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2025 DIGILAW 813 (AP)

S. M. Sakina Begum v. K. S. Masood Sab

2025-07-03

B.V.L.N.CHAKRAVARTHI

body2025
JUDGMENT: 1. This Second Appeal is preferred by the appellant/plaintiff under Section 100 of the Code of Civil Procedure 1908, assailing the decree and judgment, dated 07.08.2002, passed in A.S.No.79 of 2001 on the file of the Addl.Senior Civil Judge, at Ananthapuram (old A.S.No.9/1997 on the file of District Judge, Ananthapuram). 2. Heard Sri N. Chandrasekhara Reddy, learned counsel for the Appellants. Heard Sri Pratap Narayana Sanghi, learned Senior Counsel assisted by Gorla Manasa, learned counsel for the Respondents. Perused the material on record. 3. The appellants are legal representatives of the plaintiffs in the suit. The respondents No.1 to 4 are the defendants in the suit. The parties in the Second Appeal shall hereinafter be referred to as arraigned in the Original Suit, for convenience and clarity. 4. The suit in O.S.202/1991 on the file of Junior Civil Judge, Ananthapuram, was instituted seeking the relief of declaration of title over the plaint schedule property and also for permanent injunction to restrain the defendants from interfering with the possession and enjoyment of the plaintiffs. The plaint schedule consists of Ac.4-86 cents of land in K.No.227 in S.No.172 of Kakkalapalli Village of Ananthapur Mandal. 5. The trial Court decreed the suit vide judgment and decree dated 20.12.1996. The 2 nd defendant preferred appeal in A.S.9/1997 on the file of District Judge, Ananthapuram. Later, the appeal transferred to the Addl.Senior Civil Judge, Ananthapuram and re-numbered as A.S.79/2001. The learned Addl.Senior Civil Judge, Ananthapuram vide judgment and decree dated 07.08.2002 partly allowed the appeal with regard to Ac.0-86 cents of land, out of Ac.4-86 cents of land. Dismissed the rest of the appeal. Therefore, the plaintiffs preferred the Second Appeal, challenging the judgment and decree of the Addl. Senior Civil Judge at Ananthapuram with respect to Ac.0-86 cents of land. The 2 nd defendant did not prefer any Second Appeal regarding dismissal of the 1 st appeal with respect to Ac.4-00 of land. PLEADINGS: 6. The case of the plaintiff is that plaintiff is owner of the plaint schedule property. Senior Civil Judge at Ananthapuram with respect to Ac.0-86 cents of land. The 2 nd defendant did not prefer any Second Appeal regarding dismissal of the 1 st appeal with respect to Ac.4-00 of land. PLEADINGS: 6. The case of the plaintiff is that plaintiff is owner of the plaint schedule property. Originally it belongs to the 1 st defendant; the 1 st defendant sold an extent of Ac.4-50 cents of land, in S.No.172 to Sri M.Nagendra Gowd, G.Subbarayudu and B.Hanumanthappa on 16.05.1998 and put them in possession; the 1 st defendant permitted purchasers to use the cart track existed on the northern side of the remaining land; the purchasers have been using the cart track, as conveyed under the sale deed; Later, the 1 st defendant executed a gift deed on 02.05.1972 in favour of the plaintiff, the daughter-in-law of the 1 st defendant for Ac.4-00 of land in S.No.172; the plaintiff accepted the gift on 02.05.1972; the property was delivered to the plaintiff on the same day by the 1 st defendant; the plaintiff has been in possession and enjoyment of the land from the date of gift; the plaintiff also enjoying the remaining Ac.0-86 cents land, in S.No.172 from the date of gift deed; the plaintiff perfected her title to the said property, by adverse possession; the plaintiff obtained a loan from Ananthapuram Co-operative Agriculture Development Bank Limited, mortgaging the property, for the purpose of digging well; the plaintiff has been cultivating the land personally; the name of the plaintiff was also mutated in revenue records. The 1 st defendant died leaving the defendants No.2 to 4, as legal representatives; there are no cordial terms between the plaintiff and the defendants No.2 to 4; they are trying to interfere with the possession of the plaintiff over the suit property; the plaintiff came to know that the 1 st defendant cancelled the gift deed dated 02.05.1972, by a document dated 20.03.1991; the plaintiff also came to know that the 1 st defendant sold an extent of Ac.0-86 cents of land in favour of the 2 nd defendant on 22.04.1991; the cancellation deed and the sale deed executed by the 1 st defendant are sham and nominal documents; the plaintiff did not know about the documents till the written statement filed by the 1 st defendant. 