IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH MONDAY, THE SECOND OF JUNE TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
A.S.No.1125 of 1994
Between :
C. Jagannatham (Died per LRs), R/o.Vikarabad, Ranga Reddy District, and others.
…Appellants/Defendants Vs.
Mudda Mallappa (Died per LRs), R/o.Vikarabad, Ranga Reddy District, and others.
…Respondents/Plaintiffs Counsel for the Appellants/ Defendants : Sri N.Vasudeva Reddy Counsel for the Respondents/ Plaintiffs : Sri Manoj Kumar Shah The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
A.S.No.1125 of 1994
JUDGMENT :
This appeal is filed challenging the judgment and decree dt.23.05.1985 in OS.No.192 of 1985 on the file of the Addl. Sub-Ordinate Judge, Ranga Reddy District at Saroornagar, Hyderabad.
THE PLAINT
2. On 20.03.1989, the 1st plaintiff filed the above suit for declaration of title and perpetual injunction in respect of extent 327 Sq.Yds. of land at Alam Pally Road, Vikarabad, Ranga Reddy District.
3. Pending suit, the 1st plaintiff died and plaintiff Nos.2 to 9 were impleaded as his legal representatives. The 1st defendant also died and his legal representatives were added as defendant No.s 2-10.
4. In the plaint, 1st plaintiff contended that he is the owner of the plaint schedule property which is a vacant site of 327 Sq.Yds., mentioned above; that one Chikatimalla Nagaiah (for short “Nagiah”), himself, Kowkuntla Siddilingaiah and B. Ramalingappa purchased a dak bungalow/inspection bungalow with an extent of Acs.2.15 gts. in Sy.No.43 and Acs.2.00 gts. in Sy.No.45 in the year 1346 Fasli for a sum of Rs.4,100/- in the name of L a te Nagaiah and that all the above named persons equally contributed towards the sale consideration; that the transaction was a benami transaction in the name of Nagaiah; after 1346 Fasli and after the death of Nagaiah, the said land was partitioned among the four persons and each one was in separate possession and enjoyment as absolute owners exercising rights of ownership; and in the said partition the 1st plaintiff got an extent of Acs.2.10 gts. The 1st plaintiff pleaded that there was mutation in the Khasra Pahani in the year 1954-55 according to actual possession; that he constructed a house and a cinema theatre previously and was extending the structures; on a complaint lodged by 2nd defendant in the year 1950 before the Collector, Medak he paid Rs.1,200/- and purchased under an agreement-of-sale Ex.A.4 dt.04.12.1950, Acs.0.13 gts. of land with a passage; that in view of this purchase the total extent belonging to him became Acs.2.23 gts; and the suit schedule property is part and parcel of this extent of Acs.2.23 gts. and that the defendants have no land left in Sy.Nos.43 or 45. He contended that one Chikatimalla Chinnaiah (for short “Chinniah”) was the brother of Nagaiah; that Chinnaiah had filed a suit for partition and separate possession against plaintiffs in the Court of the Munsiff Magistrate, Vikarabad in the year 1959; it was numbered as Suit No.9/1 of 1959 and was dismissed on 17.12.1959; and an appeal AS.No.30 of 1960 was filed in the Court of the II Addl. Chief Judge, City Civil Court, Hyderabad which was also dismissed on 06.12.1962. He further contended that even otherwise he perfected his title by long standing adverse possession and prescription since 1936 AD as he alone had paid land revenue to the Government. He alleged that defendant no.s 1 and 2 came to the plaint schedule property along with ten labourers to start construction on 02.09.1981 at 12.00 noon at Vikarabad; when he resisted them, they showed that there was a permission granted to 1st defendant on 05.09.1981 by the Gram Panchayat; and therefore, he filed the present suit for the above reliefs.
5. The 1st defendant and the 2nd defendant are sons of Chinnaiah, the brother of Nagaiah, in whose name the land admeasuring Acs.4.15 gts. was purchased from the State Government mentioned above.
