JUDGMENT : 1. The defendant in O.S.No.155/2007 has preferred this second appeal, assailing judgment and decree dated 17.12.2011 passed in R.A.No.51/2010 by the court of Senior Civil Judge at Chincholi by which, the judgment and decree passed in O.S.No.51/2007 dated 21.06.2010 has been confirmed. 2. For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court. 3. The respondent/plaintiffs filed the suit seeking the relief of declaration of title, possession and mesne profits in respect of suit schedule property which is land bearing Sy.No.80 measuring 4 acres 25 guntas, situated at Kallur Road Village, Chincholi Taluk. According to the plaintiffs, defendant is their cousin. Plaintiffs are brothers. Plaintiffs’ father and father of defendant had partitioned the joint family properties in the year 1960. Subsequently, in the year 1966, plaintiffs’ father, Laxmanrao had purchased the suit property from one Sri Gundappa, S/o Haibathrao under a registered sale-deed. Since that date, plaintiffs’ father was the owner in possession of suit property. Plaintiffs’ father Laxmanrao died on 26.01.1987. The plaintiffs have averred that thereafter, they inherited the suit property as his legal heirs and they are owners of the suit property. Their names have been mutated in the revenue records. The plaintiffs are residing at Tandur (A.P.). In the circumstances, plaintiffs’ father had handed over the suit property to the defendant and the latter had to pay a sum of Rs.6,000/- per annum as per an oral agreement. On the death of their father, as they became owners of the suit land, plaintiffs requested the defendant to hand over possession of the suit land in the year 2007-2008 but the defendant refused to do so. In the year 2008 defendant denied plaintiffs’ ownership over the suit property as he contended that it had fallen to his share in the partition and that the plaintiffs had executed a partition deed. That the defendant had mutated his name in the revenue records without any legal basis. Hence, the plaintiffs filed the suit for recovery of possession of suit property, apart from seeking a declaration that they are the owners of the suit property and for correction of revenue records. 4. In response to the suit summons and court notices, defendant appeared and filed his written statement admitting the relationship between the parties but he denied the plaint averments. 4. In response to the suit summons and court notices, defendant appeared and filed his written statement admitting the relationship between the parties but he denied the plaint averments. He contended that his grand-father Narasingrao owned two houses situated at Tandur bearing House No. 6-3-36 and 6-3-37. After the death of grand-father, in the partition between father of plaintiffs and father of defendant the two houses were divided between two brothers, but as father of the defendant was settled at Kallur and father of plaintiffs was settled at Tandur where he was doing business, later he offered his land to the father of defendant in lieu of house bearing No. 6-3-37 situated at Tandur. Thus, they exchanged their respective properties and began to enjoy them separately. After the death of plaintiffs’ father, plaintiffs had got their names mutated in the revenue records. The defendant’s family on coming to know of the illegal entries in favour of plaintiffs in order to settle their dispute, executed a settlement or palugarike patri and house bearing No.6-3-37 was mutated in the name of plaintiff No.2 and the suit land was mutated in the name of defendant. According to the defendant he and his family members have been in exclusive possession and enjoyment of the suit land as owners and are in possession since the date of exchange and they have paid land revenue on the said land. The defendant has also contended that he has been in possession of the suit land more than twelve years to the knowledge of plaintiffs and hence, he has perfected his title by way of adverse possession. The defendant has also contended that the plaintiffs are in no way concerned with the suit land and hence sought for dismissal of the suit. 5. On the basis of the aforesaid pleadings, the trial court framed the following issues and additional issues for its consideration:- 1. Whether the plaintiffs prove that they are lawful owners of the suit properties? 2. Whether the defendant is proves that father of the plaintiffs was exchanged the suit in lieu of house bearing No. 6-3-37 situated at Tandur? 3. Whether the parties are entitled? 4. What order or decree? Additional Issue dated 24.10.2009 1. Whether the plaintiffs prove that they are entitled for possession of the suit property from the defendant? 2. 2. Whether the defendant is proves that father of the plaintiffs was exchanged the suit in lieu of house bearing No. 6-3-37 situated at Tandur? 3. Whether the parties are entitled? 4. What order or decree? Additional Issue dated 24.10.2009 1. Whether the plaintiffs prove that they are entitled for possession of the suit property from the defendant? 2. Whether the defendant proves that he has become the owner of the suit property by adverse possession? 6. In support of their case, first plaintiff was examined as PW1, he produced 14 documents which were marked as Exs.P.1 to P.14. The defendant was examined as DW1 and another witness was examined as DW2. Nine documents were produced which were marked as Exs.D1 to D.9. 7. On the basis of the said evidence the trial court answered Issue No.1 in the affirmative, Issue No.4 in favour of plaintiffs, Addl. Issue No.1 in the affirmative, Issues No.2 and 3 and Addl. No.2 were answered in the negative and by judgment dated 21.06.2010, the suit was decreed and it was held that the plaintiffs are the owners of the suit property. Defendant was directed to hand over possession of the suit property within three months from the date of this order to the plaintiffs. 8. Being aggrieved by the judgment and decree of the trial court the defendant preferred R.A.No.51/2010 before the first appellate court which, on hearing the learned counsel for the respective parties raised the following points for its consideration:- 1. Whether defendant proves the exchange of property as pleased by him in the written statement? 