7. 7. The 1 st defendant filed written statement, contending that the land in S.No.172 belongs to the 1 st defendant; he sold Ac.4-30 cents in S.No.172, to M.Nagendra Gowd and others on 16.05.1998 and delivered possession; the 1 st defendant also provided right of cart track to purchasers; the 1 st defendant executed a gift deed on 02.05.1972 in favour of the plaintiff, the daughter-in-law of the 1 st defendant for Ac.4-00 in S.No.172; Possession was not delivered; the well has been in existence for more than 25 years; it is in possession of the 1 st defendant; the allegation that the plaintiff perfected title for Ac.4-86 cents by adverse possession is false. The 1 st defendant sold the remaining 86 cents land in S.No.172 to the 2 nd defendant on 22.04.1991 and delivered possession. The defendants No.3 and 4 remained exparte. ISSUES: 8. Basing on the above pleadings, the trial Court settled the following issues for trial: 1. Whether the plaintiff is in possession of the suit land? 2. Whether the gift deed dated 02.05.1972 by defendant in favour of plaintiff was not applicable (mistaken for accepted) and acted upon? 3. Whether the registered deed of cancellation of gift dated 20.03.1991 by the defendant is binding on the plaintiff? 4. Whether the plaintiff is entitled for perpetual injunction as prayed for? 5. To what relief? On 05.09.1996, the following additional issues are framed: 1. Whether the sale deed dated 22.04.1991 executed by 1 st defendant in favour of 2 nd defendant is true, valid and binding on the plaintiff? 2. Whether the 2 nd defendant is in exclusive possession of the suit property for an extent of Ac.0-86 cents in S.No.172 as claimed by the defendant? 3. Whether the plaintiff is entitled for declaration of title as prayed for? EVIDENCE: 9. During trial, five witnesses were examined for the plaintiff, as P.Ws-1 to 5 and eight documents marked as Exs.A-1 to A-8. Four witnesses were examined for the defendant as D.Ws-1 to 4 and 10 documents marked as Exs.B-1 to B-10. 10. P.W-1 is the plaintiff. P.W-2 is the husband of the plaintiff. P.W-3 is southern side neighbor of the suit land. P.W-4 is purchaser of Ac.4.50 cents in S.No.172. P.W-5 is attestor of Ex.A-3 will. D.W-1 is 1 st defendant. The 2 nd defendant was examined as D.W-2. D.W-3 is the husband of D.W-2. 10. P.W-1 is the plaintiff. P.W-2 is the husband of the plaintiff. P.W-3 is southern side neighbor of the suit land. P.W-4 is purchaser of Ac.4.50 cents in S.No.172. P.W-5 is attestor of Ex.A-3 will. D.W-1 is 1 st defendant. The 2 nd defendant was examined as D.W-2. D.W-3 is the husband of D.W-2. D.W-4 is Village Administrative Officer of Kakkalapalli Village. Ex.A-1 is the registered gift deed executed by the 1 st defendant in favour of the plaintiff. Ex.A-2 is the copy of sale deed executed by the 1 st defendant in favour of the 2 nd defendant. Ex.A-3 is the registration extract of registered will. Ex.A-4 is receipt. Exs.A-5 and A-6 are demand notice. Ex.A-7 is certificate issued by Bank. Ex.A-8 is 10-1 account extract issued by Mandal Revenue Officer, Ananthapur. Ex.B-1 is the registered cancellation deed. Ex.B-2 is the registered sale deed executed by the 1 st defendant in favour of the 2 nd defendant. Exs.B-3 and B-4 are the land revenue receipts. Ex.B-5 is the encumbrance certificate. Ex.B-6 is Pattadar passbook. Ex.B-7 is R.O.R. Title Book issued by R.D.O., Ananthapur. Exs.B-8 and B-9 are certified copies of No.2 Adangal for fasli 1400 and 1402 respectively. Ex.B-10 is registration extract of a mortgage deed executed in favour of