Chatti Konati Rao
& Ors. Vs Palle Venkata Subba Rao
JUDGMENT
CHANDRAMAULI KR.
PRASAD, J.
1.
Plaintiff
No. 1 is the son of plaintiff No. 2, whereas original defendant Nos. 1 and 2
were brother and sister of the second plaintiff. Both the defendants died
during the pendency of the suit. The heirs and legal representatives of the first
defendant were substituted in his place and they had contested the suit.
2.
Plaintiff
filed the suit for recovery of possession in respect of several properties
mentioned in schedule of the plaint and in the present appeal we are concerned
with Schedule - I property i.e. four acres of land pertaining to R.S. No. 44/3situate
at village Vijjeswaram, hereinafter referred to as the land in dispute.
3.
According
to the plaintiffs their predecessor-in-interest viz., one Venkata Ramana Rao,
who happened to be the father of plaintiff No. 1 and husband of plaintiff No.
2, was the owner of land in dispute. Venkata Ramana Rao was a Government employee
and in his absence defendant No. 1 i.e. elder brother of second plaintiff used
to look after his property. Said Venkata Ramana Rao died in the year 1948 and
thereafter the plaintiffs came back to the village and started looking after
the agricultural land including the land in dispute. Plaintiff's case further
is that again in the year 1954 they shifted their residence to Kakinada for
education of the first plaintiff and defendant No. 1 was asked to look after
the land in dispute. In the year 1974 when the defendant declined to deliver possession
of the land in dispute, lawyer's notice dated 6thApril, 1974 was issued calling
upon the defendants to handover the property. Defendant No. 1 responded to the
notice by his letter dated 27th May, 1974 denying the title of the plaintiffs
and claiming himself to be the owner of the property. Plaintiffs thereafter
filed the suit bearing O.S. No. 20 of 1974in the Court of the Subordinate Judge,
West Godavari District, Kovvur for recovery of possession in respect of land in
dispute and for mesne profit.
4.
In
the written statement filed by defendant No. 1 his plea was that he purchased
the land in dispute under a stamped agreement from Venkata Ramana Rao for a value
ofRs.1600/-. According to him he paid Rs.1,000/- to Venkata Ramana Rao and a
sum of Rs.225/- to one Bom bothu Chitteyya who was the tenant and in possession
of the land in dispute during 1943 and said tenant vide letter dated 16thJune,
1943 relinquished his possession and delivered the land to defendant No. 1. It
is further case of defendant No. 1 that balance amount of Rs.400/- was sent by
Money Order. After the death of Venkata Ramana Rao, defendant No. 1, the second
plaintiff claimed more money towards the sale of the land in dispute and
plaintiff No. 2 being the sister of defendant No. 1, a further sum of Rs.500/-
was paid to her vide receipt dated 14th January, 1952 (Exh.B-4).
5.
Plea
of defendant No. 1 further is that on 6th November,1960 he filed an application
before the Assistant Settlement Officer for correction of rough patta issued in
favour of second plaintiff in 1959 and to substitute his name along with his brother's
name in place of second plaintiff. In the application defendant No. 1
categorically stated that on 18th February,1954 the Settlement Officer directed
issuance of patta of the land in dispute along with other lands in their favour
and he was all through waiting for the issuance of patta. However, according to
defendant No. 1, in August, 1959 he came to know that a rough patta was issued
to second plaintiff contrary to the decision of the Settlement Officer and thereafter
he filed an application on 7th November, 1959 before the Rough Patta Correction
Officer informing him about variance between grant and the order and prayed
that the name of the second plaintiff be deleted from the patta and in her
place his name and that of his brother's name be substituted. According to
defendant No. 1 he filed reminder on 6th November, 1960 but it was returned by
the Assistant Settlement Officer on 22nd November, 1960 with certain objections.
Thereafter the first defendant did not present the petition for substituting
his name in the patta by deleting the name of the second plaintiff. Further
plea of the first defendant was that he had perfected his title by adverse possession.
6.
On
the basis of the pleadings of the parties the trial court framed various
issues; including the following issues : "1. Whether the father of the 1st
plaintiff late Venkata Ramana Rao died possessed of the plaint schedule
properties? 2. Whether any of the suit properties were entrusted to any of the
defendants in or about the year 1952? 3. Whether sale of item I of the schedule
property to 1st defendant in 1943 is true?"
7.
It
is relevant here to state that no issue of adverse possession was framed but on
the basis of the materials on record the trial court came to the conclusion
that title to the plaintiffs even if proved, gets extinguished by adverse possession.
