THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.1093 of 2011 JUDGMENT: For the sake of convenience, the parties herein are referred to as arrayed in the suit. The plaintiffs in O.S.No.22 of 1994 on the file of the Senior Civil Judge, Markapur, are the appellants. They filed the suit for the relief of declaration of title in favour of themselves and respondents 1 to 5; for recovery of possession thereof from respondents 6 to 9, and for mesne profits in respect of the suit schedule property of an extent of 17 ½ cents in survey No.473/2A-1 of Giddalur Village, Prakasam District. It was pleaded that Ac.1.90 cents was owned by Smt.Obulamma and she, in turn, had gifted an extent of Ac.1.00 in favour of Y.Papulamma, in 1922. The balance of Ac.0.90 cents is said to have been gifted in favour of one Sri Dappili Ranga Reddy, son of Yama Reddy (for short ‘D.Y.Ranga Reddy’), at about the same time. There is another person in that village, by name, Dappili Ranga Reddy, son of Kota Reddy (for short ‘D.K.Ranga Reddy’). Appellants claim to be the legal descendants of D.K.Ranga Reddy. The suit was filed on the basis that the schedule property has fallen to the share of Papulamma, and that she, in turn, was the kept- mistresses of D.K.Ranga Reddy. Stating that the property had accrued to the estate of D.K.Ranga Reddy on the death of Papulamma and that it has devolved upon the appellants on the death of D.K.Ranga Reddy, they claimed the relief of declaration of title and recovery of possession. Alternatively, they have pleaded that they have perfected their title by way of adverse possession, by the time they were dispossessed by defendants 6 to 9. The plaintiffs narrated various developments that have taken place, vis-à-vis the land, such as sale of bits thereof jointly by Papulamma and D.Y.Ranga Reddy, enjoyment of parts of property by various individuals. The suit was opposed by defendants 6 to 9. They attempted to trace the origin of their title to the property and denied the contentions of the plaintiffs. They have presented a totally different picture altogether. According to them, D.K.Ranga Reddy, independently had a share in the land in survey No.473/2A-1 and he executed a gift deed in favour of Papulamma. Reference was also made to certain proceedings that ensued between the parties on an earlier occasion. It was further pleaded that Papulamma had executed a deed of gift settlement, dated 11.05.1966, Ex.B.3, in favour of Dappili China Ranga Reddy son of D.K.Ranga Reddy. The trial Court dismissed the suit vide judgment dated 12.04.2004 and that the same was affirmed through judgment dated 31.01.2007 by the VI Additional District Judge, Markapur, in A.S.No.124 of 2004. Hence, this Second Appeal. Learned counsel for the appellants submits that the Courts below have not appreciated the evidence on record on correct lines and that serious error was committed. He contends that substantial questions of law arise for consideration, and the title of the plaintiffs ought to have been upheld and consequential relief ought to have been granted. The trial Court framed the following issues for its consideration: i) “Whether the plaintiff has title and possession over the suit plot within a statutory period? ii) Whether the defendants 2 to 9 have perfected their title to the respective plots, as contended by them? iii) Whether the suit is barred by res judicata? iv) Whether the plaintiff is estopped by his own admission in the prior suit proceedings O.S.No.222 of 1982, O.S.No.170 of 1987 and O.S.No.25 of 1982?” On behalf of the plaintiffs, PWs.1 to 5 were examined and Exs.A.1 to A.15 were marked. On behalf of the defendants, DWs.1 to 5 were examined and Exs.B.1 to 10 were filed. The lower Appellate Court discussed the matter, with reference to the issues that were framed by the trial Court. The suit was filed by late Dappili Venkata Ranga Reddy, the husband of the 1st appellant and father of appellants 2 and 3. He was not clear as to the manner in which the property was acquired. He pleaded that the suit schedule property is part of the land owned by Papulamma and that she was the kept-mistress of his father, by name D.K.Ranga Reddy. The contesting defendants, on the other hand, pleaded that Papulamma executed a gift settlement deed Ex.B.3 in favour of one Dappili China Ranga Reddy. In a suit for declaration of title, one has to trace the title through succession, transfer or assignment. Even if the facts pleaded by the plaintiffs are taken on their face value, they cannot succeed to the property held by Papulamma. Assuming that Papulamma was the kept-mistress of the father of the deceased - 1st plaintiff, it just does not become the joint property headed by the father of the 1st plaintiff. Further, the question as to whether Papulamma was a kept-mistress cannot be decided after her death. The trial Court has clearly pointed out that the 1st plaintiff has admitted the genuinity of Ex.B.3, when the same was put at issue in O.S.Nos.222 of 1982 and 170 of 1987 on the file of the District Munsif, Giddalur. His plea in the present suit was contrary to the same. They did not plead any accrual of title by way of transfer or assignment. The inescapable conclusion is that there was no basis for them to plead or prove title to the property. Filing of a suit for declaration of title, on the strength of adverse possession, is a recent phenomenon. It is only when the plaintiff in such a suit continues to be in possession of the property that he can seek such a relief. In the instant case, the 1st plaintiff was admittedly not in possession of the property. Viewed from any angle, the judgments rendered by the trial Court and the lower Appellate Court cannot be found fault with. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:19.09.2011 GJ