HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No. 1145 OF 1995
Date: 04-07-2014
Between:
Narthu Gangayya and 18 others. - - - Appellants.
And Sri Sri Sri Ramalingeswara Swamy Temple, Borivanka, Rep. by Managing Trustee, Bendalam Sanjeevarao Sarma, S/o.Late Bapayya, Aged about 64 years, Cultivation, Residing at Borivanka village, Kaviti Mandalam, Ichapuram D.M.C.
Srikakulam District and another. - - - Respondents.
This Court made the following :
HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No. 1145 OF 1995
JUDGMENT:
The defendants in Original Suit No.21 of 1987 on the file of Subordinate Judge (Now Senior Civil Judge) Sompeta, Srikakulam District preferred this Appeal against the impugned decree and judgment dated 21.07.1995, where under the suit filed by the plaintiffs for declaration of title over the schedule land and for consequential permanent injunction restraining the defendants and their men from interfering with its peaceful possession and enjoyment, in alternative, recovery of possession of schedule land, by ejecting the defendants, is decreed declaring the 1st plaintiff as absolute owner of the schedule property and directed the defendants to deliver vacant possession of the schedule property within two months there from.
2. The appellants herein were defendants and the respondents herein were the plaintiffs before the trial Court in O.S. No.21 of 1987. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the trial Court.
3. Sri Ramalingeswara Temple, Borivanka village of Srikakulam district, represented by its Managing Trustee, B. Sanjeevarao Sarma was the 1st plaintiff before the trial Court. During pendency of appeal, the appeal suit was dismissed for default against 2nd respondent, vide Court order dated 09.02.2010.
4. The suit is filed for declaration of title of the 1st plaintiff - temple over the suit schedule land and for consequential permanent injunction restraining the defendants and their men from interfering with the possession and enjoyment of schedule land, in alternative, recovery of possession of schedule land by ejecting the defendants from the schedule land, alleging that the 1st plaintiff is the owner of schedule property and the 2nd plaintiff is the lessee of the 1st plaintiff. The 1st plaintiff is in continuous, un-interrupted possession and enjoyment of the schedule property by virtue of registered lease deed dated 11.04.1986, executed by the Managing Trustee of the 1st plaintiff-temple in favour of 2nd plaintiff. The lease period, with the approval of Endowments Department, was from 18.03.1986 to 17.03.1991. Thus, the 2nd plaintiff is in possession and enjoyment of the schedule land from the date of entering into lease i.e., on 18.03.1986.
5. The defendants, who were residents of the same village, with the active support of Village Revenue Officer, fabricated certain revenue records, subsequent to 1980 in their favour, without the knowledge of Managing Trustee of the 1st plaintiff and on the strength of those fabricated documents, defendants and their men threatened to take forcible possession of the schedule land. Thus, while the 2nd plaintiff who is cultivating the land by investing amount, defendants used to take away the usufruct under the threat of violence, as the plaintiffs are away to the schedule land. The schedule land vests with the 1st plaintiff and in possession and enjoyment of the same since time immemorial, defendants cannot claim any statutory or prescriptive right, title or interest in the schedule land. By creating the revenue records, the defendants are trying to grab the property unlawfully, with the aid of their active supporters. Thus, the defendants denied the title and right of the 1st plaintiff over the suit schedule land. Hence, the suit.
6. Defendants 1, 2, 4, 5 and 6 filed written statement and the same was adopted by defendants 3 and 7, wherein defendants denied the material allegations inter-alia contending that the defendants and their predecessors-in-interest alone are in possession and enjoyment of the schedule land and that the plaintiffs were never in possession and enjoyment of the schedule land. The defendants specifically denied fabrication of any revenue records. The defendants contended that the 1st plaintiff has no title to the schedule property and that the 1st defendant’s paternal grand father, Narthu Balaji, was cultivating Ac.1.06 cents in the schedule land covered by Survey Nos.225/6 and 8 and after his death, his son Narthu Simmayya, who inherited the land was cultivating the same. In the recent survey and settlement operations in 1962, patta for the said land was issued in favour of Narthu Simmayya, who died about 30 years back, and after his death, his son, 1st defendant inherited the land, but Bangaramma cultivating the same as her son, Narthu Gangayya, was a child by then. After attaining majority by Gangayya, he is in separate possession and enjoyment of the land inherited from his ancestors in his own right.
