P.Venkat Rangamma vs Smt.K.Varalakshmi
2023 Latest Caselaw 4290 AP

     HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

            + SECOND APPEAL No.182 of 2015

Between:

# P Venkat Rangamma
 W/o. Atchaiah, aged about 70 years, R/o Darsipet
 Patamata, Vijayawada-10 and another
                                       ...    Appellants
                          And

$ Smt K Varalakshmi
  W/o. Rangaiah, aged about 60 years,
  R/o Darsipet, Patamata,
  Vijayawada and 2 others
                                           Respondents


JUDGMENT PRONOUNCED ON 15.09.2023

      THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1.     Whether Reporters of Local
       newspapers may be allowed to see
                                                   -     Yes -
       the Judgments?

     2. Whether the copies of judgment may
        be marked to Law Reporters/Journals        -     Yes -

     3. Whether Their Ladyship/Lordship
        wish to see the fair copy of the
                                                   -     Yes -
        Judgment?

                         ___________________________________
                         DR.JUSTICE K. MANMADHA RAO
                                2




      * THE HON'BLE DR.JUSTICE K. MANMADHA RAO
               + SECOND APPEAL No.182 of 2015

% 15.09.2023

Between:


# P Venkat Rangamma
 W/o. Atchaiah, aged about 70 years, R/o Darsipet
 Patamata, Vijayawada-10 and another
                                       ...    Appellants
                          And

$ Smt K Varalakshmi
  W/o. Rangaiah, aged about 60 years,
  R/o Darsipet, Patamata,
  Vijayawada and 2 others
                                        Respondents


! Counsel for the Appellants   :   Sri Eswaraiah Choudary


Counsel for Respondent:            Sri S. Rajendra Prasad



<Gist :
>Head note :
?Cases referred :

1.1924 PC 144
2.(1968) 3 SCR 163
3. (1974) 1 SCC 48
4.
   (1989) 4 SCC 131
5.(1995) 3 SCC 426
                                3




       HON'BLE DR. JUSTICE K. MANMADHA RAO

               SECOND APPEAL No.182 of 2015

JUDGMENT:

The present Second Appeal is preferred by the

appellants aggrieved by the Decree and Judgment dated

07.10.2014 passed in A.S.No.49 of 2009 on the file of XIII

Additional District Judge (FTC), Vijayawada, reversing the

decree and judgment dated 29.12.2008 passed in O.S

No.514 of 2008 on the file of V Additional Senior Civil Judge

(FTC), Vijayawada.

2. The appellants herein are the plaintiffs and the

respondents herein are the defendants in the suit in O.S

No.514 of 2008 on the file of the V Additional Senior Civil

Judge (FTC), Vijayawada (for short "the trial Court").

3. For convenience the parties are hereinafter referred

to as arrayed in the suit before the trail Court.

4. Originally, the suit was filed by the plaintiffs for

grant of declaration that the registered sale deed No.252/05

dated 20.01.2005 obtained by the 1st defendant from one

Shaik Mastan i.e., 4th defendant and the General Power of

Attorney (GPA) is null and void and in operative against the

plaintiffs and defendants No.2 and 3 and for consequential

relief of permanent injunction restraining the 1st defendant

from interfering with the peaceful possession and enjoyment

of 'A' schedule property and recovery of possession of 'B'

schedule property from the 1st defendant.

5. The 1st plaintiff is the mother of the 2nd plaintiff

and the defendants No.2 and 3. They are the owners of the

plaint schedule property. The 1st defendant is the own sister

of the 1st plaintiff. The plaint 'B' schedule property is a part

of plaint 'A' schedule property. Item No.1 of plaint 'A'

schedule property was purchased by the husband of the 1st

plaintiff from one Nalluri Venkateswara Rao on 27.02.1987

under an oral agreement of sale for a valid consideration of

Rs.6,000/- and paid an amount of Rs.5,000/- on the same

day towards advance and subsequently he paid the balance

amount of Rs.1,000/- in the month of March, 1987.

