THE HON’BLE SRI JUSTICE T.CH.SURYA RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH Writ Petition No.9077 of 2003 ORDER: (per the Hon’ble Sri Justice T.Ch.Surya Rao) -- The Writ Petitioners seek an appropriate writ or order or direction in the nature of a Writ of Mandamus/Certiorari to quash the judgment dated 29-10-2002 passed by the learned Special Court in L.G.C.No.9 of 1997. The Writ Petitioners along with their mother, Smt.M.Savithri, are the applicants in L.G.C.No.9 of 1997 before the Special Court under A.P. Land Grabbing (Prohibition) Act (for short, the Act’) Hyderabad. The respondents herein are the respondents therein. The application was filed to declare the respondents as land grabbers qua the land measuring Acs.5.16 guntas covered by Sy.No.10 and Acs.1.35 guntas covered by Sy.No.12 of Kompally village, Quthubullapur Mandal, R.R.District (for short ‘the disputed land’). Briefly stated, their case was that late M.Shankaraiah, the father of the applicants and the husband of Savithramma, was the owner of the disputed land. He filed a suit in O.S.No.30 of 1966 on the file of the Munsif Magistrate East and North, Hyderabad, against one, Narsareddy and Laxmareddy for recovery of possession of the said land which had been in their illegal occupation. The suit was decreed ex parte against them on 13-04-1967. Late Shankaraiah filed E.P.No.3 of 1968 seeking delivery of the land in execution of the decree passed in the suit. Pursuant to the direction of the executing Court, late Shankaraiah was put in possession of the disputed land on 11-02-1968. Despite the delivery, Shankaraiah was prevented by the judgment debtors from cultivating the said land. Again in the year 1982 Shankaraiah filed another E.P.No.4 of 1982 for delivery. E.P. No.4 of 1982 was dismissed on 05-05-1983 by the Principal District Munsif, East and North on the ground, that Court had no territorial jurisdiction over the subject matter of dispute. The decree holder filed again E.P.No.14 of 1985 before the District Munsif, Medchal, seeking delivery of possession of the disputed land. That E.P. was also dismissed on 03-08-1990 on the premise that no fresh execution petition was maintainable since the decree in O.S.No.30 of 1966 had already been executed on 11-02-1968 in E.P.No.3 of 1968. While so Shankaraiah died on 11-09-1992 leaving behind him his wife Savithramma and the writ petitioners, his sons. On the ground that the judgment debtors continued to be in illegal occupation of the disputed land without any legal entitlement and their action would tantamount to land grabbing, the legal heirs of Shankaraiah filed the application under Section 8 (1) of the Act before the Special Court. It is the case of the respondents that Linga Reddy, their late father, purchased the disputed land from late M.Shankaraiah on 05-12- 1952 for a consideration of Rs.725/- and obtained possession thereof. Late Shankaraiah filed an affidavit before the Deputy Collector, East Division, on 24-12-1953 to the effect that he sold away the disputed land to Linga Reddy. The sale in favour of Linga Reddy was confirmed by the revenue authorities and a patta was granted and his name was also mutated in the revenue records. Linga Reddy died on 14-01-1958. The respondents approached the revenue authorities for mutation and a patta was granted in their favour. A well was dug in the disputed land besides two bore wells for developing the land which was barren at the time of its purchase. Further, they constructed a small house on the disputed land. The respondents brought the lands into cultivation and had been in continuous possession of the said land. In the year 1977 when the Government issued a notification for acquiring a portion of the disputed land, the first respondent filed W.P.No.1142 of 1980 and got the said notification quashed. It was further their case that late Shankaraiah filed a false suit and obtained an ex parte decree against them behind their back without any notice to them. Although in E.P.No.3 of 1968 the land was said to be delivered to late Shankaraiah under a panchanama on 11- 02-1968, Shankaraiah was never in possession of the disputed land. The pahanies show a continuous actual possession of the disputed lands by respondents. The subsequent E.Ps. filed in E.P.No.4 of 1982 and E.P.No.14 of 1985 were dismissed when resisted by the respondents. Thus, since 05-12-1952 when their father, late, Linga Reddy, purchased the property, till the date of execution in E.P.No.3 of 1968 they had been in possession and thereafter their possession was continuous, open to the knowledge of late Shankaraiah and adverse to his interest and thus perfected their title to the disputed land having been in continuous possession