Nagulappally Jabbar and Another vs Raheemunnisa

P.S. Narayana, J.—The unsuccessful respondent/ defendants in the appellate Court are the appellants in the present Second Appeal. The respondent herein/plaintiff instituted the suit O.S.No. 73/85 on the file of District Munsif, Andole at Jogipet for the relief of declaration and recovery of possession of House No. 2-7 of Shankarampet, Andole taluq, Medak District. The Court of first instance on the respective pleadings of the parties and after settlement of Issues had recorded the evidence of P.W. 1 and P.W. 2 and D.W. 1 and D.W. 3 and marked Exs. A-1 to A-4 and Exs. B-1 to B-12 and had negatived the contentions raised by the defendants, but while answering Issue No. 7, came to the conclusion that the suit is barred by limitation and accordingly the suit was dismissed and aggrieved by the same, the plaintiff preferred A.S.No. 4/92 on the file of Subordinate Judge, Medak and the learned Subordinate Judge, Medak had reversed the same and allowed the Appeal with costs, and aggrieved by the same, the present Second Appeal is filed.

Sri Govardhan Reddy, the learned counsel representing the appellants -defendants in the suit, had submitted that the question of limitation is a substantial question of law and u/s 3 of the Limitation Act 1963 it is the duty of the Court to decide the question of limitation and even on the admission of the plaintiff that the suit was filed beyond the period of 12 years, the suit is definitely barred by limitation since the appellants/defendants had perfected their title by adverse possession and hence the Court of first instance is well justified in dismissing the suit on the question of limitation. The learned counsel had taken me through the findings recorded while answering Issue No. 7 by the Court of first instance and the learned Counsel also had taken me through the evidence of P.W. 1 and certain admissions made in this regard. The learned counsel also had placed strong reliance on Yarlagadda Venkakka Choudary (dead) and Another Vs. Daggubati Lakshminarayana (dead) and Others, and also Mohd. Iqbal Vs. N. Prabhakar and Another, .

Per contra Sri Mohd. Ghulam Hu(SIC)sain, the counsel representing the respondent/ plaintiff had drawn my attention to the findings recorded by the appellate Court. The learned Counsel in all fairness had submitted that though reasons had not been recorded in detail, in substance the appellate court had discussed the oral and documentary evidence and had arrived at the correct conclusion. The learned counsel also had submitted that even otherwise the finding that respondent/plaintiff is the owner of the property cannot be in dispute at all since the said finding recorded by the Court of first instance became final and the same was not questioned by filing any Appeal as against such finding. The only question is question of limitation. The learned counsel also submitted that when once title to the property is proved by the plaintiff, definitely the burden is on the otherside and in fact the appellate Court had observed that the stray admission by P.W. 1, an illiterate lady, cannot be given much importance and these findings are findings of fact. The learned counsel also submitted that the question of limitation always necessarily need not be a question of law and it is a mixed question of fact and law, and in view of the findings recorded by the appellate Court, especially in the light of the fact that both the Courts had arrived at the conclusion that the respondent/plaintiff is the owner of the property, it will be unjust to permit the appellants to continue in possession any longer.

Heard both the counsel.

The only question which had been elaborately argued by the counsel for the appellants is the question of limitation. In fact, the Court of first instance also had recorded a finding against the plaintiff only on question of limitation. The Court of first instance had relied on Ex. B-1 letter and also the evidence of D.W. 1 and also D.W. 2 and D.W. 3 and the alleged admission made by the plaintiff in this regard.

The respective pleadings of the parties are the plaintiff is the absolute owner of the house bearing No. 2-7 including courtyard having purchased from its previous owner under a registered sale deed dt. 18-5-1965, admeasuring 6 x 31/2 yards construction area, 6 x 18 yards of court yard and also purchased an open area admeasuring 24 sq. yards from its owner Bande Ali on 25-6-1965 under a registered sale deed and she got it joined in the house and enjoying the possession of its open place. The plaintiff, after purchase of the suit property under two registered sale deeds applied for permission to carry out construction in open land and after seeking permission from the Gram Panchayat on 25-4-1966 completed the construction over the open land in the year 1966-67 as per the permission. It was further pleaded that the husband of the plaintiff was doing business of regrouping of motor tyres at Ramagundam village and the plaintiff was residing in the suit house till 1975 and in the month of January 1975, she went to Ramagundam to attend her husband who was sick after locking the suit schedule house and since then she has been residing at Ramagundam. It was further pleaded that the defendants who have no concern with the title of suit schedule property are taking undue advantage of the plaintiff''s absence and illegally occupied the suit schedule house in the month of May 1975 and continuing the possession of the suit schedule property and that when she came to know about the illegal occupation of the suit house by the defendants, she demanded them to vacate but the 1st defendant having agreed to vacate the premises dragged on the matter and got the 2nd defendant joined along with him on 21-1-1991 and finally both the defendants refused to vacate the suit schedule properties and denied her title and that the defendants also threatened her with dire consequences and they did not even permit the plaintiff to enter into the house and to take her household articles which were kept by her in the first floor of the suit house in the month of May, 1975.

