Bairy Pichamma vs Bairy Linga Reddy
2022 Latest Caselaw 6496 Tel

       THE HONOURABLE SRI JUSTICE M.LAXMAN

            SECOND APPEAL No.1050 OF 1999

JUDGMENT:

1. The present appeal has been directed against

judgment and decree dated 07.07.1999 in A.S.No.84 of 1993

on the file of the Court of the III Additional District Judge at

Warangal (for short, 'first appellate Court'), whereby the

judgment and decree dated 08.09.1993 in O.S.No.151 of

1989 on the file of the Court of the II Additional Munsiff

Magistrate at Warangal (for short, 'trial Court'), was

reversed. The said suit, filed by the appellant herein for

recovery of possession of the suit property, was decreed.

The present appeal is at the instance of the plaintiff.

2. The sum and substance of the case of the plaintiff is

that she is the owner and possessor of land admeasuring

Ac.0-20 guntas in Sy.No.332/A, situated at Bairanpally

Village, H/o. Siddapuram Village, Hasanparthy Mandal,

Warangal District (hereinafter, it is referred to as 'suit

property'), having purchased the same from Veera Raghava

Reddy under an agreement of sale dated 01.06.1979. By

virtue of such agreement, the plaintiff was put into

possession of the suit property and she had been enjoying

the same ever since. The plaintiff also dug some trenches.

While so, the defendant, without any manner of right, tried

to interfere with the plaintiff's peaceful possession over the

suit property. In the said circumstances, the present suit

has been filed.

3. The case of the defendant is that he denied the

ownership and possession of the plaintiff over the suit

property. He claimed that the suit property was allotted to

his share in the partition effected among him and his

brothers i.e., Pedda Gattaiah, Malla Reddy and Mukund

Reddy. In the year 1976, the defendant raised a hut in some

portion of the suit property. The defendant also constructed

a compound wall in half of the portion of the suit property

after obtaining permission from the Gram Panchayat. He

has made an application for construction of permanent

house in some portion of the suit property and the Gram

Panchayat has also accorded permission. The remaining

portion of land is under his cultivation. He has installed

water siphan system and constructed a water storage tank

in the year 1982. As per the defendant, ever since partition

of the properties, he has been in exclusive possession and

enjoyment over the suit property. The revenue records also

demonstrate his title and possession over the suit property.

The defendant denied digging of trenches and cultivation by

the plaintiff over the suit property. On the basis of above

pleadings, the defendant prayed to dismiss the suit.

4. Basing on the above pleadings, the trial Court framed

the following issues:

"1. Whether the plaintiff is entitled to get possession of suit schedule property as prayed for?

2. To what relief?"

5. The plaintiff, in order to prove her case, examined

PWs.1 to 3 and relied upon Exs.A-1 to A-3. On behalf of the

defendant, DWs.1 and 2 were examined and relied upon

Exs.B-1 to B-10.

6. The trial Court, on appreciation of evidence on record,

found that the plaintiff has made out case for recovery of

possession of the suit property. Consequently, the trial

Court decreed the suit. Challenging the same, the

defendant filed A.S.No.84 of 1993 before the first appellate

Court. The first appellate Court reversed the judgment and

decree of the trial Court and consequently the suit was

dismissed. Challenging the same, the present Second

Appeal is filed at the instance of the plaintiff.

7. This Court, by order dated 15.12.1999, admitted the

appeal by referring to clauses (c) and (d) of ground No.10 of

memorandum of grounds of appeal. The above procedure is

not in tune with the requirement of Section 100 of CPC and

also against various judgments of the Apex Court. Thus,

this Court has reframed the following substantial question of

law, covering the above substantial questions of law earlier

framed by this Court.

"Whether the findings of the first appellate Court in reversing the findings of the trial Court without addressing the possessory title of the plaintiff on the strength of Exs.A-2 and A-3 revenue records even though the plaintiff failed to establish title, suffer from any perversity?"

10. Heard the arguments of learned counsel for both sides.

Since the re-framed substantial question of law covers the

substantial questions of law earlier framed by this Court, no

further hearing on the re-framed substantial question of law

is required. Therefore, this Court is proceeded to dispose of

the appeal.

11. The pleadings and evidence of the plaintiff show that

she purchased the suit property from Veera Raghava Reddy

under an agreement of sale, and since then, she has been in

possession of the suit property being the absolute owner. In

support of her case, she examined P.W.2, her vendor. It is

also her case that the suit property was allocated to her

vendor's father viz., Pedda Gattaiah.

