IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.124 of 2000 BETWEEN Katikireddi Naga Venkata Sree Rama Rao …APPELLANT AND The State of Andhra Pradesh, rep. By the Collector, East Godavari District and 9 others. …RESPONDENTS Counsel for the Appellant: MR. CH. ANJI REDDY Counsel for the Respondents: GP FOR ARBITRATION The Court made the following: JUDGMENT: This is an appeal by the plaintiff No.10 against the decree of the lower appellate Court in A.S.No.21 of 1987 dated 31.12.1999 dismissing the plaintiffs’ suit being O.S.No.222 of 1973. 2. Heard the learned counsel for the appellant and the learned Government Pleader. For the sake of convenience the appellant is referred to as plaintiff and the respondents are referred to as defendants. 3. The case of the plaintiffs, in the suit, is that the suit schedule property is a wooden stall on the highway in which the predecessor in interest of the plaintiffs was carrying on a petty business. In the plaint it is alleged that he was carrying on the business from 42 years and has perfected his title by adverse possession. It is also alleged that the defendant – State issued notice to him under the Land Encroachment Act, 1905 (for short ‘the Act’), which resulted in an eviction order dated 19.06.1969 and the appeal against the said order was dismissed and so also the revision. While the revision was dismissed in 1973, the plaintiffs filed the present suit in 1973 after giving a suit notice under Section 80 of the Code of Civil Procedure, 1908 claiming declaration of title based on adverse possession and for consequential injunction. 4. The defendant filed a written statement stating that RS.No.230 of Tatipaka village totally admeasures Ac.3.30 cents and a highway road called Sivakodu Manepalli road runs on the eastern bund of the Kadali canal at this village and this junction is called Jagannapeta junction where there is heavy traffic and is a business center. On account of the encroachment on the road margin by the plaintiff, the road is narrowed down causing serious inconvenience to the traffic passing by, which is increasing every day. The plaintiff is stated to be in possession of Ac.0.1 cent of land encroached on the Government poramboke part of RS.No.230 and is carrying on business by erecting a wooden stall for about 12 years. The claim of adverse possession made by the plaintiff was denied and it is asserted that the Government had issued notice of eviction dated 12.11.1968, which was served on the plaintiff on 22.11.1968 resulting in eviction order dated 19.06.1969 followed by rejection of the appeal by the appellate authority on 25.10.1969 and rejection of the revision also on 26.09.1970. It is also stated that the plaintiff is having buildings and other assets in the village and is not a poor man, as alleged and even though encroachment is established; as per observations in the revision by the revisional authority, the defendants were willing to give alternative site for shifting the shop but the plaintiff did not agree. 5. On these pleadings, the evidence was led by the parties and the trial Court came to the conclusion that the plaintiff has established adverse possession and decreed the suit. On appeal, the lower appellate Court has reversed the said decree, firstly, by finding, on facts, that the plaintiff has failed to produce any evidence of continuous, uninterrupted and hostile possession to the knowledge of the real owner and secondly, the only documents produced by the plaintiff in support of the said plea viz. Ex.A4 Averja for 1947-1948 and electricity payment receipts marked under Ex.A7 and the bills Ex.A8 onwards, are not sufficient to establish adverse possession over the statutory period. The lower appellate Court also found that even assuming that the plaintiff was in possession, as pleaded, that was interrupted by issuance of notice and eviction orders under the Act, as such, adverse possession having not accepted, the appeal was allowed. 6. In this second appeal, the substantial questions of law as raised in grounds (a) to (d) of the grounds are to be adjudicated, which primarily centers round the question as to whether the plaintiff has established adverse possession, as pleaded by him. 7. Learned counsel for the appellant has elaborately contended that Ex.A4 Averja is a document, containing various entries in the book maintained by the original occupier viz. the predecessor of the plaintiffs, which is also countersigned by the Sales Tax authorities. Learned counsel, therefore, places much stress on the said document to contend that the possession prior to 1950 is established by that document. Learned counsel also places strong reliance upon Ex.A7 as well as Exs.A8 to A59, which are electricity bills and submits that these documents clinchingly establish the possession of the plaintiffs over the statutory period and as such, the reversal by the lower appellate Court and finding given with regard to adverse possession is completely unjustified. Learned counsel also placed reliance upon SURAJ MAL v. BABU LAL[1]; PARSINNI v. SUKHI[2]; STATE OF ANDHRA PRADESH v. GUNTUR DIGNUMATE NETI KOTAL DHARAM CHALIVENDRA SANGAM[3]; ANDHRA PRADESH STATE v. GOWRA SUBBARAYA SETTY[4] and AMBIKA PRASAD THAKUR v. RAM EKBAL RAI (DEAD) BY LRS[5] for the proposition as to how adverse possession is required to be construed and also for the proposition that this Court under Section 100 CPC can interfere with a perverse finding, on fact, reached by the lower appellate Court. 8. Learned Government Pleader, on the other hand, submits that there is no evidence whatsoever in support of the plea to even consider mere possession for over 30 years leave alone adverse possession, as pleaded. It is also contended that on account of the litigation created by the plaintiffs, in spite of eviction orders passed under the Act, which have become final, the defendant is unable to remove the encroachment of the plaintiffs with the result the general public at large using the said highway are put to serious prejudice. 9. Even if we assume and even if we proceed on the ground that the plaintiffs’ documents Exs.A7 to A59 show that the plaintiffs were enjoying the electricity connection on the said wooden stall for several years, the earliest document among them is the bill for Ex.A8 dated 15.10.1955. Ex.A4 on which strong reliance is placed by the learned counsel for the appellant is dated 01.10.1947 covering the period 1947-48. The licenses, which are marked as Exs.A5 and A6, are for the year 1950-1951 and 1951-52. Ex.A4, Averja, is, admittedly, the document written by the predecessor of the plaintiffs himself and since he is no more and there is no other evidence to establish the said document, the self-serving document cannot have any probative value. The licenses – Exs.A5 and A6 for the period 1950-51 and 1951-52 by itself show that the plaintiffs were in permissive possession. Thus, the electricity bill of 1955 – Ex.A8, even if taken into consideration and assuming that the plaintiffs continued in possession since then, admittedly, the said possession was interrupted when notice under the Act was given to the plaintiffs in 1968, the statutory period of 30 years, therefore, is not satisfied and the interruption in 1968 to the anterior possession of the plaintiffs destroys any claim for adverse possession, as made out in the plaint. Subsequent to 1968, there are orders of eviction by the original authority, the appellate authority as well as the revisional authority and thereafter, the present suit was filed in 1973. Thus, the basic requirement of adverse possession, on facts, is clearly not established by the plaintiffs either in the form of establishing mere possession or in the form of establishing hostile, continuous and uninterrupted possession. It is now well- settled that in order to succeed on the plea of adverse possession, the plaintiff must establish such possession, which is adequate in continuity as well as publicity – nec vi, nec clam, nec precario i.e. peaceful, open and continuous. The plaintiffs having failed to establish the same, the lower appellate Court has rightly allowed the appeal and I find no reason whatsoever to take a different view than the one taken by the lower appellate Court, as the said judgment is neither contrary to evidence on record nor contrary to law nor perverse on any ground. The appeal, therefore, deserves to be dismissed. The second appeal is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J September 9, 2011 DSK [1] AIR 1985 DELHI 95 [2] (1993) 4 SCC 375 [3] 2003 (3) ALD 349 [4] 1967 (2) An.W.R 433 [5] AIR 1966 SC 605