IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.301 of 1999 BETWEEN Rachuri Kamalamma and another. …APPELLANTS AND Rachuri Ramakrishna. …RESPONDENT Counsel for the Appellants: Mr. MOHD. ILYAS Counsel for the Respondents: Mr. M. RAJAMALLA REDDY The Court made the following: - JUDGMENT: This is a defendants’ appeal against the judgment and decree of the lower appellate Court in A.S.No.26 of 1993 dated 24.02.1999 granting declaration of title and possession to the plaintiff/respondent herein reversing the judgment and decree of the trial Court in O.S.No.88 of 1986 dated 15.03.1993. 2. The facts, in brief, are that the respondent/plaintiff claims that he is the foster son of one Seshamma and Narayana since they had no male issues and out of love and affection, Seshamma executed a registered Will dated 05.01.1961 – Ex.A6 bequeathing the suit schedule property to the plaintiff reserving life estate in herself. The suit schedule property is said to have been purchased by Seshamma under a registered sale deed dated 06.07.1944 under Ex.A7. The plaintiff claimed that while Seshamma died on 15.09.1964 by virtue of Ex.A6 Will, he became the exclusive owner of the suit schedule property and has been residing in the suit schedule property along with Narayana. Later the plaintiff got married to one Nagamma, a staff nurse, and continued to live in the said house. The plaintiff alleges that during 1978 he had left Kadapa, as his wife was transferred to Mahaboobnagar District. The said Narayana continued to live in the said house and later, the said Narayana appears to have married D.W.1 and got children through her and it is alleged that in order to benefit the defendants, Narayana produced revocation Will Ex.B2 dated 10.05.1964 said to have been executed by Seshamma revoking Ex.A6 and bequeathing the property to Narayana. Based on the said revocation deed and setting title in favour of Narayana, under Ex.B3 dated 19.04.1976 Narayana got registered a gift deed in favour of D2. It is in those circumstances, the plaintiff issued legal notice, prior to suit, Ex.A1 dated 09.06.1979 and filed the present suit on 15.07.1986 for declaration of ownership and for recovery of possession and other reliefs. 3. The defendants resisted the suit by claiming that the Will under which the plaintiff claims the suit schedule property was revoked and later the defendants got exclusive title under Ex.B3 – registered gift deed. It is also alleged that the property actually belonged to Narayana but purchased in the name of Seshamma and that the claim of the plaintiff, who is out of possession from 1978, is bared by limitation. They also claim that the municipal authorities have mutated their names on the basis of Ex.B3 and as such, they in lawful possession and enjoyment of the property. 4. During the trial, both sides led oral and documentary evidence and the following issues were framed by the trial Court, out of which issues 2 and 4 are crucial. i) Whether the plaintiff is the foster son of Smt. R. Seshamma and Narayana? ii) Whether the registered Will dt. 5.1.1961 by R. Seshamma in respect of suit schedule property is valid and binding on the defendants 1 and 2? iii) Whether R. Narayana married 1st defendant in 1943 with the consent of his first wife Seshamm as alleged by the defendants? iv) Whether late R. Seshamma has revoked the Will dt. 5.1.1961 on 10.4.64 as alleged by defendants? v) Whether the gift deed dt.19.4.76 executed by late R. Narayana in favour of the 2nd defendant is valid and binding on the defendant No.2? vi) Whether the last will dt.15.6.79 executed by late Narayana is valid and binding on the plaintiff? vii) Whether the plaintiff is entitled for declaration of title and recovery of possession of suit schedule property? viii) To what relief? 5. The trial Court found on evidence that the defendants have proved Ex.B2 Will by examining the attestor D.W.2 and consequent upon upholding Ex.B2, the plaintiff’s suit was dismissed. On appeal by the plaintiff, the lower appellate Court has since reversed the said decree by rejecting Ex.B2 on various grounds. The said decree is assailed by the defendants. 6. Mr. M.V.S. Suresh Kumar, learned counsel for the appellants, has strenuously contended that Ex.A6 Will is not proved by the plaintiff in accordance with Section 68 of the Evidence Act and the suit for declaration is barred under Article 58 of the Limitation Act inasmuch as the plaintiff, being not in possession from June 1978, has filed the suit in July 1986 seeking declaration. Learned counsel also questions the finding of the lower appellate Court rejecting Ex.B2 by pointing out that there are no suspicious circumstances as understood by it. 7. On the contrary, Mr. P. Veera Reddy, learned counsel for the respondent/plaintiff supports the judgment of the lower appellate Court by contending that the suit being one for declaration and for recovery of possession, the same is governed by limitation as applicable to a suit for possession and as such, there is no impediment for entertaining the suit under Limitation Act. So far as the proof of Ex.A6 Will, relied upon by the plaintiff is concerned, learned counsel states that the very fact that Ex.B2 revocation is pressed into service by the defendants establishes Ex.A6. To the extent of the circumstances surrounding Ex.B2 is concerned, the learned counsel would rely upon the findings of the lower appellate Court as recorded in paras 19 and 20. 