THE HON’BLE SRI JUSTICE GODA RAGHURAM S.A. No.1205 of 2008 Dated: 17-06-2011 BETWEEN : 1. Choppara Ankaiah (died), S/o. Late Bangaraiah, Aged about 64 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 2. Choppara Pedda Ramaiah (died), S/o.Late Bangaraiah, Aged about 65 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 3. Choppara China Ramaiah, S/o.Late Bangaraiah, Aged about 53 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 4. Choppara Bala Kotaiah, S/o. Late Ankaiah, Hindu, Aged about 59 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 5. Choppara Rama Kotaiah, S/o.Late Ankaiah, Hindu, Aged about 56 years, Resident of Kanumalla Village, S. Konda Mandal, Prakasam District. 6. Choppara Dasu, S/o. Late Ankaiah Hindu, Aged about 53 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 7. Choppara Subba Rao, S/o.Late Ankaiah Hindu, Aged about 47 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 8. Choppara Venkateswarlu, S/o.Late Ankaiah Hindu, Aged about 43 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 9. Smt.Bandi Koteswaramma, W/o.Malakondaiah, Hindu, Aged about 39 years, Coolie, resident of Bhimavaram Village of Ulavapadu Mandal of Prakasam District. 10. Smt. Menda Kotamma, W/o.Koteswara Rao Hindu, Aged about 34 years, Resident of Kanumalla Village, S.Konda Mandal, Prakasam District. 11. Choppara Lakshamma, W/o.Late Peda Ramaiah, Aged about 64 years, Hindu, Coolie, resides at Ponnuru Town & Mandal of Guntur District. 12. Smt. Duggirala Santha, W/o.Late Narasimham, Aged about 47 years, Hindu, Coolie, resides at Ponnuru Town & Mandal of Guntur District. 13. Chirithoti Sujatha, W/o.Subba Rao, Aged about 44 years, Hindu, Coolie and resides at Atmakur Village of Ulavapadu Mandal of Prakasam District. 14. Choppara Vasu, S/o.Late Peda Ramaiah, Aged about 41 years, Hindu, Coolie, resides at Ponnuru Town & Mandal of Guntur District. 15. Chopara Kondalu, S/o. Late Peda Ramaiah, Aged about 39 years, Hindu, Coolie, resides at Ponnuru Town & Mandal of Guntur District. 16. Smt. Mannam Ramanamma, W/o.Koteswara Rao, Aged about 37 years, Hindu, Coolie, and resides at Karumanchi Village of Tangutur Mandal of Prakasam District. 17. Choppara Ravi, S/o. Late Peda Ramaiah, Aged about 35 years, Hindu, Coolie, resides at Ponnuru Town & Mandal of Guntur District. 18. Smt. Dasari Bujji, W/o.Kondaiah, Aged about 33 years, Hindu, Coolie and resides at Dondapadu Village of Kandukur Mandal of Prakasam District. …Appellants/plaintiffs/defendants And Smt. Yeturi Venkata Subbamma, W/o.Seshareddy, Aged about 58 years, R/o.Kanumalla Village, Singarayakonda Mandal, Prakassam District. …Respondent/Appellant/Defendant THE HON’BLE SRI JUSTICE GODA RAGHURAM S.A. No.1205 of 2008 JUDGMENT: This second appeal is directed against the judgment and decree dated 19-02-2008 of the Learned Senior Civil Judge, Kandukur, Prakasam District allowing the appeal preferred by the respondent herein and reversing the judgment and decree dated 28-10-1999 of the Learned Principal Senior Civil Judge, Kandukur, Prakasam District in O.S. No.42 of 1994. The appellants are the plaintiffs and the respondent herein is the sole defendant in the suit. For convenience the parties are referred to as arrayed in the suit. THE CASE OF THE PLAINTIFF: The appellant Nos.1 to 3 herein filed the suit for declaration of the title and consequent permanent injunction. In support of the claim it was averred in the plaint that one Sri Matta Linga Reddy of Kanumalla Village purchased four acres of agricultural land in Sy.No.68 of the village in a Court sale pertaining to the District Munsif Court, Kaniguda around 1934 and was in possession and enjoyment of the same since then. The plaintiff’s father Bangaraiah purchased the suit scheduled land from Matta Linga Reddy for Rs.200/- under an oral agreement of sale in 1940 in the presence of witnesses and was put in possession by Linga Reddy. Since then, the father Sri Bangaraiah and after his demise his sons, the plaintiffs, have been in continuous possession and enjoyment of the property. Linga Reddy settled an extent of Acs.0.20 cents in favour of Matta Venkat Reddy and another extent of two acres in favour of his daughter, the defendant, under a registered settlement deed dated 20-12-1949, being the remaining extent of land after sale of the suit schedule property in favour of the plaintiff’s father Sri Bangaraiah. The land settled in favour of the defendant is to the north-east corner of the suit schedule property. The Plaintiffs have been enjoying the scheduled property since the purchase in 1940 by the father Bangaraiah and the plaintiffs have also perfected their title by adverse possession. Since the defendant was claiming a right in the schedule property and threatening them with dispossession, they filed the suit. THE CASE OF THE DEFENDANT : The