*THE HON’BLE MR JUSTICE B. PRAKASH RAO AND *THE HON’BLE MR JUSTICE R. KANTHA RAO + C.C.C.A. NO. 143 OF 2004 AND + C.C.C.A.M.P.(SR) No.9557 of 2008 % Dated:15.02.2010 # C.C.C.A. NO. 143 OF 2004 Between: Dr.K.I.Askari and another …Appellants And/- Nawab Mir Barkat Ali Khan …Respondent C.C.C.A.M.P.(SR) No.9557 of 2008 Between: Dr.K.I.Askari and another …Appellants And/- Nawab Mir Barkat Ali Khan and another …Respondents 1. ! Counsel for the Appellants: Mr. VLNGK Murthy & Mr.Ramakrishna, Annavajjula 2. ^ Counsel for the Respondent: Mr. D.Prakash Reddy for Mr.R.Raghunandan <GIST: > HEAD NOTE: ? Cases referred [1] AIR 1954 SC 526 2 AIR 1973 AP 149 3 AIR 1968 AP 291 THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A. NO. 143 OF 2004 AND C.C.C.A.M.P.(SR) No.9557 of 2008 C.C.C.A. NO. 143 OF 2004 Between: Dr.K.I.Askari and another …Appellants And/- Nawab Mir Barkat Ali Khan …Respondent C.C.C.A.M.P.(SR) No.9557 of 2008 Between: Dr.K.I.Askari and another …Appellants And/- Nawab Mir Barkat Ali Khan and another …Respondents THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.C.C.A. NO. 143 OF 2004 AND C.C.C.A.M.P.(SR) No.9557 of 2008 COMMON JUDGMENT: (Per Hon’ble Sri Justice R.Kantha Rao,J) This is an appeal from the decree and judgment dated 24.02.2004 passed by the XIV Additional Chief Judge, City Civil Court, Hyderabad in O.S.No.271 of 2001. 2. The unsuccessful defendants are the appellants. The respondent filed the suit for declaration of title, recovery of possession, profits past and future which has been decreed by the trial Court. Assailing the said decree and judgment, the defendants preferred the present appeal. 3. The brief facts necessary for considering the questions involved in the appeal, may be stated, as follows: According to the respondent/plaintiff, he became entitled to the schedule mentioned property under a registered gift deed, dated 21.03.1957 executed by His Excellency, the Nizam VII Sir Mir Osman Ali Khan in his favour. At the request of the first appellant, the respondent permitted him to occupy the schedule mentioned property in an area of 2581.07 square yards covered by House No.4-1-1 situate in Boggulakunta. The request of the first appellant was acceded to by the respondent as the first appellant convinced him that it would take at least six months to make the proposed permanent premises suitable for the educational institution as it required extensive development. Thus, on the promise of the first appellant to vacate the premises within a period of six months, the respondent generously permitted him to occupy the schedule mentioned property and to run the educational institution therein. However, as seen from the averments of the plaint, the first appellant did not vacate the premises as promised, whereupon the representative of the respondent addressed a letter dated 09.03.1996 to the first appellant to deliver the possession of the premises but the first appellant was postponing the issue on one pretext or the other by seeking extension of time. As he did not vacate the premises by 01.05.1999 in spite of repeated demands from which date onwards the possession of the appellants was considered to be unauthorized and illegal and as such, according to the respondent the appellants are liable to pay damages @ Rs.20,000/- per month. Under the above mentioned circumstances, the respondent filed the suit which was decreed by the learned trial Court granting all the reliefs prayed for. 4. In the course of the written statement filed by the first appellant which was adopted by the second appellant, it was contended that the respondent has no title to the suit property, he is not entitled to recover the possession of the same by ejecting the appellants therefrom, more particularly, in view of the fact that the rights were created in favour of the third parties. It was also contended therein that since the respondent had no title to the property, he cannot claim any damages from the appellants and absolutely there was no basis for the respondent to claim damages. Apart from denying the material averments in the plaint, the first appellant contended that it is for the respondent to prove that the appellants came into possession of the property on 12.07.1992. The allegation that the first appellant has been postponing the issue of redelivering the property on some pretext or the other, was flatly denied. The alleged letter dated 09.03.1996 said to have been issued by the representative of the respondent to the first appellant seeking redelivery of possession of the property was also denied stating that the said doucment was fabricated with an evil design. The appellants contended that the respondent has no cause of action to file the suit against the appellants besides contending that the suit is barred by time. 5. Basing on the pleadings, the learned trial Court settled the following issues: 1) Whether the plaintiff is entitled for the declaration sought for? 2) Whether the plaintiff is entitled for delivery of possession of the suit schedule property as sought for? 3) Whether the plaintiff is entitled to claim damages? If so, to what extent and form whom? 4) Whether the suit claim is barred by limitation? 5) To what relief? 6. Before the learned trial Court, the power of attorney holder of the respondent was examined as PW-1 and Exs.A-1 to A-11 were marked for the respondent. The first appellant was examined as DW-1 and Exs.D-1 to D-20 were marked for the appellants. The original written statement in O.S.No.120 of 1990 of the first appellant (first defendant) was marked as Ex.X-1 and the relevant portion in the said written statement was marked as Ex.X-2. 