THE WRITTEN STATEMENT OF DEFENDANTS
6. The 1st and 2nd defendants filed written statement contending that only Nagaiah purchased the above lands and obtained a sale deed in his name; that 1st plaintiff is not the owner and possessor of the plaint schedule property; there was no oral partition in 1950 between Nagaiah, the plaintiff, Kowkuntla Siddilingaiah and B. Ramalingappa. They alleged that 1st plaintiff, without consent of any of the shareholders, illegally constructed a cinema over a portion of a land forming part of Acs.4.15 gts. They denied that the Ex.A3 agreement-of-sale dt.04.12.1950 was executed by father of the defendants in favour of 1st plaintiff agreeing to sell Acs.0.13 gts. of land to him and contended that it is not admissible for want of stamp and registration. They alleged that the plaintiff constructed a residential house also without the consent of the other co-sharers and without any partition; that they are in continuous possession and enjoyment of the plaint schedule property and they have raised a basement therein; that OS.No.9/1 of 1959 was only rejected on technical grounds and was not dismissed and its dismissal has no bearing on the present suit; that as the plaint schedule property was not in possession of 1st plaintiff at any time, there was no question of adverse possession; that the entries in the Revenue Records do not establish the title or ownership of the 1st plaintiff over the suit land or of the extent of Acs.2.23 gts. as alleged by plaintiff; that all the necessary parties, who were co- owners of the property, were not added as parties to the suit; and that the 1st plaintiff could not file the suit for a bit of land when the defendants denied the title and possession of the 1st plaintiff for the entire Sy.Nos.43 and 45.
THE ISSUES
7. The trial court framed the following issues :
“1. Whether the plaintiffs are entitled for declaration that they are owners of the suit land admeasuring 327 sq.yds. bounded East by : Road leading from Vikarabad to Alampally, on West : by the Plaintiff’s house; on South by : the house and shops of the plaintiff and on North by a Narrow lane separating the land of the Plaintiffs and of C. Rajamanemma as prayed for ?
2. Whether the Plaintiffs are entitled for permanent injunction restraining the defendants, their agents, servants, relatives and any person or persons on their behalf from interfering with the plaintiffs possession and enjoyment of the plaint schedule property ?
3. Whether the alleged map prepared by the plaintiffs does not represent true facts ?
4. Whether the suit is bad for non-joinder of necessary parties who are co-owners of the property ?
5. To what relief ?”
8. Pending suit, the 1st defendant died and his legal representatives were impleaded as defendant no.s 2-9 and the original 2nd defendant was shown as defendant no.10. The plaintiffs examined PWs.1 and 2 and marked Exs.A.1 to A.73. The defendants examined DW.10 and marked Exs.B1 to B.29.
THE TRIAL COURT’S JUDGEMENT
9. By judgment and decree dt.23.05.1994, the trial court decreed the suit.
10. It held that the entire property is known as Dak Bungalow property and is purchased under a registered sale deed in the year 1346 Fasli, the certified copy of which is Ex.B.5; that Jaihind Talkies was situated in it; that recitals in Ex.A.7, a statement given by defendant No.10 before the Dy.Collector on 18.12.1950 proves that 1st plaintiff, the father of D.W.1 by name Chinnaiah, K.Siddalingaiah and B.Ramalingappa purchased it; although Ex.B.5 shows that only Nagaiah purchased the entire property, Ex.A.7 referred to above and Ex.A.3, the agreement of sale dt.04.12.1950 executed by Chinnaiah show that Nagaiah was not the sole owner of the above property; that Ex.A.3, even if it is a compulsorily registerable document, necessary stamp duty and penalty can be collected and it can be looked into for a collateral purpose; that the 10th defendant admitted that he attested it; that the 10th defendant also admitted that he gave Ex.A.7 statement; the 10th defendant as D.W.1 admitted that after the purchase of the above property, K.Siddalingaiah, B.Ramalingappa and Mallappa joined as partners; that D.W.1 in his cross-examination had deposed that these four persons entered into partnership to construct a market yard in the Dak Bungalow and get profits but the market yard was not constructed and the above property was partitioned prior to 1950; that the shares of B.Ramalingappa and K.Siddalingaiah were given to them and both of them got about one acre in the said property towards their share. It held that this evidence of D.W.1 would show that the Dak Bungalow property was partitioned orally.
