Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 176 (AP)

Meenugu Mallaiah v. Ananthula Rajaiah

2011-03-03

R.KANTHA RAO

body2011
Judgment This second appeal is filed against the judgment and decree dated 31-10-2003 passed in AS.No. 27 of 2001 by the learned Senior Civil Judge, Peddapalli, Karimnagar district, whereby and whereunder the learned Senior Civil Judge reversed the judgment and decree dated 02-11-2001 passed in OS.No. 813 of 1993 by the learned Junior Civil Judge, Sultanabad, Karimnagar district, dismissing the suit filed by the plaintiff therein for declaration of title and perpetual injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment over the suit schedule property bearing survey No.197 admeasuring AC:3-00 situated at Byakaladevpalli village in Julapalli Mandal of Karimnagar district and also to declare that the registered sale deed document No.1083/93, dated 29-07-1993 as null and void and not binding on the plaintiff. 2. Heard the learned counsel appearing for the appellants and perused the records. 3. For the sake of convenience, the parties will be referred to as plaintiff and defendants. 4. The brief facts relevant for consideration in the second appeal may be stated as follows: According to the plaintiff, he purchased Ac:3-09 guntas of agricultural land in survey No. 197 of Byakaladevpalli (v) in Julapalli Mandal of Karimnagar district, hereinafter called as schedule mentioned property from one late Sri Samudrala Bhadraiah, who was no more on the date of filing of the suit. The said purchase was said to be under a unregistered sale deed and it was about 20 years prior to the filing of the suit. It is the version of the plaintiff that he took possession of the property under unregistered sale deed and hence he is in continuous possession and enjoyment of the same and the revenue authorities also issued pattedar passbook in his favour. It has been further submitted by the plaintiff that the defendant No.1 is the son and sole surviving legal heir of the original owner of the schedule mentioned property, Sri Samudrala Bhadraiah and the defendant No.2 allegedly purchased the said property from defendant No.1 under a registered sale deed dated 29-7-1993. The plaintiff’s version is that since the land was sold to him by Samudrala Bhadraiah during his life time, the first defendant, who is his son had no existing right to sell away the plaint schedule land in survey No.187 to the second defendant. Therefore, he sought declaration of sale deed as sham, void and not binding on him. The plaintiff’s version is that since the land was sold to him by Samudrala Bhadraiah during his life time, the first defendant, who is his son had no existing right to sell away the plaint schedule land in survey No.187 to the second defendant. Therefore, he sought declaration of sale deed as sham, void and not binding on him. The plaintiff also in the alternative took the plea that he perfected his title by adverse possession. 5. The first defendant remained exparte. The version of the second defendant as could be seen from the written statement filed by him is that he purchased the plaint schedule land and some other land measuring Acs:4-26 guntas in survey No.187 from late Bhadraiah and when he applied for loan long after the said purchase, the bank authorities advised him to get registered sale deed through defendant No.1, who is the son of late Bhadraiah and accordingly he obtained registered sale deed dated 29-07-1993 from defendant No.1 and thus according to him, he purchased the said land of an extent of Acs:4-26 guntas which includes the schedule mentioned land from late Sri Bhadraiah under two unregistered sale deeds and about 20 years prior to the filing of the suit by the plaintiff and has been in continuous possession and enjoyment of the same and subsequently obtained registered sale deed dated 29-07-1993 from the first defendant, who is the son of late Bhadraiah and sole surviving legal heir and that he acquired title to the property. According to the second defendant, the alleged purchase under unregistered sale deed by the plaintiff is false and the plaintiff had never been in possession of Ac:3-09 guntas of land in survey No.187 and that his suit is liable to be dismissed. 6. The question before the learned trial Court was as to whether the plaintiff proved that he purchased the property under unregistered sale deed from Bhadraiah and took possession of the same under the unregistered sale deed about 20 years back from the date of filing of the suit? 7. It is pertinent to note that the plaintiff did not file the said unregistered sale deed on the ground that it was lost. None of the witnesses were examined on behalf of the plaintiff stated about the purchase by the plaintiff of the schedule mentioned land under unregistered sale deed from late Sri Samudrala Bhadraiah. 7. It is pertinent to note that the plaintiff did not file the said unregistered sale deed on the ground that it was lost. None of the witnesses were examined on behalf of the plaintiff stated about the purchase by the plaintiff of the schedule mentioned land under unregistered sale deed from late Sri Samudrala Bhadraiah. However, he filed Ex.A-2 pattedar passbook and Exs.A-1 to A-16 pahanies. There is some oral evidence adduced by the plaintiff to the effect that he is in possession of the schedule mentioned land. The learned trial Court after considering the fact that for several years the name of the plaintiff was not incorporated in the pahanies and other revenue records after the alleged purchase and also taking into account that Ex.A-20 pattedar passbook and Exs.A-1 to A-16 pahanies for some latter years held that they are not reliable and are not sufficient enough to establish the title of the plaintiff over the schedule mentioned property and accordingly dismissed the suit filed by the plaintiff. The learned trial Court also declined to grant injunction and cancellation of registered sale deed dated 29-07-1993 executed by the first defendant in favour of the second defendant. The trial Court was of the view that the documents produced by the defendants such as land revenue receipts which are marked as Ex.B-8 reveal that the defendants paid land revenue in respect of Ac:2-27 guntas of land in the same survey No.187 and that the registered sale deed, which is marked as Ex.A17 indicated Acs:4-36 guntas of land was purchased by D2. The learned trial Court took into consideration the evidence of PWs 2 and 3 examined for the plaintiff and held that the defendants are in possession of the land in dispute. Keeping in mind that the plaintiff claimed title to the property of an extent of Ac:3-09 guntas and whereas the defendants claimed title in respect of the land of an extent of Acs:4-36guntas and the evidence adduced on either side is conflicting and following the principles that the plaintiff has to succeed on the strength of his own case and shall not have recourse to the weakness of the case of the defendants, dismissed the suit filed by the plaintiff. 