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2014 DIGILAW 1125 (AP)

Gorige Ailamma v. Utkoori Somaiah

2014-09-05

B.CHANDRA KUMAR

body2014
Judgment B. Chandra Kumar, J. 1. Since the issues involved in all the Second Appeals are common in nature they are being disposed of by this common judgment. 2. SA No. 1385 of 2005 is filed against the judgment and decree dated 28.07.2005 passed in A.S. No. 4 of 1998 by the Senior Civil Judge, Jangaon, whereby and whereunder the judgment and decree dated 06.04.1998 passed in OS No. 48 of 1982 by the learned Junior Civil Judge, Jangaon, Warangal District has been reversed. 3. SA No. 1554 of 2005 is filed against the judgment and decree dated 28.07.2005 passed in A.S. No. 6 of 1998 by the Senior Civil Judge, Jangaon, whereby and whereunder the judgment and decree dated 06.04.1998 passed in OS No. 20 of 1988 by the learned Junior Civil Judge, Jangaon, Warangal District has been reversed. 4. SA No. 1665 of 2005 is filed against the judgment and decree dated 28.07.2005 passed in A.S. No. 5 of 1998 by the Senior Civil Judge, Jangaon, whereby and whereunder the judgment and decree dated 06.04.1998 passed in OS No. 123 of 1987 by the learned Junior Civil Judge, Jangaon, Warangal District has been reversed. 5. The plaintiff in OS No. 48 of 1982 namely Utkoori Somaiah shall be referred to as plaintiff for the sake of convenience. 6. Utkoori Somaiah filed the suit in OS No. 48 of 1982 on the file of the District Munsif, Jangaon, on 28.04.1982 against Jookanti Ramaiah, Jookanti Beeraiah, Jookanti Chandraiah, Godige Siddaiah and Puligila Mallaiah for declaration of title and for recovery of possession of the suit schedule property i.e., Sy. No. 336/B to an extent of Ac.2-28 gts., Sy. No. 339 to an extent of Ac. 10-06 gts., Sy. No. 340/B to an extent of Ac.4-11 gts., totally admeasuring Ac. 17-05 gts., situated at Mallampally village, Kodakandla Taluk, Warangal District. Subsequently, he has also filed OS No. 123 of 1987 against Jookanti Ramaiah, Gorige Siddaiah, Gorige Sathaiah, Gorige Komaraiah and Gorige Ailamma for permanent injunction restraining the defendants and their family members etc., from interfering with his peaceful possession and enjoyment over the suit schedule lands. The first defendant in OS No. 123 of 1987 is the first defendant in OS No. 48 of 1982 and the second defendant in OS No. 123 of 1987 is the 4th defendant in OS No. 48 of 1982. The first defendant in OS No. 123 of 1987 is the first defendant in OS No. 48 of 1982 and the second defendant in OS No. 123 of 1987 is the 4th defendant in OS No. 48 of 1982. The defendants 3 to 5 in OS No. 123 of 1987 are not parties in OS No. 48 of 1982. Gorige Ailamma, the 5th defendant in OS No. 123 of 1987 filed a suit in OS No. 20 of 1988 for declaration of title and permanent injunction in respect of the same land against one Utkoori Jayamma and Utkoori Somaiah the plaintiff in OS No. 48 of 1982 and 123 of 1987. 7. The case of the plaintiff, in brief, is that he is the owner of the suit schedule lands and the said lands are not fertile lands and that they were kept fallow and used as pasture lands for several decades. The income from those lands was very meager. So, he wanted to purchase lands at Eturnagaram. Accordingly, he migrated to Sangampally village near Eturnagaram during the year 1969-70. There he obtained certain lands. It is his further case that he had entrusted the management of the suit schedule lands to the defendants on condition that he would pay half of the net produce excluding the cultivation expenses and land revenue towards their remuneration, accordingly he used to visit his village during harvest period and settle the accounts and used to pay the yield to the defendants as per the agreement. It is his further case that during the year 1980 the defendants by influencing the Patwari got entered their names as occupants of the suit lands and the defendants are also not showing proper accounts. Therefore, he demanded the defendants to vacate the suit lands in the year 1981. Further, at the request of defendants he waited for some more period and the defendants evaded to meet the plaintiff and refused to vacate the lands. It is also his case that the defendants have managed the Patwari and got entries for the years even prior to 1973 and 1974. Contending that the defendants have no right to claim the property, he filed the suit for declaration of title and eviction of the defendants from the suit lands and he also claimed mesne profits at Rs. 500/- per annum. 8. Contending that the defendants have no right to claim the property, he filed the suit for declaration of title and eviction of the defendants from the suit lands and he also claimed mesne profits at Rs. 500/- per annum. 8. It appears that the defendants 1 to 3 and 5 remained ex parte. Defendant No. 4 alone filed written statement. He denied the title of the plaintiff. His specific case is that the plaintiff sold the suit property through private sale to his wife and possession was delivered to her and migrated to Sangampally village once for all. His wife namely Ailamma is the absolute owner and possessor of the land and she had been in continuous possession of the property from the date of her purchase. It is also his case that his wife and her other family members have been in possession since past 18 years and they had dug a well and fitted an oil engine. His further case is that as the value of the land is increased the plaintiff hatched a plan to grab the same. His further case is that his wife already filed OS No. 20 of 1988 when the plaintiff herein and his wife interfered with her possession. 9. As seen from the records, it appears that the defendants in OS No. 48 of 1982 were set ex parte and accordingly suit was decreed on 22.09.1984. The plaintiff Utkoori Somaiah filed EP No. 8 of 1985 and accordingly the bailiff had put the plaintiff in possession of the property on 08.05.1985 after conducting panchanama. 10. It appears that as per the orders in IA No. 513 of 1986 the ex parte decree dated 22.09.1984 passed in OS No. 48 of 1982 was set aside and the suit was restored to file. Then the plaintiff filed OS No. 123 of 1987 mainly contending that by virtue of ex parte decree he was put in possession of the property and that the defendants tried to interfere with his possession in June 1985 and therefore he filed EA No. 14 of 1985 in EP No. 8 of 1985 for police aid and it was allowed. It is his further case that on 22.08.1987 the defendants suddenly trespassed into the suit land and tried to destroy the crops of the plaintiff. So, he filed OS No. 123 of 1987 for permanent injunction. 