Similarly, Item No.2 of the plaint 'A' schedule property was

also purchased by the husband of the 1 st plaintiff during his

lifetime on the same day i.e., on 27.02.1987 from one Pasam

Prameela, D/o. Nalluri Venkateswara Rao for a valid

consideration of Rs.7,000/- under an oral agreement and

paid an amount of Rs.6,000/- on the same day and

subsequently paid the balance amount of Rs.1,000/- in the

month of March, 1987 and the properties were delivered to

the husband of the 1st plaintiff on the same day. Both the

plaintiffs were present during the whole transaction along

with elders Munaga Rama Rao and Vema Sivaiah of

Patamata, Vijayawada. The said Nalluri Venkateswara Rao

and Pasam Prameela agreed to register proper sale deeds

after obtaining the necessary permissions to register the sale

deeds by them in favour of Pothamesetty Atchaiah or a

person nominated by him whenever he demands on his

expenses. Since the date of delivery of possession of the

subject property, they are in peaceful possession and

enjoyment of the same till the death of said Pothamsetty

Atchaiah on 04.04.1989. Since then, his wife i.e., the 1st

plaintiff and his children i.e., 2nd plaintiff and defendants

No.2 and 3 have been in continuous and joint possession

and enjoyment of the same being legal heirs of the said

Achaiah. Sri Nalluri Venkateswara Rao also died on

11.5.1994 leaving behind his only daughter Prameela. The

subject property was used by the Achaiah and subsequently

by the plaintiffs and defendants No.2 and 3 for keeping their

cattle for some time. Thereafter, the 1st plaintiff gave some

amount to the 2nd defendant and performed the marriage of

3rd defendant, constructed a three portioned house in the

plaint 'A' schedule property with the help of 2nd plaintiff.

The land revenue is being paid and there is electricity

connection to the subject property since 10 years.

6. While the matter stood thus, some disputes arose

between the plaintiffs and the 1st defendant with regard to

money transactions. Then, the 1st defendant, her son and

daughter obtained a registered sale deed for the plaint

schedule property on 20.01.2005 with false recitals from one

Shaik Mastan i.e., 4th defendant styled himself as GPA

holder of Pasam Prameela under a false and created GPA.

The 4th defendant has no such authority to register the sale

deed of plaint schedule property to the 1st defendant. The

1st defendant and her children are openly proclaiming that

they would occupy the other extent of the plaint schedule

property also immediately even by resorting to do away with

the lives of the plaintiffs. The 1st and 4th defendants are

colluded together for wrongful gain for themselves and

created the sale deed dated 20.01.2005. On 28.4.2005 at

about 8.00 a.m., the 1st defendant' son along with some

rowdy elements came to the plaint schedule property and

tried to dispossess the 2nd plaintiff and left the premises at

the intervention of some elders threatening him with dire

consequences. The plaintiffs are apprehending that the 1st

defendant may succeed in her attempts to dispossess them

from the subject property. Hence they filed suit for the

reliefs as stated above.

7. The defendants No.2 and 3 remained set ex parte.

8. The 1st defendant filed written statement and

denied all the allegations made in the plaint and stated that

the suit is not maintainable under law and liable to be

dismissed in limini. It is further stated that the said Pasam

Prameela executed a sale agreement in favour of one Sali

Koteswara Rao in 1990 and put him in possession of the

property in which schedule property is a part of it. The 1st

defendant came to an agreement with Sali Koteswara Rao to

purchase schedule property in 1995 and taken possession

and she was in possession and enjoyment of it and she

constructed a three portioned ACC roofed house therein and

leased out two portions. The 1st plaintiff is the second elder

sister of the 1st defendant and her family has a house near

the schedule property. The 1st defendant got plaint schedule

property registered through the GPA holder of Pasam

Prameela i.e., 4th defendant as per directions of Sali

Koteswara Rao vide Doc.No.2521/05 dated 20.01.2005. In

fact there is no demand for tax prior to April 2004. When

the son of the 1st defendant approached electricity

department for new connection, he came to know that the

existing connection was in the name of the 1st plaintiff. In

fact the 1st defendant is under the impression that the

connection was in her name. In fact there is no practice of

payment of revenue tax, but this defendant does not know

why the plaintiffs paid revenue tax, it should be a motivated

plan to grab the property. It is further stated that the

plaintiffs have no title, no prima facie case and the balance

of convenience was also not in their favour.

