Andhra Pradesh High Court - Amravati
G.Mahalakshmi vs N.Achiraju Others on 6 September, 2024
APHC010009572001
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
FRIDAY ,THE SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
SECOND APPEAL NO: 146/2001
Between:
G.mahalakshmi ...APPELLANT
AND
N Achiraju Others ...RESPONDENT
Counsel for the Appellant:
1. T S RAYALU
Counsel for the Respondent:
1. N ACHIRAJU
The Court made the following:
2
Dr. VRKS, J
S.A.No.146 of 2001
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.146 of 2001
JUDGMENT:
Plaintiff before the Courts below is the appellant, and this
appeal is preferred under Section 100 of Code of Civil Procedure
(C.P.C.) impugning the judgments of both the Courts below.
Pending the appeal she died and her legal representative came
on record vide order dated 27.07.2021 in C.M.P.No.13267 of
2001. Respondents herein were the defendants in O.S.No.51 of
1989 and also respondents before the first appellate Court in
A.S.No.10 of 1997.
2. On 23.11.2001 a learned Judge of this Court admitted this
second appeal on the following substantial questions of law:
1) Whether the Courts below could have ignored that even in
the ordinary proprietary action a plaintiff need do nothing
more than prove that she had an older possession through
her father than that of the respondents/defendants and the
law will presume from the prior possession a better title?
2) Whether the Courts below were in error in ignoring that
previous possession of the father of the appellant/plaintiff
is prima facie evidence of title against a wrong doer and
Dr. VRKS, J
entitle the appellant/plaintiff to succeed on proof of
peaceable possession derived under Ex.A.1, unless the
respondents/defendants could show a better title?
3) Whether the Courts below could have ignored the
principle that evidence of possession by the father of the
appellant/plaintiff and enjoyment of itself is cogent
evidence of title?
4) Whether the Courts below were in error in ignoring that in
the absence of clear title in the respondents/defendants,
the appellant/plaintiff is entitled to succeed on the basis of
her father's possession until the contrary is shown by the
respondents/defendants?
5) Whether the Courts below ought not to have ignored that
evidence of possession of certain specific property as
shown under Ex.A.1 and Exs.A.2 to A.4 and Exs.A.7 to
A.17, can be treated as evidence of possession as regard
the appendage i.e., the two room tiled house of the
appellant/plaintiff?
3. Sri T.S.Rayalu, the learned counsel for appellant submitted
arguments. For respondents, appearance was made but
thereafter none appeared to argue despite granting several
adjournments.
Dr. VRKS, J
4. For appreciating the substantial questions of law raised in
this appeal and the submissions of the learned counsel, a few
facts are to be noticed:
Property in dispute is situated in Raparthi Village,
Pithapuram Mandal of East Godavari District. This property runs
from north to south. There was one Sri Kambham Ramamurthy
Reddy. He owns landed properties and house properties. The
present controversy pertains to house properties. He had
executed Ex.A.1-Will dated 24.07.1971. In the same year he died
and therefore, that Will had come into operation. Claiming under
the said Will two legatees filed two separate suits. Sri Kambham
Rampratap Reddy @ Rampratap filed O.S.No.41 of 1989 seeking
permanent injunction as against four defendants. Whereas
Smt. Gudla Mahalakshmamma filed O.S.No.51 of 1989 for
declaration of title with a direction to the defendants to deliver
vacant possession of the plaint schedule property to her and for
future profits and for costs and such other reliefs. The said suit
was filed against four defendants. In both the suits the
defendants are the same. Both the suits were laid before learned
District Munsif, Pithapuram. Common evidence was recorded.
Dr. VRKS, J
For plaintiffs, PWs.1 to 6 testified and Exs.A.1 to A.18 were
marked. For defendants, DWs.1 and 2 testified and Exs.B.1 to
B.6 were marked.
5. Before the trial Court, the following issues were settled:
Issues in O.S.No.41 of 1989:
1. Whether the plaintiff is entitled for the permanent
injunction as prayed for?
2. To what relief?
Issues in O.S.No.51 of 1989:
1. Whether the plaintiff is entitled for the declaration as
prayed for?
2. Whether the plaintiff is entitled for delivery of the vacant
possession as prayed for?
