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2013 DIGILAW 543 (AP)

R. v. S. Vara Prasad VS V. Ramdas

2013-07-12

L.NARASIMHA REDDY, S.V.BHATT

body2013
Judgment : L. Narasimha Reddy, J. The deceased-Vinayak Rao, the sole plaintiff filed O.S.No.31 of 1982 in the Court of Senior Civil Judge, at Sanga Reddy, against the sole respondent for the relief of declaration of title and recovery of possession in respect of Ac.1.21 guntas of land in Sy.No.204/2 of Ramachandrapuram Village, Medak District. During the pendency of the suit, he died, and his two sons, wife and daughter, i.e. respondents 1 to 4 herein were brought on record, as legal representatives. The trial Court dismissed the suit, through judgment dated 29-06-2001. Aggrieved by the same, they filed this appeal. On earlier occasion, this Court allowed the appeal through judgment dated 21-02-2003. The respondent carried the matter to the Supreme Court by filing Civil Appeal No.5490 of 2003. The Hon’ble Supreme Court allowed the appeal on 21-01-2013, and remanded the matter to this Court, for fresh hearing and disposal. That is how this appeal is heard now. For the sake of convenience, the parties herein are referred to, as plaintiff and defendant. Briefly stated the plea of the plaintiff is that he purchased an extent of 5 acres of agricultural land in Sy.No.204/2, Ac.2.08 guntas in Sy.No.204/3 of Ramachandrapuram Village under two sale deeds dated 04-11-1963 and 26-05-1966 from four persons, viz, Viswanadham, Sivaiah, Gollapalli Ramireddy and Basupalli Krishna Reddy. It was mentioned that the vendors of the plaintiff owned about 26 acres of land in different survey numbers, and there is a partition between them, before the sale was effected. The plaintiff pleaded that after he purchased the land, his name was entered in the revenue records. It was pleaded by the plaintiff that the land abuts National Highway No.7 and he was in possession of the entire extent, till the year 1976. He alleged that the defendant filed O.S.No.58 of 1976 in the Court of District Munsiff, Sanga Reddy, for injunction, in respect of Ac.1.27 guntas, i.e., the suit schedule property herein, against him, i.e., the plaintiff, and that the same was decreed. It is stated that A.S.No.72 of 1979 filed by him in the Court of Additional District and Sessions Judge, Sanga Reddy, was dismissed, leaving it open to him to file a suit for declaration of title and recovery of possession, and in that view of the matter, he filed the present suit, being O.S.31 of 1982. It is stated that A.S.No.72 of 1979 filed by him in the Court of Additional District and Sessions Judge, Sanga Reddy, was dismissed, leaving it open to him to file a suit for declaration of title and recovery of possession, and in that view of the matter, he filed the present suit, being O.S.31 of 1982. The plaintiff pleaded that the defendant shifted the boundary stones up to 80 feet towards south, after he obtained an order of temporary injunction in O.S.No.58 of 1976, and that thereafter, he got appointed a Commissioner in that suit for inspection and submission of report. It was also alleged that the land was got demarcated through the survey department by the defendant and though no fencing as such was existing in the year 1975, it was put up in the year 1976. He alleged that after obtaining the decree in O.S.No.58 of 1976, the defendant started digging foundations for raising structures in the suit schedule property and though the plaintiff protested and got issued legal notices, the defendant did not care for them. The plaintiff also pleaded that the value of the suit land, as on the date of filing of the suit was Rs.3,35,000/-, and if it is given on lease to anyone, it would fetch a sum of Rs.3,350/- per month, and that the defendant is liable to make good the loss. The defendant filed a written-statement, opposing the suit. He disputed the very sub-division of Sy.Nos.204 and 205. He pleaded that the plan, relied upon by the plaintiff is not correct, and denied the same. According to him, the total extent of land held by the four vendors is, Ac.13.08 guntas in Sy.No.204; Ac.7.27 guintas in Sy.No.205, and 5 guntas in Sy.No.206. After denying each and every allegation made by the plaintiff in the plaint, the defendant further stated that he purchased the land in part of Sy.No.204, through two sale deeds dated 28-06-1962 and 06-07-1963 from the same vendors i.e., the four persons, referred to above, and that when the plaintiff, who is a subsequent purchaser of the neighbouring land, made an attempt to encroach into part of his land, he filed a criminal complaint, registered as C.C.No.185 of 1976 in P.S. Ramachandrapuram and thereafter O.S.No.58 of 1976. He pleaded that not only a Commissioner was appointed by the Court, but also extensive oral and documentary evidence was adduced in O.S.No.58 of 1976, and the trial Court recorded a clear finding to the effect that the suit schedule