Telangana High Court
Y.Papai Reddy And 7 Others vs K.Ramanujamma on 3 June, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
SECOND APPEAL No.987 of 2002
JUDGMENT:
This Second Appeal is filed by the appellants - appellants - defendants aggrieved by the judgment and decree dated 16.08.2002 in A.S.No.14 of 1999 on the file of the III Additional District Judge (I Fast Track Court), Nalgonda confirming the orders of the Junior Civil Judge, Nakrekal, Nalgonda District in O.S.No.125 of 1994 dated 30.01.1999.
2. The parties are hereinafter referred as plaintiff and defendants as arrayed before the trial court.
3. The respondent - plaintiff filed the suit for recovery of possession of agricultural land admeasuring Ac.4-06 guntas in Survey No.200/A situated at Pannalagudem, Nakrekal Village, Nalgonda District. The case of the plaintiff in brief was that she was the owner and possessor of the suit schedule property. The defendants were strangers and they had no manner of right whatsoever over the suit land. The defendants had land adjacent to the suit land. The defendants cultivated the suit land during the years 1972-73, 1974-75, 1980-81 and 1989- 90 having taken the same from the plaintiff on crop sharing basis. During the other years, the plaintiff personally cultivated dry crops namely mustard, jowar, 2 Dr.GRR, J sa_987_2002 etc. in the suit land. Originally, the suit land belonged to her father by name Pannala Lingaiah. The father of the plaintiff died 30 years ago. At that time, the plaintiff was five years old. Being his sole legal heir, the plaintiff succeeded to the suit land and other lands. The plaintiff's elder paternal aunt by name Tukkanna Lakshmamma brought up the plaintiff and performed her marriage 20 years ago. Prior to the marriage, the said Tukkanna Lakshmamma was managing the suit land on behalf of the plaintiff. The defendants had land, house and agricultural well on the western side of the suit land. Taking advantage of the absence of the plaintiff on 02.06.1993, the defendants illegally occupied the suit land and started cultivating the same. The defendants were also trying to get the patta of the suit land transferred in their name without the knowledge and behind the back of the plaintiff in the revenue records. Having come to know about the same, the plaintiff filed an appeal in Case No.E/5459/1993 on the file of RDO, Nalgonda and got cancelled the patta granted in favor of the defendants by the MRO, Nakrekal on 30.06.1994. The defendants were making false propaganda in the village that they purchased the suit land. Infact the defendants had no right over the suit land. The plaintiff several times demanded the defendants to vacate and deliver the possession of the suit land. The defendants with the help of unsocial elements were threatening the plaintiff with dire consequences. The plaintiff was also paying land revenue of the suit land continuously to the Government. She was 3 Dr.GRR, J sa_987_2002 compelled to approach the Court for recovery of possession of the suit land. She stated that the cause of action arose on 02.06.1993 when the defendants illegally occupied the suit land and refused to deliver the possession to her. She stated that the suit was filed within limitation and prayed to decree the suit.
4. The defendants filed written statement contending that though the plaintiff inherited the suit property from her late father, she sold the same to defendant No.1 for a consideration of Rs.1,900/- on 10.12.1968 and also delivered possession of the same. Since then, the defendant No.1 was in actual possession of the suit schedule property. The defendant No.1 never cultivated the suit schedule property on a crop lease basis. They contended that the plaintiff sold the suit schedule property to defendant No.1 for the purpose of her marriage and also attested her thumb impression on the simple sale deed dated 10.12.1968. The said original simple sale deed was filed before the Mandal Revenue Officer. The defendant No.1 and later the other defendants were in possession and enjoyment of the suit schedule property by paying land revenue continuously. Their names were shown in the revenue record as possessors of the suit property. They even had declared the suit property before the Land Reforms Tribunal and a ceiling certificate was issued in their favor by the Tahsildar, Nalgonda and also by the Land Reforms Tribunal. The defendant No.1 approached the plaintiff on several occasions requesting her to get the patta transferred in his name. But the plaintiff postponed the same on one or 4 Dr.GRR, J sa_987_2002 other pretext. As such, the defendant No.1 himself appeared before the revenue authorities being vexed with the attitude of the plaintiff and filed an application for rectification of the Record of Rights to enter his name as pattedar and to delete the name of the plaintiff as pattedar from the revenue records. During the year 1993, the MRO after proper enquiry issued 13-B certificate in his favor. But the plaintiff referred the matter to the Revenue Divisional Officer. As such, the order of the MRO was cancelled with a direction to hold fresh enquiry. The MRO held a fresh enquiry after giving notices to both the plaintiff and defendant No.1 and gave a finding in favor of the defendants. The same was upheld by both the RDO and the Joint Collector. As such, a fresh 13-B certificate was issued in favor of defendant No.1 by mutating the name of defendant No.1 in all the records as absolute owner, pattedar and possessor. The plaintiff had already sold out the suit schedule property in favor of defendant No.1 and defendant No.1 was the pattedar, owner and possessor of the suit schedule property and the plaintiff was not entitled for recovery of possession and prayed to dismiss the suit.