original owner Sri Matta Linga Reddy settled two acres of land during his lifetime in favour of his daughter, the defendant. Thereafter, Matta Linga Reddy died intestate leaving behind his widow and the defendant as his heirs. Thus the entire four acres of land purchased by Matta Linga Reddy in the Court sale was in possession and enjoyment of the defendant and she has absolute rights over the said extent of land. The suit schedule property is part of the schedule property in O.S. No.221 of 1980 on the file of the Trial Court, filed by the defendant against 21 persons who are friends and relatives of the plaintiffs, for declaration of her title in respect of the entire extent and for the alternative relief of partition and separate possession of her share of four acres. Two years ago a preliminary decree was passed in the said suit and in I.A. No.512 of 1994 the defendant applied for a final decree which is pending. The plaintiffs, at the instance of the defendants in O.S. No.221 of 1980, have filed this frivolous suit with a view to delay and protract the final decree proceedings in I.A. No.512 of 1994 in O.S. No.221 of 1980. The plaintiffs have no right, title, interest, possession or enjoyment ever in the suit schedule property; the first plaintiff has been residing in Hyderabad and not in the village. The suit is also misconceived for non-joinder of necessary parties i.e., impleading the defendants in O.S. No.221 of 1980. P.W. Nos.1 to 4, including the first plaintiff as P.W.1, were examined and exhibits A.1 to A.17 were marked on behalf of the plaintiffs while the sole defendant examined herself as D.W.1 apart from D.W.2 and exhibits B.1 to B.13 were marked on her behalf. The village administrative officer of Kanumalla Village was examined as P.W. 1 and exhibits X.1 to X.10 were marked to that witness. The Trial Court framed three principal issues: (a) Whether the plaintiffs are entitled for permanent injunction in respect of the suit schedule property; (b) Whether the defendants in O.S. No.221 of 1980 are proper and necessary parties to this suit; and (c) Whether the defendant has right, title and possession of the property. The Trial Court held that the defendants in O.S. No.221 of 1980 are neither proper nor necessary parties to the suit. The third issue as initially framed was reframed to read whether the plaintiffs are entitled for declaration of their title to the plaint schedule property. On this issue the Trial Court negatived the plaintiff’s claim to title on the basis of the oral agreement of sale of 1940 on the ground that the value of the transaction being Rs.200/- such alienation is contrary to Section 17(b) of the Registration Act. The Trial Court however upheld the plaintiff’s claim of title to the property by adverse possession and consequently declared on Issue – 1 that the plaintiffs are entitled to permanent injunction. Aggrieved the defendant preferred an appeal in A.S. No.36 of 1999. In allowing the appeal the lower Appellant Court on an independent, critical and detailed analysis of the evidence on record held that the plaintiffs failed to establish their title by adverse possession for the continuous period of twelve years either by exhibits A.3 to A.8 [receipts – originals marked as exhibits X.5 to X.10]; by No.3 adangals being exhibits A.11 to A.14; by Ex. A.10, the 10-1 adangal copy; or by exhibit A.9, the letter dated 12-03-1994 by the village administrative officer which does not mention the particular period during which the plaintiffs claim to have been in possession of the schedule property; and concurred with the conclusion of the Trial Court that exhibits A.3 to A.14 do not establish the claim of the plaintiffs to having perfected title to the suit schedule property by adverse possession. The lower Appellate Court faulted the conclusion of the Trial Court (as to the plaintiffs having perfected their title by adverse possession) on the basis of exhibits A.13 and A.17 and the oral evidence of P.W.’s 2 to 4. The lower Appellate Court held that the boundary recitals in exhibits A.17 & B.13 [the certified copies of the registered settlement deed dated 20-02-1949 executed by Matta Linga Reddy settling an extent of Acs.02.00 in favour of the defendant and the certified copy of the preliminary decree (in O.S. No.22 of 1980)] cannot constitute credible and probative evidence to establish the prescriptive title asserted by the plaintiffs. It is also held that the oral evidence of P.W.’s 2 to 4 unsupported by documentary evidence is insufficient to establish the plaintiff’s claim to title by adverse possession. On this reasoning the judgment and decree of the Trial Court was reversed. It requires to be noticed that during the pendency of the appeal A.S. No.36 of 1999, plaintiff Nos.1 & 2 (respondent Nos.1 & 2 in the