2. What order? It answered point No.1 in the negative and dismissed the appeal by confirming the judgment of the trial court. 9. Being aggrieved by the judgment of the first appellate court, which has confirmed the judgment of the trial court, the defendant has preferred this second appeal. 10. I have heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record. 11. Appellant’s counsel submitted that the courts below were not right in decreeing the suit and granting the relief of declaration of title and possession in favour of respondent/plaintiffs. He contended that the relationship between parties is admitted. The plaintiffs and the defendant are cousins. 11. Appellant’s counsel submitted that the courts below were not right in decreeing the suit and granting the relief of declaration of title and possession in favour of respondent/plaintiffs. He contended that the relationship between parties is admitted. The plaintiffs and the defendant are cousins. The suit property was purchased by the plaintiffs father in the year 1966 and the same was handed over to the defendant who was put in exclusive possession of the same vide Ex.D9, the defendant has been in possession of the suit land since then. That the plaintiffs have no right to seek declaration of title and possession from the defendant in lieu of Ex.D9. He contended that Ex.D9 is a piece of revenue record by which it is established that the plaintiffs’ father had categorically stated that the defendant would be in possession of the suit land. In the circumstances, the defendant has been in lawful possession and the plaintiffs cannot seek possession from the defendant. Learned counsel for appellant also contended that the reason as to why the plaintiffs’ father put the defendant in possession of the suit land was because of the partition entered into between the father of plaintiffs and the father of defendant in the year 1960. Two houses which were in Tandur Village were given to the plaintiffs’ father and in lieu of the said two houses the defendant was given possession of the land in question. It may be that the suit land was not the subject matter of partition between the father of plaintiffs and father of defendant in the year 1960. But Ex.D9 came into existence as cultivation of the land was given to the defendant. That when the owner of the suit land had expressly handed over possession of the same to the defendant, plaintiffs cannot seek recovery of the same. He contended that the courts below have not appreciated Ex.D9 in its proper perspective and have erroneously decreed the suit. Learned counsel for the appellant contended that substantial questions of law would arise in this appeal and therefore the appeal may be admitted for detailed hearing. 12. Per contra, learned counsel for the respondents submitted that there is no error in the judgment of the first appellate court which has confirmed the judgment of the trial court by which the suit has been decreed. 12. Per contra, learned counsel for the respondents submitted that there is no error in the judgment of the first appellate court which has confirmed the judgment of the trial court by which the suit has been decreed. He contended that the suit property was purchased in the year 1966 long after the partition, which had taken place between the father of plaintiffs and father of defendant. That the partition had taken place in the year 1960 and there was division of joint family property. That the suit property cannot in any way be linked to the partition which had taken place in the year 1960. It is only by way of an arrangement and for the sake of convenience that possession of the suit property was given to the defendant for the purpose of cultivating the same and to look after and to safeguard the said land as the defendant resided at Kallur where the said land was situated and plaintiffs and their father resided at Andhra Pradesh. At best it could be only a permissive possession and the plaintiffs or their father were always entitled to seek recover possession which they have done in accordance with law by filing the suit. He contended that Ex.D9 in no way creates any share or title in the defendant vis-a-vis suit land. Further there has been no sale, exchange, gift or settlement made by plaintiffs’ father during his lifetime in favour of defendant. The defendant illegally claimed title in the suit land. Therefore the plaintiffs were constrained to file the suit by seeking the reliefs of declaration of title and recovery of possession. That the courts below have rightly granted the aforesaid reliefs and that no substantial questions of law would arise in this appeal and hence, the appeal may be dismissed. 13. Having heard learned counsel for the parties and on perusal of the material on record it is noted that the relationship between the parties is not in dispute but what is in dispute is with regard to the title and possession of the suit land. Plaintiffs’ father and defendant’s father were brothers. The plaintiffs and defendant are cousins. It is also admitted that in the year 1960 there was a division of the joint family properties between the father of plaintiffs and the father of defendant. Since then they have been enjoying the joint family properties exclusively. Plaintiffs’ father and defendant’s father were brothers. The plaintiffs and defendant are cousins. It is also admitted that in the year 1960 there was a division of the joint family properties between the father of plaintiffs and the father of defendant. Since then they have been enjoying the joint family properties exclusively. The suit land was purchased subsequent to the partition between the members of the joint family in the year 1966. Therefore, the suit land was never in contemplation of the parties at the time of partition which had taken place in the year 1960 but it is only after the partition and when the families became independent that plaintiffs’ father, Laxmanrao purchased the suit land in the year 1966. According the plaintiffs as the suit land was in Kallur Village where the defendant resided, plaintiffs’ father requested the defendant to cultivate the said land, in other words, to safeguard the said land but the defendant started ascertaining his title to the said land which constrained the plaintiffs to file the suit seeking declaration of ownership and possession. 