IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.84 OF 1994 Between:- Kanchubariki Bhaskara Rao and another …Appellants A n d Kanchubarki Appanna (died) per LRs K.Nookalamma and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.84 OF 1994 JUDGMENT: This second appeal is directed against the judgment and decree dated 31.01.1994 in A.S.No.124 of 1987, on the file II-Additional District Judge, Visakhapatnam, wherein the said appeal filed by the respondent herein, the plaintiff, was allowed, setting aside the judgment and decree dated 10.08.1987 in O.S.No.97 of 1984, on the file of the Junior Civil Judge, Bheemunipatnam. 2. Heard the learned counsel for the appellants/defendants and the learned counsel for the respondent/plaintiff. Perused the record. 3. Respondents 2 and 3 herein are brought on record, being the legal representatives of the deceased, the 1st respondent. The 1st respondent filed the suit for declaration of title and for permanent injunction in respect of the plaint schedule land and for recovery of damages in a sum of Rs.600/- towards value of palmyra trees. The plaint schedule land comprises an extent of Ac.0-10 cents out of Ac.2-58 cents covered by inam T.D.No.483 and Sy.No.29 of Yendada village. According to the plaintiff, his father Seethaiah had two brothers Peraiah and Yerraiah and they got their ancestral property divided into three equal shares and each one of them got Ac.0-10 cents, about 50 years prior to filing of the suit. The defendant is son of Yerraiah. After the death of Peraiah, his son Durgaiah sold away his share of Ac.0-10 cents to Bellana Seethaiah, maternal uncle of the plaintiff, who in turn sold the same to the plaintiff about 40 years prior to filing of the suit and ever since the plaintiff has been in possession and enjoyment of the same. As the plaintiff was away on job at Kharagpur, his brother China Guraiah was looking after the same and paying the land revenue. The defendant’s land is situate to the east of the suit land. The plaintiff alleges that in April, 1984, the defendant, without any right, has cut away two palmyra trees in the suit land and when China Guraiah questioned the defendant, the defendant threatened to cut and remove the remaining palmyra trees also. The plaintiff’s brother got issued a notice dated 14.04.1984 to the defendant for which the defendant gave reply dated 03.05.1984 denying the plaintiff’s title over the suit land. The defendant has cut and removed the remaining four palmyra trees also from the suit land. Hence, the suit. 4. The defendant filed a written statement contending that the defendant has been in possession and enjoyment of the suit land since 31.03.1970, the date on which the plaintiff executed a sale puroni in favour of the defendant and delivered possession along with six palmyra trees. He further pleaded that he acquired title by adverse possession also. He, therefore, justified cutting and removal of the palmyra trees from the suit land for the purpose of constructing a thatched house over the suit land. 5. On the strength of the above pleadings, the trial Court framed the following issues: i) Whether the plaintiff has title to the suit schedule land? ii) Whether the documents filed by the plaintiff related the suit land? iii) Whether the defendant is in possession of the suit schedule lands since 1970 and perfected his title by adverse possession and whether he got possession through a sale puroni executed by the plaintiff? iv) Whether the plaintiff is entitled to declaration and consequential injunction? v) To what relief? 6. During the course of trial, P.Ws.1 and 2 were examined and Exs.A-1 to A-18 were marked on behalf of the plaintiff and D.Ws.1 to 3 were examined and Exs.B-1 to B-5 were marked on behalf of the defendant. 7. On a consideration of the evidence available on record, the trial Court held that the plaintiff had title to the suit property, but, however, the defendant by being in possession for more than 12 years till 1970 perfected his title by adverse possession. Ultimately, the suit was dismissed. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.124 of 1987. The learned Additional District Judge framed the following points for consideration: i) Whether the plaintiff has proved title to the suit property? ii) Whether Ex.B-1 alleged agreement is true and valid and binding on the plaintiff? iii) Whether the defendant has perfected his title to the suit property by adverse possession? 8. On re-appraisal of the evidence on record, the learned Additional District Judge held that the plaintiff is the owner of the suit land and defendant failed to establish that he was in possession of the suit land or perfected his title by adverse possession. On point No.2, the learned Additional District Judge held that the agreement of sale Ex.B-1 is true, valid and binding on the plaintiff. However, as the defendant failed to establish that he came into possession of the suit land in pursuance of Ex.B-1, the appellate Court held that the plaintiff is to be deemed to be in possession of the suit land and is entitled for declaration of title and also for injunction and for recovery of the amount of Rs.600/- towards the value of palmyra trees. Accordingly, the suit was decreed, setting aside the decree of dismissal passed by the trial Court. Hence, the present second appeal by the defendants. 