IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE TWELFTH (12TH) DAY OF OCTOBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal No.565 of 1991 Between: P.Venkat Ramaiah (Died) per LRs & others … Appellants And: Nagelli Ram Reddy & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Second Appeal No.565 of 1991 JUDGMENT: This appeal is directed against the judgment and decree dated 20.09.1991 in AS No.4 of 1988 on the file of the Additional District Judge, Ranga Reddy district, wherein, the said appeal filed by the appellants herein, was dismissed confirming the judgment and decree dated 25.08.1987 in OS No.2 of 1981 on the file of the District Munsif, Medchal. 2. Heard the learned counsel for the appellants and the learned counsel for the respondents. Perused the record. 3. The respondents 1 to 3 herein, initially filed suit against the appellants and respondents 4 to 6 herein, for declaration of title in respect of the suit schedule land Ac.11.38 guntas in old Sy.No.126, New Sy.No.135, which is item No.1 and an extent of Ac.1.16 guntas, Ac.2.11 guntas, Ac.1.31 guntas, 13 guntas, 15 guntas and Ac.3.09 guntas of land in Sy.Nos.153 to 160 of Dabeerpura village of Medchal Taluq, which is item No.2. Subsequently, by orders dated 12.12.1984 in IA No.437 of 1984, the 2nd plaintiff Nagelli Lakshma Reddy, was transposed as 16th defendant-7th respondent herein. According to the plaintiffs, the suit lands originally belonged to one Rajamallareddy and they were purchased by first defendant’s father P.Ramulu and the said Ramulu sold the said lands to Mehatabunnissa Begum on 05.03.1927 for Rs.2,600/- under a registered sale deed and the Tahsildar after due enquiry directed mutations of the land in the name of the said Mehatabunnissa Begum by order dated 27.02.1934. The said Mehatabunnisa Begum sold the land to Sheik Saleem in the year 1946 for a consideration of Rs.2600/-. The plaintiffs further contend that the revenue authorities after due enquiry, entered the name of the plaintiff’s father into khasra pahani as pattedar for the year 1954-55. The plaintiffs also pleaded that they perfected their title to the suit land by adverse possession. The plaintiffs alleges that the first defendant and his two brothers, who were working as clerks in Taluq office, Medchal, prevailed upon their colleagues in the office and got their father’s name surreptitiously entered in Col.No.8 of khasra pahani for all the survey numbers mentioned in the plaint schedule and in Col.No.11 of the pahani patrikas in respect of Sy.Nos.135 and 153 to 160. One Afzal Miya, Patwary of Dabirpura village, who was a close friend and associate of the family of the defendants, assisted the defendants in introducing the name of the father of the defendants in the revenue records. According to the plaintiffs, they came to know of the said fraud played by first defendant and patwari Abzal Miya only when the defendants filed a petition before the Collector, Hyderabad in the year 1968 for correction of the names. The plaintiffs contested the said petition and the same was dismissed as not maintainable. Subsequently, the Board of Revenue called for records on administrative grounds and the matter is pending with the Board of Revenue for enquiry. While so, the plaintiffs alleged that the defendants made attempts to sell the suit property and therefore, the plaintiffs filed suit and also petition before the Sub Collector, East Hyderabad. The Sub Collector dismissed the patwary from service on administration grounds. The defendants filed another petition before the Tahsildar, Medchal for issuance of succession in their names and obtained exparte orders by playing fraud and without notice to the plaintiffs. One Tappa Sardar Alikhan, was never protected tenant for the plaint schedule and his name was surreptitiously included as protected tenant. Neither Sardar Ali Khan nor his sons, never cultivated the suit lands. The defendants 13 and 14 therefore cannot be called as protected tenants of the suit land. 4. The defendants 1 to 5 and 7 to 12 filed written statement contending that the lands were purchased by P.Ramulu in the name of first defendant and subsequently they were sold to Mehatabunnisa Begum under two registered sale deeds and she executed agreement of re-conveyance in favour of fist defendant and subsequently, the defendants paid consideration and Mehatabunnisa Begum executed re-conveyance deed in favour of first defendant. According to the defendants, the sale by Ramulu in favour of Mehatabunnisa Begum and the re-conveyance in favour of first defendant was actually a mortgage transaction, though