appeal) died and respondent Nos. 4 to 10 and Nos.11 to 18 were brought on record as legal representatives of these plaintiffs and are arrayed as appellant Nos.4 to 10 and Nos.11 to 18 herein. Sri T. Sreedhar, the learned counsel for the appellants inter-alia contends that the lower Appellate Court failed to appreciate that in exhibits A.1 and A.2, the registered sale deeds dated 04-12-1962 and 30-12-1965 respectively, the suit schedule property is described as property belonging to the plaintiff’s father Bangaru (Bangaraiah); that this documentary evidence of instruments which are more than thirty years old are relevant and establish the title of the plaintiffs to the suit schedule property as well as their continuous possession and enjoyment for the relevant period. The above contention does not merit acceptance. It is the admitted case of the plaintiffs that there was an oral agreement of sale in their favour in 1940. This transaction which would not convey title to the plaintiffs in view of the provisions of Section 17 of the Registration Act. Exhibit A.1 is a registered sale deed dated 04-12-1962 in respect of a property situated to the East of the schedule property and to the South of the uncontested property of the defendant (derived by her under the settlement deed dated 20- 02-1949 executed by her father Matta Linga Reddy). Exhibit A.1 is executed by D. Pedda Kondaiah, Chinna Kondaiah S/o. Narsaiah and Subbaiah S/o. Pitchaiah in favour of Choppara Ankaiah, Achamma, Mannam Ramaiah and T. Venkata Subbaiah, wherein the northern boundary is described as land belonging to the defendant and others and the Western boundary as belonging to Choppara Bangaru and others. Exhibit A.2 pertains to land situate to the North of the suit schedule property and West of the two acres of land indisputably belonging to the defendant. This sale deed dated 13-12-1965 is executed by C. Kotilingaiah on his and his minor son Koteswara Rao’s behalf in favour of Choppara Venkata Subbaiah wherein the Eastern boundary is described as belonging to the defendant and the southern boundary as land belonging to Choppara Bangaru. These recitals of boundaries though in registered instruments of 1962 & 1965 would not establish the possession of the suit scheduled property by the plaintiffs. It is reasonable and appropriate to infer that having regard to the oral sale of the suit schedule property in 1940 in favour of the plaintiff’s father Bangaraiah, the people in the locality considered it as property to which Bangaraiah had valid title and this assumption is reflected in the schedules pertaining to the transactions covered by exhibits A.1 and A.2. Exhibits A.1 and A.2 would not thus establish possession of the plaintiffs since 1962 and 1965; being the dates of exhibits A.1 and A.2 dated 04- 12-1962 and 30-12-1965 respectively. Such recitals in any event would not legitimise the plaintiff’s claim of title on the basis of the oral sale of 1940, in view of Section 17 of the Registration Act, as rightly found and concurrently by the Courts below. It requires to be noticed that the lower Appellate Court rejected the plaintiffs claim to title by adverse possession since the claim to title was primarily on the basis of the oral sale in favour of the father Bangaraiah in 1940, by the original owner Matta Linga Reddy. Since such oral sale was invalid and not proved in accordance with law, the plaintiffs were held to be disentitled to plead title by adverse possession in the alternative. The Court below also held that the plaintiffs failed to prove their possession for the statutory period of twelve years prior to the date of filing of the suit as required by law; since Exs.A.3 to A.14 do not establish such possession as held by the lower Court as well, and since Exs.A.17 & A.13 relied on by the lower Court to hold in favour of the plaintiffs on the aspect of adverse possession does not establish possession for the statutory period and the mere oral evidence, of P.W.’s 2 to 4 is insufficient to establish possession in the absence of documentary evidence. The learned counsel for the plaintiffs/appellants herein relies on the decisions of the Supreme Court in Collector of Bombay v. Municipal Corporation of the city of Bombay and others[1] and State of West Bengal v. The Dalhousie Institute Society[2], to contend that notwithstanding alternative claims of title to the scheduled property under the oral sale of 1940 and by adverse possession; if the plaintiffs are able to establish adverse possession for the statutory period, they would be entitled to declaration of title though the plea of title under the oral sale is not proved (on account of non-compliance with the provisions of Section 17 of the Registration Act). In Collector of Bombay (1) supra, the facts are: In 1865 the Government of Bombay