IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND TEN PRESENT: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.560 of 1984 Between: Chintalapati Purushottama Sastry (died by L.Rs.) ... APPELLANT/PLAINTIFF AND Yarlagadda Nagarja Rao and others ... RESPONDENTS/DEFENDANTS JUDGMENT: This appeal is by the plaintiff. Plaintiff questions the decree of the lower appellate Court, which has granted relief of declaration to the appellant/plaintiff, but has denied the relief of recovery of possession on the ground that the said relief falls within the jurisdiction of the authority of A.P. Tenancy Act and that the Civil Court has no jurisdiction to grant the said relief of recovery. Aggrieved by the said appellate decree the plaintiff has preferred this Second Appeal. 2. The respondent No.4 herein, who has also defendant No.4 in the trial Court and respondent No.4 before the lower appellate Court has preferred cross-objections to the extent of adverse finding against the said cross appellant in the impugned judgment of the lower appellate Court. 3. For the sake of convenience the parties are referred to as they are arrayed in the suit and the reference to plaintiff hereafter will be reference to the appellant and similarly reference to 4th defendant would be reference to the cross objector. 4. Facts in brief are as follows: The plaintiff herein claimed that the suit property belongs to one Smt.K. Sampurnasarada who is residing in West Indies along with her husband. She had acquired the said suit schedule property by way of a gift deed dated 27-03-1958 in her favour from her father late Sri.K.V.S.Sastry. She had also appointed Sri K.V.S. Sastry as her power of attorney under registered GPA Ex.A-1. 5. It is claimed that the suit land was under cultivation by Defendant No.1 as lessee right from 1968 onwards and as the defendant No.1 committed default in payment of lease amount and did not pay the same in spite of demand under Ex.A-4, defendant No.1 vacated the suit land in the year 1969. The plaintiff claims that she purchased the suit land under agreement of sale dated 20-11-1969 and on coming to know of it defendant Nos.1 and 4 gave a notice to Sri K.V.S. Sastry as well as the plaintiff under Ex.A-6. After that plaintiff purchased the suit property under registered sale deed dated 21-09-1974 through Sri K.V.S. Sastry, GPA of Smt.K. Sampurnasarada. Meanwhile, having vacated the land in 1969 it is alleged that plaintiff reentered the land in 1970 whereupon the vendor of the plaintiff filed ATP No.194 of 1979 fasli 1379 fasli against defendant No.1 for declaration that he is not a cultivating tenant. Ex.A-8 is the tenancy petition and Ex.A-9 is the counter filed by defendant No.1. After purchase of the property by plaintiff the plaintiff’s vendor as well as the plaintiff issued notices under Exs.A-10 and A-12 to defendant No.1 respectively but there was no reply. 6. While defendant No.1 is the husband of defendant No.4, defendant Nos.2 and 3 are brothers of defendant No.1 who are cultivating the land along with defendant No.1. Plaintiff’s notice Ex.A-12 was thereafter replied to by defendant No.4 under reply notice Ex.A-17. Plaintiff also filed a petition for impleading himself in the said tenancy case but later withdrew the ATC itself as per memo Ex.A-18 and filed the present Civil Suit. Since defendant No.4 had claimed that they have come into possession under an agreement as per the recitals in their notice Ex.A-6 plaintiff called upon the defendants to produce the said agreement. 7. The plaintiff states that he had filed the present civil suit as defendant No.1 disowned tenancy and claimed to be in possession through defendant No.4 on the ground that defendant No.4 had purchased the property and as defendant No.4 is claiming rights with respect to Ac.2-38 cents situated to the south of Ac.3-74 cents in Sy.No.185/6 and 7 plaintiff filed the present suit for declaration of her absolute rights and for possession and profits. 8. As the defendants was not paying profits either to their vendor or to the plaintiff the present suit accordingly was filed on 06-11-1975 for declaration that the plaintiff is the absolute owner of the suit schedule property and for declaration, possession, past profits and future profits. 9. Defendant No.1 filed written statement denying the plaint allegations and claimed that his vendor and Sri K.V.S. Sastry were on very amicable terms for a very long time and they were cordial with each other. It is alleged that Sri K.V.S. Sastry offered to sell the suit schedule property to defendant No.4 @Rs.2,000/- per acre and gave possession to defendant No.4 and received part consideration of Rs.3,000/- on 09-02-1959. On such payment defendant No.4 came in possession and enjoyment of the land since 1957. It was also claimed that as Sri K.V.S. Sastry was getting old he was facing severe pressure from his wife and daughter for disposal of the suit schedule property and had practically become a tool in the hands of wife and daughter. The plaintiff should not have come to purchase the property being aware of the subsisting right of defendant No.4 and possession of defendant No.1 through her. The plaintiff is neither bonafide nor he entitled to declaration and possession as prayed for and sale deed obtained by him is void and un-enforceable. Defendant No.1 also raised a plea of jurisdiction by claiming that tenancy Court alone can take cognizance of the matter. Defendant also claimed that in view of the cordial terms between his family and Sri K.V.S. Sastry they did not insist upon the execution of sale deed though they have paid the entire sale consideration to Sri K.V.S. Sastry. 