Telangana High Court
Mustaq Ahmed vs Noor Jahan Begum on 4 November, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
HONOURABLE Dr.JUSTICE G. RADHA RANI
SECOND APPEAL No.9 OF 2024
JUDGMENT:
This second appeal is filed by the appellants-defendants aggrieved by the judgment and decree dated 08.08.2023 passed in A.S. No.51 of 2018 by the Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities against Women cum IV Additional District and Sessions Judge at Mahabubnagar, confirming the judgment dated 10.04.2017 passed in O.S. No.72 of 2002 by the II Additional Senior Civil Judge (FTC), Mahabubnagar.
2. The respondents No.1 to 5 are plaintiffs in the suit. The parties are hereinafter referred to as arrayed before the trial court as 'plaintiffs and defendants'.
3. The plaintiff No.1 was the mother of plaintiffs No.2 to 5. They were the legal heirs of late Mohd. Ghouse. The deceased defendant No.1 was the younger brother of late Mohd. Ghouse. The case of the plaintiffs in brief was that the plaintiffs, along with one Smt. Mubeen Begum, another daughter of plaintiff No.1, (who was already married and living with her husband), were the owners of suit schedule property i.e. H.No.1-10-61/11/C situated at S.S. Gutta, Mahabubnagar in 2 Dr.GRR,J SA No.9 of 2024 an area of 233.33 sq. yds., out of plot No.6 in Sy. No.85/B. The husband of the plaintiff No.1 i.e. Mohd. Ghouse died on 15.11.2000 leaving behind the plaintiffs and Smt. Mubeen Begum as his legal heirs. The defendant Nos.2 to 8 were the legal heirs of deceased defendant No.1 and were in possession of the suit schedule property after the death of defendant No.1. Late Mohd. Ghouse, husband of plaintiff No.1, purchased the suit schedule property from its earlier owner P. Chenna Reddy through registered sale deed document No.586/79 on 26.03.1979 by paying valid sale consideration. Late Mohd. Ghouse constructed the house over the suit plot with his own funds and also by raising loan from the Cooperative Housing Society Limited, Mahabubnagar, duly obtaining permission from the Municipality. The suit schedule property was in the name of Mohd. Ghouse in the municipal records. Late Mohd. Ghouse during his lifetime permitted the deceased defendant No.1 to stay in a portion of the suit house. The plaintiffs were also staying in the suit house and were using part of the suit premises exclusively and other area jointly along with the defendants.
3.1. Late Mohd. Ghouse had five other brothers including the deceased defendant No.1. The possession of deceased defendant No.1 over the suit property was only permissive. Mohd. Ghouse permitted 3 Dr.GRR,J SA No.9 of 2024 the deceased defendant No.1 to stay in the said house on the assertion that he would vacate the suit premises as and when demanded by the family of the plaintiffs. After the death of Mohd. Ghouse, the deceased defendant No.1 developed malafide intention and was trying to grab the suit house and dispossessed the plaintiffs. The deceased defendant No.1 had taken away various documents, loan payment receipts, electricity bills and receipts, property tax receipts from the custody of the plaintiff No.1 after the death of Mohd. Ghouse by representing that he would verify the loan details and take steps to mutate the names of the plaintiffs in the concerned records. The plaintiff No.1 believed the deceased defendant No.1 and handed over all the said documents to him. Basing on the said documents, the deceased defendant No.1 was setting up a false plea and not returning the same. The plaintiffs requested the deceased defendant No.1 to vacate the suit house on the ground that the plaintiffs No.2 to 5 had grown up and they required the entire house for their own use. The deceased defendant No.1 developed ill intention and started harassing the plaintiffs by various means and disconnected the power supply to the rooms in which the plaintiffs were residing and threatening them to vacate the suit house.
