Pappu Susheela, vs Pappu Kondaiah,
2021 Latest Caselaw 916 Tel

       THE HON'BLE SRI JUSTICE T. SUNIL CHOWDARY

           SECOND APPEAL Nos.405 and 426 OF 2005
COMMON JUDGMENT:


1       The unsuccessful first defendant preferred S.A.No.405 of

2005 challenging the decree and judgment dated 08.12.2004

passed in A.S.No.12 of 2003 on the file of the VII Additional
District Judge (Fast Track Court), Nizamabad at Bodhan,

confirming the decree and judgment dated 12.02.1997 passed in

O.S.No.30 of 1992 on the file of the District Munsif, Yellareddy
declaring that the plaintiffs are owners of suit schedule property

and for recovery of possession. The unsuccessful first defendant
preferred S.A.No.426 of 2005 challenging the decree and judgment

dated 08.12.2004 passed in A.S.No.13 of 2003 (filed by the

plaintiffs) on the file of the VII Additional District Judge (Fast Track
Court), Nizamabad at Bodhan, granting mesne profits to the

plaintiffs. For the sake of convenience, the parties will hereinafter

be referred to as they are arrayed in the suit.

2      The case of the plaintiffs is that Balakistaiah and Venkaiah

are sons of Pappu Kondaiah. Plaintiff Nos.1 and 2 are the sons of
late Balakistaiah through his first wife. Defendant Nos.3 to 5 are

the sons of late Balakistaiah through his second wife. The first
defendant is the daughter and second defendant is the son of late
Venkaiah. Balakistaiah acquired the suit schedule property along

with some other property 40 years back and enjoyed the same as
joint family property. Balakistaiah and Venkaiah have partitioned
an extent of Acs.2.33 guntas and allotted Ac.0.37 guntas i.e., the
suit schedule property to plaintiff Nos.1 and 2; an extent of Ac.0.38

guntas to defendant Nos.3 to 5; and Ac.0.38 guntas to late
Venkaiah, who is paternal uncle of plaintiffs. Defendant Nos.1 and
 2 succeeded to the extent of Ac.0.38 guntas fell to the share of

their father, late Venkaiah. The plaintiffs have been in possession
and enjoyment of suit schedule property since 1976 - 77. The first
plaintiff being a Teacher used to reside at Banswada and second

plaintiff, who is a retired Teacher, never cultivated suit schedule
property. On 11.09.1991, the defendant Nos.1 to 3 started digging
a bore well in the suit schedule property as if the same belongs to

them. The plaintiffs have applied for certified copies of Pahani
Patriks for the year 1977 - 78 onwards; wherein the name of first

plaintiff is mentioned as owner of suit schedule property and the
name of the first defendant is shown in possessory column. The
fifth defendant worked in Revenue department in various
capacities and taking advantage of his official position, he
manipulated the revenue records showing the name of first
defendant in 'possessory column'.       The first defendant is a

handicapped woman since more than 40 years and the suit
schedule property is not under cultivation. The defendants without
any right whatsoever have taken possession of the suit schedule
property in the year 1991. Hence, the suit was filed for declaration
of title and recovery of possession.

3         The defendant Nos.1 to 5 filed the written statement
admitting relationship between the parties, inter alia contending
that late Balakistaiah and late Venkaiah acquired the suit schedule
property jointly.   In the family partition, late Venkaiah and late
Balakistaiah got half share each including suit schedule property.