9. The 4th defendant also filed written statement

denying all the allegations made in the plaint and while

reiterating the averments in the written statement of 1 st

defendant, stated that, the said Pasam Prameel executed a

registered GPA in favour of this defendant on 13.06.1994

basing on it, he was directed to register the sale deed or

deeds either in favour of Sali Koteswara Rao or by his order

to any others. On that the 4th defendant executed sale

deeds as a GPA as per the order of Sali Koteswara Rao

including the 1st defendant. The 4th defendant executed

registered sale deed over the property in which the plaint

schedule property is a part of it even in 1994 and even after

the execution of this sale deed another sale deed was

executed, so the question of creating of false GPA does not

arise. It is further stated that the 4th defendant came to

know that the plaintiffs were permitted to keep their cattle

in the premises of the 1st defendant. The plaintiffs have no

right over the property in any manner and that the plaintiffs

have no right to claim the relief of permanent injunction or

for recovery of possession, hence prayed to dismiss the suit.

10. Basing on the above pleadings, the trial Court

framed the following issues:

1. Whether the plaintiffs are entitled for declaration of the registered sale deed dated 20.01.2005 is null and void, inoperative and not binding on the plaintiffs, defendants 2 and 3 as prayed for ?

2. Whether the plaintiffs are entitled for consequential permanent injunction as prayed for?

3. Whether the plaintiffs are entitled for recovery of possession of 'B' schedule from D1 as prayed for?

11. During course of trial, on behalf of the plaintiffs,

PWs.1 to 4 were examined and Exs. A1 to A10 were marked.

On behalf of the defendants, DWs.1 and 2 were examined

and Exs.B1 to B8 were marked.

12. After considering the oral and documentary

evidence, the trial Court decreed the suit with costs

declaring the registered sale deed vide Doc.No.252/05 dated

20.01.2005 at the office of Sub Registrar, Patamata,

Vijayawada obtained by 1st defendant from the 4th defendant

under a fake GPA is null and void and inoperative and not

binding on the plaintiffs and defendants No.2 and 3 and the

plaintiffs are entitled for permanent injunction restraining

the 1st defendant and permanent injunction is granted

restraining the 1st defendant from interfering with the 'A'

schedule property. The trial Court further directed the 1 st

defendant to handover the possession of the 'B' schedule

property to the plaintiffs. Aggrieved by the same, the 1st

defendant preferred an appeal in A.S No.49 of 2009 before

the XIII Additional District Judge (FTC), Vijayawada (for

short "the first appellate Court"). After hearing the both

sides, the first appellate Court has framed the following

points for consideration:

i) Whether the respondents/plaintiffs are entitled for declaration of the registered sale deed dated 20.01.2005 is null and void, inoperative and not binding on the plaintiffs, defendants No.2 and 3?

ii) Whether the respondents/plaintiffs are entitled for permanent injunction as prayed for?

iii) Whether the respondents/plaintiffs are entitled for recovery of possession of 'B' schedule property from D.1?

iv) Whether this appeal is liable to be allowed? If so, on what ground?

v) To what relief?

13. The first appellate Court, on appreciation of both

oral and documentary evidence on record and legal aspects,

has allowed the first appeal setting aside the trial Court

decree and judgment. Challenging the same, the present

second appeal came to be filed.

14. While both counsels prepared to argue the matter

finally, this Court also decided to dispose of the matter at

the admission stage with the consent of both the counsels.

Further, the appellant counsel has raised the following

substantial questions of law in the grounds appeal:

a) Whether the G.P.A. alleged to have been executed by Prameela in favour of the defendant No.4 who

is alleged to be the vendor of the 1st defendant is binding on the plaintiffs?

b) Whether the 4th defendant has any authority to register the Sale deed of plaint schedule property to the 1st defendant under a false and created GPA?

C) Whether any right will confer over the plaint schedule property on mere paying the municipal tax on the name of the 1st defendant?

d) Whether the judgment of the lower appellate court is valid when admittedly the plaintiffs proved their case independently and they did not depend on the weakness of the case of defendants who admitted the possession of the plaintiffs over the plaint schedule property?

e) Whether the judgment of the lower appellate court is justified when the plaintiffs makes a semblance of case that they proved that there is an oral agreement and possession is with them, so the burden shifts on the defendants and the defendants failed to prove their case?

f) Whether the judgment of the lower appellate is justified when admittedly Ex.A2 the land cist paid by the plaintiff's ancestor shows that the possession of the plaintiffs?

15. Heard Sri Eswaraiah Chowdary, learned counsel

appearing for the appellants and Sri S. Rajendra Prasad,

learned counsel appearing for the respondents.