11. It further held that D.W.1 had given inconsistent evidence; initially he had deposed that only Nagaiah purchased the property; later he deposed that Siddalingaiah, Ramalingappa and the 1st plaintiff joined Nagaiah as partners and that the property was partitioned and Ac.1.00 of land was allotted to Ramalingappa and Siddalingaiah and the 1st plaintiff constructed a big house/a hotel shed and cinema theatre in the share of the property given to him; that this evidence of D.W.1 corroborates the case of the plaintiffs.
12. It held that the burden is on the defendants to say that 1st plaintiff had acquired rights over the extent of Ac.2.23 gts. of land since the plaintiffs allege that they are in possession of the said extent. It held that although Ex.A.3 is only an agreement of sale, the extent of Ac.0.13 gts. of land was purchased under it by 1st plaintiff and that 1st plaintiff acquired rights over the Ac.0.13 gts. of land. It held that Exs.A.1 and A.2 pahanis indicate that 1st plaintiff is enjoying Ac.2.23 gts. and although entries in Revenue Records do not create any rights, if the entries are incorrect, it is for defendants to take appropriate action for their correction. It further held that D.W.1 did not depose how much property was allotted to them or to Nagaiah or to 1st plaintiff in the oral partition and it is for the defendants to say whether the plea of 1st plaintiff is correct or not and whether 1st plaintiff is speaking falsehood and that defendants have not placed any material before the Court to disprove the plaintiffs’ version. It also stated that D.W.1 did not say the extent of the house and cinema theatre allegedly constructed by 1st plaintiff; no material is placed by parties that specific portions were allotted to them; and in view of recitals in Exs.A.1 and A.2 it has to be taken that 1st plaintiff is in possession of Ac.2.15 gts.
13. It also relied upon Ex.A.43, the true copy of a plan of a house bearing No.2-70/B allegedly prepared by one Smt. C. Rajamanemma seeking application for permission to make construction and that Ex.A.43 plan (sanctioned on 18.04.1979) showed that there is a land and building of 1st plaintiff adjacent to the proposed constructions of C. Rajamanemma. It presumed that C. Rajamanemma is related to the defendants and there was no need for her to show the land and building of 1st plaintiff in the said plan if they were really not in existence. It held that the said Ex.A.43 is sufficient to hold that the suit schedule property belongs to plaintiffs.
14. It also held that the contents of Ex.A.16/Affidavit filed in IA.No.18 of 1959 in OS.No.9/1 of 1959 on the file of the District Munsiff, Vikarabad were sufficient to hold that the defendants were not in possession of the property and that the 1st plaintiff was in possession of the property.
15. Challenging the same this appeal is filed.
THE CONTENTIONS OF THE COUNSEL FOR THE PARTIES
16. The counsel for appellants contended that the burden of proof in a suit for declaration of title lies on the plaintiff but the trial court wrongly placed the burden on defendants to disprove the plaintiffs’ case; that the plaintiffs have not shown how Chinnaiah got the property f r o m Nagaiah in whose name admittedly Ex.B.4/B5 stands; that if the property belonged to Nagaiah, without impleading the legal heirs of Nagaiah, the suit or the appeal could not have been proceeded with; that Exs.A.43,A7 and A.16 could not have been made the basis for decreeing the suit of the plaintiffs; that the plaintiffs have failed to show that the property Acs.4.15 gts. was purchased benami in the name of Nagaiah by four persons including 1st plaintiff or that there was a partition among them in 1950; that in that partition the 1st plaintiff got Acs.2.10 gts.; that no boundaries, extents or measurements of the said Acs.2.10 gts. were spoken to by the plaintiffs’ witnesses; that the plaintiffs have also failed to establish that the plaint schedule property forms part of that Acs.2.23 gts. which is said to be the property of the 1st plaintiff; and therefore, the judgment of the trial court deserves to be set aside. He relied upon the following decisions in : Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and
[1]
others , Moran Mar Basselios Catholicos v.
