Kakara Pentaiah (died) and Others vs Mamillapalli Veera Venkata Dikshithulu

P.S. Narayana, J.—The unsuccessful defendants in O.S.No.78/83 on the file of the Principal Subordinate Judge, Peddapuram, are the appellants. The first appellant died during the pendency of the present appeal and appellant Nos.4 to 6 are brought on record as his legal representatives in C.M.P. No. 16128/98. The respondent in the appeal, the plaintiff in the suit, had instituted the suit in O.S.No. 78/83 on the file of the Subordinate Judge, Peddapuram, as an indigent person for declaration of his title to the plaint schedule property and for possession and also for past and future profits and for costs.

The respondent-plaintiff in the plaint had pleaded as follows:

The plaint schedule property is the ancestral property of the plaintiff. It is a ryot land in which the defendants predecessors late Kakara Tataiah and Kotteti Viranna were tenants. The plaintiff''s father was given a patta for the land under Estates Abolition Act. The defendants questioned the same in all courts unsuccessfully. They claimed patta as ryots, finally the defendants filed W.P.No. 215/77 on the file of High Court of Andhra Pradesh questioning the patta. The High Court dismissed the writ on 1-8-1978 upholding the rights of plaintiff''s father. Plaintiff''s father died pending appeal and plaintiff and other family members were added as parties. Therefore, the High Court judgment was passed in favour of the plaintiff and the other family members. Thereafter on 13-2-1980 the plaintiff obtained release deed from the other members of the family by way of a registered document and thus become the owner thereof. The property was mutated in the name of the plaintiff any ryotwari pass book was given in plaintiff''s name. The plaintiff paid the tax on the property. The latest tax receipt is dated 4-12-1982. The defendants set up adverse rights, thus they became trespassers and are liable to be rejected from the land. The plaintiff got issued a notice demanding possession on 3-8-82 and the defendants gave a reply on 10-8-82. The land is dry land yielding dry crops of value of Rs. 1,000/- per acre and Rs. 500/- was paid as rent per year and the plaintiff is entitled to possession of the property together with profits at Rs.500/-per acre per year for the last three years.

The appellants-defendants filed separate written statements denying all the allegations. It was also stated that it is not true that the plaint schedule property is the ancestral property of the plaintiff and that the plaintiff''s father was given a patta under Estates Abolition Act. The stand taken by the first defendant in the suit is that he purchased an extent of Ac. 3-76 cents in S.No. 57/2, old S.No. 50, from Sangana Satyam under sale deed, dated 20-8-1959, and since then he had been in absolute possession and enjoyment of the same and he had perfected his title by adverse possession also. The second defendant also had taken a stand that his father purchased Ac. 3-76 cents in S.No. 57, old S.No. 50, from Karri Appa Rao under a registered sale deed, dated 1-4-1959, and since then the second defendant''s father enjoyed the same with absolute rights and after his death, the second defendant and his mother have been enjoying the same with obsolute rights and they have perfected their title by adverse possession as well.

On the strength of the respective pleadings of the parties, the following Issues were settled:

(1) Whether the plaintiff has got title to the suit property?

(2) Whether plaintiff is entitled to the declaration that he had got title to the suit schedule property?

(3) Whether the plaintiff is entitled to the possession of the suit schedule property?

(4) Whether the 1st defendant perfected his title by adverse possession in respect of the land in his possession?

(5) Whether the sale deed dated 1-4-59 is true and whether Kotteti Viranna perfected his title by adverse possession?

(6) Whether the plaintiff is entitled to past and future profits and if so, to what amount is the plaintiff entitled to?

(7) To what relief ?

On behalf of the respondent-plaintiff, plaintiff had examined himself as P.W.1 and also another witness was examined as P.W.2, and Exs.A-1 to A-15 were marked on his behalf. Likewise, defendants 1 and 2 were examined as D.W.1 and D.W.2 and one Karri Appa Rao was examined as D.W.3 and Exs.B-1 to B-48 were marked. The trial court, on appreciation of both oral and documentary evidence, had decreed the suit as prayed for and also held that the profits shall be determined on a separate application to be filed by the respondent-plaintiff and the defendants in the suit were directed to pay the court fee payable to the Government inasmuch as the suit was instituted as an indigent person. Aggrieved by the same, the present appeal is filed.

