Ravipati Sreenivasa Rao vs Koyyala Subba Rao

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3369] (Special Original Jurisdiction)

WEDNESDAY, THE TWENTY-THIRD DAY OF OCTOBER BER TWO THOUSAND AND TWENTY TWENTY-FOUR

PRESENT

THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

SECOND APPEAL NO: 307/2007

Between:

Ravipati Sreenivasa Rao and Others ...APPELLANT(S)

AND

Koyyala Subba Rao and Others ...RESPONDENT(S)

Counsel for the Appellant(S):

1. I MAAMU VANI

2. C PRAKASH REDDY

Counsel for the Respondent(S):

1. T V S PRABHAKARA RAO

The Court made the following JUDGMENT:

1. This Second Appeal has been filed by the Appellant Appellants / Respondent Respondents / Defendants against the Decree and Judgment dated 19.01.2007,, in A.S.No. A.S.No.69 of 2002 on the file of V Additional District Judge (Fast Track Court), East Godavari, Rajahmundry (for short, 'the 1st Appellate Court') reversing the decree and Judgment dated 28.02.2002, in O.S.No.230 of 1996 on the file of Additional Senior Civil Judge, Rajahmundry (for short, 'the trial Court').

2. The Respondent / Appellant is the Plaintiff,, who filed the suit in O.S. No.230 of 1996 seeking a declaration that the plaint 'B' schedule house and 2

site is the absolute property of the Plaintiff and for delivery of possession of plaint 'B' schedule property. The Appellants / Respondents are the Defendants in the said suit.

3. Referring to the parties as they are initially arrayed in the suit in O.S. No.230 of 1996 is expedient to mitigate any potential confusion and better comprehend the case.

4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows:

The Plaintiff purchased 482 square yards of land, shown as plot No.57 in Chebolu Narayana Layout, Rajahmundry, through a registered sale deed dated 03.12.1979 from Padala Venkata Reddy, which constitutes the plaint 'A' schedule property. In 1984, Plaintiff constructed a Mangalore-tiled house with three rooms on the western half of plaint A schedule site and subsequently leased it (plaint 'B' schedule house) to Ravipati Kondalarao, the Defendants' father, who is the Plaintiff's relative. In August 1987, Kondalarao defaulted on rent payments, issuing a registered notice on 13.10.1987 demanding to vacate the plaint B schedule house. Kondal Rao denied tenancy by reply notice dated 27.10.1987. Before legal action could be initiated, the Plaintiff's son passed away in a road accident, delaying further steps. Later, Kondalrao negotiated with the Plaintiff, requesting to remain in possession of the property for a while longer without rent, assuring the Plaintiff that he would vacate after finding alternative accommodation. Based on this assurance, the Plaintiff permitted Kondalrao to remain on the property as a licensee. Subsequently, Kondalrao died in 1994, and following his death, the Defendants delayed to vacate the property. They claimed ownership through a notice to the Commissioner of Rajahmundry Municipal Corporation. Realizing their intent to unlawfully retain possession, the Plaintiff filed a suit for declaration 3

of title, recovery of possession, and past profits at Rs.50/-per month, though the property could earn Rs.200/- per month.

5. The Defendants 1 to 3 filed a common written statement, refuting the Plaintiff's allegations and asserting that the dispute concerns the plaint A schedule vacant site jointly purchased by the Plaintiff and the Defendants' father, both co-brothers, each owning 241 square yards. The Defendants' father, who financed the construction of a house on the site, occupied it openly and claimed ownership. Despite the Plaintiff's involvement in the construction and acknowledgement of the father's ownership, he issued a notice in 1987 challenging this claim. The Defendants' father responded, asserting his ownership. The Plaintiff filed a suit in December 1996, which is deemed barred by limitation, particularly since the father died in 1994, and the Defendants inherited the property. The Defendants have consistently exercised their rights over the property and assessed for tax. The Plaintiff attempted to change municipal records to claim ownership but was met with a counter-notice from the Defendants. Therefore, the Defendants assert that they are not liable to relinquish the property or pay any profits to the Plaintiff, requesting the dismissal of the suit.