9. The second appeal was admitted in view of ground Nos.3 and 5 raised in the grounds of appeal. Ground No.3 is to the effect that the appellate Court failed to note that the suit for declaration and permanent injunction is not maintainable without seeking the relief of possession. Ground No.5 is to the effect that the appellate Court failed to note the relative rights of the parties in pursuance of the agreement of sale accompanied by possession under Sections 53-A and 55 of the Transfer of Property Act. Subsequently, the appellant filed C.M.P.No.13928 of 1996, which was ordered on 14.02.1997, wherein the appellant sought to raise certain questions, which according to him are the substantial questions of law: i) Whether a suit for declaration of title and for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs can be decreed when the agreement of sale executed by the plaintiffs in favour of the defendants accompanied by the possession of the defendants is uphold by the court particularly in view of the operation of Section 53-A and Section 55 of the Transfer of Property Act? ii) Whether this court of first appeal will be justified in reversing judgment and decree of trial court by misreading the oral and documentary evidence even ignoring the principle of estoppel that the plaintiffs are banned from claiming reliefs contrary to the admitted facts? 10. The defendants filed C.M.P.No.23361 of 2000 under Order XLVII CPC seeking permission to file three documents i.e., a post card dated 25.06.1972, No.3 account and No.10(1) account as additional evidence and the said CMP was ordered on 01.04.2004. Copy of No.3 account, marked as Ex.B-7, does not disclose as to which fasli it relates to and it was obtained in the year 2000 long subsequent to filing of the second appeal. Similarly, a copy of the No.10 (1) account, marked as Ex.B-8 relates to 1996-97 which is also subsequent to filing of the second appeal. The said documents do not carry any value or weight. A post card which is marked as Ex.P-6 and alleged to have been written by the plaintiff to the defendant, cannot be looked into at this stage for want of proof and further the contents of the said documents are contra to the contention of the defendant, inasmuch as the said document recites that Rs.150/- was received as advance, whereas according to the pleading and evidence of the defendant, he paid Rs.160/- towards advance. Further, in the said post card, the plaintiff is purported to have demanded payment of the balance amount of Rs.50/-. Admittedly, the defendant did not give any reply nor did he express readiness or willingness to perform his part of the contract at any time. The said documents Exs.B-6 to B-8 filed by way of additional evidence are, therefore, of no avail to the appellants/ defendants in the second appeal. 11. The learned counsel for the appellants would contend that the plaintiff has suppressed the agreement of sale Ex.B-1 dated 31.03.1970 in the plaint, which he admitted in the cross-examination and the said suppression of material facts amounts to playing fraud on the Court. He would further contend that the appellate Court has not appreciated the evidence properly and the same gives rise to substantial question of law. 12. The learned counsel for the respondents, on the other hand, would contend that the plaintiff never admitted Ex.B-1 agreement of sale and he only admitted execution of a pronote and there has been no suppression of facts. He would further contend that possession was not delivered under Ex.B-1 and the said finding recorded by the appellate Court on the question of fact does not call for any interference in the second appeal. He would further contend that the appellants/defendants are not entitled to raise the additional ground of protection under Section 53- A of the Transfer of Property Act for the first time in the second appeal, without there being any such plea raised either before the trial Court or the appellate Court at any time. He would further contend that even otherwise, the appellants/ defendants are not entitled for protection under Section 53-A of the Transfer of Property Act as possession was not delivered and defendant was not willing to perform his part of the contract. 13. The relationship between the parties is not disputed. The plaintiff’s father Seethaiah and defendant’s father Yeraiah and one Peraiah were brothers and they had Ac.0-30 cents of ancestral land and in the partition each of them got Ac.0-10 cents. After Yeraiah’s death, the defendant came into possession and enjoyment of his share of Ac.0-10 cents. The plaintiff and his brother were in possession of Ac.0-10 cents got from their father. Peraiah’s son Durgaiah sold his share of Ac.0-10 cents to Bellana Seethaiah under Ex.A-8 sale deed dated 27.05.1937 and he in turn sold the same to the plaintiff under the sale deed Ex.A-7 dated 21.02.1943. Thus, the plaintiff became entitled for the said extent of Ac.0-10 cents by virtue of Exs.A-7 and A-8, which according to the plaintiff is the suit land. The defendant claimed that he has been in possession and enjoyment of the suit land by virtue of an agreement of sale dated 31.03.1970 executed by the plaintiff and he also claimed title by adverse possession. The plaintiff denied the genuineness of Ex.B- 1 agreement of sale. According to the defendant, he purchased the suit land from plaintiff for Rs.200/- under Ex.B-1. Admittedly, the defendant never got issued any registered notice to the plaintiff demanding specific performance of the agreement of sale. The defendant did not also file any suit for specific performance against the plaintiff. As rightly observed by the learned Additional District Judge, when once the defendant claimed that he purchased the suit land from the plaintiff under an agreement of sale-Ex.B-1 admitting the paramount title of the plaintiff, the question of his acquiring title by adverse possession does not arise. When the defendant claims to be in possession as an agreement holder from the plaintiff, there is no occasion for the defendant to have the necessary