10. Defendant Nos.2 and 3 filed a separate written statement stating that they never cultivated the suit land either personally or along with defendant No.1 at any time and the said suit land is in possession and enjoyment of defendant No.4. They, therefore, prayed for dismissal of suit so far as they are concerned. 11. Defendant No.4 filed a separate written statement contending that after the death of first defendant’s father who was cultivating the land, first defendant was cultivating the suit land till 1957. It is alleged that in 1957 Sri K.V.S. Sastry sold the entire Ac.3-74 cents of land including the suit schedule property to defendant No.4 at Rs.2,000/- per acre and delivered the possession. She claims to be in possession ever since 1957 and claims that she has paid the consideration from time to time in intalments to Sri K.V.S. Sastry. It is his claim that Sri K.V.S. Sastry gave letters acknowledging the payments of the amount and that she is in possession un-interruptedly, openly and continuously since 1957 and claims to have acquired title through adverse possession. Though formal title deed is not executed by the seller she also claimed that the plaintiff’s title is un-enforceable and not valid and the said transaction is collusive, nominal and fraudulent and with a view to defeat the rights of defendant No.4. She also disowned the notice under Ex.A-6 on the ground that she never went to Advocate and did not give instructions to him to issue such notice. It was therefore, claimed that the plaintiff was not a bonafide purchaser and had clear notice of the claim and possession of defendant No.4 and as such, plaintiff is not entitled to any relief. 12. Based on the above evidence the trial Court framed the following issues:- 1. Whether Kuchibhotla Sampurnasarada has valid title to the suit ? 2. Whether the plaintiff is a bonafide purchaser of the suit property for value without notice of the rights of the 4th defendant ? 3. Whether the suit property was sold by Sri Kuppu Subrahmanyasastry to the fourth defendant in the year 1957 ? 4. Whether the title of the 4th defendant to the suit land has been perfected by adverse possession ? 5. Whether the 1st defendant cultivated the suit land till 1969 ? 6. Whether the plaintiff is entitled to the declaration and possession of the suit property ? 7. Whether the defendants 1 to 3 are in possession of suit property ? 8. Whether the plaintiff is entitled to the mesne profits either past or future, if so, from whom and at what rate ? 9. Whether the Court has jurisdiction to try the suit ? 10.To what relief ? Additional issue Whether the defendants 1 an 4 are estopped from claiming the rights in the suit property in view of the registered notice dated 24-11-1969 ? 13. After considering the evidence on record both oral and documentary, trial Court held that the plaintiff’s vendor had valid title to the suit land. On issue No.1 Trial Court also held that the plaintiff is not a bonafide purchaser without notice of rights of fourth defendant. However, on their issue regarding the sale of property in favor of defendant No.4 in the year 1957 as claimed by her was found against defendant No.4. With regard to 4th issue it was found that defendant No.4 has perfected title by adverse possession. On 5th issue it was found that first defendant cultivated the suit land till 1969 and on the 6th issue it was found that the plaintiff is not entitled to the relief of declaration and possession and on 7th issue it was found that the defendant Nos.1 to 3 are in possession. Then consequent finding on issue No.6 and issue No.8 also was held against the plaintiff that he is not entitled to past or future profit. On issue No.9 the trial Court held that it has jurisdiction to try the suit. On additional issue No.1 the trial Court found that defendant Nos.1 to 4 trial Court having negatived the plaintiff’s claim defendants 1 to 4 are estopped from claiming the rights. 14. The appellate Court framed the following points for consideration: 1. Whether the plaintiff has got title to the suit property and whether he is a bonafide purchaser of the same for value without notice of the rights of 4th respondent ? 2. Whether the defendants 1 and 4 are estopped from claiming any rights in the suit property in view of Ex.A-6 notice dated 24-11-1969 ? 3. Whether the 4th respondent perfected her title to the suit land by adverse possession ? 4. Whether the appellant is entitled for the declaration and possession prayed for ? 5. To what relief ? 15. In impugned judgment of the lower appellate Court on point No.1 appellate Court found that plaintiff is entitled to declaration of title and he is bonafide purchaser without notice of rights claimed by defendant No.4. On point No.2 it is found that defendants 1 to 4 are estopped for claiming rights in the property in view of their notice Ex.A-6 dated 24-11-1969. On point No.3 it negatived the claim of defendant No.4 of having perfected title by adverse possession and on point No.4 it is found that the plaintiff is entitled for recovery of possession by approaching tenancy Court and not through the Civil Court. In other words, therefore, the appellate Court found that Civil Court had no jurisdiction, especially as vendor of the plaintiff had already approached the tenancy Tribunal for recovery of possession of the defendants as mentioned above. The aforesaid decree of the lower appellate Court is the subject matter of this second appeal and cross-objections. 