IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.294 of 2011 Between: B. Govindaiah and others .. Appellants AND S.V. Agricultural College, Tirupati-2 .. Respondents JUDGMENT: The second appeal is directed against the judgment and decree in A.S. No.4 of 2009 on the file of the III Additional District Judge, Tirupati, dated 13-12-2010, by which the judgment and decree in O.S. No.297 of 2002 on the file of the Principal Senior Civil Judge’s Court, Tirupati, dated 30-10-2008 were set aside. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff college filed the suit for declaration of its title to the plaint schedule property in survey No.570/B1 consisting of two thatched huts and appurtenant sites within the specified boundaries and for consequential recovery of possession, damages and costs. The original second defendant died pending the suit with defendants 3 to 5 being impleaded as his legal representatives and the plaintiff claimed that as per G.O.Ms. No.84 Revenue (V) Department, dated 30-01-1989, Ac.447.43 cents including Ac.7.07 cents in survey No.570/B1 of Peruru village were allotted by the Government for the benefit of the college. The plaintiff was in consequential possession and enjoyment including the suit schedule property, into which the defendants encroached unlawfully. They did not vacate in spite of a notice dated 09-09-1999, but filed O.S. No.1069 of 1999 on the file of the Principal Junior Civil Judge’s Court, Tirupati and obtained an interim injunction in I.A. No.1556 of 1999. The property fetches an income of Rs.500/- per month and the unauthorized occupation by the defendants had interfered with the plans of the college for chalking out academic programmes for the students. The plaintiff gave another notice on 08-07-2001 for possession, for which a false reply was given and hence, the suit. The defendants resisted the suit claiming that as the suit property is a Government poramboke, the Government is a proper and necessary party to the suit. The defendants are not causing any inconvenience and obstruction to the college of the plaintiff with the suit property being located in a corner of the property adjacent to a ‘Vanka’. The defendants occupied the property shown by the Revenue officials in about 1989 and constructed thatched sheds for residence with their families. They obtained electricity service connection and were paying electricity consumption charges and their huts were assigned house numbers by the Panchayat and no house tax is being collected, as there is no house tax for huts. The plaintiff college never objected to the occupation by the defendants at any time and the college is at a distance of one kilo metre from the suit property. The Revenue officials also did not take any adverse action against the defendants and when the plaintiff issued a notice, dated 09-09- 1999, the defendants were forced to file O.S. No.1069 of 1999 and obtain a permanent injunction. The defendants had no other properties and they perfected their title by adverse possession. The plaintiff is not entitled to claim possession or damages and the suit, bad for non-joinder of necessary parties, be dismissed. The trial Court framed issues about the entitlement of the plaintiff for declaration of its title, delivery of vacant possession, damages and other reliefs and also about the suit being vitiated due to non-joinder of the Government and due to bar of limitation. During the trial, the trial Court examined P.Ws.1 to 4 and D.W.1 and marked Exs.A.1 to A.6 and B.1 to B.4. The trial Court rendered its judgment firstly noting that Ex.A.5 copy of Field Measurement Book and Ex.A.6 copy of G.O.Ms. No.84 showed that Ac.7.07 cents in survey No.570/B1 of Peruru village were allotted to the college and were permitted to be retained by the plaintiff. The plaintiff was opined by the trial Court to have not proved that the suit schedule property is part of the said Ac.7.07 cents from the evidence of P.Ws.2 to 4, as there was no document to show the delivery of possession of the schedule property to the plaintiff. The trial Court also felt that no documents were filed by the plaintiff in respect of the survey of the land, during which it was claimed to have been found that the suit property was part of the property granted to the plaintiff and as the plaintiff failed to prove its right in the suit property, the issue was held against the plaintiff. The trial Court also felt that the Government is not a necessary party to the suit, but the suit can be considered to be barred by limitation, as the defendants claimed to be in possession since 1989 and their possession can be considered to be adverse to the plaintiff, in view of the admission of P.W.2 about the possession of the defendants from 1989. Consequently, the suit was dismissed by the trial Court without costs. In appeal, the first appellate Court rendered the impugned judgment again referring to the rival pleadings, contentions, evidence and conclusions of the trial Court. The first appellate Court considered the points about the entitlement of the plaintiff for declaration of title, possession and damages and the question of the suit being within time. The first appellate Court noted that the defendants admitted the location of the suit property in survey No.570/B1, which is a ‘Vagu poramboke’ and the defendants also admittedly had no right over the property except their alleged possession from 1989. The college was noted to have been allotted Ac.7.07 cents in survey No.570/B1 by G.O.Ms. No.84 and the suit was noted to have been filed originally on 23-09-2002. The possession of the defendants from 1989 was, hence, for about 13 to 14 years, but the electricity consumption charges were being paid by the defendants only since 1995. The first appellate Court felt that the admission of P.W.2 about the possession of the defendants since 1989 cannot be considered as an