property of Ac.1.27 guntas is in his possession and enjoyment, i.e. the defendant, ever since the date of purchase i.e. 11-11-1962. He pleaded that once that finding has become final, with the dismissal of A.S.No.72 of 1979, it is not open to the plaintiff to plead that he was in possession of the property, till the year 1976, and that there was no cause of action for the plaintiff to file the suit. The plea of adverse possession was also raised. As observed earlier, the trial Court dismissed the suit; this Court allowed the appeal, and the Hon’ble Supreme Court remanded the matter for fresh consideration and disposal. Sri B. Adinarayana Rao, learned Senior Counsel for the plaintiff submits that the plaintiff and defendant purchased the respective properties from the same vendors, and what was purchased by the defendant was, 6 acres, under two sale deeds i.e. Ac.1.30 guntas, under sale deed dated 28-06-1962 (Ex.A-6), and Ac.4.10 guntas, through sale deed dated 06-07-1963 (Ex.A-7), but he is in possession and enjoyment of Ac.1.27 guntas, over and above what was purchased by him. He contends that the plaintiff purchased the suit schedule property along with other piece of land, and once he has derived title to the same, he is entitled to seek the relief of declaration of title and recovery of possession. Learned Senior Counsel submits that the criminal case filed by the defendant against the plaintiff resulted in acquittal, and the decree in O.S.No.58 of 1976 is only in relation to the relief of injunction. He submits that the trial Court misdirected itself, in framing certain issues, which are not at all relevant to the dispute, and once it has been established that the plaintiff purchased the suit schedule property, the title ought to have been declared and the possession of the property ought to have been re-delivered to the plaintiff. Learned Senior Counsel submits that the defendant entered into possession of the suit schedule property after he filed O.S.No.58 of 1976, and even if the possession is from any date earlier to that, the plaintiff is entitled to recover the same. Learned Senior Counsel submits that the defendant entered into possession of the suit schedule property after he filed O.S.No.58 of 1976, and even if the possession is from any date earlier to that, the plaintiff is entitled to recover the same. Learned counsel submits that when the extents are clearly mentioned in Exs.A-6 and A-7, the trial Court was not justified in ignoring that, and taking the view that the boundaries would prevail. Learned Senior Counsel further submits that the findings recorded in a suit for injunction are only in relation to the grant of that relief, and the question of such finding operating as res judicata, in a suit for declaration of title and recovery of possession; does not arise. On the plea of adverse possession, learned Senior Counsel submits that there would be clearly contradiction in terms, if a defendant in a suit takes the plea of absolute ownership, in respect of the suit schedule property, on the one hand, and that of adverse possession, on the other hand. He submits that though in certain cases a defendant can take contradictory pleas, that of title, on the one hand, and the one of adverse possession, on the other hand, cannot be taken under the same set of circumstances. He placed reliance upon quite good number of judgments, to support his arguments on various aspects. Sri P.P. Rao, learned Senior counsel for the defendant, on the other hand, submits that, being a purchaser in subsequent point of time, through sale deeds dated 04-11-1963 (Ex.A-1), and 26-05-1966 (Exs.A-2), from the same vendors, of the land in the same survey number, the rights of the plaintiff, if any, are subservient to those of the defendant; an earlier purchaser. He submits that obviously for this reason, the vendors, who are common to plaintiff and defendant have incorporated a specific clause in Ex.A-2, to the effect that, in case there exists any discrepancy as to the extent mentioned in Ex.A-2, on the one hand, and the one, that is physically delivered, on the other hand, the plaintiff shall not be entitled to any right, except that of seeking refund of the proportionate consideration. He submits that the plaintiff was never in possession of the suit schedule property, and in case he felt that there was any short delivery of possession of the land, covered by Exs.A-1 and A-2, he ought to have pursued the remedies with his vendors. Learned Senior Counsel submits that there is no privity of contract between the plaintiff and the defendant, and the former has no cause of action, or basis, to file the suit against the defendant. According to him, the finding recording by the trial Court in O.S.No.58 of 1976, that the defendant is in possession and enjoyment of the suit schedule property from the date of purchase, under Exs.A-6 and A-7, has become final, and it would certainly