The sons of late Balakistaiah have further partitioned the property
fell to their father; in the said partition defendant Nos.3 to 5 got

1/4th share and plaintiff Nos.1 and 2 got 1/4th share. Defendant
Nos.1 and 2 equally succeeded to the property fell to the share of
their father, late Venkaiah. The second plaintiff has been looking
 after the cultivation affairs as the first plaintiff never resided in
Yellareddy. On 24.01.1971 the plaintiffs have relinquished their

rights in the suit schedule property in favour of defendant Nos.1 to
5 in exchange of the land in survey Nos.102 and 103 of
Devenapally village, which is exclusively belonged to defendant
Nos.1 to 5.        Defendant Nos.1 to 5 have been in exclusive
possession and enjoyment of the suit schedule property whereas
the plaintiffs have been in possession and enjoyment of the land in

survey Nos.102 and 103 of Devanapally village. The husband of
first defendant has been cultivating the land on behalf of the
defendants.      The fifth defendant has been maintaining cordial
relations with both the plaintiffs. The plaintiffs were inimical with
each other till filing of the proceedings before the Mandal Revenue
Officer, Yellareddy (MRO).           The suit is barred by limitation.

Hence the suit is liable to be dismissed.

4       After filing of written statement, the plaintiffs filed rejoinder
denying the execution of exchange agreement relinquishing their

rights over the suit schedule property in favour of the defendant
Nos.1 to 5.

5        Basing on the above pleadings, the trial court framed the

following issues and additional issues:

    1. Whether the properties of Bala Kistaiah and Pappu Venkaiah is divided
        into three shares between plaintiffs, defendants No.1 and 2 and 3 to 5
        as contended by the plaintiffs?

    2. Whether the suit schedule lands are owned and possessed by the
       plaintiffs till 1976 - 77 and later on they were disposed on 11.9.1991
       by sinking the bore well?

    3. Whether the plaintiffs are entitled for declaration of title over the suit
       property and in consequences for recovery of possession from the
       defendant No.1?
 Additional issues:

    1.   Whether the plaintiffs were in actual and physical possession over the
         suit lands?

    2.   Whether the defendants dispossessed the plaintiffs from the suit land
         forcibly and illegally on 11.9.1991?

    3.   Whether the plaintiffs filed this suit within 12 years from the date of
         their dispossession from the suit land by the defendants?

    4.   Whether the plaintiffs have got cause of action to file this suit?

    5.   Whether the defendants came into possession of the suit lands by
         virtue of Ex.B.1 in the year 1971?

    6.   To what relief?


6        During the course of trial, on behalf of plaintiffs, P.Ws.1 to 4

were examined and Ex.A.1 to A.24 were marked. On behalf of the
defendants, D.Ws.1 to 7 were examined and Exs.B.1 to B.15 were

marked.

7        Basing on the oral, documentary evidence and other material
available on record, the trial Court arrived at a conclusion that the

plaintiffs are entitled for the relief of declaration and recovery of
possession, and accordingly decreed the suit, while rejecting the

relief of mesne profits.           Feeling aggrieved by the decree and

judgment of the trial court, first defendant filed A.S.No.12 of 2003
and the same was dismissed. The plaintiffs preferred A.S.No.13

of 2003 challenging the decree and judgment of the trial court, so
far as rejecting the relief of mesne profits is concerned. The first

appellate court allowed A.S.No.13 of 2003 granting mesne profits

to the plaintiffs. Assailing the decrees and common judgment of
the first appellate Court, the unsuccessful first defendant preferred

these second appeals. The subject matter involved in both the
appeals is one and the same; hence I am inclined to dispose of
 these second appeals by common judgment.

8            At the time of the arguments, learned counsel for the

appellant raised the following substantial questions of law.

     1)      "Whether Ex.B.1 is admissible in evidence for collateral
          purpose in view of proviso to Section 49 of the Indian
          Registration Act?

     2)     Whether the suit can be decreed in spite of first defendant
          proved her possession of the suit schedule property by filing
          ROR passbook and orders of RDO and Tahsildar?

     3)      Whether the first defendant acquired the title to the suit
          schedule property by adverse possession?

     4)   Whether the plaintiffs are entitled for mesne profits?"

9           Heard Sri J.Ramachandra Rao, learned counsel for the

appellant/first defendant and Sri Balraj Bodhankar, learned counsel

for respondent Nos.1 and 3 to 6/plaintiffs.

