged that they continued to remain as tenants in respect of the land, even after the land was notified as evacuee property under Section 7 of the Act 1950. The leasehold rights in the property remained intact, and on coming to know of it, the appellants submitted representations before the concerned authorities to sell the lands to them on collecting nominal prices they being the tenants by virtue of circular of the Government of India issued in 1964. Evidently the suit property, which was under the custody of custodian by virtue of Section 8 of the Act 1950 it having vested in him, allotted the suit property in favour of one Motilal, a displaced person under an allotment order dated 1-8-1955. The G.P.A of the allottee transferred the suit land by way of registered sale deed Ex.B.1 dated 21-7-1970 in favour of Rithu Malhotra, the respondent herein. 13. When their representations were not considered, they preferred W.P.Nos.2692 and 2807 of 1992. The learned Single Judge by order dated 2-11-1994, directed the Joint Collector, Ranga Reddy District to dispose of the representations in terms of the recommendations. Thereupon, the appellants submitted their representation stating that the land be allotted to them as they were tenants. 13. When their representations were not considered, they preferred W.P.Nos.2692 and 2807 of 1992. The learned Single Judge by order dated 2-11-1994, directed the Joint Collector, Ranga Reddy District to dispose of the representations in terms of the recommendations. Thereupon, the appellants submitted their representation stating that the land be allotted to them as they were tenants. On 12-1-1996, the Joint Collector opined that the property was allotted under the Act 1957 in favour of Motilal, a displaced person who in turn sold it to the respondent under registered sale deed. When the property was no longer available with the government, the question of extending the benefit of the circular to the appellants will not arise. Thereupon, they preferred W.P.No.7288 of 1996. A Division bench of this Court opined that by virtue of sub Section (2) of Section 18 the existence of any possessory or tenancy rights created in any person under any provision or State Act, shall not have any effect on the rights and evacuees of the custodian in respect of the lands that are vested under Section 8. The allotment that was made in favour of Motilal in the year 1955 by a competent authority cannot be questioned. It was further observed that the circular of the year 1964 of the Central Government in respect of lands which were notified as evacuee properties and continued to remain under the occupation of the tenants would in no way apply to the appellants. The property was notified in the year 1951, and was allotted to Motilal in the year 1955. Since the land itself was not available with the government it cannot deal with by it. The request of the appellants cannot be complied with even if otherwise they are eligible for allotment. Accordingly, the writ petition was dismissed. 14. The plaintiffs now contended that they were lessees under the original owners and subsequently in 1952 the custodian granted lease hold rights to them and as such they were continuing to enjoy the property under the authority of those lease deeds. Except taking this contention there is no proof whatsoever that either the original owner or subsequently the custodian leased out the property in favour of the appellants. Obviously this plea was taken to impress the court that they have been continuing as tenants and they never parted possession the property. 15. Except taking this contention there is no proof whatsoever that either the original owner or subsequently the custodian leased out the property in favour of the appellants. Obviously this plea was taken to impress the court that they have been continuing as tenants and they never parted possession the property. 15. The appellants in order to prove their possession filed Exs.A.2 and A.22 to A.44 pahanis from 1960-1961 to 1991-1992 and Chowfasla Pahani Ex.A.1 (A.44) for the year 1988-1989. This is to show that their names were shown as tenants in the column of possession. Apart from it they filed land revenue receipts Exs.A.3 to A.19 for the years 1976 up to 1983 and A-46, A-47 and A.58 electricity payment receipts and electricity Pass Book. Equally, the respondent filed the pahanis from 1991-2002 evidenced under Ex.B.11 to 19, to show that she has been in possession and her name was mentioned in ‘possession column’. 16. Admittedly, the appellants filed revision petition before the Chief Settlement Commissioner, Bombay against the allotment of land to Motilal. The said authority by order Ex.B.3 made it clear that the allotment was made and sale certificate was issued to Motilal, and that possession was also delivered to him. Subsequently, the suit land was sold to the respondent. This order was communicated evidenced under Ex.B.4. They did not pursue the matter, the said order was not challenged and it had attained finality. 