6. Based on the above pleadings, the trial Court has framed the following issues: (i) Whether Plaintiff is entitled to declaration and possession as prayed for? (ii) Whether Plaintiff is entitled to past profits at Rs.1800/-? (iii) Whether Plaintiff is if so, entitled to future profits to what rate? (iv) Whether the suit is barred by time? (v) To what relief? 4

7. During the trial, P.W.1 was examined and marked Exs.A.1 to A.4 on behalf of the Plaintiff. Conversely, on behalf of the Defendants, D.Ws.1 to 3 were examined and marked Exs.B.1 to B.10.

8. After the conclusion of the trial and considering the arguments presented by both parties, the trial Court, in O.S. No.230 of 1996, dismissed the suit without costs.

9. Aggrieved by the same, the Plaintiff filed an Appeal in A.S. No.69 of 2002 on file of the 1st Appellate Court. The 1st Appellate Court, being the final fact-finding Court, framed the following points for consideration:

i. Whether the Appellant is entitled for setting aside the decree and Judgment of the lower Court?

ii. To what relief?

10. The 1st Appellate Court, after scrutinizing oral and documentary evidence adduced on behalf of both sides, allowed the Appeal with costs by its Judgment dated 19.01.2007, thereby declared that plaint 'B' schedule house along with the site is the absolute property of the Appellant. The Respondents are directed to deliver possession of plaint 'B' schedule property within two months and the Appellant is also entitled to profits by filing separate petition. Assailing the same, the Respondents / Defendants preferred the present Second Appeal.

11. I heard Sri C. Prakash Reddy, who learned counsel representing the appellants/respondents/defendants, and Sri T.V.S. Prabhakara Rao, who learned Counsel for the respondent/appellant/plaintiff.

12. The learned Counsel for the Appellants/Defendants contends that the 1st Appellate Court ought to have dismissed the suit on the grounds that the Defendants' father unequivocally constructed the house in question. There exists substantial evidence, both oral and documentary, corroborating this assertion. The Plaintiff has not provided any material evidence to substantiate 5

his claim of having constructed the house or that it was leased to the Defendants' father. Furthermore, the Plaintiff has failed to establish a landlord- tenant relationship between them. The 1st Appellate Court erred in disregarding Ex.B.1, the expense ledger maintained by the Defendants' father during the house's construction. The entries in Ex.B.1 should have been afforded significant weight, as they convincingly demonstrate that the Defendants' father built the house. Additionally, the suit is barred by limitation; the house was constructed in 1984, and the Defendants have resided there since then, while the Plaintiff filed his suit on December 3, 1996, well beyond the twelve-year statutory period for seeking a declaration and recovery of possession.

13. Pursuant to the Order dated 14.02.2014, Appellants No.4 to 6 have been impleaded as the Legal Representatives of the deceased 1st Appellant No.1, vide I.A. No.6 of 2021. Similarly, Respondents No.2 to 5 have been added as Legal Representatives of the deceased sole Respondent, per I.A. No.3 of 2021, dated 14.02.2024.

14. Based on the Appellants' contentions, the following substantial question of law is involved in this Second Appeal:

a. Whether the suit is barred by limitation by virtue of Article 64 and 65 of Limitation Act for declaration and for recovery of possession of the plaint B Schedule property?

b. Whether the Appellants / Defendants have perfected their title by way of adverse possession since they have been residing from the date of construction of the house, which is more than 12 years?

15. Before delving into the matter, since the Appeal is filed under Sec.100 CPC, this Court must see the scope of Section 100 of C.P.C.

16. Considerations in Section 100 of C.P.C. arise only when there is a substantial question of law and not mere such questions of law or one based on facts. However, it has to be borne in mind that in case of misapplication of 6

law and improper appreciation of evidence on record, particularly the documentary evidence, it is the bounden duty of the High Court sitting in 2nd Appeal to consider such questions which are substantial in nature in terms of law.

17. In Mallanaguoda v. Ninganagouda1, the Hon'ble Supreme Court held that: 10. The first appellate Court is the final Court on facts. It has been repeatedly held by this Court that the Judgment of the first appellate Court should not be interfered with by the High Court in the exercise of its jurisdiction under Section 100CPC unless there is a substantial question of law. The High Court committed an error in setting aside the Judgment of the first appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the first appellate Court.......