Question No.1:

10 Late Balakistaiah and late Venkaiah are sons of late Pappu

Kondaiah. The plaintiffs 1 and 2 are sons of Balakistaiah through his first wife, and defendant Nos.3 to 5 are the sons of

Balakistaiah through his second wife. Defendant Nos.1 and 2 are

daughter and son of late Venkaiah. Pappu Kondaiah did not acquire landed property during his life time. Late Balakistaiah and

late Venkaiah have partitioned an extent of Acs.2.33 guntas in survey Nos.426, 427 and 430 of Yellareddy village. The plaintiff

Nos.1 and 2 got Ac.0.37 guntas; defendant Nos.1 and 2 got

Ac.0.38 guntas and defendant Nos.3 to 5 got Ac.0.37 guntas.

11 It is the case of defendants, late Balakistaiah and late

Venkaiah acquired the property jointly and in the family partition

they got equal shares. The plaintiff Nos.1 and 2 got 1/4th share and defendant Nos.3 to 5 got the remaining 1/4th share in the

property fell to the share of their father. Defendant Nos.1 and 2 succeeded to the share of late Venkaiah. Both the parties have

not filed any document to prove that the property in question was acquired by late Balakistaiah and late Venkaiah jointly. However,

the same is not of much significance in view of the scope of the present suit. As per the contention of defendants, the first plaintiff never resided in Yellareddy and it is the second plaintiff, who

looked after the suit schedule property till 1971. The defendants are claiming that they got suit schedule property under Ex.B.1 agreement (Kararnama - exchange deed) dated 24.8.1971. P.W.1

denied the execution of Ex.B1 agreement. Even as per the version of the defendants, the plaintiffs are having right over the suit schedule property. The specific stand of the defendants is that the

plaintiffs have exchanged the suit schedule property by taking the land covered by survey Nos.102 and 103 of Devanapally village. To prove the execution of Ex.B.1 in their favour, the defendants mainly relied on the oral testimony of D.W.3, who is the second

plaintiff. In the cross-examination, D.W.3 in unequivocal terms admitted that the first plaintiff was not authorised him to execute Ex.B1 agreement. There is no proper explanation in the testimony

of D.W.3, how he executed Ex.B.1 in favour of the defendants without the consent of the first plaintiff. Even otherwise, the second plaintiff alone is not entitled to execute Ex.B.1. Ex.B.1 is silent with regard to exchange of the properties between the

plaintiffs and defendants. The relevant portion of Ex.B.1 reads as under:

"Khararnama dated 24.8.1971 Monday executed by Pappu Anjaiah, son of Bala Kistaiah. I have no share in Sadaka Pai Kitta Khushki Bhagam. There will be only three shares, their names are as follows:

Smt.Susheela - 1/3; Sri Pentaiah - 1/3; and Pandari, Vishwanatham and Narayana - 1/3.

This is the Khararnama executed by me with my free will."

12 A perusal of Ex.B.1 gives an impression that the second plaintiff has relinquished his right over the suit schedule property

in favour of the defendants. Except the oral testimony of D.Ws.1 to 5, there is no other convincing evidence to establish that the land in survey Nos.102 and 103 of Devenapally village exclusively belonged to the defendants. The defendants have not filed any

document to establish that the plaintiffs have been in possession and enjoyment of land situated in survey Nos.102 and 103 with effect from 24.8.1971. There is no mention in Ex.B.1 that the

possession of the suit schedule property was delivered to the defendants. The suit was filed in the year 1992. Ex.B.1 has not seen the light of the day till 20.12.1993, on which date it was produced before the court. Non-filing of Ex.B.1 before the court at

the earliest point of time casts a cloud on its genuineness.

13 Section 118 of Transfer of Property Act postulates the procedure to be followed in case of exchange of immovable property. Section 54 of the Transfer of Property Act postulates that

sale of immovable property worth Rs.100/- or more shall be by way of a registered instrument. A fascicular reading of Sections 54 and 118 of the Transfer of Property Act clearly manifests exchange of immovable property worth more than Rs.100/- is only

by way of a registered document. As per Section 17(1)(b) of the Registration Act, exchange of immovable property worth Rs.100/- or upward shall be by way of registered instrument. According to

Section 35 of Indian Stamp Act a compulsorily registerable document, if not registered, is inadmissible in evidence.

