IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF FEBRUARY, 2011 : PRESENT: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No. 6 of 2000 BETWEEN: 1. Haldi Dade Saheb & 2 others. …Appellants AND 1. Haldi Mahaboob Bee @ Gowse Bee & another. … Respondents Counsel for Appellants : Mr. O. Manohar Reddy Counsel for the Respondent : Mr. C. Konda Ram The Court made the following JUDGMENT: The second appeal is by the plaintiffs whose suit O.S.No.352 of 1987 for declaration and injunction was dismissed by both the courts below. 2. The said suit was filed by the plaintiffs on 14.10.1987 claiming absolute ownership over the suit schedule land, which is admeasuring Ac.0.75 cents in Sy.No. 478/1. The first plaintiff is the husband of second plaintiff and father of third plaintiff. It is alleged that the actual extent of the land is Ac.3.45 cents. It is alleged that this property was purchased by the 1st plaintiff under registered sale deed on 29.09.1951 (Ex-A1) and later under a registered gift deed dated 16.12.1959 (Ex-A2), the 1st plaintiff had gifted the property purchased under Ex-A1 to 3rd plaintiff and his another son Zekria. It is alleged that, Zekria, the second donee died unmarried and thereby as a reversioner, the entire Ex.A1 property was reverted to plaintiffs. It is also the case of the plaintiffs that they have sold an extent of Ac.1.92 cents out of Ex.A1 to one Rupaneni Pedda Venkata Swamy under Ex-A3 dated 02.06.1969 and the remaining property, which is the suit schedule property regarding which interference was alleged against the defendants/ respondents. Hence, the present suit. 3. The suit was contested by defendant No.2, who is the purchaser of the suit schedule property from defendant No.1. He contested the suit by claiming that D1 is the brother’s wife of first plaintiff and as reversioner, had a share in the property. It is alleged that 1st defendant sold the suit schedule property to defendant no.2 under Ex-B1 dated 27.11.1967 = Ex.A4 certified copy. The Defendant No.2 also alleges that the plaintiffs have agreed and executed an agreement under Ex.B2 dated 06.04.1968 accepting the right and possession of D2 and undertook not to make any complaint or raise dispute over the same. D2 also contends that he has been paying land revenue evidenced by cist receipts under Exs.B.3 to B6 and that he had also declared the suit schedule land in his declaration Ex.B8 under Agricultural Land Ceiling Act. Apart from the aforesaid pleas, defendant No.2 also raised a substantial plea claiming adverse possession. 4. The trial court framed various issues, relevant for our purpose would be issue No.1 & an additional issue No.1, as under: 1. Whether the plaintiff is entitled to the declaration of rights in respect of the suit property? Additional issue: 1. Whether the second defendant has perfected his title over the suit land by adverse possession? 5. The trial court found, on issue No.1, that D1 has not established as to how she acquired right in the property, as she had neither produced any document to show her exclusive ownership nor D2 has taken steps to establish D1’s title. On the additional issue No.1, trial Court found that defendant No.2 has established his case for adverse possession and in view of the fact that his rights and possession was acknowledged by the plaintiff under Ex.A3 dated 02.06.1969 and also under Ex.B2 dated 06.04.1968 and consequently, held that defendant no.2 is enjoying possession and has established adverse possession. The suit accordingly was dismissed, which led to plaintiffs’ filing the appeal. 6. The lower appellate Court went into the first question as to whether the first defendant has share under the Muslim law and came to hold that there is no concept of joint family under the Muslim law, but has not answered the said question in favour of the appellant. On the second question as to whether plaintiffs are entitled for declaration, it has proceeded to consider the title set up by defendant No.2 and on the basis of Ex-B2, relied upon by defendant No.2, it came to conclusion that the said document amounts to permission given by the plaintiffs to the 2nd defendant to continue in possession. It had, however, held that the possession even though permissive, the defendant remained in possession on the date of the suit by adverse possession to the knowledge of the plaintiffs. Further, it is non-suited the plaintiffs on the ground that the plaintiffs have not filed any documents showing that they are in possession of the suit land within 12 years prior to filing of the suit. These findings are questioned in this appeal by the plaintiffs and by order dated 18.07.2000, this court admitted the second appeal formulating the substantial questions of law as framed in grounds 2, 3, 4 & 5 which are as follows: (2) In the absence of positive evidence to show that he was claiming title adverse