bar the plea of the plaintiff, that the defendant entered into possession of the land, after filing the suit. Learned Senior Counsel submits that it is in this context, that the plea of res judicata was applied by the trial Court, that too, by framing a specific issue, and that no exception can be taken to the judgment under appeal. Learned Senior Counsel for the defendant further submits that on account of the land being fallow in the year 1962, proximate extents were mentioned in Exs.A-6 and A-7, but clear boundaries were furnished. He submits that, if there exists any discrepancy as to the extent and boundaries of an item of immovable property, the boundaries would prevail over the extent. He further contends that in case any land was delivered to the defendant, in excess of what is covered by Exs.A-6 and A-7, it was only the vendors, that too within the period of limitation, who could have sought any relief, and not the plaintiff, in his individual capacity. He further submits that in O.S.No.58 of 1976, not only a Commissioner was appointed, but also the records of the Survey Department were made part of evidence, and a finding was recorded to the effect that the defendant is in possession of the said property from the inception, i.e., the date of purchase under Exs.A-6 and A-7. Sri P.P. Rao further submits that there is no bar in law, for a defendant to take alternative plea of adverse possession, and if for any reason his plea as to title is not accepted, he can fall back on the other plea. Sri P.P. Rao further submits that there is no bar in law, for a defendant to take alternative plea of adverse possession, and if for any reason his plea as to title is not accepted, he can fall back on the other plea. He too has placed reliance upon the relevant precedents, to buttress his contentions. As observed earlier, the suit was filed for the relief of declaration of title and recovery of possession. Though there is an averment in the plaint, as to the mesne profits, no relief in that behalf was claimed. The suit was pending before the trial Court, almost for two decades. Initially, five issues were framed, touching on the relief of declaration, possession, mesne profits, plea of adverse possession and value of the suit. Later on, six additional issues were framed, covering the controversy, as to whether there was sub-division, whether the finding in O.S.No.58 of 1976 would operate as res judicata, and whether the plaintiff was in possession of the property, at any point of time, at all. When the matter was taken up for hearing, the trial Court recast the issues, which read as under: 1. “Whether the finding of the possession given by the District Munsif in O.S.No.58/76 and upheld by the Addl. District Judge in A.S.No.72/79 holding that the defendant is in possession upto AB line in the sketch map from 11.11.1962, operates the doctrine of resjudicata, if so the plaintiff is barred from claiming the same against the defendant? 2. Whether the plaintiff is entitled for declaration of title and also recovery of possession? 3. Whether the defendant perfected his title by adverse possession of the suit schedule property? 4. Whether the plaintiff is entitled to past and future profits? 5. Whether the suit is not valued properly and court fee paid is insufficient?” On behalf of the plaintiff, PWs 1 to 3 were examined and Exs.A-1 to A-82 were filed. On behalf of the defendant, DWs 1 to 3 were examined and Exs.B-1 to B-35 were marked. In addition to that, the entire record in O.S.No.58 of 1976 was taken as evidence, in Exs.C-1 to C-12. The trial Court dismissed the suit. In the present appeal, on earlier occasion, this Court heard the matter by framing the following points for consideration: 1. In addition to that, the entire record in O.S.No.58 of 1976 was taken as evidence, in Exs.C-1 to C-12. The trial Court dismissed the suit. In the present appeal, on earlier occasion, this Court heard the matter by framing the following points for consideration: 1. “Whether the judgment in O.S.No.58 of 1976 of the District Munsif Court, Sangareddy upheld by the Additional District Judge in A.S.No.72 of 1979 operates as res judicata for the present suit. 2. Whether the defendant was in possession of the suit land up to AB line as shown in the sketch annexed to the plaint in O.S.No.58 of 1976. 3. Whether the plaintiff is the owner of the suit land and was in possession of the same at any time after the purchase. 