It further held that defendant No. 1 is in possession of the suit property and
when considered along with other documents, the same proves his title. The
trial court also observed that the plaintiff having not adduced any oral
evidence or filed any document to show that the property was entrusted to
defendant No. 1 for management, it is evident that defendant No. 1 has title
over the land in dispute. The trial court further held that defendant No. 1 had
purchased the land in dispute and on these findings the trial court dismissed
the suit.
8.
Plaintiffs,
aggrieved by the judgment and decree of the trial court, preferred appeal
before the High Court and the learned Single Judge by his judgment and decree
dated16.09.1987 dismissed the appeal. Plaintiffs there after preferred Letters
Patent Appeal No. 438 of 1988 and the Division Bench of the High Court by its
judgment and decree dated 19.12.2001 allowed the appeal; set aside the judgment
and decree of the trial court as well as of the appellate court and decreed the
suit. While doing so the High Court observed as follows : "From the
documentary evidence available on record, it cannot be said that the first
defendant has perfected his title to the property by adverse possession. On the
other hand, he tried to change his version from time to time to suit his
convenience i.e., firstly, in the written statement he contended that he had
purchased the property from late Venkata Ramana Rao and produced two letters
said to have been written by Venkata Ramana Rao, whose writing is not at all
tallying, and we have no manner of doubt that these letters were brought into
existence by the first defendant in support of his case. Secondly, the first
defendant filed an application in year 1964 before the Settlement Officer
contending that himself and his brothers are Agraharamdars and are entitled to
patta under section 15 of the Estates Abolition Act, but he never disclosed
that he had purchased the land from his brother-in-law. Though he obtained an
order from Assistant Settlement Officer in the year 1964, no patta was issued
to DI till the trial of the suit on the other hand even as per his version
rough patta was issued in the name of 2nd plaintiff, but he has not taken any
steps to get it cancelled. Now, he started contending that he perfected title
by adverse possession. As he himself admitted that initially his possession is
permissive one as he was not paying any rents and enjoying the property to
himself to exclusion of the land owners, he cannot contend 8 that he perfected
title by adverse possession; more so in the light of Exs. B-5 and B-9 wherein
both the parties are fighting for patta after abolition of the estate. In order
to establish that the first defendant had perfected his title to the property
by adverse possession, it requires more cogent proof, which is not forthcoming
in this case. On the other hand, if we analyse the documentary evidence
available on record, the only conclusion we can arrive at is that taking
advantage of the near relationship between him and the plaintiffs and their
absence from the village, the first defendant tried to create documents to
knock away the property. We have not discussed the oral evidence for the simple
reason that the documentary evidence itself speaks of the falsehood of the
claim of defendants."
9.
Heirs
and legal representatives of defendant No. 1,aggrieved by the same, have
preferred this appeal with leave of the Court.
10.
Mr.
Ananga Bhattacharya, learned counsel appearing on behalf of the appellants
submits that the concurrent findings of facts of the trial court and the
appellate court ought not to have been upset by the Division Bench in Letters
Patent appeal. We do not find any substance in the submission of Mr.
Bhattacharya. In fact, while setting aside the judgment and decree of the trial
court and the appellate court the Division Bench referred to the decision of
this Court in the case of Asha Devi v. Dukhi Sao [AIR 1974 SC 2048: (1974) 2SCC
492], and came to the conclusion that the "power of the Division Bench
hearing a Letters Patent appeal under Clause(10) from the judgment of a single
Judge in first appeal is not limited only to a question of law under Section
100 of the Code of Civil Procedure, but it has the same power which the Single Judge
has as a first Appellate Court in respect of both questions of fact and of
law." We are of the opinion that the High Court was absolutely right in
making the aforesaid observation and accordingly we reject this submission of
Mr.Bhattacharya.
11.
Mr.
Bhattacharya, then submits that the appellants had perfected their title by
adverse possession and the findings so recorded by the trial court and the
appellate court ought not to have been interfered in appeal. Mr. Abid Ali
Beeran, learned counsel appearing on behalf of the respondent, however, submits
that the finding recorded by the trial court and the appellate court being
absolutely illegal, nothing prevented the Division Bench of the High Court to
set aside that finding.
12.
We
have bestowed our thoughtful consideration to the submission advanced and we do
not find any substance in the submission of Mr. Bhattacharya. What is adverse
possession, on whom the burden of proof lie, the approach of the court towards
such plea etc. have been the subject matter of decision in a large number of
cases. In the case of T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has
been held that mere possession however long does not necessarily mean that it
is adverse to the true owner and the classical requirement of acquisition of
title by adverse possession is that such possessions are in denial of the true
owner's title. Relevant passage of the aforesaid judgment reads as follows : "20.
