THE HON’BLE SRI JUSTICE G.CHANDAIAH A.S.NOS.1845 AND 1846 OF 2993 COMMON JUDGMNT Heard both the counsel. 2. As both the appeals arise out of the common judgment and decree dated 30.06.2003 passed by the court of III Additional Senior Civil Judge, Vijayawada in O.S.Nos.303 of 1997 and 479 of 2000, and the parties are common and the subject matter is connected, they are being disposed of by this common judgment. 3. O.S.No.303 of 1997 was filed by one Dr.R.Sampath Kumar s/o late Madhusudhan Rao, through his General Power of Attorney Dr.Chigurupati Nageswara Rao against the defendant – Pidikiti Venkataratnam, for ejectment of the defendant and for delivery of vacant possession of the plaint schedule property and for past profits. 4. O.S.No.479 of 2000 was filed by the defendant in the suit in O.S.No.303 of 1997 – Pidikiti Venkataratnam, against the plaintiff in O.S.No.303 of 1997 i.e., Dr.R.Sampath Kumar and his sister Ms.Kakani Sandhya, for specific performance of the suit agreement of sale dated 22.10.1971 executed by the father of the defendants late Ramavarapu Madusudhana Rao in favour of the plaintiff for a valuable consideration of Rs.16,200/- in respect of the suit schedule property. 5. The suit schedule property in both the suits is as under: “Immovable property in an extent of Ac.0-56 cents (0.227 hectares) in D.No.189/7 with terraced building therein situated at Enikepadu Village, Gram Panchayat limits, Vijayawada Rural Mandal, within Sub Registry of Gunadala, Vijayawada, Krishna District being bounded by: East - Koneru Subbaiah’s house South - Koneru Sree Ramulu’s Vacant site etc., West - Yalamcnchili Narasimha Rao’s house. North - Yalamchili Veera Venkaiah @ Tataiah’s house.” 6. The plaint averments in O.S.No.303 of 1997 are that the plaintiff’s father late Madusudhana Rao and the deceased elder brother of the defendant, by name Pidikiti Sreerama Murthy originally belong to Punadipadu village in Kankipadu mandal, Krishna District and they were close friends. In the fifties, like all other enterprising men, the two friends left the village to better their prospects in urban areas and selected Vijayawada and Guntur, for their operations. Plaintiff’s father purchased within the panchayat limits of the growing suburban village of Enikipadu, an extent of Ac.0-56 cents of dry land in Door No.189/7 with a tiled house, a tobacco barn with a single furnace and a thatched shed, all enclosed by a compound wall, by a registered sale deed 10-9-1954 from Mandava Narasaiah and his sons, described in detailed in the plaint schedule attached to the plaint. In course of time, the owner late R.Madhusudhana Rao, had removed the thatched house made into a terraced building, thus improved the property in his life time. As he was preoccupied with the growing activities of the cinema exhibition, catering and other business activities undertaken by himself and his partner late Sreerama Murthy at Guntur, it became necessary for the plaintiff’s father to keep somebody in charge of the suit property. The defendant, who is no other than the brother of his friend and partner, was thought to be the right person to be confided in and entrusted with the custody and maintenance of the valuable house property. Thus the defendant shifted from Punadipadu, to occupy and live in the schedule house as a licencee. While so, the father of the plaintiff passed away in June, 1975 leaving behind him, his mother Ankamma, widow Javahari Bai, plaintiff and one daughter by name Sandhya. As the said persons executed a relinquishment deeds and will in favour of the plaintiff, this plaintiff became the owner of the entire plaint schedule property along with other properties. At the time of death of his father, the plaintiff was doing his post graduation in medicine and the said P.Sreeram Murthy, was in sole management of the business firms and other properties. The plaintiff’s mother also died in the year 1977. The plaintiff shifted to the United Kingdom and then to U.S.A. for further studies. Before leaving the country, the plaintiff executed a joint power of attorney in August, 1979 in favour of the said Sreerama Murthy and his wife Smt. Santisri, to conduct the business and to deal with the properties. Taking undue advantage of the absence of the plaintiff in the country, the said Sreerama Murthy conceived the idea of preparing ground for grabbing the properties of the plaintiff and enriching his own family members. Under those circumstances, in July, 1993 the plaintiff asked the said Sreerama Murthy and insisted for accounts. But he refused to disclose the same. So, the plaintiff herein cancelled the power of attorney executed in favour of the said Sreerama Murthy and appointed his father-in-law i.e., the power of attorney holder in the present suit, as