Siva Nagayya and Others vs Ahmed Khan and Others

A. Venkatarami Reddy, J.—The Second Appeal, S.A.No. 273/90 is preferred by defendants 3 to 9, 11 to 14, 16 and 18 to 22 and the Second Appeal No. 610/90 is preferred by defendants 1 and 2 in O.S.No. 25 of 1976, arise out of the judgment in A.S.No. 108/78. As parties are common and common question arises for consideration in both these.

The first respondent in both the second appeals viz. Ahmed Khan is the plaintiff in O.S.No. 25/76 on the file of the District Munsif, Vikarabad. The case of the plaintiff is that he is the absolute owner and pattedar and is in possession of the land bearing S.No. 39 at Manneguda Village. He and prior to him his father-in-law, Jarawar Khan were in possession and enjoyment of the said land for more than 45 years. About 45 years back the plaintiff planted 200 mango trees, dug a well and constructed a house in the said land and subsequently raised two huts for his farm servants. While so, on 12.4.76 the second defendant accompanied by the Revenue Inspector and two police constables came to the land and demolished one house belonging to the plaintiffs. The Writ appeal W.A.No. 326/76 preferred by the plaintiff against the dismissal order of W.P. No. 1336/76 was dismissed on 21.4.1976 with a direction to the second defendant not to evict the plaintiff for a period of three months to enable the plaintiff to issue notice u/s 80 CPC for filling the suit. Pursuant to the aforesaid direction the plaintiff issued a notice to the Collector, i.e. the first defendant and the Tahsildar, the second defendant. The Tahsildar, sent a reply stating that it is a government land and that the suit land of 0.39 cts. is covered by Survey Nos. 51 /2 and 51/3. According to the plaintiff even assuming that the suit land belongs to the government, the plaintiff has perfected his title by prescription as he was in actual, uninterrupted, open and adverse possession since last 45 years. The plaintiff, therefore, filed the above suit for declaration of title and possession, and also for perpetual injunction from interfering by the defendants. Subsequent to the filling of the suit, as defendants 3 to 17 encroached on 600 Sq. Yards the plaint was amended claiming further relief of ejectment of defendants 3 to 17.

Defendants 1 and 2 filed one written statement and the defendants 3 to 16 filed separate written statement. Their case is that the plaintiff is the owner and pattedar of the land bearing S.No. 39 of Manneguda village but its extent is only Ac.9.22 guntas. The disputed 0.39 gts. constitute survey numbers 51/2 and 51/3 which is jarib land belonging to the government and that the plaintiff is not in possession and enjoyment of the said area of 0.39 gts. in question. It was further stated that when the shop owners of Manneguda village requested to provide government land for their shops the land bearing S.Nos. 51/2 and 51/3 was selected for providing to the shop owners. The plaintiff filed a petition stating that the land which was proposed to be given to the shop owners is in his possession and enjoyment and requested to sanction patta in his favour. In spite of notice in respect of his claim, he did not produce any documentary evidence. The defendants 3 to 16 stated that the land is a government land and that they have denied the adverse possession of the plaintiff and that they have been permitted by the revenue authorities to construct the houses. They are in possession and enjoyment of about 20 guntas since more than 40 years as absolute owners.

On the basis of the aforesaid pleadings the trial Court framed appropriate issues and held on the main issue that the plaintiff has no title to the suit property and did not prove that he acquired title by adverse possession, and the suit was accordingly dismissed. The appeal preferred by the plaintiff was allowed on 31.12.75.

The High Court in Second Appeal Nos. 209/80 and 906/80 preferred by the defendants allowed the appeals on the ground mainly that the lower appellate Court did not consider the effect of Exs. B-49 to B-55, B-1 and B-2 and B-13 to 41 and remanded the matter to the lower appellate Court for fresh disposal.

After remand, the lower appellate Court framed the following two points for consideration.

Whether the appellant is entitled for declaration of ownership of the land in S.Nos. 51/2 and 51/3 in an extent of 0.39 guntas and consequently whether the appellant is entitled for perpetual injunction restraining the respondents from interfering with the possession of the said land?

Whether the respondents 3 to 17 are liable to be evicted from 600 Sq. Yards i.e. 5 guntas of the suit land and that the possession is to be delivered to the appellant of the said land?

The lower appellate Court on consideration of the evidence held that the plaintiff has been in continuous possession and enjoyment of S.No. 51 /2 and 51/3 for over45 years and therefore perfected his title by adverse possession. Accordingly, the lower appellate Court allowed the appeal and decreed the suit.

These two second appeals are preferred one by the defendants 1 and 2 and the other by other defendants mentioned earlier.