4. Whether the plaintiff is entitled for declaration of the title and recovery of possession.” and allowed the appeal, through judgment dated 21-02-2003. In Civil Appeal No.5490 of 2003, the Hon’ble Supreme Court took the view that the judgment rendered by this Court does not accord with the provisions of Rule 31 of Order 41 C.P.C., and that the points have not been properly framed. Without expressing any view on merits, the judgment of this Court was set aside and the matter was remanded for fresh consideration and disposal. In view of the submissions made by the learned Senior Counsel for the plaintiff and the defendant, this Court is of the view that the following points arise for consideration: i) Whether the finding of the Court of District Munsif, Sanga Reddy, in O.S.No.58 of 1976, on the question of possession over the suit schedule property, operates as res judicata in the present suit. ii) Whether the plaintiff has established his title over the suit schedule property. iii) Whether the plaintiff or his vendors were ever in possession of the suit schedule property and whether the plaintiff is entitled to recover possession thereof from the defendant. iv) Whether the suit is barred by limitation. Point No.(I) The plaintiff as well as the defendant purchased different extents of land from the same vendors i.e. Viswanadham, Sivaiah, Gollapalli Ramireddy and Basupalli Krishna Reddy, who collectively owned an extent of Acs.21.00 in survey Nos.204, 205 and 206 of Ramachandrapuram Village. Though the theory of partition among the vendors was pleaded, that was not substantiated and is in fact, not at all relevant in these proceedings. Though the theory of partition among the vendors was pleaded, that was not substantiated and is in fact, not at all relevant in these proceedings. The reason is that all the joint owners have figured as vendors in the sale deeds, executed in favour of the plaintiff and the defendant. The purchase made by the defendant was earlier in point of time. Two bits of land in survey No.204 were purchased by him, vide sale deeds, dated 28.06.1962 and 06.07.1963 under Exs.A.6 and A.7, respectively. The extent of land covered by Ex.A.6 is Ac.1.30 guntas and the one covered by Ex.A.7 is Acs.6.00. The plaintiff, on the other hand, purchased an extent of Acs.2.01 gunta of land, in survey No.204 and Acs.2.27 guntas in survey No.205, through sale deed, dated 04.11.1963 (Ex.A.1) and Acs.5.00 of land in survey No.204 through another sale deed, dated 26.05.1966 (Ex.A.2). It means, that he purchased Acs.7.01 guntas of land in survey No.204. The total extent of that survey number is said to be Acs.13.08 guntas. If the extents purchased by the plaintiff, on the one hand, and the defendant, on the other, in survey No.204 are taken into account, they tally with the total extent of the survey number, barring a minor discrepancy. The plaintiff, however, pleads that the defendant has encroached into Ac.1.27 guntas in survey No.204. He has also submitted a complaint before the police. That was followed by filing of O.S.No.58 of 1976 in the Court of District Munsif, Sanga Reedy, for the relief of injunction. The consequences that flow from the decree passed therein will be discussed in relation to other points. In O.S.No.58 of 1976 it was pleaded that the defendant, i.e. plaintiff herein made an attempt to interfere with his possession over the suit schedule property, which is the same, as in the present suit. A clear finding was recorded to the effect that the defendant herein (plaintiff therein) was in possession of the suit schedule property, by the time he purchased the land. The judgment and decree in that suit was affirmed in A.S.No.72 of 1979 by the Court of Additional District Judge, Medak, at Sanga Reddy. The oral and documentary evidence adduced in that suit was made part of record in O.S.No.31 of 1982. The judgment and decree in that suit was affirmed in A.S.No.72 of 1979 by the Court of Additional District Judge, Medak, at Sanga Reddy. The oral and documentary evidence adduced in that suit was made part of record in O.S.No.31 of 1982. Faced with the finding in O.S.No.58 of 1976, the plaintiff filed the present suit, for the relief of declaration of title and recovery of possession. One of the contentions urged by the defendant was that the finding in O.S.No.58 of 1976 would operate as res judicata in the present suit. On earlier occasion, this Court repelled the contention, by taking the view that the finding recorded in a suit, filed for injunction, does not operate as res judicata, in a suit for declaration of title and recovery of possession, as between the same parties and in respect of the same property. The judgment was set aside by the Hon’ble Supreme Court and the matter was remanded for fresh consideration. Learned Senior Counsel for both the parties have cited quite large number of precedents on the principle of res judicata. The principle is, as old as the civil litigation, and the discussion was mostly about the peripheries thereof. However, on certain occasions, may be inadvertently, views were expressed to the effect that res judicata would operate, in respect of the judgments and decrees passed in earlier proceedings. A careful reading of Section 11 C.P.C., would make it amply clear that the principle applies in respect of findings and not with reference to the entire proceedings or the decrees, as such. What becomes