IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY EIGHTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2632 OF 2001 BETWEEN: Chundi Chenna Reddy …APPELLANT AND Maddireddy Venkata Subbaramireddy and others. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 2632 OF 2001 JUDGMENT: The plaintiff in O.S.No. 26 of 1988 on the file of Senior Civil Judge, Kavali, is the appellant herein. 2. The suit was one filed for declaration of title and recovery of possession of the schedule properties i.e., an extent of Acs.4.24 cents of land situated at Laxmipuram village. 3. The allegations in the plaint go to show that one Kandlagunta Venkata Subba Reddy was the absolute owner of the plaint schedule property and he was also granted Ryotwari patta and agreed to sell the property to the plaintiff and sold on 15.06.1974 for a consideration of Rs.4,000/- and put him in possession of the property. The plaintiff has been in possession and enjoyment of the property and a declaration was also filed before the Land Reforms Tribunal. The plaintiff has been staying at Kavali till 1984 and the defendant taking advantage of the same, trespassed into the schedule property and also put up some temporary structures about six years back. The defendants did not deliver the possession and denied the title of the plaintiff. Hence the suit. 4. The 1st defendant filed a written statement denying the allegations about the rights of Venkata Subba Reddy to transfer the same to the plaintiff. According to the 1st defendant, the land to an extent of Acs.4-24 cents belonged to Kandlagunta family, in which there are several sharers. Kandlagunta Venkata Subba Reddy sold the entire plaint schedule property to Kandlagunta Venkata Reddy in the presence of Maddireddy Ramana Reddy and Maddireddy Venkata Subba Reddy in 1967 and delivered possession to him and subsequently executed an agreement of sale. Thereafter Venkata Reddy sold the property to Kandlagunta Ramana Reddy for Rs.6,000/- and the said Ramana Reddy sold about Ac.0.75 cents of land to the 1st defendant in 1972 and executed a registered sale deed on 16.03.1974 and ever since the 1st defendant has been in possession and enjoyment of the said property. The 1st defendant has also acquired title by adverse possession. The alleged granting of patta in favour of the plaintiff is also not true. 5. The 8th defendant, who filed written statement, which was also adopted by defendants 5 to 7, contending that the plaintiff has no right or title to the property and that they have been in possession and enjoyment of Ac.1-00 Gt., of land since long time and houses were constructed. Defendants 6, 7 and 11 purchased Ac.0.70 cents under registered sale deed dated 16.03.1974. Defendants 2 to 4 purchased Ac.0.25 cents on the same day from Ramana Reddy. 6. It was also further pleaded in additional written statement by 1st defendant when the father of the plaintiff caused loss to the trees in the land, the suit O.S.No.282 of 1980 on the file of District Munsiff Court was filed and the father of the plaintiff did not contest that the property was purchased by his son. Therefore, the suit is liable to be dismissed. 7. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the plaintiff is entitled for declaration and for possession in respect of plaint schedule property? 2) To what relief? Subsequently the issue No.1 is amended as follows: Whether the plaintiff has right and title over suit schedule property? The following additional issues are framed dt.19.06.1998:- 1) Whether the defendants have acquired title to the suit property by prescription and adverse possession? 2) Whether the suit is bad for non-joinder of necessary parties? 3) Whether the suit is barred by limitation? 4) Whether the plaintiff is entitled for future profits as prayed? 5) Whether the plaintiff is entitled for delivery of vacant possession of plaint schedule property as prayed? 8. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A.1 to A.20. On behalf of the defendants, DWs.1 to 4 were examined and marked Exs.B-1 to B.17. 9. After considering the evidence on record, the learned Senior Civil Judge, Kavali, dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 10. The points that arise for consideration are: 1) Whether the plaintiff is entitled for the declaration prayed for? 2) Whether the defendants have perfected title by adverse possession? 3) Whether the judgment and decree passed by the learned Senior Civil Judge, Kavali, is legal and sustainable? 