16. On hearing, learned counsel for the appellants

contended that the first appellate court erred in allowing the

appeal suit reversing the well-considered judgment and

decree passed by the trial Court, without properly

appreciating the facts and circumstances and the material

available on record. The first appellate Court failed to note

that the husband of the 1st appellant and father of the 2nd

appellant Atchaiah purchased the subject property from

Nalluri Venakteswara Rao and his daughter Prameela on

27.02.1987 and there is no dispute with regard to the title

held by Nalluri Venakteswara Rao and his daughter

Prameela and the Atchaiah was inducted into possession by

way of oral agreement till his death on 04.04.1989. He

further submits that the lower appellate court ought to have

seen that the 1st respondent herein who is none other than

the sister of the 1st appellant herein who is having the

knowledge of the purchase of the suit property by the

husband of the 1st appellant with an intention to grab the

suit property obtained registered sale deed on 20.1.2005

with false recitals from the 4th respondent, who is styled as

GPA holder of Pasam Prameela under a false and created

GPA. In fact the 4th respondent Shaik Mastan has no such

authority to register the sale deed of suit property. He

mainly submitted that the first appellate court ought to have

seen in order to prove that the appellants are in possession,

the electricity service connection which is in the name of the

1st appellant and without the possession and the valid

documents, the electricity service connection will be

sanctioned on the name of the 1st appellant. The first

appellate Court also failed to note that the respondents No.1

and 4 herein did not deny specifically or admitted in their

written statements that the plaint 'B' schedule property is

part of plaint 'A' schedule property which itself is quite

sufficient to hold that the appellants are in peaceful and

lawful possession and also failed to appreciate the evidence

of PW.3, who witnessed the transaction between the

husband of the 1st appellant and Nalluri Venkateswara Rao

and his daughter Prameela.

17. On the other hand, learned counsel appearing for

the respondents while reiterating the averments made in the

written statements filed by the respondents and while

denying the contents made by the appellants, contended

that, admittedly the 1st defendant has got another house in

RTC colony and her family is residing there. The 1 st

appellant requested the 1st respondent to use the open site

to her cattle as they have no open site at their house. On

that the appellants were inducted in the open site in the

eastern side and the room in eastern side of the shed. As

there is no electric connection to the house, the 2 nd

appellant asked to take electric connection and obtained the

thumb impression of the 1st respondent on the required

papers. In fact they have got electricity connection with the

influence of the 2nd appellant. Later, the 1st respondent's

house at RTC colony was in very low level due to formation

of roads and she want to demolish it and construct a new

house and hence 1st respondent family evicted the tenants

in the western side two portions and joined her house in

March 2005 and residing there. When the son of 1 st

respondent approached electrical department for new

connection, he came to know that the existing connection

was in the name of 1st appellant. In that connection, some

disputes arose between both families and the 1 st respondent

asked the 1st appellant to vacate the premises. In fact the

1st respondent is under the impression that the connection

was in her name. It should be an ill-motivated plan to grab

the property. Learned counsel mainly contended that

originally the schedule property belongs to one Nalluri

Venkateswara Rao and he executed registered settlement

deed regarding this property to his only daughter Pasam

Prameela on 10.12.1982 vide Doc No.12093/82, S.R.O.,

Vijayawada and the said Venkatewara Rao died later.

Thereafter, the said Pasam Prameela became the absolute

owner of the entire property and she sold the property and

executed possessory sale agreement in favour of one Sali

Koteswara Rao in 1990 and put him in possession of the

property in which the schedule property is a part of it. As

per agreement between the said Sali Koteswara Rao and

Prameela, she received the entire sale consideration from

him and put him in possession of the property and only

registration remained. As per the agreement, Prameela has

to execute the sale deed either in favour of the Sali

Koteswara Rao or to anybody on his order. The said Pasam

Prameela executed a registered GPA in favour of the 4th

respondent on 13.06.1994. On that the 4th respondent

executed sale deed as a GPA as per the order of Sali

Koteswara Rao including the 1st respondent. The 1st

respondent was in possession and enjoyment of the plaint

schedule property and constructed RCC roofed house long

time back it was recited in the sale deed. He further

submitted that the 1st appellant and the 1st respondent are

sisters and due to their disputes the appellants are trying to

occupy the property. He mainly contended that the

appellants have no right to claim any relief and hence

prayed to dismiss the appeal.

18. Admittedly, the suit was filed by the appellants/

plaintiffs against the respondents/defendants for

cancellation of sale deed dated 20.01.2005, as null and void,

which is in between the respondents No.1 and 4. The 4th

respondent executed a sale deed as GPA in favour of the 1 st

respondent in respect of plaint schedule property.