14 However, under the proviso to Section 49 of the Registration Act, an unregistered document can be admitted in evidence for a collateral purpose. In this case, the defendants contend that they acquired title over the suit schedule property under Ex.B.1

exchange deed; since Ex.B1 is an unregistered document, it cannot be admitted in evidence to prove the main purpose of 'exchange'. Therefore, the proviso to Section 49 of the

Registration Act is not applicable to the facts of the case on hand.

Viewed from any angle, the stand of the defendants that they got the suit schedule property in exchange is untenable.

Question Nos.2 and 3:

15 Since question Nos.2 and 3 are inter-linked, I answer these two questions simultaneously, in order to avoid recapitulation of

facts and evidence.

16 The contention of the plaintiffs is that fifth defendant, taking advantage of his official position in the Revenue department, manipulated the revenue records. As contended by the

defendants, they have been in possession and enjoyment of the suit schedule property. Exs.A.1 to A.17 are pahanies for the years from 1976 - 77 to 1990 - 91. In all these documents, the names of the first plaintiff and the defendants are shown in possessory

and ownership columns. In some documents, the name of the first defendant alone is shown in possessory column. If really the plaintiffs have executed Ex.B1 in favour of defendant Nos.1 to 5,

how the name of the plaintiffs is shown in possessory and ownership columns is not properly explained by the defendants. In these documents, the source of the tile of the defendant Nos.1 to 5 is not mentioned. How the defendants came into possession of the

suit schedule property is not mentioned in these documents. The discrepancy in these documents, to certain extent, substantiates the stand of the plaintiffs that the fifth defendant manipulated Exs.A1 to A17 taking advantage of his official position. If really Ex.B1 was in possession of the defendants, what prevented them

to file the same either before the Mandal Revenue Officer, Yellareddy (MRO) or the Revenue Divisional Officer, Kamareddy (RDO) to substantiate their stand? In all these documents, the

suit schedule lands are described as PADAVA, which means fallow. Therefore, the contention of the defendants that they have been cultivating the suit schedule property from the year 1976 onwards is falsified.

17 The first plaintiff submitted a report to the MRO, Yellareddy

on 19.01.1992 stating that the defendants have manipulated the pahanies. The MRO passed orders on 07.04.1992 (Ex.A.18) ordering rectification of the records by showing the name of the first plaintiff in possessory and ownership columns in place of first

defendant's name. The defendants have preferred appeal before the RDO. A perusal of the Ex.B.3 reveals that by interim order dated 31.07.1992 the RDO directed the parties to raise their

claims before the recording authority concerned. However, the Deputy Tahsildar, Yellareddy passed orders on 21.09.1992 (Ex.B.4) rejecting the claim of the first plaintiff. A perusal of Ex.A.20 reveals that the RDO has kept the appeal in abeyance in

view of the pendency of O.S.No.30 of 1992 on the file of District Munsif, Yellareddy between the parties. A perusal of the record clearly reveals that the plaintiffs are disputing the genuineness of

the revenue records. Admittedly the concerned revenue people have not taken any steps for rectification of entries the revenue records, in view of the pendency of the suit for declaration.

18 The court can place reliance on record of rights unless and until contrary is proved. In the instant case, defendant Nos.3 to 5 have obtained pattadar passbooks i.e., Exs.B.5, B.6, B.11, B.12 and B.13, basing on the manipulated pahanies. Therefore, much

weight cannot be attached to these revenue documents.

