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2010 DIGILAW 807 (AP)

G. Venkat Ratnam v. Kolli Para Jhansi Lakshmi

2010-08-25

L.NARASIMHA REDDY

body2010
Judgment The appellant filed O.S.No.12 of 1998 in the Court of Junior Civil Judge, Gannavaram, for the relief of perpetual injunction to restrain the respondents herein from interfering with the peaceful possession and enjoyment of the suit schedule plot, admeasuring 200 sq. yards. It is stated that his grand-father, by name, Bapayya, constructed two Temples in the Village, and set apart the suit plot, which was purchased through sale deed dated 28-03-1916, for the purpose of constructing a building, for the residence of the Archakas. He pleaded that the respondents, who are having their land on the northern and western portion of the suit plot, tried to encroach upon it, by demolishing a portion of old compound wall separating the properties. The appellant further alleged that when one of his agnates submitted a complaint in the Police Station, it was not received, and on the next day itself, the suit was filed. The 1st respondent herein filed written-statement, and the same was adopted by respondents 2 and 3. They did not dispute the original ownership of the property by Bapayya. However, according to them, one of the grand-sons of Bapayya, by name, G.Subbarao, orally sold the suit land in the year 1959, for a sum of Rs.90/- and ever since then, they are in possession and enjoyment of the same, by tethering cattle, keeping hayricks, etc. They disputed the title and right of the appellant over the land. The trial Court decreed the suit, through its order dated 19-03-2001. The respondents filed A.S.No.15 of 2001 in the Court of Additional Senior Civil Judge (Fast Track Court), at Gudivada. The appeal was allowed on 08-01-2004. Hence this Second Appeal. Sri Srinivas Emani, learned counsel for the appellant, submits that the lower Appellate Court concentrated mostly on the question of title, and by taking an erroneous view, that the appellant failed to prove his title, reversed the judgment and decree of the trial Court. He contends that the plea of the respondents, as to oral sale transaction, is just untenable in law, and as regards the possession, they failed to prove any specific acts thereof. Learned counsel submits that the receipts for the tax paid in respect of the property owned by them, on the western and northern side of the suit plot were wrongly treated by the lower Appellate Court, as those, pertaining to the suit plot. Learned counsel submits that the receipts for the tax paid in respect of the property owned by them, on the western and northern side of the suit plot were wrongly treated by the lower Appellate Court, as those, pertaining to the suit plot. He further submits that the suit plot was earmarked for construction of a residential quarter for the Archakas, and that in the recent past, it has been gifted to the Endowments Department. Learned counsel for the respondents, on the other hand, submits that, though there is no dispute as to the original ownership of the property, the appellant failed, even to state as to how he can be said to be in possession, in the absence of any allocation of the same in a family partition. He further submits that the respondents are in possession and enjoyment of the property several decades prior to the suit came to be filed, and that the same was proved through oral and documentary evidence. The suit was filed for the relief of injunction-simplicitor. The trial Court, however, framed issues, touching on the question of title also, and they read as under: 1. Whether the plaintiff has got any title to, and possession over the plaint schedule property? 2. Whether the suit for mere injunction without asking for any declaration of title in respect of the schedule site is maintainable? 3. Whether the plaintiff is entitled to claim the relief of permanent injunction against the defendants in respect of the schedule property? The appellant deposed as PW-1, and one of his close relations deposed as PW-2. The sale deed dated 28-3-1916, through which the property was purchased, by the ancestors of the appellant was filed as Ex.A-1. The 2nd respondent deposed as DW-1, and the Panchayat Secretary deposed as DW-2. Ex.B-1 is the sale deed, through which a plot of 200 sq yards on the western side of the suit schedule property was purchased by the 2nd respondent. Exs.B-2 and B-4 are certified copies of the orders of revision of panchayat tax, and Exs.B-5 to B-25 are receipts of house tax. The suit was decreed and the lower Appellate Court reversed the judgment and decree passed by the trial Court. In a suit for perpetual injunction-simplicitor, the question of title cannot be decided, and at the most, it can be referred to, for a limited purpose. The suit was decreed and the lower Appellate Court reversed the judgment and decree passed by the trial Court. In a suit for perpetual injunction-simplicitor, the question of title cannot be decided, and at the most, it can be referred to, for a limited purpose. When the trial Court framed an issue, touching on the title, the parties could certainly have objected to it. It, however, appears that they too invited a finding on that, and adduced evidence. Therefore, the trial Court has undertaken extensive discussion, mostly on the question of title. As a matter of fact, the issues, relating to title and injunction, were dealt with together. On finding that the property was purchased by the ancestors of the appellant, through Ex.A-1, dated 28-03-1916, and that there is no subsequent sale by the owners of the land, it held that the appellant proved his title. Even at the cost of repetition, it needs to be noted that the respondents did not dispute the title of the ancestors of the appellant, vis--vis the property. The principle of law that 'possession follows title' gets attracted, particularly when the property is a vacant site. Such a presumption, however, can be rebutted, only by taking the plea of acquisition of valuable rights by way of transfer, succession, or adverse possession of the same property, by the defendant in a suit. The respondents have taken the plea of transfer in their favour. The transfer, however, is said to be oral. Such a plea deserves to be taken note of, only to be rejected in limini. When a sale through an unregistered document cannot be recognized in law, a plea as to oral sale of a property cannot even be taken note of. Further, the respondents have not examined any one, who is said to have orally conveyed the property. Having sensed weakness of the plea, as to purchase through oral sale, the respondents made an attempt to take the one of adverse possession. It is equally settled that a person claiming an item of property through sale, cannot fall back upon the plea of adverse possession. One cannot exist in the presence of the other. Even if the respondents failed in their attempt to plead title, either through purchase or by adverse possession, they could have non-suited the appellant, by proving their lawful possession. One cannot exist in the presence of the other. Even if the respondents failed in their attempt to plead title, either through purchase or by adverse possession, they could have non-suited the appellant, by proving their lawful possession. In this regard, they rested their claim on the tax receipts issued by the Gram Panchayat. Had the receipts been in relation to the suit schedule property, a presumption could certainly have been drawn in their favour, as to possession. It has already been mentioned that the respondents had their property on the western and northern side of the suit schedule property. The receipts, in relation to those properties, were filed by claiming as though, they pertain to the suit schedule land. The respondents did not explain that independent tax was paid for various items of property held by them. Further, the acts of possession pleaded by them are in the form of tethering cattle and putting the waste material on the suit schedule plot. Even if these acts are true, they do not give rise to a presumption as to independent possession, particularly when they are resorted to by the owners of plots to the immediate neighbourhood. It is not uncommon in the villages that the neighbouring plots if vacant, are used for such purposes, and the owners thereof would not take serious objection. Therefore, the judgment of the lower Appellate Court cannot be sustained in law. The Second Appeal is accordingly allowed and the judgment, dated 08.01.2004, rendered by the Court of Additional Senior Civil Judge (Fast Track Court), Gudivada, In A.S.No.15 of 2001, is set aside. There shall be no order as to costs.