8. This second appeal is admitted by this Court on 26.03.1999 on the substantial questions of law as shown in grounds 2 to 6 of the memorandum of grounds of appeal. While grounds 2 to 5 deal with plea of limitation, as raised by the defendants, ground No.6 deals with the proof of Ex.B2 and as to whether the lower appellate court was justified in rejecting Ex.B2. 9. I have heard both the learned counsel in extenso and seen Ex.B2 from the record apart from the evidence of D.W.1. The circumstance that late Seshamma executed Ex.A6 Will during minority of the plaintiff and the said Will being a registered Will with the responsibility cast on the Seshamma’s husband – Narayana, to look after the plaintiff by itself is a strong circumstance in favour of the plaintiff. This also negatives the defendants’ plea that Narayana himself was the owner of the suit schedule property but he had merely purchased the same in the name of Seshamma. Secondly, when Narayana set up Ex.B2 revocation, the same ignores two important circumstances viz. that Seshamma and Narayana had a daughter born to them, who was provided separate house property under Ex.A8, even assuming that Seshamma was inclined to revoke the Will in favour of the plaintiff, who was the foster son, in natural course one would expect her to give the property to the only daughter – P.W.2. Secondly, Narayana is said to be working as a Pharmacist in Kadapa and came in contact with the first defendant and later said to have married her. It is the defendants’ case that the said marriage was with the consent of Seshamma but irrespective of any controversy on that aspect, Narayana was residing with the first defendant at places where the first defendant was posted and sometime they used to reside in the suit house also along with Seshamma. It is, therefore, unnatural to expect that Seshamma would execute a Will bequeathing the house property to Narayana when he is already married and living with the first defendant. Apart from these improbabilities, Ex.B2 when examined from the record shows that just below the signature of Seshamma some writing is visible to the naked eye. Whether the said writing has occurred on account of impressions of attesting witness or otherwise is a matter, which has been considered by both the Courts below and the lower appellate Court was of the opinion that the signature of Seshamma appears to have been overwritten. Further, Ex.B2 is an unregistered document, which seeks to cancel a registered Will – Ex.A6. These circumstances, in my opinion, are sufficient to support the findings of the lower appellate Court and it cannot be said that the said findings are perverse warranting interference under Section 100 of the Civil Procedure Code. 10. So far the question relating to limitation under Article 58 of the Limitation Act is concerned, it is well settled that a suit for declaration of title and recovery of possession would be governed by limitation as application to a suit for possession. The plaintiff in this case, admittedly, being out of possession from 1978, the suit yet filed on 15.07.1986 is clearly within the time. 11. Learned counsel for the appellants/defendants also stressed alternative contention that the possession of the defendants is perfected by adverse possession and relies upon that portion of the written statement where this alternative contention is raised. I am, however, unable to appreciate that as the entire case of the defendants is that the house belonged to Narayana, he himself dealt with the said house property after Ex.B2. When the plaintiff, Seshamma and Narayana were together living in the said house till 1978; after the plaintiff left the house to join his wife, Narayana continued to reside in the said house. It was, therefore, imperative for the defendants to establish as to when their adverse possession commenced. I do not find any material as to the period from which the said possession became adverse to plaintiff. Even otherwise, the possession of the defendants and Narayana was on the belief that they are the owners of the property and the same was not in defiance of the title of the plaintiff whereby it cannot be said to be adverse to plaintiff. It is also well settled that for claiming adverse possession, the person asserting such possession must accept the paramount title and then plead possession adverse thereto. The said ingredient being absent in the present case, the said contention is also liable to be rejected. In that view of the matter, the substantial questions of law are answered against the appellants. 12. Since relief of recovery of possession stands decreed in favour of the respondent/plaintiff the appellants are granted time till the end of November 2010 to vacate and hand over the possession of the suit schedule property to the plaintiff provided the defendants file an undertaking to that effect before the trial Court within three (3) week from today. The second appeal is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J September 24, 2010 DSK