The Appeal vs Additional District Judge
2023 Latest Caselaw 3815 AP

            THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                       APPEAL SUIT NO. 417 OF 2009

JUDGMENT:

1. The Appeal, under Section 96 of the Code of the Civil Procedure, is

filed by the appellants/plaintiffs challenging the decree and Judgment

dated 23.03.2009 in O.S. No.195 of 2005 passed by the learned IV

Additional District Judge, Visakhapatnam (for short, 'trial court').

2. The appellants, who are the plaintiffs, filed the suit vide O.S.

No.195 of 2005 seeking recovery of possession of the schedule property

after evicting the defendants, their men and agents from the suit schedule

property and also for damages of Rs.1,00,000/- for unauthorized

occupation of the schedule property.

3. The parties will hereinafter be referred to as arrayed before the trial

Court.

4. The brief averments of the plaint are as under:

The plaintiffs are the absolute owners of property spanning 170

sq. yards inclusive of an R.C.C., House with Door No.39-6-59

situated in Sy.No.9/5-part, 9/5A at Muralinagar (for short, 'the

suit schedule property'). The acquisition of the property took

place through a registered sale deed dated 17.08.2005 for valid

consideration from Ganni Veera Lakshmi. The plaintiffs could

understand that the plaintiffs' vendors permitted the

defendants to stay in the suit schedule property, despite giving

time by the previous owners, the defendants failed to vacate 2 TMR, J A.S. No.417 of 2009

the suit schedule property. Upon the transfer of ownership to

the plaintiffs, the permission, if any, given to the defendants

came to an end. The plaintiffs issued a quit notice dated

27.08.2005 demanding the defendants to vacate the suit

schedule property by the night of 30.09.2005. The defendants

refused to receive the registered notices. Since the defendants

have been in unauthorized possession of the suit schedule

property, they are liable to pay damages of Rs.1,00,000/-.

5. The defendants filed their written statements, asserting that the

ages of defendants 1 and 2 were wrongly shown, which highlight the

plaintiffs lack of knowledge and the suit was filed to have a wrongful gain

over the defendants. Smt.Ganni Veera Lakshmi and the defendants

entered into an agreement of sale dated 12.05.1998 regarding the suit

schedule property for a consideration of Rs.1,90,000/-. An initial payment

of Rs.1,00,000/- was made to Ganni Veera Lakshmi, and she promised to

execute the registered sale deed within three months after obtaining the

necessary clearance from the competent authorities, but she could not get

the same. On 11.04.1999, G.Veera Lakshmi's husband, G.V.V.S.Murthy,

received Rs.80,000/- from the defendants and executed another

agreement on the even date and took away the earlier agreement of sale

dated 12.05.1998. Assurance was given that U.L.C., clearance certificate

would be obtained within a month. However, G.Veera Laksmi and her

husband handed over the suit schedule property to these defendants, who 3 TMR, J A.S. No.417 of 2009

have been in possession. After that, the defendants sent a demand draft

bearing No.544541 dated 17.05.1999 for Rs.8,200/- drawn on S.B.I.,

Kailasapuram Branch, Visakhapatnam. Even on receipt of the total

consideration, G.Veera Lakshmi and her husband used to postpone the

execution of a registered sale deed. Since the defendants' vendors did not

respond to their demands, they issued a legal notice dt.20.06.1999 to

G.Veera Lakshmi's husband. The G.Veera Lakshmi's husband replied,

denying the facts of the defendants' notice. The defendants paid the sale

consideration with the mediation of one P.Radha Krishnaiah, Principal

I.T.I, Visakhapatnam. The defendants have constructed a shop adjacent to

the suit schedule property, and one of the tenants has been doing Kirana

business in the shop for the last three years. G.Veera Lakshmi influenced

the authorities of the Municipal Corporation, Visakhapatnam and got her

name mutated in the records by suppressing the sale of the suit schedule

property in favour of the defendants. G.Veera Lakshmi, in active collusion

with the plaintiffs, fabricated an agreement of sale for Rs.13,00,500/- and

filed this suit through the plaintiffs to have a wrongful gain.

6. Based on the above pleadings, the trial Court framed the following

issues:

(1) Whether the plaintiffs are the owners of the suit schedule property?