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Dr.GRR,J SA No.9 of 2024 3.2. The electricity service connection No.1753 11965 was in the name of late Mohd.Ghouse. The deceased defendant No.1 and thereafter the defendant Nos.2 to 8 were illegally using a part of the suit house as work shop for preparing Almirahs. The deceased defendant No.1 was threatening the plaintiffs that he would assert that he had paid the loan amount to the Co-operative Society Limited, Mahabubnagar, by taking advantage of having receipts with him. In fact, the loan amount was paid by late Mohd. Ghouse. He might have sent some of the amounts through the deceased defendant No.1 for paying the same. As the plaintiffs had demanded the deceased defendant No.1 to vacate the suit house, the deceased defendant No.1, his wife and children had illegally thrown away the articles of the plaintiffs on the road from the suit house on 02.06.2002 and locked the gate and not permitted the plaintiffs to enter into the suit house. Then, the plaintiff No.1 approached the II-Town Police. The police came to the spot and permitted the plaintiffs to keep their articles in their room. The deceased defendant No.1 and his family members again troubled the plaintiffs on 23.06.2002 by locking the plaintiffs from inside and prevented the plaintiffs to come out of the house. The plaintiff No.1 again managed to come out and lodged a complaint to the Superintendent of Police, 5 Dr.GRR,J SA No.9 of 2024 Mahabubnagar on 04.06.2002. The police failed to take action against the defendant No.1 inspite of lodging the said complaint and asked the plaintiffs to resolve the dispute in civil court. As such, the plaintiffs got issued legal notice to the defendant No.1 on 03.06.2002 calling upon the defendants to vacate the suit house. The defendant No.1 inspite of receipt of the said notice, failed to vacate the suit house and on the contrary increased his harassment, forced the plaintiffs to vacate the suit house and to agree for his demand to partition the suit house into two shares.
3.3. The suit schedule property was the exclusive property of late Mohd. Ghouse, husband of plaintiff No.1. As such, the plaintiffs filed the suit seeking the relief of declaring them as owners of the suit schedule property and to evict the defendants No.2 to 8 from the suit schedule property and to direct the defendants No.2 to 8, being the legal representatives of deceased defendant No.1, to pay future mesne profits @ Rs.5,000/- per month from the date of the suit till the date of vacating the property.
4. The defendants filed written statement admitting the relationship between them and the plaintiffs, and contended that as per 6 Dr.GRR,J SA No.9 of 2024 the tradition in the family and with great respect and affection towards his elder brother late Mohd. Ghouse, the defendant No.1 i.e. Musthaq Ahmed purchased the suit schedule property in the name of his elder brother nominally, as he was an ailing person. The property was purchased with his own funds of Rs.2,400/- from the vendor P. Chenna Reddy. Late Mohd. Ghouse never paid the sale consideration. The defendant No.1 and his wife i.e. defendant No.2 arranged the consideration and paid it to the vendor and the defendant No.1 signed the registered sale deed of the suit plot as an attesting witness. The defendant No.1 raised loan from the Co-operative Housing Society for Rs.43,000/- in the name of his elder brother and repaid the loan amount continuously. Even after the death of late Mohd. Ghouse and deceased defendant No.1, defendants No.2 to 8 had repaid certain installments of the balance of the loan amount with their own money.
4.1. The defendants further contended that they were exclusive owners and possessors of the suit house and plot since its purchase. Neither late Mohd. Ghouse nor the plaintiffs had any occasion to reside in the suit house or any part of the same. The defendant No.1 constructed the house by raising loan of Rs.80,000/- from his brothers and brothers-in-law. Since the date of construction, the defendants No.1 7 Dr.GRR,J SA No.9 of 2024 to 8 had been residing in the suit house till date and denied that the plaintiffs were also staying in the suit house and using a portion of it exclusively. The defendants submitted that they were in custody of the loan repayment receipts, no due certificate issued by the Co-operative Housing Society, electricity bills, property tax receipts and the documents regarding payment of family loans. The production of house documents by the defendants was suffice to believe that the defendants purchased the plot, raised loans of Rs.1,50,000/- in total, constructed the house and enjoying the same as owners. The defendants were in sound position of business to raise the loan and repay it. Late Mohd. Ghouse and the plaintiffs never had resources and they were not in a financial position to construct the suit house by incurring Rs.1,50,000/- to Rs.2,00,000/-. The plaintiffs suppressed the material facts and the title of the defendants over the suit house. On one hand the plaintiffs pleaded that they were evicted and on the other hand, falsely pleaded that they continued the possession with the help of police. If the plaintiffs were in possession, they would have sought for ad-interim injunction order and take steps for restitution, if they were really thrown out of the suit house immediately on 2nd or 3rd June, 2002, but waited till 12.09.2002.