19. The appellants contention is that they purchased

the property i.e., the husband of the 1st appellant has

purchased the plaint schedule property from one Nalluri

Venkateswara Rao during their lifetime i.e., on 27.2.1987

under an oral agreement of sale for a valid consideration of

Rs.6,000/- i.e., plaint item No.1; and item No.2 of plaint

schedule property was also purchased by the husband of

the 1st appellant form Pasam Prameela, the daughter of

Nalluri Venkatewra Rao, under a valid consideration of

Rs.7,000/- under an oral agreement.

20. It is also observed that the 1st appellant is the

second elder sister of 1st respondent. The 1st respondent did

not deny or admitted specifically in her statement that the

plaint 'B' schedule property is part of plaint 'A' schedule

property. So, it is an admitted fact that the plaint 'B'

schedule property is part of plaint 'A' schedule property.

21. It is observed from the impugned judgment that,

cancellation can only be at the instance of a party who has

executed the instrument which is void or voidable. If the

document is one executed by a third party, the plaintiff has

to show that it casts a cloud upon his title. The plaintiff has

to show that they have a reasonable apprehension that such

instrument is left outstanding may cause him serious injury

and against whom a written instrument is void or voidable.

An instrument to which the plaintiff was a party should be

cancelled to enable him to establish his title when that

instrument stands in the way of his doing so. When,

however, the instrument was one between third parties.

Here, in this case, the essentials of long possession have to

be proved. It is their definite case that the husband of the

1st appellant has purchased the property by virtue of an oral

agreement and the said possession was continued with the

appellants/plaintiffs even after death of the husband of the

1st appellant. Hence, it clearly establishes that the

appellants have been in possession since 1987 and since

then they continued in the said possession and therefore,

the plaintiffs have perfected their title by long possession.

22. It is settled law that if a person is put in

possession in pursuance to an oral transfer and deed of

transfer is not executed, the transferee keeps possession

with the distinct understanding that he is holding the

property on his own behalf.

23. As seen from the evidence of PW.3, it is

categorically established that, PW.3 who was present at the

time of oral agreement in between Pothamsetty Atchaiah

and Nalluri Venkateswara Rao and Pasam Prameela. PW.3

deposed in his chief examination that item No.1 of the plaint

'A' schedule property i.e., an extent of 64.44 sq. yds., was

purchased by late Pothamsetty Atchaiah from late Nalluri

Venakteswara Rao during their lifetime on 27.2.1987 under

an oral agreement of sale for a valid consideration of

Rs.6,000/-. He further deposed that Item No.2 of the plaint

schedule property i.e., 79.27 sq. yds., of house site was

purchased by late Atchaiah from Pasam Prameela on the

same day for a valid consideration of Rs.7,000/- under an

oral agreement of sale. He further deposed that after

receiving sale consideration the said Nalluri Venkateswara

Rao and Pasam Prameela delivered their respective

properties on the same day when late Atchaiah paid the

balance consideration by deciding the boundaries. PW.3

further deposed that the plaint schedule property was used

by the appellants for keeping their cattle for some time.

About 12 years back they constructed a three portioned

house in the plaint schedule property and they let out two

portions and one portion was occupied by the 3 rd

respondent. Due to disputes, the 1st respondent/1st

defendant got registered sale deed in her favour through 4th

respondent/4th defendant on 20.01.2005. He further

deposed that at present the appellant/plaintiffs have been

residing in two portions of the property whereas the 1 st

respondent/1st defendant tress passed into the 'B' schedule

property.

24. It is also to be noted that, in the evidence of

DW.1, it is admitted by DW.1 that in one portion the

plaintiffs were residing and according to her, for the last 13

years electricity connection is in existence.

25. This Court mainly observed that the plaintiffs

were in possession and they established that fact by filing

cist, tax receipts and electricity bills which were in the name

of 1st plaintiff. The suit was filed not for declaration of title

but for declaring the GPA registered sale deed as null and

void, because the plaintiffs are having possession since

1987. The declaration of title is in between two parties but

the third party cannot claim and the disputed documents

only permissible under law.

26. As seen from the entire record, it appears that the

4th defendant inducting into possession from 2005 onwards

by way of registered sale deed as GPA. To that extent it

cannot be decided that he is having title over the property.