5. Basing on the said pleadings, the following issues were framed by the trial court:
i. Whether the plaintiff sold away the suit lands to defendant No.1 by virtue of a simple sale deed as claimed by defendants?
ii. Whether the plaintiff is entitled for recovery of possession of the suit lands?5
Dr.GRR, J sa_987_2002 iii. To what relief?
6. The plaintiff examined herself as PW.1 and got examined her cousin as PW.2 and got marked Exs.A1 to A10 pahanies from 1969-70 to 1991-92 showing her name as pattedar. The defendants examined defendant No.2 as DW.1, a nephew of defendant No.1 as DW.2 and a villager as DW.3 and got marked Exs.B1, the certified copy of tax receipt and B2 to B10 pahanies from 1970-71 to 1993-94, the order of the Land Ceiling Tribunal as Ex.B11, the order of the RDO as Ex.B12, the notice, order and certificate under 13-B issued by the MRO as Exs.B13 to B15, title deed and pass book as Exs.B16 and B17 and the orders of the RDO and the Joint Collector as Exs.B18 and B19 respectively.
7. Considering the oral and documentary evidence on record, the trial court placed the burden of proof on the defendants to show that they purchased the suit schedule property from the plaintiff or her relative and that the said sale deed was valid, before asserting their possession over the suit schedule property and held that the defendants failed to prove that the plaintiff sold away the suit land to defendant No.1 by virtue of the simple sale deed, the defendants failed to file the original sale deed or examined the alleged persons, who witnessed and mediated the said transaction. The trial court also observed that the evidence of DWs 1 and 2 was not consistent with each other. DW.1 claimed that the plaintiff herself signed on the simple sale deed. But DW.2 stated that 6 Dr.GRR, J sa_987_2002 Veera Reddy, the paternal aunt's husband of the plaintiff signed on the sale deed and that he had seen after the transaction and later contradicted himself that he had not seen the signature of the said Veera Reddy on the simple sale deed. The defendants failed to state clearly whether it was the plaintiff who executed the sale deed or it was the husband of the paternal aunt of plaintiff who executed the sale deed on behalf of the plaintiff and the defendants failed to clarify as to why the original sale deed could not be called for from the office of the MRO as their whole case is based on the said document and answered issue No.1 against the defendants.
7.1. With regard to issue No.2, the trial court though observed that the documents filed by the defendants marked under Exs.B1 to B19 would prove that they were in possession of the suit schedule property, however, observed that the plaintiff also filed pahanies from the same revenue authorities and the same would also show her possession at the same time. As such, held that the Court could not rely on the documents filed by both the parties and further held that even if the possession of the defendants was accepted by the Court, the said possession would amount to only "permissive possession" unless it was otherwise proved, as such held that the plaintiff was entitled for recovery of possession of the suit schedule property and decreed the suit in favor of the plaintiff.
7
Dr.GRR, J sa_987_2002
8. Aggrieved by the judgment and decree of the trial court in decreeing the suit, the defendants preferred an appeal. The appeal was heard by the III Additional District & Sessions Judge (I Fast Track Court), Nalgonda and vide judgment and decree dated 16.08.2002 in A.S.No.14 of 1999 confirmed the judgment and decree of the trial court and dismissed the appeal.
9. The lower Appellate Court framed the points for consideration as:
i. Whether the simple sale deed dated 10.12.1968 alleged to have been executed by the plaintiff in favor of defendant No.1 is true and valid?
ii. Whether defendant No.1 can acquire right and title to suit property under Exs.B15 to B19?
