Hidayathulla Sheriff and Others vs Bondili Kesava Singh

L. Narasimha Reddy, J.—This second appeal is filed by the defendants in O.S. No. 394 of 1979 in the Court of the District Munsif, Vizianagaram.

The respondent tiled the suit for the relief of declaration of title, recovery of possession and consequential injunction. He pleaded that he purchased a house as well as abutting open land admeasuring 396 Sq.yards in Sy. Nos. 488 and 489 of Vizianagaram Town, through a sale deed, dated 30-10-1977, Ex.Al, from one Ramakrishna Sri Krishna Thiwar. According to him, the appellants herein encroached into an area of 41'' x 14''. He pleaded necessary ingredients, which constituted the cause of action.

The appellants resisted the claim of the respondent. They pleaded that the vendor of the respondent did not have any title or possession over the suit scheduled property. It was alleged that the suit schedule property, along with the appurtenant land was purchased under a sale deed, dated 3-11-1973, Ex.Bl, from D.W.2, who, in turn, had purchased the same through Ex.B12, dated 17-4-1958. It was also alleged that the vendor of the respondent was not alive, by the time he executed Ex.Al.

Through its judgment, dated 10-6-1987, the trial Court dismissed the suit. Thereupon, the respondent filed A.S. No. 83 of 1987 in the Court of the Additional District Judge, Vizianagaram. The appeal was allowed on 16-3-1994. Hence, the second appeal.

Sri B.C. Ravindra Reddy, the learned Counsel for the appellants, submits that even according to the recitals in the plaint, the suit schedule land was in possession of the appellants much before the so-called purchase under Ex.Al and in that view of the matter, the suit itself was not maintainable. He further contends that the trial Court recorded a specific finding to the effect that the vendor of the respondent was not alive by the time Ex.Al was executed. The learned Counsel points out that the lower appellate Court ignored several fundamental aspects and decreed the suit contrary to the settled principles of law.

Sri Gudapati Venkateswar Rao, the learned Counsel for the respondent, on the other hand, submits that his client had established his title over the suit schedule property through Ex.Al and the oral evidence of PWs.l and 2. It is also his case that except small portion covered by Ex.Al, rest of it is in possession and enjoyment of the respondent and even assuming that the possession of the small portion shown in the suit schedule was not delivered, it cannot be said that the respondent does not have any title over it. He relied upon certain precedents in support of his contention.

The suit was filed for the relief of declaration of title, recovery of possession and consequential injunction. It related to a small portion of land of about 60 Sq. yards. The trial Court framed the following issues:

(1) Whether the plaintiff and his vendors were in possession and enjoyment of the plaint schedule site, the portion shown as ''A B C D E F G'' within the statutory period?

(2) Whether the plaintiff is entitled for declaration and for physical possession of the plaint schedule A B C D E F G site as shown in the plaint plan?

(3) Whether the plaintiff is entitled for mandatory injunction for removal of the thatched shed in B C D E portion of the plaint plan and for removal of the house and also for mandatory injunction for removal of the house in A B E F G of the plaint plan?

(4) Whether the plaintiff is entitled for mesne profits as prayed for in the suit?

(5) Whether the plain plan and schedule are proper and correct?

(6) Whether the defendants are entitled for exemplary costs u/s 34 C.P.C.?

(7) To what relief?

On behalf of the respondent, P.Ws.1 and 2 were examined and Exs.Al to A12 were marked. On behalf of the appellants, DWs.1 and 2 were examined and Exs.Bl to B12 were marked.

The suit was dismissed and thereupon, the respondent filed the appeal before the lower appellate Court. Additional evidence was taken in the form of Exs.Al 3 to A16. It, ultimately, decreed the suit. Therefore, it needs to be seen whether the respondent was entitled for the relief of declaration of title and recovery of possession of the suit property.

The first aspect of the matter is about the declaration of title. Ex.Al is clear in its purport and ambit. The property was described clearly as the one in Sy. Nos. 488 and 489. The boundaries as well as the dimensions were furnished. The appellants doubted the derivation of title by the respondent on the strength of Ex.Al, on two grounds. Firstly, it was alleged that the vendor under Ex.Al was not alive, on the date of its execution. Their basis was that, on the postal cover, through which the notice was sent to the vendor of the respondent at the relevant point of time, an endorsement was made to the effect that he is not alive. The trial Court accepted the contention of the appellants. The question as to whether an individual is alive, or dead must be specifically pleaded and proved, on the strength of cogent evidence. Such important aspects cannot be decided on the basis of stray entries made by unconnected persons, that too, when, none connected with the entry was examined as witness. If the appellants are of the view that the vendor of the respondent was not alive at the relevant point of time, they ought to have taken a specific plea, and adduced evidence, be it in the form of death certificate or oral evidence of the person, who issued it. Therefore, the finding of the trial Court in this regard cannot be sustained in law and it was rightly reversed by the lower appellate Court.

Another contention raised on behalf of the appellants was that the possession under Ex.Al was not delivered at the time of its execution and as such, the transaction was incomplete. There is a clear recital in Ex.Al that the possession of the property covered by it was delivered. It is true that in the plaint, the respondent stated that much before the sale deed was executed, a small bit about 60 Sq. yards was unauthorisedly encroached by the appellants herein. This fact, by itself, cannot shake the title of the respondent, over the suit schedule property.

Instances are not lacking where the possession is not delivered at all, while executing the sale deed. Even in such cases, the Courts held that the title would pass on, despite the non-delivery of possession. In Smt. Therojamma v. D.H. Sadasivaiah 1990 (2) CCC 216 , the Karnataka High Court and in Bishundeo Narain Rai (Dead)By Lrs. and Others Vs. Anmol Devi and Others, , the Supreme Court, held that the important ingredient for a valid sale is the registration of document by a person holding title. Indirectly, it suggests that delivery of possession is not a sine-qua-non for transfer of title.

So far as the relief of recovery of possession is concerned, once it is claimed as a sequel to declaration of title, the appellants could have resisted it, either on the basis of a plea of superior title or through adverse possession, as provided for in law. No such effort was made.

An attempt was made to the effect that the appellants too have title over the suit schedule property, which is in Sy. No. 489. It is not in dispute that the appellants purchased a piece of land in Sy. No. 490 through Ex.Bl from D.W.2. On his part, D.W.2 purchased it under Ex.B12 dated 17-4-1958. In Ex.B12 as well as Ex.Bl, only one survey number is mentioned i.e., 490. An attempt was made by the respondent herein to get Ex.Bl rectified through Ex.B2. In Ex.B2, it was mentioned that Sy. No. 490 was wrongly indicated and the correct survey number is 486 and part of Sy. No. 489. There could have been some basis for Ex.B2, if only, it intended to bring Ex.B 1 in conformity with Ex.B12. As long as Ex.Bl tallied with Ex.B 12, there was no basis for Ex.B2. Therefore, it cannot be said that the appellants had any title over the suit schedule property, which is admittedly in Sy. No. 489.

The lower appellate Court appreciated the matter from the proper perspective and corrected the error committed by the trial Court. This Court does not find any basis to interfere with the same.

The second appeal is accordingly dismissed. There shall be no order as to costs.