18. In K.N. Nagarajappa v. H. Narasimha Reddy2, the Hon'ble Supreme Court held that: 14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate Court are final. However, the rule that sans a substantial question of law, the High Courts cannot interfere with the findings of the lower Court or concurrent findings of fact is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the Court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103CPC. 15. Section 103CPC reads as follows: "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." 16. In the Judgment in Municipal Committee, Hoshiarpur v. Punjab S.E.B. [Municipal Committee, Hoshiarpur v. Punjab S.E.B., (2010) 13 SCC 216 : 1 (2021) 16 SCC 367 2 (2021) 18 SCC 263 7

(2010) 4 S.C.C. (Civ) 861], this Court held as follows : (S.C.C. pp. 228-29, paras 26-28) "26. Thus, it is evident that Section 103CPC is not an exception to Section 100CPC, nor is it meant to supplant it; rather, it is to serve the same purpose. Even while pressing Section 103CPC in service, the High Court has to record a finding that it had to exercise such power because it found that finding(s) of fact recorded by the Court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the Court (s) below. 27. There is no prohibition on entertaining a second appeal, even on a question of fact, provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter, i.e. that the findings of fact are found to be perverse. However, the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 : (2010) 4 S.C.C. (Civ) 738] .) 28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further, if the findings are either ipse dixit of the Court or based on conjecture and surmises, the Judgment suffers from the additional infirmity of non-application of mind and, thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483 : (2010) 4 SCC (Civ) 498] .)" (emphasis supplied) 17. In a recent judgment of this Court, Narayan Sitaramji Badwaik v. Bisaram [Narayan Sitaramji Badwaik v. Bisaram, (2021) 15 SCC 234], this Court observed as follows, in the context of the High Courts' jurisdiction to appreciate factual issues under Section 103IPC : (S.C.C. p. 238, para 11) "11. A bare perusal of Section 103CPC clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue 8

necessary for the disposal of the Appeal has not been determined by the lower appellate Court or by both the courts below. And second, when an issue of fact has been wrongly determined by the Court (s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure."

19. In Balasubramanian v. M. Arockiasamy3, the Hon'ble Supreme Court held that: 14. In the background of the legal position and on reasserting the position that there is very limited scope for reappreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate Court in a second appeal under Section 100 of the Civil Procedure Code, it is necessary for us to take note as to whether in the instant facts, the High Court has breached the said settled position........................

15. ................... When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code, though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which were at variance with each other and one of the views taken by the courts below was required to be approved.

20. Before considering the rival contentions raised on behalf of both sides, it is relevant to refer to the following facts:

The plaint A schedule property encompasses an area of 482 square yards situated within plot No. 57 of the Chebolu Narayana layout. In the western half of this property is a Mangalore-tiled residence, shown as the B schedule house, which consists of three rooms. The authenticity of the Plaintiff's ownership of the A schedule property is substantiated by Ex.A.4, the registered extract of the sale deed dated 03.12.1979. The Plaintiff and the Defendants' father, Ravipati Kondal Rao, are co-brothers.

21. The Defendants assert that both the Plaintiff and their father jointly acquired the vacant site shown as the A schedule property through a

3 (2021) 12 SCC 529 9

registered sale deed, with each party supposedly holding 241 square yards. To substantiate their claims, the Plaintiff testified as PW.1, while the 2nd Defendant testified as DW.1 and also got examined as DW.2 (Nandarapu Gangara) and DW.3 (Boda Veerraju). Upon meticulous examination of the evidence, the trial Court determined that Plaintiff alone purchased the A schedule site, refuting the Defendants' assertion of joint ownership with their father, Kondal Rao. The 1st Appellate Court confirmed the said finding, noting that the sale deed (Ex.A.4) does not include the Defendants' father's name as an owner. Consequently, both the Courts negatived the Defendants' claim to title over the property, emphasizing that their contention lacks credibility. Both Courts ultimately concluded that the title rests solely with the Plaintiff, a determination that has remained unchallenged by the Defendants and thus has attained finality. The Defendants, therefore, have failed to establish joint ownership in the A schedule property alongside the Plaintiff by virtue of the sale deed.