17. The Mandal Surveyor of Rajendranagar Mandal served a notice on 3-12-1988 followed by a notice dated 21-10-1995 of the Mandal Revenue Officer, on the appellants, under the Land Encroachment, Act as to why action should not be taken against them under the said provisions. Thereupon the appellants filed W.P.2692 of 1992 and 2807 of 1992 seeking writ of Mandamus. On that the High Court in WPMP.No.3335 of 1992 passed orders of status quo to maintain possession as was existing by them. The Revenue Divisional Officer by his letter dated 22-10-1992 informed that the respondent was inducted in possession after vacating the appellants. Therafter the High Court directed the Joint Collector to dispose of the representations filed by the appellants on merits. The Joint Collector dismissed their claim by order dated 12-1-1996, observing that the land was no longer available with the government. Therafter the High Court directed the Joint Collector to dispose of the representations filed by the appellants on merits. The Joint Collector dismissed their claim by order dated 12-1-1996, observing that the land was no longer available with the government. Incidentally he stated that the government has no role to play as the lands were allotted by the custodian under the Act 1957. Against the proceedings of the Joint Collector, the appellants filed W.P.No.7288 of 1996 and the same was dismissed by a Division Bench of this Court by order dated 20-9-2001 holding that Rithu Kapoor being the transferee of the suit land from Motilal is entitle to possession and enjoy the suit land in accordance with law. It held that the appellants cannot question the title. 18. It may be mentioned here that a criminal case was instituted by the Police Narsingi against the defendant in CC.No.211 of 1996 alleging that on 10-4-1996 the appellants had trespassed the suit property and damaged the fencing etc. The appellants were convicted evidenced under judgments Ex.B.20 confirmed in the appeal Ex. B-21 and revision B.22. Not that a judgment in criminal case binds the civil Court, at any rate, it would show that earlier when the respondents complained of trespass, the appellants were convicted. 19. During pendency of the above cases, the respondent herein filed O.S.869 of 1998 (O.S.24 of 2003) on 24-12-1998 for a permanent injunction. She obtained interim injunction against the appellants and the same was confirmed in A.S.15138 and 15141 of 2004. 3 years 9 months thereafter on 22-10-2002, the appellants filed O.S.No.143 of 2002 alleging that they acquired title by way of adverse possession. It may be also mentioned herein, that the appellants earlier filed O.S.No.75 of 1970, for a permanent injunction. However, the said suit was rejected for nonpayment of court fee evidenced under Ex.A.49 dated 16-7-1973. 20. Admittedly, the appellants contention all through was, that they were the tenants under the original owner Fakaryar Jung and thereafter under the custodian, the property being evacuee property, and claimed that they were tenants entitled for allotment of the said land under G.O.Ms.No.1883 dated 09-12-1964 on payment of amount. It was never their case that they were in possession on their own accord. They were allthrough cultivating, on the premise, that they were tenants. It was never their case that they were in possession on their own accord. They were allthrough cultivating, on the premise, that they were tenants. It is not disputed by the appellants even, that the property is evacuee property, and declared as such under the provisions of Act 1950 (Act 31 of 1950) and vested in the custodian. Subsequently it was vested in the Central Government under the provisions of Act 1954. The suit land was allotted to one Motilal, a displaced person vide proceedings under Ex.A.2 and sale certificate Ex.B.2 dated 8-3-1956. On 21-7-1970, Motilal sold the said land under Ex.B.1 sale deed to the respondent wherein recital of possession was made a mention. Importantly, the revision petition filed by the appellants against the allotment and sale of land to Motilal, was rejected by the Chief Settlement Commissioner vide his orders under Ex.B.3 dated 29-01-1972. There was a categorical mention that possession of land was delivered to Motilal. For about 20 years the appellants did not question the proceedings. 21. The appellants filed W.P.No.2692 of 1992, 20 years thereafter, claiming as tenant of evacuee Fakaryar Jung and thereafter lease was obtained from custodian and claimed to be tenant entitled for allotment. A direction was given to dispose of the representation filed by the appellants. When the authorities rejected the claim of the appellants, they filed W.P.No.7288 of 1996 claiming the very same relief that they were tenants and that they were entitled for allotment. When W.P.No.7288 of 1996 was dismissed rejecting the claim, they filed O.S.No.143 of 2002 on 22-10-2002, with altogether on a different and contradictory claim alleging adverse possession of the land, and for a consequential injunction. 22. The respondent alleged that possession was delivered to Motilal on 8-3-1956 who in turn sold to her and delivered possession under registered sale deed Ex.B.1 dated 8-3-1956. 23. Since tenant claiming title by way of adverse possession is against the very concept of tenancy, the appellants now contend that neither the custodian of the evacuee property, nor the Chief Settlement Commissioner had domain over the property. There was no proof whatsoever that Motilal, the purchaser had taken possession; it was not reflected in any of the village records. Right from 1970 the respondent had knowledge of the suit O.S.75/70 and aware of their claim of ownership. There was no proof whatsoever that Motilal, the purchaser had taken possession; it was not reflected in any of the village records. Right from 1970 the respondent had knowledge of the suit O.S.75/70 and aware of their claim of ownership. Because they were agitating against the government and seeking patta it would prove that they were denying the title of the respondent. 