THE HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.655 of 2010 JUDGMENT: This second appeal is preferred by the defendants, who unsuccessfully challenged the judgment and decree dated 09.11.2006 passed by the Junior Civil Judge, Alamuru in O.S.No.123 of 1997, in A.S.No.2 of 2007 on the file of Senior Civil Judge, Ramachandrapuram, whereby the appeal preferred by the appellants/defendants has been dismissed confirming the judgment of the trial Court. The respondents herein, who are the mother and her adopted son, filed the above suit for declaration of title to the plaint schedule property and to direct the defendants to deliver vacant possession of the schedule property and also for damages. It is stated that late Subbarao, the husband of the first plaintiff and adoptive father of the second plaintiff, was the absolute owner of the plaint schedule property admeasuring an extent of Ac.0.67 cents in R.S.No.530/3 situated at Alamuru Village as it was given to him as service Inam. Late Subbarao leased out the same to the first defendant about 20 years back and he was cultivating the same as tenant till 1985, in which year Subbarao died. Then the first defendant approached the first plaintiff to permit him to cultivate the schedule land as a tenant on payment of Rs.2,500/- per annum, for which she agreed. The first defendant paid makthas at that rate upto the year 1992 and then the first plaintiff asked him to enhance the rent to Rs.3,000/- per annum. As the first defendant refused to enhance the rent, the plaintiffs asked him to vacate the property and thereby disputes arose between them. As the defendants were not paying the maktha, the plaintiffs got issued a legal notice on 06.02.1997 for arrears and also to vacate the schedule property to which the first defendant gave a false reply alleging that the plaintiffs are not owners of the schedule property; that the father of the second defendant, who was the father-in-law of the first defendant, purchased the same from the husband of the plaintiff in the year 1955 and that he executed a Will deed in favour of the defendants in the year 1965. Then the matter was placed before the elders, but there was no change in the attitude of the defendants. Hence, the suit. The first defendant filed written statement, which was adopted by his wife second defendant, stating that the husband of the first plaintiff executed possessory agreement of sale on 01.07.1955 in respect of the plaint schedule property in favour of Sri Veedi Venkata Reddy, father of the first defendant by receiving Rs.1,000/-; that he delivered possession of the same on the even date and from then the father of the first defendant continued in possession and enjoyment of the said property as owner until his death; that in pursuance of the Will deed executed by the father of the first defendant on 03.03.1965, the first defendant and his wife have become absolute owners from the year 1971, when the father of the first defendant died, and that during his lifetime, the father of the first defendant used to demand the first plaintiff and her husband to execute registered sale deed, but they used to postpone. Therefore, there is no relationship of landlord and tenant between them and they never paid rent to the plaintiffs and even otherwise they have perfected title by adverse possession. Based on the above pleadings, the trial Court framed the following issues for trial: i) Whether the plaintiffs are entitled for declaration and possession of suit schedule property by ejecting defendant? ii) Whether the plaintiffs are entitled for past profits as prayed for? iii) To what relief? Additional Issue: i) Whether the defendant is entitled for adverse possession? In order to prove the case, on behalf of the plaintiffs, the plaintiffs examined themselves as P.Ws.1 and 2 and also examined three more witnesses as P.Ws.3 and 5 and got marked Exs.A.1 to A.6. On behalf of the defendants, the first defendant examined himself as D.W.1 and also examined two more witnesses as D.Ws.2 and 3 and got marked Ex.B.1-unregistered Will deed. The learned trial Court, on elaborate consideration of the oral and documentary evidence adduced by the parties, and in view of the admission of the defendants that the husband of the first plaintiff leased out the plaint schedule property in favour of the first defendant, and as Ex.B.1-Will deed said to have been executed by the father of the first defendant was not proved, since none connected with the document was examined, and as the evidence of D.W.1 was inconsistent, decreed the suit negativing the plea of the defendants, vide judgment dated 09.11.2006. Aggrieved by the said judgment, the defendants carried the matter in appeal before the lower appellate Court. The lower appellate Court framed the following points for consideration: 1) Whether the suit as framed and filed in the civil court is not maintainable in view of A.P (A.A) Tenancy Act? 2) Whether the plaintiffs proved their title to the plaint schedule property? 3) Whether the defendants have perfected their title by way of adverse possession to the plaint schedule property? 