7. The 2nd defendant is in separate possession of Ac.0.40 cents of land in Survey No.225/1. By the time of survey and settlement operations in 1962, his father was cultivating the land, consequently a Ryotwaripatta No.555 was granted to him for the said land. The 2nd defendant after death of his father inherited Ac.0.40 cents of land and is in possession and enjoyment of the same, paying land revenue to the Government.
8. The 3rd defendant is in separate possession and enjoyment of Ac.0.60 cents (part of schedule property) covered by Survey No.225/2. His father Narasayya was cultivating the land and obtained a Patta No.564 in survey and settlement operations. After death of his father, the 3rd defendant succeeded the land and is in possession and enjoyment of the land in his own right, paying land revenue to the Government.
9. 4th defendant’s husband Chandrayya was cultivating Ac.0.28 cents (part of schedule land) covered by Survey No.225/3 and a patta was granted to Chandrayya, husband of 4th defendant, and obtained patta No.874, but Chandrayy died about 10 years ago. Consequently, his wife, Narthu Gunnamma, 4th defendant herein succeeded in cultivating the said land in her own right as lawful owner.
10. 5th defendant Telagana Jogamma’s husband Abbayi was cultivating Ac.0.32 cents of plaint schedule land covered by Survey No.225/4 and patta No.545 was granted to Telagana Abbayi, who died about 19 years ago; consequently, 5th defendant succeeded the same and is in possession and enjoyment of the said land of Ac.0.32 cents (part of schedule property) by paying land revenue to the Government.
11. 6th defendant’s husband Telagana Simmayya and his father Karayya were separately in possession of Ac.0.43 cents of land in Survey No.225/5 and obtained a patta No.547 in survey and settlement operations in favour of Telagana Simmayya, who died about 7 or 8 years ago and after his death, 6th defendant succeeded the property, is in possession and enjoyment of the same in her own right by paying land revenue to the Government.
12. 7th defendant Mamidi Venkamma’s husband Dalayya cultivated Ac.1.26 cents of land in Survey No.225/7 and obtained patta No.1556 in survey and settlement operations, died about 20 years ago and on his death, 7th defendant succeeded the property, and she is in possession and enjoyment of the same, in her own right, paying land revenue to the Government. Thus, defendants 1 to 7 are the lawful owners of property and are in possession and enjoyment of the same. Bendalam Sanjeevarao, representative of the 1st plaintiff, is aware about the title of the defendants and never objected their enjoyment and never collected any rent from them and thereby acquiescesed their claim over the schedule land by conduct and estopped to claim any title or injunction against the defendants.
13. In the entire schedule property, the predecessors of defendants raised cashew, coconut and other trees and constructed cattle sheds in the respective parts of land and it is also being used as a burial ground for their families and tombs were also constructed in the schedule land. However, some of the tombs remained in the schedule property. The suit land is situated in T.D. No.360 and it is a minor enfranchised inam donated in favour of the 1st plaintiff-temple. So, melwaram rights were granted to the 1st plaintiff and kudivaram rights vested with the defendants. The defendants, thus, acquired right of permanent occupancy in the land. The melwaram right of 1st plaintiff has been abolished and pattas have been granted in favour of defendants. Therefore, the 1st plaintiff is no more owner of the schedule property and has no right or interest in the schedule property, in view of the pattas granted in favour of the defendants – predecessors-in-interest during survey and settlement operations. Hence, the plaintiffs are not entitled to claim any relief of declaration and permanent injunction or the alternative relief of recovery of possession, finally prayed to dismiss the suit.