24. Undoubtedly any person can claim title by way of adverse possession if he had proved that he was in possession and his possession was adequate in continuity in publicity in extent nec vi, nec clam and nec precario. The Hon’ble Supreme Court in T. Anjappa v. Somalingappa ( (2006) 7 SCC 570 ) considered as to when a person would acquire title by way of adverse possession. Their Lordships held: “The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts o a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person’s title. Possession is not held to be adverse if it can be referred to a lawful title. An occupation of reality is inconsistent with the right of the true owner. Where a person possess property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Where a person possess property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner. 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. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.” 25. The Hon’ble Supreme Court in Balkrishan v. Satyaprakash ((2001) 2 SCC 408) considered the question whether a person could claim title by adverse possession by filing a suit. Referring to the above decision our own High Court in the decision in K. Rajeshwar Reddy and others v. N.Laxmikantam (2002 (3) ALD 731) observed “Persons who perfected their title by adverse possession can maintain a suit for declaration of a title as well as for permanent injunction.” It further observed “8. Normally the plea of adverse possession would only enable the person taking the same to resist any attempt by any other person to evict him. It is almost in the form of defence. It was for this reason that the plea of adverse possession is treated as shield and not a sword. The doubt is as to whether an individual who continued in possession of an immovable property and whose possession was adverse to the lawful owner can seek a declaration of his title. It is almost in the form of defence. It was for this reason that the plea of adverse possession is treated as shield and not a sword. The doubt is as to whether an individual who continued in possession of an immovable property and whose possession was adverse to the lawful owner can seek a declaration of his title. However, the issue is no longer res integra in view of the judgment of the Supreme Court reported in Balakishan v. Satyaprakash, 2001 (2) SCC 408. In that case the trial Court decree the suit for declaration of title on the basis of adverse possession. The appeal filed against the same was dismissed. However, in the second appeal, the High Court reversed the judgments of the Courts below by observing as under. “Inspite of the fact that the plaintiff continued in possession, inspite of the order against him in proceedings under Section 250 MP LR Code, his possession cannot be said to be sufficient in eye of Law to confer a title upon him by adverse possession, as claimed.” 9. The Judgement of the High Court was reversed by the Supreme Court with the following observations: “From the above decision it follows that the judgment and decree of the High Court under challenge cannot be sustained. They are accordingly set aside and the judgment and decree of the first appellate court confirming the judgment and decree of the trial Court is restored. The appeal is accordingly allowed but in the circumstances of the case without costs.” 10. Therefore it emerges that adverse possession for the required length of time would not only enable the person pleading such possession to resist the plea of recovery of possession but would also enable him to get his title declared on the strength of the same.” 26. The appellants in order to prove their case that they have been in possession right from 1936 originally under Fakaryar Jung and later continuing in possession relied Pahanis from the year 1960-61 to 1991-92, land revenue receipts A.3 to A.19 from year 1976 to 1995, Electricity Pass Book. A.45, Electricity Payment Receipts Exs.A.46, 47 and 58. They have also relied on Panchanama Ex.A.59 dated 14-12-1998 wherein some elders mentioned the physical features and they were aware that the appellants were continuing in possession right from 1947-1948 and it was an evacuee property. 27. A.45, Electricity Payment Receipts Exs.A.46, 47 and 58. They have also relied on Panchanama Ex.A.59 dated 14-12-1998 wherein some elders mentioned the physical features and they were aware that the appellants were continuing in possession right from 1947-1948 and it was an evacuee property. 27. Refuting their evidence, the respondents equally filed the Sale Certificate Ex.B.2 pursuant to which possession was delivered to them on 8-3-1956. Their names were mentioned in pahanis Exs.B.11 to B.19 for the year 1991-1992 to 2001-2002 besides land revenue receipts B.7 to B.10 and Pattadar Pass Book Ex.B.5. 28. It is not the case of the plaintiffs that they at any point of time claimed title to the property. It is their case that they were tenants under the original owner. After the property was declared as evacuee property, they continued tenancy under the custodian, the property having vested in him by virtue of the acts mentioned above. Assuming without admitting that they have been in possession right from 1936 as pleaded by them, it was only as tenants. They never claimed possession on their own or as the owners of the property. They never denied the title of the real owner. In other words, their possession was never hostile to the real owner. In order to constitute adverse possession, the animus of the person doing those acts is a must crucial factor. