Telangana High Court
M. Chandraiah vs D. Vinod Kumar on 8 June, 2022
Bench: P.Sree Sudha
HON'BLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.327 of 2006
JUDGMENT
1. This appeal is directed against the judgment and decree
dated 29.03.2006 passed in O.S.No.33 of 2003 on the file of the
learned Senior Civil Judge at Vikarabad, Ranga Reddy District.
2. The suit O.S.No.33 of 2003 was filed by the plaintiff for
declaration of the title and also for recovery of vacant possession
from the defendants and for future mesne profits @ Rs.20,000/-
per annum from the date of suit till the delivery of possession.
3. The plaintiff examined himself as P.W1 and the attestors
of the sale deeds were examined as P.Ws.2 and 3 and marked
Ex.A1 to A6 on his behalf. The first defendant himself examined
as D.W1 and he also examined witnesses to Exs.B1 and B2 as
D.Ws.2 and 3 and filed Exs.B1 to B23 on his behalf. The trial
Court after considering the oral and documentary evidence
available on record decreed the suit in favour of the plaintiff and
directed the defendants to deliver vacant possession of the
schedule property within three months from the date of
judgment and also directed the plaintiff to file a separate
petition for ascertainment of the future mesne profits. Aggrieved
by the said judgment and decree, the defendants in the suit
preferred this appeal.
4. For the sake of convenience, the parties hereinafter are
referred to as arrayed in the suit.
5. Heard the learned counsel appearing for the appellant
and the learned counsel appearing for the respondent.
6. Learned counsel for the appellants would contend that
the trial Court drawn adverse presumption against the
defendants for not examining Ameena Bee as a witness. In fact,
it is for the plaintiff to examine her to establish his case. He
would further contend that the finding of the trial Court with
regard to adverse inference is contrary to the well establish
principles as to acquisition of title by adverse possession. He
would also contend that the trial Court observed D.W1 has not
stated in the evidence regarding the term 'adverse possession'
but he is a rustic witness and in fact he was in long possession
and that itself clearly shows that he acquired title by adverse
possession, but it was wrongly interpreted by the trial Court
that from the year 1954-55 khasra phani the possession of the
defendants was established, but the trial Court misinterpreted
the same and stated that the possession of the appellants is
permissive in nature. He would also contend that Ex.B1 sale
deed is an out and out sale and it was confirmed in another
document in the year 1988 and it is not an agreement of sale.
The trial Court held that both the documents are forged and
created. Though the trial Court accepted the documentary
evidence, the khasra phani for the year 1954-55 and the
phanies under Exs.B6 to B22 relating to the years 1955-2003
would show that the defendants are possessors of the property
except for few years. He would also aver that the trial Court
failed to appreciate the rytu passbook Ex.B4 issued to the
defendants in the year 1979, but relied on the entries in the
pahanies for the years 1968-69 in which R.Jangaiah was
mentioned in the possessor column. The name of Mudigonda
Kistaiah, the predecessor in title, was struck off and Jangaiah's
name was added in the pahani for the year 1973-74 and the
name of Kavita Jangaiah was mentioned as possessor in
Column No.17 and the name of Venkaiah was shown in the
pahani for the year 1974-75 as possessors. Even by the year
1966-67, the defendants or their predecessor-in-interest
completed adverse possession more than 12 years from 1954-55
as per khasra pahani. But the trial Court relied upon the
pahanies filed by the plaintiff under Exs.A3 and A4, though they
are in continuous possession it was not appreciated properly
and he also stated under Ex.B15 Column No.15 is blank and
whereas in Ex.A3 filed by the plaintiff for same year some
entries are made in Column No.15. The certified copies were
issued to the defendants on 19.09.2002. Copies of Ex.A3 issued
to the plaintiff on 01.04.2003 and there are alterations of the
entries after issuing copies to the defendants. In Ex.B16
Column No.15 is blank but in Ex.A4 same entries were made in
Ex.A15. Ex.A4 was issued after Ex.B16 was issued. But the trial
Court without appreciating the same held that the possession of
the defendants is in permissive in nature though they perfected
their title by adverse possession and hence requested the Court
to set aside the judgment and decree.
