M. Anjaneyulu vs M.S. Mahaboob
2022 Latest Caselaw 7747 AP

                                    1

          HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

                  SECOND APPEAL No.1435 of 2005
JUDGMENT:

The appellant is the plaintiff in O.S.No.236 of 1998 filed in the

Court of Junior Civil Judge, Gooty. He pleaded that he purchased the

plaint schedule property on 20.11.1997 bearing Ward No.9, D.No.5-13,

Dabada street, measuring East-West 66/2 feet and North-South 13 feet

with specific boundaries in Pamidi Town of Ananthapur District from R.2 to

R.4/D.1 to D.3 for a consideration of Rs.60,000/-. The appellant has

pleaded that his vendors got the plaint schedule property under

Registered Will dated 20.02.1959 executed by Smt.Bala Subbamma, who

is said to be foster mother of one Smt.Saradamma mother of vendors of

appellant herein. The plaint schedule property is said to be shown as item

No.1 in Ex.A.2 Will dated 20.02.1959. The appellant also stated that

R.1/D.4 filed suit against R.4/D.3 Mr.K.Chandra Sekhar, for specific

performance of contract on the basis of alleged agreement of sale dated

02.10.1983 in O.S.No.39 of 1986 on the file of Subordinate Judge's Court,

Gooty and obtained ex parte decree of specific performance of agreement

of sale. The appellant has pleaded that he was not aware of alleged

agreement of sale said to have been executed by R.4/D.3 in favour of

R.1/D.4 and even otherwise, the said agreement of sale dated 02.10.1983

is not binding on joint 2/3rd share of R.2, R.3/D.1, D.2, it may bind 1/3rd

share of R.4/D.3. The appellant submits that he stepped into the shoes of

his vendors and as R.1/D.4 said to be taken possession of plaint schedule

property recently when it was vacant, he filed suit by adding necessary

parties seeking relief of declaration of his right, title to the plaint schedule

property and sought for possession and he prayed for alternative relief of

partition and separate possession of 2/3rd share in the plaint schedule

property and for costs. The vendors of appellant/plaintiff shown as D.1 to

D.3 in the suit remained ex parte and they have not chosen to contest the

case. The 1st respondent/D.4 alone contested the case and filed written

statement denying claim of appellant. He submits that R.4/D.3 Mr.Chandra

Sekhar having exclusive right and title over the plaint schedule property

executed agreement of sale on 02.10.1983 in his favour and thereafter he

filed O.S.No.39 of 1986 obtained decree and filed E.P.No.71 of 1997 and

got registered sale deed in his favour. He submits that he has been in

possession and enjoyment of the plaint schedule property since long

prayer to agreement of sale dated 02.10.1983, which also known to the

appellant/plaintiff and other defendants thereby he perfected his right,

title to the property by adverse possession and suit is barred by limitation.

It is the contention of R.1/D.4 that he has been paying house tax to the

plaint schedule property and attempt made by R.2/D.1 to come on record

in O.S.No.39 of 1986 filed by him against R.4/D.3 but failed as petition

filed by him in I.A.No.106 of 1988 was dismissed and thereafter R.1 to R.3

colluded with appellant created sale deed to defeat the decree passed in

his favour in O.S.No.39 of 1986. He further submit that the appellant is

not entitled to seek partition of the property as he is bona fide purchaser

of the plaint schedule property, who has been in possession and

enjoyment and his right also confirmed in a suit filed by him in O.S.No.39

of 1986. He prays to dismiss the suit.

2. Basing on above pleadings, the trial Court settled the following

issues:-

1) Whether the plaintiff is entitled for declaration of his right and title over the suit property?

2) Whether the plaintiff is entitled to claim the alternative relief of partition and separate possession of the plaint schedule property as prayed for?

3) Whether the plaintiff is entitled for damages as claimed for?

4) Whether the Court fee paid is correct?

5) To what relief?

3. Trial Court framed following additional issues on 15.10.2001

1) Whether the plaintiff is entitled for partition and separate possession of 2/3rd share in the plaint schedule property?

