IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE 09TH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.Nos.84 & 85 OF 1995 S.A.No.84 OF 1995 Between:- Makala Rama Rao (died) Per LR Makala Nagendra Prasad Appellant A n d Muthe Peda Pentaiah and another …Respondents A N D S.A.No.85 OF 1995 Between:- Makala Rama Rao (died) Per LR Makala Nagendra Prasad Appellant A n d Muthe Peda Pentaiah and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.Nos.84 & 85 OF 1995 COMMON JUDGMENT: These two second appeals are directed against the common judgment dated 25-08-1994 in A.S.Nos.53 and 54 of 1987, on the file of the District Judge, Krishna at Machilipatnam, whereunder A.S.No.53 of 1987 was allowed-in-part modifying the judgment and decree dated 02-03-1987 in O.S.No.495 of 1982, on the file of the Principal District Munsif, Machilipantam and granting the relief of declaration that the plaintiff therein i.e., the first respondent herein was the absolute owner of the plaint schedule site and rejecting the relief of recovery of possession and mesne profits and A.S.No.54 of 1987, arising out of the judgment and decree dated 02-03-1987 in O.S.No.616 of 1981 a suit filed by the appellant herein for eviction of the respondents herein and for arrears of rent and future mesne profits, was dismissed, confirming the dismissal of the said suit by the trial Court. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The appellant in both the appeals is plaintiff in O.S.No.616 of 1981. He filed a suit against the respondents herein for recovery of possession of the plaint schedule site and also for arrears of rent and future mesne profits alleging, in brief, as follows:- The appellant/plaintiff is the absolute owner of the thatched house bearing door No.12/8A in Rustumbada area, Machilipatnam, shown in the plaint schedule and he leased out the same to one N.Simhachalam on a monthly rent of Rs.8/- under a rent deed dated 01-09-1968 for one year. Subsequently, the said Simhachalam committed default in payment of rents and later vacated the thatched house in about January, 1970. The second respondent/D-2 is the wife of the first respondent/D-1 and she purchased the site adjacent to the plaint schedule property. The first respondent/D-1 requested the appellant/plaintiff to let out the thatched house on a monthly rent of Rs.10/- and the plaintiff agreed for the same. D-1 paid a sum of Rs.100/- as advance on 01-02-1970. The respondents/D-1 and D-2 have been residing in the said house as tenants from 01-02-1970 onwards. Taking advantage of the absence of the plaintiff, D-1 constructed a big thatched house in the suit site for his convenient enjoyment. When the plaintiff questioned, D-1 promised to vacate the same at the end of lease period. D-1 committed default in payment of rent from 01-09- 1979. The plaintiff demanded D-1 to vacate the premises on the ground of personal occupation, but D-1 failed to do so. The plaintiff got issued a registered notice dated 05- 02-1981 demanding the defendants to vacate the premises and deliver vacant possession. D-1 refused to receive the notice and started openly denying the title of the plaintiff. The defendants also trespassed into an extent of 12 sq. yards of site abutting the plaint schedule site of 35 sq. yards. Hence, the suit for recovery of possession of total extent of 47 sq. yards of site. 4. The respondents/defendants filed a written statement contending, in brief, as follows: The second respondent/D-2 is the owner of the plaint schedule site and also the appurtenant site and she constructed the thatched house and has been in possession and enjoyment of the same as owner. She purchased the said site under a registered sale deed dated 17-12-1969 for Rs.1500/- from One K.Krishnaramanujamma and ever since she has been in possession and enjoyment of the same. The said Krishnaramanujamma purchased the suit site from one Mukkevi Pentaiah in 1966, who got the same in family partition towards his share on 12-09-1963. The plaintiff has no right, title or interest in the suit property and he was never in possession thereof. Even otherwise, the respondents/defendants have perfected their title to the suit property by adverse possession having been in possession from 29-06-1955, the date on which D-1’s mother M.Seethamma obtained registered sale deed from V.Krishna Murthy and others. The defendants are not the tenants of the plaintiff. The plaintiff is, therefore, not entitled to the relief of recovery of possession or claim rents or profits. 