12. In order to prove the prior partition among P.W.2 and

his brothers, the plaintiff examined P.W.3, eldest brother of

P.W.2 and the defendant. Apart from the oral evidence, the

plaintiff relied upon Ex.A-1 - agreement of sale, Exs.A-2 and

A-3 - pahanis for the years 1979-80 and 1984-85

respectively. The said pahanis show that Gattaiah was

recorded as titleholder and the plaintiff was recorded as

possessor and the land admeasuring Ac.0-20 guntas was

recorded in the name of Veera Raghava Reddy.

13. The case of the defendant is that originally, the suit

property and other properties were the joint family

properties belonging to him and his other three elder

brothers, and in the oral partition, he got the suit property.

In support of his case, the defendant relied upon revenue

cist receipts relating to the years 1983-84 under Exs.B-2

and B-3, pahani for the year 1987-88 under Ex.B-1 and

receipts and permissions issued by the Gram Panchayat

under Exs.B-4 to B-10. Ex.B-1 shows that the defendant is

in possession of the suit property.

14. On perusing the evidence of both the parties, it is clear

that the defendant has three elder brothers viz., Pedda

Gattaiah, Malla Reddy and Mukund Reddy. First brother

Malla Reddy went in adoption and he was examined as

P.W.3. Mohan Reddy, who is the husband of the plaintiff, is

the natural son of Pedda Gattaiah and he was brought up by

Mukund Reddy, who was issueless. Veera Raghava Reddy is

another natural son of Pedda Gattaiah.

15. The revenue records under Exs.A-2 and A-3 show that

Pedda Gattaiah is the recorded titleholder of the suit

property. They also show that the plaintiff was in

possession of land admeasuring Ac.0-20 guntas, and P.W.2,

who is the vendor of the plaintiff, is having possession over

the said land. Subsequent revenue records under Ex.B-1

show that the defendant is in possession of the suit

property.

16. It is the admitted position of both the parties from

their evidence that P.W.3 was the direct witness for oral

partition. The oral partition took place much prior to the

disputes arose between the parties. The claim of the

defendant is that in terms of oral partition, the revenue

records were not updated, whereas the claim of the plaintiff

is that as per oral partition, the revenue records were

updated and land in Sy.No.332/A consisting of Ac.1-00

gunta including the suit property fell to the share of Pedda

Gattaiah. The evidence also shows that P.W.1 in her cross

examination admitted that the defendant has raised a hut in

the suit property which is much prior to institution of the

suit. Ex.A-1 shows that part of the consideration of

Rs.100/- was unpaid. However, P.W.2, who is the vendor,

has accepted that the balance consideration was also paid

by the plaintiff. This claim of the plaintiff that total sale

consideration was paid was not accepted by the first

appellate Court holding that the plaintiff has not pleaded

that she paid entire consideration. The first appellate Court

unnecessarily entered into that issue, when there is clear

evidence from P.W.2 that the total sale consideration was

paid.

17. The plaintiff tried to establish that the suit property

was fell to the share of Gattaiah in the oral partition among

him and his brothers, whereas the defendant tried to

establish the case that the suit property fell to his share.

The defendant has claimed that entire land admeasuring

Ac.1-00 gunta was fell to his share, but the witness

examined by him i.e., D.W.2 stated that only an extent of

land admeasuring Ac.0-20 guntas was fell to the share of

the defendant. His evidence also shows that D.W.3 was

present when the oral partition took place.

18. The evidence of P.W.2 clearly demonstrates that entire

land admeasuring Ac.1-00 gunta was fallen to the share of

Gattaiah. This evidence is corroborative with the revenue

records placed under Exs.A-2 and A-3. Ex.B-1

demonstrates only the possession.

19. The first appellate Court discarded Exs.A-2 and A-3 on

the sole ground that the agreement of sale is an unregistered

one and no title was passed under the said document.

Therefore, without mutations, the entries under Exs.A-2 and

A-3 cannot be relied upon. This assumption of the first

appellate Court is erroneous for the reason that change of

Records of Right would arise only when there is passing of

title from the recorded holder to other party.

20. In the present case, adangals only show the possession

of the actual cultivator and patta column would not change

unless Records of Rights are changed recording the

registered patta holder. Unless and until the transfer of title

is there, the question of mutation of revenue entries does

not arise. However, the possession column reflects the

possession of the actual cultivator. Exs.A-2 and A-3

demonstrate that the plaintiff was in possession of land

admeasuring Ac.0-20 guntas.

21. Now the question is whether this property fell to the

share of Gattaiah or to the share of the defendant.

22. The claim of the defendant that the entire property fell to

his share in the oral partition is not supported by his own

witness, who is his own brother viz., Malla Reddy, who was the

direct witness to the oral partition.