2) Whether the defendant has perfected his right over the plaint schedule property by adverse possession?

3) Whether the suit is barred by limitation?

4. Before trial Court, appellant examined himself as PW.1 and also

examined PWs 2 to 8 on his behalf, out of which, PW5 Mr.K.Radha

Krishnaiah is D.1 in the suit who supported the case of appellant/plaintiff.

The appellant also filed Exs.A.1 to A.3 and Exs.X.1 to X.3 to support his

contention. On behalf of R.1/D.4, he himself examined as DW.1 and got

marked Exs.B.1 to B.11.

5. Learned trial Judge decreed the suit in part declaring the right of

appellant in respect of the plaint schedule property and possession though

rejected his prayer for damages and alternative relief of partition.

6. Aggrieved by the Judgment and decree passed by trial Court,

R.1/D.4 filed A.S.No.14 of 2002 and appellant/plaintiff also filed cross

appeal suit in A.S.No.14 of 2002 on the file of Senior Civil Judge, Gooty.

The appeal filed by R.1/D.4 allowed by the appellate Judge and dismissed

cross appeal filed by appellant herein. This Court at the time of admitting

second appeal under Section 100 Civil Procedure Code (in short C.P.C)

framed following substantial question of law:-

"Whether non-alienating coparceners would be bound by the alienation of the other co-owner".

7. The appellant has filed I.A.No.1 of 2022 for framing additional

substantial question of law, which was allowed by this Court by framing

following additional substantial question of law:-

"Whether the findings of the 1st appellate Court that the plaint

schedule house property is not covered by Ex.A.2 Will is not based

on any evidence and therefore perverse?"

8. I have heard learned counsel Mr.Virupaksha Dattatreya Goud,

representing the appellant as well as learned counsel Ms.K.Sumathi,

representing R.1/D.4. Both sides have filed brief written submissions and

learned counsel for the appellant relied on precedent of law.

9. It is the contention of learned counsel for the appellant that though

this Court can only consider substantial question of law when the 1st

appellant Court wrongly interpreted Ex.A.2 Will contents which also a

question of law and when there is mis-construction of a document or

wrong application of principle of law in constructing a document, which

raises a substantial question of law. He would further submit that when

the 1st appellate court finding is based on no evidence, it will become

substantial question of law can be interfered by this court. It is the

contention of learned counsel for appellant that there is no prohibition of

entertaining second appeal even on a question of fact provided the Court

has to satisfy that the findings of fact recorded by the Court below stood

vitiated by non consideration of relevant evidence and if finding on the

fact are found to the perverse. He also would submit that R.1/D.4 said to

be tenant in the plaint schedule property cannot plead adverse

possession, which is against to the well settled principles of law. He prays

to allow the second appeal and set aside the Judgment of 1st appellate

Court and prays to restore the Judgment and decree passed by trial Court.

He relied on following precedent law:-

1) Hero Vinoth ... Appellant Vs. Seshammal... Respondent AIR

2006 SC/2234=Manu/SC/2774/2006 wherein it is held at para 25 of

the Judgment, which reads as under:-

25. The principles relating to Section 100 CPC, relevant for this case, may be summarized thus:-

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal

principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;

(ii) The courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

2) Illoth Valappil Ambunhi (D) by L.R.s ... Appellants Vs.

Kunhambu Karanavan ... Respondent 2019(14)

SCALE408=Manu/SC/1401/2019 wherein it is held at paras 12, 13,

and 14, which reads as under:-

12. Learned senior counsel appearing for the Respondent has cited a very recent judgment of this Court in Gurnam Singh (D) by LRs. v. Lehna Singh (D) by LRs. reported in (2019) 7 SCC 641, where this Court re-affirmed that the jurisdiction of the High Court to entertain a Second Appeal under Section 100 of the CPC after the 1976 amendment is confined to a substantial question of law. Thus existence of a "substantial question of law" is a sine qua non for the exercise of jurisdiction under Section 100 of the CPC.

