Telangana High Court
Kurma Venkaiah And 2 Ors vs Golla Narsimulu And 2 Ors on 24 January, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
SECOND APPEAL No.1028 of 1998
JUDGMENT:
This Second Appeal is filed by the appellants - appellants - plaintiffs
aggrieved by the judgment and decree dated 07.09.1998 passed in A.S.No.18 of
1995 by the learned Senior Civil Judge at Medak dismissing the appeal by
confirming the judgment and decree dated 31.08.1995 passed in O.S.No.97 of
1989 by the learned District Munsif, Narsapur, Medak District.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The facts of the case in brief are that the plaintiffs filed the suit for
declaration of title and perpetual injunction in respect of the suit schedule land
to an extent of Ac.1-12 guntas in Survey No.278 and Ac.0-18 guntas in Survey
No.279 situated at Solakpalli Village, Jinnaram Mandal, Medak District. The
plaintiffs contended that their father purchased the suit schedule property under
a simple sale deed dated 12.02.1950 for a sale consideration of Rs.200/-. Since,
then, their father was in possession of the suit land continuously by paying land
revenue to the Government till his death in the year 1977. The name of the
father of the plaintiffs was entered as possessor in the pahanies from 1958
onwards. The purchase of the suit schedule property was also recorded in the
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pahanies for the year 1964-65 and in the subsequent pahanies. After the death
of their father, the plaintiffs inherited the suit land from their father and since
then they were in peaceful possession and enjoyment of the same and were
paying land revenue to the Government. Their names were also entered as
possessors in the pahanies. The plaintiffs also obtained pattadar passbook from
the revenue authorities. The simple sale deed executed by defendant No.1 in
favor of the plaintiffs' father was lost and the same could not be traced. The
possession of the father of the plaintiffs and after his death that of the plaintiffs
was continuous, open and hostile. They perfected their title over the suit land
by way of adverse possession. They contended that they became absolute
owners on the basis of long and un-interrupted possession. The defendants had
no manner of right or title over the suit land. They were fraudulently and
forcibly trying to interfere with the possession of the plaintiffs and trespassed
into the suit land and tried to dispossess the plaintiffs and tried to grab the
property. The names of the plaintiffs were also entered in the pahanies as
pattadars for the years 1983-84 and 1984-85. But the defendant No.1
fraudulently again got entered his name as pattadar in the pahanies from the
year 1986 onwards and filed a caveat petition dated 18.10.1989 and sent copies
to the plaintiffs falsely alleging that they were owners and possessors of the suit
land. As such, the plaintiffs filed the suit for declaration and for consequential
relief of injunction.
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4. The defendant No.2 filed written statement, which was adopted by other
defendants. The defendant No.2 contended that the defendant No.1 was the
father of defendants 2 to 4 and that they constituted an un-divided joint Hindu
family. The defendant No.1 during the year 1953-54 purchased the suit land
bearing Survey No.278 to an extent of Ac.1-12 guntas and Survey No.279 to an
extent of Ac.0-18 guntas, total Ac.1-30 guntas single crop wet land situated at
Solakpalli Village with the funds of ancestral property for a consideration of
Rs.1500/- from the original owner by name Suleman Ali Khan. The suit lands
were purchased by defendant No.1 along with one Laxmikanth Rao. The entire
money including the share of Laxmikanth Rao was paid to Suleman Ali Khan
by defendant No.1. Prior to the said purchase, the defendant No.1 was
cultivating the suit lands on batai basis. The said Laxmikanth Rao failed to pay
his share of money to defendant No.1. On demand, Laxmikanth Rao executed a
document on 25.05.1955 relinquishing his rights over the suit land in favor of
defendant No.1. Hence from 25.05.1955, the defendant No.1 was continuing
his possession over the lands as owner, possessor and title holder. Subsequent
to the said purchase, the lands were mutated in the name of the defendant No.1
in the revenue records. The father of the plaintiffs by name Kurma Mallaiah
was a neighbor to defendant No.1. The father of defendant No.1 died during his
childhood. So the defendant No.1 unable to cultivate the suit land for himself
with one plough, asked the father of the plaintiffs to have one plough along with
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him for some time for joint cultivation on crop share basis, but not continuously
as alleged by the plaintiffs. In the year 1977, the sons of defendant No.1 i.e.
defendants 2 to 4 migrated to Hyderabad for livelihood due to heavy drought.
