Andhra Pradesh High Court - Amravati
M.Radhakrishna vs K.Ranganayakamma 2 Others on 1 May, 2024
APHC010302962001
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
WEDNESDAY, THE FIRST DAY OF MAY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
SECOND APPEAL NO: 925/2001
Between:
M.Radhakrishna ...APPELLANT
AND
K Ranganayakamma 2 Others ...RESPONDENT
Counsel for the Appellant:
1. N ASHWANI KUMAR
Counsel for the Respondent:
1. 1383/N SHOBA
2. G CHANDRA SEKHAR RAO
The Court made the following:
2
Dr. VRKS, J
S.A.No.925 of 2001
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.925 of 2001
JUDGMENT:
This is a defendant's appeal. Cuddapah District Non-
Gazetted Officers Cooperative House Building Society owned
property for house sites and got the layout approved by the
Government. The plots were allotted to its members. A small
strip of land between plot Nos.317 and 318 fell in dispute. Plot
No.317 has on its southern boundary the plot No.318. Alleging
that the 6 feet width of plot No.317 was encroached upon by the
persons pertaining to plot No.318, the owner of plot No.317
Smt. Kunda Ranganayakamma laid O.S.No.298 of 1990 before
learned Principal District Munsif, Cuddapah. In the plaint it is
stated that 'HGCD' shown in the plaint plan is the encroached
portion and that belonged to her and therefore, she sought
declaration of her title over the said encroached portion of
property and sought recovery of possession of the same and also
sought mandatory injunction directing the owner of plot No.318 to
remove a compound wall constructed along 'GH' line and
superstructure over the occupied 'HGCD' site. Originally it was
laid as against defendant Nos.1 and 2 who are spouses to each
other. It is stated that together defendants owned plot No.318.
During the pendency of the suit, as the original defendants sold
out the property, the purchaser was impleaded as defendant
No.3. Defendants filed their written statements. The essence of
the defence is that they never encroached into the property of the
Dr. VRKS, J
plaintiff and they have been holding possession over plot No.318
with rightful title and even if there is any encroachment as
alleged, these defendants have perfected their title by adverse
possession and sought dismissal of the suit.
2. Learned trial Court settled the following issues and
additional issues for trial:
1. Whether the plaintiff is entitled for declaration of the
property shown as HGCD in the plaint plan?
2. Whether the plaintiff is entitled for mandatory
injunction?
3. To what relief?
Additional Issues:
1. Whether the 3rd defendant perfected his title to suit
property by adverse possession?
2. Whether the suit is bad for non-joinder of necessary
parties?
3. To what relief?
3. There is evidence of PWs.1 and 2 and Exs.A.1 to A.8 and
DWs.1 to 3 and Exs.B.1 to B.7. The report and plan submitted by
the advocate commissioner became Exs.C.1 and C.2.
4. After considering the material on record and the
contentions raised on both sides, the suit was decreed in favour
of the plaintiff and it granted all the reliefs that are prayed in the
plaint.
Dr. VRKS, J
5. Aggrieved by it, defendant No.3 alone preferred A.S.No.7
of 1996. Learned II Additional District Judge, Cuddapah framed
the following points for its consideration:
1. Whether the trial Court went wrong in holding that the
defendant has not examined T.Sreenivasula Reddy the
original seller and adverse possession pleaded by the
defendant is proved?
2. Whether the defendants encroached the plaintiff's plot to
an extent of 6 feet, shifted car shed and put up
compound wall?
3. Whether the defendants are entitled for the benefit of
Section 51 of Transfer of Property Act?
4. To what relief?
6. After due hearing on both sides and after furnishing
reasons, it found no merit in the appeal and it dismissed the
appeal and confirmed the judgment of the trial Court.
7. Aggrieved by it, defendant No.3 preferred this appeal under
Section 100 C.P.C. The sole plaintiff in the suit is shown as
respondent No.1. Defendant Nos.1 and 2 in the suit are shown
as respondent Nos.2 and 3.
8. On 19.10.2001 this second appeal was admitted by a
learned Judge of this Court on formulating the following
substantial question of law:
Dr. VRKS, J
"Whether the plea of adverse possession set up by
the defendant amounts to admission of title to the
plaintiff and if so whether the burden does not lie
on the plaintiff to prove her title to the property?"
