Ramasingh Lalithabai vs Khaja Shoukat Ali
2022 Latest Caselaw 1813 Tel

               HON'BLE SMT. JUSTICE P.SREE SUDHA

                  SECOND APPEAL No.746 of 2010

                           JUDGMENT

1. This appeal is directed against the judgment and decree dated

16.02.2010 passed by the learned Principal District Judge at Nalgonda,

in A.S.No.65 of 2007 allowing the appeal and setting aside the judgment

and decree dated 08.10.2007 passed in O.S.No.60 of 1997 on the file of

the learned Junior Senior Civil Judge at Devarakonda.

2. O.S.No.60 of 1997 was filed by Ramsingh Lalithabai - plaintiff

seeking permanent injunction restraining the defendants and their men

from interfering with her peaceful possession and enjoyment over an

extent of 161.3 square yards bearing Plot No.3, Block No.14, situated at

Deverakonda proper. The plaintiff in the plaint would submit that she

purchased an extent of 161.3 square yards of open land measuring 22

square yards from East to West and seven yards one feet from North to

South square yards and the said land is bounded by the vendors open

place on Eastern and Southern sides, PWD Road on Western side and

nine feet width road on Northern side. She got the above open place from

its owners Syed Jafar Ali and Syed Manzoorr Ahmed of Devarakonda

through registered sale deed bearing Document No.729 of 1981 for a

valuable consideration of Rs.1,700/- and that the vendors delivered

possession to the plaintiff and she is in continuous possession of the

suit land for some years by erecting a temporary hut and later due to the

business of her husband, they shifted to Halya. The plaintiff would also

state that the defendants are strangers to the suit schedule land and

that taking advantage of her absence, the defendants planted some

stones by saying that the suit schedule land is a passage to go to their

lands. She would also state that immediately after knowing the above

situation, she along with her husband came to Devarakonda and placed

the matter before the elders and on their advice the defendants removed

the planted stones. But, again they came to the suit schedule land on

15.07.1997, and therefore, as it is difficult for her to safeguard

possession from the clutches of the defendants, she filed the suit for

injunction.

3. In the written statement filed by the defendants inter alia

contending that they disputed the boundaries, denied the purchase of

suit schedule land from Syed Jafar Ali and also the registered sale deed.

They would further state that they are the own brothers. The second

defendant purchased Ac.1.10 guntas out of Sy.No.399 of Deverakonda

and was in possession of the property and he obtained civil Court Decree

in O.S.No.54 of 1983 dated 31.01.1983. He got occupancy certificate

issued by the Revenue Divisional Officer, Miryalguda on 1702.1992.

They would further assert that Syed Suleman was having interest over

Ac.1.10 guntas in Sy.No.399 and in fact this survey number comprises

of Ac.3.00 guntas and that the plaintiff has not acquired any right or

title in the suit schedule land and that the boundaries of the suit

schedule property are not properly described, and thus, suit is liable to

be dismissed.

4. While admitting this second appeal, the following substantial

questions of law are framed.

(a) Whether the lower appellate Court is justified in discarding Ex.A.1 registered sale deed dated 08.06.1981.

(b) Whether the lower appellate Court has misappropriated the evidence brought on record in reversing the judgment of the trial Court.

(c) Whether the suit for declaration of title based on adverse possession is maintainable in respect of the alleged Inam land.

5. In support of her contentions, the plaintiff examined herself as

P.W.1 and M.D.Sadique was examined as P.W.2 on her behalf. The

second defendant was examined himself as D.W.2 and one

Maddimadugu Daya Ratnam was examined as D.W.2. Exs.A.1 to A.8

were marked on behalf of the plaintiff and Exs.B.1 to B.7 were marked

on behalf of the defendants.

6. Considering the oral and documentary evidence adduced by both

the parties, the trial Court decreed the suit with costs in favour of the

plaintiff and defendants are restrained from interfering with plaintiff's

peaceful possession and enjoyment over the plaint schedule property.