it was termed as sale of reconveyance. The defendants therefore claimed to be in possession of the property in their own right by virtue of the said re-conveyance deed in favour of first defendant. The defendants further contend that the protected tenancy certificate in their favour is conclusive and the plaintiffs cannot question the same. The defendants also contended that the plaintiffs or their father was never in possession of the suit schedule lands. According to the defendants, the name of the plaintiffs’ father never appeared in the pahanies earlier to 1954-55 and it is only in the year 1962, the name of the plaintiffs’ father was entered as joint pattedar collusively in connivance with the patwary. When the defendants came to know about the same in the year 1968, they filed application for rectification of the entries made in the pahanies for the year 1962. According to the defendants, one Tappa Sardar Ali Khan was the cultivating tenant of the suit land and he was granted protected tenancy certificate and he sub let the suit land to the plaintiffs’ father, without the knowledge and consent of the defendants. The defendants obtained succession certificate by filing petition before the competent authority and so, they are entitled to continue in possession. 5. The Collector, Ranga Reddy district, was impleaded as 15th defendant, who filed written statement, stating that as per the documents filed before him, the original pattedar was one Rajamalla Reddy, who sold the lands to one P.Ramulu under registered sale deed and the said Ramulu, in turn sold the same to Mahtabunissa Begum under a registered sale deed 10.06.1336 fasli, agreeing to return the lands when the sale amount was paid back and the alleged sale of land by Mehtabunissa Begum in favour of Sk. Saleem is not borne out by any document and after enquiry, it was found that the plaintiffs’ father name was erroneously entered in Col.No.13 of Khasra Pahani as kabzedar and shown as purchaser without indicating the particulars of the sale document. Ultimately, P.A. to the Collector passed an order on 17.12.1977 directing that the name of first defendant’s father P.Ramulu be entered in Col.No.13 of the Khasra Pahani and in Col.No.11 of subsequent pahanies till the death of the said Ramulu and thereafter to incorporate the names of the defendants. 6. The 16th defendant filed a separate written statement, stating that in the family partition that took place during the life of time of his father, the lands covered by Sy.Nos.135 and 318 of Dabirpur village and 1/3rd share out of Sy.No.103/4 of Yellampet village and the residential house bearing No.1-98/2 of Dabirpur village were allotted to the 3rd plaintiff, while the first plaintiff was allotted the lands covered Sy.Nos.119, 165, 166 and 174 of Dabirpur village and 1/3rd share out of Sy.No.103/A of Yellampet village, including residential house bearing No.1-97 and the lands in Sy.Nos.153 to 160 and 212 of Dabirpur village and 1/3rd share out of Sy.No.1-98 Dabirpur village were allotted to his share i.e., 16th defendant’s share. Thus, according to him by virtue of the said partition, he is the absolute owner and possessor of the lands in Sy.Nos.153 to 160, which is item 2 of the plaint schedule. He further pleaded that as the plaintiffs 1 and 3 suppressed the material facts and were trying to deprive him, taking undue advantage of his illiteracy, he got himself transposed as 16th defendant and prayed for dismissal of the suit insofar as it relates to the lands in Sy.Nos.153 to 160 is concerned and to declare him as absolute owner of the said lands. 7. As seen from the judgment of the trial Court, at the time of the arguments, plaintiffs 1 and 3 have stated specifically no claim in respect of Sy.Nos.153 to 160 and they were claiming interest only in respect of the land in Sy.No.135 only. The defendants 1 to 12 also stated that they do not have any right or interest over the land in Sy.Nos.153 to 160, as the matter was settled among defendants 1 to 12, 16 and plaintiffs 1 and 3, out side the Court. The trial Court, therefore recorded the submission of the counsel appearing for both sides that the suit is confined only to the extent of Ac.11.35 guntas in Sy.No.135 of Dabirpur village, which is item No.1 of the plaint schedule. Accordingly issues were recast as follows: 1. Whether the plaintiffs 1 and 3 are entitled for declaration of title in respect of Sy.No.135 situate at Dabirpur village, and if so, they are entitled for rectification of record of rights accordingly? 2. Whether Mehtabunissa Begum executed an agreement of reconveyance and deed of reconveyance as contended by D.1 to D.12? 