10. The lower appellate court held that that the plaintiff must be a minor at the time of the alleged sale deed. When she was a minor, the same would be void under the Indian Contract Act, 1872. The burden of proof would be on the defendants to establish that they acquired title in pursuance of the simple sale deed. The said sale deed document was not filed before the Court. The revenue authorities could not regularize the unregistered documents when the transfer was disputed. The defendants could not acquire any right and title under Exs.B15 to B19. Section 53-A of the Transfer of Property Act, 1882 was not applicable to the defendants to protect their possession as they were not relying upon an agreement of sale, but on a simple sale deed. As per Article 65 of the 8 Dr.GRR, J sa_987_2002 Limitation act also, when the suit was based on title, the plaintiff need not prove that she was in possession of the suit land, dismissed the appeal.
11. Aggrieved by the said dismissal of the appeal, the defendants preferred this Second Appeal raising the following substantial questions of law:
a. Whether the declaration under Section 5-A of the AP Rights in Land and Pattedar Pass Books Act, 1971 and the certificate issued there under to the effect that the sale of land under a simple sale deed is valid, is conclusive of the validity of transfer of vendor's title in favor of vendee and would preclude the vendor from questioning the validity in any other proceedings?
b. Whether a suit for recovery of possession is maintainable in view of specific bar under Section 8 of the AP Rights in Land and Pattedar Pass Books Act, 1971?
c. Whether the suit is maintainable without seeking relief of declaration of title for recovery of possession when there is a dispute about the title?
d. whether an appellate court can adjudicate upon a question on which the trial court had neither raised any issue nor recorded any finding?
e. Whether the lower appellate court was justified in drawing adverse inferences without any basis or supporting documentary evidence?
f. Whether the lower appellate court is justified to traverse beyond the pleadings in the suit?
12. Heard Sri A.Ravinder Reddy, learned Senior Counsel representing on behalf of Sri Jella Srikanth, learned counsel for the appellants on record and Sri 9 Dr.GRR, J sa_987_2002 M.V.Durga Prasad, learned Senior Counsel representing on behalf of Sri K.Jagadishwar Reddy, learned counsel for the respondent on record.
13. Learned Senior Counsel for the appellants contended that the suit was not filed for declaration of title, but for recovery of possession. When there was a clear case of title dispute, the Courts without directing the parties to file a suit for declaration of title, decreeing the suit was not proper. In the column for cause of action, the date of dispossession was shown as 02.06.1993 but no evidence was adduced by the plaintiff to show that she was in possession of the property prior to 02.06.1993. All the revenue authorities found that the defendants were in possession of the property. The authorities accepted the possession of the defendant. It was for the plaintiff to prove the dispossession on 02.06.1993. When the Courts admitted the possession of the defendants, the judgment and decree for delivery of possession was illegal. The name of the defendants would not be entered in the pahanies if she gave the lands to the defendants on crop sharing basis. The plaintiff failed to challenge the orders of the Joint Collector. Even after the said order, she had not amended the suit for declaration of title. Issue No.2 framed by the trial court ought to have been decided first. Only to avoid cause of action, some date was mentioned. The first issue framed by the trial court as well as the points for consideration framed by the first appellate court were not proper. The suit was barred by 10 Dr.GRR, J sa_987_2002 limitation. The documents filed by both the parties were not discussed by the courts below and prayed to allow the Second Appeal.
14. Learned Senior Counsel for the appellants relied upon the judgments of the Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and Others1on the aspect that when the plaintiff was not in possession of the property, necessarily the plaintiff had to file a suit for declaration, possession and injunction. He relied upon the judgment of the Hon'ble Apex Court in Nazir Mohamed v. J.Kamala and Others 2 on the aspect that a person claiming a decree of possession had to establish his / her entitlement to get such possession and also establish that his / her claim was not barred by the laws of limitation. He / she must show that they had possession before the alleged trespasser got possession. A suit for recovery of possession of an immovable property was governed by the Law of Limitation Act, 1963. The relief claimed by the plaintiff had to be decided on the strength of her case, but not on the weakness if any of the opponent's case. Where the plaintiff wanted to establish that the defendants' original possession was permissive, it was for the plaintiff to prove the said allegation and if he / she failed to do so, it should be presumed that possession was adverse unless there was evidence to the contrary. He relied upon the judgment of the High Court of Punjab and Haryana at 1 (2008) 4 SCC 594 2 (2020) 19 SCC 57 11 Dr.GRR, J sa_987_2002 Chandigarh in Ajaib Singh and Others v. Harbans Kaur and Others 3 dated 06.01.2023 on the aspect that for the purpose of restoration of possession, limitation would commence from the date one was dispossessed or defendant's possession became adverse. The said possession of defendants would mature into ownership after expiry of statutory period of 12 years of limitation. As such, the suit filed by the plaintiff was barred by limitation and the plaintiff was not entitled to declaration / possession of the suit land or injunction as prayed for by them. He relied upon the judgment of the Hon'ble Apex Court in Utha Moidu Haji v. KuningarathKunhabdulla and Others 4on the aspect that if a deal was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within three years of attaining majority. It was clear that the plaintiff did not file the suit within 12 years of the deed or within three years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court. He relied upon the judgment of the Hon'ble Apex Court in Darshan Singh and Others v. Gurdev Singh 5on the aspect that though a minor acquiring cause of action to sue for possession of immovable property could file the same within 12 years after attaining majority by virtue of Section 6 of the Limitation Act, his suit beyond 3 MANU/PH/0007/2023 4 (2007) 14 SCC 792 5 (1994) 6 SCC 585 12 Dr.GRR, J sa_987_2002 three years from the date of his attaining majority would be barred under Section 8 of the Limitation Act, 1963.