[2]
Thukalan Paulo Avira and others , Union of India and others v. Vasavi Cooperative Housing Society
[3]
Limited and others , Chakicherla Audilakshmamma
[4]
v. Atmakuru Ramarao and others , Durga Das v. The
[5]
Collector and others , and S . K . Saldi v. General Manager, U.P. State Sugar Corporation Ltd and
[6]
another .
17. On the other hand, the counsel for respondents supported the findings of the trial court and contended that they do not warrant any interference in appeal. He placed strong reliance on Exs.A.43, A.7 and A.16 in support of his plea. He also took me through the other documents in support of his plea that C. Rajamanemma is the daughter- in-law of Nagaiah (in whose name the sale deed Ex.B.5 is obtained) and contended that there is an admission by her of the title of the 1st plaintiff in Ex.A.43 and on the basis of such an admission, the suit was rightly decreed. He relied upon the following decisions: Vathsala Manickavasagam and others v. N . Ganesan and
[7]
another and State of AP and others v. M/s. Star [8] Bone Mill & Fertiliser Co. .
18. I have noted the submissions of both sides.
THE ANALYSES OF THE SUBMISSIONS
19. The following points arise for consideration :
(i) whether the trial court correctly placed the burden of proof ?
(ii) Whether the appreciation of evidence by the trial court is correct ?
Point (i):
20. This being a suit for declaration of title and perpetual injunction, the burden is on the respondents/plaintiffs to make out and establish a clear case for granting such a declaration. I n Moran Mar Basselios Catholicos (2 supra), in a suit filed by Trustees for a declaration of title as trustees and for possession of Trust properties and other incidental reliefs, the Supreme Court held that plaintiffs must succeed on the strength of their own title. I n Union of India and others (3 supra), the Supreme Court held that in a suit for declaration of title, the burden always lies on the plaintiff to establish his case and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff and even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiff’s own title, the plaintiff must be non-suited.
21. So unless the plaintiffs (i) establish that the 1st plaintiff was also one of the co-owners of the extent of Acs.4.15 gts. in Sy.Nos.43 and 45 at Vikarabad, (ii) that there was a partition of this property in which they got Acs.2.10 gts, (iii) prove the location of these Acs.2.10 gts. as well as the Ac.0.13 gts. which the 1st plaintiff had allegedly purchased under the agreement of sale Ex.A.4 and (iv) unless they show that the plaint schedule property of 327 Sq.Yds. forms part of this Acs.2.10 gts., the plaintiffs cannot succeed.
22. The trial court erred in holding that the burden is on the defendants to prove that the plea of the 1st plaintiff is incorrect and to show that he is speaking falsehood. The trial court has wrongly placed the burden of proof on the defendants to disprove the plaintiffs’ case instead of holding that the burden is on the plaintiffs to prove their case. This point is answered accordingly in favour of the appellants/defendants and against the respondents/plaintiffs.
Point (ii):
23. According to the case of the plaintiffs, Late Nagaiah, the plaintiff, Kowkuntla Siddilingaiah and B. Ramalingappa purchased an extent of Acs.2.15 gts. in Sy.No.43 and Acs.2.00 gts. in Sy.No.45 in the year 1346 Fasli for a consideration of Rs.4,100/- in the name of Late Nagaiah benami and all these persons equally contributed towards the sale consideration.
24. It is not disputed by plaintiffs that this purchase is under Ex.B.5 sale deed of which Ex.B.6 is the translation. The said sale deed mentions that the Divisional Engineer PWD at Medak District on behalf of HEH the Nizam’s Government sold an Inspection Bungalow/Dak bungalow and attached open land at Vikarabad to Late Nagaiah for a sum of Rs.4,100/-. No boundaries, no extents and no measurements are mentioned in Ex.B4/5. No sketch is also appended to it.
25. The plaintiffs have mentioned in the plaint schedule an extent of 327 Sq.Yds. at Alampally Road, in Vikarabad with specified boundaries but they have not mentioned any survey numbers in the plaint schedule.