to the true owner, whether the courts below acted legally in holding that the defendants have perfected title by adverse possession? (3) Whether the lower appellate court acted legally in dismissing the suit on the ground that the plaintif’s have failed to show that they were I possession of the property within a period of 12 years from the date of filing of the suit? (4) Whether the recitals in an unregistered document which is inadmissible in evidence can be considered for holding that the plaintiffs have given up title to the schedule property? (5) Whether the courts below acted legally in relying on the recitals in an unregistered document for coming to the conclusion that the possession of the defendants is adverse to that of plaintiff is legal? 7. Heard Sri. O. Manohar Reddy, learned counsel for appellants and Sri. C. Kodand Ram Reddy, Senior counsel for the respondents. 8. After hearing the matter at length with the assistance of the learned counsel, I must record my dissatisfaction with the findings of the lower appellate court especially relating to the point Nos.1 and 2 as framed by it. The evidence on record shows that the suit schedule property was sold by D1 to D2 under registered document which is Ex-B1 dated 27.11.1967; the existence of D2 on the suit land was acknowledged by the plaintiffs themselves and under Ex.A3 dated 02.06.1969 the plaintiff described that the Eastern boundary of the property sold therein as the land sold to Gorantlaiah i.e. D2. Further, Ex- B2, dated 06.04.1968 also acknowledges the possession of D2. There were certain submissions before both the courts below on behalf of the plaintiffs that Ex.B.2 amounts to relinquishment deed and since it is unregistered, it is not admissible in evidence. The trial court has proceeded to treat the said document as a document for collateral purpose evidencing possession of D2. The lower appellate court has not recorded any specific finding but has proceeded to think that since the said document was marked without objection, the plaintiffs cannot raise the objection with regard to the admissibility of the said document. Irrespective of the nature of the said document, & subject to objection aforesaid, the document shows that D2 continued to be in possession of the suit property and the same was acknowledged by the plaintiffs with an undertaking that plaintiffs would not object or raise dispute over it. 9. The suit in question came to be filed on 14.10.1987. The lower appellate court therefore, ought to have answered the specific questions as to whether plaintiffs are entitled for declaration of title as prayed for and whether D2 has established adverse possession. The errors committed by the lower appellate court, as noticed above, are firstly with regard to mis-conception that plaintiffs must prove their possession for 12 years prior to suit. The said requirement was one under Articles 144 and 145 of the Limitation Act, 1908, but not any more under Articles 64 and 65 of the Limitation Act, 1963. Secondly, the lower appellate court has misread Ex.B2 and committed error in thinking, as if it amounts to granting permission by the plaintiffs to defendant No.2 to remain in possession. A further conclusion is drawn based on the said misreading of Ex.B2 that possession of D2 is permissive. In my view, the aforesaid errors apart from failure to consider the nature of Ex-B2 and whether the ingredients of adverse possession are established by defendant no.2, vitiate the judgment of the lower appellate court. As a final Court of fact, it was necessary for the lower appellate court to have dealt with these aspects keeping in view the evidence on record. I am, therefore, constrained to set aside the judgment of the lower appellate court by answering the substantial questions of law in grounds 3 and 4 in favour of appellants, as the judgment of the lower appellate court suffers from errors of application of law as to limitation, as mentioned above, as well as error committed by mis- appreciation of Ex-B2. 10. The appeal is, accordingly, allowed. The judgment of the lower appellate court is set aside and A.S.No.15 of 1992 is remitted back to the Senior Civil Judge, Gooty, to hear and decide the appeal afresh by giving due opportunity to both the sides and record findings on the points that arise for consideration, as briefly indicated above. The lower appellate court shall be free to frame further point or points as it deems necessary and answer the same accordingly. The lower appellate Court shall hear and dispose of the appeal, as expeditiously as possible, and in any case, within six (6) months from the date of receipt of the copy of this order. There shall be no order as to costs. _______________________ VILAS V. AFZULPURKAR 3rd day of February, 2011 DSK/ysk THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.No. 6 of 2000 DATED: 03.02.2011 DSK/YSK