11. It is his further case that on 22.08.1987 the defendants suddenly trespassed into the suit land and tried to destroy the crops of the plaintiff. So, he filed OS No. 123 of 1987 for permanent injunction. 11. The defendants filed written statement mainly contending that they purchased the suit lands from the plaintiff about 20 years back. 12. Gorige Ailamma, wife of Gorige Siddaiah i.e., defendant No. 5 in OS No. 123 of 1987 filed OS No. 20 of 1988 for declaration of title and for permanent injunction against Utkoori Somaiah and his wife Utkoori Jayamma. Her specific case is that she purchased the property from Utkoori Somaiah in the year 1968 and since then she has been in possession of the property. It is also her case that she has also perfected her title by adverse possession. It is also her case that in the year 1985 Utkoori Somaiah returned to their village, denied the title and the matter was placed before the village elders and the village elders directed her to pay Rs. 2,000/- to Utkoori Somaiah and accordingly Utkoori Somaiah had received the said amount and in turn he executed the document dated 23.12.1985 undertaking to withdraw all the cases. Alleging that Utkoori Somaiah and his wife tried to enter into the property on 02.02.1988 she filed the suit. 13. All the suits were clubbed together and common evidence was let in, in O.S. No. 48 of 1982. 14. On behalf of the plaintiff, PWs. 1 to 3 were examined and Exs. A1 to A4 were marked. On behalf of the defendants DWs.1 to 8 were examined and Exs. B1 to B25 were marked. 15. The learned Junior Civil Judge, Jangoan by common judgment dated 06.04.1998 came to the conclusion that Utkoori Somaiah himself admitted that the defendants are in possession of the suit schedule property and even in the pahanies filed by the plaintiff the name of defendant No. 4, Godige Siddaiah the husband of Ailamma, is shown as possessor. The Court believed the evidence of DWs.4 to 8 and having considered Ex. B25 came to the conclusion that the plaintiff sold the property to Ailamma, wife of Siddaiah and that the plaintiff failed to cross-examine DWs. The Court believed the evidence of DWs.4 to 8 and having considered Ex. B25 came to the conclusion that the plaintiff sold the property to Ailamma, wife of Siddaiah and that the plaintiff failed to cross-examine DWs. 1 to 3 and their evidence also shows that the plaintiff sold the property and that in revenue records the name of the wife of defendant No. 4 Ailamma is shown as pattadar and therefore the plaintiff has no title to the property. Thus, the trial Court dismissed the suits in OS No. 48 of 1982 and OS No. 123 of 1987 and decreed the suit in OS No. 20 of 1988. 16. On appeal the learned Senior Civil Judge, at Jangaon, by common judgment and decree dated 28.07.2005 set aside the findings of the trial Court. The appellate Court came to the conclusion that in the revenue records the name of Utkoori Somaiah was shown as original land owner and that Gorige Ailamma and other defendants have failed to prove that they purchased the property from Utkoori Somaiah. The lower appellate Court also came to the conclusion that there is no document showing the purchase of the property and that the evidence of defendants is inconsistent with the recitals of Ex. B25 and with regard to amount paid towards consideration and thus the defendants have failed to prove their case. Since the plaintiff has title to the property he is entitled for the reliefs as sought for by him. Thus, the lower appellate Court reversed the findings of the trial Court and directed Gorige Ailamma to vacate the suit lands and deliver possession of the suit lands to Utkoori Somaiah within two months. This finding is in question in the second appeals. 17. The learned counsel for the appellant submitted that the lower appellate Court has not considered the important fact that the defendant has been in possession of the suit schedule lands since the year 1970. It is also his submission that admittedly, the defendants have paid the land revenue. It is also his submission that the lower appellate Court ought to have considered Ex. A.25 - 'the Settlement which shows that the parties have settled the dispute before the village elders and the plaintiff was paid some more amount as per the said settlement. It is also his submission that admittedly, the defendants have paid the land revenue. It is also his submission that the lower appellate Court ought to have considered Ex. A.25 - 'the Settlement which shows that the parties have settled the dispute before the village elders and the plaintiff was paid some more amount as per the said settlement. It is also his submission that normally, it is the village elders who settle the disputes and that practice prevailing in the villages cannot be ignored. It is also his submission that the evidence of P.Ws.4 and 5 who were not even cross-examined clinchingly proves that the plaintiff has sold the suit schedule lands long ago to the defendants and the circumstance that the defendants have paid the land revenue and their names have been entered as purchasers and the fact that the revenue authorities have issued pattadar pass books to the defendants declaring them as the owners of the property are the circumstances sufficient to draw a conclusion that the plaintiff has sold away his property to the defendants. It is also his submission that there is no evidence on record to show that the plaintiff has given the land to the defendants on crop sharing basis and the lower appellate Court has simply accepted the version of the plaintiff without any iota of evidence in support of the case of the plaintiff. It is also submitted that burden lies on the plaintiff to prove his case and the suit cannot be decreed merely because the defendants' case is weak. It is also his submission that the defendants in O.S. No. 48 of 1982 have taken a specific plea that Ailamma has purchased the property from the plaintiff and she has been in possession of the property and in spite of taking such specific plea, the plaintiff has not impleaded her as a party to the suit. It is also argued that the lower appellate Court has not considered the Ex. B.15 - pattadar pass books and the admissions made by the plaintiff. In support of his contentions, learned counsel for the appellant relied on the judgments in the cases between P. Veerabhadrappa Setty and another v. Polliki Chandrahas, 2014(2) ALD 724 , Union of India and others v. Vasavi Co-op Housing Society Limited and others, 2014(2) ALD 157 (SC) and Sebastiao Luis Fernandes (dead) thr. LRs. In support of his contentions, learned counsel for the appellant relied on the judgments in the cases between P. Veerabhadrappa Setty and another v. Polliki Chandrahas, 2014(2) ALD 724 , Union of India and others v. Vasavi Co-op Housing Society Limited and others, 2014(2) ALD 157 (SC) and Sebastiao Luis Fernandes (dead) thr. LRs. and others v. K. V.P. Shastri (dead)thr. LPs and others, 2014(2) ALD 103 (SC). 