22. Plaintiff contends that Defendant's father was inducted into the B schedule house as a tenant, which Plaintiff himself constructed. The Plaintiff alleges that the Defendants' father failed to pay the rental payments beginning in August 1987. The Plaintiff issued Ex.A.2, a notice dated 13.10.1987, wherein he contended that the Defendants' father was indeed the tenant of the B schedule house. In response, the Defendants issued Ex.B.2, a reply notice, in which they denied the existence of any landlord-tenant relationship and asserted their claim to title over the property. Consequently, the Plaintiff initiated legal proceedings on 01.12.1996, asserting his ownership rights

23. The Defendants contend that they acquired the title over the schedule property by adverse possession. At this juncture, referring to the observations made in the decision in Kavitha Goud vs Nookala Sudarshan Reddy and 10

Ors is pertinent.4, the composite High Court of Andhra Pradesh, which read as follows:

7. Before taking up the contentions of the learned Counsel for the parties and the points that arise for consideration, it is necessary to state that the Trial Court failed to keep in view the fact that the plea of Defendants 1 and 2 that they have perfected their title to the suit property by adverse possession is inconsistent with the plea that the suit property was the joint family property of themselves and third Defendant and that they became the owners thereof by virtue of the partition that took place in 1954, evidenced by Ex.B.14. In the case of adverse possession a person who is not, the owner of the property becomes the owner thereof, by virtue of his long-standing possession, which is adverse to the real owner. The owner would be in possession of his property in his own right. So, the question of his prescribing title to the property owned by him, by adverse possession, would never arise ................. It is true that a party can take inconsistent pleas and can adduce evidence in respect of both the inconsistent pleas taken by him. But at least at the time of arguments he must choose and confine his case to one of those pleas only, but cannot be permitted to urge the inconsistent pleas as grounds of attack or defence till the end of the lis, because the other side should know what exactly is his case. ...............................

24. The Plaintiff asserts that the Defendants have occupied the B schedule property as tenants since its construction in 1984. Upon reviewing the evidence presented, both courts have concurred that the B schedule house was indeed constructed in that year and that the Defendants' father and his family have maintained possession of the property ever since. The trial Court noted that a housewarming ceremony took place on April 16, 1984. It further observed that at the time of the B schedule house's construction, the Defendants' father, Kondal Rao, resided approximately 30 yards away from the property. During this period, Plaintiff frequently visited Kondal Rao's residence, where he recorded accounts related to the construction, as documented in Ex.B.1, a house account book. Upon examining Ex.B.1, the trial Court found entries in both the Plaintiff's handwriting and that of one of Kondal Rao's sons. However, apart from this account book, the Plaintiff failed

4 MANU/AP/1063/2003 11

to provide additional evidence to substantiate his claim of having constructed the house.

25. The trial Court placed significant weight on PW.1's evidence in cross- examination, particularly noting his inability to provide specific details regarding the commencement of construction, the date of the housewarming ceremony, or the source of materials purchased for the B schedule house. Additionally, the trial Court observed that Ex.B.1, the account book, had been retained by the Defendants and was produced during cross-examination. After evaluation of the testimonies of both PW.1 and DW.1, the trial Court concluded that the B schedule house was constructed by the Defendants' father, Kondal Rao, using his own financial resources and for his personal use.

26. In its Judgment, the 1st Appellate Court critically examined the Defendants' reliance on Ex.B.1, a small notebook detailing expenditures for materials and contractor payments. The 1st Appellate Court noted that this notebook lacked signatures and did not mention either the Plaintiff's name or that of the Defendants' father, raising questions about the authenticity of the entries. Furthermore, the absence of the contractor's name in the book caused doubt about the legitimacy of the claims. After a comprehensive review of the evidence, the 1 st Appellate Court concluded that the materials presented did not substantiate the Defendants' assertion that their father constructed the B schedule house. It pointed out the failure to produce approved construction plans or municipal records. Additionally, it highlighted that the electricity demand notice for the year 2001 was in the name of the 1 st Defendant, issued only after the suit was filed and thus held no relevance to the matter at hand. Moreover, Exs.B.8 and B.9, which pertained to chit transactions, were deemed insufficient to establish ownership for the Defendants.