The said Kurma Mallaiah, the father of the plaintiff died in the year 1977. As
such, the defendant No.1 was forced to take again the help of the plaintiffs for
joint cultivation now and then up to 1984-85, but not continuously. From 1984-
85 to 1986-87, the lands were kept fallow due to the disputes between the
defendants 2 to 4 with defendant No.1 for their own cultivation. The defendants
2 to 4 returned from Hyderabad after getting some money. The plaintiffs also
started creating trouble in paying the crop share to the defendants. During the
year 1986-87, the defendant No.1 terminated joint cultivation of the plaintiffs
orally. The plaintiffs tried to interfere with the possession of the defendants.
As such, the defendants 1 to 4 called for a panchayat in the village and in that
panchayat, they terminated the joint cultivation of the plaintiffs and since then
they were enjoying the possession of the lands by their own cultivation without
any interruption. The plaintiffs were not having any right, title or any claim
over the land. Their joint cultivation was terminated in the panchayat. The
defendant No.1 and his sons being illiterates were not having knowledge about
the record of rights. On 05.10.1989, when the defendant No.2 was engaging
laborers to harvest crop in the suit land, the plaintiffs intervened saying that they
became owners of the property, as their names were entered in the pahanies
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right from the year 1958. Immediately, the defendant No.1 went to the Office
of Mandal Revenue Officer (for short "MRO") and filed an application for
certified copies of the original records. On perusing the records, he came to
know that from the year 1958-59, 1962-1963 to 1964-65, 1966-67 to 1978-79,
1980-1981 to 1983-84 and 1987-88 to 1988-89, the records were manipulated
by the plaintiffs and their father's name was entered in the possessory column
of pahanies and in the pahanies for the years 1983-84 and 1984-85, they also
got entered their names in the pattadar column without any legal sanction and
without any proper mutation. The plaintiffs never had their own possession
except joint cultivation along with defendant No.1. Their joint cultivation was
also not continuous. The defendant No.1 took the help of the plaintiffs only as
and when the time warranted. Taking it as an advantage, the plaintiffs got
entered their names in the pahanies as cultivators with the active connivance
and collusion with village patwari, who was enimical to defendant No.1. The
plaintiffs were not entitled to invoke adverse possession against the defendants.
The entries in the pahanies that the plaintiffs' father purchased the land for a
consideration of Rs.200/- in the year 1950 was strange, as the defendant No.1
himself had not purchased the land from the original owner till 1953. The
defendant No.1 purchased the land from the original owner for Rs.1500/-. He
could not sell the land for Rs.200/- in the year 1950 to the plaintiffs' father. So
the said entries were made up with the active connivance and collusion of the
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village patwari. The defendant No.1 filed petition for correction of records in
the Office of the Sub-Collector, Medak as well as in the Mandal Revenue
Office, Jinnaram on 18.10.1989. The defendant No.1 also issued notice to the
plaintiffs on the same day and prayed to dismiss the suit.
5. Basing on the said pleadings, the trial court framed the issues as follows:
(i) Whether the plaintiffs were the owners and possessor of the suit schedule
property?
(ii) To what relief?
6. The plaintiff No.3 was examined as PW.1. The plaintiff No.2 was
examined as PW.2 and two other neighboring land owners as PWs.3 and 4.
Exs.A1 to A34 were marked on behalf of the plaintiffs. The defendant No.2
was examined as DW.1. Exs.B1 to B20 were marked on behalf of the
defendants.
7. On considering the oral and documentary evidence on record, the trial
court dismissed the suit holding that the plaintiffs were neither owners nor
possessors of the suit lands and they were not entitled to the relief claimed by
them.
8. Aggrieved by the judgment and decree dated 31.08.1995 passed by the
learned District Munsif, Narsapur, Medak District, the plaintiffs preferred
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A.S.No.18 of 1995. The said appeal suit was heard by the learned Senior Civil
Judge, Medak and vide judgment and decree dated 07.09.1998 dismissed the
appeal concurring with the judgment and decree passed by the trial court.
9. Aggrieved further, the plaintiffs preferred this Second Appeal raising the
following substantial questions of law:
(a) Whether the courts below can decide the issue of title relying upon
pahanies i.e. revenue records, when it is a settled law that revenue records will
be looked into to decide any dispute between the party and the Government, but
the entries cannot be relied upon for deciding the title. In this case, the courts
below have relied upon the revenue records. As the plaintiffs' names are not
recorded, it was held that they are not entitled for relief. In this case, the
defendants themselves accepted the possession of the plaintiffs.