a power of attorney holder and requested him to take steps to save and secure the properties. The plaintiff filed suit in O.S.No.7/1994 on the file of Subordinate Court, Guntur against Sreerama Murthty, for dissolution of partnership firm and for rendition of accounts. The plaintiff was also obliged to sue the co-owner for the partition of other joint properties as O.S.No.282/1995. Having come to know about the plaint schedule house and its continued occupation by the defendant, the power of attorney holder of the plaintiff called on the defendant to vacate and handover possession of the property. But the defendant sought for time in the beginning and went on gaining time. Therefore, a registered notice was issued on behalf of the plaintiff on 30.5.1996, as the owner of the property to the defendant to vacate the plaint schedule property. The defendant gave a reply notice on 27.6.1996 with false allegations. Having seen the absurd contentions of the defendant, by letter dated 28.11.1996 the plaintiff’s advocate, demanded to send a copy of the contract of sale, said to have been executed by the plaintiff’s father in October, 1971. In response to the same, the defendant sent photo copy of the said document sought to be relied on by him to plead ‘perfection of title by prescription’, with a covering letter dated 17.12.1996. Even a casual perusal of the writing, signature of late Madhusudhana Rao and the contents of the said document, would reveal that they are forged sale papers for the nefarious purpose. The further contention of the defendant in the notice with regard to the prescription of title to the suit schedule property, is not acceptable, since the possession of the defendant is a permissible one. The contention of the defendant in the notice that he purchased the property under an oral sale and followed by a written one and that he perfected the title by adverse possession are self contradictory. The document relied on by the defendant is unlawful and cannot be countenanced in any court of law. The defendant has no means to purchase the property. The defendant has no right to be in possession of the property. The plaint schedule property is a valid property and the plaint schedule site will get a minimum of Rs.2,500/- per month. So, the plaintiff is entitled for mesne profits since December, 1996. With these averments, the suit for ejectment and for mesne profits is filed by the plaintiff through his General Power of Attorney. 7. The defendant filed written statement and stated that the suit is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It is stated that the plaintiff has no cause of action to file the suit and the cause of action alleged in paragraph no. 13 of the plaint, is absolutely false and is only invented for the purpose of the suit. It is also quite significant to note that the plaint contains several vague allegations and the attorney of the plaintiff conveniently kept silent even about the specific terms while not giving the dates and time as to when the right to sue occurred. As such, the suit is liable to be rejected. While admitting the close friendship between the father of the plaintiff and his brother Pidikiti Sreerama Murthy, the defendant further stated that the father of the plaintiff has purchased an extent of Ac.0-56 cents of dry land in D.No.189/7 of Enikepadu village with a tiled house, a tobacco baron with a single furnace and a thatched shed, all enclosed by a compound wall by a registered sale deed dated 10.9.1954. The said sale deed was executed by Mandava Bhushaiah on behalf of himself and his minor sons and it is incorrect to allege that the vendor was Mandava Narasaiah. 8. In the written statement the defendant specifically denied the plaint averments, and further stated that he is not disputing the rights and title of the plaintiff’s father, as the plaintiff’s father never claimed any right and title over the plaint schedule property after he sold it to the defendant. The defendant is the younger brother of late Pidikiti Sreerama Murthy, who was the partner of the plaintiff’s father. The defendant purchased the schedule property of Ac.0-56 cents along with super structures therein from late Madhusudhana Rao, the father of the plaintiff, under an agreement of sale dated 22.10.1971 for a valuable consideration of Rs.16,200/- and after receiving the sale consideration, the said Madhusudana Rao delivered the property on the same day. Ever since, the defendant has been in continuous and uninterrupted possession and enjoyment of the said property. Subsequently, in the year, 1973, even during the life time of late Madhusudana Rao, the defendant got plans approved by the Gram Panchayat, Enikepadu and constructed a terraced building in the schedule site and has been living in it