19 It is the duty of the person, who asserts the title over certain property basing on adverse possession, to establish that he has been in continuous possession of the same without any

interruption to the knowledge of one and all particularly the owner of the property, for a period of 12 years immediately preceding to the filing of the suit. The present suit is filed in the year 1992. The case of the defendants is that they have been in possession

and enjoyment of the suit schedule property since 24.08.1971. If mathematical calculation is applied, the claim of the defendants appears to be correct. Absolutely there is no material on record to

establish that the defendants have been in physical possession of the suit schedule property for a period of 12 years preceding to the filing of the suit. The documents on which the defendants are placing reliance, to establish their title by way of adverse

possession, are not legally admissible.

20 The defendants are claiming the title over the suit schedule property on one hand by placing reliance on Ex.B.1 and on the other hand by way of adverse possession. There is no doubt that

the defendants are entitled to take inconsistent pleas. It is a settled principle of law that a party to the suit is not entitled to take mutually self-destructive pleas. The defendants, who have placed much reliance on Ex.B.1 to establish their title over the suit

schedule property, are legally precluded from taking the plea of adverse possession. Therefore, the defendants are not entitled to take the plea of adverse possession.

21 It is not in dispute that the plaintiffs have succeeded to the suit schedule property from their father and the same is

substantiated by the recitals of Exs.B.14 and B.15 Khasra Pahanies for the year 1954 - 55. The defendants themselves are admitting the title of the plaintiffs over the suit schedule property.

The defendants having admitted the title of the plaintiffs, failed to establish that they got the suit schedule property under Ex.B.1 exchange deed. The material placed before the court clinchingly establishes that the plaintiffs are the owners of the suit schedule

property. Being the owners of the suit schedule property, the

plaintiffs are entitled to recover the same from the defendants.

Question No.4:

22 The trial court rejected the relief of mesne profits on the

ground that the plaintiffs failed to establish the quantum of mesne profits. The trial court proceeded on a wrong premise that the

plaintiffs ought to have proved the quantum of mesne profits in the

suit itself. The quantum of mesne profits will be decided by the court on a separate application filed by the plaintiff as

contemplated under Order XX Rule 12(1) CPC. The first appellate court rightly considered the scope of Order XX Rule 12(1) CPC

and granted the relief of mesne profits by setting aside the decree

and judgment of the trial court to that extent. The trial court ought to have granted the mesne profits, having arrived at a conclusion

that the plaintiffs are entitled for the relief of declaration and

recovery of possession. The first appellate court has not committed any irregularity or illegality while granting the relief of

mesne profits to the plaintiffs. I am fully agreeing with the findings

of the first appellate court so far as granting of mesne profits to the plaintiffs are concerned.

23 The courts below concurrently held that the plaintiffs are entitled for the relief of declaration and recovery of possession.

The courts below have minutely scrutinized the oral and

documentary evidence and arrived at a conclusion that the plaintiffs are the owners of the suit schedule property. The courts

below have assigned cogent and valid reasons to its findings.

Viewed from factual or legal aspects, the findings recorded by the courts below cannot be branded as perverse. I am fully agreeing

with the findings recorded by the courts below that the plaintiffs

are entitled for the reliefs of declaration, recovery of possession of the suit schedule property and mesne profits. There is no

question of law much less substantial question of law in these second appeals. Hence, these two second appeals are liable to be

dismissed.

24 Accordingly, second appeal No.426 of 2005 is dismissed,

confirming the decree and judgment dated 08.12.2004 passed in A.S.No.13 of 2003 on the file of the VII Additional District Judge

(Fast Track Court), Nizamabad at Bodhan. The second appeal

No.405 of 2005 is dismissed, confirming the decree and judgment dated 08.12.2004 in A.S.No.12 of 2003 on the file of the VII

Additional District Judge (Fast Track Court), Nizamabad at

Bodhan; consequently the suit in O.S.No.30 of 1992 on the file of District Munsif, Yellareddy is decreed. The parties are directed to

bear their own costs in these two appeals. As a sequel,

miscellaneous petitions if any pending shall stand closed.

__________________________ T.SUNIL CHOWDARY, J

Date: 22.04.2014

YS