3. Whether the plaintiff is entitled for profits as prayed for?
4. To what relief?
6. Considering the evidence on both sides and arguments
advanced on both sides, the learned trial Court found no merit in
both the suits and dismissed both the suits.
Dr. VRKS, J
7. Aggrieved by the trial Court judgments, plaintiffs in both the
suits preferred appeals. As against the judgment and decree in
O.S.No.41 of 1989, the appeal preferred was A.S.No.12 of 1997.
As against the judgment and decree in O.S.No.51 of 1989 the
appeal preferred was A.S.No.10 of 1997. Both the appeals were
heard and disposed of by the learned Senior Civil Judge,
Pithapuram by a common judgment dated 26.11.1999. The
learned first appellate Court found fault with the conclusions
reached by the trial Court in O.S.No.41 of 1989 and accordingly
the said judgment was set aside and consequently A.S.No.12 of
1997 was allowed granting a permanent injunction in favour of
Sri Kambham Rampratap Reddy @ Rampratap as against the
respondents/defendants therein. However, the learned first
appellate Court found no merit in the appeal preferred by
Smt. Gudla Mahalakshmamma and accordingly dismissed her
appeal in A.S.No.10 of 1997 and consequently, confirmed the
judgment and decree of the learned trial Court in O.S.No.51 of
1989.
Dr. VRKS, J
8. Aggrieved by the concurrent judgments of both the Courts
below, Smt. Gudla Mahalakshmamma preferred this second
appeal.
9. This appellant appended a schedule to her plaint in
O.S.No.51 of 1989, which reads as below:
"East Godavari District, Pithapuram Mandal, Raparthi Village,
Mangalore tiled house and site with two rooms which is of an
area of about 180 sq. feet bounded on:- Door No.1-40
western side 2 rooms out house.
East :- Front yard
West :- Defendants site
North :- Defendants site
South :- Panchayat public latrine
All the constructions within the above boundaries."
10. The earnest submissions of Sri T.S.Rayulu, the learned
counsel for appellant is that the learned first appellate Court
having recorded its finding that Ex.A.1-Will was proved under
which a bequest was made to this appellant it ought to have
declared the suit in favour of the appellant but it erroneously
dismissed her cause. It is further submitted that under Ex.A.6-
Dr. VRKS, J
letter dated 18.06.1988 the defendants admitted the case of the
plaintiffs and both the Courts below erroneously excluded that
document from consideration. Had it been considered the claim
of the appellant could have been accepted. The evidence
adduced before the Court below established the claim of the
appellant and it has also shown that the respondents/
defendants were only trespassers having no better title and, in
such case, considering the long possession held by the
appellant her title should have been declared and possession
should have been directed to be delivered to the appellant.
11. This Court has gone through the entire material placed
before this Court by the appellant and the following aspects are to
be stated:
The evidence on record has shown that Sri Kambham
Ramamurthy Reddy had house property, and it consists of two
portions running from north to south. The northern portion was
bequeathed to Sri Kambham Rampratap Reddy @ Rampratap
who is plaintiff in O.S.No.41 of 1989. Evidence on record and
finding of fact by both the Courts below disclosed that the
southern portion of this structure belonged to the defendants.
Dr. VRKS, J
Apart from the above-mentioned northern portion and southern
portion, there is an outhouse/shed. It is that property which is
claimed by Smt. Gudla Mahalakshmamma/appellant. This part of
the structure exists to the extreme south of the main house.
Before the learned first appellate Court certain contentions were
raised and eventually an advocate commissioner was taken out
and he visited the spot and measured the properties and noted
the physical features and submitted the report. Learned first
appellate Court while making its decision placed reliance on the
said report also. On this advocate commissioner's report either
on fact or law no questions have been raised in this appeal.
12. It is undisputed that Ex.A.1-Will was held genuine and
proved and necessary observations to that effect were recorded
by the learned first appellate Court. It is under that Ex.A.1-Will
and the other evidence the claim for injunction filed by
Sri Kambham Rampratap Reddy @ Rampratap was upheld in
A.S.No.12 of 1997 recording a finding that he has been in
possession of that property. The learned first appellate Court
reached conclusions finding that the said individual was
successful in proving his possession and enjoyment of northern
Dr. VRKS, J
portion of the main structure and therefore, perpetual injunction
was granted. Learned first appellate Court had also observed
that under the same Ex.A.1-Will a bequest was also made in
favour of this appellant. Having made such observation, it had to
consider whether based on Ex.A.1 and other evidence the claim
for title and recovery of possession was proved or not. After
furnishing detailed reasons, the learned first appellate Court
observed that the present appellant failed to establish either her
title or her previous possession over the properties she claimed.