7. B.Vinod Kumar-plaintiff filed suit against Mudigonda
Chandraiah and Mudigonda Narahari-defendants for
declaration of possession. He would state that he is the owner of
the agricultural land in Sy.No.145 admeasuring Ac.9.27 guntas
situated at Himayathnagar Village, Moinabad Mandal, Ranga
Reddy District, and he purchased the same from Ameena Bee
and Abdul Jilane under registered sale deed dated 19.08.2002.
Abdul Jilane is the son of Ameena Bee. The sale deed was
implemented by the Mandal Revenue Officer, Moinabad, vide
proceedings dated 16.09.2002. The plaintiff would further state
that originally Abdul Khader, husband of Ameena Bee, was the
owner and possessor of the suit land and after his death they
succeeded heirs and successors and it was implemented in the
revenue records in the name of Ameena Bee and she incurred
debts for family necessities and medical expenses and thus she
sold the land for Rs.12,10,000/- and also executed registered
sale deed in his favour. Vendors of the plaintiff got cultivated
the suit land on Batai and Koul basis through various persons
like Mudigonda Kistaiah, Kavali Jangaiah and the defendants
on crop share basis. The defendants are in possession of the
suit land as Bataidars of the vendor of the plaintiff and after the
purchase by the plaintiff, they became the Bataidars of the
plaintiff. The defendants paid batai up to 1999-2000 Fasli Year
and later not paid batai to the vendor of the plaintiff in spite of
demands though plaintiff demanded them, they have not paid
batai to him. Defendants taking advantage of the entries in the
pahanies as possessors changed their mind developed evil
intention to claim the suit property for themselves and
accordingly they approached the revenue authorities for grant of
pattas in their name. Noticing the evil intention of the
defendants, the plaintiff demanded them for vacant possession
of the suit land on 25.01.2002 but the defendants did not
respond the same. The possession of the defendants is
permissive as bataidars and they have no right to claim title
over the suit schedule property. The plaintiff again demanded
the defendants for delivery of possession of the suit land on
22.03.2003 and when they refused to hand over possession and
denied his title, he filed suit for declaration and for vacant
possession.
8. In the written statement filed by the defendants they
denied the ownership of the plaintiff and also stated that they
have challenged the mutation proceedings dated 16.09.2002 by
filing an appeal before the Revenue Divisional Officer, Chevella,
in File No.C2896/2002. They would further state that Ameena
Bee was only the owner of the suit land and her name was
entered in the revenue records right from prior to 1954-55 itself.
She also sold the suit land in favour of Mudigonda Kistaiah,
who is father of defendants herein, under a sale document
dated 21.02.1951 for a total consideration of Rs.600/- and
delivered possession to them and as such the sale deed
executed in favour of the plaintiff will not create any right and
Ameena Bee has no subsisting right to execute the same. As per
khasra pahani for the year 1954-55 and chessala pahani for the
year 1954-55, the father of the defendants purchased the suit
land in the capacity of a bona fide purchaser and he is in
possession of the suit land and they are not bataidars and that
it is a story created by the plaintiff to knock away the property
and to overcome the limitation period and the fact that they
paid batai till 1999-2000 is false. They would further state that
the plaintiff never demanded them for vacating the possession of
the suit land. Ameena Bee sold the land in favour of Mudigonda
Kistaiah for a total consideration of Rs.600/- and received
Rs.250/- and executed sale document. From then onwards
Mudigonda Kistaiah was in possession of the suit land till his
death and after his death the defendants succeeded him and
they approached Ameena Bee number of times and requested
for execution of the sale deed, but she refused on one or other
pretext and as such a panchayat was held in the village and
Ameena Bee demanded enhancement of the sale consideration
to Rs.10,000/- and as per the advice of the elders they agreed to
pay the entire enhanced sale consideration and after receiving
the same she promised to execute the registered sale deed in
their favour and the same was reduced into writing. Within
three or four months after executing the agreement Ameena Bee
left the village and shifted her residence to somewhere. As they
could not ascertain her address, they could not get the
registered sale deed executed in their favour. Father of the
defendants purchased the land on 21.02.1951 and he was
shown as purchaser in khasra pahani and chessala pahani and
rytu pass book was also issued in his favour in the year 1979.