Cooperative Central Bank, Ananthapur. FINDING OF THE TRIAL COURT: 11. The trial Court on consideration of the above oral and documentary evidence, found that Ex.A-1 gift deed executed in favour of the plaintiff is valid and binding on the 1 st defendant. Therefore, the 1 st defendant cannot cancel it, by executing Ex.B-1 cancellation deed. The trial Court further held that the plaintiff is in possession of the suit land i.e., Ac.4-00 conveyed under gift deed and also Ac.0-86 cents, as claimed by the plaintiff. Therefore, decreed the suit for declaration of title and permanent injunction as prayed for. FINDING OF THE FIRST APPELLATE COURT: 12. The Addl.Senior Civil Judge at Ananthapur, on consideration of the above evidence found that the plaintiff proved her title and possession over Ac.4-00 of land conveyed under Ex.A-1 gift deed, but she failed to prove her title and possession of Ac.0-86 cents of land, covered by Ex.B-2 sale deed executed in favour of the 2 nd defendant. Hence, partly allowed the appeal in respect of Ac.0-86 cents of land. 13. Hence, partly allowed the appeal in respect of Ac.0-86 cents of land. 13. Challenging the above judgment of the First Appellate Court, the Second Appeal is preferred by the plaintiff. The Second Appeal was admitted on 17.06.2003. SUBSTANTIAL QUESTION OF LAW: 14. Basing on the 2 to 6 grounds raised in the grounds of appeal, the following substantial question of law would arise in the Second Appeal, for consideration: “Whether the I Appellate Court failed to apply the principles of adverse possession? If so, wrongly held that the plaintiff failed to prove adverse possession over Ac.0-86 cents of land”? 15. CONTENTIONS OF THE RESPECTIVE COUNSEL IN THE SECOND APPEAL: The learned counsel for the appellant/plaintiff would submit that the judgment of the 1 st Appellate Court is contrary to the evidence and law. He would further submit that the 1 st Appellate Court wrongly interpreted recitals of Ex.A-3 will, though it refers to Ac.4-50 cents, as gifted to the plaintiff. The 1 st Appellate Court did not apply law of adverse possession to the facts properly, and therefore came to a wrong conclusion. 16. The learned counsel for the respondent/2 nd defendant contended that Ex.A-1 was executed only for Ac.4-00. The plaintiff claimed title to the remaining Ac.0-86 cents of land, by adverse possession, but no evidence was placed to prove the plea of adverse possession. The burden of proof is on the person, who pleads adverse possession. In support of his arguments, he relied on judgment of the Hon’ble Apex Court in the case of M.Radheshyamlal Vs. V.Sandhya and another , 2024 SCC Online SC 318 . The 1 st Appellate Court came to a right conclusion that the plaintiff failed to prove possession over Ac.0-86 cents of land. Hence, there are no grounds to interfere with the findings of the 1 st Appellate Court. ANALYSIS: 17. The trial Court and the 1 st Appellate Court on consideration of the evidence placed by the plaintiff and the 2 nd defendant, concurrently found that the 1 st defendant is the father of defendants No.3 and 4. Hence, there are no grounds to interfere with the findings of the 1 st Appellate Court. ANALYSIS: 17. The trial Court and the 1 st Appellate Court on consideration of the evidence placed by the plaintiff and the 2 nd defendant, concurrently found that the 1 st defendant is the father of defendants No.3 and 4. The plaintiff is wife of the 3 rd defendant; 2 nd defendant claims to have been purchased Ac.0-86 cents of land from the 1 st defendant under a registered sale deed dated 22.04.1991 vide Ex.B-2; The 1 st defendant denied the entire suit claim, whereas the 2 nd defendant restricted his claim to Ac.0-86 cents of land purchased by hum under Ex.B-2 from the 1 st defendant. With regard to claim of the 1 st defendant to Ac.4-00 of land covered under the gift deed was elaborately dealt by the trial 2024 SCC Online SC 318 Court and the 1 st Appellate Court and found that the plaintiff is in possession of 4 Acres, conveyed under the gift deed; In those circumstances, cancellation of Ex.A-1 through Ex.B-1 does not arise; This finding of the trail Court and 1 st Appellate Court was not challenged by the 2 nd defendant, or the other defendants. 