The following findings of fact were recorded by the learned first
appellate Court to reach to such conclusions.
It observed that as per the plaint schedule the property
claimed is an extent of 180 square feet. However, when
the learned advocate commissioner visited the place and
measured it, it found 480 square feet. Thus, what was
claimed did not match with what was found available at the
site.
The submission of the learned counsel for appellant is that
boundaries would prevail as against the extent and the first
appellate Court failed to consider the said aspect.
Dr. VRKS, J
13. On considering the above submission, this Court finds no
merit in it. As a matter of fact, it has been recorded by both the
Courts below that in Ex.A.1-Will the testator did not furnish
boundaries to the properties he bequeathed. There are no other
documents indicating the boundaries of the property which this
appellant claims. Thus, the contention of the learned counsel for
appellant that boundaries would prevail over extent is not based
on facts and hence it must be negatived.
The other observation of the learned first appellate Court is
that Exs.A.2 to A.4 and A.7 to A.16 which are property tax
receipts and assessment registers indicated the possession
of property by the testator and thereafter by Sri Kambham
Rampratap Reddy @ Rampratap who is plaintiff in the
other suit which is O.S.No.41 of 1989. All those documents
pertain to Door No.1-40. The property of
defendants/respondents was found to be house bearing
Door No.1-39. It observed that though Ex.A.1-Will came
into effect in the year 1971 till the time the suit was filed in
the year 1989 there was no mutation of entries in the
relevant records and the present appellant failed to show
Dr. VRKS, J
payment of any tax and failed to show her possession in
that property at any time.
14. In the memorandum of grounds urged in this appeal, it is
urged, and the learned counsel submits that the above referred
tax receipts must be considered for this appellant also. There is
absolutely no merit in that contention.
15. Learned first appellate Court observed that in the property
claimed by this appellant the southern boundary is shown as
panchayat public latrines. Smt. Gudla Mahalakshmamma/
appellant deposing as PW.1 made a clear admission that the
property of respondents/defendants extended upto those
panchayat public latrines. It is to be once again stated here that
for the main structure the northern portion belonged to the plaintiff
in O.S.No.41 of 1989 and the southern portion belonged to the
respondents/defendants herein. If the property of these
respondents/defendants is upto the southern side panchayat
public latrines then everything till that boundary belonged to
defendants/respondents and in such an event, the contention of
the appellant that south of respondents/defendants property the
Dr. VRKS, J
property she got under Ex.A.1-Will exists cannot be
countenanced.
16. Learned first appellate Court also observed that the
property claimed by this appellant is not adjoining the property
claimed by the plaintiff in O.S.No.41 of 1989. Therefore, Door
No.1-40 which was assessed to the property of plaintiff in
O.S.No.41 of 1989 cannot be considered for the property claimed
by this appellant. It made a specific remark that the property
claimed by this appellant and the property claimed by plaintiff in
O.S.No.41 of 1989 having in between them the property of
defendants and that the property claimed by this appellant is on
south of respondents/defendants property. This observation is
based on facts and analysis of evidence and therefore, the same
attained finality. It cannot be said that the learned first appellate
Court either misread the evidence or considered any evidence
which was not part of the record. It is not an observation made
on any conjectures or surmises. Therefore, in this second appeal
that cannot be challenged.