The defendants are the bona fide purchasers of the suit land
and they are enjoying the possession from 1951 onwards and it
is clearly evident from the pahani patrika filed by him. Even
otherwise they perfected title by adverse possession as the
father of the defendants and after his death these defendants
are in continuous possession of the suit land. The plaintiff is
having support of anti-social elements as the registered sale
deed is not executed in their favour taking undue advantage he
brought into existence the alleged registered sale deed and
created the story of batai. The suit is hopelessly barred by
limitation and requested to dismiss the same.
9. Learned counsel for the appellants herein would mainly
rely upon Exs.B1 and B2 and argued that the defendants are
the bona fide purchasers of the property way back in the year
1951 and they are still in possession of the same but in the sale
deed executed in favour of the plaintiff on 19.08.2002 in
Clause 2 it was wrongly mentioned that vendor delivered
possession to them. Learned counsel for the appellants herein
would argue that Ex.B1 is an out and out sale deed and Ex.B2
is the confirmation of Ex.B1. As Exs.B1 and B2 are crucial
documents, I feel it reasonable to extract the same for the sake
of convince.
I, Ameena Bee W/o. Abdul Kareem pattador R/o.
Himayathnagar, Hyderabad (West), write to the effect that my
owned and possessed patta land bearing survey No.145
admeasuring (9) acres (27) guntas dry (dobba chalka), situated
at village Himayathnagar, Hyderabad Taluq (West), the same
land is in my exclusive possession and enjoyment and that the
said land is sold for the consideration of Rs.600/- (six hundred
only), half of which amount comes to Rs.300/- (rupees three
hundred only) in favour of Sri Modigonda Kishtiah S/o. Modi
Yenkanna, R/o.Himayathnagar and has handed over the sold
land into his possession. From this date all the pattadari rights
have been transferred and the vendee has in possession with
all the pattadari rights and that the vendee will be responsible
for the payment of the Government Lagan. That an amount of
Rs.250/- (rupees two hundred fifty only) were received in the
presence of the witnesses from the Vendi Sri Modigonda
Kishtiah, and the balance amount of O.S. Rs.350/- (Rupees
three hundred and fifty only) will be received and get the sale
deed registered and transfer of patta; all the expenses thereof
will be borne by the vendee. Hence all the rights have been
transferred in favour of the vendee. In future there remains no
sort of concern to me or to my heirs and legal representatives,
and in case if any one raise any objection the same will be
treated as null and void. Hence these few sentences have been
written as the Sale Deed so as to remain as a Document and be
used when required.
Dated: 21st February, 1951
Written by : Shaik Ahmed.
Sd/- Witness - Kataka Jattaji
T.I. Witness - Deepu Shiviah
AGREEMENT
I, Smt. Ameena Bee W/o. Abdul Kareem, aged about 68
years, Occ: household, r/o. Himayathnagar village, R.R.
District, executes this agreement in favour of (1) Madigonda
Chandraiah (2) Madigonda Narahari who are sons of late
Mudigonda Kistaiah, both residents of Himayathnagar village
as follows:-
That being the Pattadar of the land bearing Sy.No.445
admeasuring Ac.9-27 guntas situated at Himayathnagar
village, Ranga Reddy District. I already sold the same land in
favour of father of the above persons by name Mudigonda
Kistaiah aunder a Sale decoument dated 21.02.1951 for a total
consideration of Rs.600/- and received Rs.250/- as advance
and delivered possession to him. That the registeration could
not be done and subsequently Mudigonda Kistaiah died leaving
behind two sons as stated above. That as per the settlement
made by the village elders, the sale consideration is enhanced
to Rs.10,000/- and I received the entire amount today. That I
hereby undertakes to execute a regular registered Sale Deed in
favour of the above persons as and when they desires to get the
same and they are enjoying the possession since 1951 from the
date of their father's purchase without any interruption. This
Agreement is executed on 21.08.1988 with my free will and
consent without any fraud, etc.,
Witnesses:
1. Sd/-
2. LTI of Doma Veraiah
(RTI of Ameena Bee)
(Smt. Ameena Bee)
10. Learned counsel for the appellants would mainly argue
that possession was handed over to the defendants on
21.02.1951 itself. The said land was sold for Rs.600/- in favour
of Mudigonda Kistaiah and that pattadar rights were transferred
in his favour. The amount of Rs.250/- was received by the
vendor-Ameena Bee in the presence of the witnesses and the
balance of Rs.350/- will be received later and get the sale deed
registered.