The only question that arises for consideration in this second appeal is:

Whether the plaintiff has acquired title by adverse possession to the disputed site of 39 gts. in Survey Nos. 51/2 and 51 /3 of Manneguda village.

It is not in dispute that 0.39 gts. is in S.No. 51/2 and 51/3 and is contiguous with Survey No. 39. the defendants admitted that the plaintiff is the owner of S.No. 39 but according to them the survey No. 39 consists of Ac.9.22 guntas only and it cannot therefore be said that the plaintiff is the owner of the extent of Ac.0.39 gts. which constitute S.No. 51/2 and 51/3. The plaintiff''s case is that he was not aware whether this 0.39 gts. constitute a separate survey number as they are contiguous with survey No. 39. He and his father-in-law have been in possession and enjoyment of the said extent of the suit land for over 45 years and that the plaintiff raised mango trees in S.No. 39 including the suit survey number nearly forty years back. In arriving at the conclusion that the plaintiff acquired title by adverse possession the lower appellate Court considered the oral evidence, and documentary evidence aiduced by both the sides in detail. Apart from the plaintiff being examined as P.W.1, he examined P.Ws.2 and 6 who are the neighbours who spoke about his possession and enjoyment for more than 40 years; P.Ws.3 and 4 who worked as farm servants under him i.e. the plaintiff, during the relevant period who spoke about the raising of the mango trees in this survey number also. P.Ws.5 and 7 Sarpanch and Patwari of the village respectively deposed that the mango trees were in existence in the suit land and the plaintiff has been in possession and enjoyment of the same for more than 45 years. P.W. 11 the Assistant Director of Agriculture, inspected the mango trees and his report by Ex. A-9 opined that the age of the mango trees is not less than 37 years at the time of his inspection. He also referred to the evidence of Patwari who stated that he was not aware that they are separate survey Nos. 51 /2 and 51 /3. The lower appellate Court also adverted to notice Ex.A-1 and the reply in Ex.A-2 in which the government did not deny that the mango trees were planted by the plaintiff. It also adverted to Ex. A-4 paisal patti of 1976 wherein it was mentioned that the plaintiff had been enjoying the survey Nos. 51/2 and 51/3 hom times immemorial and that he planted mango trees and enjoying the usufruct. Ex.A-5 was also relied on to show that there are 14 mango trees planted by the plaintiff in the suit land S.Nos. 51/2 and 51 /3 and he has been in possession and enjoyment of the land. He did not place any reliance on Exs. B-5 to B-41 which are the licences and receipts issued by P.W.5 and his predecessor as none of the licence and receipts show any survey number, and the huts are in existence in the suit survey No. 51/2 and 51/3. According to Exs. A-7 and A-8, coupled with the evidence of P.Ws.9 and 10, it shows that the encroachers have been evicted in 1975. The lower appellate Court did not place any reliance on Ex.B-42 to B-53 i.e. Pahani patrikas from 1961 62 to 1975-76 on the ground that in most of these pahanies Columus relating name of the possessor were kept blank and these documents do not show the continuous possession of the defendants. It also adverted to Exs. B-1 and B-2 wherein the plaintiff stated that he is in possession of the land for the last 50 years wherein he planted mango trees and also raised construction and so the appellate Court came to the conclusion that the appellant was in open and continuous possession of the land by raising mango trees to the knowledge of the defendants as even patwari P.W.7 admitted the existence of S.Nos. 51/2 and 51/3. It therefore cannot be said that the lower appellate Court''s finding is perverse or based on irrelevant considerations. The lower appellate Court adverted to the entire evidence on record and on appreciation of the same came to the aforesaid conclusion.

Sri C.R. Pratap Reddy, the learned counsel for appellants in SA 273/90 contended that the plaintiff has not proved the continuous, open possession of the suit land to the knowledge of the defendants. According to him, the plaintiff specifically did not mention from what date his possession was adverse. Even according to the plaintiff, the suit land is treated as part of survey No. 39 and he considered himself to be the owner and therefore the possession cannot be adverse to that of the government. He invited my attention to the decision in Kathaval Sudaly Vs. Arumugha Panicker and Others, wherein it was held: that

"A party entering into possession of a property under an alienation which does not purport to effect as absolute transfer in the property, would in the event of that transfer turning out to be invalid obtain by continued possession a prescriptive title only to that limited right.... But when the entry into possession is not wrongful no question of obtaining a title by prescription could or would possible arise".