(b) Whether the courts below can dismiss the suit in respect of injunction for
not to interfere with the possession when the defendants themselves accepted
the possession. The tenant cannot be thrown out without recourse to law. Even
the owner cannot dispossess the plaintiffs taking law into their hands.
(c) Whether the courts below can dismiss the entire suit including injunction
petition simply because the plaintiffs have failed to prove the title when the
defendants have accepted the possession without breaking the possession.
When the defendants themselves accepted the possession of the plaintiffs, the
only course left for them is to approach the Court of Law for getting the
plaintiffs evicted.
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(d) Whether the suit for declaration of title can be dismissed when the
plaintiffs have also pleaded that they have perfected the title by adverse
possession, without framing any issue to that effect.
(e) Whether the un-registered sale deed can be admitted in evidence and can
be relied upon when the property value is more than Rs.100/- i.e. Exs.B1 & B4
un-registered sale deeds relied upon by the lower courts when those exhibits
were not filed for collateral purpose.
(f) Whether the burden lies upon the plaintiffs to prove that they are in
possession as a share crop holder, more so, when the defendants have accepted
that they were in possession of the property as a crop share holder.
10. This Court admitted the Second Appeal on the above substantial
questions of law on 04.12.1998.
11. Heard Sri R.Shyam Sunder, learned counsel representing Sri M.Rama
Rao, learned counsel for the appellants on record and Sri Y.Ashok Raj, learned
counsel for the respondents.
12. Learned counsel for the appellants - plaintiffs contended that though the
plaintiffs had taken the plea of adverse possession in the plaint averring that
they perfected their title by way of adverse possession and the defendants in
their written statement denied the same, no issue was framed by the trial court
in respect of the adverse possession. Not framing the issue with regard to
adverse possession was a question of law and relied upon the judgment of a
Coordinate Bench of this Court in C.R.P.No.1391 of 2022 dated 28.06.2022 on
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the aspect that when one party affirmed and the other party denied the same, it
was the bounden duty upon the Court to frame the issues. The plaintiffs by way
of adducing abundant evidence had proved their possession over the suit
schedule property. The defendants also admitted in their written statement
about the possession of the plaintiffs, but contended that they along with the
plaintiffs jointly cultivated the suit lands on crop share basis, but failed to file
any document to show that they had jointly cultivated with the plaintiffs. The
revenue records like pahanies would only disclose the names of the plaintiffs as
sole cultivators. The plaintiffs by examining PWs.1 to 4 and by exhibiting A1
to A20 pahanies had proved their possession continuously. They also filed the
land revenue receipts marked under Exs.A21 to A27 and the pahanies for the
years 1990-94 marked under Exs.A28 to A34. But the courts below failed to
take them into consideration and had not discussed about the said documentary
evidence. Not considering the evidence led by the plaintiffs would amount to a
substantial question of law. The courts below failed to consider the pattadar
passbook and title deeds issued under ROR Act. Under Section 6 of ROR Act,
every entry in the ROR shall be presumed to be true until the contrary was
proved. The defendants failed to prove that the entries in the revenue records
were falsely recorded. The courts below failed to take into consideration that
the defendants interfered with the possession of the plaintiffs without issuing
any notice under Section 106 of the Transfer of Property Act, 1882 and tried to
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evict the plaintiffs from the suit schedule property, due to which the suit was
filed by the plaintiffs. The courts below ought to have decreed the suit in
respect of possession.
13. Learned counsel for the appellants - plaintiffs also pointed out several
discrepancies in the documents filed by the defendants contending that the
translation of Ex.B1 would disclose that the document was titled as an
agreement and that it was not a sale deed. The extent of land was not mentioned
in the said document. Apart from the suit schedule property, other survey
numbers were also found mentioned in the said document. The true copy of
sale deed marked under Ex.B5 would not disclose that defendant No.1 along
with Laxmikanth Rao had jointly purchased the property. Ex.B5 was an un-
registered sale deed. Exs.B1 to B5 would not disclose that they pertained to the
suit schedule property. The agreement marked under Ex.B1 was pertaining the
year 1955, but the extents of survey numbers 278 and 279 were not mentioned
in the same. Though in the written statement it was contended that defendant
No.1 purchased the suit schedule property with Laxmikanth Rao, the sale deeds
would not reflect the same. No procedure was followed for rectification of
entries in the revenue records under Section 6 of ROR Act. The land ceiling
declarations filed by the plaintiffs marked under Ex.B16 would show the name
of the declarant as Jangili Komariah but not as Golla Komaraiah (defendant
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No.1) and prayed to allow the Second Appeal by setting aside the judgments
and decrees of the courts below.