and the right, if any, of late Shankaraiah was extinguished and the claim of the applicants was hopelessly barred by limitation. The respondents 4 to 24 are the legal representatives of the second respondent, who since died. The Special Court framed the following issues for trial. “(1) Whether the applicants have title to the application schedule property? (2) Whether the respondents are the owners of the application schedule property? (3) Whether the respondents have perfected title to the application schedule property by adverse possession? (4) Whether the respondents are land grabbers within the meaning of Section 2 (d) and (e) of the A.P.L.G. (P) Act? (5) To what relief?” Applicant No.4 was examined as P.W.1 and the documents Exs.A1 to A10 were got marked. Late Narsareddy was examined as R.W.1 besides examining two more witnesses and getting Exs.B1 to B58 marked. Appreciating the evidence, both oral and documentary, adduced on either side the learned Special Court was of the view that the respondents are the owners of the disputed land having perfected the title by adverse possession and they were not land grabbers within the meaning of Section 2 (d) and (e) of the Act. In sequel thereto, the application was dismissed. Sri K.Ramakrishna Reddy, learned senior counsel for the writ petitioners, represents that the plea taken by the respondents claiming derivative title as well as prescriptive title are mutually destructive and therefore they shall elect one among those two, since the respondents cannot be permitted to approbate or reprobate. Even otherwise, there has been no oral evidence in support of the plea of adverse possession and hence the finding of the Special Court is void. Sri P.Venugopal, learned counsel appearing for the respondents, on the other hand, represents that the learned Special Court held categorically that the claim of title by sale stood automatically renounced and therefore the order does not suffer from any vice of illegality or irregularity. In view of the competing claims, the points that arise for our determination are thus: (1) Whether the pleas of derivative title as well as prescriptive title cannot be taken simultaneously or in the alternative? (2) Whether the respondents disclaimed the plea of derivative title before taking up the prescriptive title? (3) Whether the impugned judgment of the Special Court suffers from any vice of illegality? Admittedly, late Shankaraiah was the owner of the disputed land. On the premise that respondents 1 to 3 had illegally occupied the disputed land and further manipulated false entries in the kasrapahani as if their late father Linga Reddy was the actual possessor and enjoyer of the land, Shankaraiah had filed the suit O.S.No.30 of 1966 on the file of the District Munsif, East and North, which eventually ended in an ex parte decree. Exs.A1 and A2, certified copies of the judgment and decree respectively would buttress the fact. In execution of the decree lawfully obtained by him Late Shankaraiah filed E.P.No.3 of 1968. Possession was delivered in pursuance thereof by a bailiff of the Court on 11-02-1968, as can be seen from Ex.A3 and Ex.A5, certified copies of the report, and panchanama respectively of the bailiff. Notwithstanding the same it was said that possession was taken illegally by respondents 1 to 3, on and from 11-02-1968. When the bailiff delivered the property to late Shankaraiah, the earlier illegal occupation, if any, was extinguished and could not be reckoned for any purposes. Notwithstanding the delivery of possession, the respondents 1 to 3 prevented late Shankaraiah from cultivating the said land is the claim of the applicants. It is obvious from the fact, that late Shankaraiah filed E.P.No.4 of 1982, seeking delivery of possession, and when it was dismissed on 05-05-1983 on the premise of lack of territorial jurisdiction over the subject matter of dispute he filed E.P. No.14 of 1985, again seeking delivery of possession, and that too ended in dismissal on 03-08-1990 on the premise that the decree in O.S.No. 30 of 1966 had already been executed on 11-02-1968 and no fresh E.P. was maintainable, what was delivered was only a symbolical possession and physical possession continued to remain with the respondents. Late Shankaraiah died on 11-09-1992. The instant application in L.G.C.No.9 of 1997 was filed by the applicants, under Section 8 (1) of the Act on 30-01-1997. E.P. No.14 of 1985 was dismissed on 03-08-1990 by passing a contested order. When that was resisted by respondents 1 to 3, the executing Court was of the view obviously that the E.P. was barred by limitation. A suit in O.S.No.62 of 1976 was filed on the file of the Munsif Magistrate, East and North, Hyderabad, against