5. Subsequently, the appellant/plaintiff filed a rejoinder stating that based on the agreement of sale from V.Krishna Murthy, the plaintiffs filed O.S.No.203 of 1955 for specific performance in which the first defendant’s mother Seethamma was also a party and the sale deed dated 29-06-1955 said to have been executed by V.Krishna Murthy in favour of N.Seethamma became void by virtue of the said decree and in execution of the said decree, a registered sale deed dated 10-02-1967 was also executed and registered by the Court in favour of the plaintiff. The plaintiff took delivery of the suit property through Court on 04-03-1968 and ever since the plaintiff has been in possession and enjoyment of the same and, therefore, the defendants cannot claim any rights by adverse possession. 6. On the strength of the above pleadings, the following issues were settled: i) Whether the plaintiff is entitled to recover possession of suit property? ii) Whether the plaintiff is entitled to recover damages of Rs.360/- and future profits.? iii) To what relief? 7. Subsequently, the following additional issue was also framed: Whether the defendants perfected the title to the suit property by adverse possession? 8. The first respondent herein/D-1 filed the suit O.S.No.495 of 1982 for declaration of title and for recovery of possession against the appellant herein and also two others D-2 an d D-3 in that suit, who are stated to be in occupation of the suit property as tenants, alleging in brief, as follows: The first respondent herein (plaintiff in O.S.No.495 of 1982) owned the suit site and constructed a thatched house thereon and has been residing therein. Defendants 2 and 3 in that suit (who are not parties either in the first appeal or in the second appeal) were staying in two zinc sheets carrying smithy business. To the west of the plaintiffs’ (1st respondent herein) site, there is another site described in plaint schedule, which is an extent of 46 sq. yards. The said site was purchased by the plaintiff’s mother Seethamma under a registered sale deed dated 29-06-1955 from V.Krishna Murthy and she was in possession and enjoyment of the same during her life time and later the plaintiff came into exclusive possession of the suit site and he perfected his title by adverse possession also. The first defendant i.e., appellant herein filed O.S.No.203 of 1955 for specific performance based on agreement of sale dated 26-03-1955 said to have been executed by V.Krishna Murthy in respect of the suit site and the plaintiff (1st respondent herein) was also impleaded as party to the said suit. The suit was decreed on 31-10-1957. The plaintiff (1st respondent herein) learnt that the first respondent (appellant herein) did not take any steps to get the sale deed registered and get possession from Court. The right to execute the decree has been lost by limitation. The plaintiff (1st respondent herein) has, therefore, become the absolute owner of the suit site by prescription and rights, if any, of the first defendant/appellant got extinguished. Defendants 2 and 3, who are tenants of the suit site, were asked to vacate the same by the plaintiff/first respondent, but they have not vacated. They also committed default in payment of rents. The appellant/first defendant is colluding with the tenants, who started denying the title of the plaintiff/first respondent. The appellant unnecessarily filed the suit O.S.No.616 of 1981 making false claim of ownership over the suit site. Hence, the present suit O.S.No.495 of 1982 by the first respondent herein for declaration of title over the suit site and also for recovery of possession of the portion of the suit site in occupation of defendants 2 and 3, the tenants. 9. The first defendant (appellant herein), filed a written statement raising the same contentions as those in the plaint filed by him in O.S.No.616 of 1981. The second defendant in the suit, one of the tenants, filed a written statement stating that he is a tenant under the first defendant (appellant herein) and is regularly paying the rents to the defendant (appellant herein) and also denying the title of the plaintiff (1st respondent herein). The third defendant in the suit, who is the other tenant, remained ex parte. 10. On the strength of the above pleadings, the following issues were settled: i) Whether the plaintiff is entitled to the suit land? ii) Whether the plaintiff perfected his title by adverse possession? iii) Whether the plaintiff is entitled for declaration and for possession? iv) Whether the plaintiff is entitled to the future profits? v) To what relief? 11. The first appellant died during the pendency of the appeal and second appellant is impleaded as legal representative of the deceased, first appellant. Subsequent to the filing of the second appeal, the first respondent also died and his legal representatives were also impleaded as respondents 2 and 3. Subsequently, the third respondent also died and his legal representatives are impleaded as respondents 5 to 7. 12. As the two suits are interrelated, they were tried together and common evidence was recorded in O.S.No.616 of 1981 filed by the appellant herein. 