(2) Whether the plaintiffs are entitled to the recovery of possession of the suit schedule property by evicting the defendants, their men and agents from the suit schedule property? (3) Whether the plaintiffs are entitled to the alternative relief of eviction of the defendants, their men and agents etc., from the 4 TMR, J A.S. No.417 of 2009

plaint schedule property and hand over the vacant possession of the same to the plaintiffs in case the defendants are found to be tenants?

(4) Whether the plaintiffs are entitled to damages? If so, to what amount?

(5) To what relief?

7. During the trial, on behalf of the plaintiffs, P.W.1 was examined, and

Exs.A1 to A.6 were marked. On behalf of the defendant, D.Ws.1 and 2 were

examined, and Exs.B1 to B.15 were marked.

8. After completing the trial and hearing the arguments of both sides,

the trial Court dismissed the suit. Aggrieved by the trial Court's Judgment

and decree, the appellants/plaintiffs filed the present Appeal.

9. Sri P.Durga Prasad, learned counsel for the appellants/plaintiffs

contends that the trial Court ought to have acknowledged that the

primary object of the suit is to evict the defendants from the schedule

property, based on the rightful ownership. The trial Court failed to

understand, once it is established that the defendants put forth a false

claim of purchasing the property, the onus does not remain with the

plaintiffs and the burden shifts on to the defendants to effectively prove

their alleged acquisition of the property in question. When the defendants

failed to substantiate their case, the trial Court ought to have ordered

eviction, the law does not specify a particular procedure for the

termination of any granted permission; the trial Court finding on the

omission of correct ages of the defendants in the plaint appears

unwarranted.

                                       5                                  TMR, J
                                                               A.S. No.417 of 2009

10. Per contra, Sri C.Venkaiah, learned counsel appearing for the

respondents/defendants contends that the trial Court correctly

appreciated the facts of the case and came to a correct conclusion. The

reasons given by the trial Court do not want any modification.

11. The findings recorded by the Trial Court having regard to the

pleadings in the suit and in light of the rival contentions and submissions

made on either side before this Court, the following points would arise for

determination:

1) Whether the trial Court is justified in holding that the plaintiffs are not entitled to recover the schedule property?

2) Whether the plaintiffs are entitled to damages? If so, to what amount?

3) Whether the Judgment passed by the trial Court needs any interference?

POINT NO.1:

12. Learned counsel for the respondents/defendants contends that the

plaintiffs must be able to establish the title to claim possession; the

plaintiffs have failed to establish their title, so, the maxim that possession

follows title does not help them to recover possession; that plaintiffs

cannot seek mere relief of recovery of possession without seeking

declaration of title.

13. In Anathula Sudhakar V. P. Buchi Reddy1, the Hon'ble Supreme

Court in paragraph No.14 has held as under:

1 (2008) 4 SCC 594
                                         6                                     TMR, J
                                                                    A.S. No.417 of 2009

"We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration.

14. In light of the settled legal position, now I consider whether the

denial of the plaintiffs' title by the defendants raises a cloud on the

plaintiff's title to the schedule property, if any or it is a mere denial to

contest the suit.

15. The plaintiffs' case is that they purchased the schedule property

through Ex.A.1 from Smt.G.Veera Lakshmi, while the defendants contend

that they purchased the schedule property from Smt.G.Veera Lakshmi

under an agreement of sale. It is evident that, both parties acknowledge

that the schedule property was belonged to G.Veera Lakshmi. The

defendant's stand that plaintiffs colluded with G.Veera Lakshmi to create

Ex.A.1 sale deed. Thus, it is manifest that it is not the defendant's case

that G. Veera Lakshmi did not execute Ex.A.1 sale deed in favour of the 7 TMR, J A.S. No.417 of 2009

plaintiffs. Though the trial Court has referred to the defendants' stand, it

has observed that no other witnesses were examined on behalf of the

plaintiffs to prove the execution of Ex.A.1 sale deed. The trial Court also

observed that there is no reason assigned as to why the plaintiffs failed to

examine their vendor or any other witnesses to prove the passing of

consideration and the genuineness of transaction under Ex.A.1. It is not

the defendants stand that the plaintiffs' vendor did not receive the

consideration covered under Ex.A.1. The trial Court appeared to give

undue weight to the defendants' stand regarding the absence of testimony

from the scribe and attestors of Ex.A.1. It is not for the defendants to say

that the plaintiffs' vendor did not receive the consideration. The recitals of

the sale deed show that the plaintiff's vendor received the sale

consideration under Ex.A.1 and delivered the possession to the plaintiffs.