15. Learned Senior Counsel for the respondent on the other hand contended that the defendants also admitted the title of the plaintiff and stated that she executed a sale deed in favor of defendant No.1, but failed to prove its execution. The alleged sale deed had not seen the light of the day and not filed before the Court. The defendants failed to examine any of the mediators or the patwaari, who drafted the sale deed. The defendants admitted that the plaintiff was a minor at the time of signing the document. The sale deed executed by a minor was void. The burden entirely would lie upon the defendants to prove the said sale deed as they were admitting the title of the plaintiff and claiming that they got the title through unregistered sale deed. Neither the document was produced nor the witnesses were examined. If the witnesses to the sale deed could be examined before the MRO, the defendants could not explain as to why they could not be examined before the Civil Court.
15.1. He further submitted that Exs.A1 to A20 pahanies would continuously show the name of the plaintiff in the patta column. The name of the defendant No.1 was inserted only in Exs.A3 to A6, which were doubtful and stray entries. Contrary entries in Exs.B2 to B11 were manipulated. The plaintiff was not a party to Ex.B11 - declaration of Land Ceiling Tribunal filed by defendant No.1. 13
Dr.GRR, J sa_987_2002 Exs.B14 to B19 could not be considered. When the parties disputed the unregistered sale deed, it could not be regularized. When the sale deed was disputed, the revenue authorities should refer the parties to the Civil Court. The Revenue Courts did not have jurisdiction to decide civil disputes. No substantial questions of law would arise as contemplated under Section 100 of CPC. All questions were purely academic and prayed to dismiss the appeal.
16. Learned Senior Counsel for the respondents relied upon the judgments of the Hon'ble Apex Court in Indira v. Arumugam and Another 6on the aspect that when the suit was based on title for possession and once the title was established on the basis of relevant documents and other evidence, unless the defendant proves adverse possession for the prescriptive period, the plaintiff could not be unsuited. He also relied upon the judgment of the High Court of Andhra Pradesh in Pureli Chandraiah v. Joint Collector, Karimnagar District & Others 7on the aspect that the MRO could issue a certificate to the alienee or transferee, declaring alienation or transfer as valid, only in cases where there were no disputes with regard to title over the property. He relied upon the judgment of the High Court of Andhra Pradesh in Kuthuru Narasimha Reddy v. Pusala Venkataiah and Others 8 on the aspect that validation by MRO was not binding on the Civil Court. He also relied upon the 6 (1998) 1 SCC 614 7 2011 (4) ALD 197 8 2011 (4) ALD 567 14 Dr.GRR, J sa_987_2002 judgment of the Hon'ble Apex Court in Horil v. Keshav and Another 9on the aspect that Revenue Courts were neither equipped nor competent to effectively adjudicate on allegations of fraud that had overtones of criminality and the courts really skilled and experienced to try such issues were the courts constituted under the Code of Civil Procedure. He also relied upon the judgment of the Hon'ble Apex Court in Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Janikamma @ Nacharamma 10 on the aspect that when the plaintiff had title and the only relief she was seeking was for possession, a suit for possession was maintainable.