14. Defendants 1, 5, 6, 10, 15, 17 and 19 filed additional written statement denying the material allegations inter-alia contending that the schedule property is the ancestral property of the above defendants and they succeeded the same from their ancestors, who are in continuous possession and enjoyment of the same, in their own right. It is further contended that the Ryotwarypattas have been issued to the defendants in 1962 and they never paid any rent to the 1st plaintiff-temple and never acknowledged the right of the 1st plaintiff.
15. Thus, the defendants, being the pattadars, are in possession and enjoyment of the schedule land, in their own right, by paying land revenue and the 1st plaintiff’s rights, if any, are lost since the defendants perfected their title by adverse possession.
16. Pattas issued in survey and settlement operations to the defendants in 1962 are valid and binding on the plaintiffs and the same cannot be questioned unless they are satisfied by competent authorities and the suit is barred by limitation, finally prayed to dismiss the suit.
17. Basing on the above pleadings, the trial Court framed the following issues, including 2 additional issues on 13.06.1995 :
1. Whether the 1st plaintiff has title to the plaint schedule land?
2. Whether the lease dated 18.03.1986 in favour of the plaintiff No.2 is true, valid and binding on defendants?
3. Whether the 2nd plaintiff is in possession of the suit land, and if not the suit for injunction is maintainable?
4. Whether the plaint schedule properties are the separate properties of the defendants?
5. Whether the pattas issued in favour of defendants are true, valid and binding on the plaintiffs?
6. Whether the 1st defendant is in possession denoted by 225/6?
7. Whether the 2nd defendant is in separate possession denoted by survey No.225/1?
8. Whether the 3rd defendant is in separate possession denoted by Survey No.225/2?
9. Whether the 4th defendant is in separate possession of Survey No.225/3?
10. Whether the 5th defendant is in separate possession of Survey No.225/4?
11. Whether the 6th defendant is in separate possession of Survey No.225/3?
12. Whether the 7th defendant is in separate possession of Survey No.225/7?
13. Whether the defendants 1 to 7 and their predecessors in interest have acquired permanent right of occupancy in the plaint schedule lands?
14. Whether the defendants have perfected the lands of plaint schedule by adverse possession?
15. Whether the plaintiffs are entitled to recovery possession of suit schedule property after ejecting the defendants there from?
16. Whether the suit is within time?
18. During course of trial, on behalf of the plaintiffs, PWs.1 to 4 were examined and Exs.A-1 to A-26 were marked. On behalf of the defendants, DWs.1 to 6 were examined and Exs.B-1 to B-14 were marked.
19. Upon hearing argument of learned counsel for both the parties, the trial Court decreed the suit declaring that the 1st plaintiff – temple as owner of the schedule property and directed the defendants to deliver vacant possession of the schedule property, within 2 months, while declining to grant permanent injunction.
20. Aggrieved by the impugned decree and judgment of the trial Court, defendants preferred this Appeal on various grounds. The main contentions of the defendants – appellants in the grounds of appeal are as follows :
a) The trial Court did not consider the oral and documentary evidence to establish the right of the defendants – appellants despite producing voluminous documentary evidence, like pattas issued in their favour or in favour of their predecessors-in-title abolishing inams in the survey and settlement operations and title ignored those pattas, thereby the finding that the 1st plaintiff is the absolute owner of the property is an apparent error;
b) The trial Court did not consider the long continuous possession of the defendants over the schedule property and their perfection of title by adverse possession, in proper perspective, thereby committed an error in declaring that the 1st plaintiff – temple is the owner of the property and directed the defendants to deliver vacant possession of the property, finally prayed to allow the Appeal setting aside the impugned decree and judgment of the trial Court.
21. During course of argument, learned counsel for the defendants - appellants raised the contentions urged in the grounds of appeal and that the trial Court without recording any finding regarding occupation of 2nd defendant granted a decree in favour of the 1st plaintiff placing reliance on Ex.A-19 by the trial Court, is not sufficient to conclude that the 1st plaintiff is the owner of the property. Thus, the trial Court, on erroneous appreciation of evidence on record decreed the suit, and if the evidence on record is appreciated properly, the trial Court would not have granted a decree and finally prayed to set-aside the impugned decree and judgment of the trial Court by allowing this Appeal.
