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2013 DIGILAW 1127 (AP)

Sonti Ramanamma v. Hussaini Begum

2013-12-06

L.N.REDDY, M.S.K.JAISWAL

body2013
JUDGMENT L. Narasimha Reddy, J. 1. This Letters Patent Appeal filed under Clause 15 of the Letters Patent is directed against the judgment and decree dated 31.08.1999 passed by a learned Single Judge of this Court in A.S. No. 1439 of 1980. The said appeal, in turn, arose out of the judgment and decree dated 30.11.1979 in O.S. No. 135 of 1970 on the file of the II Additional Subordinate Judge, Vijayawada. 2. The legal representatives of the second defendant in the suit are the appellants. 3. For the sake of convenience, the parties are referred to as arrayed in the suit. 4. The case of the plaintiffs was that the suit schedule property of 670 square yards is part of Machavaram Jagir in Vijayawada and that the father of the first plaintiff, late Ali Hussain, was one of the Mokhasadars in relation thereto. In a final decree passed in I.A. No. 365 of 1991 in O.S. No. 37 of 1940 on the file of the Sub Court, Vijayawada, an extent of 360 square yards, part of the suit schedule properties is said to have fallen to the share of one Naffijunisa Begum and that the second plaintiff purchased the same. The remaining extent of 240 square yards is said to have been allotted to the share of father of the first plaintiff in the final decree. 5. It was pleaded that the father of the first defendant by name Mereedu Kotaiah and the second defendant approached the plaintiffs in the year 1955 with a request to lease the land for establishing a coffee hotel and that an extent of 210 square yards was given on lease on 01.06.1955 for a period of three years with yearly rent of Rs. 160/-. A shed is said to have been constructed thereon by the defendants. It was also alleged that over the period, the plaintiffs have borrowed money from the lessees with an understanding that the amount would be adjusted in the rents and in that view of the matter, they did not press the lessees to vacate the premises or to execute a further lease. It was also mentioned that the remaining part of the land was occupied by defendants 1 and 2 and that in spite of repeated requests, they did not vacate the same. It was also mentioned that the remaining part of the land was occupied by defendants 1 and 2 and that in spite of repeated requests, they did not vacate the same. According to the plaintiffs, the defendants deserve to be treated as tress passers and are liable to be evicted. Reference was also made to notices dated 11.11.1967 and 22.05.1969. Ultimately, they pleaded for relief of declaration of title and recovery of possession of the property. Damages were also claimed. 6. The second defendant filed written statement. He denied the plaint allegations including the one relating to lease. He stated that the suit schedule property was unoccupied wasteland in the foot of the hill and that he established a hotel in the year 1947 by occupying it. He has put the plaintiffs to strict proof of the plea as to allotment of the suit schedule property vide final decree in O.S. No. 37 of 1940. He is said to have spent a sum of Rs. 10,000/- in 1940s to construct a hotel and to develop the area. He has also stated that the third defendant in the suit filed O.S.Nos.269 and 556 of 1966 against the first plaintiff for recovery of certain amounts under promissory notes and all the facts that are now pleaded in O.S. No. 135 of 1970 were repelled by the trial Court in that case. 7. The trial Court dismissed the suit through judgment dated 30.11.1970. Thereupon, the plaintiffs filed A.S. No. 1439 of 1980. As observed earlier, the learned Single Judge of this Court allowed the appeal through judgment dated 31.08.1999 and thereby decreed the suit. Hence, this L.P.A. 8. Sri T.S. Ananad, learned counsel for the defendants/appellants submits that the plaintiffs miserably failed to prove their title to the suit property. He further submits that the second defendant was in possession and enjoyment of the property from 1947 onwards and the same has been proved by filing various documents. He further submits that once the theory of lease pleaded by the defendants was disbelieved, there did not exist any scope for the plaintiffs to recover possession. Learned counsel submits that even otherwise, the second defendant has perfected his title over the suit schedule property through adverse possession and there was no basis for the learned Single Judge to decree the suit. 9. Learned counsel submits that even otherwise, the second defendant has perfected his title over the suit schedule property through adverse possession and there was no basis for the learned Single Judge to decree the suit. 9. Sri Kanakamedala Ravindra Kumar, learned Senior Counsel for the respondents/plaintiffs, on the other hand, submits that the property has accrued to the plaintiffs under a final decree passed by the Sub Court, Vijayawada, and thereby, their title is established. He contends that being the lessees of the plaintiffs, the defendants, particularly, the second defendant, cannot plead the plea of adverse title. He contends that the learned Single Judge has examined the matter from the correct perspective and that there does not exist any basis for interference. 10. The suit was filed for the relief of declaration of title, recovery of possession, and payment of mesne profits. 11. On the basis of the pleadings before it, the trial Court framed the following issues and additional issues for its consideration: Issues: 1. Whether the plaintiffs have title to the suit property? 2. Whether the lease set up by the plaintiffs is true? 3. Whether the 2nd defendant acquired title to the suit property by adverse possession? 4. Whether the plaintiffs are entitled to the possession of the suit property? 5. Whether the plaintiffs are entitled to claim any mesne profits and if so to what amount? Additional Issues: 1. Whether the suit is bad for mis-joinder of claims? 2. Whether the defendants 4 to 8 are necessary parties to the suit? 3. Whether the plaint schedule site is the part of the plaint schedule site in O.S. No. 135 of 1970 on the file of the Sub-Court, Vijayawada? 