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Dr.GRR,J SA No.9 of 2024 4.2. The defendants further contended that the plinth area of the house was covered by just 100 sq. yds., and the prevailing rental value was Rs.800/- in the said locality. The defendants No.1 to 8 were in continuous and unchallenged peaceful possession over the suit plot for the past 25 years and perfected their title legally. Any rights of the plaintiffs or the husband of the plaintiff No.1 had extinguished and the right to sue was waived long back. The suit was barred by limitation. The plaintiffs executed a document on 27.12.2002 relinquishing their rights over the suit house on the next day of the death of defendant No.1 Musthaq Ahmed before the elders of the family and locality. The same was drafted by one M.A. Hafeez, Superintendent of the District Court, Mahaboobnagar. They also contended that the Deed of Gift cum Withdrawal was executed by late Mohd. Ghouse in favour of defendant No.1 on 09.01.1995 noticing the malafide attitude and intention of plaintiff No.1, and prayed to dismiss the suit with exemplary costs.
5. Basing on the above pleadings, the trial court framed the issues as follows:
1) Whether the plaintiffs are entitled for declaration of title as prayed for?
2) Whether the plaintiffs are entitled for recovery of possession of suit schedule house as prayed for?9
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3) Whether the deceased defendant No.1 purchased the schedule plot in the name of his elder brother Md.Ghouse with the personal money of deceased defendant No.1?
4) Whether the deceased defendant No.1 is in permissible possession of the disputed house?
5) To what relief?
An additional issue was also framed subsequently, as follows:
Whether the plaintiffs are entitled for future mesne profits and if so, to what amount?
6. On behalf of the plaintiffs, the plaintiff No.1 was examined as PW.1 and Exs.A1 to A9 were marked on their behalf. On behalf of the defendants, the defendant No.2 was examined as DW.1 and Exs.B1 to B69 were marked.
7. On considering the oral and documentary evidence on record, the trial court decreed the suit with costs declaring the plaintiffs as owners of the suit schedule house, directing the defendants to hand over the vacant possession of the suit house to the plaintiffs within three months from the date of the judgment on 10.04.2017. 10
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8. Aggrieved by the said judgment and decree, the defendants preferred A.S. No.51 of 2018. The appeal was heard by the learned Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities against Women cum IV Additional District and Sessions Judge at Mahabubnagar and vide judgment and decree dated 08.08.2023 dismissed the appeal confirming the judgment and decree in O.S .No.72 of 2002.
9. Aggrieved by the concurrent findings of the courts below, the defendants preferred this second appeal raising the following substantial questions of law:
(i) Whether the court below appreciated the pleadings and evidence on record?
(ii) Whether the documents Gift deed (Ex.B64) and settlement deed (Ex.B63) were disproved by the respondent herein by adducing evidence?
(iii) Whether the judgment and decree of the appellate court is perverse and contrary to pleadings of plaint or not?
(iv) Whether the possession of the appellants over the suit property is permissive or as owner of suit property?
(v) Whether the provisions of Benami Transactions (Prohibition) Act, 1988 are applicable to this case or not?11
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(vi) Whether the purchase of suit property in the name of Mohd.Ghouse by the Mustaq Ahmed under registered sale deed is correct or not?
(vii) Whether the suit is barred by limitation or not?
(viii) Whether the gift deed (Ex. B64) and settlement deed Ex.B63 confirms title and possession of appellants over suit property or not?
