*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.336 of 2010 %08-11-2011 # Sanaka Ramesh ..appellant And Sanaka Narayana Rao (died) Per LRs ..Respondents !Counsel for the appellant: Sri C. Raghu ^Counsel for respondents . : Sri P.R. Prasad < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.336 of 2010 JUDGMENT: This Second Appeal is ﬁled against the concurrent judgments rendered by the Court of Senior Civil Judge, Machilipatnam, in O.S.No.27 of 1990 and the Court of VI Additional District and Sessions Judge, Krishna at Machilipatnam in A.S.No.59 of 1999. The deceased-1st respondent ﬁled the suit for declaration of title and recovery of possession in respect of Ac.1.55 cents of land in R.S.No.72/1 in patta No.628 of Chiruvolulanka Village of Mopidevi Mandal, Krishna District, against the mother of the appellant herein by name, Kosuri Nagamanikyamma, shown as the deceased-7th respondent, and respondents 8 and 9. During the pendency of the appeal, the sole plaintiﬀ died and respondents 2 to 6 herein are added as his legal representatives. The 1st defendant, i.e. Kosuri Nagamanikyamma died during the pendency of the appeal, and the appellant herein and respondent No.2 are brought on record as her legal representatives. Henceforth, the parties are referred to, as arrayed in the suit. The case of the plaintiﬀ was that one Sri Kosuri Rathaiah had two sons and two daughters and that the father of the plaintiﬀ, by name, Babu Rao was brought in illutum in the year 1930. It was stated that at the time of marriage of Babu Rao with one of the daughters of Rathaiah, the suit schedule property was given as gift or katnam, as per the prevailing customs, and since no document was executed at the time of marriage, Rathaiah executed a gift deed dated 17-07-1957 in favour of the plaintiff. The 1st defendant is the widow of one of the sons of Rathaiah. The plaintiﬀ pleaded that Rathaiah settled substantial extent of property upon the 1st defendant, and that she has disposed of the said properties. He alleged that the 1st defendant created interest in respect of the suit schedule property in favour of defendants 2 and 3, with an objective of grabbing the same. Initially, the suit was ﬁled for the relief of declaration of title and perpetual injunction. Later on, by ﬁling I.A.No.1560 of 1997, the plain was amended to incorporate the relief of recovery of possession. The 1st defendant ﬁled a written-statement, opposing the suit. According to her, the gift deed, even if executed by Rathaiah was not acted upon and it does not confer any title upon the plaintiﬀ. Plea of adverse possession was also raised. She has also ﬁled a counter-claim for declaration of title in her and perpetual injunction in respect of the suit schedule property, in her favour. The defendants 2 and 3 ﬁled written-statement, stating that they are the lessees of the suit schedule property and that the 1st defendant had entered into agreement to sell parts of the suit schedule property in favour of the father of the 2nd defendant and wife of the 3rd defendant. The plaintiﬀ ﬁled written-statement to the counter-claim made by the 1st defendant. The trial Court decreed the suit and dismissed the counter-claim, through judgment dated 04-03-1999. The defendants ﬁled A.S.No.59 of 1999 in the Court of VI Additional District and Sessions Judge (FTC), Krishna, at Machilipatnam. The appeal was dismissed on 26-12-2009. Hence, this Second Appeal by one of the four legal representatives of the 1st defendant (for short ‘the 1st defendant’). Sri C. Raghu, learned counsel for the 1st defendant submits that the trial Court and lower Appellate Court have committed errors of law in decreeing the suit and rejecting the counter-claim. He contends that the very fact that the suit was ﬁled in the year 1990 for declaration of title, based upon a gift deed of the year 1957 discloses that it was hopelessly barred by limitation. He contends that the 1st defendant was in possession and enjoyment of the property for the past several decades, after it was settled upon her, orally by late Kosuri Rathaiah. He submits that the observations made by the trial Court and lower Appellate Court in relation to the cist receipts are contrary to record. Learned counsel submits that the suit schedule property and other items were given to the 1st defendant in discharge of the obligation towards a Hindu widow and there was no basis for the plaintiff to file the suit. Sri P.R. Prasad, learned counsel for the respondents plaintiﬀ, on the other hand, submits that once Ex.A.-1 is proved, the title of the plaintiﬀ stands established beyond any pale of doubt. He contends that the plaintiﬀ was in possession of the property as on the date of ﬁling of the suit, and the defendants entered the said property highhandedly, after the suit was ﬁled. He submits that the plea of adverse possession raised by the defendants was not only factually incorrect, but also legally untenable. According to the learned counsel, the 1st defendant did not plead at any time, that she has any interest, adverse to the original owner of the property, Rathaiah, or for that matter, the plaintiﬀ, and that her futile attempt in this Court was correctly negatived by the trial Court and the lower Appellate Court. The suit ﬁled by the plaintiﬀ was initially for the relief of declaration of title and perpetual injunction. Stating that the defendants trespassed into the land after the suit was instituted, he ﬁled an application under Rule 17 of Order VI C.P.C., with a prayer to permit him to amend the plaint, to incorporate the plea of recovery of possession. Permission was accorded. Apart from opposing the case of the plaintiﬀ, the 1st defendant ﬁled a counter-claim for declaration of title in her favour and for perpetual injunction. The trial Court framed the following issues for its consideration: 1) Whether the plaintiﬀ is entitled for declaration consequential permanent injunction as prayed for? 2) Whether the gift deed dated 16-07-1957 is not valid and binding on the defendant? 3) Whether the ﬁrst defendant perfected his title to the schedule property by way of adverse possession? 4) Whether the suit is bad for non-joinder of necessary parties? 5) Whether the ﬁrst defendant is entitled for declaration with consequential permanent injunction that he is the owner of the property? 