R1 to R3 and late M.Shankaraiah by the sister of R1 to R3 for partition and separate possession of her share in the disputed land. In I.A.No.190 of 1976, the concomitant petition, she initially obtained injunction against Shankaraiah, which was served upon him on 24-06-1976. However, the suit ended in dismissal on 30-08-1980, as could be seen from Ex.A8, certified copy of the decree. That was a clear assertion of title over the disputed land qua late Shankaraiah, which obviously becomes an overt act on their part in clearly denying the title of late Shankaraiah. The inescapable conclusion that can be drawn under the circumstances is that this date on which the suit O.S.No.62 of 1976 was dismissed, namely, 30-08- 1980, would become the starting point to reckon the period of limitation. Till the instant application came to be filed, the period continued to run uninterruptedly. At any rate, it has not been shown before us as to whether any such disruption has in fact been there. Therefore, 12 clear years have been elapsed since the date of decree obtained by late Shankaraiah in O.S.No. 30 of 1966 till 30-08-1980 when respondents 1 to 3 and their sister clearly asserted title over the disputed land. Obviously by that date, the decree in O.S.No. 30 of 1966 became time barred. As a result, that decree cannot be executed for obtaining possession pursuant thereto. It seems what cannot be obtained by putting the decree in execution is now being sought to be obtained by filing a separate application under the Act. True, limitation bars the remedy but not the right. The right over the land in dispute has not been lost, but obviously, the remedy to obtain possession of the said land from respondents 1 to 3 has been lost having been barred by limitation. Can this be circumvented on the sole premise that Land Grabbing (Prohibition) Act is a special enactment meant to prevent grabbing and therefore that gives fresh cause of action for the applicants? Even otherwise, when once the respondents asserted title overtly in the suit filed in partition against the late Shankaraiah regardless of the fact that it ended in dismissal it clearly furnishes a right to reckon the period of limitation for prescribing title by means of adverse possession. These facts clearly emerge from the matrix of the case. The plea of adverse possession is a mixed question of law and fact. The burden is always upon the person who takes up the plea of prescriptive title by means of adverse possession to prove the same. Mere possession of the land, for however length of time it may be, unaccompanied by adverse possession will not ripe into a prescriptive title. The person holding the land must have the requisite animus to possess the same hostile to the real owner, besides having the actual possession. That possession shall be adequate, in continuity, in publicity and in extent. The classical requirement in this regard is nec vi nec clam nec precario meaning thereby that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. Vide P. Lakshmi Reddy v. L.Lakshmi Reddy[1]. The person who takes up the plea of adverse possession has no equities in his favour, inasmuch as he is trying to defeat the rights of the true owner. Therefore, it is for him to clearly plead and establish all facts which are essential to bring home the plea of adverse possession. He must show before the Court unequivocally the date on which he came into possession, the nature of his possession, whether the factum of his possession is known to the real owner, how long his possession has continued, and whether his possession was open notorious and undisturbed. Vide Karnataka Board of Wakf Vs. Govt. of India[2]. The period of limitation does not commence from the date when the right to ownership arises to the plaintiff, but commences from the date when the defendant’s possession becomes adverse to the real owner. Animus Possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. Vide Saroop Singh Vs. Banto[3]. In Konda Lakshmana Bapuji Vs. Govt. of A.P. and Others[4] the Apex Court considered the plea of adverse possession. In para 62 the Apex Court held that possession in assertion of one’s own title was animus of adverse possession and that passing an adverse order against the appellant or the appellant himself filing an application to any statutory authorities for occupancy certificate would not interrupt his adverse possession of the land. However, in para 64 the Court held thus: “There can be no doubt that passing of adverse order against the appellant would not cause any interruption in his possession (See: Balkrishan v. Satyaprakash [5] ). So also filing of application before statutory authority under the Inams Abolition Act for occupancy