13. During trial, P.Ws.1 to 3 were examined and Exs.A-1 to A-21 were marked on behalf of the plaintiff in O.S.No.616 of 1981, who is the appellant herein. D.Ws.1 to 7 were examined and Exs.B-1 to B-8 were marked on behalf of the first defendant in O.S.No.616 of 1981, who is the plaintiff in O.S.No.495 of 1982 and the first respondent herein. The second defendant in O.S.No.495 of 1982 gave evidence as D.W.7. 14. On a consideration of the evidence available on record, the learned District Munsif, Machilipatnam by a common judgment dated 02-03-1987 dismissed O.S.No.616 of 1981 filed by the appellant herein for recovery of possession and rents/profits and decreed the suit O.S.No.495 of 1982 filed by the first respondent herein for declaration of title and recovery of possession with a direction that future profits be ascertained by a separate proceedings. Aggrieved by the same, the plaintiff in O.S.No.616 of 1981 filed the appeal A.S.No.54 of 1987 and also filed another appeal A.S.No.53 of 1987 against the judgment and decree passed against him in O.S.No.495 of 1982 in which he was the first defendant. The learned District Judge after hearing the learned counsel for both parties delivered a common judgment dated 25-08-1994 wherein the appeal in A.S.No.54 of 1987 was dismissed, confirming the dismissal of the suit O.S.No.616 of 1981 and allowed the appeal A.S.No.53 of 1987 in-part and modifying the judgment and decree in O.S.No.495 of 1982 to the extent of granting the relief of declaration and dismissing the said suit for recovery of possession and for profits. Aggrieved by the said impugned judgment of the learned District Judge, the present second appeals are filed by the plaintiff in O.S.No.616 of 1981, who is also first defendant in O.S.No.495 of 1982. 15. The plaintiff in O.S.No.495 of 1982, who is the first respondent herein, does not appear to have filed any appeal or cross-objections in respect of rejection of his claim for recovery of possession and profits by the first appellate Court. 16. The subject matter of the dispute in both the appeals is an extent of 47 sq. yards of site situate in Rustumbada area of Machilipatnam Municipality. Though the boundaries mentioned in the schedules filed along with the plaints in both the suits are not entirely tallying with each other, the learned Sessions Judge has, on critical analysis of the evidence available, recorded a finding to the effect that the bone of contention between the parties is one and the same and there is no dispute regarding the identity of the site, which is subject matter of dispute in both suits. The said finding, based on proper appreciation of the evidence on record on a question of fact regarding the identity of the property, does not call for any interference in these second appeals. 17. The appellant herein, who is the plaintiff in O.S.No.616 of 1981, filed the said suit seeking relief of recovery of possession from the first respondent and his wife and also claiming arrears of rent on the ground that the first respondent and his wife have taken the suit site with a thatched house thereon on lease from 01-02-1970 on a monthly rent of Rs.10/- and they committed default in payment of rents from 01-09-1979 and also refused to vacate. It is not disputed that before filing the suit, the appellant herein gave a registered noticed dated 05-10- 1981 and the first respondent herein refused to receive the notice. It is further pleaded in the plaint itself that the first respondent herein (D-1) has been openly denying the title of the plaintiff and he even trespassed into another extent of 12 yards of site abutting the original extent of 35 sq. yards. In spite of knowledge on his part about denial of his title by the defendants, the appellant herein, the plaintiff, did not choose to seek the relief of declaration of title. In fact, in the original plaint he did not even disclose as to how he became the owner of a suit property. It is only after the first respondent (D-1) filed written statement denying the appellant/ plaintiff’s title and claiming his own title and also pleaded acquisition of prescriptive title by adverse possession, the appellant/plaintiff filed a rejoinder claiming that he filed a suit O.S.No.203 of 1955 for specific performance of an agreement of sale dated 29-06-1955 executed in his favour by one V.Krishna Murthy, the owner of the suit site and obtained a decree and in pursuance of the same, he obtained a registered sale deed-Ex.A-1 dated 10-02-1967 through Court and also obtained delivery of possession through Court under delivery receipt-Ex.A-2 dated 04-03-1968 and that he has been in possession and enjoyment of the same till he let out the same to the first respondent/ D-1 and his wife. According to the first respondent/D-1, the said site was purchased by his mother Seethamma under a registered sale