having decided to construct an eastern Boulevard, called upon the Corporation of Justices of Peace for the City of Bombay, the predecessor in title of the Municipal Corporation of Bombay (Mumbai), to remove its then existing fish and vegetable markets from the site required for the construction of the Boulevard. The then Municipal Commissioner applied for the site set aside for exhibition buildings on the Esplanade for construction of a new market as the existing markets could not be re-located until new markets are provided. In December, 1865 the Architectural Improvement Committee informed the Government that it had no objection to the proposed site of about 7 acres being “rented to the Municipal Commissioner”. Consequently in December 1865 the Government approved grant of the site and ordered that the plans should be submitted for approval; and that no rent should be charged from the Municipality as the markets, like other public buildings, would be for the benefit of the whole community. Pursuant to the resolution of the Government, possession of the site was given to the Municipal Commissioner, but no formal grant executed as required by the operating Statutes. The Municipal Commissioner at the expense of Corporation funds got the site filled up and leveled. The plans were also approved by the Government and the market buildings were erected by the Corporation at considerable expense. The Municipal Corporation of Bombay, incorporated in 1888 as the successor Corporation continued in possession of the land and buildings without paying any rent to the Government, according to the Government Resolution of 1865. In 1938, the Collector of Bombay informed the Municipal Commissioner the proposal to assess the land occupied by the Crawford Market under Section 8 of the Bombay City Land Revenue Act II (2) of 1876. In 1940, the Collector passed the assessment. The majority of the Constitution Bench [Per Kania C. J., and Bose JJ.; with Chandrasekhara Aiyar J concurring, but Patanjali Sastri J., dissenting] held that though the possession of the Corporation and its predecessor in title was without legal title, nevertheless holding possession of the land under the colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market; such possession not being referable to any legal title, was adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title entered possession; and as the possession continued openly, as of right and uninterruptedly for over 70 years, the Corporation acquired limited title to it, i.e., the right to hold the land in perpetuity and free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The Supreme Court majority held that the immunity from the liability to pay rent was as much an integral part or an inseparable incident of the title so acquired as was the obligation to hold the land for the purposes of a market and for no other purpose. In The Dalhousie Institute Society’s case (2) supra, the dispute pertained to title to the compensation amount awarded in land acquisition proceedings to the site of the Institute building, the appellant claimed the entire amount as payable to it, the respondent society similarly claimed exclusive entitlement to the compensation. Thus the question of title to the land fell for consideration. The dispute as to entitlement to the compensation amount arose on acquisition of the premises at No.34 Dalhousie Square, under the West Bengal land (Requisition and Acquisition) Act II of 1948. On a reference of the dispute for resolution, the Special Land Acquisition Judge held that although the grant by the Government in favour of the institute was invalid, the Institute was in possession adverse to the Government for over 60 years and in consequence had perfected its title by such adverse possession, therefore the compensation money in respect of the site belongs to the Institute and not to the Government. It was further held that since the intention of the Government while granting the land to the Institute was to provide a site solely for the construction of a Dalhousie Institute and not for any other purpose, the respondent is in the position of a trustee of the site and the compensation amount could not be withdrawn except for the purpose of acquiring a new site for the purpose for which the original grant was intended to be made. The rival parties preferred appeals to the Calcutta High Court. The Calcutta High Court by the order dated 23-06-1959 while retaining the appeals and cross-objections for further adjudication directed the Special Land Acquisition Judge to record additional evidence for throwing further light on the controversy between the parties as to title to the property. Eventually the High Court by the judgment of September, 1963 agreed with the conclusions of the Special Land Acquisition Judge