Further, by virtue of an oral agreement, the plaintiffs are

having possession since 1987 by claiming long possession.

27. In English Law possession is a good title of right

against anyone who cannot show a better. A wrongful

possessor has the rights of an owner with respect to all

persons except earlier possessors and except the true owner

himself. Many other legal systems, however, go much

further than this, and treat possession as a provisional or

temporary title even against the true owner himself. Even a

wrongdoer, who is deprived of his possession, can recover it

from any person whatever, simply on the ground of his

possession. Even the true owner, who takes his own, may be

forced in this way to restore it to the wrongdoer, and will not

be permitted to set up his own superior title to it. He must

first give up possession, and then proceed in due course of

law for the recovery of the thing on the ground of his

ownership. The intention of the law is that every possessor

shall be entitled to retain and recover his possession, until

deprived of it by a judgment according to law.

28. Legal remedies thus appointed for the protection

of possession even against ownership are called possessory,

while those available for the protection of ownership itself

may be distinguished as proprietary. In the modern and

medieval civil law the distinction is expressed by the

contrasted terms petitorium (a proprietary suit) and

possessorium (a possessory suit). (Salmond, ibid, pp. 294-

295) The law in India, as it has developed, accords with the

jurisprudential thought as propounded by Salmond.

29. In a case of Midnapur Zamindary Co. Ltd. Vs.

Kumar Naresh Narayan Roy and Ors.1, Sir John Edge

summed up the Indian law by stating that in India persons

are not permitted to take forcible possession; they must

obtain such possession as they are entitled to through a

Court.

30. In the oft- quoted case of Nair Service Society

Ltd. Vs. K.C. Alexander and Ors.2, the Apex Court held

that a person in possession of land in assumed character of

owner and exercising peaceably the ordinary rights of

ownership has a perfectly good title against all the world but

the rightful owner. When the facts disclose no title in either

party, possession alone decides. The court quoted Loft's

maxim 'Possessio contra omnes valet praeter eur cui ius sit

possessionis (He that hath possession hath right against all

1924 PC 144

(1968) 3 SCR 163

but him that hath the very right)' and said, "A defendant in

such a case must show in himself or his predecessor a valid

legal title, or probably a possession prior to the plaintiff's

and thus be able to raise a presumption prior in time".

31. In M.C. Chockalingam and Ors. Vs. V.

Manickavasagam and Ors.3 , the Apex Court held that the

law forbids forcible dispossession, even with the best of title.

32. In Krishna Ram Mahale (dead) by his Lrs. Vs.

Mrs. Shobha Venkat Rao4, it was held that where a person

is in settled possession of property, even on the assumption

that he had no right to remain on the property, he cannot be

dispossessed by the owner of the property except by recourse

to law.

33. In Nagar Palika, Jind Vs. Jagat Singh,

Advocate5, the Apex Court held that disputed questions of

title are to be decided by due process of law, but the peaceful

possession is to be protected from the trespasser without

regard to the question of the origin of the possession. When

(1974) 1 SCC 48

(1989) 4 SCC 131

(1995) 3 SCC 426

the defendant fails in proving his title to the suit land the

plaintiff can succeed in securing a decree for possession on

the basis of his prior possession against the defendant who

has dispossessed him. Such a suit will be founded on the

averment of previous possession of the plaintiff and

dispossession by the defendant.

34. It is thus clear that, so far as the Indian law is

concerned, the person in peaceful possession is entitled to

retain his possession and in order to protect such

possession he may even use reasonable force to keep out a

trespasser. A rightful owner who has been wrongfully

dispossessed of land may retake possession if he can do so

peacefully and without the use of unreasonable force. If the

trespasser is in settled possession of the property belonging

to the rightful owner, the rightful owner shall have to take

recourse to law; he cannot take the law in his own hands

and evict the trespasser or interfere with his possession. The

law will come to the aid of a person in peaceful and settled

possession by injuncting even a rightful owner from using

force or taking law in his own hands, and also by restoring

him in possession even from the rightful owner (of course

subject to the law of limitation), if the latter has

dispossessed the prior possessor by use of force. In the

absence of proof of better title, possession or prior peaceful

settled possession is itself evidence of title. Law presumes

the possession to go with the title unless rebutted. The

owner of any property may prevent even by using reasonable

force a trespasser from an attempted trespass, when it is in

the process of being committed, or is of a flimsy character,

or recurring, intermittent, stray or casual in nature, or has

just been committed, while the rightful owner did not have

enough time to have recourse to law. In the last of the

cases, the possession of the trespasser, just entered into

would not be called as one acquiesced to by the true owner.