The trial Court also observed that the plaintiffs' names were mutated in

the records of the Greater Visakha Municipal Corporation. The plaintiffs

relied on Ex.A.4 (Receipt showing the payment of mutation fee) and Ex.A.5

(Original receipt issued by the Municipal Corporation, Visakhapatnam) to

show the mutation of their names in the municipal records. However, the

trial Court noted that since the validity of Ex.A.1 itself is being challenged,

the legitimacy of the sale deed becomes a pivotal factor in assessing the

implications of the plaintiffs' names mutation in the Corporation records.

16. The plaintiffs also relied on Ex.A.6 (Tax passbook). The documents

relied on by the plaintiff show that consequent to the Ex.A.1 sale deed, the 8 TMR, J A.S. No.417 of 2009

plaintiffs have taken steps to mutate their names in the records and paid

the tax and passbook also obtained.

17. Coming to the defendants' case, they put forth the claim that the

2nd defendant had acquired the schedule property through original of

Ex.B.14 (Ex.B.14 is a photocopy of sale agreement dated 12.05.1998).

They contended that an advance payment of Rs.1,00,000/- was made as

part of total consideration of Rs.1,90,000/-. Subsequently, an additional

payment of Rs.80,000/- was given on 11.04.1999 and a demand draft of

Rs.8,200/- along with cash payment of Rs.1,800/- was made on

17.09.1999, completing the full consideration. The plaintiffs contested the

admissibility of Ex.B.14 document. Despite the objection, the trial Court

marked Ex.B.14 document albeit subject to the objection. In its

Judgment, the trial Court rightly addressed the objection and noted that

for admissibility of a photocopy, the defendants should demonstrate

unavailability of the original document and its loss. The trial Court also

noted that it should be established that Ex.B14 copy was generated from

the original document through a mechanical process. From the inception,

the defendants' maintained that they had provided original of Ex.B.14 to

their vendor and G.Veera Lakshmi's husband during the execution of the

second agreement.

18. The trial Court after appreciation of the evidence on record, arrived

at the conclusion that the defendants were unsuccessful in proving the

execution of the second agreement by their alleged vendor. There exists no 9 TMR, J A.S. No.417 of 2009

substantiation that the vendor in question took possession of the original

Ex.B.14 and that Ex.B.14 was derived from the original. Consequently,

the defendants did not succeed in establishing Ex.B.14 as a legitimate

document emanating from its original source. This led to the exclusion of

Ex.B.14 from the trial Court's consideration. Importantly, the defendants

have not contested the accuracy of the trial Court's findings and

observations and these findings have reached a final and conclusive state.

Notably, the trial Court's Judgment does not provide the reasons for

marking Ex.B.14 and raising a point of procedural concern. Ideally, the

trial Court should have determined the admissibility of Ex.B.14 at the

time of marking it.

19. The defendants' also assert that they received a reply notice

(Ex.B.15) from G.V.V.S.Murthy in reply to their legal notice dated

20.06.1999. The reply allegedly issued to the 2nd defendant on 04.12.1998

acknowledged the existence of agreement of sale dated 12.05.1998

concerning the schedule property for a consideration of Rs.1,90,000/- and

notice demanded the payment of the remaining sale consideration,

totaling Rs.90,000/-.

20. It is evident that the plaintiffs' also opposed the admission of

Ex.B.15 document citing its status as a photocopy. Despite the plaintiffs'

objection, the trial court proceeded to mark Ex.B.15 following a pattern

similar to that of Ex.B.14 with the objection noted. The trial Court aptly

pointed out that the defendants have not taken a plea regarding the 10 TMR, J A.S. No.417 of 2009

issuance of notice vide Ex.B.15 to the 2nd defendant. In fact, the

defendants introduced Ex.B.15 without accompanying pleadings or

supportive evidence. The defendants have also taken a plea that all the

relevant documents including Ex.B.15 were furnished to the District

Collector, Visakhapatnam, during the time they lodged a complaint

against the plaintiffs.