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, he is in adverse possession of it. They never denied the title of the true owner. The possession must be open and hostile enough to be capable of being known to the parties interested in the property. When they asserted that they were tenants, even approached the courts on the very same ground, and went to an extent of requesting the government to allot it on after fixing same amount towards consideration, they cannot turn round and say that they acquired the title by way of adverse possession. The plea taken by them is against their own contention. It is a desperate plea in order to acquire the property in one way or the other. The plea taken by them is against their own contention. It is a desperate plea in order to acquire the property in one way or the other. The important contention of the plaintiffs is that irrespective of the above they have continued to be in possession and their possession was known to the parties and therefore they acquired title by way of adverse possession. 29. The appellants did not dispute the notification under Section 7 and the provisions of Act 1950. By virtue of Section 8 of the said Act 1950 the property stands vested in the custodian. When once the property is vested in the custodian, the original owner or any body claiming through him ceases to have any right against such property. The learned counsel for the appellants contended that their possessive rights would not be affected by such notification. A reference was made to Section 18 of the Act in support of their contention. Sub-sections (1) (2) of Section 18 reads thus: “(1) Section retrospective- Where a tenant had migrated to Pakistan some time in the beginning of 1949 and the default in payment of rent was committed by him within the period of one year immediately preceding the date on which he became an evacuee, under S.18 which had been given retrospective effect, no decree for (a) The evacuee committed after he became an evacuee or within a period of one year immediately preceding the date of his becoming an evacuee; or (b) The Custodian.” (2) Where any person acquires or has acquired any rights under a Provincial Act or a State Act in respect of any property, by reason of being in possession of that property, whether in pursuance of a grant, lease or allotment made by the Custodian or otherwise, the acquisition of such rights shall not in any way affect or be deemed to have affected the rights and powers conferred on the Custodian under this Act in respect of that property”. 30. A reading of the above provisions undoubtedly show that any person who had acquired any rights by reason of being in possession of the property including by way of tenancy rights created in any person under any provincial or State Act, shall not have any affect on the rights and powers of the custodian, in respect of the lands that are vested under Section 8. Therefore, their claim that they were continued to be tenants cannot stand. 31. Alternatively it was contended that since they were ceased to be tenants, their possession could be independent of the claim of the custodian or the original owner or subsequent purchasers and therefore they possessed and enjoyed the land in their own and thus acquired the title. Had the appellants ignored those proceedings, and continue to be in possession the claim could have been otherwise. The circular was issued in the year 1964 by the Central Government in respect of such lands, which were notified as evacuee and continued to remain under the occupation of the tenants. Obviously, coming to know of it the appellants preferred revision under Section 24 of the Displaced Persons (C&R) Act, 1954 before the Chief Settlement Commissioner to allot the said lands to them on receiving consideration, they being tenants for the last several years. The Chief Settlement Commissioner informed the appellants that the land was sold to a displaced person and the same has been finalized and Sanad was also issued in favour of the allottee who had taken possession of the land as reported by the District Collector. 32. Pursuant to a notification issued in 1963 by the Central Government for the lands that were allotted to the allottees in 1956 they preferred the revision in 1972. The allottees therein had contended that they have got possession of the land after making payment of the entire price and since the land was allotted in their favour there should not be any interference in the transaction after the lapse of so many years. Since the revision was preferred subsequent to the instructions and the properties have been allotted in the year 1956, the Chief Settlement Commissioner opined that the instructions referred to above which were issued much after the transaction could not have retrospective effect and therefore the revision was dismissed. The appellants did not question these proceedings. 