IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH TUESDAY THE SECOND DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE B. CHANDRA KUMAR SAMP.No. 2314 OF 2014 AND SECOND APPEAL NO. 971 OF 2002 Between:
Kadhav Dasarath & Ors. … Appellants V/s.
Laxmi Bai & Anr. … Respondents Counsel for the Appellants : Sri P.Venkat Swamy Counsel for the Respondents : Sri K. Raji Reddy The court made the following : [judgment follows] HONOURABLE SRI JUSTICE B. CHANDRA KUMAR SAMP.No. 2314 OF 2014 AND SECOND APPEAL NO. 971 OF 2002 JUDGMENT :
This second appeal had been filed challenging the judgment and decree dated 12/09/2002 in AS.No. 7 of 2002 passed by the III- Additional District Judge [FTC] Nirmal, whereunder the judgment and decree dated 31/12/1997 in OS.No. 65 of 1992 on the file of District Munsif, Nirmal, Adilabad district, is reversed.
2. Brief facts of the case are as follows:
The first respondent, Laxmi Bai herein is the wife of Ramchandra Reddy, the second respondent herein. Sri Ramachandra Reddy executed a registered sale deed dated 21/2/1985 in favour of Jadhav Dasarath son of Vithal in respect of Ac:1-35 guntas of land in survey No. 274 situated in Haverga village. The first respondent herein filed a suit in OS.No. 65 of 1992 on the file of District Munsif, Nirmal against Jadhav Dasarath, her husband Ramachandra Reddy and others seeking a declaration that she is the owner of suit schedule land and that her husband Ramchandra Reddy had no right to alienate the property and that Jadhav Dasarath and others have no rights to purchase the property. In the said suit, Sri Ramchandra Reddy was set ex-parte. The trial court dismissed the suit by judgment dated 31/12/1997 holding that the suit is barred by limitation. The trial court observed that Ramchandra Reddy is the owner of the land and he has right to alienate the property and he had executed registered sale deed, having received full consideration from Jadhav Dasarath and others. The said judgment was challenged by the plaintiff in AS.No. 7 of 2002. The learned Appellate Judge allowed the said appeal mainly on the ground that the sale deed was executed in 1985 and the suit was filed in 1992 and the defendants had not taken any plea of adverse possession. Challenging the same, the present second appeal has been filed.
3. During the course of arguments, it is submitted that Sri Ramchandra Reddy, the second respondent herein died when the appeal was pending before the first appellate court i.e., III-Additional District Judge, FTC, Nirmal. Laxmi Bai has not taken any steps to bring her son on record. As seen from the judgments of the courts below, the trial court has considered the entire evidence and gave a categorical finding that Sri Ramchandra Reddy alienated the property in favour of the first appellant and others. One of the grounds taken by the defendant in the suit is that the suit is barred by limitation. Their main case is that defendants were in possession of the property since 1976-77.
The defendants filed number of documents and let-in evidence. Even the pahanies filed by the plaintiff also shows the possession of the defendants. Basing on the documentary evidence, the trial court came to conclusion that the plaintiff has lost her possession in the year 1976-77 and therefore the suit is barred by limitation. The finding of the trial court is based on proper appreciation of evidence. The appellate court came to conclusion that since the sale deed dated 21/1/1985 the suit is not barred by limitation. Under section 65 of the Limitation Act, suit has to be filed within a period of twelve years and the period of limitation starts when the possession of the defendants becomes adverse to the plaintiff. The period prescribed is 12 years, all the revenue records and the oral evidence adduced by the parties reveal that the first defendant had been in possession of the property from 1976-77. This means the plaintiff has lost her possession from 1976-77. Moreover the judgment of trial court also reveals that the defendants have taken a specific plea that suit is barred by limitation and the appellate court has not even gone through the written statement and simply came to conclusion that there is no plea that the suit is barred by limitation. The substantial question of law that arises for consideration is “whether the finding of the appellate court that the suit is not barred by limitation is correct ? when the oral and documentary evidence clinchingly establishes that the defendants have been in possession since 1976-77 and the plaintiff had lost her possession, it is clear that the suit is barred by limitation and the possession of defendants seems to become adverse from 1976-77. Therefore, the findings of the appellate court are perverse. Moreover, the appellants and the defendants have filed a petition under Order-23, Rule 3 of CPC stating that the appellants have paid an amount of Rs.50,000/- [Rs. Fifty Thousand only] to the plaintiff in full and final settlement and that the same may be recorded and the appeal may be allowed. The son of first defendant, Sri Prabhakar Reddy is present before this court and he submits that his mother Laxmi bai is old and sick and she cannot travel. In the circumstances, the judgment of appellate court is set aside and the judgment and decree passed by the trial court is restored. This second appeal is allowed. In the circumstances, there shall be no order as to costs.
4. In view of the same, SAMP.No. 2314 of 2014 and the second appeal are allowed. No costs.
5. As a sequel, miscellaneous petitions if any pending, in this second appeal shall stand closed.
JUSTICE B. CHANDRA KUMAR .
02/12/2014
I s L
HONOURABLE SRI JUSTICE B. CHANDRA KUMAR SAMP.NO. 2314 OF 2014 AND SECOND APPEAL NO. 971 OF 2002 Circulation No.51 Date: 02/12/2014 Court Master : I s L Computer No. 43