35. As per the law laid down by the Hon'ble Supreme

court the essentials which are required to be pleaded and

proved by a party claiming long possession, all the

ingredients have filed by the plaintiffs before the trial Court

to prove their case viz., Ex.A2-cist receipt, Ex.A7 and Ex.A8

electricity receipts. It is also relevant to observe that the

Ex.A10-certified copy of registered sale deed 1996, which

was filed by the plaintiffs before the trial Court, wherein it

was mentioned at schedule part - in the southern side

boundary, the name of the husband of the 1st appellant was

shown. So, it clearly establishes that the appellants are

having possessing over the subject property and claiming

long possession.

36. Upon appreciation of evidence, the trial court has

recorded findings on various issues which were reversed by

the first appellate Court. Since the first appellate court

reversed the judgment of the trial Court, this Court observed

that the appellants have proved their case and they did not

depend upon weaknesses on the case of the respondents

and they proved their case by claiming long possession.

Even though the appellants produced sufficient evidence

and burden shifted to the respondents to prove their case

but the respondents did not produce any evidence prior to

2005 and the contention of the respondents counsel that the

appellants solely depend upon weaknesses of the case of the

respondents but there is no such evidence on record and the

appellants adduced their independent evidence and they

discharged their burden of proving their case by examining

the witnesses by produced evidence then the burden shifts

to the respondents. Admittedly the declaratory suit can be

passed in favour of the plaintiffs against the defendants as

the defendants failed to prove the instrument which is in

between 4th defendant and 1st defendant. Moreover, it is the

contention of the respondents that 'A schedule property is

also part of 'B' schedule property, so, the B schedule

property also in possession of the appellants since long time

i.e., since 1987.

37. It is trite law that, in a suit for declaration of title,

the burden always lies on the plaintiff to make out and

establish a clear case for granting such a declaration and

the weakness, if any, of the case set up by the defendants

would not be a ground to grant relief to the plaintiff.

38. On perusing the citations of Hon'ble Supreme

Court referred to above, this Court observed that, it cannot

be disputed that a person in possession of land in the

assumed character of owner and exercising peaceably the

ordinary rights of ownership has a perfectly good title

against all the world but the rightful owner. And if the

rightful owner does not come forward and assert his title by

the process of law within the period prescribed by the

provisions of the Statute of Limitations applicable to the

case, his right is forever extinguished, and the possessory

owner acquires an absolute title.

39. In view of the foregoing discussion, this Court

observed that, in the suit for cancellation of sale deed dated

20.01.2005, as null and void, the plaintiffs could succeed

only on the strength of their own title and not on the

weakness of the case of the defendants. So the appellants

have proved their case before the trial Court that they are

having possession and enjoyment of the subject property,

but the first appellate Court has failed to appreciate that, in

order to prove that the appellants are in possession, the

electricity service connection which is in the name of 1st

appellant and without possession and the valid documents,

the electricity service connection will be sanctioned on the

name of the 1st appellant and also failed to appreciate the

evidence of PW.3 who witnessed the transaction between the

husband of the 1st appellant and Nalluri Venkateswara Rao

and his daughter Prameela. Therefore, in the light of the

above principles and also going by the evidence available in

the case, it cannot be said that the defendants have

succeeded in proving that they have perfected title. The trial

Court was justified in coming to such a conclusion but the

first appellate Court has erred in law in reversing the same.

Hence, this Court is of the considered view that, whatever

the substantial questions of law raised by the appellants in

the grounds of appeal are satisfied and hence, the judgment

and decree passed by the first appellate Court is not proper

and liable to be set aside.

40. Accordingly, the Second Appeal is allowed. The

Decree and Judgment passed by the first appellate Court is

hereby set aside and the judgment and decree passed by the

trial Court shall stand restored. Further, the 1st respondent

is directed to handover the possession of the 'B' schedule

property to the appellants, on or before 10.10.2023.

41. There shall be no order as to costs. As a sequel,

all the pending miscellaneous applications shall stand

closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :     15 -09-2023
Gvl





      HON'BLE DR. JUSTICE K. MANMADHA RAO




           SECOND APPEAL No.182 of 2015


               Date :   15 .09.2023




Gvl