22. Even though notice is served on the 1st plaintiff – temple, represented by its Managing Trustee, none appeared for the 1st plaintiff.
23. Considering the contentions of learned counsel for the defendants – appellants, oral and documentary evidence, impugned decree and judgment and the grounds of appeal, the points that arise for consideration in this appeal are :
1. Whether the 1st plaintiff - temple is the absolute owner of the plaint schedule land?
2. Whether the defendants are in unlawful possession and enjoyment of the property? If so, are they liable to deliver vacant possession of the same?
3. Whether the defendants perfected their title by adverse possession? and
4. Whether the claim of the 1st plaintiff is barred by limitation?
24. POINT Nos.1 and 2: The 1st plaintiff – temple claimed that the temple is the absolute owner of the schedule land and the second plaintiff, was the tenant in possession, but the trial Court disbelieved tenancy between the 1st and 2nd plaintiffs and delivery of possession to the 2nd plaintiff in pursuance of the registered lease deed dated 11.04.1986, the finding is not challenged before this Court by filing cross-objections or separate appeal by the 2nd plaintiff. Therefore, the finding with regard to the alleged tenancy between the 1st and 2nd plaintiffs over the schedule property attained finality and needs no interference.
25. The 1st plaintiff-temple claimed title contending that the settlement patta was granted under the Inams Act, 1956 in its favour and since then the 1st plaintiff is enjoying the property, in its own right, cultivating the same by leasing out various extents. The said contention was upheld by the trial Court holding that the 1st plaintiff is the owner of the schedule property, while disbelieving the title claimed by the defendants and their predecessors-in-title by virtue of the pattas granted in their favour during settlement operations in 1961 and 1962. The said findings are challenged by the defendants – appellants only on the ground that the defendants 1 to 7 are in separate possession and enjoyment of the property in various extents, in their own right, in pursuance of pattas granted by the Inams Settlement Tahsildar on the ground that the defendants are admittedly in possession of the property and the 1st defendant never surrendered the alleged leasehold land prior to execution of lease in favour of the 2nd plaintiff, but continuing in possession. Unless the lease is terminated or evicted by due process of law, the civil suit is not maintainable and apart from that, the alleged surrender of lease is false on the face of the record; on this ground the suit is liable to be dismissed.
26. The specific case of 1st plaintiff, from the beginning, is that 1st plaintiff is owner of property by virtue of patta granted in settlement operations, consequent upon abolition of imams and based their claim on Exs.A-2 and A-20. Ex.A-2 is the Revision Survey and Re- settlement Register of Silagam Village No.9, Berhampore Taluk, Ganjam District. As per the entries in Ex.A-2, the land situated in Revision Survey No.249, equivalent to old Survey No.248 B, Silagam village, is registered in the name of Sri Ramalingeswara Swamlvaru as pattedar and Telagana Chottadu, Bayyadu and Krishtadu. The total extent cannot be seen in the register, as it is eaten by white ants and, in any view of the matter, it is clear from Ex.A-2 that 1st plaintiff is the owner of land situated in Survey No.248 and by virtue of patta granted in settlement operations in favour of the 1st plaintiff, the 1st plaintiff – temple became owner of the land situated in Survey No.225/1 to 9. Ex.A-20 is the certified copy of Re-Survey and Re-settlement Register of Silagam village of Kaviti Mandal. As seen from the entries in Ex.A- 20, Survey No.225/1 to 8 is classified as wet land and it is a Government Inam and corresponding old survey number is 248; vide new survey No.225, as per column No.15 therein, pattedar or inamdar name is ‘Sri Ramalingeswara Swamlvaru’, and according to endorsement in column No.27, Narthu Balaji and Simmayya are in possession of Survey Nos.225/6 and 8 and after his death, his son Narthu Simmayya inherited the land and cultivating the same and in the recent survey, patta was issued in favour of Simmayya. Thus, the specific contention of the defendants is that in the settlement operations patta was granted in favour of Simmayya land in Survey Nos.225/6 and 8, but entries in Ex.A-22 discloses otherwise, as if part of land was purchased by Simmayya in Survey Nos.225/7 and 8. Similarly, other defendants also allegedly purchased the land in Survey No.225/1 to 6, on different dates, as per the endorsement in column No.27 of Ex.A-20, but whereas the specific contention of the defendants is that pattas were granted after abolition of Inams in favour of the defendants-predecessors-in-title in 1962. Strangely, no pattas were granted in favour of the defendants or their predecessors and whatever produced before the trial Court to prove alleged grant of pattas in the settlement operations in 1962 and invented a story of loss of pattas in the fire accident. In fact, there is no factual foundation with regard to loss of pattas in the entire pleadings. If really, they lost their pattas in the fire accident, it would have been mentioned in the written statement itself. Even otherwise, nothing prevented the defendants to obtain certified copy of survey and settlement register, which discloses the names of pattedars of the land, if really, pattas were issued to them. But, obviously for different reasons, the defendants did not take any steps to produce at least certified copy of the settlement register of Silagam village to substantiate their contentions. Thus, there is absolutely no evidence to substantiate the contentions of the defendants that pattas were granted in favour of their ancestors in possession of the property in the settlement operations.