18. Per contra, Sri Ramanna Dora, learned counsel for the respondents submitted that as far as title of the plaintiff is concerned, the same is not specifically denied by the defendants and when the defendants claim that they have purchased the suit schedule lands from the plaintiff, it is deemed that the defendants admitted the title of the plaintiff. It is also his submission that when the title of the plaintiff is admitted, there is no need to prove the same. It is also his submission that Ex. A.25 - alleged settlement deed is dated 23.11.1985 and the defendants filed written statement on 13.07.1988, i.e., three years after the alleged date of settlement, but they have not referred to Ex. A.25 in their written statement. It is also his submission that as on the date of alleged settlement deed before the village elders, two suits were pending before the Courts and nothing prevented the parties from filing the compromise petition in those suits. His next submission is that the defendants case is that they purchased the suit schedule lands from the plaintiff and admittedly, no document has been filed evidencing the sale. It is also his submission that no property can be transferred unless by way of a registered document. It is also his submission that the pleadings of the defendants are inconsistent and in the affidavit they stated that all the defendants purchased the property but in the written statement they have taken a plea that Ailamma alone purchased the property. It is also his submission that the version of the defendants cannot be accepted since the name of Ailamma is not found in the revenue records, but, it is the name of other defendants who are shown to be in possession of the property in the revenue records. It is also his submission that when suits are clubbed, there is no need to implead Ailamma as party in O.S. No. 48 of 1982. It is also his submission that when suits are clubbed, there is no need to implead Ailamma as party in O.S. No. 48 of 1982. It is also his submission that in some pahanis, the name of Siddaiah is shown as possessor whereas the case of the defendants is that Ailamma is the purchaser. In support of his contentions, learned counsel relied on the judgments in the cases between Uppula Ramesh v. Elagandula Harinath and others, 2014(1) ALD 1 , Irruvuru Ramachandra Reddy @ Chandraiah and others v. Koppala Bhushanam 1996(6) ALD 140, Sebastiao Luis Fernandes (dead) thr. LRs (supra), Moot Chand Bakhru and another v. Rohan and others, AIR 2002 SC 812 , Jagamohan Garnaik and others v. Sankar Samal and others, AIR 1990 Orissa 124, Imtiaz Ali v. Nasi Ahmed, AIR 1987 Delhi 36 and Davendra Singh v. State of Rajasthan, AIR 2002 Rajasthan 66. 19. In reply, learned counsel for the appellant submitted that Siddaiah is no other than the husband of Ailamma and that even if the name of Siddaiah is shown as cultivator or purchaser, it cannot be treated as a circumstance against the defendants. It is also his submission that Ramulu is no other than the brother of Ailamma and they are all cultivating the lands and the lower appellate Court has not considered the relationship and also the fact that they have no conflicting interest. 20. The second appeal has been admitted on the following substantial questions of law:-- "a) Whether the lower appellate Court is justified in dealing with issues other than those framed by the trial Court and deciding the same in favour of the plaintiff depriving the defendants the opportunity to counter to plaintiff's evidence? b) Whether the judgment of the lower appellate Court is vitiated by failure to draw a presumption against the plaintiff in view of the fact that the first respondent (plaintiff) has not made the appellant as party to the suit when admittedly, she purchased the suit schedule property under Ex. B.25? c) Whether the appellate Court while reversing the judgment of the trial Court failed to evaluate the construction of the document Ex. B.25 in its true and correct perspective? B.25? c) Whether the appellate Court while reversing the judgment of the trial Court failed to evaluate the construction of the document Ex. B.25 in its true and correct perspective? d) Whether he suit is bad for non-joinder of necessary party, i.e., wife of defendant No. 4 (appellant herein) who claimed to have purchased the suit property from the plaintiff and who has been in possession and enjoyment thereof as pleaded by the fourth defendant? e) Whether the judgment of the lower appellate Court is vitiated for the reason that it unnecessarily dealt with an issue which was not even framed by the trial Court? f) Whether the judgment of the lower appellate Court is vitiated for the reason that it is perverse and erroneous?" 21. It is settled law that the High Court, in second appeal, cannot interfere with the findings on fact unless it appears that those findings are perverse and based on no evidence or there is misreading of the evidence. The lower appellate Court observed as follows:-- "None of the pahani Patrikas, which got exhibited on behalf of Gorige Ailamma were showing her possession over the suit lands. No such entry is found in any of the pahani patrikas to the effect that if not she, at least her husband and her brother, namely Gorige Siddaiah and Jookanti Ramaiah whose names were found in the pahani patrikas held such possession on behalf of Gorige Ailamma, who is said to be the purchaser of the suit lands. When the very documentary evidence which placed by Gorige Ailamma is not disclosing either her possession or her continuance in possession of the suit lands, then how come the lower Court came to the conclusion and answered such alleged continuous possession of Gorige Ailamma over the suit lands, is only known to the lower Court." 