essential is that; a) the earlier and subsequent proceedings, are as between the same parties; and b) an issue, that has been answered in the earlier suit has arisen for consideration in the subsequent suit. It is too well-known that in a given suit, there may be more issues than one, and notwithstanding the fact that all the issues, that were framed and dealt with in the earlier suit; are not replicated in the subsequent suit, the principle can operate in one or few of the issues. Take for instance, an issue pertaining to the validity of a Will fell for consideration in a suit for partition between a set of parties. Take for instance, an issue pertaining to the validity of a Will fell for consideration in a suit for partition between a set of parties. The same issue arose for consideration in a suit for recovery of possession, to which certain other persons, in addition to the parties to the earlier suit; are also parties. The findings in the earlier suit for partition on the validity of the Will, would operate as res judicata, on the same issue in the subsequent suit, notwithstanding the fact that and all the parties and all the issues are not common in both the suits. Viewed from this angle, the finding in O.S.No.58 of 1976, as to the possession over the suit schedule property would operate as res judicata, in the present suit. This, despite the fact that the earlier suit for injunction-simplicitor, and the subsequent one is for declaration of title and recovery of possession. It may appear to be almost superfluous, when the present suit itself is for recovery of possession, and hardly there exists any controversy about the possession of the property with the defendant. What, however, makes the difference is that the finding recorded in O.S.No.58 of 1976, is that the defendant herein was in possession of the property, ever since he purchased the suit schedule property. Hence, point No.1 is answered against the appellant-plaintiff, and in favour of the respondent-defendant. Points (II & III): Points 2 and 3 are as to whether the plaintiff has established the title over the suit schedule property, and whether he or his vendors were ever in possession of the suit schedule property, and whether he is entitled to recover possession thereof. Since there is substantial overlapping of these points, they are dealt with together. In case the extents purchased by the plaintiff, on the one hand, and the defendant, on the other hand, from the same survey number, were demarcated with precession and certainty, there should not be any difficulty in declaring the titles in respect of the items of property covered by the sale deeds. When the purchases are made from the same source, presence of the common vendors as parties to the suit would have been helpful to the parties as well as the Court. However, the plaintiff did not choose to implead his vendors or their legal representatives, as parties to the suit. When the purchases are made from the same source, presence of the common vendors as parties to the suit would have been helpful to the parties as well as the Court. However, the plaintiff did not choose to implead his vendors or their legal representatives, as parties to the suit. In Exs.A.6 and A.7, the sale deeds, through which the defendant purchased the property and the extents, in Sy.No.204 are mentioned as Ac.1.30 guntas and Acs.4.10 guntas, respectively. The contention of the plaintiff is that the defendant has encroached into part of survey No.204 that was sold to him. The record discloses that efforts were also made to get the land surveyed. In Ex.A-6, under which, the defendant purchased Ac.1.30 guntas of land, boundaries were not mentioned. Prior possession over the land was acknowledged. The recital in this behalf reads: “Vendors do hereby convey their right, title and interest by way of absolute sale in favour of the purchaser, the plot of land bearing Survey No.204 situated at Ramachandrapuram village, taluq Sangareddy, District Medak, measuring 1 acre 30 guntas. The purchaser has already been put in possession of the said land and the purchaser is the absolute owner of the said land on and from this date”. In Ex.A.7, the boundaries with some land marks were mentioned, as under: “Vendors do hereby acknowledge, the vendors do hereby convey their right, title and interest by way of absolute sale in favour of the Purchaser, the Plot of Land bearing Survey No.204 situated at Ramachandrapuram Village, Taluq Sangareddy, District Medak, measuring 4 acres and 10 guntas”. Here again, the prior possession is acknowledged. From a perusal of Exs.A.1 and A.2, on the one hand, and Exs.A.6 and A.7, on the other hand, it appears that the vendors themselves were not sure about the exact extents that are sold by them, to those parties. Here again, the prior possession is acknowledged. From a perusal of Exs.A.1 and A.2, on the one hand, and Exs.A.6 and A.7, on the other hand, it