Ramasingh Lalithabai vs Khaja Shoukat Ali

This appeal is directed against the judgment and decree dated 16.02.2010 passed by the learned Principal District Judge at Nalgonda, in A.S.No.65 of 2007 allowing the appeal and setting aside the judgment and decree dated 08.10.2007 passed in O.S.No.60 of 1997 on the file of the learned Junior Senior Civil Judge at Devarakonda.

O.S.No.60 of 1997 was filed by Ramsingh Lalithabai - plaintiff seeking permanent injunction restraining the defendants and their men from interfering with her peaceful possession and enjoyment over an extent of 161.3 square yards bearing Plot No.3, Block No.14, situated at Deverakonda proper. The plaintiff in the plaint would submit that she purchased an extent of 161.3 square yards of open land measuring 22 square yards from East to West and seven yards one feet from North to South square yards and the said land is bounded by the vendors open place on Eastern and Southern sides, PWD Road on Western side and nine feet width road on Northern side. She got the above open place from its owners Syed Jafar Ali and Syed Manzoorr Ahmed of Devarakonda through registered sale deed bearing Document No.729 of 1981 for a valuable consideration of Rs.1,700/- and that the vendors delivered possession to the plaintiff and she is in continuous possession of the suit land for some years by erecting a temporary hut and later due to the business of her husband, they shifted to Halya. The plaintiff would also state that the defendants are strangers to the suit schedule land and that taking advantage of her absence, the defendants planted some stones by saying that the suit schedule land is a passage to go to their lands. She would also state that immediately after knowing the above situation, she along with her husband came to Devarakonda and placed the matter before the elders and on their advice the defendants removed the planted stones. But, again they came to the suit schedule land on 15.07.1997, and therefore, as it is difficult for her to safeguard possession from the clutches of the defendants, she filed the suit for injunction.

In  the  written  statement  filed  by  the  defendants  inter  alia contending that they disputed the boundaries, denied the purchase of suit schedule land from Syed Jafar Ali and also the registered sale deed. They would further state that they are the own brothers. The second defendant purchased Ac.1.10 guntas out of Sy.No.399 of Deverakonda and was in possession of the property and he obtained civil Court Decree in O.S.No.54 of 1983 dated 31.01.1983. He got occupancy certificate issued by the Revenue Divisional Officer, Miryalguda on 1702.1992. They would further assert that Syed Suleman was having interest over Ac.1.10 guntas in Sy.No.399 and in fact this survey number comprises of Ac.3.00 guntas and that the plaintiff has not acquired any right or title in the suit schedule land and that the boundaries of the suit schedule property are not properly described, and thus, suit is liable to be dismissed.

While admitting this second appeal, the following substantial questions of law are framed.

(a) Whether the lower appellate Court is justified in discarding Ex.A.1 registered sale deed dated 08.06.1981.

(b) Whether the lower appellate Court has misappropriated the evidence brought on record in reversing the judgment of the trial Court.

(c) Whether the suit for declaration of title based on adverse possession is maintainable in respect of the alleged Inam land.

In support of her contentions, the plaintiff examined herself as P.W.1 and M.D.Sadique was examined as P.W.2 on her behalf. The second defendant was examined himself as D.W.2 and one Maddimadugu Daya Ratnam was examined as D.W.2. Exs.A.1 to A.8 were marked on behalf of the plaintiff and Exs.B.1 to B.7 were marked on behalf of the defendants.

Considering the oral and documentary evidence adduced by both the parties, the trial Court decreed the suit with costs in favour of the plaintiff and defendants are restrained from interfering with plaintiff’s peaceful possession and enjoyment over the plaint schedule property. Aggrieved by the said judgment, the defendants in the suit preferred an appeal. In the appeal, the appellate Court allowed the appeal and the judgment of the trial Court was set aside by observing that it is for the plaintiff to establish her possession over the plaint schedule property as on the date of filing of the suit by cogent and convincing evidence and she has to stand on her own legs and she cannot take advantage of the weaknesses of the defendants’ evidence and that the trial Court misdirected and came to a wrong conclusion. Aggrieved by the same, the plaintiff preferred this Second Appeal.

For the sake of convenience, the parties hereinafter are referred to as arrayed in the suit.