14. The response of the defendant to the said contention in the suit was that he had acquired title to the said land and also exclusive ownership by virtue of Ex.D9. Ex.D9 is a copy of mutation extract by which the name of the defendant is entered in the revenue records, the same would only prove his possession of the suit land. It may be that the defendant has been in possession of the suit land pursuant to the ‘varadi’ given by plaintiffs’ father for the purpose of cultivating the said land. But Ex.D9 did not convey any title to the defendant. When defendant has placed reliance on Ex.D9 it would imply that plaintiffs’ father granted possession of the suit land to the defendant for the purpose of cultivating the same and also for safeguarding the said land. 15. In the circumstances, reliance placed on Ex.D9 would not be of any assistance to the appellant/plaintiff vis-a-vis his title to the said land is concerned. At best it can be said that it is a piece of evidence by which the defendant came into possession of the suit land. By that it cannot be said that plaintiffs can never take back their possession from the defendant. At best it can be said that it is a piece of evidence by which the defendant came into possession of the suit land. By that it cannot be said that plaintiffs can never take back their possession from the defendant. As possession was given to the defendant under Ex.D9 at the instance of plaintiffs’ father that did not confer any title on the defendant and plaintiffs’ father or plaintiffs always had the right to take back possession of the suit land from the defendant, which they have done by filing the said suit. Hence, reliance placed on Ex.D9 would not be of any assistance vis-a-vis title of the defendant, insofar as the suit land is concerned. 16. The other contention of the appellant is with regard to there being an arrangement made between the members of the family subsequent to the partition of the year 1960 and after the purchase of the suit land in the year 1966. According to the appellant on the purchase of the suit land plaintiffs’ father was given possession of house bearing No.6-3-37 situated at Tandur. Accordingly, he came into possession of two houses at Tandur and the possession of suit land was given to the defendant by way of an exchange. In order to establish this aspect, no document has been produced by the defendant. 17. As already noted, the suit land was never purchased by the plaintiffs’ father at the time of partition in the year 1960. The purchase of the suit land was subsequent to the division, which had taken place in the family and joint family status did not continue or had dissolved. Therefore, plaintiffs’ father purchased this property as his separate property and he had probably granted possession of the same to the defendant for the purpose of cultivation and safeguarding the same. In that context Ex.D9 came into existence. Ex.D9 is not supported by any document of title. In the circumstances, defendant cannot claim any title. Also possession of the property is only a permissive possession given to defendant to cultivate the land and probably hand over portion of the cultivated crops or any monetary consideration to the owner of the land i.e., plaintiffs’ father. As plaintiffs succeeded to the said land on the demise of their father they had every right to recover possession from the defendant. As plaintiffs succeeded to the said land on the demise of their father they had every right to recover possession from the defendant. They sought to do so once the defendant started ascertaining his title over the said property. Therefore, the courts below were justified in granting the reliefs to the plaintiffs, as Ex.D9 was not supported by any document of title in favour of plaintiffs. In fact at one point of time the defendant asserted his title to the suit land by way of adverse possession which also would mean that he recognized the title of the plaintiffs or their father in the suit land. 18. Learned counsel for the appellant has placed reliance on N. Varada Pillai and another vs. Jeevarathnammal (AIR 1919 Privy Council), in support of his contention that when the defendant was in possession of the suit land pursuant to Ex.D9 for over twelve years he would hold title by adverse possession over the suit land. In that case, the mutation entry was made pursuant to a gift but there was no registered instrument of gift made. There was no partition or gift was effected. In the circumstances, the Privy Council held that when no registered gift effected and donee had been given possession of the property and he held possession over twelve years he had acquired title by adverse possession. The factual position that obtains in the said case is not the same in the instant case. The defendant herein was not put in possession of the suit land either under a gift or an exchange or by way of settlement, but simply for the purpose of safeguarding the land. Hence, the decision of the Privy Council is of no assistance to the appellant. 19. Similarly, in Aila Bakash vs. Mohd. Hussain reported in ILR 1996 KAR 1340, possession of a person having no title to the property under invalid deed of transfer was held to be adverse to true owner. The factual position, which arises in the aforesaid case also, does not obtain in the present case. As already noted in the present case, there is no proof as to under what circumstances Ex.D9 came into existence i.e., whether it is pursuant to gift or settlement or any exchange or any other transfer known to law. 20. The factual position, which arises in the aforesaid case also, does not obtain in the present case. As already noted in the present case, there is no proof as to under what circumstances Ex.D9 came into existence i.e., whether it is pursuant to gift or settlement or any exchange or any other transfer known to law. 20. In the circumstances, I do not find any infirmity in the judgment of the first appellate court which has confirmed the judgment and decree of the trial court by which the suit has been decreed. No substantial questions of law would arise in this appeal. Hence, the appeal is dismissed. No costs.