admission of the party, as the witness had no personal knowledge about such possession and he was not the person who filed the suit representing the plaintiff. Even assuming that the defendants had been in possession since 1989, the first appellate Court felt that the possession could have been deemed to be adverse to the plaintiff only since 1999 when the dispute first started. If the limitation starts from 09-09-1999 when the plaintiff issued a notice to the defendants, the suit is well within time. The first appellate Court felt that the evidence of P.Ws.2 to 4 supported by Ex.A.6 clearly established the plaintiff’s title to the suit property and the injunction in O.S. No.1069 of 1999 was only to protect the defendants till such time they were evicted under due process of law. As the possession of the defendants was unlawful and as the property was admittedly within survey No.570/B1, the plaintiff was considered entitled for declaration of title and for vacant possession of the property. The first appellate Court also felt that in respect of the damages claimed, in the absence of any evidence to quantify the damages at a particular level, the same can be granted at Rs.200/- per month from 01-10-1999 till delivery of possession to the plaintiff keeping in view the nature of the property and the status of the defendants. The first appellate Court considered it just to grant two months time to the defendants to vacate and accordingly allowed the appeal with costs throughout. The unsuccessful defendants filed the second appeal contending that the judgment of the first appellate Court was not based on any evidence about the suit schedule property being part of the property covered by Ex.A.6 G.O. The location of Ac.7.07 cents out of Ac.8.46 cents was not clarified by the evidence on record and the admission of P.W.2 about the possession of the defendants since 1999 (1989 ?) should have been accepted as probablising adverse possession. The defendants further contended that the plaintiff cannot succeed on the weakness of the defendants’ case and contended that substantial questions of law arise for consideration of the Court about the nature of possession of the defendants, bar of limitation for the suit, adverse inference to be drawn against the plaintiff for want of proof of survey in 1999 and the disentitlement of the plaintiff to any relief on the weakness of the case of the defendants. The second appeal was admitted on 06-04-2011 on the substantial question as to whether the findings of the first appellate Court are perverse or not. Kum. Nimmagadda Revathi, learned counsel representing Sri Sita Ram Chaparla, learned counsel for the appellants and Sri T. Durga Reddy, learned standing counsel for the respondent are heard. The point for consideration in the appeal is the substantial question of law framed at the time of admission about the perversity or otherwise of the findings of the first appellate Court. Even according to the defendants, the plaint schedule land is situate in a ‘Vagu poramboke’. Ex.A.6 copy of G.O.Ms. No.84, dated 30-01-1989 shows that the Government directed Ac.7.07 cents in survey No.570/B1 of Peruru to be retained with Sri Venkateswara Agricultural College, Tirupati/respondent for the benefit of the college. The Government Order shows that the report of the Collector, Chittoor stated Ac.1.00 out of survey No.570/B1 to be already in possession of the respondent college, while the remaining Ac.7.07 cents in survey No.570/B1 were handed over to Tirupati Urban Development Authority on 04-07- 1986. The area of Ac.7.07 cents was stated to have been developed by the Urban Development Authority and Ex.A.5 copy of Field Measurement Book specifies the total extent of survey No.570/B1 to be Ac.8.46 cents. Both Exs.A.5 and A.6 read together are to the effect that Ac.8.07 cents out of Ac.8.46 cents in survey No.570/B1 appear to be belonging to the respondent college in total. In response to Ex.A.1 notice, in Ex.A.4 the defendants only put the respondent college to strict proof of its claims over the land in question while referring to the earlier litigation in O.S. No.1069 of 1999 due to an earlier similar notice to the defendants from the plaintiff. The defendants claimed in Ex.A.4 reply notice that they were in possession of the Government poramboke since more than 15 years without specifying the exact time at which they came into possession of the property. It is seen from Exs.B.1 and B.2 judgment and decree in O.S. No.1069 of 1999 that the defendants claimed in that suit against the plaintiff that the college had no right over the property, while the college claimed the property to be part of that allotted to it under G.O.Ms.No.84. The trial Court had noted that the possession of the defendants herein was proved by the documents filed in that suit and the commissioner’s report in that suit showed that the defendants herein were residing in the suit property. Therefore, the trial Court was of the opinion that the college had to take legal steps to vacate the defendants herein from the suit property if it is a part of the land allotted to the college under G.O.Ms. No.84. Consequently, permanent injunction was granted in favour of the defendants herein only till eviction under due process of law. Therefore, the filing of or the decision in O.S. No.1069 of 1999 will be of no avail for the defendants to establish any perfection of title over the suit property by efflux of time, as there was no finding as to since when the defendants herein were in possession of the property or whether it was part or not a part of the property allotted to the college under G.O.Ms. No.84. Exs.B.3 and B.4 certified copies of the judgment and decree in C.M.A. No.23 of 2000 show that even in the interlocutory adjudication, the appellate Court only found that while the defendants herein have been in possession of the suit land, it was