10. Heard the learned counsel for the appellants-defendants and the learned counsel for the respondents-plaintiffs.
11. The learned counsel for the appellants-defendants contended that the lower appellate court failed to appreciate the evidence and material on record and dismissed the appeal mechanically in a routine manner. The lower appellate court erred in opining that the appellants- defendants had not explained and failed to give specific reasons for registering the land in the name of the husband of the plaintiff No.1 i.e. Mohd. Ghouse. The defendants specifically pleaded in their written statement that Mohd. Ghouse, husband of the plaintiff No.1, was the elder brother of the family and out of due respect, the suit property was registered in his name. The courts below failed to consider the pleadings and evidence on record and erred in opining that the defendants failed explain the reasons for registering the plot in the name 12 Dr.GRR,J SA No.9 of 2024 of Mohd. Ghouse. The lower appellate court erred in opining that the defendants had failed to examine any of the family members to prove that there was a custom in the family to register the land in the name of the elder male member of the family. The lower appellate court failed to consider the pleadings of the defendants in the said regard though the defendants pleaded that out of respect and affection, the plot was registered in the name of the elder brother of the family, but not by way of custom. The courts below failed to appreciate the evidence of the defendants with regard to payment of the loan amount and production of payment receipts under Exs.B1 to B24 and B29 to B41, B65 and B66 and payment of electricity bills etc., of the house property. Though the suit property stood in the name of Mohd. Ghouse, the defendants paid the entire loan amount to the Co-operative Housing Society Limited and cleared the loan and obtained no due certificate. As the property nominally stood in the name of Mohd. Ghouse, the payment receipts were issued in his name, but the original payment receipts were with the defendants. The possession of the original receipts and obtaining no due certificate Ex.B67 from the Co-operative Housing Society would show that the defendants were the owners of the suit property. 13
Dr.GRR,J SA No.9 of 2024 11.1. The courts below failed to consider the payment of property tax to the Municipality by the appellants-defendants and since beginning the appellants-defendants were in possession and enjoyment of the suit schedule property and all the said facts would prove the title and possession of the defendants-appellants over the suit property.
10.2. Though Mohd. Ghouse died in the year 2000, till filing of the suit in the year 2002, the plaintiffs did not dispute the possession of the defendants over the suit premises. Long standing possession without any dispute and without any demand for eviction of premises would clearly show the interest and title of the defendants in the suit property. The courts below failed to consider the contents of the Gift Deed marked under Ex.B64. As per the Gift Deed, Mohd. Ghouse orally gifted the suit property in favour of his brother Musthaq Ahmed i.e. deceased defendant No.1 on 31.12.1994 and conferred the title and possession in his favour and executed the said gift deed confirming the oral gift and expressed that he could not execute registered gift deed in view of pendency of loan and mortgage of property with the Co-operative bank. The courts below failed to consider the document named as settlement deed Ex.B63 dated 27.12.2002 executed in between the plaintiffs and defendants, wherein the plaintiffs admitted that they 14 Dr.GRR,J SA No.9 of 2024 had no right and title over the suit property and the suit property should be transferred in the name of Musthaq Ahmed. The oral gift of property was permissible under Mohammadian Law. The plaintiffs failed to prove that Exs.B63 and B64 were created and forged documents. The Benami Transactions (Prohibition) Act, 1988 was not applicable to this case as there was fiduciary relationship between real brothers. The documents Exs.B63 and B64 were material in conveying the title over the suit property to the appellants-defendants. But, the courts below erred in decreeing the suit in favour of the respondents-plaintiffs.