22. Admittedly, the names of Gorige Ailamma and Jookanti Ramaiah have been found in the pahani patrikas filed by the defendants. Exs. B.1 to B.13 are the certified copies of Pahani Patrikas from the year 1970-71 to 1984-85. It has to be seen that in O.S. No. 48 of 1982, Jookanti Ramaiah, Jookanti Beeraiah, Jookanti Chandaiah, Godiga Siddaiah, Puligllla Mallaiah are the defendants. The above suit was filed for declaration of title and recovery of possession. Exs. B.1 to B.13 are the certified copies of Pahani Patrikas from the year 1970-71 to 1984-85. It has to be seen that in O.S. No. 48 of 1982, Jookanti Ramaiah, Jookanti Beeraiah, Jookanti Chandaiah, Godiga Siddaiah, Puligllla Mallaiah are the defendants. The above suit was filed for declaration of title and recovery of possession. O.S. No. 123 of 1987 is filed by the plaintiff against Jookanti Ramaiah, Gorige Siddaiah, Gorige Sathaiah, Gorige Komaraiah, Gorige Ailamma. O.S. No. 20 of 1988 has been filed by Gorige Ailamma against Utkoori Jayamma and Utkoori Somaiah for declaration of title and injunction. 23. The lower appellate Court admits that the names of Gorige Siddaiah and Jookanti Ramaiah have been found in Pahani Patrikas. The lower appellate Court ought to have considered the fact that Gorige Siddaiah is no other than the husband of Gorige Ailamma and Jookanti Ramaiah is no other than the real brother of Gorige Ailamma and there are no disputes between them. It is not the case of anybody that they have conflicting interest. They are jointly defending their case. Moreover, the practice, customs and traditions followed in the villages cannot be ignored. The Courts can take judicial notice of customs practices. Where in a case land is purchased in the name of wife but husband's name is shown as the cultivator of the land and when the husband and wife had been living together in the same house and when they are jointly cultivating the land, mentioning the name of the husband as cultivator cannot be taken as a circumstance against the wife. Even if it is taken as a circumstance against the wife, then the same may amount to drawing conclusions against the normal human conduct and the practice prevailing in the villages. Particularly in Telangana area, people used to purchase the land without executing any documents and there used to be oral sales and even if the sale deed is executed, they were not getting it registered and the Government of Andhra Pradesh, having considered this practice, issued G.Os giving them an opportunity to all such purchasers to regularise their purchase. Particularly in Telangana area, people used to purchase the land without executing any documents and there used to be oral sales and even if the sale deed is executed, they were not getting it registered and the Government of Andhra Pradesh, having considered this practice, issued G.Os giving them an opportunity to all such purchasers to regularise their purchase. Thus, it appears that the conclusions drawn by the lower appellate Court that though the name of the husband is appearing in the revenue records, it is not noted that he was cultivating the land on behalf of his wife Gorige Ailamma and, therefore, the documentary evidence does not disclose the possession of Ailamma, appears to be perverse. It is most unfortunate that the lower appellate Court failed to consider the pleadings of the parties. It is the case of Utkoori Somaiah the plaintiff that he has handed over the possession of the lands to the defendants in the years 1969-70. The lower appellate Court has also failed to consider that Utkoori Smaiah, the plaintiff, has sought the relief of recovery of possession. The lower appellate Court has also not considered the evidence on record in proper perspective with regard to long possession of the defendant Ailamma. 24. The plaintiff is examined as P.W.I. In cross-examination, he has categorically admitted that the defendants are in possession of the lands from 1971 to 1984. Admittedly, he has filed the suit in the year 1982. When the plaintiff himself has admitted that defendants are in possession of the land and when he sought recovery of possession, the lower appellate Court is not justified in drawing the conclusions that Ailamma is not in possession of the property. 25. The lower appellate Court also came to the conclusion that Ailamma ought to have taken steps for restitution under Section 144 CPC. It is not in dispute that the suit filed by Utkoori Somaiah in O.S. No. 48 of 1982 was decreed ex parte on 22.09.1984. Then he filed E.P. No. 98 of 1985. According to the plaintiff, he was delivered possession on 08.05.1985. Learned counsel for the defendant submitted that it is only a paper delivery. It is not in dispute that the suit filed by Utkoori Somaiah in O.S. No. 48 of 1982 was decreed ex parte on 22.09.1984. Then he filed E.P. No. 98 of 1985. According to the plaintiff, he was delivered possession on 08.05.1985. Learned counsel for the defendant submitted that it is only a paper delivery. The specific case of the defendants is that they filed I.A. No. 513 of 1986 to set aside the ex parte decree and the said I.A. was allowed by order dated 06.05.1988 and the ex parte decree was set aside and subsequently, they contested the matter. Their further case is that Gorige Ailamma filed O.S. No. 20 of 1988 when Utkoori Somaiah and his wife tried to interfere with the possession in the year 1988 and, therefore, she filed a suit for injunction and obtained interim injunction and protected her possession. It has to be seen that Section 144 CPC is only an enabling section which helps a party to place it in the same position which he could have occupied prior to the decree which has been subsequently varied, reversed, set aside or modified. Where in a case the party continues to be in possession of the property in spite of passing of the decree against it or where there was only a symbolic delivery of possession, a party who had been in possession of the property, need not to file an application under Section 144 CPC. It only enables a party to take back the possession if he is dispossessed by virtue of the decree which has been subsequently set aside. Merely because a party had not taken possession by following procedure under Section 144 CPC, it cannot be said that possession of such party becomes illegal. It has to be seen that the order or a decree passed against such party has been subsequently set aside. Once the decree is set aside the earlier decree or consequent delivery of possession would become non-est in the eye of law. Moreover, in this case, the plaintiff has categorically admitted in his evidence that the defendants continuous to be in possession of the property from the year 1970 to 1984. 