18. The 1 st Appellate Court thoroughly examined the plaintiff’s case about title and possession over the remaining Ac.0-86 cents of land, in view of the plea of the 2 nd defendant. The 1 st Appellate Court found that the plaintiff claimed title to the said property by adverse possession; She did not file any document to establish her possession till 03.05.1984; The burden is on the plaintiff to prove the plea of adverse possession; The plaintiff did not file any document from 03.05.1972 to the date of filing of the suit to establish her possession over Ac.0-86 cents of land; The documents filed by the plaintiff regarding mortgage transaction do not contain the details of the land mortgaged to the bank; Ex.A-3 will made a reference to the gift deed in favour of the plaintiff; But the extent of land mentioned as Ac.4-50 cents, without mentioning the survey number; The extent of land conveyed under Ex.A-1 is only Ac.4-00; Therefore, Ex.A-3 does not confer any title to the plaintiff over Ac.0-86 cents of land. 19. 19. It is an admitted case of both parties that the 1 st defendant was having Ac.9-36 cents of land in S.No.172. He sold Ac.4-50 cents of land under Ex.A-2 to third parties in the year 1968. The extent of land covered under Ex.A-1 gift deed is only Ac.4-00. So, the 1 st defendant is still having Ac.0-86 cents of land. The plaintiff claims possession over it also from the date of gift deed and claims title to the said Ac.0-86 cents also. The burden of proof in a suit for declaration of title over an immovable property is upon the plaintiff. The evidence placed by the plaintiff falls short of proving her possession over the said land, as rightly observed by the lower appellate Court. She failed to prove possession during the relevant period, having set up plea of adverse possession. Hence, she is not entitled to the relief of declaration extent for Ac.0-86 cents of land, covered by Ex.B-2 executed in favour of the 2 nd defendant the by the owner 1 st defendant. Ex A3 will not improve her case, when gift deed is only for Ac.4-00. Bank documents would not disclose the extent of the land as Ac.4-86 cents. Revenue accounts will not create any right in favour of the plaintiff, when gift deed is only for four acres. No evidence is forthcoming to establish that plaintiff has been possession of Ac.0-86 cents also in her own right and to the knowledge of the 1 st defendant. 20. The Hon’ble Supreme Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy (dead) by L.Rs. and others , AIR 2008 SC 2033 held that “ where a cloud is raised over plaintiff’s title and possession, in a suit for declaration and injunction, the burden is on the plaintiff to prove the title and possession ”. 21. Undisputedly, the extent of land conveyed under Ex. A-1 gift deed is Ac.4-00 only. The plaintiff claimed title for Ac.4-86 cents. The plaintiff claimed Ac.0-86 cents of land based on plea of adverse possession. In a suit for declaration of title and permanent injunction, the burden is on the plaintiff to prove the title as well possession over the property, to succeed in the suit. A-1 gift deed is Ac.4-00 only. The plaintiff claimed title for Ac.4-86 cents. The plaintiff claimed Ac.0-86 cents of land based on plea of adverse possession. In a suit for declaration of title and permanent injunction, the burden is on the plaintiff to prove the title as well possession over the property, to succeed in the suit. A person who sets up the plea of adverse possession must establish possession, which shall be peaceful, open and continuous possession, to meet the requirement of nec vi, nec claim and nec pre-cario. The possession must be adequate, in continuity and in the public; because the possession has to be with in the knowledge of the true owner, in order to be adverse. These requirements shall be established by adequate pleadings and sufficient evidence. 