9. Sri N.Ashwani Kumar, the learned counsel for appellant
fervently argued that by virtue of Exs.B.1 to B.4-registered sale
deeds, the appellant and his predecessors in title/defendant No.1
and defendant No.2 have established the fact that as per the
measurements mentioned in the documents alone, they have
been in possession and if that be the case, the question of
encroachment into plot No.317 does not arise. Learned counsel
further argued that the learned trial Court failed to find these clear
assertions and evidence and instead going by the alternative plea
adopted by the appellant and his predecessors in interest that
they had also perfected their title by adverse possession, the
learned trial Court misdirected itself and presumptively concluded
that by taking such plea of adverse possession by this appellant
and other defendants they admitted the title of the plaintiff over
the disputed strip of land and thereby it reached to erroneous
conclusions and the learned first appellate Court instead of
rectifying it gave its approval without any merit on facts and law
and therefore it shall be set aside. Learned counsel argued that it
is the plaintiff who approached the Court of law seeking
declaration and recovery of possession and other reliefs and
therefore, the burden was on the plaintiff to prove her title over
the disputed strip of land and the alternative plea of adverse
Dr. VRKS, J
possession do not amount to admission of title of the plaintiff over
the disputed strip of land. In support of this contention, the
learned counsel cited Subhadra Devi v. Balbir Nath1 and laid
emphasis on paragraph Nos.18 and 20 of the said judgment. In
the said ruling, the learned Judge stated that in a suit of this
nature the plaintiff ought to establish her title by her own evidence
and it could not lie for the plaintiff to argue that there is plea of
adverse possession from the adversary and that amounted to
proof of the title of the plaintiff. After plaintiff is successfully in
establishing the title claimed, it is then the question of adverse
possession claimed by the appellant shall fall for consideration.
Sri N.Ashwani Kumar, the learned counsel, argued the basic
principles concerning adverse possession and cited Vasantha v.
Rajalakshmi @ Rajam2 and laid emphasis on what is mentioned
at paragraph Nos.43, 44 and 45 in the said judgment of the
Hon'ble Supreme Court of India. In the said ruling, their
Lordships have stated that one who claims adverse possession
should show: (a) on what date he came into possession; (b) what
was the nature of his possession; (c) whether the factum of
possession was known to the other party; (d) how long his
possession has continued; and (e) his possession was open and
undisturbed. Their Lordships also held that physical fact of
exclusive possession and the animus possidendi to hold as
owner in exclusion to the actual owner are the most important
factors that are to be considered in cases relating to adverse
MANU/PH/0395/2004
2024 SCC OnLine SC 132
Dr. VRKS, J
possession. That the statute of limitation operates to extinguish
the title of the original owner and vests the title in the person who
adversely possess the property if all the above stated conditions
are satisfied. The object of the statutes of limitations is to compel
a person to exercise his right of action within a reasonable time
as also to discourage and suppress stale, fake or fraudulent
claims. That the right to sue accrues from the date on which the
cause of action arose first has to be considered while considering
a title dispute and contentions of adverse possession.
10. On the strength of the above ruling, the learned counsel
argued that the plaintiff filed the suit in the year 1990 whereas the
defendants have been in possession of the disputed property
since 1979 as evidenced by Ex.A.5 and Exs.B.3, B.4 and Exs.B.1
and B.2 respectively. Thus, by the time the suit was laid, for more
than 12 years the appellant and other defendants have shown
their possession of the disputed property and they perfected their
title and suit of the plaintiff ought to have been dismissed, but by
erroneous approach Courts below held otherwise and seeks this
Court to set aside the judgments impugned.
11. As against it, Sri G.Chandra Sekhar Rao, the learned
counsel for respondent No.1/plaintiff, argued that the substantial
question of law that is framed does not arise in the facts of this
case and even if it arises, it shall be held against the appellant
and this appeal has to be dismissed. It is the submission of the
learned counsel that the contention of the plaintiff in the suit has
been that she never disputed title of defendants over plot No.318
Dr. VRKS, J
and the defendants in the suit never disputed the title of the
plaintiff over plot No.317. The dispute is only as to whether the
defendants instead of constructing a compound wall within their
own property, they constructed the compound wall by
encroaching into the plot of the plaintiff and it is that act of
defendants that gave rise to the cause of action and the wall was
constructed only in the year 1988 and within two years the suit
was filed in the year 1990 and the question of prescribing title by
adverse possession over the disputed strip of land does not arise.
Learned counsel argued that the Courts below fully considered
the evidence led by both sides and reached to appropriate
conclusions with effective reasons. Only to prolong the dispute,
this appeal is laid unnecessarily and seeks dismissal of the
appeal.