11. It is clear that Ex.B1 is only an agreement of sale but not
sale deed as contended by the appellants herein. Mudigonda
Kistaiah died in the year 1975 and his sons again negotiated
with Ameena Bee for sale of the said land in their favour, but
she demanded Rs.10,000/- towards enhancement of the sale
consideration and the said amount was also paid to her on
21.08.1988 and that she promised that she will execute
registered sale deed as and when they are desire to get the same
as they are enjoying the possession since 1951 from the date of
their father without any interruption. If at all the defendants are
the bona fide purchasers, they have not issued any notice to
Ameena Bee to execute registered sale deed either for execution
of Ex.B1 or even after execution of Ex.B2 and that they have not
filed any suit for specific performance. They kept quiet and
simply contended due to financial problems they were not in
position to bear the stamp duty and registration charges and as
such they have not obtained the sale deed and they would
further contend that three to four years after execution of
Ex.B2, Ameena Bee left the place as they are not aware of her
whereabouts, they could not register the sale deed in their
favour. The conduct of the defendants in not insisting for
execution of the registered sale deed from 1951 to 1988 i.e., for
37 years and even afterwards till the execution of the sale deed
in favour of the plaintiff is abnormal.
12. There are several contradictions in the evidence of the
defendants and they were extracted herein for better
understanding of the matter.
DW.1 Deposition DW.2 Deposition DW.3 Deposition
My father purchased the One Mudigonda
schedule property in the Kistaiah who is
year 1951 the father of the
defendants
purchased the
land nearly in the
year 1953.
My father died in 1975 The father of
defendants died
about 20 years
back by today.
Ameena Bee came to After gap of 5 or 6 Ameena Bee
Himayathnagar Village years after agreed to
nearly 10 years after the execution of transfer the
death of my father. Ex.B1, Ameena patta of the land
Ameena Bee created a Bee demanded for
in the name of
problem and raised Rs.1,000/-
dispute regarding the towards Kistaiah
balance consideration consideration. provided
and she demanded us Rs.10,000/- was
for extra money. given to her.
Ex.B2 agreement was got One Ahmed Pasha Patwari
typed by Shaik Ahmed. prepared the draft prepared the
of Ex.B2 and he draft and he got
got it typed in it typed.
Moinabad.
I purchased the Ex.B2 That Ahmed Pasha Ex.B2 stamp
stamp from the stamp purchased the paper was
vendor Padmarao in stamp paper on purchased by
Chilkur. that day. Patwari.
Ex.B2 stamp
paper was
purchased from
a stamp vendor
in Moinabad.
One Veeraiah and Jottoji Ahmed Pasha I have signed it
were the witnesses to the signed Ex.B2. and then Jottoji
Ex.B2. who was selling
Dappu Shivaiah tea came and
also endorsed his
signed.
signature on
Ex.B2.
As Dappu
Shivaiah and
Doma Veeraiah
have not endorsed
their signatures in
my presence, I
cannot identify
their signatures.
So far we have not Mudigonda
submitted or filed the Kishtaiah applied
Ex.B1 and B2 to MRO for
documents in any office transfer of patta
or Court. We have not in his name.
filed any application Subsequent to
before any office or that Panchayat I
officer stating that we came to know that
have purchased the land Mudigonda
from Ameena Bee under Kishtaiah applied
agreement of sale and for to the MRO for the
recording our possession transfer of patta.
in the Revenue Records
as purchasers.
Ameena Bee has Ameena Bee
not signed the signed the Ex.B2
Ex.B1 and B2 in document in our
my presence. presence (Chief).
Ex.B2 was
brought to us by
the Patwari for
our signatures.
Ameena Bee
affixed her thumb
impression on the
Ex.B2 at a hotel
in Himayathnagar
Chowrastha
(Cross).
13. The father of the defendants died in the year 1975 and
Ex.B2 was executed in the year 1988 i.e., 13 years after his
death. The trial Court observed that the address particulars of
Ameena Bee were furnished by P.Ws.2 and 3 in their evidence.