33. The important contention that was taken by the appellants was that the property though was purchased by the respondent from Motilal she was never in possession of the property and in fact they continued in possession of the property. The fact remains that the plaintiffs never claimed their possession independently on their own. Their case was that they were tenants. The important contention that was taken by the appellants was that the property though was purchased by the respondent from Motilal she was never in possession of the property and in fact they continued in possession of the property. The fact remains that the plaintiffs never claimed their possession independently on their own. Their case was that they were tenants. It was not a case where there was relinquishment of tenancy or that they became owners. In fact their contention was that they were in possession only as a tenant originally under Fakaryar Jung and later under custodian. There is no proof of these facts. It may be mentioned that Hyderabad Tenancy and Agricultural Lands Act, 1950 came into force after passing of Evacuee Property Act 1950. Therefore, they cannot claim that they are protected tenants. 34. The plaintiff in order to prove his case examined himself as PW.1 besides the neighbouring landholders PWs.2 to 9, who in one voice stated that PW.1 has been alone in possession of the suit property and at no time the purchaser had taken possession. Contrarily, the respondent contended that Motilal was given possession by the District Collector in the year 1956 and immediately Sanad Ex.B.2 was issued in favour of Motilal. In fact when the very appellants approached the Chief Settlement Commissioner he rejected the claim. They did not assert that they had title and acquired it by way of adverse possession. Their claim was that they were poor Harijans and the land be allotted to them. 35. The plaintiffs relied Ex.A.1 No.4 Chowfasla phani relating to the suit land. Under the column No.2 pattedar the names of Dharsanam Swamy, Eswaraiah and all were mentioned. In Exs.A.11 to A.17 the name of the custodian was shown as pattedar. In Exs.A.18 and A.19 the name of Rithu Malhotra was shown as pattedar for the year 1983. In No.3 pahani-Ex.A.21 the name of the custodian was shown as pattedar. Under Column No.11 the appellants’ father’s name Darsanam Gandaiah and Narsimha shown as possessors. Ex.A.20 to A.47 the No.3 pahani patrikas, the name of custodian and that of Rithu Malhotra were shown as pattedar. Column 11 and column No.15 were kept blank. They never protested when the names of owners are shown in pattadar column. 36. Under Column No.11 the appellants’ father’s name Darsanam Gandaiah and Narsimha shown as possessors. Ex.A.20 to A.47 the No.3 pahani patrikas, the name of custodian and that of Rithu Malhotra were shown as pattedar. Column 11 and column No.15 were kept blank. They never protested when the names of owners are shown in pattadar column. 36. Even in 1970 Darsanam Ramaiah, the grand-father of the plaintiffs and 4 others filed O.S.75/70 on 26-5-1970 for declaration of title and the same was rejected for non payment of court fee. It may be stated herein that the name of respondent was mutated in revenue records vide Ex.B.1 and adangals B.11 to B.19. Pattedar pass book was issued in her favour under Ex.B.5 and title deed was issued in Ex.B.6. She has been paying land revenue evidenced under E.B.4, B.7 to B.10. As earlier pointed out possession was delivered by the government. When the plantiffs trespassed into the land, she gave police report. After investigation they filed chargesheet in CC.211/1996. The appellants herein were convicted in C.C.211 of 1996 confirmed in appeal in Crl.Appeal.No.60 of 1998 and further in revision in Crl.R.C.No.702 of 1999 vide Exs.B.20 to B.22. 37. At this juncture, it is useful to note that a commissioner was appointed to note the physical features of the property in view of the fact that the plaintiffs claimed that they have been raising crops in the suit land. The commissioner after inspecting the suit land found no crop in the suit land. The land was barren. He found well and it is outside the boundary land to the suit land. There was no electricity connection to the well. Since the land is barren necessarily the possession follows title. It may be stated herein when the respondent filed suit O.S.869 of 1998, on the file of District Munsiff, Hyderabad West & South for injunction in I.A.No.2319 of 1998, the trial Court granted interim injunction on 23-12-1998 and the same was in force. When there was injunction the plaintiffs cannot say that they have been still in possession. It may be stated that the when the appellants filed application under Order 39 Rule 1 and 2 of Section 151 C.P.C to grant ad interim injunction, it was dismissed by vacating the ex parte interim which was passed on 22-10-2002. When there was injunction the plaintiffs cannot say that they have been still in possession. It may be stated that the when the appellants filed application under Order 39 Rule 1 and 2 of Section 151 C.P.C to grant ad interim injunction, it was dismissed by vacating the ex parte interim which was passed on 22-10-2002. Therefore, the interim injunction that was granted on 24-12-1998 was continued throughout the pendency of the suit till disposal of the suit in 2004. Even in the appeal the said order was not suspended. By 1970 the respondent was in possession pursuant to the sale Ex.B.1 dated 21-07-1970. The orders of the Settlement Commissioner in Ex.B.3, shows that possession of the land was delivered to Motilal. This order was communicated to the appellants on 5-2-1972. After a period of 20 years the appellants approached the High Court by way of W.P.No.2692 of 1992, claiming that they obtained lease from the custodian and therefore the land be allotted to them on payment of costs. When the said writ petition was dismissed, they filed W.P.No.7288 of 1996, which was also dismissed. When as long back as in 1956, the possession was delivered to the original allottee, it cannot be said that they have been in possession. 