12. This Court has considered the rival submissions and has
gone through the material available on record. The following
facts are required to be noticed:
Plot No.317 of the plaintiff: Ex.A.1 is the registered sale deed
dated 14.05.1979 executed by Sri D.Amanulla Khan in favour of
Smt. Tatireddi Narasamma. Ex.A.2 is the registered sale deed
dated 27.08.1981 executed by Smt. Tatireddi Narasamma in
favour of Smt. Kunda Ranganayakamma/plaintiff/respondent
No.1. These documents would go to show that for plot No.317
the southern boundary is mentioned as plot No.318. Be it noted,
plot No.317 is an open and vacant site. Thus, plaintiff came to
own and possess plot No.317 since 27.08.1981.
Dr. VRKS, J
Plot No.318: Ex.A.4 is the registration extract of sale deed dated
30.06.1971 executed by the President of Non-Gazetted Officers
Cooperative House Building Society, Cuddapah in favour of
Sri T.Srinivasula Reddy. Ex.A.5 is registration extract of sale
deed dated 03.10.1979 executed by Sri T.Srinivasula Reddy in
favour of defendant No.1 whereunder he sold one half of plot
No.318. Ex.A.6 is registration extract of sale deed dated
03.10.1979 executed by Sri T.Srinivasula Reddy in favour of
second defendant whereunder he sold the remaining half of his
plot No.318. Thus, by virtue of Exs.A.5 and A.6, D.1 and D.2 who
are spouses became owners of plot No.318. Corresponding to
Exs.A.5 and A.6, the defendants in the suit filed Exs.B.3 and B.4.
13. During the pendency of the suit, defendant No.1 executed
Ex.B.1 which is photocopy of registered sale deed dated
23.08.1993 in favour of defendant No.3/appellant herein.
Similarly, defendant No.2 executed another sale deed dated
23.08.1993 in favour of defendant No.3/appellant herein and
Ex.B.2 is photocopy of the said registered sale deed.
14. The above narration would disclose the flow of title of
respective plots of respective parties. On this there has been no
controversy.
15. It is the case of plaintiff and the evidence of PW.1 that each
plot measures 75 feet x 45 feet. Similar is the case with plot
No.317 and plot No.318. Ex.A.4 which is the registration extract
of sale deed dated 30.06.1971 pertaining to plot No.318 similar
Dr. VRKS, J
measurements are made available. Thus, Sri T.Srinivasula
Reddy purchased plot No.318 with the above referred
measurements. The change in the extent commenced from the
time Sri T.Srinivasula Reddy sold plot No.318. He executed
Exs.B.3 and B.4/Exs.A.5 and A.6 in favour of defendant No.1 and
defendant No.2 respectively. While doing so, he has mentioned
the measurements in Ex.B.3 as east to west 76 feet north to
south 29½ feet. Similarly in Ex.B.4 in favour of defendant No.2
he mentioned the measurements as east to west 76 feet and
north to south 22 feet. Thus, from north to south he sold out 51½
feet under both the documents put together. While he got under
Ex.A.4 only 45 feet from north to south, he sold out 51½ feet to
defendant No.1 and defendant No.2. Thus, he sold out more
than what he purchased. Both the Courts below considered this
evidence and recorded clear findings stating that Sri T.Srinivasula
Reddy could not sell more than what he owned and possessed
and he sold out larger extent than what he owned and under the
guise of said document the disputed encroachments occurred.
Both the Courts below held that when the advocate commissioner
was taken out, he took the measurements of plot No.317 and
found that it is shorter by nearly 6 feet as against plaintiff's
Ex.A.2-registered sale deed and thus, they recorded 6 feet
encroachment occurred in plot No.317 and this was done by the
defendants. These concurrent findings of fact being based on
evidence and appropriate appreciation of evidence the
conclusions reached by both the Courts below being not perverse
in any manner those facts attained finality and bind this Court.
Dr. VRKS, J
16. The above discussion indicates loss of 6 feet width of site
for the plaintiff and the defendants have been holding possession
of that 6 feet. The plaintiff having successfully established her
title over a specified extent and having correctly demonstrated
that she lost that by the acts of the defendants she is always
entitled to seek declaration of her title and recovery of possession
of that part of the site. It is here the virtue of the substantial
question of law that is raised in this appeal has to be considered.
Defendant No.1 testified as DW.2 and stated that between both
the plots there has been a compound wall defining the
boundaries for both the plots and this wall was constructed by
their predecessor in title, namely, Sri T.Srinivasula Reddy and
thus, it has been there in existence at least since 1973 and
therefore they perfected their title by adverse possession by the
time the suit was laid in the year 1990. This witness deposed that
he did not construct the disputed compound wall. The
appellant/defendant No.3 deposed as DW.1 and he also said that
he did not construct this compound wall and it was there since the
time of the predecessors in interest. On the other hand, there is
the evidence of PWs.1 and 2 showing that this wall was never in
existence and it was constructed only in the year 1988. These
disputed facts were analysed by the trial Court and the first
appellate Court and they referred to the elaborate description of
property sold by Sri T.Srinivasula Reddy under Exs.B.3 and B4.