26. The 2nd plaintiff as PW.1 stated that the plaint schedule property is part and parcel of the Dak Bungalow property but at one place stated that it is part of Sy.No.43 and at another place stated that it is part of Sy.No.45. He admitted that he is not aware of the facts and circumstances of the sale transaction. In view of this evidence of PW1, in my opinion, the plaintiffs are unaware as to the exact location of the plaint schedule property.
27. PW1 also stated that (i) he did not know whether during his lifetime, Nagaiah conveyed the Dak Bungalow property in favour of 2nd plaintiff or his father, the 1st plaintiff or the paternal uncle of 2nd plaintiff (ii) there is no document to evidence purchase of the plaint schedule property by 1st plaintiff or by the father of the defendants,
(iii) he did not file any documents to show that he is in possession of Acs.2.23 gts. in Sy.Nos.43 and 45. He pleaded ignorance of the amount of money paid by his father for the purchase of the said Dak Bungalow property and stated that he “heard” that the Dak Bungalow property was divided among four persons; although he stated that he has seen a document showing that the Dak Bungalow was partitioned, except Ex.A.7 he did not refer to any other document.
28. No doubt, in his cross-examination, DW.1 stated that Chinnaiah, 1st plaintiff and the two other persons had entered into a partnership to construct a market yard in the Dak Bungalow property, that they could not do so and later partitioned the property giving one acre each to Ramalingappa and Siddalingaiah and that the said partition occurred prior to 1950.
29. Since Nagaiah is the purchaser as per Ex.B4/5 of the Dak Bungalow property, he has to be presumed to be the owner thereof. There is no explanation forthcoming regarding the motive for purchasing the property benami in name of Nagiah and that the 1st plaintiff, Kowkuntla Siddilingaiah and B. Ramalingappa or Chinniaah paid the sale consideration. None connected with the said purchase (such as attestors) have been examined by plaintiffs. No member of Nagaiah’s family has been made a party to this suit or is examined to prove the fact that sale consideration did not proceed from Nagaiah, that it was paid by these 4 persons and he was a benamidar for them. It appears as if an attempt is being made to deprive the family members of Nagaiah of the plaint schedule property behind their back.
30. As Nagiah was the owner of the property and there is nothing to show that he is a benamidar for Chinnaiah, 1st plaintiff and these two persons, the latter could not have partitioned Nagaiah’s property, i.e., the Dak Bungalow.
31. Assuming for the sake of argument without conceding that Nagiah was a benamidar as alleged by plaintiffs for these 4 persons (the 1st plaintiff, Kowkuntla Siddilingaiah and B. Ramalingappa or Chinnaiah), if all these 4 persons had equally contributed for the purchase (as pleaded in the plaint), then each should get 1/4th of the extent of Ac 4.15 gts i.e Acs.1.04 gts only and not more. The plaintiffs have not explained how the 1st plaintiff would get Acs.2.10 gts. out of it, which is more than Ac.1.04 gts.
32. Even if the alleged partition is true, still the boundaries of the land allotted to each of these 4 persons ought to be proved and the plaint schedule property must be shown to have fallen in the share allotted to 1st plaintiff.
33. But PW1 stated that he cannot say the extents of lands that fell to the share of his father, the 1st plaintiff or to Nagiah during the partition in 1950. So plaintiffs do not know what are the boundaries of Acs.2.10 gts which allegedly fell to the share of 1st plaintiff in the alleged partition and so they are not aware as to the exact location of the plaint schedule property vis-à-vis the land allegedly obtained by 1st plaintiff in the partition. So it is difficult to accept the contention of the plaintiffs that the plaint schedule property falls within the Acs.2.10 gts. allotted to 1st plaintiff in the alleged partition.