8. The learned trial Court took into consideration Ex.B-1 certified copy of pahani for the year 1974-75 relating to survey No.187, which is an extent of Acs:19-07 guntas. 8. The learned trial Court took into consideration Ex.B-1 certified copy of pahani for the year 1974-75 relating to survey No.187, which is an extent of Acs:19-07 guntas. Ex.B-2 certified copy of pahani for the year 1976-77. Ex.B-3 is the pahani pertaining to the year 1978-79. Ex.B-4 the pahani for the year 1979-80. Ex.B-5 the pahani showing the name of the defendant as purchaser of Acs:3-08 guntas. Ex.B6 is the pahani for the year 1983-84. Ex.B7 is the pahani for the year 1993-94 and also Exs.B11, B12, 13 showing the name of the plaintiff as well as the defendants in the pahanies column. 9. The learned first appellate court though agreed that the finding of the learned trial Court that the plaintiff failed to prove the unregistered sale deed allegedly executed by late Samudrala Bhadraiah in his favour, under which he became entitled to the plaint schedule mentioned land. Considering the pattedar passbook and the pahani patriks filed by the plaintiff expressed the view that the said documents would show that the plaintiff is in possession of the schedule mentioned land and therefore, the plea of adverse possession taken by the plaintiff has to be upheld. The learned first appellate Court also took an erroneous view that under the registered sale deed dated 29-07-1993, the defendant No.2 did not acquire any title to the schedule mentioned land on the premise that the land was long back sold to the plaintiff by the first defendant’s father late Sri Samudrala Bhadraiah. The learned first appellate Court lost sight of the fact that the plaintiff miserably failed to prove that he purchased the schedule mentioned land from late Sri Bhadraiah under unregistered sale deed. In the absence of any such proof, it cannot be said that the title in fact passed on to the plaintiff. The learned first appellate Court also failed to understand the effect of conflicting versions taken by the plaintiff in respect of his title to the schedule mentioned land. On one hand the plaintiff asserted his title to the schedule mentioned land under unregistered sale deed said to have been executed by late Sri Bhadraiah. On the other hand, he took an inconsistent plea that he perfected his title to the property by adverse possession. These two pleas are wholly inconsistent. On one hand the plaintiff asserted his title to the schedule mentioned land under unregistered sale deed said to have been executed by late Sri Bhadraiah. On the other hand, he took an inconsistent plea that he perfected his title to the property by adverse possession. These two pleas are wholly inconsistent. There is no averment in the plaint that the first defendant, who is no other than the son of late Bhadraiah is aware of the unregistered sale deed executed by his father in favour of the plaintiff and that by asserting hostile against the defendant and remaining in possession of the schedule mentioned land with the said hostile unanimous for more than statutory period he perfected the title to the property by adverse possession and that the defendant No.1 never objected to any such hostile assertion made. Although the plaintiff stated that he perfected his title to the suit property by adverse possession, he did not assert either in his plaint or in his evidence as to how he acquired the adverse title to the schedule mentioned property against the defendants. If he purchased the property under an unregistered sale deed from the first defendant’s father, the question of his asserting any hostile title against the first defendant does not arise. Further the evidence adduced by the plaintiff at best shows that during some years the plaintiff was in possession of the schedule mentioned property. The witnesses examined on either side stated that both the parties are in possession of the schedule mentioned property, consequently the question of exclusive possession of the plaintiff by asserting hostile title does not arise. In fact there is no such averment. There being no evidence in proof of assertion of hostile title by the plaintiff, the learned first appellate court misdirected itself to the factual and legal position and decreed the suit upholding the plea of perfecting title by adverse possession set-up by the plaintiff. The finding is not merely erroneous but is not legal. 10. The learned counsel appearing for the plaintiff would submit that the finding in relation to the fact given by the first appellate court is final and this Court in exercise of its jurisdiction under section 100 of CPC while dealing the second appeal shall not interfere with such finding of fact recorded by the first appellate Court. 10. The learned counsel appearing for the plaintiff would submit that the finding in relation to the fact given by the first appellate court is final and this Court in exercise of its jurisdiction under section 100 of CPC while dealing the second appeal shall not interfere with such finding of fact recorded by the first appellate Court. It is not possible to accede to the contention of the learned counsel. This Court in dealing with the second appeal can certainly interfere with the findings of fact recorded by the courts below if they are perverse or not based on evidence or based on no evidence. Here is a case, absolutely where there is no evidence indicating that the plaintiff had perfected his title to the schedule mentioned land by adverse possession. The version of the witnesses examined on behalf of the plaintiff is at variance in regard to the possession of the plaintiff. The witnesses examined on either side have stated that both the parties are in possession of the schedule mentioned land. Therefore, it is impermissible for the trial Court in view of the lack of evidence in support of the plea of adverse possession pleaded by the plaintiff to give a finding that the plaintiff had perfected his title by adverse possession. Since the finding is based on no evidence and contrary to the settled principles of law relating to the concept of adverse possession is liable tobe set aside and the second appeal deserves to be allowed. 11. For the reasons afore-mentioned, the judgment and decree passed by the learned first appellate Court is set aside and the judgment and decree passed by the learned trial Court in dismissing the suit filed by the plaintiff in toto is confirmed. The second appeal therefore succeeds and is allowed. There shall be no order as to costs.