16. The docket of the Second Appeal is partly in torn condition but it shows that by an order dated 06-07-1984 (perhaps) the second appeal was admitted on substantial question of law raised in ground No.1 of memorandum of second appeal. The cross objections were admitted by this Court by order, dated 31-10-1986 on the substantial questions of law as stated in ground numbers 4, 5 and 6. For the sake of convenience ground No.1 in the second appeal and ground Nos.4, 5 and 6 of the cross-objections are extracted hereunder: 1. Whether in the circumstances of the case the Civil Court has no jurisdiction to grant the relief of possession, having granted the relief of declaration of title ? The Lower Appellate Court ought to have granted the relief of possession also having granted the relief of declaration of title. 4. The lower appellate court erred in upholding the title of the plaintiff to the land on the erroneous legal assumption that the claim of the cross objector for enforcement of contract of sale is barred by time, ignoring that the limitation for the suit for specific performance starts on 08-10-1975 the date of receipt of the notice, A.12 when for the 1st time she had knowledge of refusal of the specific performance of contract of sale in her favour. That apart, the above is not material for determining whether the plaintiff who is not a bonafide purchaser for value without notice of prior sale in favour of the cross objector acquired title to the suit property. 5. The lower appellate court erred in holding that this cross objector was not given possession of property pursuant to the agreement of sale in her favour and she did not perfect her title by adverse possession ignoring the clinching material on record such as handing over of the title deeds to her; land revenue receipts for all the years in her favour starting from 1961 coupled with the admitted case that the plaintiff and his predecessors in title are not in possession of the land at any time much less they produced any cist receipts in their favour. 6. The lower appellate court erred in holding that the cross objector is not having continuous possession for the statutory period of 12 years on the basis of Ex.A-8, Adangal extract and ignoring Ex.B.37 and as such she did not perfect her title by adverse possession ignoring the well established principle of law unless the person in possession is dispossessed and the other person took possession, the adverse possession dos not cease to run.” 17. Heard Sri Y. Vivekananda, learned counsel appearing for the appellant/plaintiff and Sri A. Ramakrishna, learned counsel appearing for cross-objectors/4th defendant. 18. The learned counsel for the plaintiff/appellant contends that the defendant No.4 is claiming title only under an oral agreement and claims that she was put in possession of the property. The said claim of the defendant No.4 clearly disentitled her from setting up any claim which requires adjudication by the tenancy Court and as such, the lower appellate Court was not justified in denying the relief of possession to the appellant merely on the ground that vendor of the plaintiff/appellant had earlier approached the tenancy Court by filing Ex.A-8 A.T.C. Case. 19. He submits that in written statement submitted by defendant Nos.1 and 4 they have categorically disowned any relationship as landlord and tenant with the plaintiff and on the contrary they have claimed that defendant No.4 is the owner of the property and defendant No.1 is cultivating on behalf of defendant No.4. He therefore, contends that the appellate Court rightly found on point No.1 that plaintiff has established his right to the property but having given the said principle relief had denied the consequential relief and it warrants interference by this Court. He also submits that defendant No.4 along with her husband defendant No.1 had given Ex.A-6 notice as early as in the year November, 1969 wherein she did not make any such claim as is made in the written statement subsequently. He therefore, submits that the conduct of defendants 1 to 4 is not bonafide and they are attempting to defeat the right of the plaintiff under registered sale deed which is not tenable. The learned counsel contents that by virtue of the appellate decree alleged oral agreement which remained unproved is allowed to have precedence over registered sale deed and the same being impermissible, the relief of recovery of possession ought to have been granted by the lower appellate Court. 20. Mr.Ramakrishna, learned counsel appearing for the respondent, contends that if Exs.A-7, A-6 and A-45 viz., the sale deed of plaintiff, notice of defendant No.1 and the agreement between Sri K.V.S. Sasthry and defendant Nos.1 and 4 read together would show that defendant No.4 has a subsisting claim of possession over the property right from 1957 onwards and admittedly, physical possession of the suit schedule land was not delivered to the plaintiff. The continuous un-interrupted possession of defendant No.4 over the suit land either through herself or through defendant No.1, therefore, cannot be disputed and the fact that the vendor of the plaintiff and respondent approached the Tenancy Court under Ex.A-8 shows that they cannot withdraw those proceedings and approach the Civil Court. He therefore stated that the Civil Court has in any case no jurisdiction as rightly found by the lower appellate Court. 21. To the extent of the further findings learned counsel states that the claim of defendant No.4 was rejected by the lower appellate Court on the ground that she has not filed any suit for specific performance though she claims right under the agreement of 1957. Learned counsel states that the limitation for filing suit would arise only upon the refusal thereof by the vendor and such refusal would only commence from the date of receipt of notice of plaintiff under Ex.A-12 for the first time and as such, the title of the plaintiff cannot be decided in his favour on that ground. It was also contended that defendant No.4 had perfected the title over the statutory period as is evident from the Adangal extract from Ex.A- 8. 