27. As the 1st plaintiff-temple claimed title over the schedule property by way of declaration of title under Section 34 of Specific Relief Act, 1963, it is the duty of the 1st plaintiff to establish its title to the property by producing cogent and satisfactory evidence. The consistent case of the plaintiffs from the beginning is that a patta was granted under Section 4 of the Andhra Pradesh Inams (Abolition and Conversion into Ryotwari) Act, 1956 (For short, ‘the Act of 1956) and became absolute owner of the property, in support of which, 1st plaintiff produced Ex.A-5, Form-VIII, Ryotwaripatta issued under Section 4 of Inams Abolition Act, granting patta for an extent of Ac.4.48 cents in S.D. No.248, later the S.D. was converted into S. No.225 and the same is proved by producing Ex.A-20, certified copy of settlement register. In Chief Conservator of Forests, Government of Andhra Pradesh Vs.
[1]
The Collector and others , the Apex Court held that the order of Settlement Commissioner that the lands were patta lands cannot be held to be valid. The same question came up for consideration before the Privy Council in A.R. Ramaswamy Iyyar Vs. Hariram and
[2]
others held as follows :
“Entry in resettlement register may afford strongest corroborative evidence of fact of which oral proof has been questioned and putting it beyond doubt that Government has assented to the action and when entries in the document are accurate, the entries can be relied upon to decide the rights of the parties.”
28. Similarly, this Court in Secretary to Government of India,
[3]
Ministry of Defence and another Vs. Indira Devi held as follows :
“Where defendant had alleged that it was Government land. Entry in relevant column in ‘pahanies’ showed predecessor of plaintiff as Pattadar and possessing right from year 1971. No steps were taken by Government at any point of time cancelling such entry. Entry in settlement register also showed the said predecessor-in-title as owner and Pattadar. Thereby, such entry was evidence of right and title of person mentioned therein or as predecessors-in-title. Hence, General Land Register could not be relied for establishing title of Government. As such, suit is liable to be decreed.”
29. Thus, in view of the principles laid down by the Apex Court and this Court in the above decisions, these 2 documents establish that a patta was granted in favour of the 1st plaintiff, as the 1st plaintiff produced the proceedings issued by the Commissioner of Endowments, marked as Exs.A-24 and A-25, which shows that Inams Tahsildar granted patta for the schedule property and it was leased out to N. Gangayya under the provisions of Endowments Act. The said fact was spoken by PW.1 in his evidence and in the entire cross- examination of PW.1 nothing has been elicited to disprove the contents of the above documents.