14. Learned counsel for the respondents on the other hand contended that the
burden would lie upon the plaintiffs to prove their title and ownership over the
suit schedule property, as the suit was filed by them seeking the prayer for
declaration of title. The relief of injunction claimed by them was only a
consequential relief, but not a substantive relief. The plaintiffs had never raised
any contention before the trial court for framing any additional issue or before
the lower appellate court. The question of non-framing the issue could not be
raised for the first time in the Second Appeal. The defendants in the written
statement itself contended that the possession of the plaintiffs was not
continuous. The plea of adverse possession was found on the acceptance of
ownership of the other party. The plaintiffs failed to plead and establish as to
when they came into possession and that their possession was open and
undisturbed and relied upon the judgment of the Hon'ble Apex Court in
M.Radheshyamlal v. V.Sandhya and another, etc., 1 in Civil Appeal
Nos.4322-4324 of 2024 dated 18.03.2024.
15. Before proceeding to answer the substantial questions of law admitted by
this Court on 04.12.1998, it is considered fit to consider what amounts to
2024 INSC 214
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substantial questions of law and the scope of Section 100 of CPC after the 1996
amendment.
16. In Kondiba Dagadu Kadam v. Savritribai Sopan Gujar and Others 2,
the Hon'ble Apex Court held that:
"3. After the amendment a second appeal can be filed only
if a substantial question of law is involved in the case. The
memorandum of appeal must precisely state the substantial
question of law involved and the High Court is obliged to
satisfy itself regarding the existence of such question. If
satisfied, the High Court has to formulate the substantial
question of law involved in the case. The appeal is required to
be heard on the question so formulated. However, the
respondent at the time of the hearing of the appeal has a right to
argue that the case in the court did not involve any substantial
question of law. The proviso to the Section acknowledges the
powers of the High Court to hear the appeal on a substantial
point of law, though not formulated by it with the object of
ensuring that no injustice is done to the litigant where such
question was not formulated at the time of admission either by
mistake or by inadvertence.
4. ... It has to be kept in mind that the right of appeal is
neither a natural nor an inherent right attached to the litigation.
Being a substantive statutory right, it has to be regulated in
accordance with law in force at the relevant time. The
conditions mentioned in the Section must be strictly fulfilled
before a second appeal can be maintained and no court has the
power to add to or enlarge those grounds. The second appeal
cannot be decided on merely equitable grounds. The concurrent
(1999) 3 SCC 722
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findings of facts howsoever erroneous cannot be disturbed by
the High Court in exercise of the powers under this Section.
The substantial question of law has to be distinguished from a
substantial question of fact This Court in Sir Chunilal V.
Mehta and Sons Ltd. v. Century Spinning and
Manufacturing Company Limited [AIR (1962) SC 1314],
held that :-
"The proper test for determining whether a
question of law raised in the case is substantial
would, in our opinion, be whether it is of general
public importance or whether it directly and
substantially affects the rights of the parties and
if so whether it is either an open question in the
sense that it is not finally settled by this Court or
by the Privy Council or by the Federal Court or
is not free from difficulty or calls for discussion
of alternative views, If the question is settled by
the highest Court or the general principles to be
applied in determining the question are well
settled and there is a mere question of applying
those principles or that the plea raised is
palpably absurd the question would not be a
substantial question of law."
5. It is not within the domain of the High Court to
investigate the grounds on which findings were arrived at, by
the last court of fact, being the first appellate court. It is true
that the lower appellate court should not ordinarily reject
witnesses accepted by the trial court in respect of credibility but
even where it has rejected the witnesses accepted by the trial
court, the same is no ground for interference in second appeal
when it is found that the appellate court had given satisfactory
reasons for doing so. In a case where from a given set of
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circumstances, two inferences are possible, one drawn by the
lower appellate court is binding on the High Court in second
appeal. Adopting any other approach is not permissible. The
High Court cannot substitute its opinion for the opinion of the
first appellate court unless it is found that the conclusions
drawn by the tower appellate court were erroneous being
contrary to the mandatory provisions of law applicable of its
settled position on the basis of pronouncements made by the
Apex Court, or was based on inadmissible evidence or arrived
at without evidence."