26. The Judges have to read the entire evidence before drawing logical conclusions. The Courts must give utmost importance to the pleadings of the parties. Moreover, in this case, the plaintiff has categorically admitted in his evidence that the defendants continuous to be in possession of the property from the year 1970 to 1984. 26. The Judges have to read the entire evidence before drawing logical conclusions. The Courts must give utmost importance to the pleadings of the parties. Otherwise, there is every possibility of committing mistakes with regard to the actual claim of the parties. In the instant case, the plaintiff - Utkoori Somaiah's specific case is that he entrusted the management of the suit lands to the defendants with a condition that the plaintiff would pay half of the net produce excluding the cultivation expenses and land revenue towards their remuneration and accordingly, every year he used to visit Mallampalli village at the time of harvest and take amounts from the defendants and pay the yield as per the agreement. It is also his further case that as regards pasture lands, he permitted the defendants to graze their cattle and pay the land revenue thereon. His further case is that from 1969-70 to 1980, the same arrangement continued. It is not the case of the plaintiff that he has leased out the lands to the defendants. Thus, the specific case of the plaintiff is that he has given the lands on crop-sharing basis. The specific case of Ailamma is that she purchased the suit lands from the plaintiff through a private sale before the village elders in the year 1968. Of course, she did not give any specific date. It is also not the case of the defendants that they obtained any sale deed from the plaintiff. Though in the oral evidence, they contended that there are documents to support their purchase, but admittedly, no such documents have been filed. Their further case is that during the pendency of litigation, the village elders settled the matter and as per their advise, they paid an amount of Rs. 2,000/- to the second defendant and in turn the second defendant executed an agreement in Ex. A.25. The lower appellate Court has rightly held that the parties have not raised any plea of tenancy and, therefore, the question of issuing quit notice under Section 106 of the Transfer of Property Act does not arise. 2,000/- to the second defendant and in turn the second defendant executed an agreement in Ex. A.25. The lower appellate Court has rightly held that the parties have not raised any plea of tenancy and, therefore, the question of issuing quit notice under Section 106 of the Transfer of Property Act does not arise. The lower appellate Court came to the conclusion possession of Gorige Siddaiah is a permissive possession and he continued to be in possession of the suit schedule lands with the permission of the pattadar of the suit schedule lands, namely, Utkoori Somaiah. The lower appellate Court further held as follows:-- "Rent is realizable from tenant. Profit on the other hand is payable by a person for the use of another's property with his consent, where the rent or the period is not fixed. Occupier is not a tenant. When the rent has been agreed, the tenant pays the agreed rent. When the rent has not been fixed, the occupier must pay such sum as occupation is worth. A permissive possession will not make a person tenant in law. When it is so, and when Gorige Siddaiah has not held the suit lands of Utkoori somaiah as tenant and when nowhere when any admission is found on behalf of Utkoori Somaiah as contended by the learned counsel of Gorige Siddaiah, then there is no erosion of rule of estoppel contained in Section116 of Indian Evidence Act. In fact, the provisions of Section 116 of Indian Evidence Act will not come into play when it is not the case of Utkoori Somaiah that the Gorige Siddaiah held his lands as a tenant by virtue of a lease agreement." 27. When it is not the case of the defendants that they are the tenants of the land or that they are in permissive possession, the lower appellate Court, under the premise that the defendants have taken the plea that they are tenants, came to the conclusion that the defendants plea is not correct and that they are not the tenants and, therefore, their possession has to be treated as permissive possession. It is not the plea of the defendants that they are either tenants or in occupation of the suit lands with the permission of the plaintiff. It is not the plea of the defendants that they are either tenants or in occupation of the suit lands with the permission of the plaintiff. When it is not the case of the defendants that they are in possession as tenants, the finding that defendants failed that they are tenants is absurd and perverse. A reading of entire evidence on record gives an impression that though P.W.I claims that he has handed over the lands to the defendants on crop-sharing basis, there is no satisfactory evidence to substantiate the claim of the plaintiff. Admittedly, the defendants have been in possession of the property from the year 1969-70 till 1984. Admittedly, the defendants have paid the land revenue. Admittedly, the plaintiff has not collected the land revenue receipts from the defendants. Admittedly, the defendant approached the revenue authorities and got entered their names in the revenue records and obtained Pattadar Passbooks claiming title over the property by way of oral sale from the plaintiff and defendants were in continuous possession of the suit lands for a long period. Even if it is treated as 10 years period from 1969-70 to the year 1980 or 1982 when the plaintiff filed the suit, 10 years period cannot be treated as a short period. Burden lies on the plaintiff to prove that the defendants were in possession with his permission. P.W.I admitted that no document was executed in proof of his giving land to the defendants on crop-sharing basis. His case is that his grandmother used to collect land revenue receipts from the defendants. His further case is that in the years 1980, the defendants did not give him any share on the ground that there were no crops and in the next year also, they did not pay anything to them. His further case is that he ascertained from his grandmother that he did not receive any makta from the defendants. It