D. Lakshmamma and others vs Kathi Chinna Narasappa alias Chinnudu and others

This appeal by the legal representatives of the deceased-plaintiff is directed against the judgment and decree dated 23.09.1992 passed in A.S. No.7 of 1988 on the file of the Sub-Court, Kadiri, reversing the Judgment and decree dated 15.03.1988 passed in O.S. No.518 of 1983 on the file of the principal District Munsif, Kadiri, in Anantapur District.

The parties are being referred as they are arrayed in the suit for the sake of convenience.

The plaintiff Dadireddi Chinna Gangi Reddy filed the said suit O.S. No.518 of 1983 for declaration of his title and for permanent injunction restraining the defendants and their men from interfering with his peaceful possession and enjoyment of the suit property or in the alternative for recovery of possession of the suit property. The suit property consists of five cents of open land in survey number 114 situated in Gopepalle village within specific boundaries. The case of the plaintiff is that he purchased the suit land from one Penujuri Ramalingappa under a registered sale deed dated 31-1-1948 (Ex.Al) for a valid consideration of Rs.300/- and that he was put in possession of the same and that his name has also been mutated in the revenue records. The suit land is situated abutting the first defendant''s house on southern side and due to the disputes in the recent panchayat elections at the instigation of the enemies of the plaintiffs the defendants are bent upon interfering with his peaceful possession and enjoyment of the suit property and that the plaintiff had been in possession of the suit site having his manure heap and fire wood and other agricultural implements. Hence, the plaintiff filed the said suit for the reliefs as stated supra.

Resisting the claim of the plaintiff, the first defendant filed his written statement and the same was adopted by the defendants 2 to 4. The defendants 5 and 6 remained ex parte, The plea of the contesting defendants is that the suit open site is in gram natham, that the first defendant has been in possession and enjoyment of the suit site for more than 30 to 40 years and that he has perfected his title by adverse possession and that the plaintiff has no right or title or possession over the same.

The trial Court settled the following issues for trial:

(i) Whether the plaintiff is entitled for declaration of title land for permanent injunction as prayed for or in the alternative for possession of the suit property?

(ii) Whether the defendants have perfected their right and title by adverse possession and enjoyment over the suit property as prayed for by them?

During the course of trial, PWs.1 to 3 were examined and Ex.Al was marked on behalf of the plaintiff. DWs. 1 and 2 were examined and Exs.Bl and B2 were marked on behalf of the defendants. As earlier stated, Ex.A1 is the registered sale deed under which the plaintiff purchased the suit land from one Penujuri Ramalingappa. Ex.B 1 is the certified copy of the complaint in CC No.200 of 1982 on the file of the Judicial First Class Magistrate, Kadiri, filed by the plaintiff against the defendants and Ex.B2 is the sworn statement of the complainant (plaintiff herein) recorded in that case. On a consideration of the oral and documentary evidence placed before him, the learned Principal District Munsif held on issue No. 1 that the plaintiff has established his title to the suit property and that the plaintiff was not in possession of the suit property on the date of filing of the suit but he is entitled for recovery of the possession. The trial Court on issue No.2 held that the defendants failed miserably to establish that they have perfected their right and title by adverse possession to the suit property. Consequently, the trial Court decreed the suit with costs declaring the plaintiffs title to the suit property and directing the defendants to deliver possession of the same to the plaintiff within one month from the date of the decree.

Aggrieved by the Judgment and decree of the trial Court, the defendants preferred the appeal A.S. No.7 of 1998. During the pendency of that appeal, the original plaintiff died and his legal representatives were brought on record as respondents 2 to 8 in that appeal. On reappraisal of the evidence on record the lower appellate Court reversed the findings of the trial Court and consequently allowed the appeal setting aside the Judgment and decree of the trial Court and dismissed the suit OS No.518 of 1983. Challenging the said findings of the first appellate Court, the legal representatives of the deceased plaintiff have come up with this second appeal.

Heard the learned Counsel on either side. The learned Counsel for the appellants took me through the impugned Judgment of the lower appellate Court as well as that of the trial Court and the evidence on record.

The learned Counsel for the appellants submits that the lower appellate Court mis-read the evidence on record and placed the burden on the plaintiff wrongly to prove that the defendants arc not in adverse possession and that the document, Ex.Al, confers title on the plaintiff with respect to the suit land and it is a document of more than 30 years old. The learned Counsel for the appellants further submits that the evidence on record does not conclusively establish that the defendants perfected their title by adverse possession and that the findings of the first appellate Court are perverse and this Court is justified in interfering with the findings of the lower appellate Court while exercising the jurisdiction u/s 100 of the Civil Procedure Code. The learned Counsel for the appellants further submits that the second respondent in this appeal is no other than the son of the first respondent and the dismissal of this appeal against the respondent No.2 does not affect the appeal preferred by the appellants.