17. Section 100 of CPC reads as follows:
"Section 100 - Second appeal - (1) Save as otherwise expressly
provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from
every decree passed in appeal by any Court subordinate to the
High Court, if the High Court is satisfied that the case involves
a substantial question of law.
(2) An appeal may lie under this section from an appellate
decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal
shall precisely state the substantial question of law involved in
the appeal.
(4) Where the High Court is satisfied that a substantial question
of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and
the respondent shall, at the hearing of the appeal, be allowed to
argue that the case does not involve such question :
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Provided that nothing in this sub-section shall be deemed to
take away or abridge the power of the Court to hear, for reasons
to be recorded, the appeal on any other substantial question of
law, not formulated by it, if it is satisfied that the case involves
such question."
18. Section 101 of CPC reads as follows:
Section 101 - Second appeal on no other grounds : - No
second appeal shall lie except on the ground mentioned in
Section 100."
19. Section 103 of the Code empowers High Court to determine any issue
necessary for disposal of the second appeal in the circumstances stated therein.
Section 103 reads as under:-
"Section 103 - Power of High Court to determine issues of
fact - In any second appeal, the High Court may, if the
evidence on the record is sufficient, determine any issue
necessary for the disposal of the appeal, -
(a) which has not been determined by the lower Appellate
Court or both by the Court of first instance and the lower
Appellate Court, or
(b) which has been wrongly determined by such Court or
Courts by reason of a decision on such question of law as is
referred to in section 100."
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20. The Hon'ble Apex Court in Santosh Hazari v. Purushottam Tiwari
(Deceased) by LRs.3, held that:
"14. A point of law which admits of no two opinions may be a
proposition of law but cannot be a substantial question of law.
To be substantial, a question of law must be debatable, not
previously settled by law of the land or a binding precedent,
and must have a material bearing on the decision of the case, if
answered either way, in so far as the rights of the parties before
it are concerned. To be a question of law involving in the case
there must be first a foundation for it laid in the pleadings and
the question should emerge from the sustainable findings of
fact arrived at by court of facts and it must be necessary to
decide that question of law for a just and proper decision of the
case. An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it goes
to the root of the matter. It will, therefore, depend on the facts
and circumstance of each case whether a question of law is a
substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking a judicious
balance between the indispensable obligation to do justice at all
stages and impelling necessity of avoiding prolongation in the
life of any lis."
21. In the light of the principles enunciated by the Hon'ble Apex Court in
admitting the Second Appeals, the contention of the learned counsel for the
appellants that whether non-framing of issue by the trial court or by the lower
appellate court would amount to substantial question of law or not, need to be
considered.
(2001) 3 SCC 179
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22. A duty is cast upon the Court to frame the issues when once the pleadings
are over. Issues arise when a material proposition of fact or law was affirmed
by one party and denied by the other party. In the present case, the plaintiffs
though contended that the suit filed for declaration of title was based upon a
simple sale deed dated 12.02.1950 and that they perfected their title over the
suit land by way of adverse possession and the defendants in their written
statement denied the same and contended that it was a joint cultivation by them
along with the plaintiffs and the same was also not continuous, the trial court
failed to frame any issue with regard to plaintiffs perfecting their title by way of
adverse possession. The plaintiffs remained silent during the entire trial with
regard to non-framing of an issue on the aspect of adverse possession. They
have also not raised any ground before the lower appellate court seeking any
necessity to frame an additional issue with regard to perfecting their title by way
of adverse possession.
23. The importance of framing issues was considered by a co-ordinate Bench
of this Court in C.R.P.No.1391 of 2022 dated 28.06.2022 and held as follows:
"... Framing of an issue is an important exercise. Utmost case
and attention is required to be bestowed by the Judicial Officers
/ Judges / Lawyers / Litigant at the time of framing of issues.
Some extra time spent at that time would have saved several
years in Court proceedings. The correct decision of the civil
litigation largely depends upon the correct framing of issues.
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9. Considering the significance of framing of appropriate
issues, the Hon'ble Supreme Court in Makhan Lal Bangal v.
Manas Bhunia [AIR 2001 SC 490], held as under:
"An obligation is cast on the Court to read the
plaint / petition and the written statement /
counter, if any, and then determine with the
assistance of the learned counsel for the parties,
the material propositions of fact or law on which
the parties are at variance, the issues shall be
framed and recorded on which the decision of
the case shall depend. The parties and their
counsel are bound to assist the Court in the
process of framing of issues. Duty of the counsel
does not belittle the primary obligation cast on
the Court. It is for the Presiding Judge to exert
himself so as to frame sufficiently expressive
issues. An omission to frame proper issues may
be a ground for remanding the case for retrial
subject to prejudice having been shown to have
resulted by the omission.....