The 1st defendant filed a written statement and the 2nd defendant had adopted the same. It was pleaded that the plaintiff had not purchased the suit schedule property under registered sale deed dated 18-5-1965 and 26-5-1965 and that she was not in possession of the suit schedule property from the date of her purchase. It is contended that neither plaintiff nor her father were in possession of the suit property at any time during the past 25 years. The suit house along with open site belongs to 1st defendant as he purchased it in the year 1965 from the father of plaintiff and the plaintiff herself. It is contended that as the plaintiff was in hurry to go, she instructed her father to execute sale deed and obtain the consideration and accordingly the sale deed was executed and since then the 1st defendant is in exclusive possession of the suit schedule property. It is further contended that irrespective of the effect of any transaction, the 1st defendant had perfected his title by way of adverse possession. It was further pleaded that the father of the plaintiff Mohammed Yasin was a Government servant and therefore he purchased the suit property in the name of the plaintiff for his own benefit and Mohd. Yasin himself advanced the amount for purchase of suit schedule property and that the plaintiff was not having any funds to purchase the suit house and that she never lived in the suit house with her husband. It is further pleaded that Mohd. Yasin being the real owner of the property and being in possession, entered into agreement of sale and also received the sale consideration and delivered possession of the suit schedule house and in the year 1975, he executed an agreement of sale in favour of the 1st defendant and that the 1st defendant is the bona fide purchaser for value on the responsibility of the plaintiff herself and that the plaintiff is estopped from filing this suit. It is conceded that the plaintiff had not title or possession to the suit property at any time and that her title, if any, extinguished being out of possession for over 12 years before the suit and this defendant had perfected his title to the suit property. It is further pleaded that the permission obtained by her on 25-4-1966 is false and concocted. It was further pleaded that it is unbelievable that the plaintiff who claims to be the owner of the property kept quiet for ten years to institute the suit. It is further contended that the suit is barred by limitation and that there was no cause of action for filing the suit. The defendant had taken additional pleas as alternative relief. It was pleaded that the 1st defendant was always ready to complete the transactions and he is entitled to protection u/s 53-A of Transfer of Property Act as he had purchased the property from the ostensible owner and he had perfected his title by adverse possession.

On the strength of the respective pleadings of the parties, several Issues were settled and Issue No. 7 is whether the suit is barred by limitation. P.W. 1 and P.W. 2 were examined on behalf of the plaintiff and Exs. A-1 to A-4 were marked. Ex. A-1 is the sale deed of the house dated 18-5-1965. Ex. A-2 is the sale deed relating to the land of lawn. Ex. A-3 is the permission letter of Gram Panchayat and Ex. A-4 is the notice issued by Gram Panchayat. As against this evidence, D.W. 1 to D.W. 3 were examined and Exs. B-1 to B-12 were marked on behalf of the defendants. Ex. B-1 is the letter dated 25-7-1975. Ex. B-2 is the agreement of sale dated 9-9-1975. Ex. B-3 is the receipt dated 9-9-1975. Exs. B-4 to B-6 are the demand notices. Exs. B-7 to B-9 are the house tax receipts. Ex. B-10 is the certificate dated 19-12-1985. Exs. B-11 and B-12 are ration cards.

It is pertinent to note that the suit itself is for declaration of title and recovery of possession of house property. The title to the property in relation to plaintiff had been declared by the Court of first instance and the same was confirmed even by the appellate Court and hence the said finding relating to the same cannot be disturbed in a Second Appeal. The other question which had been argued elaborately is the question of limitation. The stand taken by the plaintiff is that the 1st defendant, in the month of May 1975 during her absence, illegally occupied the suit house and had unauthorisedly inducted the 2nd appellant into the suit house and hence the suit for recovery of possession is filed. Exs. A-1 and A-2 are the title deeds. The evidence of P.W. 1 and P.W. 2 and also D.W. 1 to D.W. 3 had been elaborately discussed. The stand taken by the defendants is that the father of the plaintiff Mohd. Yasin was Government servant and he purchased the suit property in the name of the plaintiff for his own benefit and he being the real owner of the property, entered into an agreement of sale and received sale consideration and delivered possession of the suit schedule house in the year 1975 and executed agreement of sale in favour of the 1st defendant and thus the 1st defendant is the bona fide purchaser. In a way, a plea of benami was set up, but however the said, contention was negatived. It was held that the plaintiff alone is the owner of the property. The appellate Court had recorded reasons in detail while reversing the findings given by the trial Court on question of limitation. An admission made by a party, unless it is clear and unequivocal, cannot defeat the substantive rights of the parties. The appellate Court had recorded the reasons why the stray admission made by P.W. 1 cannot be believed especially in the light of the defence taken by the appellants. It is needless to reiterate that the appellants had taken a stand that the father of the plaintiff had inducted the 1st defendant into possession and the 2nd defendant in turn came into possession since the 1st defendant had inducted him. Virtually, the possession started as permissive possession even according the defendants. Absolutely there is no evidence to show at what point of time the title of the plaintiff had been denied specifically by the 1st defendant so as to constitute the commencement of adverse possession or perfection of title by virtue of possession being beyond the period of 12 years. When clear finding had been recorded relating to the title in favour of the plaintiff, unless both the animus and also the actual possession beyond the period of limitation are clearly established by adducing clear, convincing and cogent evidence, the plaintiff who was able to established the title, cannot be non-suited on the question of limitation. That is the settled position under the present Limitation Act, 1963. In the light of this legal position, and especially in view of the concurrent findings recorded by both the Courts relating to ''the title to the property and also the convincing reasons which had been recorded in detail by the appellate Court, I am not inclined to accept with the contentions advanced by the counsel for the appellants. No other question or point had been raised by either of the counsel.

In view of the findings recorded above, the Second Appeal is devoid of merits and accordingly the same is dismissed, with costs.