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2023 DIGILAW 397 (AP)

Gandey Perraju v. Datla Veerabhadra Raju

2023-02-16

BANDARU SYAMSUNDER

body2023
JUDGMENT : 1. The defendant Nos.1 to 3 in O.S.No.38 of 1985 on the file of Subordinate Judge, Peddapuram are the appellants, the respondent Nos.1 to 3 are the plaintiffs in the suit. The respondent Nos.4 to 6 are the legal representatives of the deceased-3rd plaintiff. 2. The appellants and the respondent Nos.1 to 3 herein after referred to as plaintiffs and defendants as arrayed before the trial Court. 3. The plaintiffs instituted the suit against the defendant Nos.1 to 3, seeking relief of partition of the plaint schedule properties into two equal shares and allot one such share to the plaintiffs. After the death of the 3rd plaintiff, her legal representatives were added as defendant Nos.4 to 6 and claimed the relief that the plaint schedule properties be divide into two equal shares and allot one such share to the plaintiff Nos.1 and 2 and the defendant Nos.4 to 6, and for possession and also compensation of Rs.3,000/- for the years 1981 to 1985, and for costs. 4. It is the contention of the plaintiffs that the plaint ‘A’ schedule property was purchased by late Buddharaju Butchiraju, son of Veeraraghava Raju and his sister, late Subbayamma @ Subhadrayamma, wife of the 1st plaintiff and mother of plaintiff Nos.2 and 3 during their minority, under the sale deed, dated 30.01.1942 (Ex.A1). They submit that the father of Butchiraju and Subhadrayamma was managing the plaint ‘A’ schedule property till his death about eight years back. It is the contention of the plaintiffs that the wife of the 1st plaintiff Smt Subbayamma @ Subhadrayamma died intestate about 20 years back, leaving the plaintiffs alone as her heirs, due to that her share in plaint ‘A’ schedule property devolved on them, which was joint not partitioned. The plaintiffs submit that the 2nd plaintiff married her maternal uncle’s son Bhaskararaju, son of Buddharaju Butchiraju, due to that the other co-owners are closely related and the plaint schedule property was managed by Butchiraju till his death about eight years back, later the son of Buddharaju Butchiraju, i.e., Bhaskararaju and Neeladriraju were managing the plaint ‘A’ schedule property and said Bhaskararaju is no other than the husband of the 2nd plaintiff. The plaintiffs have stated that themselves and Buddharaju Butchiraju and his sons Bhaskararaju and Neeladriraju were enjoying ‘A’ schedule property as co-owners with joint possession, wherein the plaintiffs were given their share of profits till three years back, but on enquiry they came to know that the defendant Nos.1 to 3 purchased the entire ‘A’ schedule land from Buddharaju Bhaskararaju and Neeladriraju, and no profits were given to them. The main contention of the plaintiffs is that in ‘A’ schedule property, Buddharaju Butchiraju, father of Bhaskararaju and Neeladriraju have got only ½ share, whereas the wife of the 1st plaintiff and mother of plaintiffs 2 and 3, and sister of Butchiraju own the other ½ share as per Ex.A1 sale deed, dated 30.01.1942. They further stated that they issued legal notice to the defendants and their vendors, which received by the 2nd defendant, but failed to give any reply and then they filed suit for partition. 5. The defendant Nos.1 to 3 resisted the claim of the plaintiffs by filing written statement before the trial Court. It is the contention of the defendant Nos.1 to 3 that the relationship set up in between the plaintiffs and Buddharaju Butchiraju is denied, and they pleaded that they are not aware about the sale deed, dated 30.01.1942 (Ex.A1). It is the contention of the defendant Nos.1 to 3 that plaint ‘A’ schedule property was never in joint possession, which never enjoyed by the plaintiffs, or by their alleged predecessors as co owners, and to their knowledge Butchiraju and his successors, i.e., wife and sons of Butchiraju were alone enjoying the plaint ‘A’ schedule property of their own right as absolute owners. They submit that the wife of Butchiraju by name Smt Ramavathi and her sons Bhaskararaju and Neeladriraju sold Ac.0.46 cents of land to the 1st defendant for a consideration of Rs.5,800/- and Ac.0.92 cents to the 2nd defendant for a consideration of Rs.11,250/-, and Ac.1.00 cents of land to the 3rd defendant for a consideration of Rs.12,500/- by executing separate sale deeds, dated 11.08.1983 and delivered possession of the respective lands. They further submit that since the date of their purchase, they have been in possession and enjoyment of their respective shares in the land, for which the revenue authorities also granted pattas to them and they paid land revenue, wherein the plaintiffs never claimed any right or possession, and they are bonafide purchasers for consideration without notice, and the suit is not maintainable in the present Forum. They pray to dismiss the suit. 6. The trial Court basing on the above pleadings, settled the following issues for trial: 1. Whether the relationship set up in the plaint is true? 2. Whether the sale deed, dated 30.01.1942 is true, valid and binding on the defendants, and whether the said sale deed relates to plaint schedule property? 