rights, in our view, causes no interruption in the continuity of possession of the appellant but it does abrogate his animus to hold the land in derogation of the title of the State and breaks the chain of continuity of the animus.” The requirement, therefore, that the possession must be adequate in its continuity, publicity and extent has thus been explained. In the instant case, the respondents had taken the plea inter alia in the counter that late Linga Reddy purchased the land in dispute from Shankaraiah on 05-12-1952 and obtained possession of the said land on that date. Therefore, they claim title and possession of the land from 05-12-1952 onwards. However, the suit filed by late Shankaraiah in O.S.No.30 of 1966 was decreed ex parte and in execution thereof, in E.P. No.3 of 1968 possession was delivered to late Shankaraiah on 11-02-1968. That clearly extinguishes the derivative title set up by the respondents. The possession of the respondents’ father late Linga Reddy from 05-12-1952 to 11-02-1968, although was continuous, there had been a break on 11-02-1968, when the property was delivered to late Shankaraiah by the bailiff of the Court. Although it was said that late Linga Reddy was continuing to be in possession even after 11-02-1968, the break in continuity cannot be denied. Till 11-02-1968, obviously late Linga Reddy had no requisite animus to possess the land adverse to its real owner namely, Shankaraiah. Therefore, the respondents cannot claim any adverse possession from 05-12-1952 to 11-02-1968. On and from 11-02-1968 their possession seems to be continuous. When E.P. 4 of 1982 was filed that was contested and was dismissed eventually. When E.P. No.14 of 1985 was filed, that was again contested and that too was dismissed eventually. The pleas taken by the respondents inter alia in the counters filed by them in both the execution petitions are obviously against the interest of late Shankaraiah. Even otherwise, when the daughter of Linga Reddy filed a suit for partition in O.S.No.62 of 1976, claiming a share in the disputed property against the sons of Linga Reddy, her brothers, impleading late Shankaraiah as a party thereto, that was a clear case of denial of the title of late Shankaraiah while claiming partition over the property which is the subject matter of the dispute in the instant case. The inescapable conclusion from the above is that affords the point when the limitation, in fact begins to run. When the sons and daughter of late Linga Reddy asserted title over the land in dispute, which was known to late Shankaraiah, from then onwards the requisite animus to possess the land which was adverse to the interest of the real owner can be reckoned and it was continuous. No other evidence was adduced in this case to show that there was any interruption in the continuity of the necessary animus to possess or the possession itself. Therefore, the period of limitation as per Article 65 of the Limitation Act should be reckoned at least from 30- 08-1980. Presumably, having regard to the same, the learned Senior Counsel for the writ petitioners seeks to contend that it is not permissible to take the plea of derivative title as well as prescriptive title simultaneously and the person who wants to take prescriptive title, shall disclaim the derivative title. It is no doubt true the Apex Court in R.Chandevarappa Vs. State of Karnataka[6] held that a person cannot plead adverse possession without first disclaiming his derivative title by virtue of which he came into possession earlier. Similarly, in D.N.Venkatarayappa Vs. State of Karnataka[7] the Apex Court held that having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile title. The legal position sought to be canvassed by the learned senior counsel is thus buttressed by the above two judgments of the Apex Court. Nevertheless the legal position seems to be otherwise. In our considered view it is open to the parties to take up inconsistent pleas but in the alternative. We are reinforced in our above view by a three Judge Bench judgment of the Apex Court in Firm Srinivas Ram Vs. Mahabir Prasad [8]. In para 9 the Apex Court held thus: “The fact that such a prayer would have been inconsistent with the other prayer is not really material. A Plaintiff may rely upon different rights alternatively & there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations & claiming relief thereunder in the alternative.” This legal position has not been considered by the Apex Court in R.Chandevarappa’s case which has been followed by the Apex Court again in D.N.Venkatarayappa’s case. Both the above judgments have been rendered by a two judge bench of the Apex Court unlike the former judgment in Firm Srinivas Ram’s case