22. The learned counsel also placed reliance upon Section 48 of the Registration Act in support of his contention that in a certain situation even an oral agreement accompanied by delivery of possession can take precedence over a registered document. He supported his contentions by citing Mummidi Reddi Papannagari Yella Reddy v. Salla Subbi Reddy and others[1] for the proposition that Section 48 of the Registration Act does not over ride Section 27 (b) of the Specific Relief Act and both operate on different fields. He also placed reliance upon Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (died) by L.Rs. and others[2] to contend that a transferee, who is in possession in part performance of an agreement of sale, can defend his possession in a suit for recovery of possession either by transferor or by subsequent transferee. 23. Reliance is also placed upon V. Suryanarayana v. P. Dalenna[3] for the proposition that possession of the defendant for over 50 years under an oral sale shows that defendant has perfected his title by adverse possession and lastly on State of W.B., v. The Dalhousie Institute Society[4] for the proposition that though defendant came into possession under invalid grant they acquired title by adverse possession. 24. In the light of the above, the questions as framed by this Court while admitting the second appeal and cross objection are required to be considered in the light of the material on record. 25. It is evident from the record that the defence of defendant No.4 is based upon the said oral agreement between her and Sri K.V.S. Sastry in 1957. Based on the said agreement defendant No.4 seeks to deny that the registered gift deed executed by Sri K.V.S. Sastry in favour of the vendor of the plaintiff dated 27-03- 1958, registered general power of attorney by Smt.Sampurnasarada in favour of Sri K.V.S. Sastry under Ex.A-1 dated 28-08-1969 and the sale deed executed by Sri K.V.S. Sastry under Ex.A-7 are all subsequent to the rights created in favour of defendant No.4. She, therefore, submits that she is not bound by any of the subsequent transfers when the vendor as well as the vendee under the said documents had express notice of possession of defendant No.4 over the suit schedule property. She supports the aforesaid contentions by action on the part of the vendor in filing ATP No.194 of 1979 under Ex.A-18 dated 04-11-1975 which also expressly admits possession of defendant No.1 over the said property. Based on the above it is contended that all the transfers are not bona fide and without notice and as such, cannot take precedence over the claim of defendant No.4 over the property. 26. Reliance placed by the learned counsel under Section 48 of the Registration Act is also to be appreciated in that context. For the sake of convenience, Section 48 of the Registration Act and as well as Section 19 of the Specific Relief Act are extracted hereunder: “Section 48. Registered documents relating to property when to take effect against oral agreements:- All non-testamentary documents duly registered under this Act, and relating to any property, whether movable, or immovable, shall take effect against any oral agreement or declaration relating to such property unless where the agreement or declaration has been accompanied or followed by delivery of possession, and the same constitutes a valid transfer under any law for the time being in force. Provided that a mortgage by deposit of title-deeds as defined in Section 58 of the Transfer of property Act, 1882, shall take effect against any mortgage deed subsequently executed and registered which relates to the same property. Section 19: Relief against parties and persons claiming under them by subsequent title:- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) either party thereto; (b) any other person claming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant; (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.” Section 19 of the Specific Relief Act, 1963 is extracted, as it is similar to Section 27 of the Specific Relief Act, 1877. 27. It is also a matter of record that defendant No.4 has not enforced alleged agreement assuming that she has able to establish the said agreement. Whatever claims she had under the said agreement are barred by time on account of the fact that she has not filed any proceedings seeking its enforcement. The claim for possession based on the said agreement as an agreement holder in part performance cannot be equated and be treated on par with Section 53-A of Transfer of Property Act as admittedly there is no written agreement. Similarly, the claim for adverse possession as contended by her also cannot be accepted in view of the fact that even according to her under the agreement of 1957 she was put in possession. Her possession, therefore, is referable to the said agreement and therefore, is a permissive possession authorized by her vendor as alleged. Such possession, therefore, can never become adverse even if it persists for a considerable long time. The contentions of defendant No.4 in the cross- objections based upon her plea of adverse possession or part performance are both liable to be rejected as they are without any substance. 28. So far as the contentions of the learned counsel for respondents upon Section 48 of the Registration Act are concerned it would be noticed that legal effect of registered documents as against oral agreements is governed by the said provision and the said provision declares that all non-testamentary registered documents relating to any property shall take effect against any oral agreement or declaration coupled with or followed by delivery