Both the Courts below stated that at a very great detail minute
details of the structures in existence in plot No.318 are seen from
the recitals in these two documents and there is conspicuous
Dr. VRKS, J
non-mention about compound wall. They said that if at all there
was such a compound wall it would have certainly mentioned in
those documents. Thus, both the Courts below on facts perfectly
held that there was no compound wall in existence till 1988. It is
in the context of the said fact, the learned trial Court expected the
defendants to examine Sri T.Srinivasula Reddy who was
admittedly alive and defendants did not examine him.
Defendants though contended that the wall was older by 20 years
they did not request the advocate commissioner to verify and
note it. Defendants also did not examine any other person to
show that the wall was constructed by Sri T.Srinivasula Reddy
and not by any of the defendants. In such circumstances, on an
overall assessment of the evidence learned trial Court as well as
the first appellate Court rightly held that the wall came into
existence only in the year 1988. If it came in the year 1988, it
means that it was not there early. When it was not there earlier,
there was no occasion for the plaintiff to feel cloud of her title or to
seek recovery of any possession of property.
17. So far as plaintiff is concerned, she laid the suit in terms of
Section 34 of the Specific Relief Act seeking for declaration of her
title. She is not a party to Exs.B.1 to B.4 and Ex.A.4. The
additional extents found their mention in Exs.B.3 and B.4 are of
the year 1979. From then the suit was laid within 12 years by
1990 and therefore it cannot be said that anyone prescribed title
by adverse possession. Plaintiff came to own and possess plot
No.317 since 1981. From then by the time the suit was laid in the
Dr. VRKS, J
year 1990 it was well within 12 years. Thus, the entire
possession of this disputed plot of land in the hands of defendant
Nos.1 to 3 put together do not show completion of 12 years and
therefore there was no question of adverse possession.
18. A reading of the judgments of the Courts below clearly
indicate that both the Courts first considered the evidence and
recorded a finding about title of plaintiff over the disputed property
and thereafter they have embarked upon discussing the question
of adverse possession claimed by the defendants. It is
undisputed rule of law that mere alternative plea does not amount
to admission of title. Both the Courts did not decide the dispute
on the basis of any admission inferred from the alternative plea of
adverse possession as they independently decided the title of the
plaintiff. Therefore, as rightly contended by the learned counsel
for respondent No.1, the substantial question of law raised herein
does not really arise from the material on record. The possession
of defendants became adverse only from the date of construction
of the compound wall in the disputed property and not earlier to
that. That incident occurred only in the year 1988 which was the
finding of the both the Courts below and that makes it very clear
that the contention about adverse possession raised was without
any substance.
19. Sri N.Ashwani Kumar, the learned counsel argues that in
terms of Section 51 of the Transfer of Property Act, damages
could be awarded instead of recovery of possession.
Dr. VRKS, J
20. As against that, the learned counsel for respondent No.1
contended that the constructions alleged could not be considered
as constructions made in bona fide belief of title over the property
and therefore, Section 51 of the Transfer of Property Act cannot
be applied. For this, the learned counsel cited Baini Prasad v.
Durga Devi3.
21. Having considered the rival submissions and the law laid
down by the Hon'ble Supreme Court of India in the above cited
ruling, this Court has to state that to apply Section 51 of the
Transfer of Property Act, the improvements must be those which
raise the value of the property and that there is a distinction
between a transferee and a trespasser and in the present case,
the defendants and this appellant were trespassers and therefore
not entitled to any compensation for any improvements since
there can be no equities in favour of a person who is fraudulently
in possession of the properties. This aspect of the matter was
fully considered by the learned first appellate Court and it reached
to appropriate conclusions and it denied any such relief to the
defendants in the suit. This Court finds no reason to interfere
with it.
22. In summation, it has to be said that the substantial question
of law raised does not really arise in the context of the material on
record from the judgments impugned. Even otherwise, adverse
possession did not occur under law in this case. Hence, the point
is answered against the appellant.
(2023) 6 SCC 708
Dr. VRKS, J
23. In the result, this Second Appeal is dismissed.
Consequently, the impugned judgment dated 24.08.2001 of
learned II Additional District Judge, Cuddapah in A.S.No.7 of
1996 stands confirmed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 01.05.2024
Ivd
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 01.05.2024
Ivd