6) Whether the defendants 2 and 3 are the cultivating tenants of the schedule land having taken the same on lease from the first defendant? Additional issues: 1) Whether the plaintiﬀ is entitled to recover the possession of suit property? 2) Whether the relief of recovery of possession is barred by time? On behalf of the plaintiﬀ, PWs 1 to 4 were examined and Exs.A-1 to A-26 were ﬁled. On behalf of the defendants, DWs 1 to 8 were examined and Exs.B-1 to B-53 were filed. Adangals for the years 1987 to 1997 were taken on record, as Exs.X-1 to X-7, and a Will dated 30-04-1960 was taken on record as Ex.X-8. The trial Court decreed the suit and rejected the counter-claim. A.S.No.59 of 1999 was filed by the defendants. Learned counsel for the plaintiﬀ raised a plea to the eﬀect that A.S.No.59 of 1999 was directed against the decree passed by the trial Court, and that no appeal was ﬁled against the rejection of counter-claim. That, however, does not appear to be correct. The suit was valued at Rs.38,014/- and the counter-claim at Rs.25,500/-. In the trial Court, the plaintiﬀ paid the Court fee of Rs.2,086/- on the plaint and the 1st defendant a sum of Rs.1,626/- on the counter-claim. The value of the appeal was shown as Rs.63,514/- i.e. the sum of the suit claim and counter- claim. Though, it was mentioned that the Court fee of Rs.2,086/- is paid, the record discloses that the Court fee of Rs.1,626/- was also paid. The lower Appellate Court framed the following points for its consideration: 1) Whether the suit property was gifted in favour of the plaintiﬀ by his grand-father under the original of Ex.A-1 and whether it was accepted? 2) Whether the suit property was given to the 1st defendant towards her maintenance? 3) Whether the 1st defendant perfected her title to the suit property by way of adverse possession? 4) Whether plaintiﬀ is entitled to the relief of declaration and possession as prayed for? The appeal was dismissed through judgment dated 26-12- 2009. This is a rare case in which the plaintiﬀ, on the one hand, and the 1st defendant, on the other hand, prayed for the reliefs of declaration of title in respect of the suit schedule property in their favour. In addition to that, while the plaintiﬀ prayed for the relief of recovery of possession, the 1st defendant sought the relief of perpetual injunction. Therefore, the question of title, on the one hand, and possession, on the other hand, need to be dealt with separately. The common case of the parties is that the property was held by Kosuri Rathaiah. The plaintiﬀ claimed title to the suit schedule property on the basis of a gift deed, Ex.A- 1, executed by Rathaiah. The trial Court and lower Appellate Court held that Ex.A-1 is proved, and there is nothing to suggest that any different view is possible on that aspect. The basis on which the defendants claimed the title is that, Rathaiah made an oral settlement of 3 items of property in favour of her, being a widowed daughter-in-law, and that the suit schedule property is one such item. The prayer for declaration of title can be considered positively, only when the title had accrued either by operation of law, such as succession or the transfers eﬀected by the persons, who held the title. The 1st defendant does not claim the property through succession. She depends upon a settlement said to have been made by late Rathaiah. Whatever may be the acceptability of such claims, when no rival claims are made, once there exists a valid transfer made in accordance with law, an oral settlement in respect of that very property cannot be believed. The intention of the original owner of the property can be discerned more from the execution of written document than an alleged oral gift. The fact that a deed is executed would connote that he did not part with his rights, vis-à-vis the property, till he executed the same. The inescapable conclusion is that the title in respect of the suit schedule property vests in the plaintiff and not in the 1st defendant. Now comes to the question of possession. As observed earlier, the plaintiﬀ pleaded that he was in possession of the property, as on the date of ﬁling of the suit, and that the defendants trespassed into it later. As the things stand now, it is no doubt true that the defendants are in possession of the property. However, once the title in respect of an item of property is declared, the grant of relief for recovery of possession would be a matter of course, unless the person in possession of the property has perfected title by adverse possession. The possession of an individual would become adverse to the true owner, only when the former recognizes the title of the latter, and openly exercises rights of his possession for a continuous period of not less than 12 years. It is only then, that the person holding the title would be disentitled to recover possession. Since the title itself would become nugatory in such cases, law requires the plea of adverse possession to be established firmly. In the instant case, the 1st defendant did not recognize the ownership of the plaintiﬀ, but treated her father-in-law, Rathaiah as the true owner. She never claimed any rights adverse to Rathaiah, and once she did not recognize the plaintiﬀ as the owner, it is diﬃcult to accept that, even if she was in possession of the property, it was adverse to the interests of the plaintiﬀ. Further, the evidence adduced by the 1st defendant was totally inadequate to prove possession over the suit schedule property, prior to the date of ﬁling of the suit. It is a diﬀerent matter that the plaintiﬀ himself pleaded that the defendants entered the possession of the property high- handedly, after the suit was ﬁled. The cist receipts that are ﬁled by the 1st defendant into the Court are not speciﬁcally in respect of the suit schedule property. The patta number, which is mentioned in the receipts, comprises of several items and that, in turn, was in the name of Rathaiah. The trial Court and the lower Appellate Court have taken the view that such payment cannot be treated as holding good for the suit schedule property. This Court ﬁnds that there does not exist any substantial question of law and that the concurrent ﬁndings of fact recorded by the trial Court and the lower Appellate Court do not warrant interference. The second appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J. Dated: 08.11.2011 Note: LR copy to be marked. (B/O) KO/GJ