11. POINTS: The claim of the appellant is that the suit schedule property originally belonged to Venkata Subba Reddy from whom he claims to have purchased under registered sale deed dated 15.06.1974 and he was in possession and enjoyment of the property, but the defendants occupied the land illegally at about six years prior to the filing of the suit and therefore, the suit is filed for declaration and recovery of possession of the property. The learned Senior Civil Judge found that the plaintiff has failed to prove that the vendor has title to the property. In fact, this finding of the learned Senior Civil Judge cannot be taken into consideration in view of the specific plea of the defendants that the schedule property was sold by Venkata Subba Reddy to Kandlagunta Venkat Reddy in 1967 and Venkat Reddy in turn sold the property under an agreement to the Ramana Reddy and from Ramana Reddy 1st defendant claims to have purchased the property under the registered sale deed dated 16.03.1974, which was preceded by an agreement of sale dated 26.09.1972. Therefore, it is quite clear that the title of Venkata Subba Reddy was admitted originally. But the fact remains that the sale deed in favour of the 1st defendant and the other defendants is dated 16.03.1974, whereas the sale claimed by the plaintiff is dated 15.06.1974. Therefore, it is necessary for the plaintiff to show that by the date of the execution of sale deed, there was subsisting title of Venkata Subba Reddy. It is to be noted that Exs.B.1, B.14 and B.17 were executed on the same day by Ramana Reddy. Though a patta is said to have been given to Venkata Subba Reddy, he was not examined. The document filed by the plaintiff before the Land Reforms Tribunal is only after his purchase. But however, the plaintiff has not chosen to examine Venkata Subba Reddy to prove that he was having subsisting title to the property. The Ryotwari pass books said to have been issued in favour of Venkata Subba Reddy is not filed. It is true that the lower Court had also found that the defendants also failed to prove as to how Venkata Ramana Reddy has got title to the property and the sale deeds were not taken into consideration. 12. In view of the above circumstances, possession alone has to be taken into consideration. Even if for a moment the sale deed Ex.A.1 in favour of the plaintiff is to be taken as valid, evidently, according to the plaintiff, he was not residing in the schedule property and six years prior to the filing of the suit the dispossession has taken place and the plaintiff has not given any notice nor taken any action when the defendants have trespassed and made permanent constructions, whereas according to the case of the defendants on the date of purchase of the property under the sale deeds Exs.B.1, 14 and 17, dated 16.03.1974 they got into possession of the property. The plaintiff has not produced any evidence to show that there was delivery of possession under the sale deed Ex.A.1 dated 15.06.1974. The delivery of such a possession is not possible since the sale deeds in favour of the defendants are prior to the sale deeds in favour of the plaintiff. Therefore, the burden is on the plaintiff to show that the vendor has delivered the possession of the property. When the possession of the property six years prior to the filing of the suit is admitted, a presumption can also be drawn that the possession of the defendants is only under the sale deeds Exs.B.1, 14 and 17, dated 16.03.1974 and they continued to be in possession. The fact of possession can also be taken into consideration in view of the fact that certain structures were raised, which are of permanent nature in the schedule properties. The lower Court has accepted the title by adverse possession and also taken into consideration the evidence of DWs. 1 to 4 about the possession. Further, PW.1 himself admits that by the date of his purchase under Ex.A.1 sale deed, the defendants have erected some huts to some extent and he does not know since how long the huts were there. The suit was filed on 16.06.1986, which is evidently beyond the period of twelve years from the date of Ex.A.1, which is dated 15.06.1974. Even otherwise it is the claim of the 1st defendant that the sale transaction has preceded by an agreement of sale in 1972. Therefore, it is quite clear that the plaintiff or his vendor was not in possession of the property and the defendants were in possession for a long time adversely to the knowledge of the plaintiff and his vendor and the finding of the lower Court that the defendants have perfected title by adverse possession cannot be said to be incorrect. Therefore, I find no merits in the appeal. Accordingly points are answered. 13. In the result, appeal is dismissed. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 28-04-2011. INL