12 27. Upon reviewing the documents and oral testimonies presented, this Court finds that the 1st Appellate Court's findings are well-reasoned and supported by the evidence. The trial Court noted that the Defendants' father constructed the B schedule house and that he and his family have continuously occupied the property, thereby perfecting their title over it. Notably, no record indicates that either the Plaintiff or the Defendants' father paid property tax for the schedule property. However, in 1986, the Defendants issued Ex.A.3, a notice to the Commissioner of Rajahmundry Municipality, requesting an assessment of house tax for the B schedule property. Following this, the Plaintiff filed the suit on 03.12.1996. The trial Court highlighted that the Defendants' father and his family had been residing in the B schedule house since June 1984. Although Plaintiff claimed that Defendant's father was merely a tenant, he failed to substantiate this assertion. The trial Court determined that the Defendants' father was enjoying the property as an owner, which was undeniably adverse to the Plaintiff's interests. However, the 1st Appellate Court reasoned that the Defendants' possession could not be deemed adverse to the Plaintiff's interests, further reinforcing the conclusion that the Plaintiff held rightful ownership of the property.

28. Upon reviewing the evidence, the 1st Appellate Court noted the prevailing presumption that the property owner is deemed to have constructed any structures upon it at their own expense. Consequently, the burden of proof shifts to the Defendants to demonstrate otherwise. Furthermore, it is established legal doctrine that when a suit is predicated on the title and seeks possession, the Plaintiff, having established his title, cannot be denied relief unless the Defendants can substantiate a claim of adverse possession that meets the requisite prescriptive period.

29. The trial Court acknowledged that the B schedule property is registered in the Plaintiff's name. Yet, it recognized that the Defendants' father constructed a house on this property and that he and his family had been residing there, enjoying the premises as if they were the rightful owners.

13 30. In Eerappa V. Golla Nagaiah and others5, the composite High Court of Andhra Pradesh held that:

Unless there is a valid conveyance of the suit property in favour of the respondents, the Appellant does not get divested of his title. Therefore, the title continued to vest with the Appellant.

31. Given the close familial relationship between the parties, Plaintiff's assertion that he permitted the Defendants to occupy the property as tenants could not be ruled out. However, the Defendants failed to provide compelling reasons to justify constructing the house without any formal documentation from the Plaintiff. Notably, it was not the Defendants' claim that they built the B schedule house in defiance of the Plaintiff's title. Both parties acknowledged that the Plaintiff was present during the construction and contributed to the entries in Ex.B.1, which pertained to the building process. In light of these circumstances, the trial Court's determination that the Defendants perfected their title through adverse possession was found unjustified, especially considering that the Defendants had occupied the property since June 1984, and the suit was filed on December 31, 1996. The 1st Appellate Court correctly concluded that the Defendants' claims could not be substantiated solely on oral evidence, reaffirming that the Plaintiff had proved his title and that the suit was filed within the appropriate time frame.

32. Upon careful evaluation of the evidence, the 1st Appellate Court correctly noted that the Defendants explicitly denied the Plaintiff's title by sending Ex.A.3, a reply notice dated October 26, 1987. The Defendants implicitly acknowledged the Plaintiff's title by asserting a claim of adverse possession. In considering adverse possession claims, Courts must examine the date when possession became hostile and the nature of that hostility about the rightful owner. In this case, the evidence supporting the Defendants' claim of adverse possession has been found lacking since June

5 2009 (2) ALT 416 14

1984. Thus, without sufficient proof of hostile possession, the Defendants cannot successfully contest the Plaintiff's established title.

33. In Annakili v. A. Vedanayagam6, the Hon'ble Supreme Court held that:

24. xxxxxxxx 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 shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act.

34. In Kalal Thimmanna and Ors. vs. Krishna Reddy and Ors. 7 , the composite High Court of Andhra Pradesh held that:

The limitation of 12 years in a suit for possession is from the date. When the possession of the defendants becomes adverse to the Plaintiff, and hence, it is for the defendants to prove adverse possession and the defendants having taken up a plea of title and failed to prove it, cannot be permitted to plead adverse possession................