"....The object of an issue is to tie down the
evidence and arguments and decision to a
particular question so that there may be no doubt
on what the dispute is. The judgment, then
proceeding issues-wise would be able to tell
precisely how the dispute was decided."
10. It was reiterated by the Apex Court in Rameshwari
Devi v. Nirmala Devi [(2011) 8 SCC 249], that framing of
issues is very important stage in civil litigation and it is
bounden duty of Court that due care, caution, diligence and
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attention must be bestowed by the Presiding Judge while
framing issues.
11. It is also relevant to note that a Division Bench of High
Court of Andhra Pradesh at Hyderabad in Maddala Sai
Lakshmi v. Medisetti Lakshmi Narasamma [2006 (4) ALD
46] referring to the lapse on the part of the trial Court in not
framing issue with regard to adoption which was the core issue
in the said case and also noticing the lapse on the part of the
counsel appearing on the parties held that it is fatal and
noticeable lapse. It vitiates the very approach the findings, the
ultimate result in the suit. In paragraph No.10, the Division
Bench observed as follows:
"10. Before parting, we are very often coming
across a situation where it is noticed that the
issues as framed at the inception are not
correctly representing the dispute in between the
parties. We are conscious of the fact that
immediately after filing any written statement,
no serious attention is being paid by either side
in the Court below nor due assistance is given at
the time of framing issues. No draft issues are
being filed at that stage. No attempt is made to
point out whether the issues as framed are
proper at the stage of commencement of trial. It
is only after proceeding with the trial or may be
at a later stage including arguments stage. it is
noticed that the issues are not properly framed
and it requires reframing. This is a clear instance
where the Court below totally lost sight of the
core dispute, which arises between the parties.
In regard to the adoption as set up by them in
their respective pleadings and yet, we do not
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find any issue framed there on. To avoid such
lapses or late realization, in every case, before
commencement of trial, a specific date has to be
posted for hearing both the sides once again on
the issues to see if they have been properly
framed or needs any reframing and it is only
after such exercise is done, the trial should be
allowed to commence and proceeded with. Even
at the hearing, both the sides can be called upon
to file any draft issues for warranting reframing.
This exercise ultimately can safely avoid orders
of remand by Appellate Courts, as is being done
in this case."
24. But, however, in the above judgment, non-framing of an issue with regard
to aspect of res judicata was observed by the defendants therein at the stage of
arguments before the trial court and the matter is remanded to the trial court to
formulate a suitable issue based on the pleadings before proceeding further. But
as seen from the facts of this case, both the parties had not raised any issue with
regard to non-framing of issues either before the trial court or before the lower
appellate court and was raising it for the first time before the Second Appellate
Court. The First Appellate Court is the final court on the question of facts. The
plea of adverse possession is a mixed question of facts and law.
25. The Hon'ble Apex Court in M.Radheshyamlal v. V.Sandhya and
Another, etc., (cited supra), observed that:
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"10. As far as the plea of adverse possession is concerned, a
Constitution Bench of this Court in the case of M. Siddiq
(Ram Janmabhumi Temple-5 J.) v. Suresh Das [(2020) 1
SCC 1], has held thus:
"1142. A plea of adverse possession is founded
on the acceptance that ownership of the property
vests in another against whom the claimant
asserts a possession adverse to the title of the
other. Possession is adverse in the sense that it is
contrary to the acknowledged title in the other
person against whom it is claimed.
1143. A person who sets up a plea of adverse
possession must establish both possession which
is peaceful, open and continuous possession
which meets the requirement of being nec vi nec
claim and nec precario. To substantiate a plea of
adverse possession, the character of the
possession must be adequate in continuity and in
the public because the possession has to be to
the knowledge of the true owner in order for it to
be adverse. These requirements have to be duly
established first by adequate pleadings and
second by leading sufficient evidence. Evidence,
it is well settled, can only be adduced with
reference to matters which are pleaded in a civil
suit and in the absence of an adequate pleading,
evidence by itself cannot supply the deficiency
of a pleaded case."