by paying necessary taxes to the panchayat, without any obstruction from anybody. If the defendant had no right or title over the schedule property, the Gram Panchayat itself would have objected to grant permission to construct the terraced house in the schedule property and disapprove the plans submitted by the defendant in his name and even late Madhusudana Rao would have objected for the same. On account of the close association of the defendant and his brother with the said Madhusudhana Rao, the defendant never insisted for a registered sale deed in his favour. Even assuming for the sake of argument, but not conceding, that defendant was advised and abetted by his brother late Sirama Murthy to appropriate the schedule property, he would have got the agreement of sale registered by his brother, who was then power of attorney holder of the plaintiff along with his wife Smt. Santhisri. Though in the absence of the registered sale deed in his favour in respect of the said Ac.0-56 cents of land, the defendant has been absolute owner of the said property by virtue of long, continuous and uninterrupted possession of the property. Thus, he perfected his title and right in the said property, by prescription. The said Madhusudana Rao lived for nearly 18 years after the defendant admittedly entered into possession of the said property and during the said period, the said Madhusudana Rao never disputed, nor raised his little finger with regard to the rights or possession of the defendant over the property. It is respectfully submitted that the defendant perfected his title by prescription even during the life time of the said Madhusudana Rao and as such the said Madhusudana Rao himself had no right to dispute the title and possession of this defendant in respect of Acs.0-56 cents of land. Moreover when late Madusudana Rao, during his life time had never questioned the defendant’s title or possession over the property, his legal heirs have no locus standi to file this speculative suit against the defendant in view of the sale agreement dated 22.10.1971. 9. It is further stated that the plaintiff is fully aware of the sale transaction between his father and the defendant and that he cannot make any claim against the defendant with reference to the plaint schedule property. However, the attorney of the plaintiff, who is no other than his father-in-law, being the anchor of this litigation, got issued a speculative registered notice dated 30.5.1996 with all false, frivolus and vexatious allegations and as this defendant got issued a reply notice dated 27.6.1996 putting forth the truth. The attorney of the plaintiff got filed this suit almost 10 months later in a speculative manner. 10. In view of the above facts and circumstances, it is stated that the allegations that the father of the plaintiff permitted this defendant to reside in the schedule property and that the defendant is in the permissive possession of the property, is an out and out lie. Though the schedule property originally belonged to late Madhusudana Rao, his son, the plaintiff herein never got any right over the schedule property as his father late Madhusudana Rao sold away the same to the defendant more than 16 years ago and the question of the schedule property devolving on the plaintiff, does not arise. Therefore, the defendant states that the plaintiff has no right, title or interest whatsoever in the plaint schedule property and the defendant is the absolute owner of the plaint schedule property, having perfected his title by adverse possession apart from the prescription. As such the plaintiff has no right to seek ejectment of the defendant and delivery of the possession and this suit which is filed for the said reliefs alone, is not maintainable without seeking declaration of title. 11. It is stated that any person who claims the relief of delivery of possession should prove that he was in possession of the property at any time during the 12 years prior to the filing of the suit. While so, the plaintiff was never in possession of the plaint schedule property at all and as such this suit is not within time and is barred by limitation. The plaintiff is put to strict proof that he was in possession and enjoyment of the plaint schedule property at any time within 12 years prior to the filing of the suit. 12. The defendant denied that the other heirs of late Madusudhana Rao i.e., the paternal grand mother, sister and mother of the plaintiff, by release deeds and will, had relinquished and bequeathed their interest respectively in favour of the plaintiff and he became the sole owner of the assets and estate left by his father, since plaintiff did not file any documentary evidence i.e., will or release deeds etc. and as such it cannot be considered that the plaintiff is the sole owner of the estate of his father. The other legal heirs also of late Madhusudhana Rao, who are necessary parties to the suit, have not been joined as co-plaintiffs. Hence the suit is bad for non-joinder of necessary parties. The plaintiff denied the claim with regard to mesne profits and stated that the suit is undervalued and with these averments, he sought for dismissal of the suit. 13. Based on the above pleadings, the trial court framed the following issues for trial: 1. Whether the agreement of sale dated 22.10.1971 for a value of Rs.16,200/- and delivery of possession on the same day after receiving full consideration, is true, valid and binding? 