4) Whether the learned trial court committed error warranting interference in its judgment and decree in the suit? 5) To what relief? The lower appellate Court, on point No.2 observed that to prove the case of the plaintiffs that the plaint schedule property is service inam land of the husband of the first plaintiff and adopted father of the second plaintiff, the first plaintiff examined herself as P.W.1 and also examined the second plaintiff as P.W.2, two independent witnesses as P.Ws.3 and 4 and the Deputy Mandal Revenue Officer as P.W.5; that the plaintiffs filed the certified copy of Ryotwari Patta, dated 01.03.1991 issued in the name of the first plaintiff by the Tahsildar under the Andhra Pradesh (Andhra Area) Inams Abolitions and Conversion into Ryotwari Act, 1956 and Exs.A.2 to A.4 Adangal/Pahanis from the year 1992-93 to 1994-95 wherein the name of the first plaintiff was found recorded as enjoyer of the land and for the pattadar it was noted as carpentary Inam; that the defendants failed to produce the alleged possessory agreement of sale; that from the entire evidence brought on record, the plaintiffs have proved that the title was with the husband of the first plaintiff, and on his death in the year 1985 it was passed on to his legal heirs, which is not disputed by the defendants, and it may be for that reason the patta was issued in the name of the first plaintiff and her name was entered in the Adangal/Pahani, and accordingly, held that the plaintiffs have proved their title to the plaint schedule property and so they are entitled for declaration of title; on point (1) it was held that even though in the course of trial, the defendants have introduced a new story that they are not cultivating the said lands but raising only grass, which if it is true then in view of Section 18(d) of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short ‘the Tenancy Act’), the provisions of the said Act will not be applicable and so a suit for recovery of possession alone is to be filed and that cloud was created over the title of the plaintiffs over the plaint schedule property and hence it was necessary for them to file a declaratory suit and therefore, the suit is the only proper remedy and accordingly upheld the maintainability of the suit; on point (3) it was held that since the defendants have pleaded that they have purchased the property under a possessory agreement of sale, they are debarred from claiming adverse possession, and on point (4) it was held that even though the learned trial Court did not proceed with the suit in the manner required as it used to refer the Will deed as if it was marked as Ex.B.2, which in fact was not proved by examining attestors etc., and as if the defendants have got marked Ex.B.1 agreement of sale, which was not produced and marked, but however ultimately reached to a right conclusion, and accordingly dismissed the appeal confirming the judgment and decree passed by the trial Court. Sri T.S.Anand, learned counsel appearing for the appellants /defendants contended that when the tenants denied the landlords title, it is only the Tribunal constituted under the Tenancy Act will have exclusive jurisdiction to try the case and the Civil Court will not have jurisdiction. To buttress the said submission, he placed reliance on a judgment of this Court in Alla Nageswara Rao (died) and others v. Kalipindi Appala Narasamma and others[1]. On appeal being filed against the said judgment, the Supreme Court in Civil Appeal No.4792 of 2008, dated 04.08.2008 held that the suit was filed for declaration of title and recovery of possession and the same was maintainable before the civil court and merely because for granting of ancillary relief claimed by the plaintiffs, including the relief of recovery of possession, the Special Officer could have been moved, the civil court’s jurisdiction cannot be treated to have been ousted and the High Court committed an error in dismissing the suit on the ground that civil court did not have jurisdiction to entertain the suit, and accordingly allowed the appeal. Admittedly, in the instant case, the defendants not only denied the title of the petitioners but they have also set up an independent title in the suit schedule property under the Will deed said to have been executed by the father of the first defendant, in whose favour possessory agreement of sale was executed on 01.07.1955, but the same has not been established by the defendants. Further, as it was stated by the defendants that they are not cultivating the said land, but raising grass only, the provisions of the Tenancy Act are not applicable. When the defendants failed to produce the alleged possessory agreement of sale, the mere recital in Ex.B.1-Will deed said to have been executed by the father of the first defendant that he purchased the schedule property and he is bequeathing the same in favour of the defendants, cannot be taken as a proof of purchase. In view of the concurrent findings arrived at by the both the Courts below, no question of law, much less substantial question of law, arise for consideration in this Second Appeal. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _____________________ A. GOPAL REDDY, J Date: 30.07.2010 va [1] 2006(3) ALT 152