13. In Gurnam Singh's case (supra) this Court held that in a Second Appeal under Section 100 of the CPC, the High Court cannot substitute

its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the Court were erroneous being:

(1) contrary to the mandatory provisions of the applicable law; or

(2) contrary to the law as pronounced by this Court; or

(3) based on inadmissible evidence or no evidence.

14. It is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC.

3) Narayan Sitaramji Badwaik (Dead) through L.Rs ... Appellants

Vs. Bisaram and Ors. ... Respondent AIR 2021 SC

2438=Manu/SC/0192/2021 wherein it is held at para 10, which reads

as under:-

10. It is a settled position of law that a second appeal, under Section 100 of the Code of Civil Procedure, lies only on a substantial question of law [refer Santosh Hazari v. Purushottam Tiwari (deceased) by LRs, (2001) 3 SCC 179]. However, this does not mean that the High Court cannot, in any circumstance, decide findings of fact or interfere with those arrived at by the Courts below in a second appeal. In fact, Section 103 of the Code of Civil Procedure explicitly provides for circumstances under which the High Court may do so. Section 103 of the Code of Civil Procedure is as followed:

Section 103. Power of High Court to Determine Issue 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 first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100.

4) Balasubramanian and Others...Appellants Vs. M.Arockiasamy

(Dead) through L.Rs.,..Respondent AIR 2021 SC

4221=Manu/SC/0588/2021 wherein it is held at para 14, which reads

as under:-

14. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property. When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.

5) Achal Reddi .. Appellant Vs. V. Ramakrishna Reddiar and others

... Respondents AIR 1990 Supreme Court page 553 wherein it is

held that in the case an agreement of sale the party who obtains

possession, acknowledges title of the vendor even though the agreement

of sale may be valid. It is an acknowledgement and recognition of the title

of the vendor which excludes the theory of adverse possession.

6) Shaik Avula Mastan and Others ... Appellants Vs. Shaik Abid

and Others ... Respondent 2007(1) ALD 793 =

Manu/AP/1014/2006 wherein it is held at para 15, which reads as

under:

15. Even otherwise, the plea of adverse possession is not available to the defendant. The reason is that the defendant himself admitted that he is the tenant of Moula Saheb. In ATC No. 35 of 1981, the defendant herein deposed as DW-4. The certified copy of the deposition of the defendant in the said ATC were marked as Ex.A-25. The relevant portions, wherein he stated that he is the tenant of Moula Saheb, his father-in-law were marked as Exs.A-18 and A-19. Once the defendant himself admitted that he is the tenant in respect of the suit schedule property, he has to overcome the operation of two principles of law, before he can successfully assert the plea of adverse possession: The first is that possession of tenant can never be adverse to the landlord or anyone claiming through him. The defendant had unequivocally recognized Shaik Moula Saheb, as his landlord, and the same relationship continues, vis-a-vis the successors, legatees, or donees, of his landlord. He is not entitled to raise the plea of adverse possession, against the plaintiffs, just as he was not capable of pleading it, vis-a-vis the Moula Saheb.

7) Mohan Lal (Deceased) through his Lrs.Kachru and Others ...

Appellants Vs. Mirza Abdul Gaffar and Others ...Respondent AIR

1996SC910=Manu/SC/1039/1996 wherein it is held at paras 3 and

4, which reads as under

3. The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from March 8, 1956, he has perfected his title by prescription. Secondly, he pleaded that he is entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882 (for short, 'the Act').

4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam necprecario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.

8) Arjuna Subramanya Reddy Vs. Arjuna China Thangavelu

2006(5) ALD 169 wherein it is held at para 13, which reads as under:

13.The facts of the instant case squarely attract the ratio laid down by the Supreme Court in Achal Reddi's case (supra). Once the respondent has pleaded an executory contract in the form of an oral

sale from PW.2, he is precluded from taking the plea of adverse possession.

