HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1050 OF 1992 AND CROSS OBJECTIONS No.1050 OF 1992 COMMON JUDGMENT: The appeal is filed against the judgment and decree in O.S.No.183 of 1979 on the file of the Subordinate Judge, Rajahmundry. The defendant in O.S.No.183 of 1979 is the appellant herein. 2. The suit was one filed for recovery of possession of the plaint schedule property by evicting the defendant and also for future and past profits. 3. The allegations in the plaint go to show that the plaintiff has purchased the suit schedule property from D.Ganga Raju, who is owner of the property, on 04.05.1973 under the agreement of sale and thereafter obtained a registered sale deed on 09.11.1973 and also obtained possession of the property. The defendant filed a suit against the plaintiff and the original owner Ganga Raju claiming that he purchased the property under the agreement of sale dated 11.06.1973 and the said suit was dismissed on 18.08.1979 and when the suit was pending, taking advantage of the injunction order the defendant got into possession of the property. Therefore, he is liable to pay profits and deliver possession of the property. 4. The defendant filed a written statement contending that the rights of the parties are subject to the result in O.S.No.148 of 1973 on the file of Subordinate Judge, Rajahmundry, which is pending in appeal. The agreement in favour of the plaintiff is not true and consequently the sale deed is not valued. The plaintiff was never in possession and enjoyment of the property. The plaintiff is therefore not entitled for any relief. 5. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court, for trial: 1) Whether the sale agreement dated 04.05.1973 is antedated to defeat the sale agreement dated 11.06.1973 executed by D.Gangaraju in favour of the defendant which is the subject matter of O.S.No.148 of 1973 filed on the file of Sub Court, Rajahmundry? 2) Whether the defendant is in possession of the plaint schedule land since 1973? 3) Whether the claim of plaintiffs is barred by time? 4) To what relief? 6. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A.1 to A.7. On behalf of the defendant, DWs.1 and 2 were examined and marked Exs.B.1 to B.4. 7. After considering the evidence on record, the learned Subordinate Judge, Rajahmundry, decreed the suit of the plaintiff and granted past profits and determination of the future profits shall be on a separate application. However, the result of this decree was subject to the Civil Appeal No.3040 of 1989 pending in the Hon’ble Supreme Court. Aggrieved by the said judgment and decree, the present appeal is filed by the defendant. 8. The points that arise for consideration are: 1) Whether the plaintiff is the owner of the property? 2) Whether the plaintiff is entitled for recovery of the possession and profits? 9. POINTS: There is no dispute between the parties that the suit property was originally belonged to Ganga Raju, the sale deed in favour of the plaintiff is dated 09.11.1973 and in order to prove that the consideration has passed, the plaintiff has also produced Ex.A.2 agreement of sale. The defendant claims to have purchased the property under an earlier agreement. It is not in dispute that the appellant herein has filed the suit for specific performance in O.S.No.148 of 1973 on the file of Subordinate Judge, Rajahmundry against the plaintiff and the original owner. The said suit was dismissed. In such circumstances, the appellant cannot set up title in himself. When the appellant claims to be in possession of the property under an agreement of sale, he cannot also set up a plea of adverse possession. Therefore, from the material available on record, the property was purchased from the original owner by the plaintiff and the rights of the appellant as claimed by him were negatived in all the Courts. It is also brought to the notice of this Court that the Civil Appeal No.3040 of 1989 on the file of the Hon’ble Supreme Court, which was filed by the appellant as against the original decree in O.S.No.146 of 1973 against the original owner and also the plaintiff was dismissed in August, 1999. Therefore, it is quite clear that the appellant has no right or interest over the property and he is bound to deliver possession of the property. 10. So far as the cross-objections are concerned, the lower Court taken into consideration the reasonableness, has granted past profits and the challenge thereof does not appear to be real and there is no material to show that the past profits fixed by the lower Court are not reasonable. 11. Therefore, in view of the above circumstances, there are no merits in the appeals. Points are answered accordingly. In the result, the appeal and cross objections are dismissed with costs. _________________________ N.R.L. NAGESWARA RAO, J Date:18.08.2011 INL