3. Whether the plaintiffs have title and possession of the said schedule property? 4. Whether the sale deeds, dt.11.08.1983 of defendants are true and valid and whether the defendants are bonafide purchasers for value? 5. Whether the plaintiffs are entitled to compensation and if so what amount? 6. To what relief? 7. The parties went to trial. On behalf of the plaintiffs, PWs.1 to 3 were examined, Exs.A1 to A5 were marked. On behalf of the defendant Nos.1 to 3, DWs.1 to 3 were examined, Exs.B1 to B5 were marked. 8. On the material and evidence, the trial Court decreed the suit and passed preliminary decree of partition of plaint ‘A’ schedule property into two equal shares and ordered to deliver ½ share of plaint ‘A’ schedule property to the plaintiff Nos.1 to 3 and defendant Nos.4 to 6, but dismissed the claim of compensation. 9. Aggrieved by the Decree and Judgment passed by the trial Court, the defendant Nos.1 to 3 have presented AS.No.17 of 1994 on the file of I Additional District Judge, Rajahmundry, which was dismissed by the 1st appellate Judge, confirming the Judgment and Decree of the trial Court. 10. In these circumstances, the present Second Appeal is presented. 11. I have heard learned counsel Mr.K.B.Ramanna Dora, for the appellants as well as Mr.E.V.V.S.Ravi Kumar, learned counsel for the respondent Nos.1 to 3/plaintiffs. 12. 10. In these circumstances, the present Second Appeal is presented. 11. I have heard learned counsel Mr.K.B.Ramanna Dora, for the appellants as well as Mr.E.V.V.S.Ravi Kumar, learned counsel for the respondent Nos.1 to 3/plaintiffs. 12. This Second Appeal was admitted on the following substantial question of law, raised at Ground Nos.17 to 20 in the grounds of appeal, which reads as under: i) Whether in a suit for partition not impleading the other cosharers (vendor’s of appellants) is fatal to the suit or not? ii) The lower Court failed to see that seeking partial partition leaving other part of the property, is fatal to the suit as per the settled law of Apex Court? iii) When the appellants (defendant) and respondents (plaintiffs) are “not” co-owners or co-sharers whether a suit is maintainable between alleged co-owner and 3rd party purchasers, without impleading the remaining alleged co-owners ? iv) When the vendors of the appellants perfected their title by “law of adverse possession”, whether the lower Court can decree a suit for partition? 13. The learned counsel for the appellants would submit that the appellants herein are the purchasers of plaint ‘A’ schedule property from heirs of Butchiraju, i.e., Smt Ramavati (DW.2) and her sons Mr.Bhaskararaju and Mr.Neeladriraju under Exs.B1 to B3 sale deeds, and they have no knowledge about Ex.A1 sale deed. He would further submit that the plaintiffs have filed suit in the year 1985, but Ex.A1 is dated 30.01.1942, which itself shows that the father purchased the property in the name of minors and said Smt Subbayamma never in possession and enjoyment of the property, due to that the plaintiffs are not entitled to claim any share being alleged heirs of Subbayamma. It is the contention of the learned counsel for the appellants that the defendant Nos.1 to 3 also have no relationship with Subbayamma, and the suit itself is not maintainable, as vendors of defendant Nos.1 to 3 not added as parties, and all the properties also not shown in the plaint ‘schedule. He argued that though the plaintiffs have issued notice to the defendant Nos.1 to 3 and their vendors, they have not added their vendors as defendants in the suit, due to that the suit itself is bad for non-joindeer of necessary parties in view of not adding all cosharers in the suit. He relied on following precedent law. 1) Shasidhar and others. He relied on following precedent law. 1) Shasidhar and others. Appellants vs.Ashwini Uma Mathad and another. Respondents. (2015) 11 Supreme Court Cases 269, wherein it is held that “in a suit filed by a co-sharer, co-parcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or co-parcenary property in his/her hand and, if so, who are/were the co-parceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly, whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharers, co-parceners, co-owners or joint owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case”. 2) Moreshare Yadaorao Mahajan vs. Vyankatesh Sitaram Bhedi (D) through LRs. and others. 