and dismissed the appeal by the Institute and the cross-objections of the Government. Relying on the Constitution Bench judgment in Collector of Bombay (1) supra, the Supreme Court held that in the absence of any material to show that the grant was made by the Government in favour of the Institute in the manner required by law, it had no title to the property qua the grant. However, since the Institute had been in open, continuous and uninterrupted possession and enjoyment of the site for over 60 years, such possession of the respondent inheres title by adverse possession. Consequent on such finding and concurrence with the elucidation of facts and principles of law by the Courts below, the Government’s appeal was dismissed by the Supreme Court. The above binding precedents spell out the principle that though a party may claim title under an instrument of conveyance as well as by adverse possession, if the claim to title by conveyance is not established on account of any invalidity in the instrument of conveyance or otherwise, the claim to title on the basis of adverse possession may still be urged. Even in such circumstances, the claim to title by adverse possession would be upheld only if the ingredients of adverse possession are established by the party so claiming and for the prescribed statutory period. In the case on hand and on the basis of the decisions of the Supreme Court in Collector of Bombay and The Dalhousie Institute Society (1 & 2) supra, the plaintiffs are entitled to claim title to the suit schedule property on the basis of adverse possession notwithstanding the alternative claim to title under the oral agreement of sale of 1940 being unsustainable. Since the oral agreement of sale of 1940 is invalid for non-compliance with the provisions of the Registration Act the plaintiffs may well fall back on the alternative plea of title by adverse possession. The reasoning of the lower Appellate Court that the plaintiffs are disentitled to claim title by adverse possession since their primary claim to title was under the oral agreement of sale, is therefore incorrect. However, this error in the analysis of the lower Appellate Court would not entitle the plaintiffs to a decree of declaration of title nor to a reversal of the conclusion of the lower Appellate Court. As rightly analysed by the lower Appellate Court, the plaintiffs failed to establish exclusive possession of the suit schedule property for the relevant statutory period of twelve years anterior to the filing of the suit either on the basis of Exs.A.3 to A.14 or Exs.A.17 & B.13. The mere oral testimony of P.W.’s.2 to 4 unsupported by any documentary evidence is as rightly by the lower Appellate Court insufficient to establish such adverse possession. The learned counsel for the appellant Sri Sreedhar also places reliance on the judgment of Supreme Court in Laxmi Ram and others v. Bietshwar Singh and others[3] for the proposition that the finding of a Court vitiated on account of an error of mis- appreciation and non-appreciation of the evidence on record constitutes a substantial question of law liable to be considered in a second appeal. In view of the analysis above, this decision is of no assistance to the appellants herein. Sri Sreedhar, learned counsel for the appellants relying on the decision of a learned single Judge in Smt. Urmila and others v. Bhogiram[4] contends that though the plaintiffs claim to title is not established, still the relief of an injunction ought to have been granted, in view of the established possession of the plaintiffs and that the failure of the lower Appellate Court in affirming the grant of injunction granted by the Trial Court is an error that should be corrected in this second appeal. In Smt. Urmila (4) supra in a second appeal, the Madhya Pradesh High Court while concurring with the concurrent findings of the trial and of the lower Appellate Court rejecting the plaintiffs/appellants suit for declaration of title however allowed the second appeal in part and affirmed the decree of injunction granted by the Courts below. In the case on hand, the plaintiff’s claim as to possession of the suit schedule property is on the basis of the oral evidence of P.W.’s.2 to 4; the documentary evidence of Exs.A.3 to A.14; and Exs.A.1 and A.2. Exhibits A.1 and A.2 are the registered sale deeds dated 04-12-1962 and 30-12-1965. The Exhibits A.1 and A.2 sale deeds, in the schedule to the properties covered by them, describe the plaint schedule land as belonging to the father of the plaintiffs, Bangaru (Bangaraiah). The recitals in Exs.A1 & A.2 do not establish possession of the plaintiffs or their father Bangaraiah, of the plaint schedule property. The Courts below concurrently found that Exs.A.3 to A.14 do not establish possession of the plaintiffs in respect of