Sri Vijay, the learned counsel representing the appellants, had contended that in a suit for ejectment the burden is heavy on the respondent-plaintiff and respondent-plaintiff was unable to discharge this burden and despite the same, the suit was decreed. The learned counsel also had contended that Ex.A-10 is only a rough patta issued by the Assistant Settlement Officer, Peddapuram, and on the strength of rough patta, the relief of declaration and recovery of possession cannot be granted. The learned counsel had placed strong reliance on Elumalai Chetty v. Rathna Velu Chetty, 1971 (2) An.W.R. 193. The learned counsel also had pointed out the allegations made in the plaint and had contended that even on the basis of the allegations made in the plaint, since it was stated that the predecessors of the defendants were tenants, the remedy before a Civil Court is a misconceived remedy since the jurisdiction of the Civil Court to entertain the dispute is barred by the provisions of the A.P. (Andhra are) Tenancy Act, 1956. The learned counsel also had taken me through the evidence available on record and had ultimately contended that Exs.B-1 to B-48 definitely establish long uninterrupted possession, which was never disturbed and hence, the trial court had gone wrong in not accepting the contention of the appellants-defendants that they had perfected their title by adverse possession as well.

Sri Subhash Chandra Bose, the learned counsel representing the respondent-appellant on the other hand had contended that in view of the prior litigation, as can be seen from Exs.A-2, A-3, A-4 and A-9 the rights of the parties already had been decided and in fact, orders were made by the Settlement Officer and Assistant Settlement Officer, Exs.A-9 and Ex.A-3, and these judgments inter-parties are binding on the appellants as well. The learned counsel also contended that the competent authorities who are expected to adjudicate the grant of patta, the Settlement Officer and Assistant Settlement Officer had made orders, Ex.A-9 and Ex.A-3, and the said authorities fall within the expression Courts of Limited Jurisdiction u/s 11 of the CPC and hence, the said question cannot be re-agitated inasmuch as the same is barred by principles of res judicata. The learned counsel also had contended that the question of passing title on the strength of rough patta alone will not arise in the present case since Ex.A-10 is only one of the documents and there are several other documents which clearly establish the title of the respondent-plaintiff. The learned counsel also submitted that even on the material available on record, it cannot be said that the alleged tenancy or the relationship continues and even as per the stand taken by the appellants-defendants they had not only denied the title but also had taken a stand that they had purchased the properties and hence, the question of exclusion of the jurisdiction of the Civil Court by virtue of the provisions of the A;P. (Andhra Area) Tenancy Act, 1956, will not arise in the present case. The learned counsel also had contended that even otherwise there was no plea, there was no issue and there was no finding on this aspect before the trial court and it was not even raised as a ground in grounds of appeal and hence, such contention cannot be permitted to be raised. The learned counsel also placed reliance on Voocha Pitchayya v. Gade Venkateswara Rao 1997 (1) An.W.R. 280 = 1996 (2) ALD 1124.

Heard both the counsel.

The points which arise for consideration in this appeal are as follows:

(1) Whether the respondent-plaintiff is having title to the plaint schedule property?

(2) Whether the respondent-plaintiff is entitled to the relief as prayed for in the suit?

(3) Whether the appellants had prefected their title by adverse possession?

(4) Whether the sale deeds relied on by the appellants are valid and binding on the respondent-plaintiff?

(5) Whether the respondent-plaintiff is entitled to past and future profits also?

(6) If so, to what relief?