Even afterwards the defendants did not made any efforts to
examine her on their behalf. The learned counsel for the
appellants relied upon case law reported in UNION OF INDIA
V/s. VASAVI COOPERATIVE HOUSING SOCIETY LIMITED1
in which it was held that in a suit for declaration of title, the
burden always lies on the plaintiff to make out and establish a
clear case for granting such a declaration and the weakness, if
any, of the case set up by the defendants would not be a ground
to grant relief to the plaintiff. The legal position, therefore, is
clear that the plaintiff in a suit for declaration of title and
possession could succeed only on the strength of its own title
and that could be done only by adducing sufficient evidence to
discharge the onus on it, irrespective of the question whether
the defendants have proved their case or not and argued that it
is for the plaintiff to examine the vendor on his behalf, but he
failed to do so. It was also brought in evidence that Ex.B1 stamp
was printed on 17.08.1951, but it was executed on 21.02.1951
by Ameena Bee. In all the stamps which were printed during the
regime of Nawab of Hyderabad the date of printing will be in the
emblem of the stamp paper and Ex.B1 stamp paper was printed
and put into circulation nearly six months after execution of the
agreement dated 21.02.1951. Learned counsel for the
defendants would submit that talks were held on 21.02.1951
and the agreement was written subsequent to 17.08.1951. As
(2014) 2 SCC 269
the talks were held on 21.02.1951 the said date was mentioned
in Ex.B1. The said document was not believed by the trial Court
and held that Ex.B1 was created and forged document and it
was also held that Ex.B2 is confirmation of Ex.B1 and it is only
an acknowledgment of Ex.B1 and it is not an independent
agreement of sale. It is only executory contract but not a
concluded contract.
14. Though Ex.B1 was dated 21.02.1951, D.W.2 in his
evidence stated that it was executed in the year 1953 and also
in Ex.B15 panchnama conducted by the Mandal Revenue
Inspector it was stated that Kistaiah was in possession of the
property from 1953 and even in the order passed by the
Revenue Divisional Officer under Ex.B3 it was held that the
father of defendants purchased the property in the year 1953.
As per Ex.B2, Ameena Bee demanded for enhancement of the
sale consideration of Rs.10,000/- but D.W.2 in his evidence
stated that she claimed Rs.1,000/- towards enhancement of the
sale consideration. Even regarding purchase of the stamp paper
there are several variations in the evidence. D.W.1 stated that
he purchased Ex.B2 stamp paper from stamp vendor of Chilkur
Village. But, perusal of Ex.B2 shows that it was purchased by
Narahari. D.W.2 in his cross-examination stated that Ahmed
Pasha purchased the stamp paper under Ex.B2 and he
prepared the draft and also got it typed in Moinabad. The
second defendant in the suit was examined as D.W1 and he
stated that the first defendant is his elder brother and
Mudigonda Kistaiah is their father. He clearly stated that they
have not given any application before any officer stating that
they purchased the land from Ameena Bee under agreement of
sale and requested for recording their possession in the revenue
records as purchaser and that they have not obtained any
permission under Section 47 of the Tenancy Act from the
Tahsildar for purchasing the land at the time of Ex.B1. D.W.2
Jattoji was aged about 80 years. In fact, he signed on both
Exs.B1 and B2 documents. He clearly stated that Ameena Bee
has not signed on Exs.B1 and B2 in his presence. In fact,
Ameena Bee affixed her thumb impressions on the said
documents as she is not a signatory and that D.W.3 stated that
a panchayat was held in Himayathnagar Village regarding
transfer of patta in the name of Mudigonda Kistaiah. In fact, the
panchayat was held only for enhancement of sale consideration
but not for transfer of patta and moreover Ex.B2 was executed
in the year 1988 and Mudigonda Kistaiah died in year 1975 i.e.,
13 years before the execution of Ex.B2. As such, the question of
Mudigonda Kistaiah giving an application to the Mandal
Revenue Officer for transfer of patta does not arise. The trial
Court also observed that defendants have not taken any
initiation to refer Exs.B1 and B2 and also Ex.A1 to the FSL for
comparison of admitted thumb impression of Ameena Bee on
Ex.A1 with that of disputed thumb impression on Exs.B1 and
B2 and they have not sought for summons from the Court to
examine Ameena Bee as a Court witness. As on the date of
execution of the sale deed in favour of the plaintiff in the year
2002, Ameena Bee was aged 80 years and she was staying with
her son at Himayathnagar village, Hyderabad.