23. The admitted case of both the parties is that there is an

oral partition. However, the dispute is that the suit schedule

property was fallen either to the plaintiff's vendor's father or the

defendant. The evidence of P.W.3, if scrutinized in the context of

Exs.A-2 and A-3, it clearly demonstrates that the suit property

fell to the share of Gattaiah. On the contrary, the evidence of

D.W.1 shows that he is also in possession immediately prior to

the institution of the suit. He also filed records to show that he

is in possession of the suit property on the strength of Gram

Panchayat receipts and also other revenue records i.e., Pahanies

for the year 1987-88.

24. Admittedly, in the present case, there is no title to the

plaintiff. The agreement does not confer any right or title to her.

The question now is whether in the context of above facts and

circumstances, the relief of recovery of possession can be

granted to the plaintiff, in the light of above evidence, when she

failed to establish her title so as to recover her property.

25. Article 64 of the Limitation Act deals with recovery of

possession of immovable property based on prior possession,

whether it is within six months or above six months. The person

in possession prior to dispossession can maintain the suit

basing on the possessory title, if the person dispossessed him

has no better title than him. Whereas, Article 65 of the

Limitation Act deals with recovery of possession based on title.

26. The contention of the learned counsel for the plaintiff is

that the first appellate Court has not considered the entitlement

of the plaintiff for recovery of the suit property basing on his

prior possession against the defendant, who has no better title

than the plaintiff. In support of his contention, he relied upon

the judgments of the Hon'ble Supreme Court in Nair Service

Society Ltd. Vs. Rev. Father K.C.Alexander & Ors1, Somnath

11968 AIR 1165

Barman Vs. Dr. S.P.Raju & Another2, Sopan Sukhdeo Sable

Vs. Assistant Charity Commissioner3 and Poona Ram Vs.

Moti Ram (D) Th. Lrs.4.

27. A reading of the above judgments would clearly

demonstrate that a person, who is in prior possession was

illegally dispossessed, can maintain a suit against the person

who dispossessed him, even after six months without proving

any title and such claim can be laid basing on the possessory

title. Such a suit should be within limitation i.e., 12 years from

the date of dispossession. The defendant, in such a suit, must

show that he has a valid and legal title or possession prior to the

plaintiff's possession. This means, the defendant can resist the

suit if he can able to show that either he or his predecessor-in-

title holds the title and his possession is based on such title. In

case both the parties could be able to establish that title is in

favour of some third party, then the party who is in prior

possession has a right to recover the possession from the

subsequent possessor, who dispossessed the prior possessor.

28. In the present case, the defendant relied upon only revenue

records to prove the title of the third parties. Admittedly, no title

document is filed by both the parties in the suit. Plaintiff's prior

1970 AIR 846

AIR 2004 SC 1801

AIR 2019 SC 813

possession is established from Exs.A-2 and A-3, but whereas

Ex.B-1 establishes his subsequent possession. The admission of

P.W.1 also demonstrates that there is prior possession and her

pleadings are also silent with regard to actual date of her

dispossession. Initially, the suit was filed for injunction, but

injunction was rejected. Thereafter, prayer was amended for

recovery of possession. However, in the entire pleadings, there

was no amendment of the pleadings mentioning the date of

dispossession.

29. The plaintiff's own case shows that hut of the defendant

was existing prior to filing of the suit for injunction. When there

is no date of dispossession, it is highly difficult to hold that the

suit is within limitation and who is in prior possession. The oral

evidence of P.W.1 is contrary to Exs.A-2 and A-3. The plaintiff

also claimed that she dug trenches whereas, the defendants

claim is that he dug trenches on the strength of permission and

such trenches exist even prior to institution of suit for

injunction. The claim of the plaintiff that she dug the trenches

was rebutted by the defendant by producing the evidence to the

effect that he obtained construction permission from the

Grampanchayat. They all demonstrate that the defendant is in

possession prior to the plaintiff's possession. The plaintiff tried

to establish her possession on the basis of the revenue records

and oral evidence. The findings rendered by the trial Court and

the first appellate Court touching the possession are possible in

the light of the evidence adduced by both the parties. When two

views are possible, the view adopted by the first appellate Court

cannot be disturbed in the second appeal. Therefore, the Second

Appeal is liable to be dismissed.

30. In the result, the appeal is dismissed, confirming the

judgment and decree dated 07.07.1999 in A.S.No.84 of 1993

on the file of the III Additional District Judge at Warangal.

There shall be no order as to costs. Miscellaneous petitions,

if any, pending, shall stand closed.

_______________ M.LAXMAN, J Date: 06.12.2022 TJMR