Points (1) to (5): For the purpose of convenient discussion, point Nos. l to 5 can be discussed together. The respondent-plaintiff was examined as P.W.1 and Exs.A-1 to A-15 were marked on his behalf. Apart from P.W.1 P.W.2 was also examined. Defendants 1 and 2 were examined as D.Ws.1 and 2 and apart from D.Ws.1 and 2, one Karri Appa Rao was examined as D.W.3 and Exs.B-1 to B-48 were marked on their behalf. The suit is for declaration of title and recovery of possession. Ex.A-1 is the copy of appeal grounds in T.A.No. 6/73 on the file of Estates Abolition Tribunal, Rajahmundry, Ex.A-2 is the copy of Judgment in T.A.No.102/63, Ex.A-3 is the copy of the order of the Assistant Settlement Officer, Anakapalli, Ex.A-4 is the copy of the order in W.P.No. 215/77 on the file of High Court of A.P., Hyderabad, Ex.A-7 is the Copy of Judgment in T.A.No. 8/66 on the file of Estates Abolition Tribunal, Rajahmundry, Ex.A-8 copy of decree, Ex.A-9 is the copy of the order of the Settlement Officer, Visakhapatnam, Ex.A-10 rough patta issued by the Assistant Settlement Officer, Peddapuram, Ex.A-11 Ryoth pass book in the name of P.W.1 Ex.A-12 land revenue receipt, Ex.A-13 relinquishment deed, Ex.A-14 notice of High Court in W.P.No. 215/77 and Ex.A-14 is the copy of the Judgment in T.A.No. 6/73 served along with Ex.A-14. These are the documents relied on by the respondent-plaintiff apart from the oral evidence i.e., the evidence of P.W.1 and also P.W.2. The stand taken by the appellants/contesting defendants is that the first defendant purchased an extent of Ac.3-60 cents in the plaint schedule under original of Ex.B-1 and the stand taken by the second defendant is that he is in possession of the remaining extent of Ac. 3-60 cents in the plaint schedule property and the same was purchased by his father under the original of Ex.B-26. Hence, the stand taken by the appellants-defendant is to the effect that the plaintiff has no title to the plaint schedule property at all. As already stated supra, the respondent-plaintiff had examined himself as P.W.1, who had deposed that his grandfather purchased the plaint schedule property and since then his grandfather and subsequent thereto, his father enjoyed the schedule property by cultivating through tenants. It is not in dispute that the village was zamindari village and the schedule land is the zerayati land. P.W.1 also deposed that after abolition of estates, an appeal was preferred before the Estates Abolition Tribunal and Ex.A-2 is the order of the Estates Abolition Tribunal remanding the case to the Assistant Settlement Officer, Visakhapatnam and Ex.A-3 is the order passed by the Assistant Settlement Officer, Visakhapatnam, after remand. It also appears that the appellants-defendants filed writ petition in W.P. No.215/77 and Ex.A-4 is the order passed in the said Writ Petition. Then the respondent-plaintiff got issued a notice, Ex.A-5, to the appellants-defendants, for which a reply was given under Ex.A-6, Ex.A-9 is the order passed by the Settlement Officer, Visakhapatnam, Subsequent thereto, the Assistant Settlement Officer, Peddapuram, had issued a rough patta for the schedule property, which was marked as Ex.A-10, and Ex.A-11 is the ryotwari pass book issued in his favour and also in favour of his brother. Ex.A-12 is the land revenue receipt. P.W.1 also deposed that his father died in the year 1974 and he obtained a relinquishment deed for their share in the plaint schedule property in his favour in Ex.A-13. P.W.1 also deposed that the first defendant and one Veeranna filed the aforesaid writ petition against the orders of the learned District Judge, East Godavari, Rajahmundry wherein he received notice, Ex.A-14, and Ex.A-15 is the copy of the Judgment passed by the District Judge, Rajahmundry, and the land is ryoti inam land. P.W.1 also further deposed that one Karri Appa Rao was his tenant and prior to him one Narasimha Raju was his tenant, and he had taken a specific stand that he never leased out the plaint schedule properties to the defendants at any point of time and Karri Appa Rao, who was examined as D.W.3, had inducted the defendants into possession of the plaint schedule properties and they never paid any rents to him. Though Karri Appa Rao paid rents from sometime, subsequent thereto he had not paid any rents. The said Karri Appa Rao was examined as D.W.3, as already stated supra, and he had deposed that the father of the plaintiff was having schedule property and he sold the property to Kotteti Viranna, the father of second defendant and husband of third defendant and likewise, one Sangam Satyam also had executed a document and he had referred to Exs.B-1. B-25 and also Ex.B-26. In cross-examination, he had denied the suggestion that he obtained possessory mortgage from the father of the plaintiff for the plaint schedule property and this witness also had denied that he gave evidence before the Settlement Officer to the effect that he had taken the schedule property on possessory mortgage. This witness also had denied the suggestion that after redemption of the mortgage, the father of the plaintiff gave the schedule property to Narasimha Raju on lease and after him, he was inducted into possession of the said property. It was also