HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.866 OF 2011 DATE:29-10-2011 BETWEEN Narra Babu Rajendra Prasad …Appellant AND Nandigam Rupa Devi …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.866 OF 2011 JUDGMENT: Unsuccessful Defendant in the Courts below filed this second appeal against the judgment and decree of XI Additional and Sessions Judge, Gudivada, Krishna District dated 25.1.2011 dismissing the appeal filed by the defendant in A.S.No.115 of 2010 while confirming the judgment and decree of the Additional Senior Civil Judge (Fast Track Court), Gudivada in O.S.No.97 of 2002 dated 26.10.2006 decreeing the suit of the plaintiff for possession of the suit schedule property with past profits. There is no dispute with regard to the relationship of the parties. The plaintiff-respondent herein instituted the above suit stating that the suit schedule property measuring Ac.0.21 cents in R.S.No.425/5, situated in Gannavaram Village originally belonged to the joint family of Narra Sitaramaiah, who is the father’s mother’s father. In the family partition between him and his sons, the property besides other property fell to the share of Narra Sitaramaiah, who in turn, executed a registered Will dated 17.9.1966-Ex.A.1 bequeathing the suit schedule property in favour of the father of the plaintiff. Upon the death of Sitaramaiah, plaintiff’s father became absolute owner and enjoyed the property till his death on 9.11.1975. At the time of death of her father, the plaintiff was a child of four months. Mother of the plaintiff married one Yarlagadda Prasada Rao giving up all connections and left the house. Ever since the death of her father, plaintiff was brought up by her maternal grandfather-Nekkalapudi Atchyuta Ramaiah and after her marriage on 3.5.1995, he was making over whatever was realized from the suit schedule land to the plaintiff. Both the maternal grandfather and grandmother passed away on 28.4.2001 and 1.8.2001 receptively. Therefore, the plaintiff approached the defendant, who is the husband of the plaintiff father’s sister to look after the schedule land, who agreed for the same and was cultivating the land along with his land. While so, in the month of April, 2002 she approached the defendant and requested him to give her the profits accrued in the land, but the defendant postponed the same on one pretext or the other. Therefore, plaintiff got issued a legal notice, which was replied by the defendant with false allegations. Hence the suit. The defendant contested the suit by filing a written statement stating that the suit as framed is not maintainable. It is admitted that the property belonged to joint family of Narra Sitaramaiah, that the suit property fell to the share of Sitaramaiah and that he executed a registered Will in 1965 bequeathing the plaint schedule property in favour of the father of the plaintiff. But he denied the plaintiff’s ownership over the property and her father enjoying the property till his death. It is stated that the father of the plaintiff sold the schedule property to the defendant on 15.3.1974 for a sale consideration of Rs.2,100/- by executing an agreement of sale in favour of the defendant and that day itself he delivered the possession of the said property. Ever since the date of agreement of sale, he has been in possession and enjoyment of the property as absolute owner and the plaintiff has no right to claim the property. The maternal grandmother and grandfather of the plaintiff, who are necessary parties to the suit have not been impleaded and therefore, the suit as such is not maintainable for non-joinder of necessary parties. In order to prove the case of the parties, plaintiff examined three witnesses including herself as P.W.1 and got marked Exs.A.1 to A.6. On behalf of the defendant, four witnesses were examined including the defendant as D.W.1 and Exs.B.1 to B.7 were marked on his behalf. The trial Court by the impugned judgment decreed the suit of the plaintiff. On appeal being filed by the defendant, the lower appellate Court on re-evaluating the entire evidence dismissed the appeal confirming the findings of the trial Court. Learned counsel for the appellant-defendant strenuously contended that when the defendant is in possession of the suit schedule property from the date of agreement of sale-Ex.B.1 dated 15.3.1974, the suit as such filed in the year 2002 is hopelessly barred by limitation. Even if the defendant cannot file a suit for specific performance basing on Ex.B.1, still he has perfected his title by way of adverse possession. Further the maternal grandmother of the plaintiff and her mother, who succeeded to the property upon the death of plaintiff’s father are necessary parties and in view of their non-impleadment, the suit is bad for non- joinder of necessary parties. It is not disputed that the plaintiff is the legal heir of her father-Gondi Balakrishna Murthy. It is well-settled that one of the joint owners can file a suit for recovery of possession of immoveable properties, which is in possession of third parties and for institution of such suit, all the legal heirs need not be impleaded as parties to the suit. Therefore, non-impleadment of the grandmother and mother of the plaintiff is not fatal to the case of the plaintiff and the plaintiff alone can maintain such suit for recovery of possession being one of the legal heirs of Balakrishna Murthy. The appellant never pleaded that his possession is animus to the plaintiff’s right, but in fact, he pleaded that he purchased the suit schedule property from her father under Ex.B.1-agreement of sale. It is well settled that once the defendant admitted the title of Balakrishna Murthy, father of the plaintiff, he cannot plead adverse possession over the suit schedule property nor can plead that the suit is barred by limitation. As rightly observed by the lower appellate Court, it is not the case of the defendant that at any time he demanded P.W.1 or P.W.2 for execution of a sale deed in pursuance of Ex.B.1, said to have been executed by the father of the plaintiff. To the question in the cross-examination as to the execution of Ex.B.1 on a white paper, D.W.1 tried to escape by saying that on the advice of some elders, he got scribed Ex.B.1 on white papers, but he could not give the names of those elders. In an answer to another question, he stated that at the time of execution of Ex.B.1, he did not have the capacity to get it registered and he enquired about it and came to know that registration charges would be Rs.200/- to 300/- and after 5 or 6 years only, he got such capacity to get it registered. Therefore, as rightly observed by the lower appellate Court, when the defendant was not a man of possessing liquid cash with him even to get the registered sale deed, his paying Rs.2,100/- to the father of the plaintiff towards sale consideration at the time of agreement of sale is highly doubtful. The mother of plaintiff was also examined as P.W.2 and did not claim any right over the suit schedule property and on the other hand, she supported the claim of the plaintiff. Having considered this evidence, the lower appellate Court upheld the judgment and decree of the trial Court. The concurrent findings of facts arrived at by the both Courts below on appreciation of the entire evidence in proper perspective does not give rise to any substantial question of law to admit the second appeal. The second appeal fails and the same is accordingly dismissed at the admission stage. No order as to costs. _______________ A. GOPAL REDDY, J. OCTOBER 29, 2011 Tsr.