9) K. Adivi Naidu and Others..Appellants Vs E.Duruvasulu Naidu

and Others..Respondent 1995(3) CCC 538=Manu/SC/0796/1995

wherein it is held at para 6, which reads as under:

6.Having considered the respective contentions, we are of the view that since the preliminary decree was allowed to become final, the trial Court need to give effect to it. It is settled law that alienees of the alinees have no right to equities. Equally, it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other co-parceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to which their principal alienor was entitled would be allotable to them as a special case. However, since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition, it should, in letter and spirit, be given effect to. While passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well. Considered from this perspective, the direction issued by the Division Bench would be modified as above, and the trial Court would pass the final decree accordingly.

10. The Hon'ble Apex Court in recent Judgment in Chandrabhan (Deceased) Thorugh LRs. And Ors ... Appellant Vs Saraswati and

others ... Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of 2016) Judgment dated 22.09.2022 held at para 33 of Judgment, which reads as under:-

33. The principles relating to Section 100 of the CPC relevant for this case may be summarized thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong 7 (2001) 3 SCC 179 application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is

still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

11. Bearing in mind above principles of law enunciated by Hon'ble Apex

Court in the above referred decisions while considering scope of Section

100 of C.P.C, this Court proceed to dispose of this appeal.

12. Learned counsel for R.1/D.4 would submit that R.2 to R.4/D.1 to

D.3 having failed in their attempts to come on record in O.S.No.39 of 1986

created Ex.A.1 nominal sale deed in favour of appellant herein and they

are trying to defeat the decree passed by the Civil Court in favour of

R.1/D.4, which rightly refused by the 1st appellate Court by dismissing the

suit filed by appellant. She would further submit that decree passed in

favour of R.1/D.4 in O.S.No.39 of 1986 became final and sale deed in

favour of appellant is executed on 20.11.1997, which is subsequent to the

decree of specific performance in favour of R.1/D.4 due to that Ex.A.1 sale

deed is not binding on R.1/D.4. It is the contention of learned counsel for

R.1 that originally suit schedule property belongs to one Smt.Bala

Subbamma, who brought up one Smt.Saradamma as foster daughter, who

got married Mr.K.Sankaraiah and gave birth to four sons i.e.,R.2 to R.4

and one Mr.Surya Narayana. She also argued that after the death of

Smt.Saradamma R.2 to R.4 and their another brother Mr.Surya Narayana

entitled to the properties as joint owners except suit schedule property,

which is exclusive property of R.4/D.3, who sold the same to R.1/D.4

under agreement of sale on 02.10.1983 and when R4/D3 failed to execute

Registered Sale deed, R.1 filed suit in O.S.No.39 of 1986 on the file of

Senior Civil Judge, Gooty and obtained decree on 20.04.1989 and filed

execution petition in E.P.No.71 of 1997 and got registered sale deed

through Court. She would further submits that R.1/D.4 has been in

possession and enjoyment of plaint schedule property even prior to

02.10.1983 i.e.. date of agreement of sale, which is known to appellant

and other respondents and thereby R.1 perfected his right, title to the suit

schedule property even by adverse possession. She also argued that

R.4/D.3 informed R.1/D.4 that there was family partition between himself

and his family members and plaint schedule house property fell to his

share and nobody having any interest in the same due to that R.1/D4

purchased the property under agreement sale and got sale deed through

process of the Court. She prays to dismiss the appeal filed by the

appellant.

13. Discussions and findings on substantial question of law:-

Though R.1/D.4 filed written statement denying claim of the

appellant in the suit and he also denied Ex.A.2 Will but written

submissions filed by leaned counsel for R.1 shows that original ownership

of the plaint schedule property by Smt. Bala Subbamma is not disputed.

On perusal of Ex.A.2 registered Will dated 20.02.1959 executed by

Smt.Bala Subbamma in favour of R.2 to R.4/D.1 to D.3 and in favour of

one Mr.Surya Narayana (deceased brother of R.2 to R.4) wherein item

No.1 of property is shown as house property. It would be beneficial to

extract item No.1 of schedule property shown in Ex.A.2 Registered Will

dated 20.02.1959, which reads as under:

"Ananthapur, Registrar District, Gunthakal Sub-Registrar District, Pamidi Village"

Ward                       D.No.                     Assessment No.