difficult to conclude as to whether their occupation of the land was after delivery of the property to the college by the Government. However, the appellate Court significantly observed that the record further showed that in a part of the land allotted to the college under G.O.Ms. No.84, the defendants herein had set up their thatched sheds with the permission of the Revenue department. The appellate Court also noted that the Revenue Divisional Officer, Tirupati recommended for issuance of house site pattas to the defendants herein in respect of that land. Thus, it is seen that the proceedings in O.S. No.1069 of 1999, at any stage, did not conclude the time of commencement of possession of the defendants over the suit land and also did not conclude about the suit land being part of the land granted under G.O. Ms. No.84 or not. In the face of such documents, the probabilities arising out of Exs.A.5 and A.6 read together showing Ac.8.07 cents out of Ac.8.46 cents in survey No.570/B1 to be in the possession of the college or allotted to the college, cannot be considered to improbablise the claim of the college about the thatched sheds of the defendants being located within such property, more so in the light of the observation of the appellate Court in C.M.A. No.23 of 2000 about the defendants raising their thatched huts in the property allotted to the college under G.O.Ms. No.84. The evidence of D.W.1, the 1st defendant, reiterating the defence, tried to claim that the Government issued proceedings handing over possession to him in respect of the suit land and he claimed to have filed the same in the earlier suit, but the appendix of evidence to the judgment in O.S. No.1069 of 1999 does not refer to any such document. The 1st defendant, while reiterating his claims in the chief-examination affidavit, did not elaborate as to why and how the suit schedule property can be considered to be outside the Ac.7.07 cents allotted to the college under G.O.Ms. No.84 or one more acre in the same survey number in its possession even by the time of such allotment as seen from Ex.A.4. The claim that the defendants were in possession since 15 years prior to Ex.A.4 reply notice, was not even reiterated when the defendants stated their possession to be only since 1989 in the evidence of D.W.1 and while the present adjudication is not concerned about the other constructions which were claimed to have come around the suit schedule property, the defendants obviously did not challenge the allotment made under G.O.Ms. No.84 in any manner. As opposed to this evidence of the 1st defendant as D.W.1, the officers of the plaintiff college were examined as P.Ws.1 to 4. But the evidence of P.W.1 was eschewed, as he did not submit himself to any cross-examination. P.Ws.2 to 4 have no personal interest in the litigation and their interest is confined to the performance of their official duties as employees of the plaintiff college. In assessing the credibility of the oral claims of D.W.1 and P.Ws.2 to 4, the claims of P.Ws.2 to 4 deserve more credence under the circumstances and an independent reassessment of the entire evidence on record, thus, does not disclose that the defendants claimed at any point of time earlier to this suit about the specific period of their possession and though the plaintiff did not specifically produce any documentary evidence about the suit schedule property being part of Ac.7.07 cents allotted under G.O.Ms. No.84 or one more acre in its possession earlier, the defendants have equally not been able to produce any oral or documentary evidence to show that the suit schedule property was probablised to be part of the remaining Ac.0.39 cents in survey No.570/B1. The trial Court in its findings against the plaintiff was mainly influenced by the absence of the documentary evidence for the plaintiff about the location of the suit schedule land within survey No.570/B1 and within the land allotted to the college under G.O.Ms. No.84. But it did not notice that G.O.Ms. No.84 itself refers to the further possession of the plaintiff over one more acre of the land in the same survey number. It should also be noted that the question of burden of proof loses its relevance once the evidence of both parties is placed before the Court and it assumes importance only when the evidence of the parties is evenly and equally balanced. When the defendants admit that the schedule land is part of ‘Vagu poramboke’ belonging to the Government and their entry into the said land was through the alleged oral permission by the Revenue officials, the defendants have equally the burden to show the time of their entry, the location of the property and other details. When the defendants entered into possession of the property with the permission of the Revenue officials and never claimed any title adverse to the Government and were only claiming to be pursuing their request for assignment of the land as house sites, their possession could not have been adverse to the Government or to any person claiming under the Government earlier to the notices exchanged in 1999 leading to O.S. No.1069 of 1999. If any adversity of possession is only since 1999, the suit filed in 2002 cannot be considered to be barred by limitation and the defendants could not have been considered to perfect their title by prescription. When admittedly the possession of the defendants was permissive under the Government and the allotment of the land to the plaintiff college was by the Government, the conclusion of the trial Court about perfection of the title of the defendants under Article 65 of the Limitation Act does not appear to be based on any factual foundation. The first appellate Court in its judgment was of the opinion that the admission by the defendants that the suit property was within survey No.570/B1 and that they were in unlawful possession of the said property, should lead to the