The learned Counsel for the respondents, on the other hand, submits that the lower appellate Court on reappraisal of the evidence on record gave its findings that the plaintiff failed to establish his title and that the defendants perfected their title by adverse possession and both of them are findings of fact and it is not open for this Court to interfere with the said findings in Second Appeal.

The only substantial questions of law involved in this appeal are:

(i) Whether the plaintiff has established his title over the suit property?

(ii) Whether the respondents-defendants have perfected their title to the suit property by adverse possession?

It is well settled that the jurisdiction of the High Court to entertain a Second Appeal u/s 100 of the CPC after the 1976 Amendment is confined only to such appeals as involved a substantial question of law. The existence of a substantial question of law and not a mere question of law is the sine qua non for the exercise of the jurisdiction u/s 100 of the Civil Procedure Code. In Kashibai and Another Vs. Parwatibai and Others, , their Lordships of the Supreme Court held thus:

"It has been the consistent view of tliis Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact based on appreciation of the relevant evidence. There is catena of decisions in support of this view."

In Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, , the Supreme Court held that the High Courts in exercise of power u/s 100 of the CPC cannot make a fresh appraisal of evidence and come to a different conclusion contrary to the finding recorded by the first appellate Court. There is catena of decisions in support of this view.

In K. Stibramaniyam v. S. Nagappa, 1986 (1) ALT 32, it is held that where the reasons given by the appellate Judge are perverse and there is no consideration at all in the appeal, it constitutes a substantial question of law within the meaning of Section 100 CPC. Thus, where the first appellate Court had considered the evidence on record by applying its mind independently and considered the reasoning of the trial Court and gave its findings on facts, the same does not deserve to be interferred with by the High Court in second appeal. But if a finding of fact has been recorded by the first appellate Court without considering the entire evidence on record, that finding can be successfully challenged in second appeal because a finding of fact which is not supported by any evidence can be questioned u/s 100. of the CPC and in that connection it may be said that a decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever tlie High Court thinks that the evidence accepted by the lower appellate Court would not have keen reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate Court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all. The High Court is also justified in interfering when it is made out that the findings given by the lower appellate Court are vitiated by the non-consideration of the relevant evidence or failed to meet the points raised by the trial Court in appreciating the evidence on record or the approach to decide the case is quite erroneous. The High Court can also interfere when there is perversity in finding of fact or deliberate mistake either in collection or evaluation of evidence or when it is the result of surmises and conjuctures.

A perusal of the impugned judgment of the lower appellate Court as well as that of the trial Court, I am satisfied that there is much force in the contentions raised by the learned counsel for the appellants tliat the lower appellate Court has mis-read the evidence on record and also failed to consider the oral evidence and this resulted in mis-carriage of justice and that the first appellate Court also wrongly placed the burden on the plaintiff to prove that the defendants are not in adverse possession and also observing that the plaintiff has failed to establish that he is in possession of the suit property over 12 years prior to filing of the suit Admittedly, the plaintiff has relied on Ex.A-1 registered sale deed dated 31-1-1948 under which he purchased the suit property for a valid consideration of Rs.300/-. This is an old document of more than 38 years. The defendants have also not challenged the genuineness of this document. Under this document, the plaintiff had purchased an extent of five cents of open site in survey number 114. This document naturally confers title on the plaintiff with respect to the suit land. On the other hand, the defendants have not produced any document showing of their title with respect to the suit land. Though in the written statement filed on behalf of the first defendant, D1 has not set up his version of the title to the suit property but in his evidence as DW1 he claims that the suit land is in gram natham (gram poramboke land) and that he occupied the same about 30 to 50 years back. But,as observed by the trial Court, the defendants did not file any record to show that survey number 114 is a gram natham and he also failed to produce any record to show that either the first defendant or his father had ever been in possession of the suit land since 40 or 50 years as pleaded by him. Further, there is nothing on record to show that the Gram Panchayat had at any time levied any penalty on the defendants for putting up any hayrick on the suit land. DW2 also did not state how the defendants got the suit property. Hence, the trial Court held that the plaintiff has established his title to the suit property and he is absolute owner of the same. The lower appellate Court, except stating that the trial Court is wrong in saying that the plaintiff is entitled for the declaration, has not discussed the evidence on record and it has also not considered the title deed, ExA1. Therefore, the finding of the lower appellate Court that the plaintiff failed to establish his title to the suit property is liable to be set aside.

