Vadapalli Satyanarayana and Another vs Nadela Narasimha Rao

S. Acharya, J.—The Defendants have preferred this appeal against the confirming decision of the Subordinate Judge, Jeypore in Title Appeal No. 2 of 1970.

The Plaintiff''s case in short is that the suit property originally belonged- to one Narasingha Baxi Patro who sold the same to K. Parthasarathi (P.W.1) as per Ext. 1 dated 7-6-1950. Thereafter K. Parthasarathi sold the suit property in 1956 to the Plaintiff under an unregistered sale deed Ext. 2 for a consideration of Rs. 501-. Defendant No. 1 in 1950 constructed a temporary thatched structure on the suit land on taking Plaintiff''s permission to that effect. But in 1967, the Defendants alleged that Defendant No. 1 sold the suit property to Defendant No. 2 and gave delivery of possession to Defendant No. 2. Having come to know about the said illegal transaction between Defendants 1 and 2, the Plaintiff instituted this suit for declaration of his title to and delivery of possession of the suit land.

The Defendant''s case is that the suit site was lying vacant and Defendant No. 1 was possessing the same ever since 1940 and thus he perfected his tight to the suit land by adverse possession. After acquiring right tn. the suit land by adverse possession Defendant No. 1 transferred the same on his own right to Defendant No. 2 in 1967 by an unregistered deed with a condition that he would in future pay Rs. 500/ - to Defendant No. 1.

Both the Courts have held that K. Parthasarathi, the vendor of the Plaintiff had acquired good right title and interest over the suit property by purchasing the same from the original owner Narasingha Baxi Patro as per Ext. 1 dated 7-6-1950. It is also held by both the Court that the said K. Parthasarathi, having good title to the suit property and being in possession of the same, sold the suit land to the Plaintiff in 1956 as per the unregistered sale deed Ext. 2 for Rs. 50/ -, and delivered possession of the same to the Plaintiff. On the aforesaid findings the Courts below have held that the Plaintiff has acquired right, title and interest over the suit land. Both the Courts below on a convincing discussion of the evidence on record have also arrived at the finding that Defendant No. 1 was in permissive possession of the suit land and neither Defendant No. 1 nor Defendant No. 2 acquired right to the suit land by adverse possession. They also categorically find that soon after the execution of the unregistered sale deed Ext.2 in 1956 the vendor of the Plaintiff delivered possession of the suit land to the Plaintiff.

Mr. Raju, the learned Counsel appearing for the Appellants, urges that on the evidence on record it is not established that K. Parthasarathi after executing the unregistered sale deed Ext. 2 in favour of the Plaintiff actually delivered possession of the same to the Plaintiff. According to Mr. Raju there is evidence on record to show that the vendor did not actually go upon the land in question with the vendee and delivered possession of the same by measuring and demarcating the same, and so nu delivery of possession was effected in favour of the Plaintiff as contemplated under law.

In this case the vendor (P.W.1) and two other persons P.ws.5 and 7 - have been examined to prove that the vendor gave delivery of possession of the suit property to the Plaintiff, The vendor himself has testified to the fact that he sold the suit site to the Plaintiff as per Ext. 2 and gave delivery of possession of the same to the Plaintiff. In cross-examination he stated that while delivering possession of the said land to the Plaintiff he did not measure the same but he pointed out the suit land to the Plaintiff and asked him to take possession of the same. Though in cross-examination he has stated that he did not go upon the suit site proper to give delivery of possession, yet from his evidence it is quite clear that the suit site at the time of the aforesaid sale was lying vacant, and the vendor pointed out the said small plot of land to the Plaintiff asking him to take possession of the same and the Plaintiff took possession of that plot. That fact has been suitably corroborated by the evidence of PWs. 5 and 7, the two other independent witnesses to that effect. The Courts below on a discussion of the evidence of PWs. 1, 5 and 7 have arrived at the concurrent finding of fact that the vendor K. Parthasarathi actually delivered possession of the suit site to the Plaintiff in 1956.

As possession of the suit site had been delivered to the Plaintiff in the manner aforesaid, the Plaintiff took possession of the same, and no boundary dispute arose on such delivery and taking over of possession, it was not necessary on the part of the vendor to have effected delivery of possession by measurement and demarcation of the same.

Mr. Raju, in support of his above-mentioned submission, drew my attention to a decision reported in Sohan Lal and Others Vs. Mohan Lal and Others, . That decision has been dissented from by a decision of this Court in Trilochan and Another Vs. Bamadev Pradhan and Others, . In the latter-mentioned case of this Court, Patra, J. (as he then was) on a consideration of various conflicting decisions on this point of different High Courts, has observed that the view on this point taken by the Patna, Madras and Andhra Pradesh High Courts, in the decisions referred to therein, appears to be reasonable and correct and is one designed to advance the intention behind Section 54, Transfer of Property Act. For good reasons the view taken in the above mentioned Allahabad decision was not accepted by Patra, J. and I respectfully agree with Patra. J''s reasoning in dissenting from the said Allahabad view.

I am of the opinion that in the context of the facts of this case it was not necessary for the vendor to have given delivery of possession of the suit property to the Plaintiff in the specific manner as suggested by Mr. Raju. Both the Courts on a very convincing consideration of the relevant evidence on record have arrived at the concurrent finding of fact that possession of the suit property was actually and suitably delivered by the vendor to the Plaintiff in 1956 when the Plaintiff purchased the same as per Ext. 2.

Mr. Raju has not assailed any other finding of the Courts below.

There is nor merit in this appeal and it is accordingly dismissed, but in the circumstances without costs.