17. The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognized exceptions are:
i) Where the courts below have ignored material evidence or acted on no evidence.
ii) The Courts have drawn wrong inferences from true facts by applying the law erroneously or
iii) The Courts have wrongly casted the burden of proof.9
(2012) 5 SCC 525 10 (2008) 15 SCC 150 15 Dr.GRR, J sa_987_2002 A finding based on no evidence does not refer only to cases where there is a total dearth of evidence but also refers to case where the evidence taken as a whole is not reasonably capable of supporting the finding.
18. Ordinarily, the High Court would not interfere with finding of fact. Only in exceptional circumstances when there is a perversity in the findings of the courts below and non-application of mind, the question of facts can be looked into.
Section 103 of CPC acts as a supplementary to Section 100 of CPC. Section 103 of CPC states as follows:
Section 103 - "Power of High Court to determine issues of fact - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, -
a) which has not been determined by the Lower Appellate Court or both by the Court of the first instance and the lower Appellate Court, or
b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in Section 100."
The particular Section talks of two situations when a question of fact can be dealt with by the Court in a second appeal. Firstly, when a necessary issue has not been determined by either the Lower Court or the Court of the first 16 Dr.GRR, J sa_987_2002 instance. Secondly, when the necessary issue has been wrongly determined by the Courts on the substantial question of law which can properly be the subject matter of the second appeal under Section 100 of CPC.
19. As seen from the facts of the case, the suit was filed for recovery of possession. As such, the burden would lie upon the plaintiff to prove that she was in possession of the property and to prove when she was dispossessed and how the defendants came into possession of the same. Both the courts below have framed the issues itself in an improper way and threw the burden upon the defendants to prove their possession ignoring the well established principle that a person who asserts a particular fact had to prove the same, in view of the provisions of Sections 101 and 102 of the Indian Evidence Act and until such burden was discharged, the other party was not required to be called upon to prove his case. Thus, the burden would lie upon the plaintiff to prove that she was in possession of the property and that she was dispossessed by the defendants in the manner stated by her and that she filed the suit within the period of limitation. It was also well settled that where a plaintiff wanted to establish that the defendant's original possession was permissive, it was for the plaintiff to prove the said allegation. Thus, the courts below had wrongly casted the burden of proof on the defendants which gave a right to the High Court to interefere with the concurrent findings of the courts below. 17
Dr.GRR, J sa_987_2002
20. The defendants in their written statement contended that the plaintiff had sold the suit schedule property to them under an unregistered sale deed. But no rejoinder was filed by the plaintiff denying the said contention. The defendants also stated about the revenue authorities regularizing the sale deed in their favor after issuing a notice to the plaintiff and the said order passed by the MRO, Nakrekal was approved by the RDO as well as the Joint Collector and also filed the Exs.B14 to B19 in support of their contention. All the revenue authorities found that defendant No.1 was in physical possession over the property from 1968 till the date of their passing the orders in 1997, i.e. long prior to the date of filing the suit, at the time of the suit, as well as after filing the suit by the plaintiff. The contention of the plaintiff was that she gave the land to the defendants on a crop sharing basis for some years, but she did not choose to file any document in proof of the same. All the documents filed by the plaintiff as well as the defendants would show that the defendants were in possession of the property from 1969 - 1970 onwards. Though the learned counsel for the respondent - plaintiff contented that only the documents marked under Exs.A3 to A6 would show the possession of the defendant No.1, all other documents filed by the plaintiff also would show her name only in the patta column and the possession column was left blank. Only in the pahanies for the years 1987-88, marked as Ex.A16 and the pahani for the year 1991-92 marked as Ex.A20 the name of the plaintiff was shown as occupier. Except for these two stray entries, 18 Dr.GRR, J sa_987_2002 the name of the plaintiff was not found as possessor of the suit schedule property from 1969-70 onwards i.e. from the date of the alleged purchase by the defendants. Though the trial court contended that there were two different kinds of pahanies for the same years filed by both the parties, the possession of the defendants from 1968 onwards was undisputed, except for the stray entries in Exs.A16 and A20 marked by the plaintiff. The plaintiff failed to prove her possession over the suit schedule property from 1969 onwards and failed to file any lease deed executed by her in favor of the defendants to show that she gave the suit land on lease to the defendants even for some years on crop share basis. Both the courts below decided the suit basing on the weakness of the case of the defendants, as they failed to prove the execution of the simple sale deed but not basing on the strength of the plaintiff's case. Both the courts below fell into error in shifting the burden upon the defendants in the suit filed by the plaintiff for recovery of possession.