3. Whether the plaintiffs are entitled for perpetual injunction as prayed for? 4. Whether the suit is barred by limitation? 5. Whether the suit is maintainable? 6. To what relief? 8. During course of trial, PWs.1 to 5 were examined and Exs.A.1 to A.46 were marked on behalf of the plaintiffs and DWs.1 to 3 were examined and Exs.B.1 to B.20 were marked on behalf of the defendants. 9. On a consideration of the evidence available on record, the trial Court held that the plaintiffs have perfected their title by adverse possession and therefore, they are entitled for declaration of title in respect of Sy.No.135 and consequently for rectification of the record of rights. The trial Court also held that the defendants failed to establish that Mehtabunissa Begum executed Ex.B.1- agreement of reconveyance and Ex.B.13 reconveyance deed. The trial Court also held that the plaintiffs are not entitled for injunction on the ground that they failed to establish that the defendants tried to interfere with their possession and enjoyment. The trial Court also held that the suit is not barred by limitation. The trial Court also held that the plaintiffs are entitled for consequential relief of correction of entries in the revenue records and accordingly, the suit was decreed. Aggrieved by the same, the defendants filed appeal AS No.4 of 1988. By impugned judgment dated 20.09.1991, the learned Additional District Judge, dismissed the appeal, holding that there is no record placed before the Court to show that Tappa Sardar Ali Khan was a protected tenant for the lands in Sy.No.135 and that the father of the plaintiff was sub-tenant and so, the plaintiffs have proved their possession beyond statutory period and thus acquired title by adverse possession. The learned Additional District Judge also held that the suit is not barred by limitation and dismissed the appeal. Aggrieved by the same, the defendants preferred the present appeal. 10. It is not disputed that the suit lands, originally belonged to one Rajamalla Reddy and that the first defendant’s father purchased the same from Rajamalla Reddy in the name of first defendant, who was then minor under registered sale deed and first defendant in turn sold the same to Mehatabunnisa Begum under registered sale deeds Exs.A.1 and A.2 dated 05.03.1927. According to the plaintiffs, the suit lands were purchased by Sheik Saleem from Mehatabunnisa Begum for a consideration of Rs.2600/- in the year 1946 and the said Sheik Salem in turn sold the lands to the father of the plaintiffs in the year 1952 and ever since, the plaintiffs’ father has been in possession and enjoyment during his life time and after his death, the plaintiffs have been in continuous possession and enjoyment. The defendants on the other hand would contend that Mehatabunnisa Begum executed agreement of reconveyance Ex.B.1 in favour of first defendant and delivered possession to the first defendant. The defendants further contended that one Tappa Sardar Ali Khan was the protected tenant of the suit lands and he was recognized as such under the tenancy certificate Ex.B.9 and he inducted the plaintiffs’ father into possession of the suit land as sub-lessee. The courts below have recorded a finding based on the evidence to the effect that there is absolutely no evidence to show that first defendant was put in possession of the suit land by Mehatabunnisa Begum and the defendants have not proved the execution of the agreement of reconveyance Ex.B.1 by Mehatabunnisa Begum in favour of the first defendant. On the other hand, pahanies filed by both sides showed that the plaintiffs’ father was in possession of the suit land covered by item No.1, till his death and later the plaintiffs and 16th defendant was in possession and enjoyment of the lands covered by item No.2 of the plaint schedule. Similarly, the plaintiffs also did not file any document evidencing sale of the suit lands in their favour by Sheik Saleem in the year 1952. Even the alleged sale deed is not produced. The evidence on record however showed that the plaintiffs and prior to them their father, have been in possession and enjoyment of the suit lands since 1952. The plaintiffs therefore claimed to have perfected their title by adverse possession. 