It is well recognised proposition in law that mere possession however long does
not necessarily mean that it is adverse to the true owner. Adverse possession
really means the hostile possession which is expressly or impliedly in denial
of title of the true owner and in order to constitute adverse possession the
possession proved must be adequate in continuity, in publicity and in extent so
as to show that it is adverse to the true owner. The classical requirements of
acquisition of title by adverse possession are that such possession in 11 denial
of the true owner's title must be peaceful, open and continuous. The possession
must be open and hostile enough to be capable of being known by the parties
interested in the property, though it is not necessary that there should be
evidence of the adverse possessor actually informing the real owner of the
former's hostile action."
13.
What
facts are required to prove adverse possession have succinctly been enunciated
by this Court in the case of Karnataka Board of Wakf vs. Government of India
and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading
adverse possession has no equities in his favour and since such a person is
trying to defeat the rights of the true owner, it is for him to clearly plead
and establish necessary facts to establish his adverse possession. Paragraph 11
of the judgment which is relevant for the purpose reads as follows :
"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", 12 that is, peaceful, open and continuous. The possession must
be adequate in continuity, in 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]"
14.
In
view of the several authorities of this Court, few where of have been referred
above, what can safely be said that mere possession however long does not
necessarily mean that it is adverse to the true owner. It means hostile
possession which is expressly or impliedly in denial of the title of the true owner
and in order to constitute adverse possession the possession must be adequate in
continuity, in publicity and in extent so as to show that it is adverse to the true
owner. The possession must be open and hostile enough so that it is known by
the parties interested in the property. The plaintiff is bound to prove his
title as also possession within 12 years and once the plaintiff proves his
title, the burden shifts on the defendant to establish that he has perfected
his title by adverse possession. Claim by adverse possession has two basic
elements i.e. the possession of the defendant should be adverse to the
plaintiff and the defendant must continue to remain in possession for a period
of 12 years thereafter. Animus possidendi as is well known a requisite ingredient
of adverse possession. Mere possession does not ripen into possessory title
until possessor holds property adverse to the title of the true owner for the
said purpose. The person who claims adverse possession is required to establish
the date on which he came in possession, nature of possession, the factum of
possession, knowledge to the true owner, duration of possession and possession
was open and undisturbed. A person pleading adverse possession has no equities
in his favour as he is trying to defeat the rights of the true owner and,
hence, it is for him to clearly plead and establish all facts necessary to
establish adverse possession. The courts always take unkind view towards
statutes of limitation overriding property rights. Plea of adverse possession
is not a pure question of law but a blended one of fact and law.
15.
Bearing
in mind the principles aforesaid when we proceed to consider the facts of this
case, we find that appellants have miserably failed to prove that they have perfected
their title by adverse possession. It is worth mentioning here that initial
plea of the appellant was that they had purchased the property from the original
owner, alternatively by virtue of agreement to sale they came in possession of
the property. Both these pleas have not been substantiated. Neither the
purported sale deed nor agreement to sale have been placed on record. As
regards the plea of adverse possession, appellants' case is that out of the consideration
money of Rs.1,600/-, Rs.1,000/- was paid to the real owner and on payment of
Rs. 225/- to the tenant in possession namely Bombothu Chitteyya, he
relinquished his possession. This relinquishment of possession by the tenant shall
not enure to the benefit of the appellants against the true owner so as to
accept their claim for adverse possession. Appellants are required to prove
that their possession was adverse to the true owner. The plea of the appellants
on the basis of the purported order dated 18th February, 1954 of the Settlement
Officer directing for issuance of Patta in their favour also does not advance
their case. It is not the appellant's case that plaintiffs were party before the
Settlement Officer. Further, it is not in dispute that no Pattawas issued in
favour of the appellants and in fact rough Patta was issued in favour of the
second plaintiff. Thus, the appellants have not proved the necessary
ingredients to establish their title by adverse possession. In our opinion, the
Division Bench is absolutely right in rejecting the appellants' plea of adverse
possession and decreeing the plaintiff's suit, after setting aside the judgment
and decree of the trial and the appellate Court.
16.
In
the result, we do not find any merit in the appeal and it is dismissed with
cost throughout to be paid by the appellants to the respondent. Lawyers fee
quantified atRs.25,000/-.
...............................................J.
( HARJIT SINGH BEDI )
................................................J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI,
DECEMBER 7, 2010.
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