38. The learned counsel for the respondent contended that the orders in the writ petition constitute res judicata. The High Court held that the land in question was allotted to Motilal and the said allotment has become final. The defendant as transferee of that land was entitled to hold possession and enjoyment of the suit land in question in accordance with law. The said finding constitutes res judicata. The learned counsel in support of the plea relied a catena of decisions Daryao and others vs. State of U.P ( AIR 1961 SC 1457 ), Culabchand Chhotalal Prikh Vs. State of Gujarat ( AIR 1965 SC 1153 ), Union of India Vs. Nanak Singh ( AIR 1968 SC 1370 ), Devilal Modi Vs. Sales Tax Officer, Ratlam & Others ( AIR 1965 SC 1150 ), Govt. of A.P. Vs. M. Narasimha Murthy ( AIR 1991 SC 1732 ), Lonankutty Vs.Thomman & another ( AIR 1976 SC 1645 ), Forward Construction Co. & Ors( AIR 1986 SC 391 ) and The Direct Recruit Class-II Engineering Officers’ Association & Ors Vs. State of Maharashtra & Ors. of A.P. Vs. M. Narasimha Murthy ( AIR 1991 SC 1732 ), Lonankutty Vs.Thomman & another ( AIR 1976 SC 1645 ), Forward Construction Co. & Ors( AIR 1986 SC 391 ) and The Direct Recruit Class-II Engineering Officers’ Association & Ors Vs. State of Maharashtra & Ors. Their Lordships have consistently opined: “The provisions of S.11, C.P.C are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and on the general of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide, it will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former preceding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Art.226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. Consequently on the general principle of res judicata the decision of the High Court on a writ petition under Art.226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.” 39. It may be stated herein itself that since the plaintiffs have claimed title by way of adverse possession when earlier writs did not consider this aspect of the matter, we do not see any bar for them to file suit. The judgments in the writ petitions in this case would not bar them to file suit and it could not constitute res judicata. 40. The learned counsel for the appellants contended when they continued to be in possession in spite of order of ejectment, mere passing of order of ejectment which was not executed and not acted upon, neither causes their dispossession nor discontinuation of their possession. Possession of appellants ripens into adverse possession after statutory period. 40. The learned counsel for the appellants contended when they continued to be in possession in spite of order of ejectment, mere passing of order of ejectment which was not executed and not acted upon, neither causes their dispossession nor discontinuation of their possession. Possession of appellants ripens into adverse possession after statutory period. Though the respondent succeeded in the writ petitions, and the plea of the appellants for allotment of the suit land was rejected, and in spite of the same, the appellants have been in possession and enjoyment of the same. Their possession was never snapped since 1937 they have been in possession without any ejectment. Therefore they are entitled to retain possession, having acquired title by way of adverse possession. 41. In support of his contention the learned counsel relied a decision Balkrishan Vs.Satyaprakash and Ors (Supra 1). It was a case where a declaration of title was sought on the ground that the appellant had purchased the suit land from true owner and perfected his title by way of adverse possession. The facts disclose that the suit land was under attachment of the orders of the Tahsildar and purchased by respondent in an auction that followed attachment. The respondent also filed suit under Section 250 of M.P. Land Revenue Code for restoration of possession. In spite of order of ejectment by Tahsildar, the appellant continued to remain in possession. In those circumstances, the Supreme Court held “mere passing of order of ejectment which was not executed and not acted upon, neither causes their dispossession nor discontinuation of his possession, possession of appellant ripens into adverse possession after statutory period.” 42. However, coming to the facts of the present case, it was never in the mind of the appellants, that they have been in possession adverse to that of the owner. Their claim throughout was that they were tenants. There was no animus at any time that they have been in possession in their own right. We need not reiterate that the possession must be open and hostile enough to be capable of being known by parties interested in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the farmer’s hostile action. What all they claimed was that they were tenants and they be allotted the land as they are poor harijans. What all they claimed was that they were tenants and they be allotted the land as they are poor harijans. This was after knowing that the property was vested in the custodian. From then onwards they have been agitating in various courts that they be allotted the land. At no time they asserted the title. 43. In the light of the facts, it cannot be said that they have acquired the land by way of adverse possession. We have perused the entire evidence and we do not see any illegality or irregularity in appreciation of facts or law in this regard. The judgment is well reasoned. 44. We accordingly dismiss the appeal. However, in the circumstances no order as to costs.