11. In the case of Karnataka Board of Wakf v. Govt. of
India and Others [(2004) 10 SCC 779], this Court has laid
down the law regarding the plea of adverse possession:
"11. In the eye of the law, an owner would be
deemed to be in possession of a property so long
as there is no intrusion. Non-use of the property
by the owner even for a long time won't affect
his title. But the position will be altered when
another person takes possession of the property
and asserts a right over it. Adverse possession is
a hostile possession by clearly asserting hostile
title in denial of the title of the true owner. It is a
well-settled principle that a party claiming
adverse possession must prove that his
possession is "nec vi, nec clam, nec precario",
that is, peaceful, open and continuous. The
possession must be adequate in continuity, in
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sa_1028_1998
publicity and in extent to show that their
possession is adverse to the true owner. It must
start with a wrongful disposition of the rightful
owner and be actual, visible, exclusive, hostile
and continued over the statutory period. (See
S.M. Karim v. Bibi Sakina [AIR 1964 SC
1254], Parsinni v. Sukhi [(1993) 4 SCC 375]
and D.N. Venkatarayappa v. State of
Karnataka [(1997) 7 SCC 567] .) Physical fact
of exclusive possession and the animus
possidendi to hold as owner in exclusion to the
actual owner are the most important factors that
are to be accounted in cases of this nature. Plea
of adverse possession is not a pure question of
law but a blended one of fact and law.
Therefore, a person who claims adverse
possession should show: (a) on what date he
came into possession, (b) what was the nature of
his possession, (c) whether the factum of
possession was known to the other party, (d)
how long his possession has continued, and (e)
his possession was open and undisturbed. A
person pleading adverse possession has no
equities in his favour. Since he is trying to defeat
the rights of the true owner, it is for him to
clearly plead and establish all facts necessary to
establish his adverse possession. [Mahesh
Chand Sharma (Dr.) v. Raj Kumari Sharma
[(1996) 8 SCC 128].
12. Therefore, to prove the plea of adverse possession :-
(a) The plaintiff must plead and prove that he was claiming
possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his
long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came
into possession; and
(d) The plaintiff must establish that his possession was open
and undisturbed.
It is a settled law that by pleading adverse possession, a party
seeks to defeat the rights of the true owner, and therefore, there
is no equity in his favour. After all, the plea is based on
continuous wrongful possession for a period of more than 12
years. Therefore, the facts constituting the ingredients of
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adverse possession must be pleaded and proved by the
plaintiff."
26. The First Appellate Court is the final court of facts and pure finding of
facts remain immune before the High Court in Second Appeal. The First
Appellate Court is also a final court of law in the sense that its decision on
question of law even if erroneous may not be vulnerable before the High Court
in second appeal because the jurisdiction of the High Court has now ceased to
be available to correct the errors of law or the erroneous findings of the first
appellate Court even on questions of law unless such question of law is a
substantial one.
27. As the appellants failed to notice the importance of non-framing of the
issue with regard to adverse possession either before the trial court or before the
first Appellate Court, this Court considers it as not a substantial question law,
which could be raised for the first time in the Court of Second Appeal and does
not find any merits in the contention of the learned counsel for the appellants in
this regard.
28. It is a settled law that in a suit for declaration of title, the burden heavily
lies upon the plaintiff and the plaintiff is not supposed to depend upon the
weakness in the case set up by the defendants.
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29. The Hon'ble Apex Court in A.Pandurangam (since deceased) per LRs.
and others v. Darshanala Swamy (since deceased) per LRs. And others 4,
held that:
"In a suit for declaration, heavy burden rests upon the plaintiff
to prove the title, particularly when it is in respect of an item of
immovable property. There are certain known sources of
acquisition of title, such as by way of succession, purchase,
assignment from the Government, or even by perfecting the
title by adverse possession. To prove the title, what becomes
essential is to identify the erstwhile owner of the property and
then to explain the manner in which it has accrued to the
plaintiff. Even if there exists certain missing links in the chain
of events that connect the original owner and plaintiff, the title
can be said to have been established, in the absence of any
stronger claim by the defendant."
30. The Hon'ble Apex Court in Moran Mar Basselios Catholicos v. The
Most rev. Mar Poulose Athanasius and others 5 held that:
"In a suit for declaration, if the plaintiffs are to succeed, they
must do so on the strength of their own title."
31. In Nagar Palika, Jind v. Jagat Singh, Advocate 6, the Hon'ble Apex
Court held that:
"The onus to prove title to the property in question was on the
plaintiff. In a suit for ejectment based on title it was incumbent
2011 Law Suit AP 643
AIR 1958 SC 31
(1995) 3 SCC 426
Dr.GRR, J
sa_1028_1998
on the part of the Court of Appeal first to record a finding on
the claim of title to the suit land made on behalf of the plaintiff.