2. Whether defendant had perfected his title by continuous possession and enjoyment under the said agreement by prescription? 3. Whether the suit is barred by law of limitation? 4. Whether the suit is not maintainable for the reliefs prayed, without seeking the relief of declaration of title? 5. Whether the suit is bad for non-joinder of other heirs of late Madhusudhanarao? 6. Whether the defendant constructed the building after demolishing and removing the then existing super structures during the life time of Madhusudhana rao as claimed? 7. Whether there was a steep increase in the values of immovable property in the suit village, after the grant of certificate of value by the subregisty on 22.5.1996? 8. Whether the suit is undervalued? 9. Whether the Court fee paid is not correct? 10. Whether the plaintiff is entitled to the relief of vacant possession of the suit property and mense pofits? 11. To what relief? 14. As already noted above, the defendant in O.S.No.303 of 1997 filed the other suit in O.S.No.479 of 2000 for specific performance of the agreement of sale against the plaintiff in O.S.No.303 of 1997 and his sister. The plaint averments in O.S.No.479 of 2000 are that the plaintiff has purchased the immovable property in an extent of Ac.0-56 cents in D.No.189/7 of Enikepadu village, which is the plaint schedule property from one Ramavarapu Madhusudhana Rao, who is no other than the father of the defendants on 22.10.1971 for a valuable consideration of Rs.16,200/- and on even date after receiving the sale consideration, the said Madhusudhana Rao has executed an agreement of sale in favour of the plaintiff in respect of the plaint schedule property and possession was also delivered to him on the same day. Ever since, the plaintiff has been in continuous and peaceful possession and enjoyment of the schedule property without any interruption from anybody and subsequently in the year 1973, even during the life time of the said Madhusudhana Rao, the plaintiff got plans approved in his favour by Gram Panchayat, Enikepadu and accordingly he constructed a terraced building in the schedule property by investing huge amount of Rs.36,000/- and has been living therein by paying necessary taxes to the Gram Panchayat without obstruction from anybody. On account of close association with the said Madhusudhana Rao, the father of the defendants, the plaintiff never insisted him to execute and register the regular sale deed in his favour and subsequently the said Madusudhana Rao died on 3.6.1975 leaving behind him, his mother Ankamma, wife Jawahari Bai and the defendants, as his nearest legal heirs and subsequently the mother of the said Madhusudhana Rao died in the year 1977 and Jawahari Bai, the mother of the defendants also died in the year 1979 and thus the defendants are only the present existing legal heirs of the said Madhusudhana Rao. Both the defendants are aware of the sale transaction in favour of the plaintiff by their father late Madhusudhana Rao, but they did not raise any objection with regard to the said alienation by their father during his life time and even after his death, the plaintiff had no opportunity, nor had any occasion, to insist the defendants to execute and register the regular sale deed in his favour in respect of the plaint schedule property, since the 1st defendant is living abroad and also in view of the confidence reposed upon the defendants that they will not object or raise any dispute with regard to the schedule property forever, as the defendants are well aware of the sale transaction as stated supra. Thus, the plaintiff has become the absolute owner of the plaint schedule property having perfected his title by adverse possession apart from the prescription. While so, after a long period of twenty years, after the death of the said Madhusudhana Rao, the first defendant being instigated by his father-in-law viz., Dr.Chigurupati Nageswara Rao, and also taking advantage of the fact that there is no registered document in favour of the plaintiff in respect of the plaint schedule property, got issued a registered legal notice