21. The defendants' did not adduce any evidence to substantiate their

claim that the documents were submitted to the office of the District

Collector. To establish the same, they should have taken measures to call

for the production of these documents. The trial Court aptly observed that

unless the documents can demonstrate that the original of Ex.B.15 is

unavailable or cannot be produced in Court, the document cannot be

considered. There is a lack of evidence indicating that Ex.B.15 is derived

from its original form rendering it inadmissible as secondary evidence. The

defendants did not dispute the correctness of the trial court's findings.

The trial Court should have addressed the admissibility of the photocopy

of the document (Ex.B.15) at the time of its marking. However, this aspect

was not accurately considered by the trial Court. The defendants did

present an office copy of the complaint submitted to the Commissioner of

Police (Ex.B.3) accompanied by a receipt from the Central Complaint Cell,

dated 31.01.2005. Ex.B.3 illustrates that the 1 st defendant lodged this

complaint well before the execution of Ex.A.1 sale deed. The contents of

Ex.B.3 suggest that G.Veera Lakshmi entered into a sale agreement 11 TMR, J A.S. No.417 of 2009

concerning the suit schedule property with the 2nd defendant. Yet, she

failed to execute the registered sale deed as agreed. Ex.B.3 does not

conclusively prove the existence of an agreement between G. Veera

Lakshmi and the 2nd defendant, instead it confirms the act of raising a

complaint regarding the alleged breach of such an agreement.

22. Ex.B.6 (Photocopy of the letter addressed to the District Collector)

reveals that the 1st defendant lodged a complaint against the G.Veera

Lakshmi on 24.10.2004 with similar contentions as in Ex.B.3. A receipt

acknowledging the complaint (Ex.B.12) was also provided. Mere claiming

of right in Ex.B.6 does not automatically validate the defendants stand

regarding G.Veera Lakshmi's execution of an agreement of sale.

Additionally, the defendants filed a complaint with the Sub-Registrar,

Akkayyapalem, Visakhapatnam (Ex.B.7) and the Inspector of Police,

Kukatpalle (Ex.B.8). These complaints are supported by receipts

indicating their submission. However, these receipts indicate that the

complaints were filed subsequent to the institution of the suit. The

defendants relied on Ex.B.11 which pertains to the encumbrance of the

schedule property. It does not provide substantial assistance in

determining the case in favour of either party.

23. Ex.B.13 (original demand notice) shows that Municipal

Corporation issued demand notices to the defendants in the plaintiffs'

name. It shows that the plaintiffs failed to pay the property tax for three 12 TMR, J A.S. No.417 of 2009

years for Rs.2,058/- on 27.02.2008. Not possessing the schedule property

might be the reason for the plaintiffs' non-payment of the municipal tax.

24. Despite acquiring passbook, the plaintiffs have not submitted any

receipt as evidence indicating the payment of property tax related to the

schedule property. It is worth noting that the defendants are expected to

pursue a suit for specific performance of agreement with G.Veera

Lakshmi. The defendants have not provided an explanation only to send

complaints against G.Veera Lakshmi, instead of seeking recourse through

the Civil Court to address their grievances and explore potential remedies.

25. Surprisingly, even subsequent to the institution of the suit, the

defendants have not undertaken appropriate measures to compel the

G.Veera Lakshmi to fulfill the alleged sale agreement by executing the sale

deed. To substantiate their possession of the schedule property for a

period of eight years before 2006, the defendants submitted Ex.B.4, a

declaration provided by the Municipal Corporator of 41st ward of

Visakhapatnam Municipal Corporation. As it is a suit filed seeking

possession of the schedule property, the defendants' possession of the

schedule property is not in dispute. The plaintiffs' argument is centered on

the premise that the defendants were granted permission to occupy the

suit schedule property by their respective vendors contending that this

permission amounts to a licence.

26. Notably, the trial Court observed that the plaintiffs failed to plead as

to when the defendants were to be in possession of the schedule property 13 TMR, J A.S. No.417 of 2009

and how long they have been there; since the possession of the defendants

over the suit's schedule property is not in dispute; Ex.B.4 does not establish

the defendants' case regarding their right over the suit schedule property

under the alleged agreement of sale. Therefore, the defendants failed to prove

their case, and the weakness of the defendants in establishing their case

cannot strengthen the plaintiffs to establish their case.