11. The defendants on the other hand would contend that one Tappa Sardar Alikhan was the protected tenant in respect of the suit lands and he in turn inducted the plaintiffs’ father as sub- lessee and therefore, the plaintiffs cannot claim title by way of adverse possession. In support of their contention, the defendants have filed Ex.B.9 tenancy certificate in favour of Tappa Sardar Ali Khan. It is significant to note that the land in Sy.No.135, which is item No.1 of the plaint schedule, is not included in Ex.B.9 tenancy certificate. DWs.1 to 3 also admitted in their evidence that Tappa Sardar Alikhan was not the protected tenant of Sy.No.135. When Tappa Sardar Alikhan is not shown to be a protected tenant in respect of Sy.No.135 i.e., item No.1, the question of his inducting the plaintiffs’ father as a sub-lessee into the said land simply does not arise. Thus, in view of the failure of the defendants in establishing their claim of acquisition of title from Mehatabunnisa Begum under a deed of reconveyance and their allegation that Tappa Sardar Alikhan was the protected tenant and he inducted the plaintiffs’ father into possession as a sub-lessee, remains totally unsubstantiated and in view of the possession and enjoyment of the land with the plaintiffs’ father since 1952 and after his death with the plaintiffs, the courts below have on proper appreciation of the evidence available on record, held that the plaintiffs have acquired title by adverse possession. 12. The evidence on record, more particularly, the pahanies showed that the plaintiffs’ father’s name was entered as possessor and enjoyer from 1954-55 onwards. The original pahanies of Exs.B.15 and B.16 got summoned at the instance of the defendants showed that the land in Sy.No.135 was entered in the name of the plaintiffs’ father as kabzadar. Ex.A.5 Pahuthi Bahi showed payment of cist by the plaintiffs’ father even for the year 1952-53. The defendants and their witnesses also admitted in the evidence that the land in Sy.No.135 has been in possession and enjoyment of the plaintiffs and prior to them their father. Ex.A.41 kasra pahani patrik for the year 1955-56 to 1957-58 and Exs.A.42 to A.45 kasra pahanies for the years 1960-68 evidences the possession and enjoyment of the plaintiffs’ father. Even in the written statement, the defendants admitted the plaintiffs’ possession of the suit land, but they alleged that the plaintiffs were in possession as sub-lessees, which allegation remains unsubstantiated. 13. Learned counsel for the appellants-defendants would rely upon the decision in ‘Venkatachalaiah v. Nanjundaiah[1]’, wherein it was held that ‘the plea of adverse possession cannot be sustained for absence of ‘Animus Possidendi’ and mere possession beyond statutory period is not sufficient’. 14. The above principle which reflects well settled legal proposition cannot be disputed. To sustain the claim of adverse possession, one has to establish both ‘corpus possidendi’ i.e., physical possession and ‘animus possidendi’ i.e., intention to exclude the adversary from possession, besides the fact that the said possession must also be adequate in continuity and publicity. The plaintiffs have pleaded adverse possession as basis for their claim of title and they have adduced evidence in support thereof. The defendants admitted the plaintiffs’ possession but pleaded that it was by way of sub-lease, but they however failed to establish the same. The plaintiffs have thus established all necessary ingredients that are required to be proved for claiming prescriptive title by adverse possession. 15. Learned counsel for the appellants relies upon the decision in ‘K.Venkatasubba reddy v. Bairagi Ramaiah[2]’, wherein, it was held that ‘the plaintiff must succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of the defendant’s case’. The above proposition of law, which is also equally well established, cannot be disputed. 16. In the present case, the plaintiffs have pleaded and also by adducing necessary evidence proved their claim of adverse possession. Both the courts below have on due appreciation of the evidence on record held that the plaintiffs have succeeded in establishing their claim of adverse possession by adducing necessary evidence and thereby discharged the burden cast on them. The question of the plaintiffs seeking to claim the relief on the basis of the defect in the title of the defendants does not therefore arise. 17. In the circumstances, it is held that the concurrent findings recorded by the courts below on the question of fact pertaining to the claim of adverse possession by the plaintiffs upholding the plaintiffs claim, does not call for any interference by this Court in the second appeal, as no question of law, muchless substantial question of law arises for consideration. 18. In the result, the second appeal is dismissed. No order as to costs. G.V.SEETHAPATHY, J Date: 12.10.2011 bss [1] AIR 1992 Karnataka 270 [2] 1999(3) ALD 317