12. The learned counsel for the respondents-plaintiffs, on the other hand, contended that no substantial questions of law were pointed out by the appellants-defendants. All the grounds raised by the appellants-defendants were questions on facts which had already been answered by the trial court and the lower appellate court. The respondents-plaintiffs filed E.P. No.18 of 2013 on 07.11.2023 much prior to filing of the present Second Appeal on 19.12.2023. The respondents-plaintiffs had taken further steps in E.P.No.18 of 2023 and the same was allowed on 09.07.2024 issuing warrant of possession. The notices in E.P. were refused by the appellants-defendants and the Process Server filed an affidavit in the E.P. Both the trial court and the 15 Dr.GRR,J SA No.9 of 2024 lower appellate court concurrently declared that the respondents- plaintiffs were owners of the suit schedule house and ordered for recovery of possession. The appellants-defendants by their actions were frustrating the decree in favour of the respondents-plaintiffs and relied upon the judgments of the Hon'ble Apex Court in Neelam Gupta & Ors., v. Rajendra Kumar Gupra & another1 and of the erstwhile High Court of Andhra Pradesh in Gade Hanmandlu v. Sri Rajarajeswara Swamy Temple (Dharmasala) Karimnagar District and others 2 and in G. Venkat Ratnam v. Kolli Para Jhansi Lakshmi and others 3.
12. It is a settled principle of law that in a Second Appeal filed under Section 100 CPC, the High Court cannot interfere with the findings of facts by the first appellate court and it is confined only to questions of law. The second appeal can be filed if there exists a substantial question of law. Only in exceptional circumstances, the High Court can interfere with the findings of facts on the ground of perversity in the findings of the courts below. The Hon'ble Apex Court in Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar4 1 Civil Appeal Nos.3159-3160 of 2019 dated 14.10.2024 2 2005 (5) ALD 316 3 2011 (2) ALD 468 4 Civil Appeal No.6070 of 2023 dated 21.09.2023 16 Dr.GRR,J SA No.9 of 2024 held that:
"After all, a second appeal is not a "third trial on facts", and so, for reappreciation of evidence to be justified, and for the same to be required as well as being demonstrably, at a different threshold from merely, a "possible different view", perversity or the other conditions of "no evidence" or "inadmissible evidence" ought to be urged, and subsequently, with the Court being satisfied on the arguments advanced, of such a possibility, the Court would then, proceed to call for the record. That is to say that accepting the argument of perversity merely on the submissions made and not having appreciated the record, would be unfair to the Court of first appeal."
13. The parameters for interference by the High Court in the second appeal under Section 100 of CPC are well established and the High Court cannot travel beyond the same and advert to re-appreciate the evidence on factual aspects. The Hon'ble Apex Court in several cases re-asserted the position that in a Second Appeal under Section 100 CPC, there is very limited scope for re-appreciating the evidence or to interfere with the findings of facts rendered by the trial court or the first appellate court.
14. On a perusal of the judgments of the courts below, both the courts below have answered the questions raised by the appellants in this second appeal. Both the courts below observed that the provisions of Benami Transactions (Prohibition) Act, 1988 are not applicable to this case as Ex.A1 sale transaction was dated 26.03.1979 whereas the 17 Dr.GRR,J SA No.9 of 2024 Benami Transactions (Prohibition) Act, 1988 came into force with effect from 1988 and that it has no retrospective effect and only prospective in nature. Learned counsel for the appellants-defendants also fairly conceded that the said question would not arise.
15. Both the courts below considered that in a suit for declaration of title, the burden would lie upon the plaintiffs to establish their title irrespective of the weaknesses in the stand of the defendants and considering that Ex.A1 registered document was standing in the name of Mohd. Ghouse, husband of the plaintiff No.1, and as the defendants were disputing the title of the plaintiffs passed under Ex.A1, held that the onus shifted on the defendants to prove that the original of Ex.A1 was a nominal document and considering the evidence on record, observed that the defendants failed to establish the plea that Ex.A1 was a nominal document in the name of Mohd. Ghouse. The courts below held that the defendants failed to examine any other witness other than defendant No.2 to prove that the defendant No.1 purchased the suit plot in the name of Mohd. Ghouse or that they failed to examine any of the brothers and brothers-in-law of defendant No.1, who advanced the loan for construction of the house.