34. Ex.A.16 is an affidavit allegedly given by Defendant no.10 in IA.No.18 of 1959 in OS.No.9/A/59 on the file of the District Munsiff, Vikarabad. The said suit was filed for partition and separate possession of the land purchased under Ex.B4/5. The said suit was filed by the father of 10th defendant, i.e., Chinnaiah, the brother of Nagaiah. It is not disputed that the said suit was dismissed on 17.12.1959 without it being numbered on the ground that the plaintiff therein was unable to state what the extent of the property is, what his exact share therein is, and that the plaint was vague, ambiguous and hastily drafted. The judgment in that suit is marked as Ex.A.13. An appeal AS.No.30 of 1960 was filed by Chinnaiah before the II Addl. Chief Judge, City Civil Court, Hyderabad. It also failed and was dismissed on 06.04.1962.
35. Ex.A.7 is the statement of the 10th defendant before the Dy. Collector, stating that there was a dispute with regard to Jai Hind Theatre land which had been purchased by his father Chinnaiah, 1st plaintiff/ Kowkuntla Siddilingaiah and B. Ramalingappa and that although they intended to establish a market yard (Gunj) therein they could not do so and that the land was distributed among the said four partners.
36. Since the sale deed Ex.B.5 shows that purchase of the property is in the name of Nagaiah only and there is no material to show that his brother Chinnaiah somehow acquired right in the property purchased by Nagaiah under Ex.B.5, in my view, the plaintiffs cannot rely on the affidavit Ex.A16 or the statement Ex.A7 given by DW.1 in support of their case. Unless Chinnaih is proved to have some right, title and interest in the property purchased by Nagiah, the statements of DW1 do not help plaintiffs.
37. In my opinion, any statement by 10th defendant regarding the ownership of the land in Ex.A.16 or Ex.A.7 cannot help the plaintiffs’ case since it is settled law that
[9]
title cannot pass by mere admission .
38. The counsel for the respondents placed strong reliance on Ex.A.43, a plan allegedly submitted to the Gram Panchayat, Vikarabad by Smt. C. Rajmanimma. In that plan, certain land and building belonging to 1st plaintiff is shown in the south. The said C. Rajmanimma is not examined by the respondents/plaintiffs to show that she had submitted it to the Gram Panchayat, Vikarabad. Although the counsel for respondents contended that she is the widowed daughter-in-law of Late Nagaiah and the wife of his son Chinnaramulu (Ex.A.20, a document in the nature of a Memorandum of Understanding to which the father of the defendants Chinnaiah, Chinnaramulu, S/o.Nagaiah and Manikyam, S/o. Ramaiah are parties), no material is placed on record by the respondents to prove that C. Rajmanimma is the wife of Chinnaramulu. Ex.A.34 resolution No.10 (34) dt.16.04.1980 communicated by the Executive Officer of the Gram Panchayat, Vikarabad dt.03.10.1981 to C. Rajmanimma describes her as the wife of Ramulu and not as the wife of Chinnaramulu. Therefore, it is not possible to place reliance on Ex.A.43 and hold that family members of Late Nagaiah admitted the title of 1st plaintiff to the plaint schedule property. So the finding of the trial court about the title of the 1st plaintiff on the basis of Ex.A.43 cannot be sustained.
39. In Vathsala Manickavasagam (3 supra), cited by the counsel for the respondents, the Supreme Court held that an admission, which constitutes a substantial piece of evidence, can be relied upon for proving the veracity of the facts incorporated therein. In that case, there was a tacit admission in a letter written by the 1st respondent to the 3rd plaintiff that the properties which were subject matter of the suit were the joint family properties in which the plaintiffs and the 1st respondent were entitled for equal share. The Court held that such admission binds the 1st respondent. The principle laid down in this case is unexceptionable but it does not apply in the present case because there is no such admission about the title of 1st plaintiff by any legal heir of Late Nagaiah. Any statement by DW.10, the son of Chinnaiah, the brother of Nagaiah, who is not proved by the plaintiffs to be the owner/shareholder of the property, cannot help the plaintiffs.