It was also held that "possession is never considered adverse if it can be referred to a lawful title. "The aforesaid decision has no application to the instant case as there is no transfer of any limited right to the plaintiff and the plaintiff treated this suit property as his throughout. In Nandipati Ramamma v. Nathani Appaiah and Nine Ors. 1956 (2) An.W.R. 137 a Division Bench of this Court held that

"the quality and the extent of the right acquired by possession depends on the claim accompanying it, that is to say animus possedendi. It is not mere possession but the character of the possesion of the claimant that counts. Possession which is not an invasion of the title of the owner is not adverse. It is law that possession is not considered to be adverse if it is referable to a lawful title."

But in the instant case, it was found that the plaintiff has no title to the disputed survey numbers but he was in posssession and enjoyment of the same openly and continuously for over a period of forty years. Hence the aforesaid decision has no application to the case on hand. He relied on the decision in S.M. Karim Vs. Mst. Bibi Sakina, wherein their Lordships of the Supreme Court held that

"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required atleast to show when possession becomes adverse to that the starting point of limitation against the party affected can be found."

But in the said case their Lordships of the Supreme Court found that there is no evidence in that case to show when possession became adverse and a mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years of that the plaintiff had acquired an absolute title was not enough to raise such a plea. But in the instant case the plaintiff specifically pleaded that he has been in possession and enjoyment of the land for nearly more than 45 years and that he planted mango trees in the said land also 40 years back and that therefore he is in possession and enjoyment of the said land continuously, openly and to the knowledge of everybody including the government. The lower appellate Court on the basis of evidence adduced found that the plaintiff has been in adverse possession for more than 40 years in respect of the land. In K. Rajaiah v. T.V. Krishna Naidu 1990(1) APLJ 73 this Court held that the possession for the whole period of 60 years should be affirmatively proved in order to claim adverse possession against the government, under Art. 149 of the old Limitation Act, which is reduced to 30 years under 1963 Act. There cannot be any dispute about the principle laid down that mere probabilities and evidence of long possession is not sufficient and the plaintiffs must prove their continuous possession for over the statutory period. He also relied on the decision in Angati Venkateshwarlu@Appalakonda@Konda Vs. Maharanipeta Military Mosque, wherein it was held that:

"Fundamental requirements of prescription of title by adverse possession that the adverse possessor should assert a title in himself openly and in derogation of the title of the true owner for a continuous period of twelve years and that in the absence of evidence about the animus with which the plaintiff was in possession cannot be said to be adverse."

There cannot be any quarrel with the above said principle. But in the instant case, the lower appellate Court found that the plaintiff has been in possession of the property for more than 40 years and that he raised mango garden and asserted the rights of ownership over the suit property. He invited my attention also to the State of Andhra Pradesh v. Kattubadi Fakrubi and Ors. AIR 1962 AP 518 wherein this Court held; that

"A party, who sets up a title by adverse possession, has to affirmatively prove his or her possession for over the statutory period and presumptions and probabilities cannot be substituted for evidence."

But in the instant case it was found that the plaintiff raised mango garden about 40 years and has been in continuous possession. In the The State Bank of Travancore Vs. Aravindan Kunju Panicker and Others, it was held that permissive possession cannot be convested into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of twelve years or more. There cannot be any doubt about the aforesaid principle. But in the instant case, it is not the case of the plaintiff that he is in permissive possession. On the other hand his case is that he has been in continuous possession of the property by raising mango trees about 40 years back claiming the land as his. Achal Reddy v. Ramakrishna Reddiar and Ors. 1992 (1) APLJ (SC) 33 is a case of vendee, who was put in possession of the land under agreement of sale while parties contemplated execution of registered sale deed subsequently, and it was held by their Lordships of the Supreme Court that in such a situation the vendee recognises the title of the vendor and as such cannot claim his possession to be adverse against the vendor. It is well settled policy of law that the possession is never considered adverse if it is referable to a lawful title. But in the instant case the plaintiff is not put in possession under agreement of sale and on the other hand he asserted his ownership and claimed to be in possession for more than 45 years and therefore, the above case is not helpful to the appellant. In M.P. Kadungon and Others Vs. E.K. Kadungon and Others, it was held that the possession of the party claiming title by adverse possession must be shown to be hostile to other party. The aforesaid case has no application to the instant case as the lower appellate Court found on evidence that the plaintiff claimed hostile title. Thus, the contention that no starting point of limitation was mentioned in the plaint and that there is no evidence about the continuous possession and that there is no animus cannot be accepted in view of the finding of the lower appellate Court. The submission that on account of Ex.B.1 application, the plaintiff surrendered all rights if any acquired by adverse possession cannot also be accepted as in the said application the plaintiff asserted his possession over a long period and applied for patta to avoid any controversy by way of abundant caution.

For all the aforesaid reasons, I do not see any merit in the second appeals and they are accordingly dismissed without costs.