7. Upon considering the entire oral and documentary evidence in the light of the pleadings of both parties, the learned trial Court decreed the suit granting all the reliefs prayed for by the respondent. The factos which weighed with the learned trial Court are that in the written statement though the first appellant had denied the title of the respondent, in the course of his evidence at the trial, he specifically admitted the title of the respondent, the contentions urged in the written statement by the first appellant are uncertain and vague, only at the stage of advancing arguments, the appellants put-forth the plea that they perfected their title to the property by adverse possession and such a plea cannot be permitted to be raised at that stage, in view of the fact that in a suit based on title, the first appellant admitted the title of the respondent and in the absence of plea of perfecting his title to the property by adverse possession the possession of the appellants being only permissive, the suit is well within time and is liable to be decreed. 8. We have heard Sri V.L.N.Gopala Krishna Murthy, the learned Senior Counsel appearing for the appellants and Sri D.Prakash Reddy, the learned Senior Counsel appearing for the respondent. 9. Basing on the submissions of both the learned counsel and also the findings arrived at by the learned trial Court, the following points would arise for determination in this appeal: 1) In the absence of specific pleadings by the appellants in relation to the nature of their right, title, interest or possession in the schedule mentioned property, can they resist the suit of the respondent based on title having admitted the title of the respondent in the course of the evidence of the first appellant before the trial Court? 2) Whether on account of non-examination of the respondent as a witness on his behalf, can the evidence of PW-1 who is the power of attorney holder, be taken into consideration for any purpose or whether an adverse inference can be drawn against the case of the respondent disentitling him to the reliefs prayed for by him in the suit? 3) Whether the appellants who have not pleaded perfecting their title by adverse possession be permitted to raise the same at a subsequent stage, more particularly, in the appeal? If so, having regard to the facts and circumstances of the case, and the evidence forthcoming in the present case, their claim of adverse possession be upheld? 10. POINT NO.1: It has been contended in the written statement filed by the first appellant that the respondent has no title to the property. But they have not denied the execution of gift deed by the Nizam VII Sir Mir Osman Ali Khan of Hyderabad gifting the suit property along with some other properties in favour of the respondent. However, the fact remains that no attesting witness was examined to prove the said gift deed dated 21.03.1957, which is marked as Ex.A-1. Ex.A-3 is the plan attached to the gift deed and since there is no dispute about the identity of the subject matter of the suit, the details relating to the plan need not be gone into. Ex.A-2 is the power of attorney dated 13.03.1987 executed by the respondent in favour of the Nawab Zain Yar Jung Bahadur and another authorizing them to accept the gift on his behalf as he was in London at that point of time. Ex.A-1 indicates that Nawab Zain Yar Jung accepted the gift deed by signing on Ex.A-1. Though the gift deed is a compulsorily attestable document, if it was registered in accordance with the provisions of the Indian Registration Act, 1908 and when it’s execution is not specifically denied by executant himself, it shall not be necessary to call an attesting witness in proof of execution of the gift deed, according to the proviso of Section 68 of the Evidence Act. In the present case, as evidently the executant of Ex.A-1 gift deed had not denied the execution it is not necessary for the respondent to examine any attesting witness to prove the said document. The first appellant stated in his evidence as DW-1 that he lent money to the power of attorney holder of the respondent and as the amount was not repaid, he took possession of the suit property, tented himself in the portion at Nazari Bagh Zanana side on 29.12.1983 with a view to pressurize the power of attorney holder to repay the amount borrowed. He also further stated in his evidence that this fact is very well known to the respondent and general power of attorney holder Mr. Assadullah Khan who addressed a note on a small slip dated 15.01.1984 requesting his permission for entry of lorries carrying goods from Nazri Bagh through Zanana gate which is under his possession and control. It is also borne out from his evidence that to realize the amount from the power of attorney holder, he filed money suits, which were decreed, one of the decrees was fully satisfied and the other decree was satisfied in part. He also filed Ex.B-4, certified copy of the judgment in O.S.No.442 of 1987 on the file of the IV Additional Judge, City Civil Court, Hyderabad, Ex.B-5 the certified copy of E.P.No.81 of 1999 in O.S.No.442 of 1987 and Ex.B-6 the certified copy of the E.P.No.67 of 2000 in O.S.No.447 of 1987 which relate to the proceedings initiated by him for realization of the amount from the general power of attorney holder of the respondent. 11. Another important piece of evidence is the certified copy of the affidavit and petition filed by the first appellant in W.P.No.5976 of 2000 before this Court, which is marked as Ex.A- 11. In Ex.A-11 writ petition filed against the third parties, the first appellant admitted that the respondent is the owner of the property and that the respondent gifted him the said property. He further specified in the affidavit that he became entitled to the property under the memorandum of gift, dated 12.12.1998 executed by the respondent and as per the provisions of Muslim Law, a Hiba does not require any registration. Thus, it follows that unless the respondent has title to the property, the question of his gifting away the same to the first appellant does not arise. The first appellant not only from his admissions in his evidence in the instant case, but also in the above mentioned writ petition, admitted the title of the respondent and therefore, it is no longer required for the respondent to prove his title. 