27. Learned counsel for the defendants/respondents contends that

first of all the plaintiffs have to prove that the defendants have been in

possession of the suit schedule property with the permission and the said

contention is not established.

28. Learned counsel for the defendants/respondents contends that

the plaintiffs cannot succeed on weakness of the defendants case,

plaintiffs must establish their own case on the strength of their own title

deed in support of their case, they relied on a decision in K.Venkatasubba

Reddi V. Bairagi Ramaiah (died) and his L.Rs. 2, wherein the Composite

High Court of Andhra Pradesh, referred to the decision in Morn Mar

Basselios Calholicos v. Most Rev Mar Poulose Athanasius And others 3,

wherein, while disposing of a civil appeal in an ejectment suit, three

Judges Bench of the Supreme Court laid down the law thus :

"The plaintiff in ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere distinction of the

2 1999 (3) ALT 210 (S.B) 3 AIR 1954 SC 526 14 TMR, J A.S. No.417 of 2009

defendant's title in the absence of establishment of his own title carries the plaintiff nowhere".

A Division Bench of this Court also in Chakicherla Adilakshmamma v. Almakuru Rama Rao and Ors.4 . Relying on the judgment of the Supreme Court in AIR 1954 SC 526 (cited supra) held that "in a suit for ejectment, the plaintiff is liable to be nonsuited, if he fails to establish his own title irrespective of the question whether the defendants have proved their case or not."

11. The law laid down by the Supreme Court and also by the Division Bench of this Court in the ejectment suits is also applicable to the suits for declaration of title. Thus, the plaintiff must succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of the defendant's case.

29. In Eerappa V. Golla Nagaiah and others5, the Composite High Court

of Andhra Pradesh at Hyderabad referred K.Ramabrahmam V. G.Narsingh

Rao6, wherein it is observed as under:

"An individual who claims to have transacted with the rightful owners, in relation to a property and claims possession, vis--vis the property, on the basis of such a transaction, cannot be permitted to plead adverse possession. In the instant case, apart from basing his claim on Ex.A.1 and other documentary evidence, the appellant has taken the alternative plea of adverse possession, as the basis for declaration of his title. It is true that the adverse possession, which, till recently, used to be a mere defence for recovery of possession; was recognized as a basis for declaration of title. However, once the origin of the possession is traceable to an incomplete transaction, with the rightful owner, the resultant possession, even if true, cannot be treated as adverse, and in that view of the matter, the appellant cannot be granted the relief of declaration of title on the plea of adverse possession, assuming that he had been in possession, for a fairly long time. "

It has already been pointed out that the respondents have admitted the title of the appellant and in that view of the matter, it was not open to them to take the plea of adverse possession.

Therefore, the inescapable conclusion is that the appellant was

4 1973 AIR A.P. 149 5 2008 (2) ALT 416 6 2009 (2) ALT 389 15 TMR, J A.S. No.417 of 2009

entitled to be declared as the owner of the suit schedule property. The first question is answered accordingly. The plea of adverse possession is available only to such person, who does not acquiesce in the title of the person pleading ownership. The very concept of adverse possession connotes that it commenced in wrong and is maintained against the right. Acquiescence in the title of the owner would not go along with the plea of adverse possession. In categorical terms, the appellant pleaded that the land was purchased by Sarvi Rajaiah from the respondent and thereafter he purchased it. This implies that the appellant admitted that the respondent had title to the land and it is yet to pass on, to himself through his vendor. Therefore, the appellant cannot take the plea of adverse possession.

30. In Meenugu Mallaiah & Others V. Ananthula Rajaiah & Another7, the

High Court of Judicature for the state of Telangana and the state of Andhra

Pradesh held that:

In India Article 65 of Limitation Act prescribed limitation to recover possession from the person in wrongful possession is 12 years from the date when the person in possession set up hostile title or adverse title, continuing in possession.