As regard the second point i.e., whether the defendants have perfected their title to the suit property by adverse possession, the trial Court on a consideration of Exs.Bl and B2 came to the conclusion that on the date of filing of the suit the plaintiff was in possession of the suit property but in view of the admission by the plaintiff under Exs.B 1 and B2 that the defendants trespassed into the suit land and that they have been in possession and enjoyment of the same about six years prior to to the date of filing of the suit and that the defendants failed to establish their adverse possession for the statutory period of 12 years. The appellate Court wrongly placed the burden on the plaintiff to establish that he has been in possession and enjoyment of the suit land over 12 years before filing of the suit and as such the defendants have perfected their title to the suit property and that the plaintiff failed to show that the defendants are in possession only for six years. In the instant case, we should not forget that the suit property consists of an open site, possession to be adverse must, as observed by Dr. Markely in his "Elements of Law" in Chapter 10, be possession "by a person who does not acknowledge the others rights but denies them". There must be an express or implied repudiation of rights of the true owner and an open assertion by any person in possession of the claim of the right to hold the property on his own behalf. Unless possession is coupled with an express or implied claim of right inconsistent with the title of lawful owner it cannot be regarded as adverse to the true owner. In a suit for ejectment initial burden lies on the plaintiff to prove that he has the title to immediate possession by ejectment of defendants. If the suit is based on the ground of dispossession or dis-continuance of possession and the defendant in possession asserts title independently of title alleged by the plaintiff, then the plaintiff must prove that he was in possession within 12 years prior to the filing of the suit. But in a case where it is admitted or found as a fact that the plaintiff has title to the suit land and is entitled to recover Khas possession and the defendant asserts prescriptive title, it is for the defendant to prove his adverse possession for 12 years prior to the filing of the suit. In such cases, where on proof of plaintiffs title, possession is presumed with him on the principle that possession follows title. Presumption of possession arising from title is not available where the land is capable of actual possession or the evidence adduced is unworthy of credence. This presumption is available in cases (i) where the evidence is equally strong and apparently equally well balanced on both sides, so that it is difficult to determine where the truth lies; (ii) where the evidence on both sides is weak or unsatisfactory but not valueless or wholly incredible; (iii) where the land is of such peculiar nature that the evidence of actual user and enjoyment in the ordinary sense could hardly be accepted - example lands which are waste, jungle, submerged under water or any kind of lands incapable of cultivation. Further, an owner of property docs not lose his right to property merely because he happens not to be in possession of it for 12 years. u/s 55 of the Limitation Act, 1963 a right is only extinguished at the determination of period limited by Limitation Act to him for instituting a suit for possession of property; that period cannot be determined unless it has commenced to run and the period will commence to run until the owner is aware that someone else is in possession and holding adversely to himself. Thus, it is well settled that the onus of establishing title to the property by adverse possession for the requisite period lies on the person asserting his possession. Further, if a plaintiff has established Ms title, the onus lies on the defendants to prove tliat the plaintiff having proved title is not entitled to possession of the suit property and they have to esiablish their possession for more than statutory period of 12 years.

In the inslant case, the plaintiff has established his title to the suit property based on his title deed Ex. A1. Therefore, it is for the defendants to prove that the plaintiff is not entitled for possession of the suit property for the reason that they have perfected their title by adverse possession and it is not for the plaintiff to prove as observed by the lower appellate Court that the defendants have been in possession for less than six years. On the other hand, it is for the defendants to establish by adducing cogent and reliable evidence to show mat they have been openly enjoying the suit open site asserting their O\\\\D right against the rights of the plaintiff for more than the statutory period of 12 years. In (he instant case, as earlier stated, the suit property is only an open site and it is incapable of cultivation and at best it may be used for storing hayrick or for storing manure or for collection of firewood. The witnesses examined on behalf of the plaintiff and the witnesses examined on behalf of the defendants have stated on oath that the suit property was being enjoyed as such by both but there is no documentary evidence to prove such an enjoyment. Hence, there is oath against oath. But in the instant case as the plaintiff has established his title to the suit property, we have to presume that the plaintiff has been in possession and enjoyment on the basis of the principle that possession follows title as the suit property is being an open site. The defendants relied on Exs.Bl and B2 which are certified copies of complaint in CC No.200 of 1982 and sworn statement of the complainant (plaintiff herein) in that case. What is stated in that complaint is that the defendants have trespassed into the land and raised hayrick. But he never admitted that the defendants have been in possession and enjoyment of the suit land for the last 30 or 40 years. At best we can say that the defendants have trespassed into the land just prior to the filing of that complaint. On a careful consideration of that entire evidence on record, I am satisfied that the findings of the lower appellate Court are not based on the entire evidence on record and there is also mis-reading of the evidence on record and that the approach of the lower appellate Court is also quite erroneous and this resulted in perversity in its findings. Hence, both the points are decided in favour of the plaintiff and the Judgment and decree of the lower appellate Court are liable to be set aside and the appeal has to be allowed.

In the result, this second appeal is allowed with costs and the judgment and decree of the lower appellate Court in AS No.7 of 1988 are set aside and the judgment and decree of the trial Court in OS No.518 of 1983 are restored.