has to be seen that he himself admitted that he did not enquire as to why there was no yield when the defendants failed to pay his share of crop. He says that he did not remind the defendants for giving his share in the year 1982 and he did not issue any notice to the defendants to vacate the lands in the year 1980. He further deposed that he met the village elders before filing the suit. He says that he did not remind the defendants for giving his share in the year 1982 and he did not issue any notice to the defendants to vacate the lands in the year 1980. He further deposed that he met the village elders before filing the suit. According to him, Late Kondam Satti Reddy is his mother's junior paternal uncle and one K. Ram Reddy is brother of Satti Reddy. Pulla Reddy is the son of her grandmothers senior paternal uncle. Venkat Reddy is the younger brother of his grandmother. He has specifically deposed that all the above persons, except Venkat Reddy, do not know that he has leased out lands to the defendants. Thus, he says one Abbu Ramulu is the owner of the lands which are towards northern side of the suit lands and that said Abbu Ramulu also does not know that he leased out the lands to the defendants. Thus, a reading of entire evidence on record gives an impression that the case of the plaintiff that he has given the lands to the defendants on crop-sharing basis is false and in all probabilities, that version is not correct. 28. I have also carefully gone through the evidence of P.Ws.2 and 3. During the cross-examination, both these witnesses have categorically deposed that they do not know about the purchase of lands by the defendants from the plaintiff. Though initially these witnesses tried to explain that defendants are tenants, but, their version is not inspiring confidence. When there is no document evidencing the lease or giving the lands to the defendants on crop-sharing basis and when the plaintiff has not collected the land revenue receipts from the defendants and when the evidence of the plaintiff with regard to the crop-sharing basis is shaky, it is clear that the plaintiff has failed to prove his contention that he has given the lands to the defendants on crop-sharing basis. Burden heavily lies on the plaintiff to prove his case. In any case, where a party is seeking declaration of title and recovery of possession, burden lies on such party to adduce satisfactory evidence to prove his title and possession. Burden heavily lies on the plaintiff to prove his case. In any case, where a party is seeking declaration of title and recovery of possession, burden lies on such party to adduce satisfactory evidence to prove his title and possession. When a party takes a specific plea that he has put the defendants in possession of the property on crop-sharing basis or that the defendants have entered into the lands with his permission, such a plea of plaintiff has to be proved by him by adducing satisfactory evidence. A party, having put another person in possession of the property and allowed such person to be in possession of the said property for about 10 years or more, and when such person continuously pays land revenue and takes steps to mutate his name in the revenue records and obtains pattadar pass books, heavy burden lies on such party who had put another person in possession to prove his contention, that the possession of such person is permissive possession. In the absence of any positive evidence the finding of the appellate Court that the possession of Ailamma or husband is permissive possession is clearly perverse and liable to be set aside. 29. Coming to the aspect whether the plaintiff has proved his title or not, learned counsel for the appellant had relied on P. Veerabhadrappa Settys case (supra). In that case, the plaintiff had relied on certain revenue records and entries in the records of rights. This Court held that the plaintiffs have to show independent of these entries that plaintiffs predecessors have title over the property in question and it is that property which they have purchased. It was also held in the said judgment that the plaintiff has to succeed only on the strength of his case and not on the weakness of the case of the set up by the defendants in a suit for declaration of title and possession. The appellant has mainly referred to the weakness points in the case of the defendants without considering the main issue as to whether the plaintiff proved his contentions or not. 30. The appellant has mainly referred to the weakness points in the case of the defendants without considering the main issue as to whether the plaintiff proved his contentions or not. 30. The 2nd and 4th substantial questions of law raised in the appeal are as follows: "1) Whether the judgment of the lower appellate Court is vitiated by failure to draw a presumption against the plaintiff in view of the fact that the 1st respondent (plaintiff) has not made the appellant as party to the suit when admittedly she purchased the suit schedule property under Ex. B25? 2) Whether the suit is bad for non-joinder of necessary party i.e., wife of defendant No. 4 (appellant herein) who claimed to have purchased the suit property from the plaintiff and who has been in possession and enjoyment thereof as pleaded by 4th defendant?" 31. Admittedly, the plaintiff in O.S. No. 48 of 1982 has not made Ailamma as a party to the suit. 32. It has to be seen that the 4th defendant in the said suit filed a written statement. The 4th defendant-Gorige Siddaiah husband of Ailamma categorically denied the title of the plaintiff. It is categorically averred that the plaintiff sold the suit property through a private sale and that his wife-Ailamma purchased and became the actual owner and possessor of the suit land. It is further averred that the plaintiff ought to have impleaded his wife as a party to the suit. This written statement was filed on 13.07.1988. The 4th defendant in the said suit made it clear that his wife has purchased the property and in spite of informing the plaintiff about the alleged purchase of Ailamma, the plaintiff has not made Ailamma as a party to the suit. In O.S. No. 48 of 1982, the plaintiff claimed the relief of declaration of title and recovery of possession and mesne profits. The appellate Court decreed the suit. The operative portion of the judgment of the appellate court is as follows: "In view of the above made discussions, the appellant namely Utkoori Somaiah in A.S. No. 4/98, in