appears that the vendors themselves were not sure about the exact extents that are sold by them, to those parties. Obviously, realizing that there is every likelihood of difference as to the extent in the land sold to the plaintiff, they incorporated the following clause in Exs.A.1 and A.2: “The vendors do further hereby agree with the purchasers that if, for any legal defect, the purchasers are deprived of the whole or any part of the Schedule Property, the Vendors do hereby undertake to compensate the Purchasers, their assignees and successors-in-interest, for the loss incurred by them and it is a condition of this Sale that in case of any dispute arising in relation to the said Schedule Property or any part thereof by virtue of any act of the Vendors or their heirs, or their successors-in-interest or any person claiming title of the Schedule property, the Vendors and their estates shall be bound to compensate to the Purchasers, for such loss or damage arising from such act and the Vendors shall be liable to refund to the Purchasers, the costs of the Schedule property, deprived of, together with the losses incurred by the Purchasers or their successors-in-interest.” This only indicates that the possession of defendant over part of the land in survey No.204 on the strength of Exs.A.6 and A.7 is confirmed and a note of caution is added to the effect that, if at all there is any shortfall in the extent, the same would be compensated in the form of refund of the proportionate consideration to the plaintiff. They did not undertake to make good, the shortfall of the extent of land to the plaintiff and even the latter has agreed for this. Though this discussion may appear to be somewhat foreign to the question of title, it is undertaken only to drive home the point, about the extent of land in survey No.204, on which the plaintiff acquired title under Exs.A.1 and A.2. If the clause extracted above is taken into account, it cannot be said with certainty, and in unequivocal terms, that the plaintiff had acquired title for the extent mentioned in Exs.A.1 and A.2, from the date on which, the sale deeds were executed. If the clause extracted above is taken into account, it cannot be said with certainty, and in unequivocal terms, that the plaintiff had acquired title for the extent mentioned in Exs.A.1 and A.2, from the date on which, the sale deeds were executed. The fact that the plaintiff did not make out any grievance against his vendors about the shortfall in the extent, makes one to infer, that he was reconciled to the situation obtaining on the ground, regarding the extent of land. Though the execution of a deed of transfer may confer title upon the transferee, it is always subject to the property covered by the document, being available to be passed on to the transferee. In a given case, the transfer can be made without actual delivery of possession. In such an event, the transferee can take steps, to recover possession. The acquisition of right vis-à-vis, a property occurs, if only, a) the possession of the transferred property was delivered to the transferee; or b) the transferee is entitled to recover possession, on the basis of the transfer from the transferor or any other person, who is enjoying it. In case the transferor himself is incapable or has been incapacitated from recovering the possession of the property, it is unthinkable that he can make an effective transfer of such property in favour of another. Apart from the principle nemo dat quod non habet, the other ingredients of a legal title come into play. By its very nature, title takes in its fold, a bundle of rights and it will inhere in a person, even though the corresponding property may be under the enjoyment of others, such as, in the capacity of lessee, mortgagee or even a trespasser. What keeps the owner of the property on a higher pedestal, compared to rest of the world, is his capacity or entitlement or authority, to recover possession. If the very acquisition of title was, at a stage where the transferor himself did not have any right to recover the possession of the property, or has parted with it, voluntarily, he just cannot convey a title in its juridical sense, to another. In view of the discussion undertaken, the inescapable conclusion is that the plaintiff did not acquire any title in respect of the land, that is in possession of the defendant. In view of the discussion undertaken, the inescapable conclusion is that the plaintiff did not acquire any title in respect of the land, that is in possession of the defendant. Point No. IV: The relevant portions in Exs.A-1 and A-2 and Exs.A-6 and A-7 have been extracted. What emerges from them is that, a) even by the time the common vendors of the plaintiff and defendant executed Exs.A-6 and A-7, the defendant was in possession of the property, covered by those two documents; b) the common vendors never complained that the defendant has encroached into