22. The Hon’ble Supreme Court in M.Siddiq (Ram Janmabhumi Temple-5 J.) Vs. Suresh Das , 2020 1 SCC 1 case, on adverse possession, in paragraphs 1142 and 1143 held as follows: “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 cognizant 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”. "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 part of 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. To substantiate a part of 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. 2020 1 SCC 1 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”. 23. The Hon’ble Apex Court also considered the principles of law on plea of adverse possession, in Karnataka Board of Wakf Vs. Government of India and others, 2004 (10) SCC 779 in para 11, held as follows: “In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254 , Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567 ). 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. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128 ”. 24. The Hon’ble Supreme Court in M.Radheshyamlal Vs. V.Sandhya and another etc ., considered the above judgments, and in para 12 held as follows: “Therefore, to prove the plea of adverse possession: - (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner; (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner; (c) The plaintiff must also plead and establish when he came into possession; and (d) The plaintiff must establish that his possession was open and undisturbed. It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years”. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff. 25. After all, the plea is based on continuous wrongful possession for a period of more than 12 years”. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff. 25. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff. In the case on hand, there is no dispute that the original owner is the 1 st defendant for the land in S.No.172. The total extent of land in S.No.172 is Ac.9-36 cents. The 1 st defendant executed Ex.A-1 in favour of the plaintiff on 02.05.1972 for Ac.4-00 of land only. Earlier to this, he alienated Ac.4-50 cents out of Ac.9-36 cents of land in favour of Sri M.Nagendra Gowd and two others on 16.05.1962. Therefore, the remaining extent of land held by the 1 st defendant is Ac.0-86 cents of land. The 1 st defendant executed sale deed in favour of the 2 nd defendant under Ex.B-2 on 22.04.1991. 26. The plaintiff shall prove that she has been in possession and enjoyment of the said Ac.0-86 cents of land from the date of gift deed i.e., Ex.A-1, as owner, and it is known to the 1 st defendant. The plaintiff must also prove that when she came into possession, and that her possession is open and undisturbed. 27. The learned counsel for plaintiff mainly relied on Ex.A-3 will be executed by the 1 st defendant in the year 1986. A reference was made to the gift deed. The extent of land was mentioned as Ac.4-50 cents. No survey number was mentioned. There is no dispute that gift deed was executed only for Ac.4-00 only. Basing on this sole sentence in Ex.A-3, it cannot be presumed that the plaintiff has been in possession of Ac.0-86 cents of land from the date of Ex.A-1 gift deed as owner, to the knowledge of the 1 st defendant, to claim adverse possession. No positive evidence was adduced by the plaintiff to prove the plea of adverse possession in respect of Ac.0-86 cents of land. 28. In the light of above discussion, the finding of the 1 st Appellate Court on this point does not warrant interference of this Court. CONCLUSION: 29. In the light of foregoing discussion, the Second Appeal is liable to be dismissed. RESULT: 30. 28. In the light of above discussion, the finding of the 1 st Appellate Court on this point does not warrant interference of this Court. CONCLUSION: 29. In the light of foregoing discussion, the Second Appeal is liable to be dismissed. RESULT: 30. In the result, the Second Appeal is dismissed with costs of the 2 nd defendant throughout. As a sequel, Interlacutory applications pending, if any, shall stand closed.