A.S. No. 5/98 and the appellants namely Utkoori Jayamma and Utkoori Somaiah in A.S. No. 6/98, are entitled for the relief which they sought. The appellate Court decreed the suit. The operative portion of the judgment of the appellate court is as follows: "In view of the above made discussions, the appellant namely Utkoori Somaiah in A.S. No. 4/98, in A.S. No. 5/98 and the appellants namely Utkoori Jayamma and Utkoori Somaiah in A.S. No. 6/98, are entitled for the relief which they sought. In the result, all the three appeals are allowed with costs by reversing the orders and findings of the lower court, which passed in its common judgment in all the three suits with the direction that Gorige Ailamma, who is said to be continuing her possession over the suit lands, which she obtained through the ex parte ad-interim injunction orders of the court, which passed in O.S. No. 20/88, shall vacate her possession of the suit lands and deliver the possession of the suit lands to Utkoori Somaiah within two months." 33. The other suit O.S. No. 123 of 1987 was filed by Somaiah seeking relief of injunction. Of course, Ailamma is a party to the said suit. Ailamma filed O.S. No. 20 of 1988 seeking declaration of title and injunction. However, the fact remains that Ailamma is not a party to O.S. No. 48 of 1982. When she is not a party to the said suit, it appears that no decree can be passed against her directing her to deliver possession to the plaintiff. It also appears that the suit filed by the plaintiff is bad for non-joinder of necessary party. Therefore, it has to be held that the judgment of the lower appellate Court is vitiated for not considering the issue that the suit is bad for non-joinder of necessary party. It is also clear that the lower appellate Court ought to have drawn a presumption against the plaintiff for not adding Ailamma as a party to the suit. It is immaterial whether Ailamma has proved her title or not. It becomes immaterial whether Ex. B25 is proved or not. The fact remains that the names of Gorige Siddiah and Jookanti Ramaiah brother of Ailamma are continuing in the revenue records as possessors and the plaintiff himself admitted that the defendants have been in continuous possession. As far as title is concerned, the plaintiff filed 4 documents i.e., Ex. A1 certified copy of pahani for the year 1981-1982, Ex. The fact remains that the names of Gorige Siddiah and Jookanti Ramaiah brother of Ailamma are continuing in the revenue records as possessors and the plaintiff himself admitted that the defendants have been in continuous possession. As far as title is concerned, the plaintiff filed 4 documents i.e., Ex. A1 certified copy of pahani for the year 1981-1982, Ex. A2 is the pahani for the year 1982-83 and Ex. A3 is the pahani for the year 1983-84. Of course, in all these columns the name of the plaintiff has been shown as pattadar. It is also a fact that in the documents filed by the defendants also the name of the plaintiff has been shown as pattadar, but in possessor's column the name of Gorige Siddaiah and Jookanti Ramaiah has been mentioned. Ex. A4 is the copy of the affidavit filed by Gorige Siddaiah in I.A. No. 513 of 1986 in O.S. No. 48 of 1982. In that G. Siddaiah stated that he along with other defendants purchased the suit land in the year 1969 and since then he has been in possession of the same. He further stated in his affidavit that in the year 1982 the plaintiff visited their village and requested for payment of some more amount. Admittedly, the defendants obtained rythu passbooks in Ex. B15. Now, it has to be seen whether the recitals of those documents are sufficient to declare that the plaintiff is the owner of the lands. There is no specific plea by the plaintiff as to how he acquired the property, whether the suit lands are his ancestral property or whether he had purchased the same from the original owner or whether he got it by way of gift or under any settlement deed. The plaintiff is silent as to how he acquired title to the suit schedule property. He simply stated that he is the owner of the suit lands. Of course, the defendants' case is that they have purchased the property from the plaintiff in the year 1969-70. Merely because the defendants have admitted that they have purchased the property from the plaintiff, whether that circumstance is alone is sufficient to declare the plaintiff as owner of the property. Of course, the defendants' case is that they have purchased the property from the plaintiff in the year 1969-70. Merely because the defendants have admitted that they have purchased the property from the plaintiff, whether that circumstance is alone is sufficient to declare the plaintiff as owner of the property. Suppose in a case, a person who has no title to the property and who is not the original owner of the property offers to sell the same to intending purchaser and if the said purchaser agreed to purchase the same or even if the said purchaser admits that he purchased the property from his vendor, whether this circumstance alone is sufficient to declare his vendor as the owner of the property. 34. Whether the defendant Ailamma can be declared as owner of the property? 35. Sri Ramanna Dora is right in saying that the title would not pass to Ailamma since sale transaction is not proved. He has relied on judgment reported in Uppula Ramesh's case (Supra). He has also relied on judgment reported in Sebastia Luis Fernandes's case (Supra) in support of his contention that the burden of proof lies on the party who seeks declaration of title to prove his title. Reliance is also placed on Imtiaz Ali's case (Supra). These decisions deal with Section 54 of Transfer of Property Act. It is clear that where a transfer of property worth more than Rs. 100/- the same has to be made through registered document. He has also relied on Moolchand Bakhru's case (Supra). In that case the vendor alleged to have written letters in which he had admitted that he had agreed to sell his half share. It was observed that those letters cannot be taken as agreement to sell within the meaning of Section 53-A of the Act. 36. A reading of the entire material gives an impression that since there is no valid transfer of title and Ex. B25 cannot be treated as a document transferring the title. Ailamma cannot be declared as owner of the property. However this observation does not come in the way of Ailamma getting her name recorded in revenue records. 