21. The lower appellate court observed that the plaintiff was a minor by 10.12.1968 when the alleged simple sale deed was executed by her and thus the simple sale deed set up by the defendants was void under the Contract Act. There were no pleadings filed by the plaintiff in the said regard. The plaintiff had not even filed a rejoinder. The lower appellate court considered the age of the plaintiff as 35 years as on the date of her entering into the witness box and came to a conclusion that the plaintiff must be five years old by the date of 19 Dr.GRR, J sa_987_2002 executing the simple sale deed on 10.12.1968. There were no pleadings, evidence or issue framed to the said effect. The trial court had not recorded any finding on the said aspect. From the written statement filed by the defendants and the evidence produced by them, the plaintiff was of marriageable age at the time of executing the unregistered sale deed on 10.12.1968 and the suit schedule land was sold for the purpose of her marriage. The first appellate court considering the plaintiff as a girl of five years old and as such could not execute the sale deed without any pleadings and evidence in the said regard was considered as perverse.
22. Even if the plaintiff was considered as a minor and the sale deed executed by her was a void document, the plaintiff ought to have filed the suit within a period of three years after her attaining the majority. As per Section 6(1) of the Limitation Act:
6. Legal Disability -
(1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified there for in the third column of the schedule.20
Dr.GRR, J sa_987_2002
23. As per Articles 59 and 60 of the Limitation Act which are as under:
Description of Suit Period of Limitation Time from which period begins to run
59. To cancel or set aside Three years When the facts entitling an instrument or decree the plaintiff to have the or for the rescission of a instrument or decree contract cancelled or set aside or the contract rescinded first become known to him
60. To set aside a transfer of property made by the guardian of a ward-
a) by the ward who has Three years When the ward attains attained majority majority
b) by the ward's legal representative -
(i) when the ward dies Three years When the ward attains within three years from majority the date of attaining majority (ii) when the ward dies Three years When the ward dies. before attaining majority
Thus, the plaintiff has to file the suit to set aside the transfer within three years of her attaining the majority.
24. Even if the unregistered sale deed executed by the minor plaintiff is null and void, as the defendants were continuing to be in possession on the basis of the said null and void sale deed, they perfected their title on the expiry of the statutory period of limitation under Article 65 of the Limitation Act, 1963.Article 65 of the Limitation Act, 1963 is extracted for ready reference: 21
Dr.GRR, J sa_987_2002 Description of Suit Period of Limitation Time from which period begins to run
65. For possession of Twelve years When the possession of immovable property or the defendant becomes any interest therein based adverse to the plaintiff.
on title.
Explanation. - For the purposes of this article -
(a) Where the suit is by a
remainderman, a
reversioner (other than a
landlord) or a devisee,
the possession of the
defendant shall be
deemed to become
adverse only when the
estate of the
remainderman,
reversioner or devisee, as
the case may be, falls
into possesson;
(b) Where the suit is by a
Hindu or Muslim entitled
to the possession of
immovable property on
the death of a Hindu or
Muslim female, the
possession of the
defendant shall be
deemed to become
adverse only when the
female dies;
(c) Where the suit is by a
purchaser at a sale in
execution of a decree
when the judgment
debtor was out of
possession at the date of
the sale, the purchaser
22
Dr.GRR, J
sa_987_2002
shall be deemed to be a
representative of the
judgment debtor who
was out of possession
25. The Hon'ble Apex Court in Utha Moidu Haji
v.KuningarathKunhabdulla and Others (cited supra) while referring to its earlier judgment in Prem Singh v. Birbal [(2006) 5 SCC 353], held that:
"28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court."
26. The Punjab and Haryana High Court at Chandigarh in Ajaib Singh and Others v. Harbans Kaur and Others (cited supra) after extracting the judgment of the Allahabad High Court in Qadir Bux v. Ramchand and Others [MANU/UP/0046/1970 : AIR 1970 Allahabad 289] held that:
"In order to attract Article 65, if a person has got possession even if under a void sale, his possession would be adverse to the real owner and by possessing for more than 12 years, he acquires title by adverse possession. Any action 23 Dr.GRR, J sa_987_2002 against him by real owner has to be filed within 12 years of such possession, otherwise suit for possession would be barred by limitation. For the purpose of a declaration, limitation commences from the date of cause of action. Similarly, for the purpose of restoration of possession, limitation would commence from the date one is dispossessed or the defendant's possession become adverse."
