* THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.126 OF 2011 % 10.06.2011 Between # 1.Harijana Chinna Thippanna and another. … Appellants $ 1. Harijana Eramma and others. ...Respondents ! COUNSEL FOR PETITIONER: Sri B.Vijaya Bhasker ^ COUNSEL FOR RESPONDENT No.1,2,4,5 & 6: Sri A.V.Sivaiah ^ COUNSEL FOR RESPONDENT No.: < Gist: > Head Note: ? CITATIONS: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.126 of 2011 JUDGMENT: The respondents filed O.S.No.160 of 2000 in the Court of the Principal Junior Civil Judge, Adoni against the appellants for the relief of declaration of title and recovery of possession of the suit schedule property, a residential house in H.Muravani Village of Peddakadabur Mandal, Kurnool District. They pleaded that late Smt.Sunkulamma, mother-in-law of respondent No.1 and grand-mother of respondent Nos.2 to 6, was the original owner of the suit schedule property. After her death, they have succeeded to the property. They are said to have shifted to Mumbai for livelihood and that taking advantage of the same, the appellants have broke open the lock in the year 1994 and entered into possession. Reference was made to the exchange of notices and thereafter, the suit was filed. The appellants filed a written statement stating that they purchased the suit schedule property from one Veera Reddy under a sale deed, dated 11.02.1970. It was urged that Smt.Sunkulamma was indebted to P.Veera Reddy and as an adjustment of the debt, Sunkulamma orally sold the said property to him. They have also raised the plea of adverse possession. The trial Court decreed the suit through judgment, dated 03.06.2009. Aggrieved thereby, the appellants filed A.S.No.25 of 2009 in the Court of the II Additional District Judge, Kurnool at Adoni. The appeal was dismissed on 09.12.2010. Hence, this second appeal. Sri B.Vijaya Bhaskar, learned counsel for the appellants, submits that the suit was filed long after the accrual of the cause of action to the respondents and that the trial Court ought to have rejected the plaint. He further submits that the oral and documentary evidence proved the fact that the title to the property has passed on to the appellants in the year 1970 and that ever since then, they are in possession and enjoyment of the same by paying taxes etc. He also submits that even if any doubt as to the title existed, the plea of adverse possession raised by the appellants ought to have been accepted. Sri A.V.Sivaiah, learned counsel for the respondents, on the other hand, submits that the concept of oral sale is totally unknown to law and that no title as such has accrued to the appellants vis-à-vis the suit schedule property. He further submits that the plea as to acquisition of tile to the property through a sale on the one hand and adverse possession on the other, would lead to a contradiction in terms. He also submits that a finding was recorded by the trial Court to the effect that the possession of the suit schedule property was taken by the appellants by breaking open the lock somewhere in the year 1994 and that the appellants cannot disown the version of their own witnesses. The respondents filed the suit for the relief of declaration of title and recovery of possession of an item of immovable property. The appellants have on the one hand pleaded that they purchased the property in the year 1970 through Ex.B1 and on the other raised the plea of adverse possession. The trial Court framed and following issues and additional issues for its consideration: Issues: (1) Whether the plaintiffs are entitled for declaration of right and title over the suit schedule house? (2) Whether the plaintiffs are entitled for delivery of possession of the suit house? (3) Whether the suit house was fallen to the share of defendant No.2 during the partition about 25 years ago? Additional Issues: (1) Whether the defendants perfected their title by adverse possession? (2) Whether the defendants had occupied the suit schedule house forcibly in the year 1994 as contended by the plaintiffs? On behalf of the respondents, P.Ws.1 to 3 were examined and Exs.A1 to A5 were filed. On behalf of the appellants, D.Ws.1 to 6 were examined and Exs.B1 to B17 were filed. The suit was decreed by the trial Court. In A.S.No.25 of 2009, the lower appellate Court framed as many as seven points for its consideration, namely: (1) Whether the plaintiffs as legal heirs and representatives of Harijana Mallana have got right and title over the plaint schedule property? (2) Whether the plaintiffs are entitled for declaration of right and title over the suit schedule house? (3) Whether the defendants in the year 1994 trespassed into the suit schedule house and occupied it unauthorisedly? (4) Whether the plaintiffs are entitled for delivery of possession of the suit house? (5) Whether the suit house was fallen to the share of defendant No.2 during the partition about 25 years ago? (6) Whether the judgment and decree of the Principal Junior Civil Judge’s Court, Adoni, in O.S.No.160 of 2000 dated 03.06.2009 requires varying or modification or confirmation? (7) Whether the defendants perfected the title by adverse possession? Ultimately, the appeal was dismissed. In this second appeal, the principal ground urged by the appellants is that the trial Court did not frame any issue on the question of limitation at all and still dismissed the suit as barred by limitation. It is no doubt true that even if a defendant in a suit fails to raise any issue as to the limitation, it is obligatory on the part of the Court to examine the same under Section 3 of the Limitation Act. However, the necessity for the trial Court to undertake such an exercise was obviated on account of the fact that the appellants raised the plea of adverse possession and that naturally, covered the question of limitation. It is needless to mention that the burden to prove the plea of adverse possession squarely rests upon the defendant, who raises it. Admittedly, the property was owned by Smt.Sunkulamma, the ancestor of the respondents. The appellants are totally strangers to the family. The appellants or their vendor could have derived any right or title over the property either by operation of law or through act of the parties. The question of any title accruing to the appellants or their vendor by operation of law does not arise, since they did not claim any proximity or relation to Smt.Sunkulamma. The only possibility is through act of parties. The appellants pleaded that Smt.Sunkulamma was indebted to their vendor Veera Reddy and as an adjustment thereof, she had effected an oral sale of the property. The plea has to be taken note of, only to reject it. The concept oral sale is totally unknown to law. At any rate, the only person who could have substantiated the nature of such a transaction was Veera Reddy, the vendor of the appellants. He was not examined. His daughter, who deposed as D.W3, clearly stated that she has absolutely no knowledge about the entire issue, so much so, she did not even visit the village. Therefore, the appellants miserably failed to prove the accrual of title to them. Even if an individual fails to prove his title, he can successfully resist a suit, if he is able to establish the adverse possession. Here, an important aspect needs to be taken note of. A defendant, who claims title to an item of property on the basis of sale, cannot effectively raise the plea of adverse possession. By its very nature, adverse possession comes into picture only when a defendant, who unequivocally recognises the title of another person, occupies it almost as a matter of challenge, and remains in possession for the stipulated period of time. Admission of title in respect of a property and claiming transfer thereof through process known to law, is almost an antithesis to the plea of adverse possession. Hence, there existed a serious flaw in the plea of adverse possession raised by the appellants. Assuming that the plea was otherwise tenable, it needs to be seen as to whether the appellants have proved it. Though an assertion was made that the appellants entered into possession of the property from the date of sale effected through Ex.B1 i.e. 11.02.1970, the record did not support them. The tax receipts marked as Exs.B2 to B12 for the years from 1980 to 1986 etc., were found to be not relevant. The only receipt that was held to be relevant was of the year 1990. The oral evidence, however, disclosed that the appellants have broke open the lock of the premises somewhere in the year 1994. This was elicited from the witnesses examined by the appellants themselves. Therefore, the appellants failed to prove the plea of adverse possession. The trial Court and the lower appellate Court have examined the matter from the correct perspective and this Court does not find any substantial question of law in the second appeal. The second appeal is accordingly dismissed. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:10.06.2011 Note: L.R. copy to be marked. kdl