17. There is another significant fact to be noticed is that this
appellant in her suit claimed declaration of title and she claimed
Dr. VRKS, J
her title through Ex.A.1-Will. Such a claim presupposes that the
testator had title over the property and only when he had title he
could bequeath to the legatee. Coming to the title of the testator,
the appellant as plaintiff stated that the testator had acquired title
under a registered sale deed. The learned trial Court recorded a
clear observation that the alleged registered sale deed or its
certified copy was not adduced in evidence. During trial, in the
oral evidence PW.1 and other witnesses stated that the testator
got tile under an oral sale. That is a new theory. It is undisputed
that the evidence has not disclosed any definite details about the
oral sale. Sale of immovable property must be through a
registered conveyance. Having failed to produce the alleged sale
deed the claim was hinged on the oral sale. Since an oral sale
stood never proved, the claim based on such oral sale could not
be vested through Ex.A.1-Will. Therefore, the observation of the
learned first appellate Court is that in a suit for declaration of title
the plaintiff must succeed or fail on her own strength and the
weakness in the case of defendant could not lead to a conclusion
that the plaintiff holds the title. This Court has to state that a suit
for declaration of title requires the plaintiff to establish title and
weakness in the defence cannot result in declaration of title of
Dr. VRKS, J
plaintiff as held by the Hon'ble Supreme Court of India in Union
of India v. Vasavi Co-operative Housing Society Limited1.
Therefore, the observation of the first appellate Court is in
accordance with law and therefore cannot be disturbed.
18. The submissions of the learned counsel for appellant and
the grounds urged in the memorandum are to the effect that what
was held good for the other plaintiff in O.S.No.41 of 1989 has to
be applied to the present appellant also. There is no merit in it.
One marked difference to be noticed is O.S.No.41 of 1989 is a
suit for permanent injunction which was based on possession. As
the oral and documentary evidence produced before the Courts
below proved such possession, permanent injunction was
granted in favour of the plaintiff in O.S.No.41 of 1989. The case
of the appellant does not stand on the same footing. Her claim
here is for declaration of title. Since she failed in establishing her
title, both the Courts below, on facts and evidence and as per
law, declined to grant the relief.
19. The evidence on record and concurrent observations of
both the Courts below on facts showed that this appellant failed to
(2014) 2 SCC 269
Dr. VRKS, J
prove her possession as well as possession of her predecessors
in interest concerning the property which she claimed in the plaint
schedule. Therefore, claiming the relief based on prior
possession to be considered as a better title does not arise on
facts.
20. Another contention raised in this appeal is about admission
of title of plaintiff/appellant by the respondents/defendants. This
contention is based on Ex.A.6. It is a letter dated 18.06.1988
whereunder defendants admitted the case of the plaintiffs in both
the suits. Both the Courts below refused to act upon it though for
different reasons. Learned trial Court stated that as per the
evidence on both sides this letter was given by defendants to the
police when they were called upon to the police station at the
behest of the plaintiffs in the two suits. The learned trial Court
called them as confessions and stated that confessions made to
police could not be considered in evidence. Learned first
appellate Court did not agree with such reasons. However, the
learned first appellate Court stated that in terms of Section 17 of
the Indian Evidence Act adverse admissions could be proved.
However, they must be free and voluntary. What was given in
Dr. VRKS, J
favour of plaintiffs in the police station could not be said to be
given voluntarily. Moreover, the observations of the first appellate
Court are that there was nothing to find that the defendants had
full information of facts and legal rights when they made such
admissions in their Ex.A.6-letter. It was for those reasons both
the Courts below refused to act upon Ex.A.6. In the present
appeal the learned counsel for appellant questions the validity of
these findings. This Court finds no merit in this contention of the
appellant. In a suit for declaration of title plaintiff must establish
her title. On admissions of the adversary, title over immovable
properties cannot be declared. That being the basic principle of
law the contention of the appellant has no merit.
21. The substantial questions of law formulated are on the
premise that the executant of Ex.A.1-Will being the alleged
predecessor in title proof of his possession enured to the benefit
of this appellant and therefore, based on previous possession of
the predecessor in title the title of this appellant be declared. In
this regard, it has to be stated that the declaration was sought in
the plaint claiming title. Declaration was not sought based on
possession of predecessors in title. Thus, on facts and based on
Dr. VRKS, J
the pleaded case the substantial questions formulated do not
arise at all. Moreover, the material on record shows that this
appellant failed to prove possession of the predecessors in title
over the plaint schedule property. The judgment of the Court
below is right on facts and law and does not require any
interference. Therefore, all the questions are answered against
the appellant.
22. In the result, this Second Appeal is dismissed. 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: 06.09.2024
Ivd
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 06.09.2024
Ivd