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16. The courts below also observed that though the defendant No.1 had taken the plea of oral gift and that it was reduced into writing under Ex.B64, failed to prove the same in the required manner. No witnesses were examined to prove Ex.B64. The trial court also recorded that DW.1 in her evidence admitted that the husband of plaintiff No.1 never delivered the possession of the suit house to them and that the suit house was never gifted to her or to her husband (defendant No.1) by late Mohd. Ghouse and observed that the same would falsify the contents of Ex.B64. The trial court also observed that when the defendants were contending that Ex.A1 was a nominal document, the question of Mohd. Ghouse orally gifting the property to defendant No.1 and delivering possession could not be accepted.
17. The trial court further observed that one Riyaz Ahmed was the signatory to Ex.B64 and his non-examination was fatal to the case of the defendants. The courts below also considered the validity of Ex.B63 which was introduced as the deed of Mutual Settlement and observed that Ex.B63 was not proved by examining any of the persons connected with the said document, the plaintiffs contended that Ex.B63 was a created document and obtained by putting them under coercion and threat that they would be made responsible for the death of defendant 19 Dr.GRR,J SA No.9 of 2024 No.1 and accepted the said contention as probable as it was executed immediately on the next day of the death of defendant No.1 and observed that the said settlement was not acted upon by the parties as the plaintiffs were contesting the suit.
18. The courts below also considered the documents marked under Exs.B2 to B24 receipts, B29 to B43 receipts and B45, B47, B49, B51 to 54 receipts, demand notices, electricity bills and the documents marked under Exs.B65 to B69, No Dues Certificates issued by the Co- operative Housing Society, the receipts of Mahaboobnagar Municipality and observed that they pertain to the year subsequent to filing of the suit and that the said documents would prove that the defendants were in possession of the property, but when the suit itself was filed for delivery of possession, it becomes an admitted fact that the defendants were in possession of the property, and so the demand of the tax, electricity bills etc., would not confer any manner of title to the defendants over the suit house.
19. The contention of the learned counsel for the appellants- defendants that the suit was barred by limitation and whether the defendants were entitled for adverse possession, was also considered by 20 Dr.GRR,J SA No.9 of 2024 the courts below. The courts below rightly observed that the defendants did not set up the plea of adverse possession as against the plaintiffs and as such, the question of limitation would not arise and when the plaintiffs were able to establish their title by producing Ex.A1, they were entitled to seek the relief of recovery of possession.
20. The learned counsel for the respondents-plaintiffs also relied upon the judgment of the erstwhile High Court of Andhra Pradesh in Gade Hanumandlu v. Sri Rajarajeswara Swamy Temple's case (2 supra), wherein it was held that:
"20. To establish the plea of adverse possession, much more than mere assertion is needed. It is necessary to examine the persons, who have seen or witnessed such party exercising the rights of ownership, adverse to the interests of the other. Further, the possession should be in respect of a property, which, such party knows, that it does not belong to it. If he is in possession of any property under the impression that he is the absolute owner, it is rather difficult to import the theory of adverse possession to such cases. To certain extent, the lower appellate Court dealt with the plea. However, once it has emerged that the appellant did not lead any evidence, in support of his plea as to adverse possession, nor insisted on, framing of any issue, his claim in this regard, cannot be accepted."
21. In G. Venkata Ratnam v. Kolli Para Jhansi Lakshmi and others (3 supra), it was held that:
"9. Even at the cost of repetition, it need to be noted that the respondents did not dispute the title of the ancestors of the appellant, vis-à-vis the property. The 21 Dr.GRR,J SA No.9 of 2024 principle of law that 'possession follows title' gets attracted, particularly when the property is a vacant site. Such a presumption, however, can be rebutted, only by taking the plea of acquisition of valuable rights by way of transfer, succession, or adverse possession of the same property, by the defendant in a suit. The respondents have taken the plea of transfer in their favour. The transfer, however, is said to be oral. Such a plea deserves to be taken note of, only to be rejected in limine. When a sale through an unregistered document cannot be recognized in law, a plea as to oral sale of a property cannot even be taken note of. Further, the respondents have not examined anyone, who is said to have orally conveyed the property."