37. As far as the case of the plaintiff is concerned, the revenue record i.e., document filed by both the parties would go to show that the plaintiff-Utkoori Somaiah name was noted as pattadar. However this observation does not come in the way of Ailamma getting her name recorded in revenue records. 37. As far as the case of the plaintiff is concerned, the revenue record i.e., document filed by both the parties would go to show that the plaintiff-Utkoori Somaiah name was noted as pattadar. It is clear that except 3 pahanies for years 1981-82, 1982-83 and 1983-84, no other documents were filed by the plaintiff. The defendants have filed Ex. B15. Of course, there are corrections in Ex. B15 as pointed out by the appellate court. But the fact remains that Ex. B15 shows the name of G. Siddiaiah and Jookanti Ramaiah who is brother of Ailamma. Admittedly, the plaintiff has not filed any rythu passbook and the revenue receipts have been filed by the defendants and admittedly the plaintiff has not filed any land revenue receipts. Merely because at some place in revenue record, the name of the plaintiff is shown as pattadar, the same is not sufficient to declare the plaintiff as owner of the property. The learned counsel for the appellants have relied on P. Veerabhadrappa Setty's case (Supra) and also in Union of India's case (Supra) in support of his contention that revenue records are not documents of title and the plaintiff has to show independence of those entries that his predecessors has title over the property in question. Reliance is placed on Sebastia Luis Fernandes's case (Supra), in that case it was observed that there should not be assumption of facts without any basis and evidence. It is common experience that in spite of change of ownership in certain cases and even after the death of original pattadar or even after partition the name of original pattadar would continue in revenue records as pattadar. Therefore, merely because the name of the plaintiff is shown as pattadar, it cannot be said that he continued to be the pattadar. Therefore, I am of the view that the plaintiff cannot be declared as owner of the land. Therefore, as far as the declaration of title is concerned, both the parties fail. 38. Now coming to the question of adverse possession, the law appears to be well settled. A party claiming adverse possession must prove that his possession is peaceful, open and continuous. Adverse possession is hostile possession clearly denying the title of the true owner. Therefore, as far as the declaration of title is concerned, both the parties fail. 38. Now coming to the question of adverse possession, the law appears to be well settled. A party claiming adverse possession must prove that his possession is peaceful, open and continuous. Adverse possession is hostile possession clearly denying the title of the true owner. Thus, a person claiming adverse possession must show by clear evidence that his possession was hostile to the real owner and amounted to denial of title to the property claimed. It is submitted that a person who claims to have purchased the property must prove his title on the basis of his claim, but he cannot claim adverse possession. In this case, defendants' specific case is that Ailamma purchased the property and since then the defendants continued to be in possession of the property. Of course, Ailamma has not proved the sale as required by law. As far as the facts of the present case are concerned, the defendants' case is that by virtue of sale, they entered into possession in the year 1969-70. When a person set-up his claim by claiming that he has purchased the property, it is clear that he has denied the title of his vendor i.e., original owner of the property. By setting up title by virtue of sale irrespective of the fact whether the sale is in accordance with law or not, but such action or declaration of purchase amounts to denial of title of the original owner of the property. The other criteria that the defendants' possession is open to all and adverse and hostile to the real owner are sufficient to claim adverse possession. A person who enters into possession by virtue of lease or a licensee cannot claim adverse possession. Where in a case a person who enters into possession by virtue of agreement of sale and where the terms and conditions have to be complied by both the parties i.e., where total consideration of sale amount is not yet paid, then the possession of the agreement holder would not become adverse. Thus, the possession of a lessee, tenant or a licensee would not become adverse. Similarly, trustees, guardians, bailiffs or agents who are holding possession on behalf of the original owner cannot set up adverse possession. Thus, the possession of a lessee, tenant or a licensee would not become adverse. Similarly, trustees, guardians, bailiffs or agents who are holding possession on behalf of the original owner cannot set up adverse possession. But, where a person claims title to the property by way of purchase even if he has failed to prove his purchase, but once it is clear from the evidence that he denied the title of the original owner, the possession of such person should be treated as adverse to the original owner. It appears that even if such person fails to prove his title as per law i.e., by not obtaining any registered sale deed and by not applying Section 54 of TP Act his long and continuous possession, hostile possession, denying the title of the owner is sufficient to prove that he has proved adverse possession. 39. In view of the above discussion, I hold that the defendants particularly Ailamma have proved that they have perfected their title by way of adverse possession and that the plaintiff failed to prove his title and possession as on the date of filing of the suit. Therefore, the suits filed by the plaintiff are liable to be dismissed and since the defendants are found to be in possession of the property, they are entitled for the relief as prayed for. 40. Accordingly, all the Second Appeal Nos. 1385 of 2005, 1554 of 2005 and 1665 of 2005 are allowed and the judgments and decrees passed by the lower appellate Court in AS Nos. 4 of 1998, 5 of 1998 and 6 of 1998 are set aside. Consequently, the suits filed by the plaintiff in OS No. 48 of 1982 and 123 of 1987 are dismissed and the suit filed by Gorige Ailamma in OS No. 20 of 1988 is decreed. However, in the circumstances, no costs. 41. As a sequel, the miscellaneous petitions, if any, pending in these appeals shall stand closed.