35. The Defendants notably do not assert that they unlawfully took possession of the B schedule property by forcibly displacing the original owner. Instead, they assert their claim as joint purchasers, suggesting their possession is permissive. This permissiveness precludes the possibility of their claim evolving into adverse possession unless they maintain continuous possession for a period of twelve years while simultaneously asserting a hostile claim to the property's title. Furthermore, this claim must be explicitly communicated to the original owner to fulfil the necessary legal requirements for adverse possession.

36. In M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das 8, the Hon'ble Supreme Court held that:

1143. A person who sets up a plea of adverse possession must establish both peaceful, open, and continuous possession, which meets

6 (2007) 14 SCC 308 7 MANU/AP/0206/2004 8 (2020) 1 S.C.C. 1 15

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 for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence.

Evidence is well settled and can only be adduced with reference to matters that are pleaded in a civil suit. In the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. ........... A plea of adverse possession seeks to defeat the rights of the true owner, and the law is not readily accepting such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.

37. In Gundu Parvathamma V. Penubarthi Sreenivasulu9, the composite High Court of Andhra Pradesh held that:

13. ................ The law is well settled that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", i.e. peaceful, open and continuous. The person who sets up the plea of adverse possession must establish the physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner. As the person who sets up the plea of adverse possession tries to defeat the rights of the true owner, the burden lies on him to clearly plead and establish all facts necessary to establish his adverse possession [D.N. Venkatarayappa v. State of Karnataka MANU/SC/0766/1997;

Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma MANU/SC/0231/1996 and Karnataka Board of Wakf (supra)]. In a recent judgment in Hemaji Waghaji jat v. Bhikhabhai Khengarbhai Harijan and Ors. (3) MANU/SC/4083/2008, the Supreme Court, while reiterating that adverse possession is not a pure question of law but a blended one of fact and law, further restated the requirements for establishing the plea of adverse possession, namely, on what date he came into possession; what was the nature of his possession; whether the factum of possession was known to the other party; how long his possession has continued and whether his possession was open and undisturbed. The Apex Court observed that a person pleading adverse possession has no equities in his favour since he is trying to defeat the true owner's rights. Indeed, the Hon'ble Supreme Court, in the said Judgment, suggested to the Union of India to seriously consider and make suitable changes in the law of adverse possession as it ousts an owner on the basis of inaction within the limitation, which is irrational, illogical and wholly disproportionate and that it is extremely harsh

9 MANU/AP/0059/2010 16

for the true owner and windfall for a dishonest person who had illegally taken possession of the property of the true owner.

38. In Ram Nagina Rai v. Deo Kumar Rai10, the Hon'ble Supreme Court held that:

19. It is an established position of law that insofar as Articles 64 and 65 of the Limitation Act are concerned, once a party proves its title, the onus of proof would be on the other party to prove the claim of title by adverse possession. ..........

22. In light of the above observations of this Court, we find that there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property.

This would be in clear violation of the basic rights of the actual owner of the property................

39. In light of established legal principles, this Court holds that the pleading serves as the foundational element for any claim of adverse possession. In the present case, there is a conspicuous absence of both pleading and evidence regarding when the Defendants asserted a hostile title against the Plaintiff, apart from the assertion of possession and enjoyment of the property. The Defendants' claim rests on their status as joint purchasers of the property alongside the Plaintiff. Even if it is accepted the Defendants' assertion that they took possession in June 1984, such possession must be deemed permissive in nature and would not evolve into adverse possession.

40. From the legal principles established in the judgments mentioned above, it is evident that mere continuation in possession alone does not suffice to establish adverse possession. The Defendants do not contend that they wrongfully entered the property by dispossessing the original owner; instead, they assert that their possession stems from a legitimate purchase of the property. Thus, their claim lacks the necessary elements to support an adverse possession argument, as their entry into possession was not predicated on any unlawful act against the original owner.

10 (2019) 13 SCC 324 17

41. The learned Counsel for the Appellants argues that the Plaintiff's failure to establish his claim of tenancy precludes him from obtaining the relief sought in the suit. However, I find no merit in this assertion.