30. Apart from grant of patta, it is the case of the plaintiffs from the beginning that prior to lease in favour of the 2nd plaintiff, marked as Ex.A-1, 1st defendant was the lessee but after expiry of lease period 1st defendant did not surrender the leasehold right of property. The said fact is now disputed during argument contending that when the 2nd plaintiff was the lessee, in the absence of any surrender, this Court has no jurisdiction to pass any order evicting 1st defendant. Undoubtedly, the trial Court believed that 1st defendant was the lessee prior to lease executed in favour of the 2nd plaintiff, marked as Ex.A-1, the said fact is not disputed. Even now, if surrender pleaded by the plaintiffs is not accepted, the Civil Court has no jurisdiction to evict the tenant in occupation of the schedule property. In fact, it is not the case of the defendants, at any stage that the 1st defendant is continuing as a tenant in the schedule property. On the other hand, their consistent case is that they are in possession and enjoyment of the property succeeding the same from their ancestors in view of pattas granted in their favour in settlement operations that took place in the year 1961-
62. Therefore, for the first time the alleged surrender of schedule property, after expiry of lease by the defendants, was questioned without any factual foundation in the pleadings. Therefore, the contention that the surrender of schedule property after expiry of lease by 1st defendant is not valid, cannot be accepted for the reason that it was never the case of defendants in the entire written statement or even in the evidence of DW.1. Therefore, it is not open to the defendants, at this stage, to challenge the alleged surrender of schedule property, after expiry of the lease period, for the first time in this appeal. Hence, the contention of learned counsel for the defendants holds no substance and the same is not accepted as there is no basis in the pleadings for such challenge. Even assuming for a moment that the 1st defendant was a tenant and in possession of the same, he cannot claim title over the schedule property which is a ground for eviction. The defendants did not claim any right to continue in possession of the property by virtue of lease in favour of the 1st defendant, setup independent title basing on the alleged pattas issued in favour of their ancestors during settlement operations in 1961-62; ultimately failed to establish issuance of pattas in favour of their ancestors on the pretext that they were destroyed in the fire accident. If such plea is accepted, though there was no foundation in the pleadings, nothing prevented the defendants to obtain certified copy of the pattas issued in their favour by the Inams Tahsildar under the Inams Abolition Act. Obviously for different reasons, the defendants did not produce the certified copies of the pattas or settlement register pertaining to the schedule property situated in S.No.225 of Selagam village to establish their title.
31. The defendants examined as many as 6 witnesses and their evidence at best is sufficient to establish that the defendants are in possession of the property and the said fact is supported by entries in 10(1) adangals, marked as Exs.B-1 and B-4 to B-14. Ex.B-2 is the land revenue receipt evidencing payment of land revenue, but all these documents, at best, would establish that they are in possession of the property. It is not the case of the plaintiffs that defendants are out of possession; when the defendants are admittedly in possession of the property unless they establish that they are in lawful possession claiming ownership in pursuance of pattas granted in favour of their ancestors, their possession is only unlawful possession and thereby not entitled to claim any right over the schedule property.
32. One of the contentions of the defendants is that they perfected their title by adverse possession. In fact, as per the admissions of DW.6 coupled with Ex.A-19 auction proceedings of leasehold rights of schedule property by the 1st plaintiff, dated 26.10.1979, the 1st defendant became highest bidder of leasehold rights in the auction held on 31.03.1978 in the presence of DW.6 and his father, who admittedly signed on Ex.A-19. When the 1st defendant entered into possession of the property as a tenant, he is not entitled to claim adverse possession since he was in permissive possession of the property as a tenant; so far as other defendants are concerned, there is no evidence to establish that they claimed adverse title against the 1st plaintiff, on any particular date, and continuing in the schedule property for a period of more than 12 years from the date of claiming such adverse title. In order to sustain the plea of adverse possession, defendants have to prove that they are in continuous possession and enjoyment of the property claiming hostile title for a period of more than 12 years without any interruption. If there is any interruption in possession and enjoyment even for a short period, they are disentitled to claim adverse possession against the 1st plaintiff. In the present set of facts, the defendants miserably failed to establish their claim of adverse title against the 1st plaintiff, who is the lawful owner of the property and continuing in un-interrupted possession for a period of more than 12 years from the date of claiming adverse title, thereby the defendants miserably failed to establish the requirements which are sine-qua-non to perfect their title by adverse possession. Therefore, the plea of the defendants that they perfected title by adverse possession is turned down.