deed-Ex.B-2 dated 29-06-1955 from the original owner V.Krishna Murthy and he has been in possession and enjoyment of the same and subsequently in a family partition effected under registered partition deed-Ex.B-3 dated 12-09-1963 between himself and his mother and brothers, the suit site fell to his share and thus he is the absolute owner of the suit site and was not a tenant of the plaintiff/appellant. The first respondent/D-1 would alternatively contend that even otherwise he has perfected his title by adverse possession by being in continuous possession and enjoyment since 29-06-1955, the date on which Ex.B-2-sale deed was executed and possession was delivered by V.Krishna Murthy in favour of Seethamma, mother of first respondent. 18. It is not disputed that V.Krishna Murthy was the original owner of the suit site, as both parties would trace their respective title to him only. V.Krishna Murthy, having executed an agreement of sale in favour of appellant/plaintiff on 29-06-1955, is said to have subsequently executed a registered sale deed in respect of the self-same property in favour of Seethamma, mother of first respondent/D-1 under Ex.B-2 dated 29-06-1955. Thereafter, the appellant/plaintiff filed O.S.No.203 of 1955 for specific performance of the agreement of sale in his favour against V.Krishna Murthy and also M.Seethamma. It is also not disputed that the said suit O.S.No.203 of 1955 was decreed and the said judgment and decree have become final by virtue of the said decree in O.S.No.203 of 1955 attaining finality. The subsequent sale deed-Ex.B-2 dated 29-06-1955 in favour of Seethamma became invalid and inoperative. Neither Seethamma nor her successors-in-interest can lay any claim for title based on the said sale deed-Ex.B-2. Admittedly, there was no physical delivery of possession by Krishna Murthy in favour of the appellant/plaintiff under the agreement of sale. Even according to the appellant/plaintiff, he filed execution petition and obtained a registered sale deed executed through Court and took delivery of possession through Court under the original of Ex.A-2-delivery receipt on 04-03-1968. 19. P.W.2 is said to be one of the attestors of the delivery receipt. P.W.3 is the Amin who is said to have effected delivery. D.W.7 is also said to be one of the attestors of the delivery receipt. The original delivery receipt is said to have been destroyed as per the endorsement given by the Court on the copy application filed by the appellant/plaintiff under Ex.A-3 and, therefore, photostat copy of the certified copy of the delivery receipt was filed under Ex.A-2 and the same was rightly admitted by the Courts below in evidence in view of the loss of the original thereof. Thus, even according to the appellant/plaintiff, he obtained registered sale deed through Court on 10-02-1967 under Ex.A-1 and obtained delivery of possession again through Court on 04-03- 1968 under Ex.A-2. 20. According to the appellant/plaintiff, physical delivery of possession was given to him after removing the hut which was in existence. On the other hand, the first respondent/D-1 would contend that physical delivery was never effected and if at all it was only a paper delivery, as the first defendant and his wife continued to be in possession of the suit site ever since 12-09-1963, the date of Ex.B-3- partition deed under which he became owner of the suit site by virtue of the family partition and prior to him, his mother was in possession by virtue of her purchase under Ex.B-2-sale deed dated 29-06-1955. As rightly observed by the learned District Judge in the delivery receipt-Ex.A-2 it is not mentioned that vacant possession was delivered to the appellant/plaintiff after removing the hut either with the help of police or removal of the hut by judgment debtor himself. The discrepancy in the evidence of P.Ws.1 to 3 as to who removed the hut whether by Amin with the help of police or the judgment debtor himself voluntarily, was rightly ignored by the learned District Judge, as the witnesses were deposing nearly 18 years after the occurrence. Admittedly, the signature of the judgment debtor was not obtained on the delivery receipt. If really the judgment debtor voluntarily surrendered possession and removed the hut and delivered vacant possession, the same would have been duly recorded so in the delivery receipt and his signatures also would have been obtained. The absence of the same on the delivery receipt would certainly indicate, as rightly pointed out by the learned District Judge, that it was not a case of voluntary surrender of possession by the judgment debtor. The evidence of P.Ws.1 to 3, however, would disclose that the judgment debtor was forced to deliver possession and their evidence is fortified by the testimony of D.W.1 who stated that the first respondent refused to vacate and the