Aggrieved by the said judgment, the defendants in the suit preferred an

appeal. In the appeal, the appellate Court allowed the appeal and the

judgment of the trial Court was set aside by observing that it is for the

plaintiff to establish her possession over the plaint schedule property as

on the date of filing of the suit by cogent and convincing evidence and

she has to stand on her own legs and she cannot take advantage of the

weaknesses of the defendants' evidence and that the trial Court

misdirected and came to a wrong conclusion. Aggrieved by the same, the

plaintiff preferred this Second Appeal.

7. For the sake of convenience, the parties hereinafter are referred to

as arrayed in the suit.

8. Heard the learned counsel appearing for the appellant and the

learned counsel appearing for the respondents.

9. The trial Court in its judgment observed that the plaintiff is the

absolute owner of the plaint schedule property and she purchased the

same from Syed Jafar Ali and Sayed Manjoor Ahmed under Ex.A1

registered sale deed dated 08.06.1981. At the time of filing the suit, the

plaint schedule property is a vacant place and there would be no

documentary proof to establish the possession of the owner over a

vacant space except the sale deed. As such the plaintiff by producing

Ex.A1 established her incidental title and possession over the plaint

schedule property and her evidence is also corroborated by the

independent evidence of P.W.2. The present suit is filed only for

injunction simpliciter. The trial Court further observed that defendants

relied upon the consent decree obtained in O.S.No.54 of 1983 under

Ex.B3. Ex.B3 is the plaint filed by the second defendant against Syed

Suleman claiming title by adverse possession over the entire extent of

Ac.1.10 guntas. As the defendant admitted the averments of plaint in the

written statement, consent decree was passed. Defendant Nos.1 to 3 in

the written statement filed in the present suit though stated that they

purchased Ac.1.10 guntas in Sy.No.399 from its original owner Syed

Suleman, they did not produce any document in support of their

contention. Though the second defendant in the cross-examination

admitted that he is having the document, he failed to produce the same,

but he filed the sketch under Ex.B4, occupancy certificate under Ex.B5,

pattedar pass book and title deed issued by the revenue authorities

under Exs.B6 and B7 and also stated that the revenue officials mutated

his name in the revenue records basing on the above documents. Ex.B3

is not binding on the plaintiff as she is not a party to the suit O.S.No.54

of 1983. It was also observed that the second defendant in the written

statement submitted that he paid land revenue and obtained pahanies

in his favour, but did not produce the same before the Court for the

reasons best known to him. Except Ex.B3 consent decree, there is no

other material for the second defendant to claim title and possession

over the plaint schedule property, and accordingly granted injunction in

favour of the plaintiff. The appellate Court in its judgment observed that

the plaintiff purchased the suit schedule plot from Sayed Jaffar Ali and

Syed Manjur Ahmed in the year 1981 as per Ex.A1 registered sale deed

for an amount of Rs.1,700/-, but in Ex.A1 it was not mentioned how the

vendors became owners of the suit plot. The basis for their ownership

and title is not there in Ex.A1. P.W.1 in her cross-examination deposed

that at the time of purchase the entire land was divided into plots and

only after issuance of lay out she purchased the land, but she has not

filed any lay out copy in the suit to substantiate her version. P.W.1

further deposed that she did not make any enquiries with regard to the

ownership of the vendors before purchasing the plot. It was suggested to

her that Ex.A1 has no connection with Sy.No.399 and this survey

number is not at all mentioned in Ex.A1 sale deed. Perusal of Ex.A1

clearly shows that no survey number was mentioned in it. She further

admitted that there is no material on record to show what is the survey

number in Ex.A1 and what is the basis for the title of her vendors in

respect of the suit schedule plot. Ex.A1 sale deed is dated 08.06.1981,

but she filed the suit in the year 1997 i.e. after sixteen years. There is no

document in favour of the plaintiff to prove her possession as on the

date of filing the suit.