42. In Ponnia Pillai V. Pannail11, a Division Bench of Madras High Court, relying on Bala Mukund V. Dalu12, it is held that in a suit filed based on tenancy in which the Defendant denies the title of the Plaintiff and sets up adverse possession, even if the issue relating to the title is not framed if the evidence is adduced fully by both sides on the question of title, a decree based on the Plaintiff's title can be given against the Defendant even if the Plaintiff fails to establish tenancy set up by him.

43. Keeping in mind the principles mentioned above, upon reviewing the facts of the case, I conclude that the Defendants have unequivocally failed to demonstrate that they have perfected their title through adverse possession. Notably, the Defendants initially claimed that their father purchased the property alongside the Plaintiff, yet the assertions made in the Defendants' written statement remain unsubstantiated.

44. Although it is established that the Defendants' family has been in possession of the schedule property since June 1984, such possession must be characterized as permissive. It cannot transform into adverse possession unless the Defendants' family maintains possession for a continuous period of twelve years while asserting a hostile claim to the knowledge of the original owner. The evidence on record indicates that the Defendants attempted to establish a hostile title against the Plaintiff by sending a reply notice on October 26, 1987.

45. In light of well-established legal principles, this Court observes that, despite the Plaintiff's failure to substantiate the Defendants' claim of tenancy, it remains clear that the Defendants have contested the Plaintiff's ownership.

11 A.I.R. (34) 1947 Madras 282 12 (03) 25 ALL 498 (F.B.) 18

The Defendants assert their possession based on a joint sale, a claim they have been unable to substantiate. Conversely, the Plaintiff has successfully demonstrated ownership of the schedule property through Ex.A.1, the sale deed.

46. Accordingly, this Court determines that the Defendants' possession adverse to the Plaintiff's title should be recognized from October 26, 1987, onward rather than from June 1984. Therefore, the trial Court's conclusion that the Defendants acquired title through adverse possession over the statutory period is erroneous. Given these circumstances, the trial Court's finding that the Defendants have perfected their title by prescription is illegal.

47. The total effect of the above circumstances is that the Defendants could not establish their plea of adverse possession over the suit property for the statutory period of twelve years, and they also utterly failed to fulfil the norms prescribed by the Hon'ble Apex Court in P. Lakshmi Reddy V. L Lakshmi Reddy 13 , to prove their case of adverse possession. In this Judgment, the Apex Court relying on Mitra's Tagore Law Lectures on Limitation and Prescription (Edition) Vol. 1, Lecture VI, at Page 159, quoting from Angell on Limitation, held at Paragraph No. 7 as under:

"Consonant with this principle the commencement of adverse possession, in favour of a person, implies that person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus."

48. Having considered the facts of the case and the findings of both Courts, I am of the opinion that the Defendants have failed to meet the burden of proof required by law to establish that they have perfected their title by adverse possession.

13 1957 AIR 314 19

49. For the reasons aforesaid, this Court discerns no infirmity, much less perversity or illegality, in the Judgment rendered by the learned 1st Appellate Court. The findings and reasoning provided by the 1 st Appellate Court are consistent with established legal principles. The 1st Appellate Court meticulously reviewed all the evidence on record, omitting nothing pertinent, nor did it consider any extraneous material. Consequently, the findings of the 1st Appellate Court do not call for interference by this Court. The Second Appeal lacks merit in its entirety.

50. In these circumstances, finding no such questions that require consideration in the Second Appeal, Which is the much less substantial question of law as pointed out for the Appellants, this Second Appeal has to be dismissed.

51. As a consequence, this Second Appeal is dismissed without costs. The Judgment dated 19.01.2007 passed by the learned V Additional District Judge (Fast Track Court), East Godavari, Rajahmundry, in A.S. No.69 of 2002 stands confirmed.

Miscellaneous petitions pending, if any, in this Appeal shall stand closed.

_____________________________ JUSTICE T. MALLIKARJUNA RAO

Date: 23.10.2024 SAK 20

THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

SECOND APPEAL NO. 307 OF 2007

Date: 23.10.2024

SAK