animus adverse to the true owner. There is nothing on record to show that the defendant asserted any adverse title or possession over the suit land to the knowledge of the plaintiff. When the defendant claims to be in possession by virtue of an agreement of sale from the plaintiff, there is implied acknowledgement and recognition of plaintiff’s title and, therefore, the alleged possession of defendant can never be said to be adverse to that of the plaintiff, the real owner. The finding of the appellate Court that the defendant failed to establish his claim of title over the suit land by adverse possession does not, therefore, call for any interference. In fact, there is nothing on record to show that the defendant was in possession of the suit land at all. The appellate Court has found that Exs.B-2 to B-4 the land revenue receipts and Ex.B-5 the passbook do not relate to the suit land and they do not establish the claim of adverse possession made by the defendant. The plaintiff’s title over the suit land, as the original owner thereof, is not disputed. 14. The only question, which then arises for consideration, is -whether the defendant obtained delivery of possession in pursuance of the agreement of sale- Ex.B-1 dated 31.03.1970. The plaintiff denied the execution of the agreement Ex.B-1 itself. According to the defendant, the plaintiff sold the suit land for Rs.200/- for the purpose of discharging his debts and received advance of Rs.160/- and the balance of Rs.40/- was to be paid at the time of registration and possession of the land was delivered to the defendant. The plaintiff nowhere admitted execution of the agreement of sale. In the cross- examination, P.W.1 merely stated that the defendant paid Rs.160/- to him on 31.03.1970 and the document was written and he signed therein, which was attested by Bonula Ramaswamy and Koragani Abbayi. According to him, he thought it to be a pronote. He categorically denied to have delivered possession of the suit land with palmyra trees to the defendant under any agreement of sale. He also denied that defendant was in possession of the suit land since 31.03.1970, but he admitted that he was away at Kharagpur. The defendant was enjoying the palmyra leaves etc. Since plaintiff admitted his signature on Ex.B- 1 and since the plaintiff failed to prove his contention that he signed the said document, thinking the same to be a pronote, the appellate Court upheld the truth of Ex.B-1 based on the evidence of D.W.1, the scribe, who testified to the execution of Ex.B-1 by the plaintiff and also attestation by the attestors. The said finding, which is based on re-appraisal of the evidence available on record, does not also call for any interference. 15. The learned counsel for the appellants/defendants would contend that the plaintiff by suppressing any reference to Ex.B-1 agreement in the plaint has indulged in suppression of material facts and played fraud on the Court. It is to be noted that plaintiff never admitted execution of Ex.B-1 as an agreement of sale. In the cross-examination, though P.W.1 admitted his signature on Ex.B-1, his explanation was that he signed the said document under an impression that it was a pronote for borrowal of Rs.160/-; That the said explanation was found to be not acceptable is a different aspect. Inasmuch as the plaintiff never admitted execution of Ex.B-1 agreement of sale as such, the question of his suppression of any material facts in the plaint does not simply arise. 16. The decision in S.P.CHENGALVARAYA NAIDU (DEAD) BY LRs v. JAGANNATH (DEAD) BY LRs AND OTHERS[1] relied upon by the learned counsel for the appellants is, therefore, is not applicable to the facts of the present case. 17. However, the defendant has not established his claim that he obtained delivery of possession by virtue of Ex.B-1 and that he was in possession and enjoyment of the suit land since 1970 and till the date of the suit. The appellate Court, therefore, held that the plaintiff, who was admittedly the true owner of the suit land and who was shown in possession of the suit land, was entitled for the relief of declaration of title and injunction, inasmuch as the defendant failed to establish that he was in possession of the suit land at any time. 18. In the grounds of appeal, for the first time, the defendant has sought to raise the plea of protection under Section 53-A of the Transfer of Property Act, perhaps taking the cue from the observation made by the learned Additional District Judge. There is no specific plea that defendant’s possession was protected under Section 53- A of the Transfer of Property Act. Admittedly, the defendant has no where raised the said plea either in the written statement or during the course of trial. In the absence of any plea in the pleadings and there being no evidence adduced in that regard and the evidence on record not establishing that the defendant has obtained possession in pursuance of the agreement Ex.B-1 and he remained to be in such possession as an agreement holder, the defendant cannot be permitted to raise the said plea of protection under Section 53-A of the Transfer of Protection Act for the first time in the second appeal. 19. In RAM KUMAR AGARWAL AND ANOTHER V. THAWAR DAS (DEAD) THROUGH LRs[2], the Apex Court held that plea under Section 53-A of the Transfer of Property Act raises a mixed question of law and fact and, therefore, cannot be permitted to be urged for the first time at the stage of second appeal and that that apart, expression of willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness, protection to his possession could not have been claimed by reference to Section 53-A of the Transfer of Property Act. In the present case also, there is no such plea in the written statement to the effect that he was ready and willing to perform his part of the contract by paying the balance amount of Rs.40/-, which even according to the defendant was due. On the other hand, he claimed hostile title to the plaintiff by raising the plea of adverse possession. 