2022 (6) ALD 135 (SC), wherein it is held that in spite of specific objection taken by the defendant, the plaintiff did not implead the defendant’s wife and sons as party defendants to the suit, and if necessary parties are not impleaded, the suit itself is liable to be dismissed. 3) K.Lubna and others. Appellants vs.Beevi and others. Respondents. Civil Appeal Nos.2442-2443 of 2011, Judgment dated 13.01.2020, wherein the Hon’ble Apex Court explained the scope of Section 100 of CPC and held at para 9 that “on the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. Appellants vs.Beevi and others. Respondents. Civil Appeal Nos.2442-2443 of 2011, Judgment dated 13.01.2020, wherein the Hon’ble Apex Court explained the scope of Section 100 of CPC and held at para 9 that “on the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law”. He prays to allow the Second Appeal and dismiss the suit filed by the plaintiffs. 14. The learned counsel for the respondent Nos.1 to 3 would submit that this Court while dealing with Second Appeal, which has to be entertained only if there is substantial question of law and new plea cannot be allowed to be taken in the Second Appeal, when the plea of non-joinder of necessary parties is not taken by the appellants before the trial Court. He would further submit that both substantial questions of law as per Ground Nos.17 to 20 are not permissible to be raised by the appellants in the present Second Appeal, when it is not supported by pleadings. He argued that the appellants also pleaded adverse possession, due to that it amounts admission of title of the plaintiffs, but the appellants failed to prove plea of adverse possession. It is the contention of the learned counsel for the respondent Nos.1 to 3 that assignees have added as defendants in the suit, as appellants being assignees, who said to be purchased the entire ‘A’ schedule property representing on behalf of co-owners, due to that not adding co-owners in the suit is not fatal to the case of the plaintiffs. He relied on following precedent law. 1) Bhachhaj Nahar. Appellant vs. Nilima Mandal and another. Respondents. (2008) 17 Supreme Court Cases 491, wherein it is held that without any pleading, no amount of evidence can be looked into and no relief can be granted. 2) Kondiba Dagadu Kadam vs. Savitribai SopanGujar and others. (1999) 3 Supreme Court Cases 722, wherein the Hon’ble Apex Court explained the scope of Section 100 of CPC and held that: “3. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. 2) Kondiba Dagadu Kadam vs. Savitribai SopanGujar and others. (1999) 3 Supreme Court Cases 722, wherein the Hon’ble Apex Court explained the scope of Section 100 of CPC and held that: “3. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such question was not formulated at the time of admission either by mistake or by inadvertence. 4. It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd, AIR (1962) SC 1314 held that :- "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 3) Ramji Singh Patel. Appellant vs.Gyan Chandra Jaiswal. Respondent. (2018) 14 Supreme Court Cases 120, wherein the Hon’ble Apex Court explained the scope of Section 100 of CPC, and consideration of limitation for first time in second appeal when such ground not even raised in written statement. It is held at para 11, which reads as under: “11. After hearing the learned counsel for the parties, we do not find ourselves in agreement with the approach of the High Court. It may be noted that in the first instance no such plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the appellant-plaintiff and no issue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did not lead any evidence. It may be noted that in the first instance no such plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the appellant-plaintiff and no issue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did not lead any evidence. No doubt, even in the absence of any specific issue of limitation, by virtue of Section 3 of the Limitation Act, power is cast on the Court to see whether the suit is within limitation or time barred. However, such a plea could have been taken by the respondent in the second appeal before the High Court only if the issue of limitation was raised as a pure question of law. In the instant case, we find it to be a mixed question of law and fact and, therefore, it could not have been entertained by the High Court for the first time in the second appeal filed by the respondent”. He prays to dismiss the Second Appeal. 