entitlement of the plaintiff for declaration of title and for vacant possession, for which purpose it relied on the evidence of P.W.2, from which it deduced the allotment under G.O.Ms. No.84 and even assuming that its disagreement with the trial Court about the admissions in the evidence of P.W.2 was not correct, the defendants cannot claim to have perfected their title by adverse possession under the circumstances already referred to. It can also be considered probable that but for the location of the suit schedule property within the land allotted to the college under G.O.Ms. No.84, the earlier exchange of notices leading to O.S. No.1069 of 1999 or the subsequent exchange of notices and the present litigation would not have ensued between the parties. Kum. Nimmagadda Revathi, learned counsel for the appellants referred to Ram Das v. Salim Ahmed and another[1], wherein the Apex Court held that the plaintiff was not entitled to get declaration of title if such title could not be established by leading convincing evidence and the weakness of the defendant’s title cannot lead to decree of plaintiff’s suit. The proposition is unexceptionable, but any success of the plaintiff before the first appellate Court cannot be attributed solely to the weakness in the version of the defendants herein and it is on the basis of broad human probabilities arising out of the evidence of both parties that the first appellate Court came to the conclusions, which it has drawn in the light of the circumstances referred to in its judgment. The conclusions of the first appellate Court cannot be considered to be based solely on the weakness of the version of the defendants. The learned counsel also referred to Kamakshi Builders v. Ambedkar Educational Society and others[2], wherein the Apex Court was referring to adverse inference that should be drawn, if a relevant document has been withheld from the Court. The Apex Court was also referring to the relevance of the conduct of the parties in determining the status of the parties vis-à-vis the property in dispute. This reliance was with reference to the plaintiff not filing any document relating to the survey said to have been conducted in 1999 or the report of the advocate commissioner in the earlier suit O.S. No.1069 of 1999. It is seen from the judgment in O.S. No.1069 of 1999 that what all the advocate commissioner reported was about the residence of the defendants herein in the thatched huts, but there appeared to be no finding by the commissioner about the location of such property being within or outside the land allotted to the college under G.O.Ms. No.84 or other land in possession of the college even since earlier. Any survey which occurred in 1999 also was not specifically claimed by any pleading or witness to have disclosed the land under the occupation of the defendants herein to be outside the land allotted to or in possession of the college at any time. Even assuming that the plaintiff has a duty to produce such documents and failed in doing so, any inference that may be drawn from such non-production of such documents, cannot be irrebutable nor can stand in the way of drawing necessary conclusions from the other evidence available on record. Kum. Nimmagadda Revathi, learned counsel also referred to Vidhyadhar v. Manikrao and another[3], wherein the Apex Court was referring to the presumption that has to be drawn by the Court when a party to the suit does not enter the witness box and does not offer himself to be cross-examined by other side. The Apex Court held that the Court has to draw an adverse inference against that party. This principle, according to the learned counsel, applies against the plaintiff, as P.W.1, whose chief-examination affidavit was filed, was not offered for cross-examination. But it is to be remembered that P.W.1 like P.Ws.2 to 4 is an officer of the plaintiff college and cannot be attributed with any personal interest or involvement in the matter. In any view, an institution represented by its officials cannot be subjected to any adverse inference for non-examination of all officials, when the evidence of P.Ws.2 to 4 cannot be said to be of any lesser quality than the evidence of P.W.1 in respect of the matters which have come within their knowledge only in discharge of their official functions. T.K. Mohammed Abubucker v. P.S.M. Ahamed Abdul Khader and others[4] was also relied on by the learned counsel Kum. Nimmagadda Revathi to contend that the Apex Court had laid down that in a suit for declaration of title and possession, the plaintiff can succeed only on making out his title and entitlement to possession and not on any alleged weakness in the title and possession of the defendants. That was a case where the plaintiff did not enter the witness box and his vendors or neighbours and villagers were examined. The Apex Court concluded that the evidence was deliberately withheld from the Court and the failure of the plaintiff to prove title or previous possession or encroachment by the defendants resulted in the failure of the plaintiff in that suit. While it should be noted that it was more on the facts of that case that the decision of the Apex Court revolved round, but the facts of the present case are clearly distinguishable, as the title of the plaintiff college to the land allotted to it under G.O.Ms. No.84 or the plaintiff being in possession of the land so allotted and also another one acre of land since earlier, could not have been disbelieved in the absence of any contrary evidence for the defendants herein and the attempt of the defendants herein to project the plaint schedule property to be not part of the property in possession of the plaintiff college under Government Orders or otherwise cannot be considered to have been probablised or made believable by the evidence on record. The first appellate Court is final Court of fact and very strong and