20. I n SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER V. PRALHAD BHAIROBA SURVANSHI (DEAD) BY LRs AND OTHERS[3], the Apex Court has set out the conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Transfer of Property Act as follows:- “i) There must be a contract to transfer for consideration any immoveable property; ii) the contract must be in writing, signed by the transferor, or by someone on his behalf; iii) in writing must be in such words from which the terms necessary to construe the transfer can be ascertained; iv) the transferee must in part performance of the contract take possession of the property, or of any part thereof; v) the transferee must have done some act in furtherance of the contract; and vi) the transferee must have performed or be willing to perform his part of the contract. One of the conditions is that the transferee himself in part performance of the contract take possession of the property or any part thereof and he must have done some act in furtherance of the contract and must have performed or be willing to perform his part of the contract. In the present case, the appellate Court has recorded a finding on a question of fact to the effect that the evidence on record does not establish that the defendant has taken possession of the property in pursuance of the agreement Ex.B-1 and further held that the evidence on record established the plaintiff’s claim of possession. Further, there is nothing on record to show that the transferee i.e., the defendant, was willing to perform his part of the contract. 21. In SARDAR GOVINDRAO MAHADIR AND ANOHTER V. DEVI SAHAI AND OTHERS[4], the Apex Court held that it must be further shown that transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part-performance of the contract and has done some act in furtherance of the contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. In the present case, there is nothing on record to show that the defendants have taken possession of the suit land in pursuance of the agreement Ex.B-1 or that they continued to be in possession in part performance of the contract. On the other hand, the defendant claimed to be in adverse possession asserting hostile title to the plaintiff and such possession cannot be said to be in furtherance of the agreement Ex.B-1. 22. The learned counsel for the appellants/defendants relies upon GHULAM QADIR AND ANOTHER V. GHULAM HUSSAIN[5] wherein the Full Bench held as follows:- “Where the vendor voluntarily executes a contract of sale, puts the proposed vendee in possession of the property and receives the entire consideration money, he cannot be allowed to turn round and claim the property after a long time (22 years) on ground that sale deed is not executed. He cannot be allowed to repudiate the fiduciary obligation arising out of the contract nor can the Court aid him to commit fraud by dispossessing a prospective vendee who has done all that was required of him to do for purchasing the property.” The above decision is not applicable to the facts of the present case for the simple reason that the plaintiff never admitted execution of the suit agreement of sale as such and secondly even according to the defendant, the entire sale price was not paid and the defendant never expressed his willingness or readiness to perform his part of the contract and further the evidence on record established that the plaintiff continued to be in possession notwithstanding Ex.B-1 agreement. 23. In GURDEV KAUR AND ORS. V. KAKI AND ORS[6], while dealing with the scope of Section 100 CPC, the Apex Court held that even if the finding of fact recorded by the Court below is wrong, the same is not liable to be interfered with in a second appeal, the hearing of which shall be confined only to a substantial question of law. 24. It is well settled in a catena of decisions that the finding on a question of fact recorded by the 1st appellate Court is final and cannot be interfered with in a second appeal, unless it is shown that such finding is vitiated by perversion in the matter of appreciation of evidence or that any relevant evidence is left out of consideration or any irrelevant or inadmissible evidence is taken into consideration. No such situation arises in the present case. 25. In ‘R.RAMACHANDRAN AYYAR VS. RAMALINGAM CHETTIAR[7]’ the Apex Court held as follows: “That the High Court was not justified in interfering with the findings of fact recorded by the first appellate Court in favour of the appellants. There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be. To enable the High Court to interfere under Section 100(1)(c) of the Code of Civil Procedure there must be a substantial error or defect in the procedure which may possibly have produced error or defect in decision of the case upon the merits; it is not enough that there is an error or defect in the appreciation of evidence. Even where the appreciation of evidence made by the first appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, it cannot be said to introduce a substantial error or defect in procedure”. 26. In P.CHANDRASEKHARAN V. S.KANAKARAJAN[8] the apex Court held that there cannot be any doubt whatsoever that a substantial question of law is different from a question of law. 27. I n BHOLARAM V. AMIRCHAND[9] a three-Judge Bench of the Apex Court reiterated the proposition of law stating as follows: “The High Court, however, seems to