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

The trial Court in its judgment observed that the plaintiff is the absolute owner of the plaint schedule property and she purchased the same from Syed Jafar Ali and Sayed Manjoor Ahmed under Ex.A1 registered sale deed dated 08.06.1981. At the time of filing the suit, the plaint schedule property is a vacant place and there would be no documentary proof to establish the possession of the owner over a vacant space except the sale deed. As such the plaintiff by producing Ex.A1 established her incidental title and possession over the plaint schedule property and her evidence is also corroborated by the independent evidence of P.W.2. The present suit is filed only for injunction simpliciter. The trial Court further observed that defendants relied upon the consent decree obtained in O.S.No.54 of 1983 under Ex.B3. Ex.B3 is the plaint filed by the second defendant against Syed Suleman claiming title by adverse possession over the entire extent of Ac.1.10 guntas. As the defendant admitted the averments of plaint in the written statement, consent decree was passed. Defendant Nos.1 to 3 in the written statement filed in the present suit though stated that they purchased Ac.1.10 guntas in Sy.No.399 from its original owner Syed Suleman, they did not produce any document in support of their contention. Though the second defendant in the cross-examination admitted that he is having the document, he failed to produce the same, but he filed the sketch under Ex.B4, occupancy certificate under Ex.B5, pattedar pass book and title deed issued by the revenue authorities under Exs.B6 and B7 and also stated that the revenue officials mutated his name in the revenue records basing on the above documents. Ex.B3 is not binding on the plaintiff as she is not a party to the suit O.S.No.54 of 1983. It was also observed that the second defendant in the written statement submitted that he paid land revenue and obtained pahanies in his favour, but did not produce the same before the Court for the reasons best known to him. Except Ex.B3 consent decree, there is no other material for the second defendant to claim title and possession over the plaint schedule property, and accordingly granted injunction in favour of the plaintiff. The appellate Court in its judgment observed that the plaintiff purchased the suit schedule plot from Sayed Jaffar Ali and Syed Manjur Ahmed in the year 1981 as per Ex.A1 registered sale deed for an amount of Rs.1,700/-, but in Ex.A1 it was not mentioned how the vendors became owners of the suit plot. The basis for their ownership and title is not there in Ex.A1. P.W.1 in her cross-examination deposed that at the time of purchase the entire land was divided into plots and only after issuance of lay out she purchased the land, but she has not filed any lay out copy in the suit to substantiate her version. P.W.1 further deposed that she did not make any enquiries with regard to the ownership of the vendors before purchasing the plot. It was suggested to her that Ex.A1 has no connection with Sy.No.399 and this survey number is not at all mentioned in Ex.A1 sale deed. Perusal of Ex.A1 clearly shows that no survey number was mentioned in it. She further admitted that there is no material on record to show what is the survey number in Ex.A1 and what is the basis for the title of her vendors in respect of the suit schedule plot. Ex.A1 sale deed is dated 08.06.1981, but she filed the suit in the year 1997 i.e. after sixteen years. There is no document in favour of the plaintiff to prove her possession as on the date of filing the suit.

Learned counsel for the defendants would argue that O.S.No.54 of 1983 was filed by Khaja Asif Ali against one Syed Suleman seeking declaration of title and rectification of wrong entries in record of rights in respect of the suit schedule property i.e. Ac.1.10 guntas in Sy.No.399 measuring Ac.3.00 guntas situated at Deverakonda. The plaintiff would state that he is the owner and possessor of the suit schedule property and he is in possession and enjoyment by paying land revenue for more than 12 years and that he perfected title by adverse possession over the suit schedule property. He would further contend that the defendant therein interfered with his possession on 02.01.1993 and as such he filed the suit for declaration. The said suit was filed on 27.01.1983. The defendant filed his written statement on 31.01.1983 and admitted the averments made in the plaint. He specifically admitted that the plaintiff is the owner and possessor of the suit land and he is cultivating the same and enjoying the fruits there from and also paying land revenue regularly and that the defendant has no manner of right whatsoever over the suit schedule property and that due to some misunderstandings he interfered with the possession of the plaintiff and that he has no objection if the name of the plaintiff is entered in the revenue records as owner and possessor by duly deleting his name. Accordingly, a consent decree was passed on 31.08.1983 declaring that the plaintiff is the owner and possessor of the suit schedule property.

The appellant herein would contend that whether title by adverse possession is maintainable in Inam land for declaration of title and so also whether occupancy rights certificate under A.P. (TA) Abolition of Inams Act can be granted in respect of urban/ residential/non-agricultural property as substantial question of law. But, as it is a suit for injunction those issues need not be decided in this appeal.

In the case on hand, the consent decree is pertaining to the year 1983, but the sale deed under Ex.A1 was much prior to the said decree i.e. 08.06.1981 and that the plaintiff filed suit after 16 years. Though the plaintiff stated that she stayed in the suit schedule land for some years and then shifted her family to Haliya, she has not filed any document to prove her possession of the suit schedule land. In Ex.A1 the survey number is not mentioned and it was executed by the son of Syed Suleman in favour of the plaintiff. Though consent decree was passed in the year 1983, Ex.A1 was executed in the year 1981 two years prior to the passing of consent decree. It was also stated that the plaint schedule property belongs to Hasan Ali, father of Syed Suleman. It was not stated anywhere whether the son of Syed Suleman executed sale deed in favour of plaintiff with the consent of his father. It is also not brought on record whether Syed Suleman is having knowledge about the execution of Ex.A1 by his son prior to the filing of the written statement in the consent decree. No doubt, perusal of Ex.A1 shows that it was executed in favour of the plaintiff on receiving the total consideration and possession was also handed over to the plaintiff. The details of the boundaries are mentioned, but the survey number is not mentioned anywhere. Except Ex.A1 the plaintiff has not filed any other document to establish her possession. The plaintiff herself stated that she stayed in the said place only for some years and thereafter she along with her husband shifted to Haliya. When she came to know that defendants are trying to trespass into the land, she along with her husband came and settled the matter with the intervention of the elders. Even afterwards when again defendants entered into the land, she filed the suit for injunction. Admittedly, the plaintiff filed suit for injunction sixteen years after execution of Ex.A1 and it is for her to file any relevant documents to prove the possession as on the date of filing of the suit, but she failed to do so. As such, the appellate Court rightly allowed the appeal filed by the defendants by setting aside the judgment and decree passed by the trial Court.

For the foregoing discussion, this Court finds no reason to interfere with the findings of the appellate Court and accordingly this Second Appeal is dismissed. However, there shall be no order as to costs.

Pending miscellaneous petitions, if any, shall also stand dismissed in the light of this final judgment.