12. Coming to the case of the appellants, the first appellant in his written statement except making a bald denial of plaint averments, did not put-forth any specific case. What all can be understood from the written statement filed by him and from his evidence is that the respondent has no title, the first appellant somehow came into possession of the property, there is no positive evidence adduced by the respondent in proof of his title and therefore, he has to fail. The first appellant has no specific case as to the nature of his possession relating to the schedule mentioned property. Without specifying in the written statement as to how he came into possession of the property, he made a vain attempt to impress upon the trial Court at the stage of arguments that he perfected his title to the property by adverse possession. Whereas, in his evidence, he has specifically stated that on 29.12.1983 he took possession of the property with an intention to vacate the same soon after his debt is repaid by the general power of attorney holder. It is true that on account of some defect in the pleadings, the substantive rights of the parties shall not be allowed to be jeopardized. Though the requirement of specific pleadings cannot be viewed in a hyper technical manner, one cannot lose sight of the fact that a party to a suit be, he, the plaintiff or the defendant, must have a specific case of his own and in the absence of any specific contention basing on which an issue is required to be framed, the party is not permitted to adduce evidence in regard to the said aspect. There may be errors or omissions in the pleadings, but it is obligatory on the part of the parties to plead material facts and at least from the substance of the plaint or written statement filed by a party, the Court must be in a position to understand as to what in fact the basic contention put-forth by the party is. The law also mandates that unless a material fact pleaded by one party is not controverted specifically by the opposite party he must be deemed to have admitted the said material fact. In the instant case, the contentions put-forth by the first appellant in the written statement are so vague and uncertain from which it is not possible for the Court to cull out his version. Though on technical grounds, the substantive rights of the parties shall not be allowed to be defeated, when the pleadings are so evasive and come into conflict with the evidence of the party pleading the said facts, the Court has to certainly reject the claim or the defence of the party, as the case may be. Therefore, in the instant case, with all the vagueness in the written statement and contradictory versions in the evidence and more particularly, admitting the title of the respondent in the evidence the defence of the appellants has no basis or foundation and we have no hesitation to hold that the appellants cannot resist the suit of the respondent. This point is, thus answered in favour of the respondent and against the appellants. 13. POINT NO.2: It is true that to prove the facts which are in the exclusive knowledge of the plaintiff in the suit, the plaintiff himself has to be examined as a witness on his behalf. In some circumstances, an adverse inference can be drawn against the case of the plaintiff on account of his non-examination. But, it is not always necessary to draw such adverse inference disentitling the plaintiff of his claim. It all depends upon the facts and circumstances of each case. Here is a case where PW-1 has been an employee of the respondent since 1996 besides being his general power of attorney holder. It is true that the respondent cannot delegate the powers required to be discharged by him to PW-1. However, law does not prohibit PW-1 his general power of attorney holder from being examined as a witness on behalf of the respondent, in his capacity as a general power of attorney holder. Before making a decision as to whether an adverse inference against the case of the respondent can be drawn or not, we have to look into the pleadings as well as the evidence which focus light on the material facts which are to be proved by the parties to the proceedings. In the instant case, Ex.A-1 gift deed was produced from proper custody, the first appellant himself admitted the title of the respondent in his evidence as DW-1. The gift deed being registered one, need not be proved by examining any attesting witness since the execution of the said document has not been denied by the executant himself. Furthermore, in view of the admission made by the first appellant in his evidence regarding the title of the respondent, it can be said that the respondent has been relieved of the burden of proving Ex.A-1 gift deed. PW-1 in this case was merely examined to mark the documents on behalf of the respondent. A fact can be said to be proved either by positive evidence or from the admissions made by the parties or even from the circumstances derived from the pleadings and evidence of both parties. If that is so, there is no requirement in law that in each and every case the plaintiff has to be examined invariably as a witness on his behalf. A decree can be passed in favour of the plaintiff basing on the averments of the written statement and the admissions of the defendant in his evidence. In such an event, non-examination of the plaintiff is of no consequence. Therefore, in the instant case, the evidence of general power of attorney holder can be taken into consideration in so far it relates to marking of documents on behalf of the plaintiff and testifying the other facts with in his knowledge and it cannot be rejected in toto. As indicated above, having regard to the facts and circumstances of the present case, no adverse inference can be drawn against the case of the respondent who is a plaintiff in the suit for his not entering the witness box. This point is, thus answered against the appellants and in favour of the respondent. 