15. No doubt, defendants were in possession of the property
but they failed to establish that they are the bona fide
purchasers of the suit schedule property. The trial Court
observed that as the defendants pleaded that they perfected
their title by adverse possession, it is for them to lead evidence
and establish the same. Though, they examined D.W.1, he has
not stated anything regarding adverse possession and D.Ws.2
and 3 are attestors and no way concerned with the adverse
possession. The plaintiff deposed that the defendants are
bataidars or kouldars of Ameena Bee and even as per the
pahanis filed before the Court they were shown as kouldars and
as such the possession however long it may be can be treated
only as a permissive possession and it cannot be said that they
perfected title by adverse possession.
16. Learned counsel for the plaintiff relied upon the case law
of this Court reported in MEENUGU MALAIAH V/s.
ANANTHULA RAJAIAH2, in which it was held as follows:-
"41. In Mandal Revenue Officer V. Goundal Venkaiah and
Anakil V. A.Vedanayagam, the Apex Court reiterated the
requirements to constitute an adverse possession and
according to it, claim by adverse possession has two elements;
(1) the possession of the defendant should become adverse to
the plaintiff; and (2) the defendant must continue to remain
possession for a period of 12 years thereafter. Animus
Possidendi as is well known is a requisite ingredient of
adverse possession and it is now a well settled principle of law
that mere possession of the land would not ripen into
possessory title for the said purpose. Possessor must have
animus possidendi and hold the land adverse to the title of
the true owner. For the said purpose, not only animus
possidendi must be show to exist, but the same must be
shown to exist at the commencement of the possession. He
much continue in the said capacity for the period prescribed
under the Limitation Act. Mere long possession, it is trite, for
period of more than 12 years without anything more does not
ripen into a title.
2016 SCC OnLine Hyd 318]
50. Adverse Possession: A method of acquiring title to land
without buying or paying for the traditional sense.
51. The following is required:
(a) actual possession or occupancy of the land that is
(b) hostile to the current owner,
(c) visible, open, and notorious,
(d) exclusive,
(e) constinuous for a statutorily defined number of
years, and
(f) maintained under a claim of right as against
everyone else.
86. The rationale behind adverse possession rests broadly
on the considerations that title to the land should not long be
in doubt, the society will benefit from some one making use of
land, the owner leaves idle and the persons who come to
regard, the occupant as owner may be protected. The maxim
that law and equity does not help those who sleep over their
rights is invoked in support of prescription of title by adverse
possession. In other words, the original title holder who
neglected to enforce his rights over the land cannot be
permitted to re-enter the land after a long passage of time."
17. The trial Court observed that as per the legal position the
burden of proof lies on the party who claims adverse possession
and it should be established by specific pleading and supported
by evidence. There should be a separate pleading to that effect
that possession must be open, continuous and hostile to the
real owner of adverse and those facts should be supported by
clear evidence and the person who claims adverse possession
shall prove that from what date his possession has become
adverse to the real owner.
18. Learned counsel for the appellants relied upon a case law
reported in COMMISSIONER OF CUSTOMS (PREVENTATIVE)
V/s. AAFLOAT TEXTILES INDIA PRIVATE LIMITED3 in
which it was held that it is the bounden duty of the purchaser
to make all such necessary enquiries and to ascertain all the
facts relating to the property to be purchased prior to
committing in any manner. The learned counsel argued that the
principle caveat emptor is applicable to the plaintiff herein and
he should make necessary enquiries regarding possession of the
defendants before purchasing the property but he failed to do
so.
19. He also relied upon PRATAP SINGH (DEAD) THROUGH
LEGAL REPRESENTATIVES V/s. SHIV RAM (DEAD)
THROUGH LEGAL REPRESENTATIVES4 in which it was held
that as per Section 35 of the Evidence Act, the public document
recorded in the books has presumptive value and argued that
Ex.B23 khasra pahani has a presumptive value.