Article 65, Schedule I of The Limitation Act prescribes limitation of 12 years for a suit for possession of immovable property or any interest therein based on title. It is important to note that the starting point of limitation of 12 years is counted from the point of time when the possession of the defendants becomes adverse to the plaintiff. Article 65 is an independent Article applicable to all suits for possession of immovable property based on title i.e., proprietary title as distinct from possessory title. Article 64 governs suits for possession based on possessory right. 12 years from the date of dispossession is the starting point of limitation under Article 64. Article 65 as well as Article 64 shall be read with Section 27 which bears the heading Extinguishment of right to property. It runs as follows:

At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.

If Article 65 and Section 27 of the Limitation Act are read conjointly, it indicates that where a cause of action exists to file

7 2017 (1) ALD 457 16 TMR, J A.S. No.417 of 2009

a suit for possession and if the suit is not filed within the period of limitation prescribed, then, not only the period of limitation comes to an end, but the right based on title or possession, as the case may be, will be extinguished. Article 65 of the Limitation Act assists the person in possession to acquire prescriptive title by adverse possession. When the title to property of the previous owner is extinguished, it passes on to the possessor and the possessory right gets transformed into ownership.

Section 27 of Limitation Act lays down a substantive law by declaring that after the lapse of the period, the title ceases to exist and not merely the remedy. It means that since the person who had a right to possession has allowed his right to be extinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto, the person in adverse possession is enabled to hold on to his possession as against the owner not in possession.

31. In light of the settled legal position, now I appreciate the

contentions raised on behalf of both sides with reference to the evidence

adduced.

32. It is the DW.1's evidence that Smt. G. Veera Lakshmi and her

husband never objected to their possession from May 1998, but they

colluded with the plaintiff, invented the sale deed and filed a false suit. It is

also the defendants' case that the husband of G.Veera Lakshmi received

Rs.1,80,000/- after the agreement dated 11.04.1999, and they paid the sale

consideration to the said G.V.V.S.Murthy with the mediation of P.Radha

Krishna, I.T.I Principal, Visakhapatnam, who is the tenant of the schedule

property.

33. The defendants assert that they have held possession of the

property since 1998. DW.1, in his chief affidavit, testified that during the

execution of the second agreement, G. Veera Lakshmi's husband retrieved 17 TMR, J A.S. No.417 of 2009

the earlier sale agreement dated 12.05.1998 from them. Nonetheless, the

defendants assert that they acquired possession of the schedule property

through the sale agreement. At most, based on the admitted facts, it can

be inferred that the defendants held the property for seven years before

the institution of the suit. The plaintiffs did not provide evidence to

demonstrate that the defendants took possession of the property as

tenants. Conversely, the defendants did not successfully establish their

possession through an agreement of sale. However, it is evident that the

defendants have indeed been in possession of the schedule property. It's

important to note that the defendants are not claiming to be tenants of the

schedule property. Rather, their dispute revolves around contesting the

plaintiffs' title over the property. Consequently, the Civil Court retains the

jurisdiction to address the possession dispute. Additionally, the

defendants have not raised any grievances regarding the plaintiffs' failure

to pursue remedies under the Rent Control Act.

34. In a situation where a dispute over title emerges between two

parties asserting ownership through a common vendor, both parties may

retain the option to approach the Civil Court for resolution. This option

remains available primarily due to the fact that the defendants have not

contended that their possession of the property is based on a tenant-

landlord relationship.

35. According to the defendants' version, they have been in occupation

of the schedule mentioned premises by the sale agreement. When a

possession could be referred to as an agreement of sale, it can never be 18 TMR, J A.S. No.417 of 2009

considered adverse. The reason is that a person whose possession can be

referred to as an agreement of sale will not be permitted to show that his

possession became hostile. As already observed, the defendants claimed to

be in possession of the property for seven years before filing the suit.

36. It is not the defendants' case that they perfected their title to the

plaint schedule property by adverse possession. The plaintiffs based their

suit on the title. According to Article 65 of the Limitation Act, it is not for

the plaintiffs to prove that they were in possession of the property within

twelve years from the date of the suit. The burden is on the defendants to

show they perfected their title by adverse possession. Thus, it is enough

for the plaintiffs to establish their title, and in the instant case,

admittedly, Ganne Veera Lakshmi is the property's original owner.