3 Old                     124 Old                          682 New

6 Old                     697 New

East: Passage, West: Passage, North : Kallumadhi Kesavayya, Gonapallu Satyanarayana houses and South: Item No.2 house shown in the Will measuring East-West 66 feet and North-South 13 feet terraced house.

14. Now it would also beneficial to extract schedule shown in E.P.No.71

of 1997 in O.S.No.39 of 1986 on the file of Subordinate Judge, Gooty filed

by R.1/D.4, which reads as under:-

House situated in the R.D. of Ananthapur S.R.D. of Pamidi in Pamidi Panchayat limits Ward No.Old 3 new 6 D.No.Old 124 and new 697 Asst.No.682. As per tax receipt of the year 1983 in Asst.No.1141 D.No.208 measuring E-W:83 feet North-South:13 feet with main door facing west bounded by:East:Passage; West:Passage; North:House of K.KasannaSetty and G.Satyanarayana; South: House of P.Kasim Bee.

15. It is the contention of R.1/D.1 that he purchased above referred

schedule mentioned property under agreement of sale from R.4/D.3 on

02.10.1983 and filed suit in O.S.No.39 of 1986 and obtained decree and

thereafter filed E.P.No.71 of 1997 and got sale deed through process of

the Court. Learned appellate Judge at Para 23 of the Judgment observed

that appellant could not establish that all the three brothers had right in

suit property since Ex.A.2 Will does not make any reference of suit

schedule property fallen to the share of the brothers. The said observation

of learned trial Judge is perverse as it is against the contents of Ex.A.2

Will, which clearly shows that item No.1 is house property, which R.1/D.4

is also claiming in E.P.No.71 of 1997 in O.S.No.39 of 1996 filed by him.

Even it is not the contention of R.1/D.4 in his written statement that

property shown in Ex.A.2 Will deed is not referred in Ex.A.1 registered sale

deed. On perusal of Ex.A.2 registered Will executed by Smt.Bala

Subbamma, which clearly shows that she bequeathed plaint schedule

property to four brothers, who are sons of her foster daughter

Smt.Saradamma admittedly one of the sons, Mr.Surya Narayana died

unmarried and issueless, thereby R.2 to R.4/D.1 to D.3 became joint

owners of the plaint schedule property. There is no dispute about original

ownership of the plaint schedule property and thereby R.1/D.1 cannot

dispute Ex.A.2 Will deed as he is also tracing out his title to the property

through Smt.Bala Subbamma and said to be purchased property from one

of the joint owners. The appellant also examined PWs.2, 3 and 4, who got

marked Exs.X.1 to X.3 sale deed jointly executed by R.2 to R.4/D.1 to D.3

to refute the contention of R.1/D.1 that brothers have divided properties

and they independently sold properties got by them through Ex.A.2

Registered Will. The appellant also examined PW.7 Process Server of the

Court to prove that witnesses shown in Ex.A.2 Will are no more and

returned summons issued to the witnesses marked as Exs.A.3 to A.5 with

endorsement of village Revenue Officer, which also marked as Ex.A.6.