suggested to him that this witness sold only leasehold rights under Ex.B-1 and also Ex.B-26. D.W.3 also had deposed that he was in possession of the property in his own right and hence, he had executed the document. Thus, the stand taken by the appellants-defendants is that they purchased the plaint schedule property under the originals of Exs.B-1, B-25 and B-26. It is pertinent to note that as can be seen from the documentary evidence even till 1974 the litigation under the Estate? Abolition Act between the parties had been, pending and then only it became final. Even if Ex.A-9 is taken into consideration, at any stretch of imagination, it cannot be said that the appellants-defendants had perfected their title by adverse possession and the trial court had discussed this aspect in detail and had negatived the stand taken by the appellants-defendants relating to the plea of adverse possession. Even otherwise, since in my considered opinion the respondent-plaintiff had established title to the plaint schedule property in view of Exs.A-9, A-3, A-2 and A-7, no doubt supported by other documents, Exs.A-10, A-11, A-12 and A-15, the burden is on the appellants-defendnts who had taken the plea of adverse possession. It is needless to say that normally, the plea of adverse possession will be raised as against the real owner of the property. But, here inconsistent pleas had been taken by the appellants-defendants on the one hand that they are the owners of the property by virtue of the sale deeds and also on the other hand contending that they had perfected their title by adverse possession. Apart from this aspect of the matter, the necessary ingredients to constitute adverse possession also had been not established. In Chakicherla Audilakshmamma Vs. Atmakaru Ramarao and Others, it was no doubt held that in a suit for ejectment, the plaintiff is liable to be non-suited if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not. The same view was expressed in The Firm of N. Peddanna Ogeti Balayya and Others Vs. Katta V. Srinivasayya Setti Sons, However, in the present case. I had already observed that the respondent-plaintiff had established his title. Even otherwise, even if the recitals in Exs.B-1, B-25 and B-26 are taken into consideration, it can be definitely said that the appellants-defendants had not taken the true stand. No doubt, strong reliance was placed on Elumalai Chetty''s case (1 supra) to the effect that rough patta is only notice issued to owner to prefer objections with regard to details given therein and it does not decide title to the holding and it is neither a document of title nor evidence of title. I had already observed that apart from Ex.A-10 there are several other documents, on the strength of which the trial court had declared the title of the respondent-plaintiff and hence, this decision may not be of any help to the appellants-defendants. It is also pertinent to note that these parties were parties in the prior litigation, as can be seen from Exs.A-1, A-2, A-3, A-4, A-7, A-9, A-14 and also A-15 and as far as the granting of patta is concerned, by virtue of Exs.A-9 and A-3 the said issue was decided by the competent authorities, the Courts of Limited Jurisdiction, and the said orders being orders inter-parties they are binding on the parties and the said question cannot be re-agitated again in view of Section 11 explanation 8 of the Code of Civil Procedure. No doubt, an attempt was made by the counsel for the appellants-defendants to contend that as the suit was filed for declaration of title and recovery of possession and other reliefs, the suit is not maintainable inasmuch in the pleading itself it was stated that at a particular point of time, the defendants and their predecessors were tenants, but on the material available on record and also in the light of the specific stand taken by the appellants-defendants that they are owners of the property, they cannot be permitted to contend otherwise especially in the absence of a plea having been taken in this regard. The learned counsel for the respondent-plaintiff had placed reliance on Vooch Pitchayya''s case (2 supra) on the ground that a party should not be permitted to take inconsistent pleas i.e., a party should not be allowed to approbate and reprobate. However, I need not deal with this aspect in detail for the reason that no such plea had been taken and for the first time before the appellate court such ground is being raised stating that it is a pure question of law which can be raised at any stage of the proceedings. It is suffice to state that in the facts and circumstances of the case, it cannot be permitted to be raised. Viewed from any angle, I do not see any illegality or legal infirmity in any of the findings recorded by the trial Court and all the findings had been recorded on proper appreciation of both oral and documentary evidence and hence, the said findings are hereby affirmed.

Point (6) In the light of the foregoing discussion, the appeal is devoid of merits and accordingly, the appeal is dismissed with costs. It is needless to point out that the appellants-defendants are bound to pay the Court fee payable in the proceedings, this being a suit instituted by an indigent person.