33. The trial Court minutely analyzing both oral and documentary evidence concluded that the 1st plaintiff established its title by producing satisfactory and cogent evidence and the defendants failed to establish their right and title over the schedule property basing on the alleged pattas issued in favour of their ancestors during survey and settlement operations that took place in 1961-62, except producing 10-1 adangals. In view of the principles laid down by the Apex Court in
[4]
Jattu Ram Vs. Hakam Singh and others , entries in revenue records cannot be the basis for claiming title. Therefore, basing on Exs.B-1 and B-4 to B-14, the defendants are not entitled to claim any right over the schedule property. The trial Court rightly concluded that the 1st plaintiff established its title by producing Exs.A-5 and A-6 coupled with oral evidence and also proved that the possession of the defendants in the schedule property is unlawful, thereby granted a decree in favour of the 1st plaintiff declaring that the 1st plaintiff-temple is the absolute owner of the property and directed the defendants to deliver vacant possession of the schedule property. On discerning entire evidence by this Court, I find no ground warranting interference with the finding of the trial Court; consequently, I have no option except to concur with the findings recorded by the trial Court holding that the 1st plaintiff-temple is the absolute owner of the schedule property and the defendants are in unlawful possession and enjoyment of the schedule land and are liable to deliver vacant possession of the schedule land to the 1st plaintiff-temple.
34. POINT Nos.3 and 4: Since the plea of adverse possession and limitation are inter-dependant, I would like to decide both these points
by a common discussion. One of the contentions of the defendants is that the claim of the plaintiffs is barred by limitation. As per my discussion in the earlier points, defendants failed to establish their right and title by way of adverse possession, thereby the question of bar of limitation does not arise. To claim title by adverse possession, there must be specific pleading and evidence satisfying three requirements i.e., physical/actual open, uninterrupted, notorious possession to the notice to the true owner. In the instant case on hand, the defendants asserted that the schedule lands are their ancestral properties and after death of their ancestors, defendants succeeded the properties and thereafter, they are in separate possession and enjoyment of the same, in their own right, separate Ryotwaripattas have been issued to the defendants in 1962. The defendants or their ancestors never paid any rent to the 1st plaintiff-temple and never acknowledged rights of the 1st plaintiff-temple and as such, are in possession over the suit lands. Hence, the rights of the plaintiff, if any, are lost since the defendants perfected their title by adverse possession. In the absence of claiming hostile title or continuing in litigious possession of the property would not amount to adverse possession, since the defendants are just continuing in possession, but without claiming hostile title. In the absence of any pleading, whatever evidence adduced by the defendants in support of this contention needs no consideration. Therefore, there is absolutely no evidence in support of the plea that the defendants have perfected their title by adverse possession.
35. The Apex Court in T. Anjappa and others Vs. Somalingappa
[5]
and another held as follows:
“The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person’s title. Possession is not held to be adverse if it can be referred to a lawful title. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner(that is, with the intention of excluding all person from it, including the rightful owner), he is in adverse possession of it. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when an man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.”
36. In S.M. Karim Vs. Bibi Sakina under :
[6]
, the Apex Court observed as “Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.”
37. In R. Chandevarappa and others Vs. State of Karnataka
[7]
and others , the Apex Court laid down the principles regarding adverse possession and necessity of pleadings and held as follows :
“The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.”
38. In D.N. Venkatarayappa and another Vs. State of Karnataka
[8]
and others , the Apex Court highlighted the crucial pleadings to constitute adverse possession and held as follows :
“Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.”
39. In a recent judgment of the Apex Court in Hemaji Waghaji Jat
[9]
Vs. Bhikhabhai Khengarbhai Harijan and others , it was held as follows in Para 23 :
“23. There is another aspect of the matter, which needs to be carefully comprehended. According to Revamma's case, the right of property is now considered to be not only a constitutional or statutory right but also a human right. In the said case, this Court observed that "Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment, etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English Courts is quite visible from the judgments of Beaulane Properties Limited Vs. Palmer (2005) 3 WLR 554 and JA Pye (Oxford) Limited Vs. United Kingdom (2005) 49 ERG 90. The Court herein tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights."