The High Court of Punjab and Haryana in Ajaib Singh and Others v. Harbans Kaur and Others (cited supra) further held that for the purpose of restoration of possession, limitation would commence from the date one is dispossessed or defendant's possession could become adverse. It further held that:
"24. Adverting to the facts of present case, the contention of Ld. Counsel for the respondents - plaintiffs to the effect that appellants- defendants cannot be allowed to take the plea of adverse possession as they are claiming title of the suit property on the basis of sale transactions in their favor, has no merit. Rather, in the facts and circumstances of present case, this plea goes against the plaintiffs because it has been found that though the defendants claim title on the basis of sale deeds dated 12.06.1981 but as these sale deeds have been found to be null and void, so their possession became hostile, in view of legal position explained by Hon'ble Supreme Court in Utha Moidu Haji's case (supra).24
Dr.GRR, J sa_987_2002
25. Proceeding further, as discussed above, a person in permissible possession over the suit land cannot become owner only on the basis of long possession. However, in case the said person starts proclaiming to be owner to the knowledge of the true owner, even if his possession in the beginning was permissive, it will become adverse, the moment he starts proclaiming to be in hostile possession.
27. From 12.06.1981 onwards, as the sale deeds were null and void but defendants were still continuing to be in possession on the basis of these null & void sale deeds, they perfected their title on the expiry of statutory period of limitation, as their possession was open, continuous, hostile and adverse to the title to the true owners/natural heirs of Charan Singh."
27. The Hon'ble Apex Court in Nazir Mohamed v. J.Kamala and Others (cited supra) held that:
"46. A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendant's original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.25
Dr.GRR, J sa_987_2002
47. The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff to the suit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.
48. In our considered opinion, the High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiff's claim to reliefs is to be decided on the strength of the Plaintiff's case and not on the weakness, if any, in the opponent's case, as propounded by the Privy Council in Baba Kartar Singh v. Dayal Das [AIR 1939 PC 201]."
Whether the defendants need to take the plea of adverse possession is considered by the Hon'ble Apex Court in Nazir Mohammed's Case.
28. The above judgment applied in all fours in the present case. In the present case also, the trial court considered the possession of the defendants as permissive possession without any evidence adduced by the plaintiff in the said regard. The defendants denied the title and ownership of the respondent - plaintiff to the suit property saying that she executed a sale deed on their behalf and they came into the possession and occupation of the suit schedule property 26 Dr.GRR, J sa_987_2002 as owners from 1969 onwards. The defendants also in the present case had not taken the defence of adverse possession. Both the courts below decided the matter basing on the weakness of the case of the defendants as they failed to prove the execution of the unregistered sale deed. Thus, the above judgment squarely applies to the facts of the present case.
29. The defendants were in possession of the suit land from the date of execution of the unregistered sale deed on 10.12.1968. But the suit for recovery of possession was filed by the plaintiff on 26.09.1994 after a period of 26 years by showing a fictitious date as 02.06.1993 and stating that the same was filed within limitation. No evidence was adduced by the plaintiff to show that she was in possession of the property and was dispossessed by the defendant on 02.06.1993. The defendants had stated in their written statement that the suit was barred by limitation. But, no issue was framed by the courts below in the said regard and the said point was not answered. No evidence was adduced by the plaintiff to show that the suit filed by the plaintiff for recovery of possession was not barred by limitation.
30. Though, this Court does not find merit in the contention raised by the learned counsel for the appellants with regard to the conclusiveness of the regularization of the unregistered sale deed by the revenue authorities and that there was a bar to file a suit under Section 8 of the AP Rights in Land and 27 Dr.GRR, J sa_987_2002 Pattedar Pass Books Act, 1971 or that the suit for recovery of possession itself was not maintainable without seeking the relief of declaration of title, but was of opinion that courts below had wrongly casted the burden of proof on the defendants and had not framed proper issues on the point of limitation and had not considered the entitlement of the plaintiff for seeking the relief of recovery of possession in a proper perspective and decided the matter as if it is a suit for declaration of title and traversed beyond the pleadings in the suit. As there is non-application of mind in appreciation of documents filed by the parties, it is considered fit to allow the Second Appeal by setting aside the judgments of the courts below.
31. In the result, the Second Appeal is allowed with costs setting aside the judgments of the courts below in decreeing the suit and the suit filed by the plaintiff is dismissed.
As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 03-06-2024.
Nsk.