The court is bound to enquire or investigate that question first
before going into any other question that may arise in a suit."
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. We are of the view that even if the title set up
by the defendants is found against, in the absence of
establishment of plaintiff's own title, the plaintiffs must be non-
suited."
32. Thus, the burden lies upon the plaintiffs to prove his title in a suit for
declaration of title. The plaintiffs though contended that their father purchased
the suit schedule land from defendant No.1 on 12.02.1950 for a sale
consideration of Rs.200/- under a simple sale deed, failed to file the said sale
deed. In their plaint itself, they averred that the sale deed was lost and the same
could not be traced. The trial court as well as the lower appellate court
observing that no document was available to the plaintiffs and the pahanies
which they relied upon were not showing their names as well as the name of
their father as pattadars except as possessors in the relevant column and that the
plaintiffs filed a few pahanies showing their names as khareeddars / purchasers,
but the name of pattadar was continued to be that of defendant No.1 and there
were no mutation proceedings showing their names to be recorded as
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sa_1028_1998
khareeddar in the said pahanies observed that the documentary evidence marked
under Exs.A16 to A20 issued by the revenue authorities has no locus standi. It
was also observed that the land revenue receipts marked under Exs.A21 to A27
would not give any right or interest to the plaintiffs to prove their title. Exs.A28
to 34 pahanies are noted to be pertaining to the period during the pendency of
the suit and as such the same could not be considered to substantiate the
ownership of the land. The courts below observed that the execution of private
sale deed and sale consideration are question of facts and the plaintiffs failed to
prove the same by adducing cogent and convincing evidence. Both the courts
below also noted that the evidence of PWs.1 and 2 would reveal that they did
not know when the actual purchase was made by their father from defendant
No.1. By also considering the document evidence filed by the defendants, the
courts below observed that the certified copy of khasra pahani for the year
1954-55 marked under Ex.B6 was disclosing the name of Suleman Ali Khan as
the original pattadar and defendant No.1 as co-sharer and cultivator and Ex.B1
was the private sale deed dated 25.05.1955 in favor of the defendants and
Exs.B4 and B5 were disclosing that Suleman Ali Khan being pattadar of the suit
lands sold the suit lands to defendant No.1 for a sale consideration of Rs.1625/-
also observed the absurdity in the contention of the plaintiffs that their father
purchased the suit schedule property from defendant No.1 on 12.02.1950, when
he was not even the owner of the property, as he acquired the ownership over
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the suit property on 25.05.1955. The entries in the pahanies regarding the
purchase of the property by the father of the plaintiffs for Rs.200/- in the year
1950 was also found as false when defendant No.1 purchased the said property
for a consideration of Rs.1625/- in the year 1955.
33. This Court does not find any perversity in the judgments of the courts
below in coming to the said conclusions. Though, no specific issue was framed
with regard to adverse possession, the courts below observed that even the long
standing possession by the plaintiffs was not established with cogent and
convincing evidence. The lower appellate court further observed that the
voluminous documentary evidence along with the oral evidence of the
defendants clinchingly proved their title over the suit lands and the learned
District Munsif on considering the oral and documentary evidence filed by both
the parties rightly concluded that the plaintiffs had no right or interest over the
suit lands and that there were no grounds to interfere with the said findings.
34. As seen from the record, the plaintiffs sought the relief of injunction as a
consequential relief to the main relief of declaration of their title and paid court
fee also only to the relief of declaration of title. As such, when the relief of
declaration of title fails, the consequential relief could not sustain
independently. As such, this Court does not find any merits in the contention of
the learned counsel for the appellants - plaintiffs with regard to existence of any
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substantial questions of law raised by them. No objection was taken by the
plaintiffs at the time of marking Exs.B1 and B4, the alleged un-registered sale
deeds. However, as the burden lies upon the plaintiffs, but not upon the
defendants to prove their title over the property and they failed to prove so by
adducing cogent and reliable oral or documentary evidence, this Court does not
find any perversity in the judgments of the courts below or any substantial
questions of law arising out of them to set aside the same.
35. In the result, the Second Appeal is dismissed confirming the judgments of
the courts below. No order as to costs.
As a sequel, miscellaneous applications pending in this appeal, if any
shall stand closed.
_____________________
Dr. G. RADHARANI, J
Date: 24th January, 2025
Nsk.