15. The Hon'ble Apex Court in recent Judgment in Chandrabhan (Deceased) Through LRs. And Others – Appellants Vs. Saraswati and Others – Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of 2016) Judgment dated 22.09.2022, held at para 33 of the Judgment explained the principles of Section 100 CPC, which are extracted as under: "33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which effects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence," it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 16. As per Section 100 CPC, this Court can interfere with the Judgment of the appellate Court, if it is satisfied that case involves a substantial question of law. A finding of fact recorded by the appellate Court is binding on this Court, unless there is any error of law in such finding. Even mistake of fact is not sufficient to constitute a question of law. A finding of fact recorded by the appellate Court is binding on this Court, unless there is any error of law in such finding. Even mistake of fact is not sufficient to constitute a question of law. The Hon'ble Apex Court explained what is the question of law in Kondiba Dagadu Kadam case referred supra, relied on by the learned counsel for the respondents. In the present case, admittedly there is no specific plea in the written statement filed by the appellants/defendant Nos.1 to 3 before the trial Court that suit is bad for non-joinder of their vendors as necessary parties, but they have only stated that the suit is not maintainable in the present Forum, and there is no specific plea in the written statement filed by the appellants that their vendors are necessary parties. When there is no specific plea in the written statement, the appellants/defendant Nos.1 to 3 are not permitted to raise a plea of non-joinder of co-sharers as parties to the suit in the Second Appeal. Even otherwise, as per Section 2 (11) of CPC, “legal representatives” means, a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The appellants/defendant Nos.1 to 3 are claiming that they have purchased entire plaint ‘A’ schedule property from the wife and children of Butchiraju under Exs.B1 to B3 sale deeds, dated 11.08.1983. When co-owners have sold their entire property to the defendant Nos.1 to 3, even they are not added a parties to the suit, effective decree can be passed, as their interest in the plaint ‘A’ schedule property transferred to the appellants/defendant Nos.1 to 3. 17. On perusal of Ex.A1, which fair copy of it also placed before this Court for perusal, which itself shows that an agricultural land in S.No.124, out of Ac.4.00, Ac.2.00 alone was sold to Mr.Butchiraju and Smt Subbayamma, being minors then represented by their father Mr.Veeraraghavaraju. It is not in dispute that the vendors of defendant Nos.1 to 3 are the heirs of Butchiraju. It is not in dispute that the vendors of defendant Nos.1 to 3 are the heirs of Butchiraju. DW.2, who is the wife of Butchiraju and one of the vendors of defendant Nos.1 to 3 admitted in her evidence that her husband is the son of Mr.Veeraraghavaraju, through his first wife. The youngst daughter of Veeraraghavaraju is Smt Subhadrayamma and elder daughter is Subbayamma through the first wife of Mr.Veeraraghavaraju. DW.2 pleaded family partition, wherein plaint ‘A’ schedule property fell to the share of her husband, and she went to an extent of deposing that she does not know about execution of Ex.A1, from which document they are also claiming title and possession, and also deposed that she never saw PW.1, though admitted that her son Mr.Bhaskararaju married the daughter of PW.1. Again, she deposed that PW.1 is her ‘Viyyanka’, which itself shows the relationship of the plaintiffs with said Subbayamma, the co-owner under Ex.A1 is proved, due to the admission made by DW.2, their own witness, and also their vendor. 18. The Courts below have elaborately discussed with regard to relationship between Mr.Butchiraju and Smt Subbayamma as brother and sister, and relationship of Subbayamma with the plaintiffs. When under Ex.A1, Mr.Butchiraju and his sister Smt Subbayamma got equal rights in plaint ‘A’ schedule property, the defendant Nos.1 to 3 have no right to purchase the entire plaint ‘A’ schedule property, under Exs.B1 to B3, due to that the plaintiffs are entitled to seek partition of plaint schedule property. 19. When the defendant Nos.1 to 3 have pleaded adverse possession, though Ex.A1 shows that the plaintiffs are co-owners, as they are legal heirs of Smt Subbayamma, it is for the defendant Nos.1 to 3 to prove the same, which they failed to prove as required under law. In Brijesh Kumar and another vs. Shardabai (Dead) by legal representatives and others, (2019) 9 SCC 369 , the Hon’ble Apex Court held at paras 13, 14 and 15, which reads as under: “13. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1: (2017) 5 SCC (Civ) 387]. The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent-plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452], on adverse possession observing as follows: (SCC p. 322, para 15) “15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.” 14. As to whether the plaintiff can claim title on the basis of adverse possession, this Court in a judgment reported as Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. has held as under: “57. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. v. Manjit Kaur & Ors. has held as under: “57. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.” 20. The Hon’ble Apex Court also discussed the decision of Constitutional Bench in M.Siddiq (D) through LRs vs. Mahant Suresh Das and others. (2019) SCC OnLine SC 1440 at para 15, which reads as under: “It has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under: “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established. 748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being ‘nec vi nec claim and nec precario’. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence. xx xx xx 752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 , Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is “polymorphous. embodying both a right (the right to enjoy) and a fact (the real intention). xx xx xx 752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 , Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is “polymorphous. embodying both a right (the right to enjoy) and a fact (the real intention). The learned judge held: “13. “It is impossible to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of “possession”. Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. “Possession”, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.).” These observations were made in the context of possession in Section 29(b) of the Arms Act 1959. In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195 , Justice Jagannadhadas, speaking for a three judge Bench of this Court dwelt on the “classical requirement” of adverse possession: “4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.” The court cited the following extract from U N Mitra's “Tagore Law Lectures on the Law of Limitation and Prescription”: “7…An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.” (6th Edition, Vol. (Angell, Sections 390 and 398). It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.” (6th Edition, Vol. I, Lecture VI, at page 159) This Court held: “7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779 , Justice S Rajendra Babu, speaking for a two judge Bench held that: “11…Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.” The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. In Annakili v. A Vedanayagam, (2007) 14 SCC 308 , this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act.” 21. In Annakili v. A Vedanayagam, (2007) 14 SCC 308 , this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act.” 21. When the defendant Nos.1 to 3 pleaded that they themselves and their predecessors-in-title have perfected right in plaint ‘A’ schedule property by adverse possession, when they claimed title basing on possession also, which amounts to acceptance that ownership of the property vests in another, against whom the defendant Nos.1 to 3 asserts possession adverse to the title of the other. The learned appellate Judge elaborately discussed at para 20 of his Judgment that “admittedly Subbayamma @ Subhadrayamma is the sister of late Butchiraju, who is wife of PW.1, and mother of PW.2 and PW.3, and also the daughter of PW.1, i.e., 2nd plaintiff is given in marriage to Bhaskararaju, son of Butchiraju, might not have demanded and obtained receipts from Subbayamma for sharing of the profits in respect of plaint ‘A’ schedule property”. 22. In view of contents in Ex.A1 as the plaintiffs have proved their relationship with Subbayamma @ Subhadrayamma, who is coowner of plaint ‘A’ schedule property as per Ex.A1, the entries in revenue records stands in the name of one co-owner, will not extinguish the rights in immovable property of other co-owner as those are only for the purpose of collection of land revenue from the person, who is cultivating the land, which will not extinguish the rights of the co-owner in immovable property, unless specific ouster pleaded and proved by the appellants/defendant Nos.1 to 3, which they failed to prove, as rightly held by the Courts below. 23. The learned trial Judge rightly appreciated the evidence and decreed the suit, which was confirmed by the first appellate Court, by dismissing the appeal suit. 24. In these circumstances, finding no such questions that require consideration in this Second Appeal, much less substantial question of law, or appreciation of evidence as pointed out by the learned counsel for the appellants, this Second Appeal has to be dismissed. 25. In the result, this Second Appeal is dismissed. In the circumstances of the case, I direct both the parties do bear their own costs. 25. In the result, this Second Appeal is dismissed. In the circumstances of the case, I direct both the parties do bear their own costs. Consequently, pending miscellaneous petitions if any, stand closed. Interim Orders if any, granted shall stand vacated.