Amin threatened him and thereafter he vacated. D.W.7 is none else than one of the tenants in possession of a portion of the site purchased by the appellant/ plaintiff and he claims that he is the tenant of the appellant. Though the Amin- P.W.3 is said to have effected delivery of possession in favour of appellant/plaintiff, the evidence on record established that the appellant/plaintiff was not in physical possession even after the alleged delivery. Admittedly, he is a resident of Arthanoor and not a resident of Machilipatnam. It is not his case that after obtaining vacant possession, he constructed any shed on the suit site. He claims to have leased out the vacant site to one Simhachalam on 01-09-1968, which is about six months after the delivery under the lease deed-Ex.A-5. The said Simhachalam was not examined and none connected with Ex.A-5 was examined to prove the said transaction, though it was specifically suggested to P.W.1 in the cross- examination that Ex.A-5 was a fabricated document. The Courts below have, therefore, rightly held that Ex.A-5 cannot be looked into, as the execution and contents are not duly proved. On proper re-appraisal of the evidence on record, the learned District Judge has rightly observed that there is no evidence to show that the appellant/ plaintiff was in possession and enjoyment of the suit site since 04-03-1968, the date of delivery. According to the appellant/plaintiff, he let out the suit site to the first respondent and his wife from 01-02-1970 by way of oral lease. When the appellant/plaintiff claims to have leased out the vacant site to Simhachalam under written lease deed and a portion of the site is said to have been leased out to D.W.7 also under a written lease deed-Ex.A-8, there is absolutely no reason as to why no lease deed was obtained from the first respondent and his wife, especially when the appellant/plaintiff claims that he obtained delivery of possession after much resistance from the first respondent/D-1 for delivery. The alleged oral lease of the suit site by the appellant/plaintiff in favour of the first respondent/D-1 was, therefore, rightly disbelieved by the Courts below for want of any evidence. 21. Even according to the appellant/plaintiff, the first respondent/D-1 was in possession of the suit site by the date of delivery on 04-03-1968 and the appellant/plaintiff was never in possession before that date. According to the first respondent/D-1, his mother was in possession from 1955 by virtue of her purchase under Ex.B-2 and subsequently the first respondent came into possession from 1963 by virtue of partition deed- Ex.B-3. The alleged lease of the suit site by the appellant/plaintiff in favour of N.Simhachalam from 01-09- 1968 and the alleged subsequent lease by appellant/ plaintiff in favour of the first respondent/D-1 and his wife from 01-02-1970, having been disbelieved, what emerges is that the first respondent/D-1 has been in possession of the suit site since 1963 under Ex.B-3 and prior thereto, his predecessor-in-title i.e., his mother was in possession thereof since 1955 under Ex.B-2. No doubt, by virtue of the decree in O.S.No.203 of 1955 granted in favour of the appellant/plaintiff, the sale under Ex.B-2 in favour of Seethamma by Krishna Murthy became inoperative and consequently the first respondent/D-1 would not have acquired any rights of ownership over the suit site by virtue of the partition deed-Ex.B-3 insofar as the suit site is concerned. The fact, however, remains that the first respondent/ D-1 was in possession from 1963 and prior to him, his mother was in possession since 1955, although their documents of title have subsequently turned out to be inoperative. The appellant/ plaintiff impleaded Seethamma as party defendant in O.S.No.203 of 1955 because she asserted title and possession over the suit site based on her purchase under Ex.B-2 sale deed. 22. The appellant/plaintiff was, therefore, aware of the hostile assertion of title and possession by Seethamma even by the date of filing O.S.No.203 of 1955. He was also aware of the hostile assertion of possession over the suit site by the first respondent/D-1, as even according to him the first respondent/D-1 offered resistance for the delivery proceedings. Admittedly, the thatched shed in the suit site was constructed by the first respondent/D-1 and it is not the case of the appellant/plaintiff that he made any such construction. D.Ws.2 to 5, who are the neighbouring residents in the locality, have also testified that the first respondent/D-1 has been residing in the suit site since over 30 years. Even according to D.W.7, the second defendant in O.S.No.495 of 1982, who is one of the tenants in a portion of the suit site and who claims to be a tenant of P.W.1, the appellant/ plaintiff, admitted in evidence that the entire site was in possession