37. When the respondents themselves disclaimed the tenancy with

G.Veera Lakshmi, it was for them to establish that they entered into

possession of the property by the sale agreement. At the cost of repetition,

it is pertinent to note that the defendants have not taken steps to prove

the agreement of sale.

38. In the given circumstances, the plaintiffs acquired the property

through the execution of Ex.A.1 sale deed, whereas the defendants assert

their ownership based on an agreement of sale. Notably, the defendants do

not contend that they wrongfully took possession of the property by

forcibly displacing the original owner. Instead, they claim to have obtained

possession as purchasers through an unregistered agreement of sale. This 19 TMR, J A.S. No.417 of 2009

implies that their possession is permissive, lacking the potential to mature

into adverse possession unless the defendants maintain possession for a

period exceeding 12 years while also asserting a hostile claim to the

property's title. This claim must be made known to the original owner, and

the defendants must disavow her rights under the unregistered agreement

of sale. Importantly, the defendants have not presented evidence to

establish a hostile title against G. Veera Lakshmi, the purported seller of

the property to them. This absence of evidence demonstrates that the

defendants have not taken steps to challenge or undermine G. Veera

Lakshmi's ownership rights.

39. It is evident that while Ex.A.1 does not explicitly attorned tenancy,

the defendants themselves acknowledge that no tenancy emerged between

them and the plaintiffs. Even if considered the plaintiff's assertion to be

true, the respondents' disavowal of any tenancy implies that their ongoing

presence can be classified as that of a tenant at sufferance. Consequently,

they do not possess the right to receive a formal notice to vacate the

premises before being asked to quit.

40. As previously noted, the trial Court has determined that the

plaintiffs' proof of Ex.A.1 sale deed is inadequate due to the absence of

examination of their vendor, attestor, or any other witnesses to prove the

passing of consideration. The defendants contend that Ex.A.1 was

fabricated in collusion with Ganni Veera Lakshmi, the property's owner.

However, given that there is no dispute regarding G.Veera Lakshmi's 20 TMR, J A.S. No.417 of 2009

execution of the sale deed, the onus lies with the defendants to

substantiate their claim of collusive execution of Ex.A.1. No evidence has

been presented to support this allegation of collusion. Furthermore, no

material has been provided to suggest that G.Veera Lakshmi questioned

the validity of Ex.A.1 sale deed. It is crucial to highlight that the

defendants do not dispute G. Veera Lakshmi's execution of Ex.A.1 sale

deed. In the context of this case, the failure to produce witnesses to prove

the execution of Ex.A.1 sale deed does not invalidate the plaintiffs' right to

assert their claim over the schedule property.

41. At this stage, it is pertinent to refer to the observations in Pathan

Sabirabi V. Shaik Rasool8, the composite High Court of Andhra Pradesh at

Hyderabad held that:

11. Attestation is a typical process through which the witnesses, present at the time of execution of document are required to subscribe their signature. They must not only be present at the time of execution, but also must have seen the executant signing the document. Section 3 of the Transfer of Property Act defines it. Section 68 of the Evidence Act, mandates that a document, which is required to be attested, can be proved only by examining at least one of the attestors. Naturally, the person examined as attestor must speak to the events that are required to take place, for a valid attestation.

12. In the instant case, the document Ex.A-1 is a simple sale deed and it is not required to be attested under law. Therefore, the question of applying the test of attestation to such a document does not arise. The Indian Evidence Act itself provides for presumption of certain degree, in favour of the documents that are required to be attested and once the registration of a document and execution thereof by the executant are not disputed, the document cannot be ignored.

8 2015 (1) ALT 119 21 TMR, J A.S. No.417 of 2009

42. In Prem Singh & Ors., V. Birbal & Ors.,9, the Hon'ble Supreme

Court observed as follows:

There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.

43. Considering the established legal principles and facts of the case,

this Court finds that the trial Court's rationale for not accepting the validity

of Ex.A.1 sale deed to be flawed. The trial Court failed to consider well

established legal precedents.

44. In Ponnia Pillai V. Pannai10, a Division Bench of Madras High Court,

relying on Bala Mukund V. Dalu11, it is held that in a suit filed based on

tenancy in which the defendant denies the title of the plaintiff and sets up

adverse possession, even if the issue relating to the title is not framed if the

evidence is adduced fully by both sides on the question of title, a decree

based on the plaintiff's title can be given against the defendant even if the

plaintiff fails to establish and tenancy set up by him.