22. In the present case also the appellants-defendants had relied upon Exs.B63 and 64 to contend that the suit scheduled property was transferred in their favour by the said documents. The said documents were un-registered documents. Both these documents require compulsory registration in tune with the mandate of Section 17 of the Registration Act. The proviso to Section 49 of the Registration Act mandates that unregistered documents cannot be received as evidence except for collateral purpose. No witness was examined in proof of the contents of the said documents also. As such, the oral gift or the mutual settlement between the parties is rightly not believed by the courts below.
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22. The Hon'ble Apex Court in Neelam Gupta v. Rajendra Kumar Gupta and others (1 supra), by extracting its earlier judgments held that:
"18. In the decision in Ram Sarup Gupta (dead) by LRs v. Bishun Narain Inter College and Others [(1987) 2 SCC 555 566], this Court held: -
"....It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it."
19. In Kashi Nath (Dead) through LRs. v. Jaganath [(2003) 8 SCC 740], this Court held that where the evidence is not in line with the pleadings and is at variance with it, the said evidence could not be looked into or relied on. In Damodhar Narayan Sawale (D) through LRs. v. Tejrao Bajirao Mhaske [2023 SCC OnLine SC], this Court held:-
"......the well neigh settled position of law is that one could be permitted to let in evidence only in tune with his pleadings. We shall not also be oblivious of the basic rule of law of pleadings, founded on the principle of secundum allegata et probate, that a party is not allowed to succeed where he has not set up the case which he wants to substantiate."
23. In the present case also, there is no pleading or evidence with regard to the plea of adverse possession as contended by the learned counsel for the appellants-defendants in the second appeal. 23
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24. The Hon'ble Apex Court has also extracted its earlier judgment in Saroop Singh v. Banto 5, wherein it was held that:
"28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.
29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak [(2004) 3 SCC 376].
30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita [(2004) 1 SCC 271]"
25. The Hon'ble Apex Court also extracted its decision in Ravinder Kaur Grewal and Ors. v. Manjit Kaur and Ors. 6, wherein it was held that:
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(2005) 8 SCC 330 24 Dr.GRR,J SA No.9 of 2024 "60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge.
Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required......"
26. The Hon'ble Apex Court further held that:
"44. In M. Siddiq (D) through LRs (Ram Janmabhumi Temple case) v. Mahant Suresh Das and Ors. [(2020) 1 SCC 1] paragraphs 1142 and 1143 assume relevance and they, in so far as relevant to this case, run as under: -
"1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.6
(2019) 8 SCC 729 25 Dr.GRR,J SA No.9 of 2024 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case."
27. Considering the guidelines stated by the Hon'ble Apex Court which need to be considered when the plea of adverse possession is taken by the parties, but in the present case, there is no plea with regard to adverse possession taken by the defendants and no issue was framed in the said regard and no evidence was adduced by the parties with regard to the said plea, the said plea of adverse possession is not available to the appellants-defendants. This Court does not find any perversity in the findings recorded by the courts below to set aside the same or any substantial question of law as contended by the learned counsel for the appellants-defendants arising in this matter. As such, the second appeal is liable to be dismissed at the stage of admission itself as 26 Dr.GRR,J SA No.9 of 2024 no interference is required in exercise of the jurisdiction under Section 100 of CPC.
28. In the result, the Second Appeal is dismissed at the stage of admission, confirming the judgment and decree dated 08.08.2023 passed in A.S. No.51 of 2018 by the Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities against Women cum IV Additional District and Sessions Judge at Mahabubnagar, confirming the judgment dated 10.04.2017 passed in O.S. No.72 of 2002 by the II Additional Senior Civil Judge (FTC), Mahabubnagar. No order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
___________________________ Dr. JUSTICE G.RADHA RANI November 04, 2024 KTL