any extent of land, over and above what was sold to him; c) the vendors have clearly informed the plaintiff that in the event of there being any shortfall in the area, sold through Exs.A-1 and A-2, the only entitlement of the plaintiff would be, to seek refund of the proportionate consideration; d) the plaintiff never complained of, to his vendors that there is any shortfall of area sold to him; and e) his plea that the defendant encroached into the suit schedule property in the year 1976 was repelled and a finding was recorded in O.S.No.58 of 1976, that the suit schedule property was in possession of the defendant herein ever since he purchased it in the year 1962-63. Assuming that the plaintiff acquired title to the suit schedule property, together with the right to recover it, it needs to be seen as to whether he is entitled to the same. Though extensive arguments were advanced, touching on the concept of adverse possession and precedents were cited, this Court is of the view that the same does not need serious consideration. As Sir John Salmond, an accomplished Jurist puts it: the possession of a property may accrue to an individual through one of the two methods, viz., “taking” or “delivery”. “Taking” is an act, that flows from the person, who gets the possession, and many a time, such an act is in derogation of the title or right of another, vis-à-vis the property. It has an element of adverse action on the part of the person, who assumes possession. “Delivery”, on the other hand, results when the person, who is already in possession of the property, passes it on to another. This may be for consideration, or otherwise. It has an element of adverse action on the part of the person, who assumes possession. “Delivery”, on the other hand, results when the person, who is already in possession of the property, passes it on to another. This may be for consideration, or otherwise. Instances of this category include those of a lessor, delivering the property to the lessee; mortgagor delivering it to the mortgagee, and a vendor delivering to the vendee. If the delivery of possession coincides with the transfer of title, the person, who delivers it cannot recover the same. On the other hand, if the delivery takes place even while the ownership remains with such person, his right to recover possession remains intact. While the plea of adverse possession becomes relevant in the first category of cases, viz., where possession is ‘taken’, the same does not arise, where possession has accrued through delivery. In the instant case, the record discloses that the defendant herein got the possession of the property covered by Exs.A-6 and A-7, including the one, which is the subject matter of the suit, on being delivered by his vendors. As a matter of fact, the delivery preceded the execution of the sale deeds, and the transfer has only conveyed the title of what was already delivered to the plaintiff. That being the case, the possession of the property of the defendant, or any part thereof cannot be said to be adverse in nature. The plaintiff failed to prove that he has been dispossessed from the suit schedule property by the defendant. He can still recover it, in case the plaintiff “took” possession from the vendors of the plaintiff, without there being any legal entitlement. The reason is that the plaintiff would be entitled to every legal right, which his vendors were entitled to, and he can claim the benefit of tacking the period of adverse possession, vis-à-vis his vendors. However, once it is held that the possession of the defendant was never adverse, to that of the plaintiff or his vendors, the question of his being able to recover the same does not arise, notwithstanding the uncertainty as to the application of principle of adverse possession. The plaintiff could have provided the various missing links in this behalf, if only he impleaded his vendors and has elicited from them, that the defendant has unauthorisedly encroached into the property, when they were the owners. The plaintiff could have provided the various missing links in this behalf, if only he impleaded his vendors and has elicited from them, that the defendant has unauthorisedly encroached into the property, when they were the owners. His failure in this behalf would certainly have its own effect. The trial Court has dealt with each and every aspect of the matter, in detail, with reference to the decided principles, appreciated the evidence from the correct perspective and has arrived at proper conclusions. We do not find any grounds to interfere with the judgment and decree. The appeal is accordingly dismissed, but in the circumstances without costs. Before parting with the case, we place on record, the appreciation for the effective, able and dispassionate assistance rendered before this Court, by both the learned Senior Counsel. The miscellaneous petitions filed in this appeal shall also stand disposed of.