10. Learned counsel for the defendants would argue that O.S.No.54 of

1983 was filed by Khaja Asif Ali against one Syed Suleman seeking

declaration of title and rectification of wrong entries in record of rights in

respect of the suit schedule property i.e. Ac.1.10 guntas in Sy.No.399

measuring Ac.3.00 guntas situated at Deverakonda. The plaintiff would

state that he is the owner and possessor of the suit schedule property

and he is in possession and enjoyment by paying land revenue for more

than 12 years and that he perfected title by adverse possession over the

suit schedule property. He would further contend that the defendant

therein interfered with his possession on 02.01.1993 and as such he

filed the suit for declaration. The said suit was filed on 27.01.1983. The

defendant filed his written statement on 31.01.1983 and admitted the

averments made in the plaint. He specifically admitted that the plaintiff

is the owner and possessor of the suit land and he is cultivating the

same and enjoying the fruits there from and also paying land revenue

regularly and that the defendant has no manner of right whatsoever over

the suit schedule property and that due to some misunderstandings he

interfered with the possession of the plaintiff and that he has no

objection if the name of the plaintiff is entered in the revenue records as

owner and possessor by duly deleting his name. Accordingly, a consent

decree was passed on 31.08.1983 declaring that the plaintiff is the

owner and possessor of the suit schedule property.

11. The appellant herein would contend that whether title by adverse

possession is maintainable in Inam land for declaration of title and so

also whether occupancy rights certificate under A.P. (TA) Abolition of

Inams Act can be granted in respect of urban/ residential/non-

agricultural property as substantial question of law. But, as it is a suit

for injunction those issues need not be decided in this appeal.

12. In the case on hand, the consent decree is pertaining to the year

1983, but the sale deed under Ex.A1 was much prior to the said decree

i.e. 08.06.1981 and that the plaintiff filed suit after 16 years. Though the

plaintiff stated that she stayed in the suit schedule land for some years

and then shifted her family to Haliya, she has not filed any document to

prove her possession of the suit schedule land. In Ex.A1 the survey

number is not mentioned and it was executed by the son of Syed

Suleman in favour of the plaintiff. Though consent decree was passed in

the year 1983, Ex.A1 was executed in the year 1981 two years prior to

the passing of consent decree. It was also stated that the plaint schedule

property belongs to Hasan Ali, father of Syed Suleman. It was not stated

anywhere whether the son of Syed Suleman executed sale deed in favour

of plaintiff with the consent of his father. It is also not brought on record

whether Syed Suleman is having knowledge about the execution of

Ex.A1 by his son prior to the filing of the written statement in the

consent decree. No doubt, perusal of Ex.A1 shows that it was executed

in favour of the plaintiff on receiving the total consideration and

possession was also handed over to the plaintiff. The details of the

boundaries are mentioned, but the survey number is not mentioned

anywhere. Except Ex.A1 the plaintiff has not filed any other document to

establish her possession. The plaintiff herself stated that she stayed in

the said place only for some years and thereafter she along with her

husband shifted to Haliya. When she came to know that defendants are

trying to trespass into the land, she along with her husband came and

settled the matter with the intervention of the elders. Even afterwards

when again defendants entered into the land, she filed the suit for

injunction. Admittedly, the plaintiff filed suit for injunction sixteen years

after execution of Ex.A1 and it is for her to file any relevant documents

to prove the possession as on the date of filing of the suit, but she failed

to do so. As such, the appellate Court rightly allowed the appeal filed by

the defendants by setting aside the judgment and decree passed by the

trial Court.

13. For the foregoing discussion, this Court finds no reason to

interfere with the findings of the appellate Court and accordingly this

Second Appeal is dismissed. However, there shall be no order as to

costs.

14. Pending miscellaneous petitions, if any, shall also stand

dismissed in the light of this final judgment.

____________________ P.SREE SUDHA, J.

11th APRIL, 2022.

PGS