(2009) 11 SCC 18
(2020) 11 SCC 242
20. Learned counsel also relied upon a decision reported
NAMBURI BASAV SUBRAHMANYAM V/s. ALAPATI
HYMAVATHI5 to the effect that the nomenclature of the
document is not conclusive. The recitals of Exs.B1 and B2 as a
whole is conclusive. Learned counsel for the appellants basing
on the above judgment contended that Ex.B1 is sale deed but
not an agreement of sale.
21. The defendants in the suit mainly contended that Ameena
Bee has no saleable interest to sell the property in favor of
plaintiff and as such the sale deed registered in favour of the
plaintiff is not valid and that the plaintiff approached the Court
seeking declaration of title and got examined himself as P.W.1
and the attestors as P.Ws.2 and 3. Ameena Bee sold the
property to P.W.1 for Rs.12,10,000/- under Ex.A1 registered
sale deed. As Ameena Bee was owner, pattadar and title holder
to the suit schedule property she had saleable right in the
property and accordingly she sold the same to the plaintiff. She
was shown as pattadar under Exs.A3 to A6.
22. The plaintiff in the suit filed A.S.M.P.No.2076 of 2011
before this Court seeking to receive the documents as additional
(1996) 9 SCC 388
evidence and mark them as Exs.A7 to A11 in the appeal. In the
affidavit filed in support of the application it is revealed that
after execution of the sale deed on 09.08.2002 he got it mutated
in his name vide proceedings of the Thasildar dated 16.09.2002,
but the defendants preferred an appeal against the said order
and after the disposal of the suit in O.S.No.33 of 2003 he
preferred an appeal against the orders of the Revenue Division
Officer, before the Joint Collector and he passed an order dated
19.01.2011 directing the parties to resolve their disputes before
the Civil Court. He stated that pass books and title deeds were
issued in his favour and filed the same before this Court. These
documents were obtained by him after the disposal of the suit
on 29.03.2006 and during the pendency of the appeal and filed
in this appeal to substantiate his title. Therefore, I feel it
reasonable to allow the application and receive the documents.
23. The trial Court while discussing Issue No.3 clearly held
that Ex.A4 in Column No.15 it was clearly mentioned as
kowldar. It means either lease or batai. One Kavali Jangaiah
was also show as cultivator or possessor for the years 1970-71
and bataidar for the year 1972-73 and 1973-74 is shown as
kowldar. The plaintiff clearly stated that defendants and their
father and one Kavali Jangaiah and Venkaiah are pattadars and
kowldars of the property. If at all the defendants are bona fide
purchasers the entries in the pahanies will not show as them
kowladar or bataidar.
24. The plaintiff in the plaint stated that defendants were
paying batai on crop share basis but in the cross-examination
P.W.1 stated that they paid in the shape of cash, but the trial
Court did not consider the said variation and held that
defendants are cultivating the suit schedule property on batai
basis. The trial Court discussed all the minute details in the
judgment and considered the oral and documentary evidence in
detail at length. Perusal of the evidence on record clearly shows
that Exs.B1 and B2 are only agreement of sale even as per the
contents of documents but not sale deeds as contended by the
defendants. The defendants did not make any effort to get the
register sale deed in their favour at least after execution of
Ex.B2 in the year 1988. Only when the sale deed was executed
in favour of the plaintiff in the year 2002 and when the plaintiff
insisted for payment of batai to him, they refused on the ground
that they are the bona fide purchasers and as such the plaintiff
filed the suit for declaration of title and also for vacant
possession. The trial Court clearly held that Ameena Bee was
having saleable interest while executing Ex.A1 in favour of the
plaintiff and the defendants are bataidars of Ameena Bee and
they paid the batai till 1999-2000 and their possession was only
permissive possession and as such they cannot perfect their
title by adverse possession. As the plaintiff is the absolute
owner and title holder of the suit schedule property, he is
entitled for the relief of recovery of possession.
25. In the light of the foregoing discussion, I do not find any
reason to interfere with the judgment and decree of the trial
Court and the appeal deserves to be dismissed inlimini and is
accordingly dismissed. However, there shall be no order as to
costs.
26. Pending miscellaneous petitions, if any, shall also stand
dismissed in the light of this final judgment.
____________________
P.SREE SUDHA, J.
8th JUNE, 2022.
PGS