When R.1/D.1 also claiming title through R.4/D.3 Mr.K.Chadra Sekhar,

who got suit schedule under Ex.A.2, R.1/D.1 cannot deny Ex.A.2

Registered Will executed by Smt.Bala Subbamma in favour of R.2 to R.4

and Mr.Surya Narayana. When R.2 to R.4 are joint owners of plaint

schedule property, it is not known how R.1/D.4 is claiming that R.4/D.3

alone is exclusive owner of the plaint schedule property though stated that

remaining properties are joint except plaint schedule property. For which

R.1/D.4 not adduced any evidence to substantiate his contention and

appellant examined PWs.2 to 4 and got marked Exs.X.1 to X.3 to prove

that all brothers put together sold the properties being joint owners. As

per ratio laid down in K. Adivi Naidu case referred supra relied on by

learned counsel for appellant one coparcener or joint owner has no right

to sell undivided share in the joint family property and any sale is made

will not bind other coparceners. As observation of appellate Court in

respect of contents in Ex.A.2 are against to the contents of documents,

which is perverse which forms substantial question of law, which has to be

answered in favour of appellant. Further, the contents in Ex.B.9 house tax

receipt and Ex.A.1 sale deed are similar having same door number, which

is 5-13 tallying extent and boundaries. Exs.B.5, B.7 also shows that even

in the year, 1990 and 1997, house tax demand notice issued in the name

of Smt.Bala Subbamma, who is executant of Ex.A.2 Will. When an

inference of fact from the recitals or contents of a document is a question

of fact, but legal effect of the terms of a document is question of law,

which wrongly interpreted by the learned Appellate Judge. The same ratio

reiterated by Hon'ble Apex Court in the decisions relied on by learned

counsel for appellant. R.1/D.4 pleaded that he also perfected his right,

title over the plaint schedule property by adverse possession against

appellant and vendors of appellant out of them one person is no other

than said to be executant of agreement of sale in favour of R.1/D.4.

R.1/D.4 also claiming that he has been in possession and enjoyment of

paint schedule property even prior to agreement of sale dated 02.10.1983,

but he deposed that he took possession of the house schedule property in

the year 1971 and paid rents for the said house till September, 1983 and

thereafter not paid any rents as he purchased the house property under

agreement of sale, which makes it clear that initial possession of property

by R.1/D.1 is as a tenant and thereafter claiming ownership of the

property being purchaser from R.4/D.3. When R.1/D.1 is claiming

possession of property as a tenant, he cannot claim adverse possession.

Even otherwise when he is claiming possession over the property under

agreement of sale holder, which exclude the theory of adverse possession

as held by Hon'ble Apex Court in Achal Reddi case referred supra relied

by this Court in Allana Subrahmanayam Reddy case 8 referred supra.

Even non-alienating coparceners not bound by the alienation of other co-

owners. The findings of the 1st appellate court "that decree passed against

appellant/D.4 in OS.No.39 of 1986 became final against R2 to R4 of this

appeal" is against to the records and contents of Ex.B1 wherein R4/D3

Mr. K. S. Chandrasekhar is alone shown as respondent/J.Dr and no decree

is passed against R2 and R3 who are joint owners of plaint schedule

property. It appears that after obtaining Ex.A.1 registered sale deed by

appellant/plaintiff from R.2 to R.4, R.1/D.4 filed E.P.No.71 of 1997 and

obtained sale deed through process of the Court in respect of plaint

schedule property, for which, the learned trial Judge rightly observed that

it is subsequent to the date of Ex.A.1 due to that by the date of obtaining

registered sale deed by R.1/D.4 through process of the Court R.4/D.3 had

no right in the property, which he already sold to appellant/plaintiff under

Ex.A.1 along with R.2, R.3 due to that learned trial Judge refused to grant

alternative relief of partition and separate possession 2/3rd share in the

plaint schedule property sought by appellant/plaintiff. Therefore, in the

circumstances and discussions held supra, accepting the contention of the

appellant, the second appeal has to be allowed setting aside the decree

and Judgment of the first appellate Court restoring the decree of the trial

Court.

16. In the result, the Second Appeal is allowed. Consequently the

decree and Judgment dated 25.04.2005 in A.S.No.14 of 2002 on the file of

Senior Civil Judge, Gooty are set aside. The decree and Judgment dated

28.02.2002 in O.S.No.236 of 1998 on the file of Junior Civil Judge, Gooty

is restored. In the circumstances, the parties are directed to bear their

own costs throughout. As a sequel pending miscellaneous petition, if any,

stand closed. Interim orders, if any, stand vacated.

_____________________ BANDARU SYAMSUNDER, J Dt:12.10.2022 Chb

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

SECOND APPEAL No.1435 of 2005

Date: 12.10.2022

Chb