which was rendered by a three judge bench and is binding precedent qua the other two. However all this loses significance when we consider the question having regard to its matrix to see whether it was a case of taking up simultaneously the pleas of derivative title and prescriptive title or not. In fact, this point in controversy has been adverted to by the learned Special Court. The Special Court in no unmistakable terms was of the view that the plea of derivative title got extinguished the moment the decree in O.S.No.30 of 1966 was executed and possession was delivered to late Shankaraiah on 11-02-1968 albeit symbolical. The point requires some elucidation. The plea taken by the respondents inter alia in their counter was that their late father was in possession of the disputed land having purchased the same from late Shankaraiah till the property was delivered pursuant to the decree passed in O.S.No.30 of 1966 on 11-02-1968 in E.P. No.3 of 1968. Thereafter it was their case that their possession was adverse to the real owner till the application under the provisions of the Land Grabbing Act was filed. The case of the respondents, therefore, appears that they set up derivative title till 11-02-1968 and they set up prescriptive title henceforth from 11-02-1968. It appears that it was not a case of taking both the pleas simultaneously. It is expedient to extract the plea taken by them inter alia in the counter hereunder for brevity and better understanding of the matter: “Since the date of purchase i.e., 05-12-1952 the father of R1 to R3 and thereafter the respondents 1 to 3 till the date of the execution in E.P.No.3 of 1968 (11-02-1968) the respondents have enjoyed the possession of the application schedule land as bona fide purchasers. Thereafter possession of the respondents over the application schedule land which is continuous and open and to the knowledge of Shankaraiah and the applicants became adverse to Shankaraiah and applicants. Thus, the respondents have perfected their title to the application schedule land having been in continuous and open possession of the same to the knowledge of Shankaraiah for over the statutory period.” A mere glance at the above excerpted plea shows that a clear case of adverse possession has been set up from 11-02-1968. In other words, it is a case of a disclaimer of the derivative title set up by means of a bona fide purchase said to have been made by the late father of the respondents. Not only that, yet another stage in the counter the respondents pleaded inter alia thus: “By the date of his death in 1992, Shankaraiah was not having any right, title or interest in the application schedule land. His right, if any, got extinguished over the said property by then. Hence, the question of the applicants succeeding to this property on the death of Shankaraiah does not arise at all. The claim of the applicants is hopelessly barred by limitation.” That is a clear case of conceding the title of late Shankaraiah and then taking the plea of the extinguishment of the same even by the date of death of late Shankaraiah. Therefore, the legal position sought to be canvassed by the learned senior counsel has no factual foundation in the instant case, having regard to the specific plea taken by the respondent inter alia in the counter. It is contended by the learned senior counsel that it is not even spoken to at least by means of a whisper in the evidence of R.W.1 that their possession was adverse to the real owner. Documentary evidence excludes the oral evidence is trite. The documents speak for themselves. The possession was delivered to late Shankaraiah on 11-02-1968. It appears to be a symbolic possession. It was the own plea of the petitioners that Shankaraiah was prevented despite the delivery from entering into the land. Therefore, from 11-02-1968 onwards the respondents herein continued to be in possession. That was not in the capacity of owners thereof, since they lost their title when an ex parte decree was passed against them declaring the title of the late Shankaraiah and possession was delivered pursuant thereto. It may be reiterated here that when the sister of the respondents filed a suit for partition, wherein late Shankaraiah was also a party, that was a clear case of assertion of title which was adverse to late Shankaraiah. Notwithstanding the result in the suit which was ended in dismissal, the nature of possession of the respondents from the date of dismissal of the suit has been with the necessary animus of possessing the land which was adverse to the interests of late Shankaraiah, the real owner of the land in dispute. That suit was dismissed on 30th August, 1980. The instant application in L.G.C. No.9 of 1997 was filed