45. As seen from the record, the plaintiffs have stated that their vendor

granted permission for the defendants to reside in the property.

Furthermore, the plaintiffs' have asserted that they issued a notice dated

27.08.2005 directing the defendants to vacate the premises by midnight of

30th September 2005, in case the defendants claimed to be tenants.

9   2006 0 AIR (SC) 3608
10  A.I.R. (34) 1947 Madras 282
11 (03) 25 ALL 498 (F.B.)
                                      22                                   TMR, J
                                                              A.S. No.417 of 2009

Though the plaintiffs have not pleaded explicitly as to when the defendants

came into possession of the property, it is the defendants' case that their

possession commenced seven years before filing the suit. When the evidence

on record establishes such a fact, the non-mentioning of the details in the

plaint does not impede the plaintiffs' right in any way, if they can

substantiate their ownership of the schedule property.

46. The plaintiffs have explicitly alleged that their vendor granted

permission to the defendants for possession of the property. While this

assertion might not have been conclusively proven, its absence should not

serve as ground for dismissing the suit. The defendants themselves

claimed to have held possession of the property for seven years preceding

the suit's filing. In light of this, the lack of complete evidence to support

the plaintiffs' plea should not be deemed sufficient to dismiss the suit.

47. Merely because the plaintiffs failed to furnish the defendants' ages

correctly, at any stretch of the imagination, it cannot be taken as ground to

negative the plaintiffs' contentions. In consideration of well-established

legal principles, this Court perceives that despite the plaintiffs' inability to

substantiate the defendants' tenancy, it remains evident that the

defendants have contested the plaintiffs' ownership. The defendants assert

their possession of the property based on an alleged agreement of sale,

which they have not been able to prove. The defendants claim to have

possessed the property for duration of seven years before initiating the

suit. Conversely, the plaintiffs have succeeded in establishing their 23 TMR, J A.S. No.417 of 2009

ownership of the schedule property through Ex.A.1 sale deed. Accordingly,

the point is answered.

POINT NO.2:

48. The defendants assert that they have been in possession of the

schedule property since 1998. However, PW.1, who acquired the schedule

property through Ex.A.1 on 17.08.2005, filed the suit on 18.11.2005. The

plaintiffs have also claimed damages amounting to Rs.1,00,000/-. The

plaint does not specify the basis on which the plaintiffs arrived at this

Rs.1,00,000/- figure for a three-month period. Moreover, no evidence has

been presented to substantiate the justification for this damages amount.

Given the circumstances of the case, this Court is disinclined to grant the

damages requested by the plaintiffs. The lack of clarity and supporting

evidence regarding the assessment of damages leads to this conclusion

not to award damages in this case. Accordingly, the point is answered.

POINT NO.3:

49. For the reasons stated above and regarding the facts of the case,

this Court is of the view that the plaintiffs have produced evidence to

substantiate their title over the schedule property. In this regard, the

findings and conclusions recorded by the trial court are not based on

proper appreciation of the evidence on record; the Judgment of the trial

court is erroneous and cannot be sustained, and is liable to be set aside;

the plaintiffs are not entitled to claim for damages. Accordingly, the point

is answered.

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                                                            A.S. No.417 of 2009

50. As a result, the Appeal is partly allowed without costs, and the

suit is partly decreed with proportionate costs by holding that the

plaintiffs are entitled to the possession of the schedule property by

evicting the defendants, their men and agents from the plaint schedule

property. The defendants are given three months time to vacate the plaint

schedule property from the Judgment date. Otherwise, the plaintiffs are

entitled to possession of the schedule property by filing Execution Petition.

The suit claim in respect of damages is dismissed.

51. Miscellaneous petitions pending, if any, in this Appeal shall stand

closed.

                                       __________________________________
                                       JUSTICE T. MALLIKARJUNA RAO

Date: 08.08.2023
SAK
                          25                             TMR, J
                                            A.S. No.417 of 2009



      THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO




              APPEAL SUIT NO. 417 OF 2009

                   DATE: 08.08.2023

SAK