12. On behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A.1 to A.42 were filed. On behalf of the defendants, D.Ws.1 to 10 were examined and Exs.B.1 to B.67 were filed. In addition to that, Exs.X.1 to X.7 were also taken on record. 13. The suit was dismissed. However, in relation to an additional issue framed on 11.11.1971, it was held that the legal representatives of the first defendant i.e., defendants 4 to 8 would be under obligation to put the plaintiffs in possession of the site of 25 square yards. 14. 13. The suit was dismissed. However, in relation to an additional issue framed on 11.11.1971, it was held that the legal representatives of the first defendant i.e., defendants 4 to 8 would be under obligation to put the plaintiffs in possession of the site of 25 square yards. 14. In A.S. No. 1439 of 1980, a learned Single Judge of this Court framed the following points for consideration: (i) Whether the appellants have established the title to the suit property? (ii) Whether the first respondent late Ranga Rao had been in possession of the suit property from the year 1947 onwards and prescribed title thereto? (iii) Whether it is not necessary for respondents to file cross-objections and what is the effect of the failure on the part of the respondents in not filing so? (iv) Whether the appeal is abated as pleaded by the respondents for not bringing the legal representatives on record of the deceased second respondent? The appeal was allowed. 15. The points that arise for consideration in this appeal are as to: (a) Whether the plaintiffs proved title to the suit property? and (b) If so, whether the defendants have perfected their title through adverse possession? 16. The plaintiffs claim the title under a final decree passed in O.S. No. 135 of 1970. The certified copy of the compromise petition in O.S. No. 37 of 1940 is filed as Ex.A.1 and the certified copies of the final decree in O.S. No. 37 of 1940 and the plaint attached thereto are filed as Exs.A.2 and A.3. In addition to that, certain other documents such as registration extract of the sale deed of the year 1955 and the extracts of Municipal records are filed as Exs.A.4 and A.5. 17. The defendants did not claim any rights of ownership in the ordinary parlance. Either on account of there not being any rival claim of ownership or the documents filed by the appellants, being fairly old, it can be inferred that the plaintiffs have proved their title to the property, notwithstanding that there is some dispute as to location and measurement of the suit property. 18. However, the second point assumes more significance. The plea of adverse possession, if proved, would disentitle an owner, to recover the property. The connotation of plea of adverse possession has undergone substantial changes due to replacement of 1908 Limitation Act with the 1963 Act. 18. However, the second point assumes more significance. The plea of adverse possession, if proved, would disentitle an owner, to recover the property. The connotation of plea of adverse possession has undergone substantial changes due to replacement of 1908 Limitation Act with the 1963 Act. The burden to establish the plea of adverse possession squarely rests upon the defendants. The defendants, who raised the plea of adverse possession must prove to the satisfaction of the Court that they are in possession of the property, openly, for a period exceeding 12 years, being conscious of the fact that they do not hold title to it. It is not necessary to undertake elaborate discussion about the minute aspects of the concept of adverse possession such as that the possession must be open and with an intention to continue in possession as of right. 19. That the defendants have been in possession of the property, is beyond any doubt. The only difference of opinion is that while according to the plaintiffs, the defendants were inducted in possession in the year 1955, it is the assertion of the second defendant that he is in possession of the property since 1947. The trial Court as well as the learned Single Judge did not believe the theory of lease put forward by the plaintiffs. Therefore, the possession of the defendants cannot be branded or treated as a permissive one. The possession of a person without title, becomes adverse, in nature, to a larger extent. Once it is not permissive, the next question would be as to whether he remained in possession with an intention to continue as such, to the detriment of the true owner. 20. The defendants herein and in particular, the second defendant, did not undertake any secret or clandestine activity in this regard. In a way, the plaintiffs themselves admitted the construction of the shed in the premises, by the defendants. That according to them, it was on the strength of a lease. Their remaining in possession of the premises, by constructing a building and doing the business of a coffee hotel, partakes the character of an open possession held out to the entire world including the one who claims rights of ownership over the property. 21. That according to them, it was on the strength of a lease. Their remaining in possession of the premises, by constructing a building and doing the business of a coffee hotel, partakes the character of an open possession held out to the entire world including the one who claims rights of ownership over the property. 21. The plaintiffs made an effort to mention that they issued a notice in the year 1969 and the defendants did not issue any reply, and thereby acknowledged the ownership. It is too difficult to accept that proposition or contention. The person, who enjoys the possession of the property of which he is not the owner, would be well advised to ignore any notices issued by one including the rightful owner. At any rate, the failure on the part of the defendants to respond to a notice cannot be said to be acknowledgment of the title. Viewed from any angle, the finding recorded by the learned Single Judge that the plea of adverse possession is not proved, cannot be countenanced. 22. The Letters Patent Appeal is accordingly allowed. There shall be no order as to costs. 23. The Miscellaneous Petitions filed in this appeal shall stand disposed of. Appeal allowed.