[10]
40. In L. N. Aswathama and another Vs. P. Rakash the Apex Court reiterated the requirements for establishing the adverse possession or prescription of title by adverse possession and burden of proof held in Para 18 held that long continuing possession by itself would not amount to adverse possession, if it was either permissive or without animus possessindi. To establish a claim of title by prescription, the possession of claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding 12 years. It is further held that the burden is on the defendants who asserted that they perfected title by adverse possession. Therefore, it is for the defendants to establish that they are in possession and enjoyment of the property claiming hostile title against true owner for a period of exceeding 12 years before 30th September, 1951.
41. The principle laid down in the decisions cited supra is not in dispute; if those principles are applied to the present facts of the case, I find absolutely no evidence to establish that the defendants have been continuing in possession of the schedule land, actual, exclusive, open, uninterrupted and hostile to the true owner for a period exceeding 12 years as required under Article 65 of Limitation Act.
42. In view of the principles laid down by the Apex Court in Aswathama (10 supra), the Apex Court reiterated the principle that the plea based on title (when claimed title by the owner) and adverse possession mutually inconsistent, adverse possession does not begin to operate until renounced by the defendant and unless the claimant possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. However, the plea of title claimed through another person would not be mutually against the said plaintiffs.
43. If the principle reiterated by the Apex Court is applied to the present facts of the case, defendants never claimed to be in a possession claiming hostile title against the 1st plaintiff. Though the defendants admittedly were not in possession, such continuation in possession without claiming hostile title would not give rise to cause of action to claim adverse possession. Therefore, on overall analysis of entire pleadings and evidence, I find no material to construe that possession of the defendants over the schedule land is adverse to the true owner i.e., the 1st plaintiff. Since the defendants failed to establish necessary ingredients to constitute adverse possession, I find no merit in the contention and the defendants miserably failed to establish their claim based on adverse possession. Hence, point is held in favour of the 1st plaintiff and against the defendants.
44. For grant of relief of declaration, limitation under Article 58 of Limitation Act, 1963 is 3 years from the date of accrual of cause of action. Here, cause of action for the suit arose in the last week of April, 1987, when the defendants denied title of 1st plaintiff by taking away the usufruct of trees in the schedule property. Even otherwise, when the suit is filed for both the reliefs of declaration and possession, limitation is 12 years under Article 65 of Limitation Act, which runs from the date of claiming adverse title. In the instant case on hand, 1st defendant being tenant continued in possession till execution of Ex.A-
1, granting lease in favour of the 2n d plaintiff, thereafter, allegedly continuing in possession unlawfully occupying the property. Therefore, at best, from the date of occupation limitation starts for recovery of possession of the property, but in the instant case on hand, the suit is filed within 12 years from the date of alleged dispossession. Hence, the claim of recovery of possession is within limitation, in view of article 65 of Limitation Act. Accordingly, both these points are answered in favour of 1st plaintiff-temple and against the defendants.
In the result, the Appeal Suit is dismissed confirming the impugned decree and judgment dated 21.07.1995, passed in Original Suit No.21 of 1987 by the learned Subordinate Judge at Sompeta.
In consequence, Miscellaneous Petitions, if any, pending in this Appeal, shall stand dismissed. No order as to costs.
Date: 04-07-2014.
Dsh M. SATYANARAYANA MURTHY, J HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY 229
APPEAL SUIT No. 1145 OF 1995
Date. 04-07-2014
DSH
[1] AIR 2003 SC 1805
[2] AIR 1948 PC 23
[3] AIR 2003 AP 329
[4] (1993) 4 SCC 403
[5] 2006 (7) SCC 570
[6] AIR 1964 SC 1254
[7] (1995) 6 SCC 309
[8] (1997) 7 SCC 567
[9] 2008 (6) ALD 121 (SC)
[10] 2009 (13) SCC 229