dated 30.5.1996 through his father-in-law as his General Power of Attorney holder to the plaintiff with all false, frivolous and vexatious allegations, demanding the plaintiff to vacate the plaint schedule property, while describing the plaintiff as a licencee in the plaint schedule property and the same was acknowledged by the plaintiff and he got issued a reply notice dated 27.6.1996 putting forth the truth. On receipt of the said reply, the G.P.A. holder of the first defendant got issued another notice dated 28.11.1996 requesting the counsel for the plaintiff to send a photo copy of the aforesaid agreement of sale, while denying the contents of the reply notice and setting up fallacious pleas. However, the plaintiff sent the photo copy of agreement of sale along with the rejoinder dated 17.12.1996. In spite of the reply notice and rejoinder got issued by the plaintiff, the first defendant has filed the suit in O.S.No.303 of 1997 through his father-in-law as his G.P.A. holder in a speculative manner, though he is aware that the plaintiff had perfected his title by prescription, apart from the adverse possession, over the plaint schedule property and he has no right to evict the plaintiff therefrom. 15. It is further stated that after securing the registration charges etc., he got issued a notice dated 15.4.1999 to the defendants demanding them to execute and register the regular sale deed in his favour at his costs and the same was acknowledged by the second defendant on 26.4.1999 and she neither issued any reply nor expressed her willingness to execute and register the regular sale deed in favour of the plaintiff and the first defendant has acknowledged the same on 5.5.1999 and got issued a reply notice dated 16.5.1999 with all false and untenable allegations while denying the contents of the notice issued by the plaintiff and as such the plaintiff had no other alternative but to file the present suit for specific performance of the agreement of sale dated 22.10.1971. With these averments, the suit for specific performance was sought to be decreed. 16. The 2nd defendant remained ex parte. 17. The 1st defendant filed written statement through his power of attorney holder. The defendant denied all the allegations made in the plaint. The contention of the defendant is that the suit is bad for mis-joinder of parties. The other allegations made in the plaint are denied. The contention of the first defendant is that his sister by name Sandhya and the paternal grandmother by name Ankamma, had executed a registered deed, relinquishing their shares in the estate of late R.Madhusudhana Rao on 15.7.1975 in favour of this defendant and in the name of his mother Jawahari Bai. Later, his mother also passed away, executing a registered will dated 26.4.1978 in favour of her son and thereby this defendant, has become the absolute owner of the plaint schedule property. So, this suit is bad for mis- joinder of parties. Late Madhusudhana Rao never executed any agreement of sale in favour of the plaintiff. It is a forged document. This suit is barred by limitation. The possession of the defendant over the plaint schedule property is a permissive one. As notice was issued to the plaintiff to vacate the plaint schedule property, he has no right to continue in permissive possession. The suit is barred by limitation. The said spurious document is inadmissible in a court of law. On the notice issued by the plaintiff, the defendant got issued a reply stating that as if there was a sale even in the year 1957 itself. The notice further reveals that possession was also delivered to him in the year 1957 itself. However, at present, the defendant is contending that this property was purchased by him under an agreement of sale in the year 1971. The plaintiff herein never made any construction. In fact late Madusudhana Rao has got the then existing structure of the baron, cattle shed etc., demolished and converted into a titled house with one terraced, on old walls with minor modifications. Whatever the modifications made were only as the agent of this defendant only. The averments made in the plaint are quite contrary to the averments made in the reply notice issued on behalf of the plaintiff. The plaintiff has no capacity to make any construction. The plaintiff never perfected his title by way of adverse possession apart from prescription. Having requested by the first defendant and his wife, the present G.P.A. had agreed to look after the litigation regarding this property. The plaintiff is not entitled to any relief. Hence, the suit was sought to be dismissed. 18. Based on the averments, the court below framed the following issues for trial: 1. Whether the agreement of sale dated 22.10.1971 is true and valid? 2. Whether the suit is bad for