40. The counsel for the respondents also placed reliance on State of A.P. (4 supra) wherein Section 110 of the Evidence Act was considered. In that case it was held that possession may prima facie raise a presumption of title but such presumption can hardly arise when the facts are known and that when facts disclose no title in either party, possession alone decides. The Supreme Court held that this applies only in a case where there is either no proof, or very little proof of ownership on either side. It held that the maxim “possession follows title” is applicable in cases where proof of actual possession cannot reasonably be expected, for instance in the case of waste lands, or where nothing is known about possession one way or another. It held that the presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party.
41. In my opinion, this decision also has no application to the present case since the title is proved to be with Late Nagaiah (as can be seen from Ex.B.5 sale deed) and it is not proved that Late Nagaiah is the benamidar for the 1st plaintiff and others.
42. The counsel for respondents also relied on Ex.A.68, an order dt.26.07.1993 in WPMP.No.10465 of 1993 and WVMP.No.1046 of 1993 in WP.No.8323 of 1993 passed by this Court. The 10th defendant had approached this Court challenging G.O.Ms.No.203 issued by the State Government confirming the license granted by the Joint Collector, Ranga Reddy District to M/s.Manoranjan Screen Video Theatre, a Firm, represented by one P. Sangameswara Rao for running a video parlour at premises No.2-94/2, Vikarabad. Although initially this Court granted an interim order, the same was vacated under this order. The order under Ex.A.68 was questioned by the 10th defendant in WA.No.854 of 1993. The said WA was dismissed in August, 1993. This is marked as Ex.A.69. Exs.A.68 and A.69 which do not relate to the plaint schedule property (which is a vacant site admittedly) cannot come to the aid of the respondents. The reliance placed on them by the counsel for the respondents is totally misplaced.
43. I also disagree with the conclusion of the trial court that Ex.A.43 and A.16 would prove that the plaint schedule property belongs to the plaintiffs and that they are entitled for grant of relief of declaration and for perpetual injunction. I also do not agree with the observations of the trial court that it is for DW.1 to say as to how much property was allotted to the share Late Nagaiah or 1st plaintiff in the oral partition. The trial court presumed, without any basis, that the case of the plaintiffs is correct and was proved, wrongly placed the burden of proof on the defendants and did not properly appreciate the evidence on record.
44. It is no doubt true that in para.8 of the plaint, the 1st plaintiff has also pleaded acquisition of title for the plaint schedule property by way of adverse possession and prescription since 1346 Fasli. Having pleaded in plaint that 1st plaintiff acquired the plaint schedule property in an oral partition among himself, Chinnaiah, Siddalingaiah and Ramalingappa after the property was purchased by them benami in the name of Late Nagaiah and having failed to prove these facts, it is not open to the plaintiffs to fall back on the plea of adverse possession. It is settled law that the pleas of title and adverse possession are mutually inconsistent.
45. In Arundhati Mishra (Smt) v. Sri Ram Charitra Pandey
[10]
, the Supreme Court held :
“4. … … … The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant’s acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant.”
46. In Karnataka Board of Wakf v. Govt. of India
[11]
, the Supreme Court held :
“12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina) In P. Periasami v. P. Periathambi this Court ruled that: (SCC p. 527, para 5) “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.”
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced ”
Therefore, I am of the opinion that it is not open to the plaintiffs to plead acquisition of title to the plaint schedule property by way of adverse possession having set up title in the initial part of the plaint.
47. In this view of the matter, the judgment is liable to be set aside.
48. Therefore, the appeal is allowed and the judgment and decree of the trial court in OS.No.192 of 1985 is set aside. No costs.
49. Miscellaneous applications pending, if any, in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 02-06-2014 Ndr/*
[1] AIR 1954 SC 526 (1)
[2] AIR 1959 SC 31
[3] (2014) 2 SCC 269
[4] AIR 1973 AP 149 (V 60 C 43)
[5] AIR 1996 SC 2786
[6] AIR 1997 SC 2182
[7] (2013) 9 SCC 152
[8] 2013 (2) SCJ 914
[9] Ambika Prasad Thakoor v. Ram Ekbal Rai …. AIR 1966 SC 605 para.13 pg.612
[10] (1994) 2 SCC 29
[11] (2004) 10 SCC 779