14. POINT NO.3: Article 65 of the Limitation Act deals with the suits for possession of immovable property based on title. Whereas the Article 64 deals with the suits for possession of immovable property based on possession and not on title. In a suit for possession based on title, the plaintiff is not required to prove that he filed the suit within twelve years from the date of dispossession; whereas it is a requirement in a suit under Article 64 of the Limitation Act. In the present case, the respondent (the plaintiff) asserted his title to the plaint schedule property and filed the suit for declaration of his title as well as for recovery of possession. The suit, therefore comes within the purview of Article 65. In the present suit, the respondent has to fail or succeed basing on his proving title to the property irrespective of the fact whether he brought the suit within a period of 12 years from the date on which he had been out of possession of the property. However, as already discussed while dealing with point No.2, he can prove his title either by positive evidence or by the admissions made by the opposite party. It is true that the first appellant is in possession of the property on the date of filing of the suit by the respondent and from the pleadings and evidence of the first appellant, it is uncertain as to when in fact he came into possession of the property and in which manner. The principle that possession is a prima facie proof of title embodied in Section 110 of the Evidence Act operates only where in a suit filed under Article 65 of the Limitation Act, none of the parties is able to prove the title. But when the title is either proved or admitted, Section 110 of the Evidence Act has no application and the presumption available therein shall not be drawn. The plaintiff will not be entitled for a decree in a suit filed under Article 65, in case if he fails to establish his title to the property, or that the defendant proves that he perfected his title to the property by adverse possession. In the instant case, the first appellant had in clear terms in his evidence admitted the title of the respondent, he did not plead adverse possession as to how and when he came into possession of the property. The version of the first appellant is at variance on these aspects. In his evidence before the trial Court, he stated that on failure by the general power of attorney holder to repay the debt borrowed from him, he occupied the plaint schedule property with an intention to remain in the same till the debt is repaid. Whereas Ex.A-11 indicates that in W.P.No.5976 of 2000 filed before this Court, he contended that he became entitled to the schedule mentioned property under a gift deed executed by the respondent which according to him does not require any registration as per the provisions of Muslim law. Thus, his versions are mutually inconsistent. Merely because a person is in possession of immovable property for a period of more than 12 years, he cannot acquire title to the said property unless he pleads and proves that he perfected his title by adverse possession. The first appellant who had no specific case in the written statement and gave conflicting versions in the evidence regarding his possession, curiously filed C.C.C.A.M.P.(SR) No.9557 of 2008 seeking amendment of written statement for introducing a plea that he perfected the title to the schedule mentioned property by adverse possession. The conduct of the first appellant which has been indicated hereinabove consisting of vague and uncertain pleadings coupled with inconsistent versions in his evidence in the instant case as well as in the W.P.No.5976 of 2000 does not enable us to permit him to amend the written statement by making an application at the hearing of this appeal. If we allow such a course, it is nothing but permitting him to abuse the process of law. The proposed amendment of the written statement sought to be made by the first appellant is an afterthought. His pleadings as well as the evidence on record have already demolished the chances of the first appellant taking the plea of adverse possession. The decisions relied upon by the learned counsel for the appellants viz. 1) MORAN MAR BASSELLOS CATHOLICOS AND ANOTHER v. MOST REV. MAR POULOSE ATHANASIUS AND OTHERS[1], 2) CHAKICHERLA AUDILAKSHMAMMA v. ATMAKURU RAMARAO AND OTHERS[2] and 3) ALLAM GANGADHARA RAO v. GOLLAPALLI GANGARAO[3] have been rendered with regard to altogether different facts and circumstances to the case on hand, the ratio therein being absolutely not applicable, they are not considered. Therefore, we dismiss CCCA MP (SR) No.9557 of 2008. 15. The respondent/plaintiff having established his title to the suit property by the documentary evidence adduced on his behalf and also from the pleadings and the evidence of the appellants, is entitled for a decree of declaration of his title and recovery of possession and also the profits. The learned trial Court rightly decreed the suit of the respondent/plaintiff and the judgment and decree passed by the learned trial Court do not call for any interference in this appeal and accordingly they are confirmed. Consequently, the appeal is dismissed with costs. C.C.C.A.M.P. (SR) No.9557 of 2008 is also dismissed.